Works By John Courtney Murray, S.J.
The Origins and Authority of the Public Consensus
A Study of the Growing End
IT HAS BEEN POINTED OUT to me more than once, in discussions on the subject of the American consensus, that the word is misleading. In current speech connotations have clustered round the word that form a barrier to an understanding of its classic sense. This is unfortunately true. Nevertheless, I am unwilling to relinquish the word. It is the apt word. It is also the historical word, whose use goes back to the origins of the Western constitutional tradition. From the Roman jurists, through St. Augustine, it passed into the Western political vocabulary. If it has now become colored by misleading connotations, it deserves to be redeemed unto right usage.
Today, of course, the word is often taken to mean simply "majority opinion," which is the supreme category in which men have lately come to think, when there is question of the political order. There is also the frequent meaning, reflected in Webster's Dictionary, where the word is defined: "Agreement in matters of opinion, testimony, etc.; accord; also, loosely, the convergent trend, as of opinion." These usages, however valid elsewhere, are departures from the technical constitutional sense that the word bears within the Western tradition.
I would maintain, for instance, that the public consensus of the West, and of the United States as an historic participant in the Western style of civilization, would remain the public consensus, even if it were held, as perhaps it is held, only by a minority within the West. The validity of the consensus is radically independent of its possible status as either majority or minority opinion. Moreover, the Declaration of Independence did not hazard the conjecture: "This is the convergent trend of opinion among us. . . ." It made the affirmation: "We hold these truths. . . ." Or in the equivalent formula: "This is the public consensus. . . ."
The current ambiguity of the word is indicative of a deeper conceptual difficulty. Two related questions are usually raised. Do we hold these truths because they are true, or are these truths true because we hold them? Do the propositions included in the consensus acquire validity through the sheer fact of their general acceptance, or conversely, does the inherent validity of these propositions require that they be generally accepted? Does the consensus, as an agreement, constitute the truth, or does the truth command the agreement which is the consensus? In a word, what is the precise nature of the consensus, as revealed in its origins? This is the first question.
The second question follows. If the warrant for the validity of the propositions that form the consensus is not the sheer fact of their general acceptance, what is this warrant? Where is it to be sought? Why, in the end, do we hold these truths to be true? Why are we obliged to make these affirmations? Whence is their necessity? And whence is the quality that transforms them from naked abstractions into operative imperatives that furnish the premises of more particular judgments of "right" and "wrong," passed on details of constitutional structure, legal enactment, and political action? In a word, whence comes the authority of the consensus?
Both of these questions could be answered by an analysis of the classical contents of the consensus, that is, the truths about law and
government, related to the nature of man, that have come to be consciously held, in some manner of explicit formulation, as the basis for a commonwealth and a polity in the Western style. For a variety of reasons, however, it may be useful here to approach both questions from the standpoint of the "growing end" of the consensus.
THE ORIGINS AND GROWTH OF THE CONSENSUS
It is well, first, to emphasize that the consensus does have a growing end. It is indeed a legacy from the past, but not in the form of a deposit that is closed to all change and addition. It is never finished, complete, and perfect, beyond need or possibility of further development. What we call the West is an historical concept, or better, an historical process. It is therefore an open-ended action. There is always the possibility and need of progress in the consensus that sustains its life, as there is likewise the possibility and the danger of decadence. The virtualities of human freedom, for good and for evil, are never exhausted. Man's free existence, the philosophers say, is a forward-looking historicity, whose structure, which has been conditioned by the historic past, is the matrix of projects for the future. This is true of the free society, as it is true of the free man. One must expect therefore that the public consensus, in terms of which the free society defines its identity, will not be a static quantity. It must obey one or the other of the alternative laws of history, which are growth or decline, fuller integrity or disintegration.
The most obvious growing end of the free society has been its business system in the complex meaning of the term. Behind its enormous growth has lain the pressure of the people's needs, wants, desires, dreams, passions, and illusions, which have all grown more demanding as it has become clear that the demands can be satisfied by science, technology, financial acumen, productive enterprise, and
the skills of business management, all bound in alliance with one another. The result has been the great sprawling Thing known as the American economy, which is now coming to be recognized as also a strange and new sort of polity. I have no competence to describe the Thing, nor is this necessary for the present purpose.
The first essential point is that the American industrial or business system is a power system. The power of which it is the vehicle is unprecedented in its magnitude. And this power is not diffused throughout the system but concentrated in a relatively few great corporations—more exactly, in their managements, or concretely, in the hands of a few men, who in effect direct the activities of the economic-political system, determine its forms, create and distribute its profits, and select the path of future growth. The second essential point is that the power of this immense economy and polity, or political economy, is an omnipresence in American society. No institution—certainly not government, or the university, and not even the Church—is immune from the touch of it, nor is any family or individual.
In consequence, the question has arisen with great urgency, is this omnipresent power also somehow an omnipotence? Are there any limitations that it freely recognizes, or that it can at least be forced to accept? More basically, how does this power establish its legitimacy, as all power must, if it is not to be indicted as a usurpation? Finally, before what bench or bar may this power be summoned for judgment on its uses, to know if perhaps they be not abuses, and therefore an exercise of tyranny?
In the forefront of those who have been occupying themselves with these difficult and important questions has stood Prof. Adolf A. Berle. In his Stafford Little Lectures at Princeton in 1958, later published in the book, Power Without Property, (New York: Harcourt, Brace and Co., 1959.) he presented his latest thought with wonted lucidity and force. One major thesis of the book is pertinent to our purpose here. It is thus stated: "Ob-
serving the American scene you note that, as power goes, the present concentration has in recent years been (on the whole) relatively free from the excesses which often make concentrated power odious. Certainly this was not because historical chance had located American economic power in a collection of saints. Checks (not 'balances') appeared in the form of periodic political interventions demanded by American public opinion. To explain this it becomes necessary to import a political conception—the `public consensus'—familiar to political scientists and brilliantly explained a few years ago by Mr. Walter Lippmann. So, it seems, the ultimate protection of individuals lies not in the play of economic forces in free markets, but in a set of value judgments so widely accepted and deeply held in the United States that public opinion can energize political action when needed to prevent power from violating these values."
My interest here is in Mr. Berle's concept of the public consensus. He enters the disclaimer: "It is not within the scope of this essay to examine the nature of `public consensus' though the subject is passionately interesting and needs intensive thought." Despite this modesty, however, he gives the most significant development to the notion of the public consensus, on its "growing end," that I have come across. I shall first undertake simply to report it.
In the first place, what is the public consensus? It is "a set of ideas, widely held by the community, and often by the (business) organization itself and the men who direct it, that certain uses of power are `wrong,' that is, contrary to the established interest and value system of the community." It is "essentially a body of doctrine which has attained wide, if not general, acceptance." This body of doctrine contains "principles," "tenets," "rules," "standards," and "criteria" of judgment on individual cases or situations.
In the second place, how does the public consensus originate? It is "not a spontaneous fact in the minds of many individuals. It is the product of a body of thought and experience." In it there is
"nothing abstract or assumed." Were it codified, it would be seen as a "systematized recording of experience and attitudes."
In the third place, how and in what form does the public consensus exist? "Public consensus, though it is indefinite, almost completely unorganized, and without traceable form, nonetheless is a hard-core fact. Every corporation executive knows this." As a body of thought and experience, it is "sufficiently expressed in one form or another so that its principles are familiar to and have become accepted by those members of the community interested in the relevant field." Again: "The principles of the public consensus, some of which are well enough defined as to be inchoate law, have never been stated. Yet men in each industry are fairly well aware of them. With time, effort, and thought, they could manage a quite tolerable outline of the public consensus. as it applies to them." Though presently there is a reluctance to be completely explicit about the principles, "the time will come when manuals will be needed and will be produced."
In the fourth place, the public consensus is not a finished, but a developing, body of doctrine. "It is not omniscient; it constantly absorbs new thinking and draws new lessons from experience." It is "subject to constant examination,, criticism, and evolution. Individuals, more advanced in thinking and insight, can, should, and do insist that the consensus on any subject shall change, expand, or raise its standards." The occasion for this insistence is the perception of a "margin" intervening between the existent consensus and the ongoing economic life of society.
In the fifth place, what is the relation between the public consensus and public opinion? They are not identical, but distinct and related. "'Public opinion' is sometimes misleadingly used as a synonym. Actually, public opinion is a shorthand phrase expressing the fact that a large body of the community has reached or may reach specific conclusions in some particular situation. These conclusions are spontaneously, perhaps emotionally, reached, usually
from some unstated but very real premises. The `public consensus' is the body of these general, unstated premises which has come to be accepted. It furnishes the basis for public opinion. Public opinion is the specific application of tenets embodied in the public consensus to some situation which has come into general consciousness."
In the sixth place, who are the depositaries of the consensus and the agents of its development and application? Development is effected by those who work on the "margin": "There is a margin here upon which students, writers, financial analysts, businessmen, economists must work. In their studies and discussions the results of (particular business practices) for good or evil are examined and stated. Presently doctrine solidifies; consensus is reached. A new criterion of judgment has been set up; in the next emergency it will be enforced by public opinion." In applying the consensus and translating it into public opinion the business community may play a limited role, but its judgments are likely to be self-interested. "Of greater force are the conclusions of careful university professors, the reasoned opinions of specialists, the statements of responsible journalists, and at times the solid pronouncements of respected politicians. . . . These, and men like them, are thus the real tribunal to which the American system is finally accountable." Their judgments are principled, free, disinterested, informed. "Collectively they are developers of public consensus, the men first sought to guide the formation of public opinion to any given application." These men, in Berle's favorite image, are the "logical recipients of the mantle of the historical Lord's Spiritual," who of old "erected generally accepted standards or criteria of judgment (in these studies represented rather than described by the symbol `public consensus'). . . ." and "also determined, somewhat crudely but sufficiently, whether the holder of temporal power had measured up to these standards."
In the seventh place, what are the public functions of the consensus? Chiefly, it acts as "final arbiter" of the legitimacy of economic
power and of the rightfulness of its uses. "In a democratic society no instrument other than this `public consensus' has been devised." The consensus also "furnishes the basis for public opinion," and validates the sanctions imposed by public opinion on uses of power judged to be wrongful, whether because they are "dangerous" or because they are "inherently bad or illegitimate." Thus the consensus furnishes the "reality of the corporate conscience," as it recognizes limits on corporate power and submits uses of economic power to public judgment. Finally, because concentrated economic power is checked by, and responsible to, the public consensus, the American economy qualifies as "democratic." This is the supreme function of the consensus—to determine the nature of the economy, to specify its style, and thus to insure that the style of the economy accords with the whole larger style of life that the American people has adopted as its own—the "democratic style" that identifies the American people as a people and characterizes its action.
In the eighth place, what is the relation between the public consensus and the order of government and law? The consensus itself "does include settled principles of law applicable to economic power. But it also includes capacity to criticize that law. From time to time it may demand changes in existing law. It also carries capacity to insist that principles heretofore comprised only within the consensus must be added to statute or common law, enforceable by courts as well as by public opinion." Therefore the reach of the consensus goes "over and beyond the accepted or enacted provisions of law"; it imposes standards of performance and conduct whose violation may lead to political or legal intervention. In this sense these standards are "inchoate law," which may become "explicit law in case of abuse of power." Thus the consensus furnishes the premises that justify governmental intervention in the economy, whether in the form of "investigation, enactment of a relevant statute, or emergence of a new rule through the common-law courts."
This exposition of the public consensus may lack full definition
here and there; and it is not entirely free of inconsistencies. Nevertheless, the concept is constructed with remarkable firmness. Certain things seem to be clear. I hope I may state them without seeming to force Mr. Berle's thought, which I have no wish to do.
The consensus is not "majority opinion," certainly not in its origins; the Lords Spiritual are not a majority. Again, the consensus is not the "convergent trend of opinion." It supposes a process of thought and argument; but it is itself the term of this process, reached when "doctrine solidifies," and "consensus is reached." Moreover, the doctrine is the rational term of the argument, a proper conclusion; it is not simply the least-common-denominator residue of a collation of opinions. And it looks for its validity, not to the sheer fact that the Lords Spiritual, or the people at large, agree on it, but to the evidence adduced to show that it is true or good or just or equitable or useful or necessary. The agreement is consequent on the constitution of the doctrine. It is expected that men who examine the evidence will come to an agreement on the doctrine. In the end, of course, the consensus implies public agreement, though its origins may lie in the reasoned affirmation of one man or of a university seminar; but the consensus itself, formally considered, is not sheerly the public agreement. It is a doctrine or a judgment that commands public agreement on the merits of the arguments for it.
Again, the consensus supposes experience and the analysis of economic fact; but it is something more than a mere registry of experience, and its contents are not simply facts. They are ideas and principles—or better, judgments and imperatives. These judgments and imperatives are not abstractions or assumptions, as law itself, whether inchoate or explicit, is not an abstraction or an assumption. The consensus is doctrine—not, however, in the sense of Platonic dogma, but in the sense that the word carries when used by a lawyer or by a military strategist. The doctrine bears on the order of action, not on the ultimate order of beings and purposes, which is the order of metaphysics. On the other hand, the
principles of the consensus are cast in a certain mode of generality, in such wise that they are capable of application to cases. Furthermore, these practical rules of action are not proposed simply as techniques, or as sheerly procedural rules prescribed in the single interest of success in economic operations. They are the premises of moral judgments whereby economic action is qualified in the moral categories of "right" and "wrong."
Finally, it may be well to say that the consensus is not in any sense an ideology. Its close relation to concrete experience rescues it from that fate. The thought it embodies is not visionary or doctrinaire. Nor does it reveal any trace of class-consciousness or partisan group interest. And it makes no attempt to do what ideologies always do, which is to thrust themselves upon reality, in violation of reality's own dynamisms and structures, in an attempt to actuate some more or less utopian scheme. The consensus leaves completely intact what Berle calls the "non-dogmatic quality of American political economic action," which permits the uses of pragmatism their full legitimate scope in the devising of economic policies.
In summary, we are invited, I take it, to imagine some such utterance as this, in four propositions, being made by the American people "to a candid world": (1) There are truths (or principles of action or standards of judgment) that command the structure and the courses of the political-economic system of the United States. (2) We hold these truths; our Lords Spiritual have come to them, and We, the People, assent and consent to them; and we could, if we wanted, show a "decent respect to the opinions of mankind" and declare them. (3) These truths, in their application, join harmoniously with other truths in imparting a special character and identity to the American people in what concerns the economic order of their life, which they bring into accord, in general style, with the American idea of a free people democratically organized. (4) The life of these truths (or principles or standards) is sus-
tained, as it was born, of argument and persuasion, which appeal for their validity to experience and reflective thought.
Although Mr. Berle disclaims the intention to "examine the nature of `public consensus,' " it should be gratefully admitted that he has carried the subject a considerable distance. The questions that remain are of a philosophical order. In addressing myself to them it is my intention to speak for myself. It would be out of place to impute to Mr. Berle ideas or theories that he might wish to disavow.
THE AUTHORITY OF THE CONSENSUS
The initial questions are clear enough. The public consensus appears as the systematization of experience. The difficulty is that economic experience does not systematize itself; nor are the elements whereby to systematize it, introduce order into it, and make it intelligible, contained within the ambit of the sheer experience. Whence then do these elements derive?
Again, the consensus presents itself as a body of thought. But what is the relation between the consensual thought and the economic experience? Is the experience totally productive of the thought, or is there perhaps some thought that is prior to, and normative of, the experience?
Furthermore, simply as experienced, economic life, like all life, is no more than a stream of successive "facts." And all the facts are contingent; there is no experience, as the philosophical empiricists see quite well, except of what is contingent. On the other hand, there would seem to be within the consensus an element of thought that is not contingent. The consensus is not simply "the facts." It is a set of principles or standards in terms of which to pass judgment on the facts. The question then recurs: what is this non-contingent element of thought, in terms of which the economic facts are transformed into issues that may be argued, and then
decided, in a form of decision that assumes the status of a principle, a criterion of permanent judgment on passing situations of fact?
Finally, as the function of the consensus is to furnish standards of judgment on economic events, so also it is to correct the processes of the economy, and to direct them in purposeful fashion toward selected ends. The selection of these ends is itself among the functions of the consensus—in the case, the larger consensus that determines the substance, and specifies the general style, of the community life of the American people, and therefore requires that the action of the economy conform to this style. The economy itself does not decide that it shall be a "democratic" economy. It could decide otherwise, and in fact tends to do so; the native tendency of an industrial economy is towards oligarchic organization and towards independence of all political, not to say popular, control. The decision for economic democracy is not an economic decision. It is political. More profoundly, since the issue affects the substance of society, the decision is ultimately moral. Therefore the consensus that forms the decision in the public mind, and enforces it on economic action, contains an element of moral thought.
Only this moral element will enable the consensus to transcend sheer experience, and impart some system to it, and do this in terms of non-contingent principle that is capable of coping with the issue of ends as well as of means. In a word, the very conception, "public consensus," is a moral conception. Morality and the consensus have at least this in common, that they are not simply reflections of fact, as if whatever is must be considered right; nor are they mere techniques of success, as if whatever works must be considered true and good.
There is not likely to be much resistance to the notion that the public consensus has the character of a moral experience that is public. There is, however, the further question, in terms of what theory of morality is this moral experience, and its publicity, to be understood and explained. Every moral experience assumes in-
telligibility only in terms of a moral theory. And a moral theory, if it is to be any good, must be able to give an account of every manner of moral experience.
My proposition is that only the theory of natural law is able to give an account of the public moral experience that is the public consensus. The consensus itself is simply the tradition of reason as emergent in developing form in the special circumstances of American political-economic life.
THE DOCTRINE OF NATURAL LAW
In a later chapter I shall present an historical and theoretical discussion of what is meant by natural law. For the moment, in view of the particular question in hand, it will be sufficient to sketch the general structure and style of this mode of moral thought. It is sometimes said that one cannot accept the doctrine of natural law unless one has antecedently accepted "its Roman Catholic presuppositions." This, of course, is quite wrong. The doctrine of natural law has no Roman Catholic presuppositions. Its only presupposition is threefold: that man is intelligent; that reality is intelligible; and that reality, as grasped by intelligence, imposes on the will the obligation that it be obeyed in its demands for action or abstention. Even these statements are not properly "presuppositions," since they are susceptible of verification.
The permeability of reality, especially moral reality, to intelligence is limited, as human intelligence itself is limited. But the limitations do not destroy the capacity of intelligence to do three things, in an order of diminishing ease and certainty. As these three things are done in orderly fashion, the structure of natural-law thought rises, and its style of argument appears.
First, intelligence can grasp the ethical a priori, the first principle of the moral consciousness, which does not originate by argument, but which dawns, as it were, as reason itself emerges from the dark-
ness of infant animalism. Human reason that is conscious of itself is also conscious of the primary truths both of the intellectual and of the moral consciousness that what is true cannot at the same time and under the same respect be false, and that what is good is to be done and what is evil avoided. This latter truth is what I call the ethical a priori. Second, after some elementary experience of the basic situations of human life, and upon some simple reflection on the meaning of terms, intelligence can grasp the meaning of "good" and "evil" in these situations and therefore know what is to be done or avoided in them. For instance, to know the meaning of "parent" and of "disrespect" is to know a primary principle of the natural law, that disrespect to parents is evil, intrinsically and antecedent to any human prohibition. Third, as the experience of reality unfolds in the unfolding of the various relationships and situations that are the reality of human life, intelligence, with the aid of simple reasoning, can know, and know to be obligatory, a set of natural-law principles that are derivative. These, in general, are the Ten Commandments, the basic moral laws of human life, sanctioned by reason, and also sanctioned by their inclusion in the Jewish and Christian codes (the third, to "keep holy the sabbath," is of course positive divine law).
These three achievements requiring, as they do, only common human experience and only a modicum of reflection and reasoning are within the powers of human intelligence as such, at least ut in pluribus, in the case of most men. This is St. Thomas Aquinas' repeated qualification. The qualification means that rational human nature works competently in most men, but in particular instances it may fail. In other words, man is not an animal, ruled by unerring instinct. His guide to moral action is practical judgment; and this act of reason may go astray, for discernible causes, here and there, now and then.
There is a fourth area of achievement open to the moral reason of man. It concerns particular principles which re-
present the requirements of rational human nature in more complex human relationships and amid the institutional developments that accompany the progress of civilization. This area is reserved for those whom St. Thomas calls "the wise" (sapientes). The reason for the reservation is clear. The further the human mind advances toward apprehending the particulars of morals, the greater is the part that knowledge, experience, reflection, and dispassionateness of judgment must play. To grasp the bearing of fundamental moral truth on particular human relations and on concrete social institutions requires a prior understanding of these relations and these institutions. They are, in the case, the "reality" in whose dense depths the demands of reason must be discerned, and then stated as dictates to be obeyed. Little reflection on experience is needed to know the principle of justice, "Suum cuique" ("to each what is his"). But an extensive scientific analysis of the functioning of economic cooperation is needed to know what a just settlement of a wage-dispute might be.
The elaboration of these particular and detailed—or, in traditional language, "remote"—principles of natural law falls therefore to the wise. One might even better say, in George Washington's famous phrase, "the wise and honest." Not only knowledgeability but rectitude of judgment is required. In farthest antiquity the wise were the lawgivers, who declared the law—that is, the customs—to the community and thus brought to consciousness the moral principles of community life which otherwise would not or perhaps could not be grasped by the individual. This is still the function of civil legislation, which has not lost its character as a moral discipline, even though so much legislation is now technical. In the course of human evolution the wise came to include the philosophers as well as the jurists. And in the growing complexity of the full human reality which is the characteristic of advanced civilization, these wise men have come to depend more and more on other scientific disciplines for aid in that analysis of reality which is the condition of all moral judgment.
The dynamism behind the whole process was stated by St. Thomas: "Since a rational soul is the proper form of man, there is in every man a natural inclination to act according to reason; and this is to act according to virtue." To act against reason is to act against nature, that is, to sin.
St. Thomas, of course, had quite clearly in mind that "man" is not an abstract essence but an historical existent, who does not act in a vacuum of time and space, at the same time that he must always act as a man, and not as an animal or an angel. The fundamental structure of man's nature is, of course, permanent and unchanging; correlatively constant are the elementary human experiences. Every man, simply because he is a man, has to "meet" himself, others, and God. In these relationships he must avoid the evil and do the good that come home to him as evidently evil or good, if he at all understands the situation, as he must—ut in pluribus. This is the general truth that the ethical relativists go to great trouble to avoid in their theories, however little trouble they have in recognizing it in their own practical lives. Normally they are men who keep to moderation and avoid extremes; who render to others their due; who fulfill their contracts; who love their wives and cherish their children; who flee ignorance and seek truth; who honor their God, or at least their idols; and who otherwise conduct themselves as well-behaved natural-law jurists, even though they would be horrified to be called such. History does not alter the basic structure of human nature, nor affect the substance of the elementary human experiences, nor open before man wholly new destinies. Therefore history cannot alter the natural law, in so far as the natural law is constituted by the ethical a priori, by the primary principles of the moral reason, and by their immediate derivatives. History has not, for instance, abolished the Ten Commandments.
But history, as any history book shows, does change what I have called the human reality. It evokes situations that never happened before. It calls into being relationships that had not
existed. It involves human life in an increasing multitude of institutions of all kinds, which proliferate in response to new human needs and desires, as well as in consequence of the creative possibilities that are inexhaustibly resident in human freedom. History has spread mankind over all the earth in a variety of climates and conditions that call for some adaptation of human reality. History has here halted, and there hastened, the progress of civilization. It has done the fateful thing of dividing men into nations, thus creating areas of collective self-interest whose harmony is by no means automatic. History, too, has set afoot the great enterprise of science, which has altered the relationship of man to the forces of cosmic nature and imparted to the whole concept of power a qualitatively new dimension. In a word, it has been abundantly proved in history that the nature of man is an historical nature. "The nature of man is susceptible of change," St. Thomas repeatedly states. History continually changes the community of mankind and alters the modes of communication between man and man, as these take form "through external acts," as St. Thomas says. In this sense, the nature of man changes in history, for better or for worse; at the same time that the fundamental structure of human nature, and the essential destinies of the human person, remain untouched and intact.
As all this happens, continually new problems are being put to the wisdom of the wise; at the same time, the same old problems are being put to every man, wise or not. The basic issue remains unchanged: what is man or society to do, here and now, in order that personal or social action may fulfill the human inclination to act according to reason. The same old problems get the same old answers, in terms of the same old primary principles of the natural law which, as primary, follow on the permanent structure of the nature of man and furnish the norms whereby man must always act in the constant recurrent basic human situations. In the case of the new problems, however, which are created by the changing
structure of human social living, and which concern the particulars of morals, the answers may contain new specifications of old principles: "Things that are just and good may be considered in two ways. There is the formal consideration; and in this sense they are always and everywhere the same, because the principles of right, which are in the natural reason, do not change. There is also the material consideration; and in this sense the same things are not always and everywhere good and just. They have to be determined by the law [he means `by custom,' or `by the declaration of the wise']. This happens on account of the mutability of human nature, and the diverse conditions of men and affairs according to the diversity of times and places."
This brief account of the structure and style of natural-law thought, and of the various areas in which it operates, will suffice for the moment. I come now to my proposition.
THE CONSENSUS AND NATURAL LAW
Only the theory of natural law, I said, can give an account of the moral experience which is the public consensus, and thus lift it from the level of sheer experience to the higher level of intelligibility toward which, I take, the mind of man aspires. The structure of principle in terms of which this account is to be given, and this intelligibility achieved, is sufficiently deposited in two texts of St. Thomas. Their essential point is the one that I have already made, that there are three areas of moral principle and three modes of moral judgment, all dependent on the one standard.
The first text occurs in a discussion of the way in which all moral precepts belong to the law of nature. "In human action," he says, "there are certain things so explicit that they can immediately, on some slight reflection, be accepted as good or repudiated as evil on grounds of the common and first principles." The reference is to the principles of action that govern what I have called the basic
human situations that are constant and relatively uncomplicated. As the moral reason reaches these principles without difficulty, so too they find their way on obvious title into the criminal code of society; there are laws against perjury, theft, murder, adultery, etc. St. Thomas continues: "There are, however, other matters for whose judgment much reflection is required, bearing on diversities of circumstance. The careful consideration of these circumstances is not the province of anybody at all, but of the wise." Here it is a question of relatively complicated human situations in which the good and the evil—that is to say, the inherent demands of reason—are not so readily discerned, and the principles of right action are not evident to the man in the street.
Both sets of moral principles and judgment belong to the natural law, but in different ways: "There are certain things which the natural reason of every man, immediately and of itself, discerns and judges, as to be done or not to be done; for instance, honor your father and mother, do not kill, do not steal. Things of this sort are of the natural law in absolute fashion." That is to say, not only is their obligation unrestricted, but the perception of the obligation is common and easy to all men. He goes on: "There are, however, other matters which those who are wise judge, after rather subtle reflection, to be matters of necessary observance. These things are of the natural law indeed, but in such a way that they are matters for instruction. The wise must teach them to those of lesser reflectiveness; for instance, come to your feet in the presence of white hair, honor the prerogatives of age, and other such things." The examples may seem quaint, but they are apt to make the point, which is the moral thoughtlessness or obtuseness of the unreflective man.
The second text deals with the fact that certain precepts find place in the Decalogue and others do not; in explaining the fact fuller distinctions are made. First, the primary and common principles do not find place in this explicit statement of moral law, for the reason that "they need no declaration other than their inscription
in natural reason as self-evident principles; for instance, that a man ought not to injure another, and that sort of thing." There are, however, two other classes of principles.
As the prelude to explaining the distinction between them St. Thomas cites the Old Testament history, according to which the basic and general moral principles (the Decalogue) were given directly to the people by God himself, whereas others of more particular import reached the people through the lawgiver, Moses. In terms of philosophical explanation, those precepts find place in the Decalogue, "the knowledge of which each man of himself has from God. These are the precepts that can be known, immediately and on slight reflection, from the first common principles." Here is the basic natural-law assertion, that the dictates of common human reason are the dictates of God, who is Eternal Reason, the Logos. This is the final explanation of their obligatory character. Their ultimate origin is divine, though the mode of their knowing is human and rational. The remaining category of principle does not find place in the Decalogue, because a "lawgiver" must intervene. This category includes those principles and rules "which the careful inquiries of the wise have found to be in accord with reason. These come from God to the people through the medium of the instruction of the wise." Their ultimate origin is the same, from God. Their mode of knowing is the same, through reason. But the "reason" here is tutored by experience and reflection. To use the term that arrived only lately, it is a "responsible" reason. It is not mere knowledgeability, or cleverness, or skill in dialectic, or the "viewiness" that Newman scorned. It is not a thing of intellect alone; it implies a love of truth, and a developed instinct for the right and good that are of the "heart," in the Hebrew sense of the word. The reason of the wise and good is dispassionate, but not cold. It is a disinterested reason that has, nonetheless, one supreme interest, the essential human interest, which is that man should do good and avoid evil.
Finally, it is a reason that has penetrated, and come to understand, the complexities of the developing human situation.
Obviously, St. Thomas did not anticipate the multiform complexities of our contemporary industrial society with its maze of complicated interlocking institutions, political and socio-economic, national and international. In social matters he was, as a man of his time, extremely conservative. Like Aristotle, he viewed with foreboding, for instance, the fate of a city "that needs for its maintenance a great number of commercial dealings." This was, he thought, the way to the corruption of a city's identity through the introduction into it of alien customs and mores. The result would be to throw into disorder what he untranslatably called "civilis conversatio." This was his highest civic value—a whole manner of living together and talking together, in terms of which a city establishes its identity. Was he so very far wrong? Perhaps not, if one considers today's anxious questions about our own civilis conversatio. The "open society" today faces the question, how open can it afford to be, and still remain a society; how many barbarians can it tolerate, and still remain civil; how many "idiots" can it include (in the classical Greek sense of the "private person" who does not share in the public thought of the City), and still have a public life; how many idioms, alien to one another, can it admit, and still allow the possibility of civil conversation?
In any case, the present point is that St. Thomas did construct with firmness and delicacy a system of moral thought that renders a remarkable account of the origins and structure of the public consensus that today we have been told governs the industrial society and imparts to the processes and results of its economic action some quality of morality and humanity. The account may be set out under five headings.
The first point concerns the contents of the consensus. Technically, its principles and rules are "remote precepts of natural law." They are "removed" from the primary common precepts and from the
immediately derivative precepts as particular conclusions are "removed" from the generality of the premises that engender them. These remote precepts bear on situations that might best be called "historical." That is, they are human situations indeed, but their creation requires a process of historical development, as original human situations do not. For instance, the situation that relates corporation stockholders to corporation management is more remote from the springs of nature than the situation that relates husband and wife. The former "got here" in time; the latter always substantially "is."
In consequence, the principles and standards of the consensus are by no means self-evident. They are reached by "careful inquiries." They suppose a thorough analysis of "circumstances," that is, of the existent reality in its full complexity in a given historical moment. They are formulated after "much reflection." Then they are proposed as "matters of necessary observance." They cover a certain span of cases and have therefore a measure of generality. It is the mode of generality that attaches to law; like law, the consensus covers what happens ut in pluribus, in most cases. The rules of the consensus may therefore be said to be in genere legis, a sort of law, even though they are not legal enactments. Between a legal enactment and a remote principle of natural law there intervenes all the difference that distinguishes the moral from the legal.
The second point concerns the elaboration of the consensus. This is not the work of the people at large. It is not the job for sheer common sense. The public consensus is not formally public opinion. Its elaboration is the task of the wise and honest. The "careful inquiries," the "rather subtle reflection," the analysis of "circumstances," the exact formulation of the "precept"—these tasks lie beyond the competence of the generality. It is for the wise, who develop the consensus, to give "instruction" to the generality, in the meaning of its principles as "matters of necessary observance," and also in the manner of their application. Public opinion, thus in-
structed by the wise, conspires to effect these applications. Thus the consensus exists in the public mind; but it exists in two forms or on two levels. In consciously articulated and reasoned form it exists among the wise. In the form of simple affirmation or accepted conviction it exists among the people.
The third point concerns the inherent authority of the consensus, the quality that makes its principles and rule to be "matters of necessary observance." If the public consensus comes into being at all, and wins the assent of the public mind, and actually sets a controlling hand, as it were, not hidden but visible, on the political-economic action of society, it is only because its principles "have been found, by the careful inquiry of the wise, to be in accord with reason." Behind the whole conception of the consensus there lies the single indisputable dynamism that is the root of the doctrine of natural law: "Since the rational soul is the proper form of man, there is in every man a natural inclination to act according to reason, that is, according to virtue." In the wise and honest this dynamism is more fully released and more purified; that is why they are honored as being wise and honest.
This quality of being in accord with reason is the non-contingent element in the body of thought that constitutes the consensus. Brute fact or sheer experience have no virtue to elaborate themselves into controlling rules of public conduct. The transcendence of experience and the transformation of fact into principle is the work of reason. The act whereby the doctrine of the consensus is formulated is not the act of inquiry into the facts, nor the act of reflection on the experience. It is an act of judgment, an exercise in moral affirmation or denial.
In summary of this account of the consensus in its relation to natural law, the contents of the consciousness of the wise may thus be stated: "Having come to know the situation of fact, and having reflected on it, we discern and decide that there is inherent in the factual situation a demand, which our reason perceives, that this action be
commanded or that action forbidden. What our reason assents and consents to, as a rational demand of the situation, is a matter of necessary observance. It is not necessary simply as a matter of fact; nor is it necessary simply as a consequence of experience. The necessity of its observance decisively derives only from our understanding that in the given situation of fact this concrete demand is according to reason. Out of the situation itself, as factually known and rationally examined, this demand presents itself as the dictate, in the end, of reason. Therefore, it presents itself as a matter of necessary observance, in final virtue of the principle that what is in accord with reason is good (right, just, equitable, prudent, useful) and therefore is to be done. In so judging, we who are wise are right; that is, our judgment is the dictate of right reason. So we shall instruct the people of its rightness. So we, in alliance with the people, shall require that this dictate of reason be obeyed by the members of society, by the social `forces,' by the economic `powers.' And if obedience fails or is not forthcoming, we shall invoke the discipline of coercion in the aid of the dictate of reason. We shall require that this moral dictate be made public law."
Here then is the high warrant on which the writ of the consensus runs. Here too is the explanation of the consensus as a moral experience that is public. The reasonableness of its doctrine is the basis of the publicity of the experience. Once they have been instructed, those who are "of lesser reflective capacity" can grasp the reasonableness of the conclusions reached by the wise, even though they are incapable of the "careful inquiry" that led the wise to these conclusions. Here, finally, is the key to the most curious aspect of the whole matter, namely, that the economic powers in society accept the judgments, directions, and corrections of the public consensus, at times to their own disadvantage, even when these moral dictates are not backed by the coercive force of the supreme public power.
There is in men, even when they are powerful, some natural inclination to act according to reason in what concerns their power.
That is, they naturally seek to establish the legitimacy of their power and also to have their uses of it publicly recognized as legitimate. They are naturally disinclined to appear to themselves or to others as unreasonable. They do not want their economic action to be judged "evil," not according to virtue, as virtue is concretely estimated by public judgment in the circumstances. In a word, they are somehow inclined to be "natural" men, who recognize and obey the remote principles of natural law that constitute the public consensus. Or, if this moral inclination fails, as it is likely to fail, in the face of the contrary imperatives of self-interest, these men of power are at least "natural" enough to submit to the just interventions of the public power in support of the public consensus.
If therefore there is, as Mr. Berle suggests, a public consensus constantly forming on the growing end of American life, its formation, I suggest, is a testimony to the slow and subtle operation of that rational dynamism, inherent in human nature, which is called natural law. This is the source from which human affairs acquire whatever quality of humanity may attach to them in any age of history. Again, the processes whereby the public consensus is formed are those characteristic of natural-law thinking. Finally, the social authority of the rules and standards that the consensus constantly develops is none other than the authority of natural law itself, that is, the high authority of right reason.
I must append a note. It concerns the architects or artisans of the public consensus. I do not myself care for the phrase, "Lords Spiritual," to designate them. The phrase has an historical flavor; but to my taste it has the wrong flavor. It tends to confuse two bodies and functions that were historically distinct. I mean sacerdotium and studium, the Church and the University. It is not the function of the Church as such to elaborate the public consensus, which is a body of rational knowledge, a structure of rational imperatives, that sustain and direct the action of the People Temporal and of their secular rulers. The proper task of the Church is the custody and
development of the deposit of faith, which is a body of revealed truth, a structure of mystery, that sustains and directs the action of the People Spiritual. The public consensus is the property of the studium. This is the institution that, together with the Church, stood between the People and the Princes, the men of power, who bore the responsibility of using their power in the high service of justice and the freedom of the people. It is the function of the University, which has a care both for the princes and for the people, to see that this duty is wisely performed, chiefly by defining what justice is, and what the freedom of the people requires, in changing circumstances. The University assembles these definitions and requirements into the public consensus, whereby the prince's use of his power in respect of the people may be judged, directed, and corrected. The sapientes of whom St. Thomas speaks made their residence in the University, not in the Curia. They were not domini, but magistri, not Lords, but Masters. This is dignity enough; at least it was in those older days.
In the fulfillment of its function the University often had the support of the Church, since freedom and justice are integral to the res sacra that is committed to her. The Second Lateran Council, for instance, in 1139 blasted "the insatiable rapacity of money-lenders," and threatened them with the denial of Christian burial. But the argument about usury was carried on by the Masters. It was they who elaborated the fencing restrictions to be thrown about the growing power of money, in the name of justice. They did the work of reason, of reflection on the changing economic facts. It was not a "spiritual," but an "intellectual," task. The spiritual task was done by the Church, when she supported by her authority the work of reason. Sitting in Council, the Lords Spiritual confirmed the work of the Masters, who sat in the Study.
At that, the medieval analogy, rightly understood, may be of some assistance in answering the difficult question that always comes up when there is talk of the "wise and honest." Concretely, who are
these men today? In regard of any given social, political, or economic issue that arises in our highly competitive society, in which power-struggles are forever seething, who are the Masters, the Men of Reason, to whom both "princes" and "people" may look for judgment? In point of principle, and in dependence on the medieval diagram of forces (Church, Study, People, Princes), all one can say is that they are the men who have a "care," but who are not "interested parties" (in the usual sense of the latter phrase).
There was, for instance, a Jeremiah S. Black, who in 1883 refused a retainer to argue the railroad case against public regulation of railroads, because (he said) he was "pledged to the people on the issues at stake." There was a Louis D. Brandeis; when asked to represent the interests of a great investment banking group in a proxy fight involving the Illinois Central Railroad, he "required" (he said) to be "satisfied of the justness" of the bankers' position. This is the style of man one seeks, whose "care" is not an "interest."