The present topic is the relation of positive law and natural law. I suppose that it is pretty well established that the notion of nature which is current in the sciences at any given time has a considerable impact on what is taken to be nature in philosophical and moral reasoning, and changes in the physical or biological model have their repercussions in the philosophical area.¹ I would say that, while it has been perhaps less emphasized, it is also pretty well established that the model of law that is current in a given society has an influence on the idea of moral law. This influence, of course, is a reciprocal matter. As the model of law has gone from that of a written code as the quintessence of law to a model of law as a creative process in which the participants interacting create the law,² there have been great repercussions on the image of law that is used in moral thought.³ Both nature and law, the composites of natural law, do to some extent depend on the models drawn from these other fields.

I say all this by way of generalization, and would like to turn to look at some concrete historical instances of the relation of positive law to natural law. I do so believing that philosophers and moralists often operate with insufficient reference to the concrete, and particularly with insufficient reference to the historically concrete. In discussing questions of natural law, they are apt to stay at a level of generalization which keeps them from looking at how the notion was actually put to use by their predecessors.

USURY

An appropriate subject to start with, because of its neutrality for us, is the interaction of law and nature in the reasoning against usury. This was a classic field of natural law thought. If it is neutral today, if we can look at it as kind of a specimen, it seems to me that we should take advantage of its colorlessness, and, as in an historical laboratory, study the kind of process that went on in the reasoning of scholastic philosophers about usury.

The first argument made against usury in the scholastic canonical tradition, was that usury was intrinsically contradictory because one charged for the use of something that was no longer one's own. The first form of the argument was at the level of a pun. A loan, mutuum, came from meum and tuum--meum became tuum, mine became yours, and if mine became yours, I should not charge for it any longer.⁴ Now at that purely verbal level, I suppose anybody today, and certainly the more acute scholastics, were unsatisfied. It was simply a play on the word and not a very substantial argument. But the idea of an intrinsically contradictory act was appealing, and the broader and more resonant argument was developed that usury was wrong because money was sterile, and the act of lending was therefore a sterile act. To make a sterile act a fertile act was intrinsically contradictory. Money in this way was contrasted with animals which breed naturally. If God had wanted it, the implication was, money would somehow have been capable of breeding. Animals did breed, money did not. There was a divinely established difference between the sterile act, involving the sterile medium, money, and the fruitful act.⁵

On further investigation, this argument was unsatisfactory in two respects. It was unsatisfactory because it did not cover the case of grain, and loans of grain in an agricultural community were not rare, and were prohibited as usurious by the Bible. The argument did not cover or distinguish the case of the renting of houses. Houses, which did not breed any more than money, could be transferred to someone else for use and a profit could be taken from the use. On the one hand, then, there was a type of commodity, a house, which could be rented, although barren; and, on the other hand, there was money which could not be given to another for use and charged for because it was barren. There was a contradiction between these two conclusions.

Principally due to the efforts and insights of Thomas Aquinas, the argument was refined and became this argument: What is wrong in usury is to charge for a good which is consumptible in its first use.⁶ In that sense, food, wine, and money are similar: in order to use them you have to use them. To distinguish between the value and the use in the case of goods like food, wine and money, which are consumed in their use, is unnatural. It is an unnatural attempt to separate use from value, and to charge for the use apart from a value is intrinsically self-stultifying.

The argument devised by St. Thomas and repeated for the next six hundred years is formally correct. If you abstract from circumstances and abstract from the particular position of the lender, it seems to be flawless. To take money kept in a chest and try to distinguish the value from the use is impossible.

There were, however, several problems with this analysis. The first question that anyone would have asked is why you have to treat money as a medium of exchange to be consumed in use, as there are other uses of money. It was admitted that you could loan money to put on display--a rent of money ad pompam, to impress someone else with your wealth--and that kind of rent of money for show did not involve its use. The Thomistic argument did not cover this case where the use of money was not to spend it but to show it, and it was agreed that you could charge for this use of money.⁷ That conclusion did not trouble the theorists very much because lending money for show was said to be a secondary use of money. It seemed easy to distinguish a primary use of money and a secondary use. Though no statistics were gathered, it was believable that the number of times people borrowed money to show it were rather few, while the times people borrowed money to use it were rather high. It seemed sensible then to call one use secondary and the other primary.

The real difficulty came when money was regarded more generally in some other way than as a medium of exchange. That arose first in the sale of money in foreign exchanges, where the money being purchased was money of another country. Foreign exchange sales involved transfers from one country to another, and in those conditions a sale required the transport of the money or the bill of exchange so that there was a delay of several weeks involved in exchange sales. In that delay credit was involved, and the price of foreign exchange included a charge for credit. For a long time the theologians were puzzled as to whether they should regard money being sold in the exchanges as being sold as a medium of exchange or as a commodity. After 300 years of debate the decision was taken to treat money on the foreign exchanges as a commodity on which profit could be made.⁸ By this type of analysis, which distinguished money in foreign exchange transactions from a medium of exchange, an international market in short term loans was permitted despite the usury prohibition. This result raised the question, Why cannot money in its own country be treated as something besides a medium of exchange? Why cannot money always be sold for a profit? The only answer to this question was that the law had fixed the value of money; to charge above the face-value for money would be to go against what the law had determined.⁹ I emphasize this answer because here, at the very crux of the argument against usury, an appeal is made to what the positive law has determined. It is the determination of the positive law that money has a value which cannot be altered in its own country; and that is the basis for the entire argument that money cannot be put out at usury.

Yet, despite the fact that the entire argument rested on the positive institution of man in creating money, there was a tremendous urge to attempt to see the usury prohibition as something that rested on the will of God, as something that was intrinsically against the constitution of the universe. Even the stones would cry out against the usurer, says William of Auxerre, because the usurer sells time which belongs to God.¹⁰ Raising the argument to the level of eschatology, St. Bernardine of Sienna says that Jesus Christ alone knows the time; for the usurer to sell time is, therefore, to sell what belongs to Christ and to His Father.¹¹

To be able to say that usury was against nature or was intrinsically self-contradictory, or was something against the very structure of the universe, apparently offered tremendous psychological satisfaction. Otherwise why was there such fondness for this kind of argument? The appeal to intrinsic nature meant security for the moralists; it provided an apparently exceptionless rule; it provided a neat, simple, clear way of dealing with a problem. Yet this whole argument, constructed as an argument from nature, rested on the institutions of positive law and the positive determinations made about money.

Eventually the whole structure began to shift. The change occurred in part as other uses of money were recognized, and in part as the focus was changed from the abstract act of lending to the personal circumstances of the lender. It was recognized that the lender often did not get his money back. For a long while it was said that to recognize this risk of non-payment and to permit a charge for it was to destroy the naturally gratuitous character of the loan, so that risk in lending could not be admitted as a ground for interest.¹² Eventually, in the seventeenth century, the risk in lending was permitted as the basis for a charge.¹³ It was also ultimately recognized that the lender might have his money in a profitable business and that in such a case he was not taking money from some sterile chest, and he might therefore charge for the profit that he had foregone.¹⁴ In this way, by shifting to the concrete circumstances of the lender and away from the abstract act of lending, the formal perfection of the Thomistic argument against profit on a loan no longer was decisive. (What was decisive were the concrete reasons for which interest could be sought by the lender in the particular circumstances in which he was.) The whole idea of interest as opposed to usury grew up and after some 500 years of argument, by the mid-seventeenth century, became established.

In another way, one can see the rhetorical, and, I would suggest, the legal thrust of the natural law argument against usury. In other contexts, money was recognized as fertile. To begin with, it was recognized as fertile in the case of restitution. If somebody was a thief and stole money, according to some moralists, he had to give it back with interest.¹⁵ In this type of situation, the moralists treated the stolen money as fertile. Again, when money was put into a partnership, where the partner ran some of the risk of the capital, his money was permitted to fructify to him in proportion to the capital, not in proportion to his risk.¹⁶ Where for social reasons it was important to recognize that money had a return--in restitution, because a thief would be better discouraged by adding interest, in partnerships, because it was desirable to encourage joint ventures--then the formal theory that money was sterile was abandoned. Thus there were two different theories of money within the same tradition. In the end, of course, after some 700 or 800 years of analysis, it was recognized that in a modern industrial society it was appropriate to identify money with real capital, rather than to treat it simply or even primarily as a medium of exchange, and the old usury analysis was abandoned.¹⁷

In this history you can see that there was a tremendous satisfaction of psychological needs in having an argument that pronounced a form of behavior intrinsically contradictory. You might add that the argument based on intrinsic nature was simply a rationalization of a prohibition of the Church. After all, the Church did prohibit taking any profit on a loan, the Church did say that it was mortal sin to hope for anything from a loan. That was the teaching of the Councils and the Popes and the Bible.¹⁸ The philosophers of natural law merely invented an argument to justify the prohibition. I think such a commentary on the argument too facile. There was rationalization going on, and it was a factor, but it does not account for the ultimate success, the ultimate value of the philosophical enterprise. What the philosophers did, and what the theologians did who were philosophers, was to say in dealing with usury: You are not dealing with something the Pope set up. The Pope, for example, is not free to dispense in order to raise money for a worthy cause.¹⁹ It is not that kind of thing that it is up to him to decide whether or not he will permit. Nor is usury something condemned in the Old Testament, which you can discard as a Jewish taboo. Nor is it something that is just the arbitrary will of God, as the extreme voluntarists would have had it. It is none of these things. There is a real evil in society, and this evil is what is reached by the prohibition of the Church; the prohibition of the Church is striking at a practice which is destructive of human values.

The medieval philosophers did not use the language of persons and of values. But in looking at the philosophical enterprise here over several hundred years, one can see that their way of looking at usury in natural law terms did attempt to protect human values. Their way put the matter in the realm of the rational. This result was the achievement of natural law thinking, which if the usury rule had been treated as mere positive law would never been brought about. By insisting that there was a rational basis for the prohibition, the theologians made it possible to abandon the prohibition when it became plain that the rational basis no longer subsisted. Such rationality is an outstanding characteristic of the scholastic tradition of moral thought. It is not committed to a series of taboos or Old Testament prohibitions. It puts moral problems in a field where the reasonable reflection of human beings is the way to the establishment of what the rules should be.

SEXUAL ETHICS

Let me turn to the area of sexual ethics. At first sight sexual ethics would appear to be different from economic ethics in that money and property are outside of man or extrinsic, whereas sexual ethics deals with the potentialities and faculties of man himself; from this one might expect a difference in the kind of change that has occurred or is possible. After studying the history of a number of these questions, I have been convinced that the differences are only relative. Obviously, with economic matters there can be a greater degree of change, but in sexual matters so much depends on a changing biological nature and on a changing social structure that a great part of sexual morals must be affected by changes in environment.

Here, where people's emotions are more involved, where the dispassionate approach possible with usury is not so possible, it may help to at least bear in mind that the same kind of structure has formed the basic approach to sex as formed the approach to usury. In dealing with the purposes of marriage, one argument of St. Augustine was the legal argument that the marriage contract said that marriage was for procreation of children.²⁰ Precisely as the theologians invoked the Roman law of mutuum and on consumptibles in order to show the sinfulness of usury, St. Augustine invoked the Roman marriage contract to show that it was against the legal institution to thwart the procreative purpose. Again, just as the argument was developed that money was sterile, so the argument was made that the act of intercourse was naturally fertile.²¹ The varieties of this argument are not significant. Sometimes it is said that the genital organs are directed to procreation; sometimes it is said that the seed is directed to procreation; and sometimes it is said that the act of intercourse is naturally procreative. All of these statements are variants on the natural fertility of intercourse.

There was no attempt to establish this natural fertility statistically. It was somehow taken as a kind of immediate insight. As it seemed to be obvious from observation that money did not produce offspring, so the observable fact that sometimes the act of intercourse resulted in children was taken to mean that the act was naturally procreative.²² Again, just as the argument against usury was constructed by focusing on the act of lending or the formal nature of money, so, abstracting from all other factors, the argument was constructed that it was inherently contradictory to frustrate the act of intercourse and to deprive it of its procreative power.

There were serious problems with this analysis when other areas of moral life involving sexuality were looked at. In particular, when one turned from the reasoning developed about the purposes of intercourse to the reasoning about the marriage of the sterile, it was hard to see why the sterile could marry.²³ If it was really true that the act of intercourse was naturally procreative, were not the sterile doing something unnatural in having intercourse? When a development occurred in the nineteenth century whereby it was taught that it was possible to select the times of intercourse and to choose the sterile times, did not such selection constitute a deliberate frustration of the procreative purpose?

As in the case of usury, where looking at other fields, exceptions, and uses, led to a distinction between primary and secondary, so here a distinction was made between the primary use of intercourse and the secondary uses. The question was posed: If there are primary and secondary uses, why is it wrong to suppress the primary in behalf of the secondary? In the case of usury and money, the question about transferring the primary purpose of money from exchange to something else was answered in terms of the law. What the law said was treated as the will of God. In the case of the purposes of intercourse, there was not an appeal to the civil law but to papal decisions. The teaching of the Pope became decisive in the argument that the primary purpose could not be changed.²⁴ In debate in the twentieth century, what was controlling was the immediate force of ecclesiastical authority. Again, as in the case of money, the usual distinctions were cut away--in this case by ecclesiastical authority in the Second Vatican Council abandoning the distinction of primary and secondary purposes.²⁵

Again you can say that the scholastic theologians dreamed up an argument to justify a Church prohibition. After all, it can be pointed out, even less was known about sexual intercourse when the natural law argument was constructed than was known about the mechanism of money when the natural law on it was stated. There was no knowledge as to the female component in generation, the ovum; there was the scantiest knowledge about the male component. Yet the pretense was made that, without knowing anything about the elements, there was knowledge of the nature of the act--an absurd pretension as it appears in retrospect. Yet it was not absurd in its time where it reflected the best medical scientific evidence available.

The great function of the scholastic moral philosophers was to deal with the matter of marital intercourse seriously, to see that the procreation of children should not be treated as an act subject to arbitrary whim, to insist that embryonic and infant life was not disposable of by parents. To categorize the problems involved as belonging to natural law was to say that the prohibitions involved were not mere taboos, as the Old Testament prohibition against intercourse in menstruation turned out to be. It was to recognize that they were dealing here with some of the serious problems of mankind, matters that could not be decided by the arbitrary whim of an individual or the state or the Pope, but matters that had to be examined in the most rational way, with the most reflection, with the greatest attention to the data. On the basis of this kind of contemplation one could draw up rules of moral action.

In each case, in the case of usury and in the case of the rules on intercourse, assistance was derived from the models offered by the positive law of the society. The philosophical enterprise did not stop with these models. The enterprise went on, it looked at the implications for man as a person. In that way it constructed and continues to create rules of action far better than those of any positive law.

1. Albert Mitterer, Die Zeugnung der Organismen, inbesondere des Menschen nach dem Weltbild des hl Thomas von Aquin und dem der Gegenwart (Vienna, 1947); Mitterer, Dogma und Biologie der Heiligen Familie nach dem Weltbild des hl Thomas von Aquin und dem der Gegenwart (Vienna: Herder, 1952).

2. John T. Noonan, Jr., "From Social Engineering to Creative Charity", Knowledge and the Future of Man, ed. Walter J. Ong (New York: Holt, Rinehart & Winston, 1968), p. 180.

3. M.G. Plattel, "Personal Response and the Natural Law", Natural Law Forum, 7 (1963) 36-37.

4. Huguccio, Summa, 14.3 ante c. l (M.S. Munich, Staatsbibliothek, Cod. lat. 10247).

5. Gregory of Nyssa, Homily, Patrologia graeca (ed. J.P. Migne (Paris, 1857-1866) 54.671.

6. Thomas Aquinas, Summa theologica, II-II.78.1 (Leonine edition, Rome: Forzani, 1894).

7. Thomas Aquinas, De malo, 13.4 and 15, ed. P. Bazzi and P.M. Pessian (Trino, 1949).

8. Cajetan, De cambiis, c.2, Scripta philosophica: Opuscula oeconomica-socialia, edited by P. Zammit (Rome: Typographia missionaria dominicana, 1934).

9. Luis de Molina, De justitia et jure, 2.410.4.

10. William of Auxerre, Summa aurea, 3.21.1 (Paris, 1500).

11. Bernardine, De contractibus, 43.2.3, in De evangelio aeterno. Opera omnia, Vol. 2, ed. J. de la Haye (Venice, 1745).

12. Ibid., 39.1.3.

13. See John T. Noonan Jr., The Scholastic Analysis of Usury (Cambridge: Harvard Univ. Press, 1957), pp. 281-293.

14. Navarrus, De usuris, 5.6, Opera omnia (Venice, 1618) Vol. 1.

15. William of Auxerre, Summa, 3.21.

16. Thomas Aquinas, Summa theologica, II-II.78.2 ad 5; see The Scholastic Analysis of Usury, pp. 133-153.

17. E.g., William Ceásar, Cardinal de la Luzerne, Dissertations sur le prêt-de-commerce (1822), Vol. 3, part 1.

18. John T. Noonan, Jr., "Authority on Usury and Contraception", Tidjschrift voor Theologie (1966), republished in Cross Currents, 16 (1966).

19. Gregory IX, Decretales, 5.19.4.

20. Augustine, Contra Faustum, 15.7, Corpus scriptorum ecclesiasticorum latinorum, 25.430.

21. Clement of Alexandria, The Teacher, 2.10, Patrologia graeca, ed., J.P.M. gnp, vol. 8, 506.

22. See John T. Noonan Jr., Contraception: A History of Its Treatment by the Catholic Theologians and Canonists (Cambridge: Harvard University Press, 1965), pp. 295-296.

23. Charles Billuart, Summa Sancti Thomae hodiernis acamediarum moribus accommodata (Paris: Letouzey Ané, 1927-1931), "De bonis et actibus matrimonii" 2.2.

24. Pius XI, Casti connubii, Acta apostolicae sedis, 22.560 (1930).

25. Second Vatican Council, Gaudium et spes, sec. 50, Acta apostolicae sedis, 58.1070-1072 (1966); but cf. Paul VI, Humanae vitae, Acta apostolicae sedis (1968).