Revue de la B.P.C. THÈMES III/2012
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What can Natural Law Theory get from Environmental Ethics ?
Un philosophe du droit japonais
s’interroge
au lendemain des catastrophes
de 2011
par Hiroshi Takahashi
(*)
Environmental challenges
unprecedented in the history of this planet, formulated environmental ethics in
the West in the latter half of the twentieth century. This new ethics soon gave
rise to the deep interest in the academic world of legal philosophy. But when
it came to the actual inquiry, legal philosophers were completely at a loss
what to do, because it seemed to them that the subject matters and the approach
of environmental ethics were too different in kind. In the first place, the
traditional legal theory used to study legal systems from the viewpoint of
personal relations. On the contrary, environmental crises pressed jurists to
control personal relations from the viewpoint of material and natural
relations.
Stated quite simply, the
point of understanding of environmental ethics depends on how we view “nature”.
There are conflicting views of nature in legal philosophy, that is, the natural
law theory and the legal positivism. The latter is based on the principle of
dualism of nature and value and excludes value from nature. Then, nature is viewed
as ‘res’ which is beneficial to human beings in economic systems and it has no
inherent values. The former, however, understands human nature as reason,
carefully avoiding the “naturalistic fallacy”. They find the principles of
legal values in human nature and make much of conscience as the light of
reason. But conscience is fundamentally oriented to the human act in human
society. It is still pending how conscience has to do with the “respect for
nature”. It is a perplexed problem also for the proponents of natural law theory, whether inherent values
subsist in the natural world or not.
As the case may be, also
the natural law theory may be pressed to modify its own original theory while
making a study of environmental ethics. In this connection, our article is
intended for making room of the reconsideration about relationship between
natural law theory and anthropocentrism.
1-1. Moral valuation on nature by nonanthropocentrism
What did European, who
visited America first, think of the vast wilderness in America? Some thought
that it had to be controlled, so that it did not hinder the growth of the
civilization, while others thought that it was not mere commodities to be used
for human consumptions, but it had the spiritual and aesthetic value which
should be preserved from the human activity that would degrade it. The famous
debate between Gifford Pinchot and John Muir, which is called
conservation-preservation debate later, symbolizes the two major competing
views of the natural world.
It was Aldo Leopold’s ‘the
Land Ethic’ that has taken over this debate. He pointed an evolution of ethics
and proposed an extension of moral standing to the land. We must no longer
treat the land as a mere stock that can be used and shaped in any way that we
desire. The land is the Matrix of all living things. Because the land has a
highly organized pyramid-structure of soils, waters, plants, and animals, which
has developed through millions of years of evolution, the human interference
with this complex structure must always be humble and constrained. It is true
that the land has an ability of self-regulation in spite of the human
intervention, but, when changes would be introduced abruptly and violently, the
potential for disaster were genuine.
Now human beings are
members of the biotic community rather than conquerors of nature, the land
ethics requires a radical change in human psychology brought about through the
moral and ecological education. “An ethical relation to land can exist without
love, respect, and admiration for land, and a high regard for its value.” By
value Leopold means value in the philosophical sense which is far broader than
mere economic value. He calls this ethical attitude toward ecological wholes
the ‘ecological conscience’ and states that “a thing is right when it tends to
preserve the integrity, stability, and beauty of the biotic community. It is
wrong when it tends otherwise”. Therefore Leopold’s view is called the ethical
holism, because right and wrong are a function of the well-being of the biotic
community, not of its constituent members.
Turning our eyes from
America to Europe, also here we can find a similar ecological movement after a
while. The Norwegian philosopher Arne Naess developed the “Deep Ecology” first.
He introduced a distinction between the deep and the shallow ecology. He characterizes
the shallow ecology movement as committed to the “fight against pollution and
resource depletion”. It is an anthropocentric approach with a central objective
to protect the “health and affluence of the people in developed countries”.
Deep Ecology, on the other hand, takes a “relational, total-field” perspective,
rejecting the “man-in-environment image” in favor of a more holistic approach.
To put it simply, the
shallow approach looks only at the immediate effects of the environmental
crisis. Just as a sneeze or a cough can disrupt a person’s daily routine,
pollution and resource depletion disrupt the lifestyle of modern industrial
societies. However, it would be a mistake for medicine to treat only sneezing
and coughing and not investigate their underlying causes. That goes for the
shallow approach, too. It is a mistake for environmentalists to be concerned
only with pollution and resource depletion without investigating their social
and human causes.
Deep Ecologists seek to
develop and articulate an alternative philosophy to replace the dominant
worldview that is responsible for the crisis. Now the alternative is to be
radically different from the European worldview, they rely on Eastern poetry,
Buddhism, and spiritualism. The practical ethic of Deep Ecology is best seen in
the two ultimate norms. These are self-realization and biocentric equality.
Self-realization is a
process of self-examination in which people come to understand themselves as
part of a greater whole of nature. There is no firm ontological divide between
humans and non-humans. We know ourselves not as individuals separate from
nature but as a part of a greater ‘Self’. They deny the individualistic
understanding of ‘self’ in the European
philosophical tradition and use ‘Self’ to refer to the holistic and relational
view of self. Biocentric equality is the recognition that all organisms and
beings are equally members of an interrelated whole and therefore have equal intrinsic
worth. Deep Ecologists suggest treating human interests as equal to the
interests of other living things. They seek a more democratic, and less
hierarchical, equality. This means that humans ought to live in simple,
relatively non-technological, self-reliant, decentralized communities.
Besides Leopold and Naess,
many and various nonanthropocentrists entered the stage. They attribute
intrinsic value to humans and to nonhuman entities. But they vary in how
inclusively they view the moral community. If something lies within a circle of
moral community, it possesses direct moral standing. It is said to have
intrinsic value which is respected as self-end. If something lies outside of
the moral community, it possesses no moral standing. It is said to have
instrumental value, as far as it is only a means to some other ends. The views
of nonanthropocentrism differ most markedly in their attribution of intrinsic
value to diverse things in the world. If we extend the circle of moral
community to certain animals, we arrive at Zoocentrism (P.Singer,T.Regan). If
we extend the circle of moral community to individual organisms, we arrive at
Biocentrism (P.W.Taylor). If we extend the circle of moral community to
ecosystem or species, we arrive at Ecocentrism (J.B.Callicot,H.RolstonⅢ).
If we extend the circle of moral community to nature as a whole, we arrive at
Physiocentrism(K.M.Meyer-Abich).
1-2. Retort from the side of revised-anthropocentrism
Against the rushing
stream of Western nonanthropocentrism in 1970s, John Passmore, an Australian
philosopher, argued that while the dominant traditions of Western thought are
guilty as charged with the large-scale environmental destruction, yet the
Christian or utilitarian teachings, can provide the resources to resolve
environmental controversies, as long as some of the rubbish that lies in their
teachings, are removed. We need not abandon the Western tradition, calling for
mysticism, nature-as-sacred view, and animal rights as “a new set of moral
principles”. For example, we can get away with the application of the generally
accepted principle that “nobody ought to poison his neighbor” regarding to the
ethical problems associated with pollution.
Passmore’s strategy was
to adopt the anthropocentric outlook typical of Western moral and liberal
theories and then apply it to the current controversies about human
exploitation of nature to show that it neither blinds us to the environmental
crisis nor denies us grounds for criticizing destructive exploitation as wrong.
He emphasized that Western scientific reasoning is playing an important role in
helping to bring about this criticizing. Science has challenged the old belief
that Earth’s resources exceed our ability to consume them. Hence, in order to
bear a responsibility regarding to the natural world, we need a more reasonable
thinking, but not a transcendent intuition.
Also Bryan Norton, an
American Philosopher, was skeptical about the recognition of intrinsic value of
nature. But his standpoint is somewhat different from Passmore’s one regarding
to the insight of nature. Norton appreciates the ‘respect for nature’ after its
fashion, as long as the irrational explanation of nature is removed. He
perceives that it has an educational effect on humanistic life. In the
mid-1980s Norton developed “week anthropocentrism” as accommodating a theory of
environmental value within the
humanism. He emphasized the role of nonhuman nature as a lofty teacher
of human ideals and a good shared among generations. Week anthropocentrism thus
was positioned as a moderate alternative to both narrow forms of economic
valuation of “strong anthropocentrism” and nonanthropocentric arguments.
Norton presented the
concept of “transformative value” as the normative core of week
anthropocentrism. Contact with wild species and ecosystems could prompt
individuals to evaluate critically and transform their exploitative,
consumer-centered preferences into more environmentally benign ideals
compatible with an ecologically enlightened worldview. But in the 1990s, Norton’s
stance evolved into a more explicitly pragmatic approach. Norton concluded that
the anthropocentric-nonanthropocentric debate in environmental ethics was not
as important as previously thought, because it did not thwart political
agreement on common policy goals. And today as well, many of anthropocentrists
are taking an increasing interest in the environmental pragmatism.
Environmental pragmatism
argued that environmental ethics so far had been too dependent on theoretical
considerations to address the areas of practical decision making. Environmental
ethics has proved fruitless, because it stuck to a prejudice that the standard
of ethics has to be truth. According to pragmatist, ethics has to direct its
attention to a particular context on which a suitable method for decision
making depend. Since the practical reasoning cannot necessarily present the
certain advice, pragmatism goes toward tolerance, respect for opposite opinion,
and compromise, if various views in conflict are equally reasonable.
Such approach places too
much emphasis on open procedure to decision making than on product of the only
true result from arguments. Therefore it supports democracy to ensure that all
involved parties have their say in ethical debates. Environmental pragmatism
shows deep interest in the “sustainable development” which aims at the harmony
of our technological culture with the environmental stability. Then it gets on
closer terms with the utilitarian principle on which a long-range plan of the
resource conservation is drawn up making use of the economic cost-benefit calculation.
Now the ethical characteristic of environmental ethics fades away.
The above fundamental
retorts from the revised-anthropocentrism as follows:
When nonanthropocentrists
speak on the subject of “interest” and “suffering” of living things, one must
watch for an exaggerated expression. In order to show the new relationship with
the natural world, they are apt to turn phrases as “solidarity”, “brotherhood”
or “partnership”, which are normally reserved for human communication. However
in the relation of humans to animals and plants, partnership with equal rights
cannot stand up. Real partnership is valid only among humans. Humans cannot
want animals and plants to act morally from the beginning, because latter is
shut out of matters of moral good in principle. Partnership is essentially
characterized by the mutual
communication. Humans cannot exchange thought and sentiment with nonhumans.
Former is different from latter in making a community life with reason.
Nonanthropocentrists
attempt to level humans with other nonhumans. But in reverse this attempt is
counterproductive regarding to the conservation of nature. If there would be no
difference between humans with other nonhumans, so there would be no
responsibility of humans for nature. In case of conflict of humans with other
nonhumans, the criterion of solutions stands on the side of human reason, not
on the side of nature, because brutality, destruction, and struggle for
existence would come to replace reason as norm, if the say of nonanthropocentrists
were granted.
1-3. Environmental Justice Theory
Above we referred to
nonanthropocentric extensionism. But taking account of a new proposal “intergenerational
ethic”, we can refer to anthropocentric extensionism. An ethicst Joel Feinberg requires
extending rights to future human beings, because they also have an interest in
a habitable environment against contemporary people. Here we can find the
application of the rule of equity or fairness to the intergeneration.
Especially John Rawls argued on the basis of his own hypothesis “veil of
ignorance” that savings for future generation follow the same principle of
fairness as savings for contemporary generation. Under the standpoint of
Justice the difference of time is rightly to disregard.
Those who advocate newly
Environmental Justice, attempt not only to establish an intergenerational
ethics along the vertical dimension of time, but also to apply the rule of
fairness to social, cultural, and international regions on the horizontal
dimension of contemporary world. Like this, Social Ecology was formed on the
economic conflict regarding to domestic
affairs (Murray Bookchin), Ecofeminism was formed on the sexual conflict
regarding to cultural affairs, and Global Justice is pursued to stop the
North-South gap. The common purpose is to correct the discriminatory treatment
by generation, class, sex, and state.
Environmental Justice
Theory wrestles with the environmental problems not only from the viewpoint of
extension of moral standings, but also from the aim of correction of the
unfairness which has so far continued to oppress the human relations and the
international situation. Its keynote is to give relief to the weak, disclosing
the ideological deception of the strong to light. It dislikes oppression and exploitation
in any cases. It strives for utopia of no oppression. Adopting such a view
regards as the protection of nature, while the weak corresponds to nature, the
strong corresponds to humans. It is true that for example Ecofeminism rejects
the nature-culture dualism in favor of nature, because culture is a hotbed of
discrimination. But the dominant concern of Environmental Justice Theory
consists in remaking of unequal society in accord with Justice rather than in
protection of nature. The more the human and international relations are
improved, the more the environmental conditions would be improved as a matter
of course. The former question must be settled first. The latter case can wait.
We
have so far mentioned to various proposals and sharp disputes in environmental
ethics from the typical views of nonanthropocentrism, revised-anthropocentrism,
and environmental justice theory. Now we attempt to tackle the question what
legal philosophy, especially the traditional natural law theory can learn from
these new views in order to extend its own knowledge. What we are concerned
here is whether the principle of human dignity can be widely supported in front
of the principle of respect for nature beyond the human unique society or not. The
key to answer would consist in another meaning of “Noblesse oblige”.
2-1. Distinction between an idea of nature and one of life
Proponents for natural
law theory must be careful, lest they would be misunderstood, whenever they use
the word “nature” in the normative sense. While living things belong to natural
environment, natural environment does not consist of only living things. Air,
soil, water and so on are in themselves inorganic substances, even though the sources
of diverse organic lives. This means that natural environment is not necessarily
profitable for life, is but also what befalls suddenly as dreadful disaster
contrary to our expectation. It was the great Earthquake and Tsunami that
struck the East Japan last year that forced to rethink about evaluation of the
natural environment.
We owe our affluent daily
life to the riches of Nature. That is why we have strong interest in Nature.
But we find it clear that Nature is “indifferent” to intentions of humans, when
the high civilization built up strenuously was broken to pieces in no time.
While humans put their confidence in Nature’s value (intrinsic or
instrumental), Nature is value-indifferent to humans and other living things. A
crack runs between life and Nature, though the latter is matrix of the former.
In discussion about the
environmental issues there is an image of nature that nature is too delicate to
be protected from the violent intervention by humans and that the order of
nature is not restored never again once it cease to exist. But to put it more
precisely, the above applies to the order of life, not to Nature. We have put
too much confidence in our knowledge regarding to Nature to notice the
absurdity lying behind Nature and being out of our hand. Nature is “value-uninterested”
in the working of humans. Light and Rain from heaven pours on the good man as
well as the bad man.
It is not groundless that
the parole “Come back to the Nature” is damned as illusion. Nature is not
necessarily a wholesome world. It has the dark side of death behind the light
side of life. It does not function necessarily in accordance with the mild and
peaceful laws. In reverse humans have been threatened by Nature for a long
time. Those who today long for the lost paradise, do not notice how much our
ancestors had been tossed about by natural disasters.
All risks such as
starvation and exhaustion of resources, to which we have been exposed
ourselves, cannot be escaped by a romantic making holy of Nature. On the
contrary, we need further technology which is harmony with humans, society, and
environment. Humans cannot live without technology. Looking at technology as
enemy leads to no solution of the problem. It is important to make technology
serve our demands, getting rid of excessive destructive power of it against
humans and Nature. What is crucial is that the modern technology lacks an
ecological implantation. This cognition, now, come to encourage the proponents
of nonanthropocentrism in reverse.
2-2. Turning point of civilization; progress or safety of society ?
So far we have argued
that while Nature is the common matrix bringing up all living things, it has
another face of the obstruction to all life activity. One cannot talk about “consistent
Order of Nature”. As long as Nature has a dark side, because of which humans
seek of light and challenge against Nature, the say of anthropocentrists is not
wrong. But it is other problem whether this challenge against Nature is
suitable or not. The excessive destruction of natural environment by the
industry with high technology has come to threaten the ecosystem of nonhumans
and the safety of human society. In consideration of the unexpected changes,
one can say rightly the high technology has also a dark side of death. By contrast
nature as order has a light side of life,
The disaster on a large
scale was brought by accidents in Fukushima nuclear power station which Tsunami
caused beyond our expectation last year. With this accident as a start,
possibilities of risks to be brought by high technology have created a great
controversy among public, no matter who is nonanthropocentrist or
anthropocentrist. How Nature will turn out is anybody’s guess. As well, how the
industrial utilization of advanced technology will be influential with future
generations is anybody’s guess. Regarding to this problem, someone argue that
humans must be cautious to the further development of industrial utilization of
high technology, especially of nuclear energy or of genetic engineering, the
others argue that “symbiosis with technology” should be the well-spring of the
progress of human beings as used to be ,even though with risks,.
Those who lean toward
progressivism emphasized that so far humans have never made a choice to reject
the technology once attained, whenever standing at the crossroads of risks of
accident. It is true that humans should aim at safty100％, providing for
safety measure more strongly than before, but risks never come to 0, even if
near 0, at all efforts. Accident accompanies high technology. There is no
perfect safety. Therefore we cannot help confronting troubles without
frightening of accidents. As long as “symbiosis with high technology” is
inevitable in order to enjoy a dream of life, there is nothing that we can do
but seek for “more safety”.
German legal philosopher
Arthur Kaufmann once stated on the serious moral problem of the advanced
technology as follows. According to him, natural law theory is no good any more
to the highly fluid and complex modern society, because it sticks to the given
simple and fixed rules which have validity only in the confined steady
community where all people are easy to reach agreement. But in the liberalized
and globalized society anyone cannot act on all affairs without running a risk,
because there is not given rules. Nevertheless, if adventurous undertakings
were flatly prohibited by law, because their results were not previously
exactly assessed, such a society would be stagnant after all. In order to get
along well with the modern society, we should not hesitate to step into “unknown,
uncertain, and unstable” matters. If such an attitude is accepted at all, “tolerance”
comes to one of the important moral orders in the contemporary society. Owing
to tolerance, we are open to new matters and can wrestle with future challenge.
Only there remains a
question that tolerance enables us to act not only with responsibility but also
without responsibility. Here Kaufmann embraces German philosopher Hans Jonas’ “the
principle of responsibility” in order to compensate his “the principle of
tolerance”. This is important in the case of utilization of biotechnology,
generic engineering and, above all, nuclear energy. On the last case we cannot
predict and control its large-scale harmful outcomes. Therefore reason orders
us the most cautious attitude. Jonas made the duty of care for future
generation look like Kant’s categorical imperative. It was made in line with
the model of responsibility of parents for children and of responsibility of
statesman for people. One must not place a big bet on the continuation in
itself of mankind before everything.
2-3. Distinction between the subject of life and the subject of moral
We has so far mentioned
to some significant advices for natural law theory from the preservation-conservation
debates in environmental ethics and from the experiences of disasters in East Japan. The latter
demonstrated that there are both the light side and the dark side in both
Nature and high technology. Now with the teachings of Kaufmann and Jonas clue,
we can say that both “the principle of tolerance” and “the principle of
responsibility” are indispensable for natural law theory in view of the dark
sides in Nature and high technology. Both the human dignity and the ecosystem
of all living things should be respected. But we must be cautious that
respecting for human dignity is different from respecting for Life. Let us next
consider the proposal peculiar to nonanthropocentrism that each of living
things have its own intrinsic interest and strives to gain each end of interest
and that its interests has to be respected equally.
It is also Aristotle’s
view that each of living things strives to complete its own wellbeing. From
this view we can go a step further and bring out a new understanding on Life.
What does the word “strive” mean? Any efforts of living things are indifferent
with human evaluation. A beautiful flower in the Andes blooms for its own
interests, not for humans, even though humans and insects are respectively
interested in that flower. As you see, it is an excellent intuition of
nonanthropocentrism which pointed out that individual organism has a proper
subjectivity. The word “Subjectivity” presupposes a kind of freedom. Freedom
presupposes a distance from an inorganic substance. On occasion individual
organism has to resist against the inorganic substance in order to maintain its
own life, because the dark inorganic substance will drag the individual
organism down into the depth of death. Here is the essential meaning of the “strive
against”. Human beings can recognize connaturally that preserving own life,
whatever it is, is good. Therefore it is right to tell that humans should not
destroy the life of individual organism at random, as long as the latter also
has a kind of subjectivity.
However this recognition
does not mean recognition of the “rights” of nonhumans at once. Indeed all
lives long for wellbeing, whatever of humans or of nonhumans, at first place. But
whoever is subject of rights can also be subject of duties. Nonhumans cannot
get to subject of duties, even though they are subjects of lives. We only
realize rights and duties, when some lives are in stage of human beings. We
must distinguish the subject of moral from the subject of life. The subject of
moral is also the subject of life, but the subject of life is not the subject
of moral. Christopher Stone, American legal philosopher, introduced “Right of
Nature” as a legal means of the help of endangered species. In order to start
the lawsuit against the executive officer, he thought of application of the “guardianship”
in the traditional Anglo-American Law. Recently this trial begins having a success.
This success owes to the alteration of his earlier philosophical standpoint
that every living thing has intrinsic value, which is valuable in its self and
is not valued simply for its use. His innovative proposal aims at getting good
practical results rather than a kind of theoretical system. Thinking
theoretically, it is not appropriate to apply the word “right” to mere life or
nature.
According to Biocentrism,
interest of every living thing should be equally respected. But a question
remains regarding to the word “equally”. There is a hierarchic order in the
natural world (scala naturae). The mixed things are more perfect than the
elements. Inequality comes from the
perfection of the whole. “Goodness of an animal would be taken away if every
part of it had the dignity of an eye” (Thomas, S.T. Ⅰ,Q.47,Art.2). The
perfection of natural world requires the vertical diversity of its parts. We
are tacitly and connaturally valuing life of each living thing in proportion to
the difference of position in this order. The ordinary intuition teaches that
it is difficult to respect for the interests of humans and nonhumans equally.
Considering the above
mentioned argument on biocentric equality, it is appropriate for us to say that
while humans are “subjects” who can act morally, nonhumans are “objects” which
can receive moral treatment from humans in proportion to the difference of
position in animals and plants. Viewing morally, humans bear the responsibility
for not only human family, but also for nonhumans. Those who receive benefit
should not injure those who or which give benefit. This is moral rule. On the
contrary nonhumans have no ability to fulfill their responsibilities as the
moral agency.
2-4. On “the Law of Species”
We said that humans
should bear the responsibility for nonhumans. If so, should we bear the
responsibility for every individual living thing? If this is nonsense, it is an
important question to be answered what objects should be cared about morally.
We will say that the object of cares for nonhumans is not the existence of “individuals”,
but speaking exactly, the maintenance of “species” to which individuals belong.
That one species ceases means that after this the same kind of individuals does
not come into existence. If such extinction are brought about by humans unless
in the case of natural disaster, humans should bear the responsibility for
species, as well as one is guilty of murder, not guilty of death caused by
nature. Hence recognizing the responsibility or duty regarding to nonhumans on
the side of humans is more persuasive rather than recognizing the right on the
side of nature. After all ethics whatever it is, depends on human own efforts.
Then, how ought we to consider the “responsibility for species” instead of the “right
of nature”?
Species is the common “eidos”
of individuals. It continues forever beyond the short life of individuals. Here
we must attention to the medium position of species between individual and
genus just as the case in formal logic. One must not dissociate the species
from the context of the individual and the genus. One must not consider alone
the species. Moving the individual-species-genus relation from formal logic to
environmental ethics, the individual is a “receptacle” of the species and the
genus corresponds to the common natural environment where individuals exist
diversely. Species loses its own dwelling without individual. Genus is an
ecosystem which integrates all sorts of species from the higher grade to the
lower one.
Individual is, on another
viewpoint, the subject who transcends both species and genus. However close to
individual one may determine species and genus, one cannot reach individual. In
reverse individual includes species and genus as own attributes. In contrast
genus is the place where diverse individuals are born, grow, and die.
Based on our above
argument, we can introduce the following characteristics regarding to
individual-species-genus relation. First, species takes horizontally an
intermediate position between the narrower community and wider one. Second,
species takes vertically an intermediate position between the higher grade and
the lower one of living things. Third, while individual include the species and
the genus on the intensive viewpoint, genus and species subsume individuals on
the viewpoint of extent. That is why Pascal said “man is a thinking reed”.
From here we can
introduce the fundamental structure specific to humans. Humans are microcosm
that includes the reason as its top and the organic system as its base. And
yet, humans are only members of macrocosm and are obliged to obey to the
universal order. Humans are not only the moral subjects, but also the life
subjects. They are the complex matter-form synthetic substances. Although they
are unique rational persons, they are common with other living things in the
dimension of species. Owing to be the complex substances, they can
connaturally, hence just like morally penetrate into the diverse “eidos”
specific to other living things.
For example, supposing
the fresh and green color of lawn in the garden turned yellow, it is on the
base of the scientific observation to say that lawn “wants” (=lacks) water. On
the contrary, it is because of the moral nature specific to human beings to say
that lawn “wants” (=desires) water. This sympathy should not be neglected as a
mere primitive thinking of animism. The connatural cognition of life is not to
be confined to our neighbor. It extends further to other living things in the
proportion to the life’s degree.
How would we better treat
other living things as subjects under the law, by the way? In order to be able to talk on “right” or “duty”,
hence on “legal subject” at all, there must be an “objective law” in advance.
Subjective right is subject to objective law. Natural law is thought as an
objective law which makes persons the moral subjects of rights or duties before
positive law. Supposed one could talk on “Right of Nature” at all as some
environmentalist groups have already insisted on, there must an objective law
have been in advance. Whatever is this objective law which invests “Nature”
with “Right”? It is clear that this is not a kind of natural law, because
natural law addresses human persons. Like this, if we will avoid a coined word
and make use of the familiar term from the traditional natural law theory, we
might say it would correspond to “eternal law” at present, because eternal law
is thought as an objective law with an analogy, which makes nonhumans the
subjects of life. Only this subject is, strictly speaking, not the subject of
rights or duties in moral, but one of good or bad for life.
We cannot reach such a
law from the study of ecology or cost-benefit calculation. Indeed doctor can
instruct how one can keep one’s health. But he cannot teach how rightly one
should lead one’s life. Equally, ecology and utilitarianism can instruct how
many people can enjoy as much happiness as possible in the ecological and
economical limit. But they cannot teach how rightly human beings should have to
do with “Nature”. So, who teaches how rightly human beings should have to do
with Nature? We must remember that only human beings who were trusted with the
taking care of nature by God, can cooperate in the work of creation through their
alone given “reason”. This reason is no longer “technical reason”. It is rather
“moral reason”. Whatever is the ground of such an universal moral at all? Here
we need to revive Thomas’ word “natural law is the participation by rational
creatures in the eternal law” far from the history.
2-5. Rethinking of the eternal law
Thanks in large part to
the environmental crisis, ethical reflection has come to realize that natural
law is not an ultimate principle of law, but belongs part and parcel to a more
comprehensive order of “nature”, and that reason, however much it is conditioned
by its surroundings, can only hope to direct human existence to its fulfillment
by keeping this larger whole in sight. In the past, natural law has been
reduced to the idea of “human dignity” and in that form reigned as the supreme
principle of law .But human reason is not something that belongs to human
individuals. This is what lies behind the old idea of “eternal law”, an idea
that has figured prominently in traditional national law theory but otherwise
has not attracted much attention in legal philosophy where the idea of natural
law has been dominant.
Which is more perfect
Persona or Ordo Universi? The following words of Thomas are helpful to us in
making the relation between lex aeterna and lex naturalis clear. Thomas had treated of “the end or term of
the production of man” and inquired “whether the image of God is to be found in
irrational creatures?” ( S.T. Q. 93. Art 2.). He stated “Obj.3” to this
question as follows:
The universe is more
perfect in goodness than the intellectual creature as regards extension and
diffusion; but intensively and collectively the likeness to the Divine goodness
is found rather in the intellectual creature, which is capable of the highest
good. Or else we may say that a part is not rightly divided against the whole,
but only against another part. Therefore, when we say that the intellectual
nature alone is to the image of God, we do not mean that the universe in any
part is not to God’s image, but that the other parts are excluded.
His Reply to Obj.3 as
follows:
Further, the more perfect
anything is in goodness, the more it is like God. But the whole universe is
more perfect in goodness than man; for though each individual thing is good,
all things together are called very good. Therefore the whole universe is to the
image of God, and not only man.
Thomas held that natural
law is not the ultimate basis of positive law but merely the participation by
rational creatures in an eternal law. Unlike Kant, for whom human reason was
the supreme lawgiver, Thomas sees reason merely as the prudent legislator who
deliberates on the course of human existence, investigating the very being that
made reason possible in the first
place. Eternal law opening itself to the probing of human reason belongs to a
larger history of nature unfolding itself. Unlike natural law which is oriented
to the common good of human existence, eternal law is oriented to the common
good of being as a whole. Indeed, for Thomas even natural law itself as the law
of human existence that takes precedence over the law of state, only enjoys
that precedence within a wider order of creation.
Prior to the emergence of
environmental consciousness, no one gave a second thought to the possibility of
fatally interfering with the order of the universe. As a result, eternal law
remained a matter of abstract speculation. Universal order was, as Aristotle
put it, what cannot be other than it is. Everyone simply assumed that such a
world was beyond the reach of human ethical choice. In such circumstances, it
is hardly surprising that natural law should have been accorded first place
among the practical principles ruling human conduct. With the modern period,
the normative function of natural law was cut off from nature as a whole and
restricted to the human world.
The contemporary
environmental crisis has made such a position untenable. Even the natural
world, both within the human and without, fall under the class of what
Aristotle called things that can be other than they are. Ecological standards
and laws governing live species have become the objects of ethical deliberation
precisely because the very life of the biosphere and human existence with in it
are in peril of extinction. It is in this context that eternal law is being
resurrected as a category of legal thought and that some environmentalists are
calling for are reinterpretation of the philosophy of nature as a practical
philosophy.
The relationship among
eternal law, natural law, natural right and positive law, therefore, is not
merely a speculative problem but one with concrete consequences in
environmental ethics and bioethics. At the same time, care must be taken to
preserve the reliance on scientific methodology. The empirical approach of
objective science is universally accessible and hence enjoys a persuasive power
that is missing in theological ideas of eternal law which presuppose the
rational will of a divine creator. At, this point, we can depend on Thomas’s
theory on the structure of “inclinations” of human being in order to discover
there existential means that can serve as criteria for moral conduct To
introduce the ecological dimension into the philosophical discussion. We need a
more inclusive appreciation of the idea of eternal law . A revitalized idea of
eternal law needs to break through the anthropocentric model as well.
On the theological model,
eternal law is the law by which God rules creation. Its content is nothing
other than the very ideas that God uses in his conduct by rational reflection
and promulgation. God's law stamps its principles of being and action on all
creature innately. It sets up a permanent hierarchy in which all beings are
ranked relative to each other, such that the lower serve as means for the fulfillment
of the higher. This chain of being determines the nature and participation of
each creature in the eternal law. Creatures that lack the power of reason act
in accord with unconscious and instinctual drives, while rational creatures
enjoy the privilege of rational reflection. This latter, however, remains as
much a part of their nature as do the drives they share with the lower animals.
That is, reason belongs to the eternal law and is thus never entirely at the
disposal of the human agent. Eternal law impels human nature to fulfill itself
against oppositions through reasoned self-determination and
self-responsibility. At bottom, universal life pursues its own wellbeing at
work in eternal law.
In the model, eternal law
is thought as more immediately regulative of species than it is of individuals,
and this applies no less to human beings. The essential and specific “eidos” of human existence does not leave any
room for human alterations. One thinks here, for example, of gene manipulation,
which is a serious intervention into the domain of eternal law. This is not to
say that eternal law admits of no intervention at all. Indeed human reflection
intervenes in order to seek out ethical criteria to live by. Even so, eternal
law remains a necessary condition for human reason to fulfill human nature. The
inventory of technological disasters driving modern civilization to the verge
of environmental catastrophe suggests that we have already crossed over the
threshold of permissible intervention in eternal law. Now more than ever the
bond between the preservation of the natural world and the notice to eternal
law needs to be strengthened and even to be given priority over the
human-centered demands of natural law. It owes to the ontological excellence of
human beings that we should care not only for the own wellbeing but also the
care for the wellbeing of being itself.
Finally a main question
must be answered. It is “to whom” human beings should bear the responsibility
for other living things and future generations. The key to the answer would
ultimately lead us to a hidden Lawmaker of Eternal Law.
References:
J. Baird Callicot and Bobert Frodeman (Editors in
Chief) (2009), Encyclopedia of
environmental ethics and philosophy, GALE.
Des Jardins J. R., (2001) Environmental
Ethics : An Introduction to Environmental Philosophy, 3ed.
A. Kaufmann, (1993), Über
Gerechtigkeit ― Dreissig Kapitel praxisorientierter Rechtsphilosophie.
H. Jonas, (1979), Das Prinzip
Verantwortung ― Versuch einer Ethik für technologische Zivilisation.
Thomas Aquinas,
Summa Theologica, translated by Father of the English Dominican Province,
Revised by Daniel J. Sullivan ; by Encyclopaedia Britannica, Inc. 1952.
(*) Hiroshi Takahashi
(1948), Professor of Faculty of Law in Nanzan University since 1991.
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© THÈMES, revue de la B.P.C., III/2012, mise en ligne le
12 avril 2012