Why Law Presupposes Nature According to Ralph Cudworth (†1688)
In his A Treatise Concerning Eternal and Immutable Morality (new version edited by Sarah Hutton, Cambridge: 1996), Ralph Cudworth defends, in a thoroughly Modern way, what one may rightly deem a classical ontology. I will offer here a review of the first two chapters of book one and will devote future posts to the remainder of the treatise. Cudworth begins by noting that a common view throughout the ages has held that there is no natural law but only positive law, no natural difference between good and evil but only mandates established by the authority of a sovereign. Aristotle affirms that politically “honest” and “just” things seem to vary so greatly that they cannot possess any common nature. Hence, by way of clarification, Aristotle divided:
- Politically Just things (to dikaion politikon) between
- Natural (physikon) – things that are the same everywhere, and
- Legal (nomikon) “which before there be a law made, is indifferent, but when once the law is made, is determined to be just or unjust” (Cudworth’s trans. of Ethics 1134b18-21).
Among those who deny the first among this division are Democritus, Epicurus, and more contemporaneous, Thomas Hobbes. Cudworth quotes the latter as saying, “In the state of nature nothing can be unjust; the notions of right and wrong, justice and injustice have no place; where there is no common power, there is no law; where no law, no transgression … No law can be unjust” (Elementorum philosophiae… vol. II, p. 145).
In connection with this denial of #1 are those who claim that only by the command of God in his absolute power do things become good. Cudworth singles out Ockham as one who held to this view of “an omnipotent Being devoid of all essential and natural justice” (p. 14). Some, such as Joannes Szydlovius (early 17th cent.) claim that “to love God is by nature an indifferent thing, and is morally good only, because it is commanded by God…” (Vindiciae questionum...).
Cudworth sets out in chapter 2 to prove by logical argument that commands depend upon and presuppose natures. No omnipotence, he argues, is able to make a thing white or black without there being whiteness or blackness, and this is true whether one thinks of these as qualities (Aristotle) or dispositions of parts that beget the sensations of white or black within us (Descartes). Also, omnipotence cannot make things like or equal to one another without the nature of likeness and equality.
The reason thereof is plain, because all these things imply a manifest contradiction: that things should be what they are not. And this is a truth fundamentally necessary to all knowledge, that contradictories cannot be true; for otherwise nothing would be certainly true or false (p. 16).
By way of the Scholastics, Cudworth affirms the principle “that God himself cannot supply the place of a formal cause (Deum ipsum non posse supplere locum causae formalis).” In other words, “God” is not the nature of “justice” or “honesty” which is what would be the case if those terms were not self-referential but refer only to God’s will. Perhaps Cudworth’s clearest working principle, which one must affirm in order to avoid both logical contradiction and uphold natural rights, is that, “There is no such thing as an arbitrarious essence, mode, or relation, that may be made indifferently any thing at pleasure” (p. 17). In other words, things have their own existence and because of this they are not indifferent and thus cannot be changed at will. “For an arbitrarious essence is a being without a nature, a contradiction, and therefore a nonentity” (ibid.).
However, Cudworth notes, it is true that when God or a civil authority issues a command, the thing commanded becomes good when before it was indifferent, thus appearing to support the voluntarist claim that good and evil are human constructs. Even if things are bound by their natures, some claim, morality is created by the command of an authority. Cudworth responds that commands are not obligatory accept insofar as they apply to specific natures. For example, no known ruler has ever founded his authority of making commandments and others’ duty to obey them in a law of his own making. Thus the authority of the commander must arrive from natural justice and an antecedent obligation to obey within the subjects. “Which things are not made by laws, but presupposed before all laws to make them valid ” (p. 18). For Cudworth, if there were no antecedent obligation to obey within subjects not even God himself could place any obligation on them to obey his commands “because the natures of things do not depend upon will, being not things that are arbitrarily made (gignomena) but things that are (onta)” (p. 19).
Having explained the logic of the above division between natural and legal good/evil Cudworth procedes to clarify what is known as “the Euthyphro dilemma” from Plato’s Euthyphro – Are things good because they are commanded or commanded because they are good? The answer to this dilemma, for Cudworth, depends upon a right division between intellect and will. The nature of man that does not depend upon arbitrary will is an intellectual nature. Thus, good and evil for an intellectual nature are things to which the intellect is obliged to pursue per se and others that the intellect obliges itself to pursue per accidens. This break-down may be of some help here:
- Intellect – pursues the good by nature
- Natural good – such things as the intellectual nature obliges to immediately, absolutely, and perpetually, and upon no condition of any voluntary action that may be done or omitted intervening.
- Will by means of Intellect- pursues accidental or “indifferent” good and evil by a voluntary action either
- self imposed or
- imposed by another person
- Positively (accidentally) good – such things as the intellectual nature obliges to accidentally upon condition of some voluntary act of another person invested with lawful authority in commanding.
Through a command of the will indifferent things acquire a new relation to the intellectual nature by falling underneath something that is absolutely good or evil. In other words, though they are commanded by the will, these indifferent things depend upon the intellectual nature of the subject supplying the general categories of good and evil under which they fall. For example, to keep faith is an obligation of natural justice. To keep faith with a particular person/entity at a specific time is a thing indifferent. However, when one makes a promise by voluntary action, that particular thing falls under the absolute category of “keeping faith” thus forming a new relation to the rational nature. Thus, natural justice for man is the intellectual nature which obliges one to obey both God and civil authority.
Subjects are not required to obey a specific civil authority merely because of a “positive” law but because the intellect naturally pursues obedience to the general office of the civil authority. Yet, even the civil authority is bound by the intellect and loses the power to command if he or she exceeds these naturally imposed bounds.
Cudworth clarifies that commands do not change indifferent things into things good per se but the obedience to a particular positive law concerning an indifferent thing can be divided between form and matter. The act of obedience to the indifferent thing which has become obligatory is material obedience while formal obedience corresponds to the universal of yielding obedience to lawful authority.
Wherefore in positive commands, the will of the commander doth not create any new moral entity, but only diversely modifies and determines that general duty or obligation of natural justice to obey lawful authority and keep oaths and covenants, as our own will in promising doth but produce several modifications of keeping faith. And therefore there are no new things just or due made by either of them, besides what was always by nature such, to keep our own promises, and obey the lawful commands of others (p. 21).
Cudworth concludes from the above premises that if there were no intellectual nature or natural justice then nothing would be obligatory, especially not that which is supposedly begotten by a mere command of the will. One can see in this the foundation for a Western theory of innate and inalienable rights as things founded upon certain and intellectual principles. It is no wonder that a man as influential as John Locke was first schooled in the philosophy of Ralph Cudworth and nurtured through close convivial acquaintance with the latter’s daughter Lady Masham.