ORCA - Cardiff University

169 Pages·2012·1.47 MB·English

by  Gregory Walker

Cardiff University

Natural right constitutionalism: A theory of political liberalism expounded from
contemporary Thomistic resources

A THESIS

Submitted to the School of European Studies

Cardiff University

In Partial Fulfillment of the Requirements

For the Degree

Doctor of Philosophy

By

Gregory H. Walker

2012
Summary

Natural right constitutionalism: A theory of political liberalism expounded from
contemporary Thomistic resources

This thesis outlines a species of political liberalism and an understanding of human rights
developed from contemporary interpretations of Thomas Aquinas’s moral, legal and political
theory.
Working from a reading of Aquinas’s ethics that stresses both its eudaimonism and the
capacity of practical reason to immediately apprehend certain human goods, the work builds
on this ethical understanding by propounding a substantive approach to justice and natural
right in the legal-political domain. It is argued that a Thomistic conception of justice and
natural right is consistent with the notion of subjective human rights, including both
fundamental human rights and certain ‘liberty’ or ‘choice’ rights. The thesis demonstrates
that Aquinas’s innovative approach to justice and the political common good is useful in
addressing key points in debates in political theory on human rights practice, ideal theory
and forms of social criticism.
Such an approach to natural right is developed into a particular species of political liberalism,
based on the genus type put forward by John Rawls and Jacques Maritain before him. The
work justifies a form of political liberalism in which public reason is focused on building an
overlapping consensus on the political common good between citizens through practical
reasoning, but one in which there is a permissive approach to the use of metaphysical or
religious arguments in the public domain.
The work concludes by offering a defence of a form of political rather than legal
constitutionalism; one that takes normative orientations on the nature of political freedom
and the consequent role of government from neorepublican theorists, whose positions are
held in some respects to be complementary with those of political liberals.

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DECLARATION
This work has not been submitted in substance for any other degree or award at this or any
other university or place of learning, nor is being submitted concurrently in candidature for
any degree or other award.

Signed ………………………………… (Gregory Walker) Date …………………………

STATEMENT 1
This thesis is being submitted in partial fulfillment of the requirements for the degree of
Doctor of Philosophy.

Signed ……………………………………(Gregory Walker) Date …………………………

STATEMENT 2
This thesis is the result of my own independent work/investigation, except where otherwise
stated. Other sources are acknowledged by explicit references. The views expressed are my
own.

Signed ………………………………… (Gregory Walker) Date …………………………

STATEMENT 3
I hereby give consent for my thesis, if accepted, to be available for photocopying and for
inter-library loan, and for the title and summary to be made available to outside
organisations.

Signed …………………………………(Gregory Walker) Date …………………………

STATEMENT 4: PREVIOUSLY APPROVED BAR ON ACCESS
I hereby give consent for my thesis, if accepted, to be available for photocopying and for
inter-library loans after expiry of a bar on access previously approved by the Academic
Standards & Quality Committee.

Signed …………………………………(Gregory Walker) Date ……………………
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TABLE OF CONTENTS

Acknowledgements iv
Abbreviations iv

Chapter 1: Introduction 1

Chapter 2: Ethical underpinnings grounding political association 23

Chapter 3: Civil Association, Justice and Natural Right 54

Chapter 4: Political Liberalism and the Political Common Good 84

Chapter 5: Re-conceiving Political Liberalism as ‘Constitutional Republicanism’ 116

Chapter 6: Conclusion 140

BIBLIOGRAPHY 145

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ACKNOWLEDGEMENTS

My sincere thanks go to Professor Bruce Haddock for his wise counsel and supervision, to
Professor Carole Pateman for her encouragement, and to Dr Thomas Waite for his
forbearance.

ABBREVIATIONS

NE Nicomachean Ethics
ST Summa Theologiae

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CHAPTER 1
INTRODUCTION

This chapter sets out the issues that spurred the genesis of this work; the originality of its
content and its intended impact before outlining the broad methodology employed by way of
a brief prolegomenon. The chapter closes with an outline of the overarching structure of the
thesis.

1). The genesis of the thesis
The genesis of the work lies in the ongoing dispute between theorists who claim the same
philosophical and theological patrimony in Augustine and Aquinas yet come to radically
different conclusions about the compatibility of their theoretical approach in relation to
contemporary approaches to liberalism and human rights. On the one hand the work of
theorists such as John Milbank, Alasdair MacIntyre, Tracey Rowland1 and Robert Kraynak2
are examples of those using an ostensibly Augustinian and Thomist framework and who
come to positions that are strongly critical of contemporary theories of liberalism and human
rights. On the other side of the debate figures such as John Finnis (and his theoretical
collaborator Germain Grisez), Paul Weithman,3 Robert Markus,4 Jean Porter5 and numerous
other theorists who emphasise the compatibility of Augustine and Aquinas’s philosophical
and theological approach with some form of liberalism and subjective human rights. How can
interpretations of, and constructive orientations from, the same sources differ so widely on
such important matters?

While I do not go as far as those who argue that the work of MacIntyre and Milbank has the
effect of undermining (American) democracy,6 if MacIntyre and Milbank are right about
liberalism and rights then much, if not most, normative work in English language political
theory is fruitless. This work therefore aims to address some of the issues involved in such
debates by setting out a constructive approach in relation to political liberalism and rights by
working through some of the key issues relating to natural law, justice and the common good

1
 Tracey Rowland, Culture and Thomist Tradition: after Vatican II (London: Routledge, 2003).

2
 Robert Kraynak, Christian Faith and Modern Democracy (Notre Dame, IND: University of Notre Dame Press,
2001).

3
 Paul J. Weithman, ‘Toward an Augustinian Liberalism’ Faith and Philosophy, 8 (1991), 461–80.

4
 Robert A. Markus, Christianity and the Secular (Notre Dame, IND: University of Notre Dame Press, 2006).
5
 Jean Porter, ‘Natural Right, Authority and Power, the theological trajectory of human rights’, Journal of Law,
Philosophy and Culture, 3 (2009), 299-314.
6
 This is the view of Jeffrey Stout who describes Milbank and MacIntyre as the ‘new traditionalists’ in: Jeffrey
Stout, Democracy and Tradition (Princeton, NJ: Princeton University Press, 2003).

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as theorised by Thomas Aquinas. I arrive at a view of political constitutionalism, grounded in
classical and mediaeval conception of natural right and the political common good as
received and transformed by Aquinas, which I argue can be viewed as a species of the
genus political liberalism (using John Rawls’s nomenclature).7

Attempts have been made by New Natural Law theorists to outline a theory of limited
government which is partially perfectionist.8 Others have drawn direct parallels between
liberalism and natural law theory,9 often in a way that emphasises a neat fit between ancient
and medieval natural law theories and modern classical liberalism (after the tradition of
Locke or the American Founders).10 This is not the position taken in this thesis11 as I instead
attempt to construct a form of political liberalism using Aquinas’s ethical theory (which I see
as being a eudaimonistic virtue ethic more than it is a ‘basic goods’ or even a natural law
ethic) and his wider legal theory (founded on the political common good and general justice).
In pursuing this aim I set aside questions in relation the scope and limits of civic virtue for
future research, and only address explicitly theological questions insofar as they directly
impinge on the philosophical matters at hand, such as when the question of eudaimonia or
human fulfilment is treated in chapter 2.

2). The originality the thesis and its intended impact
The originality of the thesis is twofold. First, it goes beyond the thirty year stalemate that has
been reached between traditionalist natural law theorist and the ‘basic goods’ natural law
theory outlined by John Finnis and Germain Grisez (often called ‘New Natural Law’ theory). I
attempt this by using a eudaimonistic and virtue based interpretation of Aquinas’s moral
theory (heavily indebted to, but not wholly taken from, the work of the contemporary Swiss
moral philosopher Martin Rhonheimer) that nonetheless incorporates a crucial insight from
Finnis and Grisez’s reinterpretation of Aquinas’s ethics. I hold that this synthesised position
is textually credible and resolves some of the seemingly intractable disputes between the
traditionalist and New Natural Law positions within Thomism.

7
 By making this claim I am not asserting anachronistically that Thomas Aquinas was a political liberal, only
that certain political ideas and concepts from Aquinas’s oeuvre can be used constructively to come to an
understanding of civil association consistent with key aspects of political liberalism.
8
 Robert P. George, Making Men Moral (Oxford: Oxford University Press, 1993).
9
 Christopher Wolfe, Natural Law Liberalism (Cambridge: Cambridge University Press, 2006).

10
 For a clear example of this see: Harry V. Jaffa, ‘Thomas Aquinas meets Thomas Jefferson’, Interpretation: A
Journal of Political Philosophy, 33 (2006), 177-184.

11
 For example, I would hold that the position outlined in this work would be consistent with the public
provision of significant welfare services and the universal provision of health and education services financed
via direct taxation – something that classical liberals have rarely agreed as theoretically defensible.

2
Secondly, the originality of the thesis relates to how this understanding of Thomistic moral
theory and natural right may usefully cohere with political liberalism. New Natural Law
theorists such as John Finnis and Robert George have regrettably focussed their work on
their differences with John Rawls on matters such as abortion or euthanasia, or have
focussed on particular aspects of Rawls’s own species of political liberalism rather than
addressing the usefulness or otherwise of Rawls’s generic conception of political
liberalism.12 Following Martha Nussbaum’s example of developing a conception of political
liberalism which is non-deontological (in which the good is conceived as being prior to the
right), I develop an outline conception or species of political liberalism that can be seen as
compatible with Aquinas’s ethical and political theory. Like Nussbaum - though on a
Thomistic basis - I depart from Rawls’s own species of political liberalism (‘justice as
fairness’ and Rawls’s particular understanding of primary goods), while retaining central
aspects of political liberalism’s generic form. This, to my knowledge, has not been outlined
before in the rather vast literature on political conceptions of liberalism.

In terms of the intended impact or outcome of this work I hope that those attracted to
Thomistic or more generally Catholic orientations in practical philosophy - be they
philosophers or theologians - will re-evaluate their predominant scepticism or hostility
towards the generic notion of political liberalism as a result of the arguments presented
here.13 This could generate three particular benefits or impacts.
First, I hope that my approach will help theorists who eschew deontological or primary
constructivist approaches to normative political theory to actively consider using a generic
framework of political liberalism and constitutionalism. Dissatisfaction with deontological
moral conceptions of liberalism and human rights as ‘side constraints’ on the human good
has led some public intellectuals and policy thinkers to look for alternatives to ‘liberalism’ as
it has been traditionally conceived. This may be what contemporary public intellectuals and
think tank leaders have picked up on with their recent notions of the ‘Big Society’ or the
‘Good Society’ in the thought of so called Red Tory or Blue Labour intellectual movements
respectively.14

12
 Using an analogy from biological taxonomy, New Natural Lawyers may be confusing the ‘type species’ of
Rawls’s own version of political liberalism with its genus. In other words Rawls’s form of political liberalism
gives its name to the genus as well as being the classic example of the species within the genus.

13
 For a recent example of this deep scepticism see: Thaddeus J. Kozinski, The Political Problem of Religious
Pluralism: And Why Philosophers Can't Solve It (Lanham, MD: Lexington books, 2010).

14
 See for instance Phillip Blond, Red Tory (London: Faber and Faber, 2010) or on the centre left see: Maurice
Glasman, ‘Labour as a Radical tradition’, Soundings: A Journal of Politics and Culture, 46 (2010), 31-41. Both
Blond and Glasman lay great stress on the common good and a virtuous citizenry.

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Secondly, though this would be difficult to prove counterfactually, in my judgement the rise of
human rights in the discourse of the public sphere and legal structures of the world order in
the twentieth century has led to less domination and repression than would have otherwise
have taken place. In reinforcing the arguments for subjective human rights from a Thomistic
perspective I aim to sustain the breadth of discourse on human rights so that its remediating
impact can be sustained. In a similar way, the United Nations Human Development Reports,
which have been influenced by the capabilities approach in social and political theory, have
helped develop policy based approaches to solving problems of global poverty and injustice.
The theoretical perspective outlined here is consistent in some important ways with the
capabilities approach and thus may be seen to widen the breadth of theoretical backing for
the work that flows from the UN Development Programme and other associated agencies.
Finally, in a society with a plurality of understandings of final human ends, agreement on
legal-political measures that appear both to touch on final human ends and intermediate
human goods or needs sometimes requires some conceptual unpicking. A conception of
political liberalism can assist with this, especially for some religious citizens or those with a
convinced philosophical standpoint. For example, some citizens or politicians who are
religious believers, or who have certain metaphysical views on marriage, may hold that the
theological and metaphysical fullness of marital union can be found only in the heterosexual
‘one flesh union’ of husband and wife, may on the basis of practical reasoning (or on a mix of
practical and theoretical reasoning) nonetheless recognise that same sex partnerships can
realise certain fundamental human goods or meet basic needs and thus recognise the case
for substantive forms of legal recognition of such relationships.15 This could be the case
even if the same citizens did not proceed to advocate that the formal marriage rites of their
religion be extended to same sex couples. This is, in effect, how many religious believers
across several parties in the UK Parliament - including the Prime Minister of the day - were
able to justify the passage of the Civil Partnership Act 2004. This Act could therefore be
construed as an example of political liberalism in action. In a system of political liberalism,
we may say that (pace Voltaire) the best (the summum bonum) does not have to be the
enemy of the good.
3). The methodological approach
In one sense this thesis consciously retrieves the understanding classical notions of
philosophy as it was transformed theologically by Thomas Aquinas. As a school of thought

15
 Some argue that aspects of New Natural Law theory itself can justify recognition of same sex unions, see:
Joshua D. Goldstein, ‘New Natural Law Theory and the Grounds of Marriage: Friendship and Self-
Constitution’, Social Theory and Practice, 37 (2011), 461-482.

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Thomism is subject to a variety of diverse and somewhat incommensurable readings.16 This
may bewilder the general philosopher, but in a way it also shows the fertility of a school of
thought that it has adapted to some degree to the prevailing philosophical conditions of the
age. In Alasdair MacIntyre’s parlance, Thomism has survived various ‘epistemological
crises’17 and has come out ‘the other side’ with proponents convinced of the durability of its
key tenets in forms that retain a continuity with central ideas found in St Thomas’s oeuvre.18
The focus of this thesis is ethics and politics – what Aristotle calls the ‘philosophy of human
affairs’. In the view outlined here, a theory of political right (droit politique) or legal justice is
distinguishable but not separable from the ethical domain. The challenge for a contemporary
interpreter of Aquinas’s political theory is that St Thomas himself did not leave an already
elaborated or coherent ‘Thomistic political science’,19 though clearly he left sufficient material
in his treatment of law, prudence and justice to inspire political orientations among those
who draw inspiration from him. The pitfalls of interpreting Aquinas are significant - there is
precious little agreement on whether his commentaries on Aristotle are representative of his
own views and there continues to be a sharp debate about the extent to which Aquinas’s
works outline a philosophical position as well a theological position. It is important to state
that, unlike some early and mid twentieth century neo-Thomists, I do not see Aquinas as
offering all the answers to contemporary philosophical or theological problems. I also, by
writing of the Thomistic tradition do not wish to underestimate how contested such a label or
concept is.20
Despite this Aquinas’s moral and social theory offers insights into some contemporary
ethical and political problems. His ethical theory combines a eudemonistic virtue ethic with

16
 For an excellent guide see Fergus Kerr, After Aquinas: Versions of Thomism (Oxford: Blackwell, 2002).

17 ‘Epistemological crises’ arise for MacIntyre when two intellectual traditions come into direct confrontation,
forcing the tradition to deal with powerful critical arguments questioning the underpinning elements of that
philosophical position. Thomism for MacIntyre is the most successful tradition of inquiry in this respect, having
survived a confrontation with voluntarism, Lutheranism, Kantianism and so on. As MacIntyre writes: “To have
passed through an epistemological crisis successfully enables the adherents of a tradition of enquiry to rewrite
its history in a more insightful way. And such a history of a particular tradition provides not only a way of
identifying the continuities in virtue of which that tradition of enquiry has survived and flourished as one and
the same tradition, but also of identifying more accurately that structure of justification which underpins
whatever claims to truth are made within it...” Alasdair MacIntyre, Three Rival Versions of Moral Inquiry:
Encyclopaedia, Genealogy, and Tradition (Notre Dame, IND: University of Notre Dame Press, 1990), 169.
18 Though key aspects of Thomist thought has been formally endorsed by the Roman Catholic Church, this
thesis does not proceed on the basis of an official ecclesially endorsed account of Thomas Aquinas’s thought.
This is important because the Roman Catholic Church claims the competence and authority not only to teach
authoritatively the content of revealed divine law (as one might expect), but also to teach in a definitive way the
application of natural law precepts in certain moral norms, such as in relation to contraception and other
controversial questions.
19
 Mark D. Jordan, Rewritten Theology: Aquinas after his interpreters (Oxford: Blackwell, 2006), 46-56.

20
 Mark Jordan writes that “there has always been fierce rivalry among claims on Thomas’s authority.
“Thomist” like “Christian,” is a term that stakes a controversial claim, not one that records a neutral
designation”, in Jordan, Rewritten Theology, 6.
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