Academic journal article
By Burns, Robert P.
Harvard Journal of Law & Public Policy , Vol. 31, No. 1
Remarks on so vast a topic as the foundations and nature of morality must be focused by the subject with which the Symposium is concerned--namely, the relationship between law and morality. Insofar as half of "law and morality" is "morality," the Symposium topic necessarily brings the foundations and the nature of morality into play. And insofar as the nature and foundations of morality have been debated against the background of more fundamental philosophical issues, the entire history of ideas is relevant to the Symposium. Present-day lawyers addressing the relationship of law and morality should have some of the humility that knowledge of this intellectual history requires. Discussion of this history should not lead to a relativistically induced silence on these subjects, but can occasion some modesty, care, and certainly, tolerance.
This Essay does not address a discrete contemporary issue or attempt to provide a theory concerning the relationship of law and morality. Instead, it offers some historical observations and important arguments relevant to the contemporary moral debate. Specifically, this Essay includes three sets of observations about morality's foundations, and three shorter remarks about its nature.
I. THREE HISTORICAL OBSERVATIONS ON THE FOUNDATIONS OF MORALITY
There has been a tectonic shift in the dominant philosophical terms over the course of Western intellectual history. This shift, along with important changes in Western social identity, has rendered unavailable to contemporary thinkers many of the premises that have underlain morality for most of Western history. (1) Similarly, the Hebrew-Christian religious tradition--which constantly surrounded, supported, and for many, directly informed moral inquiry--no longer has a hold on important segments of contemporary society.
The contemporary moralist inevitably stands in a historical tradition that defines the types of arguments from which he can draw and the appeals he can make. Awareness of what precedes him should therefore aid the moralist in making the most coherent and convincing case for his understanding of the relationship between law and morality.
A. The Shift in Philosophical Terms
The dominant selection (2) of philosophical terms has changed over the centuries. Philosophers have always sought to determine what the objects of their efforts are, to discover what it is possible and fruitful to know or think. The first of this Essay's six remarks tracks the shift in thought over the centuries about the proper starting point for philosophical and ethical inquiry. This shift has important implications for those attempting to explain morality.
1. The Metaphysical and Teleological Terminology of the Pre-Moderns
Until the late modern age, great philosophers generally chose an ontological or metaphysical selection of terms. For example, Plato, Aristotle, St. Augustine, St. Thomas Aquinas, Baruch Spinoza, and G.W. Leibniz all in quite different ways sought to gain knowledge of the nature of things. (3) Within the contexts of their philosophies, these thinkers sought the foundations of morality in the nature of man, his place in the cosmos, and his constitutive relationship with the divine. Acting morally meant realizing man's nature. (4) It made sense for Augustine to urge, "Become who you are," (5) because the nature of any being could be fully understood teleologically. One's true nature was understood as the actualization of a potency that exists in the nature of things.
After the beginning of the Christian era, although the metaphysical understanding continued to reign, it was inevitable that its teleologies would be understood theologically. Man was still defined primarily by reference to the nature of things, but now with specific reference to the nature of the ultimate thing: God. As Dante Alighieri put it, faithful to the Thomistic synthesis that animated his great poem, "The glory of the One who moves all things permeates the universe but glows in one part more and in another less. …