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thesis entitled

AN HISTORICAL AND METAPHYSICAL STUDY OF NATURAL LAW
THEORY APPLIED TO QUESTIONS OF FREEDOM OE EXPRESSION
IN THE UNITED STATES

presented by i i

Rev. Owen B. Finnegan, S.J. A

has been accepted towards fulfillment
of the requirements for

Communication 8 Philosophy

 

 

 

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Major professor

Date August 13, 1965

 

 

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ABSTRACT

AN HISTORICAL AND METAPHYSICAL STUDY OF NATURAL LAW
THEORY APPLIED T0 QUESTIONS OF FREEDOM OF EXPRESSION

IN THE UNITED STATES
by Rev. Owen E. Finnegan, S.J.

The purpose of this thesis is to develop through empirical
investigation and historical study an ethic of the media of mass communi-
cation proper to the American political philosophy rooted as this is in
natural law theory.

The empirical investigation proceeds along two courses: an analysis
of the three basic ontological categories of essence, existence, and
tendency as these are derived from experience; and an examination of
relevant laws, practices, and codes of the media to the conclusion that

the ethic is in the communications 'industry,’ and can be discovered

\

and explicated.

The historical study traces the theory of natural law through a
complex of significant authors. And from a posture of verifiable criteria,
an attempt is made to distinguish the several currents of natural law
thinking that exercised discoverable influence in the political and
Philosophical formulations of the American experiment.

In its attempt to develop an ethic of mass communication proper to

the United States, the thesis does not presume to detail a list of

ethical directives for decision makers in the media. Rather, it essays

Rev. Owen B. Finnegan, S.J.
the task of demonstrating that an ethic of mass communications is a
social ethic that can be used by men as a structure of standards rooted
in the reality of experience and reflection to determine the objective
goodness and/or badness of past, present, and future communications
decisions.

The expression, American political philosophy, in this thesis is
taken to mean the basic structure of the United States government in the
account it makes of the nature of man, the nature of the state, and the
nature of the relationship between man and the state.

Natural law theory functions as a framework throughout the
investigation's attempt to inaugurate a meaningful and continuing
discourse with the problems oftotal man as he endeavors to align himself,

through information, with the dynamics of process in the world as it is.

AN HISTORICAL AND METAPHYSICAL STUDY OF NATURAL LAW
THEORY APPLIED TO QUESTIONS OF FREEDOM OF EXPRESSION

IN THE UNITED STATES

by g
,D\
\ ‘r‘

Rev. Owen E: Finnegan, S.J.

A THESIS

Submitted to
The Department of Communication
and
The Department of Philosophy
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

1965

 

 

 

 

AC KNOW LE DGEMEN TS

The long term work which this thesis initiates would not and
could not have been undertaken without the encouragement, assistance,
and example of the following staff members of Michigan State University,
in their several capacities:

Fred S. Siebert, Dean, College of Communication Arts

William J. Callaghan, Chairman, Department of Philosophy

David K. Berlo, Chairman, Department of Communication

Harold T. Walsh, Associate Professor, Department of PhilOSOphy
(Thesis Director)

Hideya Kumata, Professor, Department of Communication
(Committee Chairman)

P0
P0

 

 

 

 

TABLE OF CONTENTS

CHAPTER Page
I INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . I
II HISTORICAL STUDY . . . . . . . . . . . . . . . . . . . . . 17
III METAPHYSICAL ANALYSIS . . . . . . . . . . . . . . . . . . . 99

IV DEFINITION AND LOCATION OF NATURAL LAW . . . . . . . . . . 131
155

a
O

V LAWS AND CODES RELEVANT TO PROBLEM IN THE UNITED STATES
VI CONCLUSION 0 0 O O C I C 0 O O O O Q 0 C O I I O O O O O I 182

BIBLIOGRAPHY I O 0 O I O I I D O O I O O O 0 l O Q C O C O O O O 187

 

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CHAPTER I

INTRODUCTION

The phenomenon of information is as old as man, and as new as
the urgency with which it puts its questions of rights and obligations
to the age of the media of mass communication. Weiner defines it as
"the content of what is exchanged with the outer world as we adjust to
it, and make our adjustment felt upon it."1 This will do, as a general
definition, for the moment. However it may be conceived or defined,
information is a man-involved thing, a basic human need, requiring study
and understanding because it is a vital dimension of modern man. It is
a premise of the present investigation that the phenomenon of infbrmation
cannot be pr0perly construed apart from the basis of its meaningfulness
which is total man.

Neither biological man, nor psychological man, nor any other partial
measure of man serves as a suitable focal point for the study of the dynamic
reality of information. Rather soon, questions arise about the nature of
man, the nature of the state, the nature of the relationship between man
and the state, and the epistemological problems of truth and knowledge.
Such questions are asked about man in his totality, in what he is and will
be as man. This, at least, would seem to be the case, since the conscious
subject of infbrmation is man in the concrete, really existent, mowing
With his multitudinous needs, drives, and purposes through time and space,
And, he moves along his course with religious convictions and without

them. He moves influenced by values, his own, and those of his environment,

 

sometimes affirming them, often denying them in practice. Total man,
above all else, is in motion, moving constantly in an ever-changing
world. The reality that he is, and towards which he tends is personal,
domestic, social, and political, living and working out his destiny as
best he may in the village he has made of the world.

Neither the nature of man nor his relationships to other persons,
real and legal, have changed substantially in the age of mass media. Nor
does information, as the report of events upon which these relationships
depend, seem to be anything new. What is new may more clearly be seen,
if Weiner's general definition of information can be brought into focus
as a transportable package of facts and values rooted in the flux of
reality that form man, change him, adapt him in his constant struggle for
alignment with the world as it is, and as it becomes what it will be.
This world is and becomes appreciably smaller as populations increase,
and peoples become more and more interdependent. The mass media, in this
View of the world, may then be conceived as both cause and effect of
the new dimension of information with its current characteristics of
Velocity, quantify, and frequency.

The world as it was might be compared to a rather small airfield
controlling its limited traffic of slowly moving bi-planes with a wind
sock and an assortment of hand signals. The modern air terminal, as
the world that is, contains the same essential ingredients, but there
are many important changes. More people are flying in bigger and faster
aircraft. These changes demand highly sophisticated traffic control
procedures implemented by communication systems that must accurately

and swiftly receive and transmit information in large quantity. The

consequences of a breakdown in the efficiency or in the responsible
use of these communication systems seem sufficiently obvious.

Because the world in which he lives has become effectively
smaller and faster in pace, man needs with an increasing urgency to
be truthfully informed about public events and everything that impinges
upon one or more of his roles in society.

Within each of the societies to which man belongs by nature, he
will be seen in the course of this study to have obligations, duties to
himself and to others. To fulfill these duties he must be possessed of
rights some of which are his by nature, others which he acquires by
enactment of positive law.

Since man is what he was, and, inchoatively, what he will be, a
personal being of dynamic and tendential nature, often made manifest
through what he needs psychologically and physically, he finds himself
involved in a complex of relationships which largely determine, modify,
and direct him. Without these relationships he would be other than he
is, a human person, a social and political animal who can be taught to
reason, and to know what is true.

This man, a living, thinking person in motion capable of discovering
fact, truth, and value, stands at the center of this investigation of the
modern phenomenon of information.

When a man speaks or listens, communicates or is communicated
With, he does so as total man, the sum of his nature, his experience,
his beliefs, his values, his knowledge, his ignorance, his bias, his

capacity for truth, and his susceptibility to error. To be sure, there

 

 

 

 

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may well be much more than the foregoing to the sum of total man in the
practical order. It is highly unlikely that all of his potentialities
are known at any given moment in history. He will be considered in this
study to be capable of much that is presently unknown, much that is yet
to be explored and discovered. For this reason, if for no other, any
attempt to move more deeply into an understanding of human comunication
should not arbitrarily place aside any data of the human experience.

Philosophers in general, and moral phiIOBOphers in particular, have,
in the main,ignored the problems of infermation so characteristic of
modern society. Somewhat critically, Father Emile Gabel, fbrmer editor-in-
chief of the French Catholic daily, La Croix, in an article written fer
America (August 10, 1963) admonishes the Catholic moralists who "...are
more inclined to underline the abuses and ambiguities of the press than
to stress the enriching and indispensable social function it performs."
0n the other hand, empirical scientists and their counterparts in
philosOphy may be incautious enough to discount as meaningless or
irrelevant any philosophical investigation of the ethical and moral
dimensions that permeate problems in human communication. This attitude
Springs in part from an uncritical acceptance of facts as logically
atomistic, complete in themselves, as well as from a misunderstanding of
what philosophy is and does, what it can and cannot do as it works in
communication areas.

Freedom of information, and the right to know, elemental components
of a free society, would be difficult, if not impossible, to study out-

Side of philosophy which takes as its data the findings as well as the

 

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presuppositions of other disciplines. These components of human society
are ultimately rooted in man, in his nature, in the nature of human
society, and the morally meaningful nature of man and his activity in
society will not open up to investigation, analysis, and reflection

unless the totality of man is taken to include his physical, intellectual,
esthetic, and spiritual dimensions without which human nature, as it is
known, would not be human nature as it is.

The natural law framework of this study, if it is to have any
validity and make any presumption about setting up and attacking the
elemental problems of communication, must rest upon a base of scientific
inquiry, the only realistic foundation for a knowledge of human nature.
These laws of nature will be shown to be anological as laws. They will
also be shown to possess a demanding character upon the conscience of men.
With the exception of the statement on the analogy of law, these are the
basic postulates of sociologist Philip Selznick who represents a secular
view of natural law that will be incorporated into the present investi-
gation.

If Selznick's expression "scientific inquiry“ means anything, it
at least assumes that man is intelligent, that he has the capacity to make
intellectual as well as physical contact with the world of which he is a
part. This simply says that this world is knowable by and actionable upon

the intellectual and moral operations of man.
Man belongs to two societies, both natural, the family and the
state. He enters into neither the one nor the other by any act of his

Will, by compact or contract, but purely and simply because he has

 

 

physical and psychological needs that he can not meet by himself. Unlike
other animals who band together in packs and herds for strength and
protection, and this by instinct, man participates in the civil community,
not by instinct, but by reason. As there is no civilization, no culture,
no progress among animals, so there is among men. The evidence of this
is a matter of historical record; the difference is the ability to reason,
and the vehicle is the external communication which is public discussion,
possible only to animals who can communicate about intellectual as well
as physical needs.

Now, that man is more of a political animal than bees

or any other gregarious animals is evident. Nature,

as we often say, makes nothing in vain, and man is the

only animal whom she has endowed with the gift of speech.

...And it is a characteristic of man that he alone has any

sense of good and evil, of just and unjust, and the like,

and the association of livigg beings who have this sense

makes a family and a state.

It was the eighteenth century that witnessed the high point of
natural law doctrine in its secularized form. During this period the two
classic political documents of the West were written: the American
Declaration of Independence, and the French Declaration of the Rights
of Man. From that time through the first three decades of the twentieth
century, natural law thinking went into decline and all but disappeared
from sight. Conceived by many as a quaint survival of Graeco-Roman
thought, and dismissed by one author (Morris L. Ernst) as "nothing but a
bit of metaphysics," there is significant evidence of a growing interest

in natural law. Robert Gordie puts it this way, “...natural law could

help to dissipate the fundamental, ethical, and legal chaos of our

age...circ1es which have long looked askance at it - philosophers,

lawyers, and sociologists - are manifesting a desire to find the viable
elements in the concept of natural law."3

Concerned about the vacillation that has marked the history of the
law of speech and of the press in this country, Edward G. Huddon remarked
that such has been the case ”Due to a lack of a basic philosophy to serve
as a stabilizing influence in the interpretation of the First Amendment."
He goes on to point out that this situation has develoPed because of
"...a neglect of the natural law environment from which the Constitution
and the Amendment arose, and a reluctance to place both in their proper
perspective."n

Although the questions of freedom of information and the right to
know will be treated in this study within the context of the civil society
of the United States, it should be noted in passing that these issues
have become in recent years matters of increasing concern for such inter-
national bodies as the United Nations and the Catholic Church. Amid much
disagreement and debate, the Universal Declaration of Human Rights was
formulated in lQflB, and two years later came the Burcpean Convention fer
the Protection of Human Rights and Fundamental Freedoms. In 1962,
Pope John XXIII issued the encyclical, Pacem in Terrie, listing among
several of man's rights in the domain of knowledge and artistic creation
that "...he has the right, finally, to be informed truthfully about
public events." (NCWC Trans., p. 5) On December 4, 1963, the Second
Vetican Council, through Pope.Paul VI, promulgated its Decree On The Media

of Social Communication.

ofi

That these are more than merely theoretical questions, freedom
of information and the right to know, is evidenced in the continued
efforts of the Communist states to block debates at the United Nations
on the Draft Convention and on the Draft Declaration on Freedom of
Infermation.

To haVe some understanding of human rights in contemporary American
culture, it seems expedient to know what Jefferson and his contemporaries
understood by them, what currents of natural law thinking influenced their
own philosophy of government, and what, if any, correlation there is be-
tween the American consensus of the Declaration and the American consensus
today.

It may well be, as Carl L. Becker put it, that "We are less sure
than they were that a beneficient intelligence designed the world on a
rational plan for man's special convenience. We are aware that the laws
of nature, and cepecially the laws of human nature, are less easily
discovered and applied than they supposed."5

The concepts of freedom and of rights intertwined with the.questions
of information and the right to know lead almost inevitably to the issue
of fact and value, intimately related in natural law thinking, separated
in most of modern social science.

The trend in social science areas has increasingly emphasized a
quantitative posture typified by empirical observation and the develop-
ment and refinement of measurement techniques. This urge fer objectivity
seems to have engendered a strong trend away from speculative investigation,

and_against the meaningfulness of studies in the fields of morals and ethics.

 

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Rightfully, the social scientist strives to see the world and
especially the human enterprise as these are, not as he wants or pre—
conceives them to be. To this end, he attempts, in his models, to account
for such factors as his own bias, susceptibility to error, and the
imposition of personal values. In the hope of getting a clearer picture
of reality, he has attempted to divorce fact from value, or treat them as
if they are, in themselves divorced, largely eschewing the latter because
values seem to lend themselves less to measurement and predictability
than do facts.

In spite of the fact that normative systems need not demand a
personal commitment by the observer, "...there is an odd reluctance on
the part of social scientists," according to Selznick, "to deal with
normative systems." The same author goes on to say that "...the dis-
position is to reduce such phenomena to arrangements that can be studied
Without assessment by the investigator, even when the assessment would
entail nothing more than applying a culturally defined standard as to
how far an implicit ideal has been realized."6

The question of normative systems and their relevance for communi-
cation theory arises from another premise of this study, i.e., communi—
cation theory as this is surfaced in practical decisions, both of policy
and of impulse, will tend to reflect the basic philosophy of the political
entity in which it, the communication theory, is operative, e.g., the
public attitude towards the nature of man, the nature of the state, the
nature of the relationship between man and the state, and towards the
Problem of truth and knowledge. These attitudes in turn are reflected

Primatively in public opinion.

 

10

There would seem to be a tendency in current communication research
to reduce public opinion to nothing more than a distribution of attitudes
in a population, which attitudes are only the result of suggestibility or
emotional rapport. This does not give man his due as a free, rational,
though frequently conditioned agent. A curious by—product of this point
of view is that it puts the communication research people in the awkward
position of saying implicitly that they are able to study, measure, and
predict scientifically (intellectual and rational operations) about other
men who have not or very seldom employ these capacities. In addition,
public usually means more than a gathering, group or multitude of people.
It often presumes some coherence of interests and objectives that are the
objects of discussion and debate at either high or low level. This in
turn says a human, rational struggle to apply principles and values to
new situations as these come upon the social or political horizon.

This struggle of principle and values to meet new situations in
the human community points up a distinction between two terms or concepts
that are often mistakenly used synonomously, public consensus and public
opinion.

The conclusions that a public may reach, howsoever they of the
public may reach them, are made on the basis of general, unstated premises
which have somehow come to be accepted by the community. This is what
is taken here to be the public consensus, a difficult thing to get at,
hard to define. Yet, its presence in a community can be discovered and
tested. In content it seems to be a loosely knit texture of idea sets

widely held by the community containing principles, rules, standards of

 

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judgment which if codified would appear as a record of experience and
attitudes. The public consensus, in a sense, thus becomes a body of
doctrine drawn from experience and reflection, never static, always
dynamic, constantly feeding upon new data of experience transported to

it as information. It is a kind of private conscience grown large, and
it could be no other, if human nature means anything real (conceptus
universalis cum fundamento in re). And, insofar as the public consensus
is national, social and political, it is the public philosophy that guides
the political, economic, educational and social systems of a body politic.

Public opinion, on the other hand, is the application of the public
conscience to concrete situations as these rise to the level of more or
less wideSpread consciousness.

Public opinion, thus conceived, is the stuff of reaction, discussion, ‘
and argument, flowing between the public experience and the public judg— ‘
ment of conscience. This stuff gets tested by the standards of the
consensus, and may or may not move through debate among the leaders to a
place as modifier of the consensus. Such at least is the present writer's
attempt to explain the dynamism of consensus.

The customs and laws of a political community stand up as the more
or less clearly visible manifestations of the public consensus. These
are above ground, as it were, having roots not as clearly known or manifest.

The roots are the capacity of a people to judge their own laws and customs,
to extend and except from them as experience and reflection demand.

For John Courtney Murray, "...only the theory of natural law,

rightly understood, can give an account of the moral experience which is

 

12

the public consensus, and thus lift it from the level of sheer experience
to the higher level of intelligibility."7 Such a course Father Murray
presumes to be the aspiration of the mind of man.

The American civil society, one people derived from several
cultures, is religiously pluralistic, and to a large extent relativistic
morally and ethically. External evidence and the consensus enunciated
in the Declaration and the Bill of Rights substantiate, at least for
workable purposes in this thesis, religious pluralism. It does not seem
that as clear a case can be made for moral relativism, not at least as a
radical philosophical posture to the exclusion of a basic ontol or
psychic unity underlying the diversity of moral and ethical positions.

It is Selznick's contention "...that man has morally relevant needs,
weaknesses, and potentialities is supported, not contradicted, by
anthropological evidence."8 In speaking of psychic unity, noted above,
Selznick points to features beyond drives of hunger and sex to those
that are more directly relevant to what is universal in social organi-
zation and pervasive in human values, such as search for resPect, for
affection, for relief from anxiety, for the enlargement of social insight
and understanding, reason, and esthetic creativity.

The importance of establishing with some degree of certainty the
existence of this psychic or underlying unity amid moral diversities
takes on meaning and relevance in a study of communication ethical issues
in a pluralistic society. What is right and wrong, good and bad, what
should be published, what should not be broadcast will require more than

Positive law and codes of practice for settlement. Account must be made

 

 

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of moral and ethical diversity, and some account is possible, beyond
positive law in an investigation and development of natural law theory.

In the relationship between the citizen and his society there will
frequently exist a tension between the citizen’s need and right to know
and the government's right and need, under some circumstances, to and
for secrecy. Emile Gabel, cited above, puts the problem this way:
"Every government, of course, needs silence. It is not even entitled to
convey all the news, immediately to the public; efficiency, justice, and
prudence dictate discretion. On the other hand, there is no doubt that
the nonmal tendency of every government and every administration is to
expand these zones of silence. There will always be tensions about news
between a government and the public - the latter having the right to know,
and wanting to know everything; the former having the duty to keep certain
things secret, and being inclined to keep as much secret as possible."9

A tension similar to that existing between the individual and his
_government also is given in the information or news area between individual
citizens, a tension involving the right to know and the right to privacy.

These tensions need not be resolved necessarily, and perhaps in
many cases cannot be so resolved. They may, in fact, prove to be living
elements of the social organism, essential to the continued life and
growth of the social order. Whether such tensions may legitimately be
explained in this manner or not, they cannot be left altogether alone in
a kind of no man's land. An attitude such as this would not only be a
denial of the reality of social and political interaction, but would imply

a demise for public argument, and the end of human freedom, at least of

 

 

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speech and of the press. Many, perhaps most, of the solutions will con—
tinue to be attempted on the level of positive law alone. Yet, as Huddon
has remarked regarding First Amendment tests, "...none of the tests that

have prevailed at different periods during the history of the Amendment

"10 He was referring

has stood the test of time for more than a decade.
to "liberty versus license," "clear and present danger," and the current
"balancing of interests."

When a man knows, the what that he knows very often involves, directly
or indirectly, other men and their social productivity or lack of it. The
right to know, then, encompasses other men and their roles in society. Given
the premise that no right is absolute, what acts of man are his personal
property and which belong to the public domain? Man, as social and

political, is in possession of rights and obligations, but he is also and

equally individual.

 

Following Karl Rahner's line of thought11 man is measurably an
individual "...by demarcation from many more like him; a man, one individuated
human being (for only mankind can be man as a whole); and he is merely
individual who is one among many more, one example of countless others,
so common that he is just one like the rest, of no particular importance,
and so all by himself and lonely." HoweVer, man is at the same time a

Spiritual, non-measurable personality, "...that is, he is more than an

 

individual example of many more of the same, more than one individuation
of a common kind. He is a genuine individual, who is truly unique and
irreplaceable, and who, when he comes into contact with another does not
form a society or group of like beings, but a community of different,

unique beings . "12

 

 

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The right to know, then, will be regulated, rather broadly, in
its limits by the recognition of an individual's uniqueness, and by some
reaSonable justification of the need to know. This recognition will
manifest itself to the extent that another man is not treated as a
property of another, a non—human thing. Reasonable justification in the
need to know will attempt to strike a balance between a genuine need to
know, and an unbridled, prying curiosity that is both destructive of the
purpose of the right to know, and a violation of the right to privacy enjoyed
by the other person.

The technological revolution, including the mass media, has wrought
vast changes in every area of the human enterprise. During the last
century, and increasingly during the past three decades, man has fashioned
a worbd for himself, through rapid discovery in the fact dimension, building
a record of achievement too complex and too vast for comfortable enclosure
in existing legal, social, and perhaps even in contemporary ethical and i
moral molds.

From the certainties of Newton's world to the statistical and
probabilistic world of Heisenberg, from the world of palpable substance
to the world of energy, man has moved, less on the basis of personal
experience, and more and more as a dependent upon the geometrically in-
creasing body of information about the world and its course.

Man simply will not be able to hold himself firmly in meaningful
personal existence as a rational animal unless he is loosed from artificial
shackles, unless he is wisely trained to know, to build bodies of knowledge,
and to employ this knowledge in a free society. This will be an open-
ended enterprise needing experience, insight, and an ethical base established

in the nature of man and of society.

 

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Footnotes

1The Human Use of Human Beings, p. 17.
2

3Natural Law and Modern SocieEy, p. 2u1.

”Edward G. Huddon, Freedomggf Speech and Prgss in America (Washington:
Public Affairs Press, 1963), p. 172.

5Carl L. Becker, Freedom and Res onsibility in thg American Way of Life,
(New York: Vintage Books, 1945 , p. 47.

6Natural Law and Modern Society, p. 160.

7Natural Law and Modern Society, pp. 71-72.
8Natural Law and Modgrn Society, p. 169.
9Gabel, 22. cit., pp. 134—135.

0
HUddOD, £0 C115, Pp. 172-173-

1
1Nature and Grace, p. 1a.

 

12.
Ibid., p. 1».

16

Aristotle, Politics, trans. Benjamin Jowett, The Basic Works of Aristotle,
. -——————— -—-————--————a-——-————-——-—
ed. Richard McKeon (New York: Random House, 1941), 1253 lO, 15.

 

 

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(See D

 

CHAPTER II

HISTORICAL STUDY

Natural law theory, the framework and measure of this thesis on
information and its implicated rights, has had a long and Speckled career.
From its earliest formulations, as far back in history as the pre-Platonic
era of Heraclitus (536—470 B.C.) and the early sophists, to the time of
Jefferson‘s drafting of the Declaration of Independence this theory has
been a basic ingredient in the ethical and legal traditions of Western
civilization. During the past one hundred and fifty years it has generally
been neglectedl, and "For some time it became increasingly the fashion
in philosophical and legal sources to deny the existence of the natural

"2

law, and, in fact, to scoff at it. Since the second decade, a denial of

natural law has prevailed in this country, a denial underscored by Chief
Justice Vinson in Eugene Dennis et al v. United States of America, (3M1
U.S. 494; 508: )
Nothing is more certain in modern society than the

principle that there are no absolutes, that a name, a

phrase, a standard has meaning only when associated

with the considerations which gave birth to the nomenclature.

(See Douds, 339 U.S. et 397.) To those who would paralyze

our Government in the face of impending threat by

encasing it in a semantic straitjacket we must reply that

all concepts are relative.

LeBuffe and Hayes, in citing the above, comment that "Justice Vinson
here enunciated a principle that undermines our traditional American

philosophy of law and leaves us in the quicksands and quagmires of

relativism where there is nothing certain except the chameleon uncertainty

1?

 

l
l of transit
In
"...it is
natural la
Theo of E
and crude e
forced upon
to search i
about mu, 1
temPOI‘all so«
Mmm¢
the Nlics c
fwd to be
People are a
This A
°f Plato (oz:
to the thongk
(121.130 A.D.
501mg, freque

It is found 1

Vital, thOugh

 

18

'of transitional values."3

In addition to the statement made by Roscoe Pound in 19114 that
"...it is not an accident that something very like a resurrection of
natural law is going on the world over,"5 Charles G. Haines' The Revival
of Natural Law Concepts, 1930; and Otto Gierke's Natural Law and the
Theogy of Society, 193a, it is still reasonable to assume that the tragic
and crude experience of mankind during much of the twentieth century has
forced upon increasingly growing numbers of reflective men the necessity
to search in the rubble of human events for answers to perennial questions
about man, his value, dignity, his rights, and his proper place in the
temporal society. Perhaps with a kind of inevitability this search has
led to an old nineteenth century grave where it was thought would be found
the relics of a body several times buried. But natural law theory was
found to be very much alive. The only difference seems to be that more
people are aware of the fact.

This theory occupies a central place in the social and moral works
of Plato (u27-3u7 B.C.) and Aristotle (384-322 B.C.) It is fundamental
to the thought of the Stoics, Cicero (lOB-HS B.C.) and Marcus Aurelius
(121-180 A.D.) It permeates the sacred writings of the Jewish peeple, a
source frequently overlooked by scholars since the eighteenth century.6
It is found in the writings of St. Paul and such Church Fathers as
Ambrose (SAD-397), Jerome (soc-420), Augustine (asu—uso), and Gregory I
(540-50u). Natural law reached its apogee in the writings of Aquinas
(1225-1271;), Vittoria (lino—1546), and Suarez (1548-1617), and remained

Vital, though not as influential through the works of the Anglican

 

 

 

 

theologian

Thomas Pair

confused a:

Saxon thong

Locke (1633

When

there remai:
mate‘PhYsioaJ
of God. Hhi
it must to j
511d theologi
distorts bot;

John Wild pm

 

19

theologian Richard Hooker (1553-1600), Hugo Grotius (lSSS-lfifls), and
Thomas Paine (1737—1809). Through these later years, the theory became
confused and confounded in European and to a lesser extent in Anglo-
Saxon thought due to the impact of Thomas Hobbes (1588-1679) and John
Locke (1633-1704).

Where there is not almost total ignorance of natural law today,
there remains such misunderstanding that even a standard reference book such
as Hastings Encyclgpedia of Religion and Ethics identifies it with a
metaphysical or theological theory of natural order imposed by the command
of God. While it is true that the theory grows out of a metaphysic, as
it must to justify its claim of radical empirical methodology, religious
and theological questions are peripheral issues, and such a definition
distorts both the structure and the history of natural law theory.

John Wild puts it well when he comments that,

...the basic issue between the defenders of natural

law and its opponents has never been that of theism

versus non-theism. This is a peripheral metaphysical

issue. The basic issue concerns the nature of moral

norms. Are they grounded in something which exists

independently of human interest and opinion, or are

they man-made? The philosophers of natural law are

moral realists. They hold that certain moral norms are

_grounded on nature, not merely on human decree.

It is a premise of this study that no lasting and satisfactory
results are possible in any attempt to cope with the complex problems of
freedom of speech of the press in the United States without something
more than a passing acquaintance with the natural law environment of the

Declaration of Independence, the Constitution and the First Amendment.

"The American Revolution, as it ran its course from l76u to l776-from the

 

 

first begi
and the or
doctrines
Ana
have had u;
were the in
Bvaoton (d.
contemporar
kind of syn
England. I;
°°ntPibuti01
the %
Classical at
the mainstm

PPeceded the

 

20

first beginnings of resistance down to the Declaration of Independence
and the creation of new colonial constitutions — was inspired by the
doctrines of natural law."8

Apart from whatever influence the later Scholastics may or may not
haVe had upon the Founding Fathers, it is all but undeniable that they
were the immediate heirs of the British Common Law tradition. Henry de
Bracton (d. 1268), who seems not to have been aware of the work of his
contemporary, Thomas Aquinas, used natural law to achieve much the same
kind of synthesis in his compilation of the civil and common law of
England. In part he inherited the natural law thinking of his legal
contributions from Canon Law which grew out of Roman law in the form of
the Corpus iuris civilis, and Gratian's Decretum. This contact with the
classical authors of civil and canon law would put Bracton directly in
the mainstream of classical-Christian natural law that immediately
preceded the efforts and achievements of the early and late scholastics.
His De legibus et consuetudinibus angliae (1567-1569) has been called
"the crown and flower of English medieval jurisprudence, which had no
competitor in literary style or completeness of treatment till Blackstone
composed his Commentaries five centuries later."9

Richard O'Sullivan, in the Grotius Society Transactions (1945) has

 

indicated the continuity from Bracton's time of the natural law tradition
in English common law:

The validity of a system of natural law and of
essential human rights was taught, and even taken
for granted, by all the great common law lawyers from
Bracton, Fortescue and Littleton, through Thomas More
and Christopher St. Germain, to Coke and on to Holt.
For all these men, law is founded on ethics...This con-
ception of the law of nature or of reason...was taught

 

Wha‘
applied in
P°sition w}
Hill must a
being, The
Aquinas def
rational en
la"! "ma 1
”hired by
$de of the
and Walkman
mammal la"

Howev
Nalistic tn
and claiming
Experienced 1

It "Or
the tradition
long oomPlete
of "ill and 1)
Maintain t
mind a ki;

The Pod” 0f (

21

at the Inns of Court in the fifteenth and sixteenth

and seventeenth centuries when the Inns of Court were

a truly legal university. The tradition survived into
the eighteenth and nineteigth centuries and is not absent
in the twentieth century.
What then is natural law, as this theory will be exposed and

applied in this study? Maritain defines it as "...an order or a dis-

position which human reason can discover and according to which the human

will must act in order to attune itself to the necessary ends of the human
being. The unwritten law, or natural law, is nothing more than that."11
Aquinas defines it as "...the participation of the eternal law in the
rational creature."12 John Wild offers as his definition of natural moral

law, "...a universal pattern of action, applicable to all men everywhere,

required by human nature itself for its completion."13 Because Wild's

study of the subject seems more compatible with the modern mind, his definition
and treatment will be more constantly referred to in the analysis of
natural law that will follow this historical examination of the theory.
However it may be defined, the theory of natural law grew up in the
realistic tradition of philosophy, radically empirical in its methodology,
and claiming to derive all of its basic concepts from the observation of
experienced facts.14
It would be both naive and historically inaccurate to assume that
the tradition of governance and law of reason at any period existed for
long completely unchallenged by the tradition of positivism and the law
of will and power. It would likewise be an oversimplification of the case
to maintain that order and rights discovered by reason by that fact
received a kind of immunity from the necessity of protection by might.

The power of enforcement and protection does not constitute the foundation,

 

meaning, 0
itself as '
it. This .'
not its den
defend its
to destroy

Hain
relevant to

...t}
the :-
The :
of u
the 5
com:
main
seek
uphoi

Befor

 

 

22

meaning, or nature of rights and the law of reason, but rather offers
itself as the defender of a belief against those forces who would destroy
it. This is one way of saying that the bombs of the United States are
not its democracy but are very real symbols of American determination to
defend its philosophy of government against those who would employ force
to destroy it.

Haines writing in 193015 quotes Roscoe Pound on a point both
relevant to the present time and to the present study as follows:

...the cycle is complete. We are back to the state as

the unchallengeable authority behind legal precepts.

The state takes the place of Jehovah handing the tablets

of the law to Moses, or Manu dictating the sacred law, or

the Sun-god handing the code to Hammurabi. Law is law by

convention and enactment - the proposition, plausibly

maintained by sophists, which led Greek philosophers to

seek some basis that made a stronger appeal to men to

uphold legal order and the security of social institutions.

Before the time of Socrates, Plato and Aristotle, the Epicureans,
the first legal positivists, taught a sensistic epistemology that left
no room for metaphysics, insisted that it could not be certain that
anything could be objectively and naturally right. Utility and pleasure
became for these philosophers the sole principles of ethics and law.
Their proposition that justice exists only in agreements to prevent mutual
injuries would again appear in history with the very similar propositions
Of Hobbes and Locke.

After the time of the three intellectual giants of Greek philosophy,
the Skeptics, the positivists of their day, taught that the senses do

n0t convey true knowledge but only illusion, and even reason itself does

not guarantee the truth and certainty of knowledge. Consequently, if

truth can
attainable
are arbitr
positivist
To 1

and the rip
311d perhaps
and then to
“P the five
JI-iiihilosop
1. if
suPPOI‘t one
Structupe w]
3- This Stm
”'5 3180 com
with”: dist
Pattern. Th
The n;

C1035 to the
Poetic gauge}
tradition in
contemporary
It See
doubt that Je

Pairiek Henry

23

truth can be discovered by neither the senses nor by reason, it is un-
attainable. Thus, all law, whether of art, speech, morality or right,
are arbitrary.- So have spoken Brandeis, Holmes, Vinson, and the legal
positivists of the contemporary period.

To understand the issues involved in the problem of information
and the rights of free speech and free press, then, it is both helpful
and perhaps necessary to place these first in their historical perspective
and then to analyze them as Wild has so well succeeded in doing as he set
up the five basic doctrines of moral realism against opposing positions
' in philosophy, ethics, and law.

1. The world is an order of divergent tendencies which on the whole
support one another. 2. Each individual entity is marked by an essential
structure which it shares in common with other members of the species.

3. This structure determines certain basic existential tendencies that
are also common to the species. u. If these tendencies are to be realiZed
without distortion and frustration, they must follow a general dynamic
pattern. This pattern is what is meant by natural law.16

The natural law philosophy of the Founding Fathers stands rather
close to the geographical center of this thesis. It is, in more than a
poetic sense, a bridge between the several currents of natural law
tradition in Western thought and the basic philosophical tenets of
contemporary American legal and political theory.

It seems neither necessary nor possible to show beyond a reasonable
doubt that Jefferson, Wilson, Hamilton, Madison, Jay, Otis, Franklin,

Patrick Henry, Samuel, and John Adams, to mention a significant few,

 

 

held to and
theory of 11
these men a
subscribe t1
philosophy.
Up the simi.‘
the Founding
at greater 1
Sources of A
Natur
in EUPOpe in
Shifted, in
OPiented sue
the efforts «
this brief, <
“Waders:
manner with s
of “eminent
la" itself,
The th
England Settl
the problems
the earlieSt .
hence worthy :

Jen; many had

24

held to and expressed with a clear consistency a specific, detailed
theory of natural law.. What is significant to the present study is that
these men and their generation in the American Republic did substantially
subscribe to natural or 'higher law' as a basis for the then new political
philosophy. Before proceeding to a selection of citations that will point
up the similarities and dissimilarities of natural law positions among

the Founding Fathers it may be appropriate to discuss briefly here and

at greater length later, as need indicates, several of the immediate
sources of American theories of natural law.

Natural law thinking which had become to a large extent secularized
in Europe in the years immediately fellowing the Protestant Reformation
shifted, in the North American colonies, back again to a theologically
oriented structure of law. This was largely, if not entirely, due to
the efforts of the Puritan.clergy of New England. As Wright explains
this brief, one generation, period it was a time in which was developed
a considerable body of political writing that dealt in a philosophical
manner with such traditional questions of politics as the nature of functions
Of governments, the relation of liberty to authority, and the nature of
law itself.

The thought and preoccupations of the leaders of the early New
England settlements was primarily of a religious character. Since, however,
the problems of religion were almost invariably interwoven with politics,
the earliest Americans considered politics a handmaiden of religion and
hence worthy of serious discussion. Most of these leaders were educated

men; many had trained at Emmanuel College, Cambridge, and a few came out

.I.

 

of Oxford.
the place
to Cambrid
all contra]
clearly am
founding of
At t
was that of
Scriptmes
inferior ag
understandil
This
Mn Cotton,
than Wenty
Of the State

aSSepted “it

25

of Oxford. The circumstances, then, of their religious convictions,

the place of their training, (a hotbed of Puritanism, as Wright refers

to Cambridge), the motives of the first groups in leaving their homeland,
all contributed to the foundation of political thought that would be more
clearly and consistently articulated more than a century later in the
founding of the new republic.

At this period, it was generally accepted that the only true law
was that of God's making, and this law was to be found in the Sacred
Scriptures as interpreted by the clergy. All other laws were transitory,
inferior agreements entered into by human beings with limited human
understanding.

This identification of law with Scripture was clearly expounded by
John Cotton, one of the most influential men in Massachusetts Bay for more
than twenty years. Although Cotton expressly advocated that the government
of the state and the government of the church not be confounded he
asserted with considerable force that theocracy was the best form of
government for both.17 To this end, Cotton cited with approval the
statement of William Perkins to the effect that the "scriptures of God
doe conteyne a short upoluposis, or platforms, not onely of theology, but
also of other sacred sciences, (as he calleth them) attendants, and hand-
maids thereunto, which he maketh ethicks, eoconomicks, politicks, church-
.government, prophecy, academy."l8

In the year 1636, Cotton proposed a code of law for New England that
demonstrates his ideas of human laws and the need to base them on inter-
Pretations of the Scriptures. Among other points he stated that the law

0f inheritance by which properties pass to the next of kin is a "Law

 

 

 

of Nature
punishmem
leaving H
was a law
Ano
thought in
Christian (
Jesus Chris
American pc
with each s
8°Vemment,
thesé laws 1
"right cont:
"M of God
"W1 action
not fleede d.
Swipme an
°f 60:13:19
This 1
John Winthrop
exalusimy i
the 3110ng
Hilton, Ema
phil°s°Phers ‘

brief theitme:

 

 

 

26

of Nature, delivered by God." Throughout his sections on crime and
punishment he provided Biblical citations as his source of authority,
leaving little room for doubt that the natural law of which he spoke
was a law of nature given by God.

Another figure of this period who followed much the same line of
thought in political philosophy was John Eliot.‘ His position in "The
Christian Commonwealth: or, The Civil Policy of the Rising Kingdom of
Jesus Christ" (1659) would cast civil government in the mold of the
American political party, the lowest leaders being elected by the populace,
with each successive level of government being elected by their peers in
government. The highest rank would then interpret the laws of God and
these laws would be final and binding on all within the political society.
Wright continues, "For be (John Eliot) repeats his belief that the 'written
Word of God is the perfect System or Frame of Laws, to guide all the
Moral actions of man, either towards God or man.’ Human legislation is
not needed. The civil rulers should be judges, who, with the aid of
Scripture and good conscience, apply to every cause the appropriate law
of God."19

This first generation of political leaders, with the exception of
John Winthrop, Puritan ministers, drew their political philosophy almost
exclusively from experience measured by the Bible. A later generation in
the following century would draw upon Aristotle, Cicero, Locke, Pufendorf,
Milton, Burlamaqui, Montesquieu, Blackstone and numerous other political
philosophers of both the 17th and 18th centuries. Before passing on to a

brief treatment of this period, it might be well in passing to note the

 

 

contributi
He held thi
civil, the:
of rules f<
he remarks
0f us, whic
causes by t
skill." Th
The details
legislature
°f the gem
Govenment :‘
This
acoflfl)ina’cic
of Political
mammal law
stabilizing
SOHIe 1
Possession 0:
without Whic}
given °f the
this kind m
peculiar to t
the discwery

it this °°llnt

27

contribution of Winthrop to the political structure of American thought.
He held that although the laws of God are basic in matters both sacral and
civil, they are not sufficient in themselves to constitute a complete code

of rules for civil governance. In his "Speech on Liberty and Authority"20

he remarks that "The covenant between you and us is the oath you have taken
of us, which is to this purpose, that we shall govern you and judge your
causes by the rules of God's laws and our own, according to our best
skill." The basic or fundamental laws, then, are given to man by God.
The details, however, must be worked out by the judge, the jury, and the
legislature. As long as the general rule is observed and the best skill
of the governors employed in "deductions to particular cases...the
Government is regular 8 not Arbitrarye."

This kind of thinking to be found again in the Founding Fathers,
a combination of Faith, reason, and experience, is essential to the fabric
of political thought out of which the First Amendment developed, the
natural law environment that Huddon asserts has been much neglected as a
stabilizing influence in the interpretation of the Amendment.21

Some knowledge of this early American thought must be in the
possession of one who would understand what the American government is,
without which frame of reference little or no intelligible account can be
liven of the political and social structure of this country. Ignorance of
this kind would make all but impossible a discovery of the general ethic
Peculiar to the American contempory scene, and consequently impossible
the discovery of an ethic peculiar to the media of mass communication

in this country.

The
upon early
law theory
current can
anus
this period
(1625) of H
and Burlama
EngliSh tI‘aJ
agl‘eemeut d;
of these is
heat of law.
of Fight Pea
with the rat
PU-‘sefldorf St
mhfimfi,
SOciety.

Accorc
BHPIEHIaquits
°f helium

flabby. His

My
alone :
t0 the
in Via
388%:
by God

 

 

28

The above, then, is a sampling of the strong religious influence
upon early American political thought, a rather primitive form of natural
law theory, as often implicit as explicit. Another, and perhaps stronger
current came in from the Continental jurists and political philosophers
of the 17th and 18th centuries. Three of the most widely read works of
this period on the subject of natural law were the De Jure Belli ac Pacis'
(1625) of Hugo Grotius, Pufendorf's De Jure Naturae et Gentium (1672)
and Burlamaqui‘s Principes du droit naturel (1748) which appeared in
English translation in 1752. In all three of these works there is a basic
agreement despite variance in particulars, and one of the more general
of these is a shift away from a recourse to the Scriptures in the establish-
ment of law. Grotius, for example, defines natural law as "the dictate
of right reason, indicating that any act from its agreement or disagreement
with the rational nature, has in it- moral turpitude or moral necessity."22
Pufendorf states much the same thing as he holds that natural law is the
rule of right reason determining what is right and what is wrong in human
society.

According to Wright in his American Interpretations of Natural Law23,
Burlamaqui's synthesis of the natural law school was one of the most popular
of political treatises among Americans in the second half of the eighteenth
century. His general point of view, as quoted from Wright, is as fellows:

My design is to enquire into those rules which nature

alone prescribes to man, in order to conduct him safely

to the end, which every one has, and indeed ought to have,

in view, namely, true and solid happiness. The system or

assemblage of these rules considered as so many laws imposed
by God on man, is generally distinguished by the name of

 

 

 

Hat
pm
the
as
firi
acquainted
Hamilton's
readers, "1
Iwould rec
and Burlama
“0311 heavil
pufendor‘f,
A th
developed 5.]
the New Eng:
mentiOned at
theoristsfls
Ppminent’ W
Political th
lamps of f

1

29

Natural Law. This science includes the most important

principles of morality, jurisprudence, and politics,

that is, whatever is most interesting in respect as well to man

as to society.

Wright gives ample evidence that the Founding Fathers were thoroughly
acquainted with these Continental writers, including a citation from
Hamilton's pamphlet, "The Farmer Refuted" (1775) in which he urges his
readers, "Apply yourself without delay to the study of the law of nature,
I would recommend to your perusal Grotius, Pufendorf, Locke, Hontesquieu,
and Burlamaqui."2u James Otis, in his pamphlet, "Vindication," draws
most heavily upon Locke, but often quotes and refers to Vattel, Grotius,
Pufendorf, Rousseau, Coke, and the Bible, in addition to other sources.

A third current of influence on the natural law theory as it was
developed in early America, perhaps more important than the writings of
the New England clergy of the first generation and the Continental writers
mentioned above, was the thought of the English lawyers and political

25

theorists. Among the lawyers, the figures of Coke and Blackstone were

prominent, while Locke was probably the most influential of the English
political theorists. Until the time of the younger generation of American
lawyers of the Revolutionary period, Coke-Lyttleton was ‘the universal

,26

lawbook of students. This text was supplanted in mid-eighteenth century

America by the Commentaries of Sir William Blackstone, the apostle to

 

America of the Hobbesian gOSpel of legislative sovereignty.

Through Coke, American theory of natural law traced back to the
traditional Graeco-Roman-Medieval doctrine via Sir John Fortescue's
Qg_Laudibus Legum Angli§g_(1n praise of the laws of England) to Henry de

Bracton in the thirteenth century. This tradition became modified with

 

the grafti
corollary
America re
power, whe
Thus, one u
early Amer;
It I
from the on
Which six (
afld influe:
development
all Web so
hands of th
Hugo
”putable n;
I‘afionalis'c
%(
"What We hat
should Cones
that there j
(h the Other
comillet, aut
new law,
1a": and he

Peas,“ as e

inthe Same :

30

the grafting on of Locke's doctrine of the Social Contract and its
corollary notion of the State of Nature. In Coke and Locke,.then,
America received, for the most part, cautions and safeguards against
power, whereas in Blackstone and Hobbes the claims of power are exalted.
Thus, one of several apparent contradictions got woven into the fabric of
early American political philosophy.

It may be convenient at this point to attempt a sampling statement
from the works of the fOur men indicated above, plus Grotius and Pufendorf
which six can rather safely be claimed as being among the most important
and influential sources, apart from the early New England clergy, in the
development of natural law theory in America. Then, it will be shown that
all such sources gradually took on a unique American coloration in the
hands of the Founding Fathers.

Hugo Grotius (1583-l6u5) may mark, in the estimation of several
reputable natural law scholars, a transition from the metaphysical to the
rationalist natural law. A famous passage from the Degjure Belli ac pacis
libri tres quoted in translation below makes a case for this position.
"What we have been saying would have a degree of validity even if we
should concede that which cannot be conceded without the utmost wickedness,
that there is no God, or that the affairs of men are of no concern to him."

On the Other hand, according to Rommen27

, Grotius did not profess the implied
complete autonomy of human reason as the sole and proximate source of the
natural law. In fact, he considered God to be the highest source of this
law, and be regarded the Sacred Scriptures to be on an equal footing with
reason as a principle of knowledge. Furthermore, he understood recta.ratio

——_—

in the same sense as Suarez and the great Spaniards of the period of

 

 

Late Scho.
The

The
rea

has
and
or
Rom
is nothing
Suarez' in
which, in ;
”ill 0f Go<
imPontc‘unt g
(The Classi
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Sch(’laS‘Cics
and %
was not as 1

law.

The I
Sidepation c
the Dl‘esent
law theopy’

individmis

31

Late Scholasticism.

The famous definition runs as follows:

The law of nature (ius naturale) is a dictate of right

reason which points out that an act, according as it is

or is not in conformity with rational (and sociaIJnature,

has in it a quality of moral baseness or moral necessity;

and that, in consequence, such an act iszgither forbidden

or enjoyed by the author of nature, God.

Rommen continues from this point with the comment that the above
is nothing more than Vasquez' doctrine of lex indicans combined with
Suarez' intention to bring out the character of the lex naturalis as $25,
which, in its coming into force or in its existence, is derived from the
will of God. The inclusion by Grotius of 'social' in his definition, an
important qualifier is strangely missing in Kelsey's English translation
(The Classics of International Law, ed. J. B. Scott, OxfOrd-London, 1925)
and the Latin edition (1646) on which this translation is based. This
adjective is vital because it occurs in the same manner among the Late
Scholastics for the purpose of distinguishing and contrasting lex naturalis
and ius naturals. In Grotius' thought the socialitas of rational nature
was not as yet, as it was to be in Pufendorf, the only source of natural
law.

The note of sociality is especially significant today in any con-
sideration of an ethics of mass communication in view of the need to base
the present social responsibility theory of the press in framework of natural

law theory, without falling into the trap set by the.militaristic

individualism of natural rights theory, a considerably different animal.

GPO
emphasis i
on faith a
denied the

Joh:
tradition <
seens impo1
Significanc
It is this
frOm the na
heavy empha
kind of thi:
0f revolutiu
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the Many Who
as Hiiues Cc
(and not the
enthusiasm f
hence. "To
destinies of
rights do,“
of anarchy. n

mummy 01
he United S1

Jeffeps°n dnc

 

32

Grotius then is seen to be important in shifting as he does the
emphasis in natural law theory to reason and away from a concentration
on faith and belief. This does not say, as indicated above, that he
denied the proposition that God was the ultimate source of natural law.

John Wild places Grotius squarely in the realistic natural law
tradition of the West. Before, however, exploring Wild's contention it
seems important for clarification to return for a moment to the critical
significance of 'social' in Grotius' definition in the section preceding.
It is this note that distinguishes natural law in the realistic tradition
from the natural rights variety of the 17th and 18the centuries, with its
heavy emphasis on the individual and his rights as_against society. This
kind of thinking, as will be shown below, develoPed historically in periods
of revolution against existing orders, and was based philosophically on
an artificial and abstract notion of a state of nature that preceded
somehow man's ordered community life; thus Locke, Hobbes, Pufendorf and
the many who followed this line of thinking in natural law theory. But,
as Haines considers the question, the whole concept of natural rights
(and not traditional natural law) came into disrepute and waned as
enthusiasm for political radicalism went out of fashion in America and
France. "To the conservative leaders who took charge of the political
destinies of European nations after the French Revolution the inalienable
rights doctrine was 'an invitation to insurrection and a persistent cause

'"29 And when the reaction from the practices and the political

of anarchy.
Philosophy of the American and French Revolutions gained ascendancy in
the United States one of the chief objectives was to discredit Thomas

Jefferson and the tenets of the Declaration of Independence. Both in

 

politics a
to welcome
reference

definition
social tem
arbiter of
rather it n
other cause
teaching an
in this pap

media in co

33

politics and religion, conservatismwas in control, and men were diaposed

to welcome theories which made for social stability."30 Again with a

reference back to Grotius and his insertion of the word 'social' in his
definition of natural law, eighteenth century natural law developed anti-
social tendencies by making the individual conscience the ultimate
arbiter of political and legal obligations. This was no mere accident;
rather it was a natural consequence of the Protestant Reformation (among
other.causes) in its break from the establishment of Rome, a move from
teaching authority to individual interpretation. The advance proposed

in this paper towardswthe discovery of an ethic for the communications
media in contempory American society will not be seen then as an arbitrary
return to an older philosophical position, but rather as a correction and
adjustment necessary in a period of societal emphasis Cf the individual
emphasis that came to the fore in periods of revolt.

To return now to John Wild on Grotius; the Dutch philosopher and
legalist held "that individual animals, including men, are marked by
tendencies which lead not only to their own preservation but also to
the welfare of others. In man this social urge is spontaneously
clarified and strengthened by his intrinsic power of rational insight."31

Grotius as quoted by Wild holds that man's tendencies are necessarily
determined by the essential nature and the existence of each entity. "For
as the existence of things after they are brought into being, and the
essential nature by which they are, do not depend on anything else, so it
is with the properties and tendencies which necessarily follow this

existence."32 This kind of thinking will be shown to be critical to the

 

d

 

 

netaphysi
of the sa
be change
four; and
to be evil
position c
forth in E
positions
0f reason
Sme as d.
fidence of
Grot

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that are oi
and GXaCtly
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Suc
Finally, fI‘c
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3L!

metaphysical basis of the present thesis, as is the following citation
of the same Grotius. "This natural law is so immutable that it cannot
be changed by God Himself...Thus God cannot make twice two not to be
four; and in like manner He cannot make what is intrinsically evil not
to be evilJ' What has just been noted is in direct opposition to the Occam
position of the absolute authority of the will of God which came bursting
forth in Hobbes in the form of the absolute will of the monarch. These
positions of Occam and Hobbes are ultimately a denial of ideas, a denial
of reason and a denial of a discoverable content in natural law that will
serve as directives of moral and ethical actions which can win the con-
fidence of man.

Grotius offers two ways of demonstrating that something is a law
of nature. "This may be proved a posteriori with a high degree of
probability if it is found that all races and nations, or at least all
that are civilized, believe it to be morally binding. It may be strictly
and exactly proved only in the light of a clear and adequate conception of
human nature and its essential tendencies. A mode of action which is
necessarily required for the realization of such tendencies is a law of
nature. Such principles lie at the root of individual and social ethics."33
Finally, from the same source: "Co—operative activity which fulfils the nature
Of man is good. That which frustrates or obstructs such activities is
unjust and evil. Thus, to take from another for the sake of one's own
convenience is against nature...because if this were ordinarily done the

common life of men would be impossible."

Rh
for the p]
this simil
of the tin
extrinsic
than Groti
each other
Pufendorf'

Hitl
differed f1

ways.

 

35

Whether there was in fact a direct influence that would account
for the philosophical similarity between Pufendorf, and Locke, or whether
this similarity resulted from or was a product of the political atmosphere
of the time, the two men taken together can be shown from intrinsic and
extrinsic evidence to have had more influence in the American colonies
than Grotius. They are more or less contemporary, born within a year of
each other, and Locke wrote his Second Treatise about three years before
Pufendorf's death when the latter was near his sixtieth birthday.

With Thomasius, Pufendorf led the new school of natural law that
differed from the natural law theory of the Scholastics in three decisive
ways.

The first is the individualistic trait manifesting itself
in the predominance of the doctrine of the state of nature
as the proper place in which to find the natural law. The
second is the nominalist attitude which found expression
in the separation of eternal law and natural moral law, of
God's essence and existence, of morality and law. The third
is the resultant doctrine of the autonomy of human reason
which, in conjunction with the nationalism of this school,
led straight to an extravagance of syllogistic reasoning, of
deductively construed systems that served to regulate all
legal institutions down to the minutest detail: the civil law
governing debts, property, the family, and inheritances as well
as constitutional and international law. And, in contrast with
the imperfect historical law, these legal systems possessed the
inestimable megit and value of emanating from the pure rational
nature of man.

Even granting what is most improbable that this sort of thing might
work in a world that was static and reducible to palpable substance, it
certainly finds little to recommend it in a world of constant flux, and
tendency.

Although, as Wild notes, most reference works suggest that the

doctrine of natural law originated with the Stoics, or that its

 

 

antecedem
in Stoicis
Although t
Plato and
took pride
to that of
nature' in
it was esp:
and here t1
the Precedi
Rega
mOOIICJ'le h
(m. 121—1
t° I\‘ecoucilt
their Inater:
thud tOHam
Ilinden]. P:
latter Mpc
With
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for understal

in thQSQ pag‘

36

antecedents are vague, the modern idea that natural law is best expressed
in Stoicism can be traced back to Samuel Pufendorf, the German codifier.
Although this scholar did not deny that the theory could be found in
Plato and Aristotle, he felt that the Stoic version was far superior and
took pride in the fact that his teaching was, as he thought, very close

to that of the Stoics.35

This view seems to be supported by Hastings
Encyclopedia of Religign and Ethics which states that, "The term 'law of
nature' in its modern acceptation is seldom used by Plato and Aristotle;
it was especially among the Stoics that it took a more prominent place,
and here the idea of divine laws led to that of natural laws." The
Catholic Encyclopgdia seems to make the same mistake, by omission, as
the preceding.

Regarding Pufendorf's claim, it would be more than difficult to
reconcile his philosophy of natural law with that of Marcus Aurelius
(A.D. 121-180) and the later Stoics, and a somewhat less difficult task
to reconcile himself with the early Stoics (HOG-200 B.C.) in spite of
their materialistic adaptation of Plato and Aristotle, and the resultant
trend towards a determinism that would be hard to reconcile with moral
freedom. Presumably Baron Pufendorf did not associate himself with the
latter component of Stoic philosophy.

With Locke, Hobbes, and Rousseau, Pufendorf holds that man is not
essentially social. In his concept of man's nature, he did not take man
in his taleologically determined totality of human nature. Thus, as was
noted on the first page of these notes he does not start with the basis
for understanding modern man, or man in any period, a concept expressed

in these pages as 'total man.’

 

Ma
What had I
philosophj
facts, am
in the new
like essen
an isolate
empirical
°f a basic
Pufendorf,
As 1
State of Hi
find applic
3° far as j
is stl”alight
SuPPahis’cor
In t
for One Pup.
Thus, for P1
phi1°30phy ‘
dignity and

His 1

37

Man for Pufendorf, then, is not an animal sociale but an animal

 

sociabile who should become social because this is to man's advantage.
What had been in the traditional realistic currents of natural law
philosophy signs of man's internal and natural tendencies, observed as
facts, and then related to a development of the idea of nature, became
in the newer natural law mere capability or impulse unrelated to anything
like essence or nature. Such a position, of course, presupposes man as
an isolated being in a state of nature, a position for which there is no
empirical evidence whatsoever, and which amounts to a gratuitous denial
of a basically empirical, realistic philos0phy that preceded the work of
Pufendorf.

As Rommen comments, Pufendorf describes the procedural law in the
state of nature, and he indicates the norms of distraint which must
find application in the state. Thus in reality the entire positive law,
so far as it has to do with the civil law and its procedure in lawsuits,
is straightway transformed into natural law. It logically becomes
suprahistorical or prehistorical and in itself is unalterable."3$

In this frame of reference, public officials enact positive law
for one purpose only, in order that the natural law may be observed.
Thus, for Pufendorf, every law became natural law as opposed to the older
philosophy which conceded to very few basic norms and principles the
dignity and force of natural law.

His theory of international law puts into focus several of the
consequences of his basic position. Princes and states live in the‘
status naturalis, since, as Rommen put it, "no status adventicius, no

giyitas maxima, as yet exists. Hence international law consists merely

 

 

of natural
is no we
and the La
the path wi
Whe:
theistic bi
Thomas Hob}
the traditi
outcome of
m 01‘
Offered not
t0 Which tt.
aMitional
taught it,
Sidel‘able 1
The same is
all other In
What
"city of (30
and eighteej
his W

DI‘oit N
\a.um

Na .
% (.
the America}
national C01

IOgeth 91‘ Pej

 

38

of natural law. There is no positive international law because there
is no sovereign authority. Measured by the contributions of Grotius
and the Late Scholastics, this View makes a great stride backward along
the path which Hobbes had taken.37

Whereas Grotius shifted the accent in natural law theory from a
theistic base to a secular one, a shift furthered by Pufendorf,
Thomas Hobbes (1588-1679) moved still farther away from the current of
the tradition to a position that A. P. d'Entreves labels "...the extreme
outcome of rationalism and individualism as it were the reductio ad
absurdum of both."38 The same author comments that these accent shifts
offered nothing new to the development of the theory except the extremes
to which they went. There was nothing new in the assertion that man was
a rational being. The Stoics proposed this, the Fathers of the Church
taught it, and the Scholastics of the early and late periods went to con—
siderable lengths to expound and clarify the meaning of man's rationality.3
The same is true of the proposition that man is born free and equal to
all other men.

What the Schoolmen had been at great pains to reconcile, the
"city of God and the city of man," the foremost writers of the seventeenth
and eighteenth centuries sharply divided. This was true of Pufendorf in
his De Jure Naturae et Gentium (1672), of Burlamaqui in his Principes du
Droit Natural (17u7), and of Vattel's Droit des eggs ou Principes de la_£gi
Naturelle (1758), all of which writings were well known to the leaders of
the American Revolution. Natural law for these writers was a purely
rational construction, although, as d'Entreves notes, they did not al-

together refuse to pay homage to some remote notion of God. Of this period,

 

9

 

 

C. Becker
contact w:
Nature's (
factor was
What Jeffe
under "the
ideas for
has left a
The
reasons: t<
account for
insofar as
several Sig
Speech and
peas011al)ly
H°bbes' inf
sovereignty
“New an
individual :
legislatures
Hobbs
the definitj
abmak that
In th

liVed in a1

39

C. Becker remarked that God was increasingly withdrawn from immediate
contact with men. The laws of nature were to Jefferson the Laws of
Nature's God. The new value was the individual, and a new determining
factor was added to the political philosophy of the American Revolution.
What Jefferson called the "station" to which nations and men are entitled
under "the laws of Nature and of Nature's God" had become a pattern of
ideas for which it is difficult to find historical precedent, and which

has left an indelible mark on Western civilization.“0

The following treatment of Hobbes seems appropriate for several
reasons: to point up the extremes to which individualism can go, to
account for Hobbes' influence in American political theory, at least

“1, and to provide

insofar as he came into the colonies via Blackstone
several signs of caution against the surrendering of rights of free
speech and press to an increasingly powerful central government. A
reasonably substantial argument could be built both from the history of
Hobbes' influence as a factor in bringing the notion of legislative
sovereignty to the stockpile of American ideas, and from the strong
tendency among the American people for local autonomy, as well as
individual liberty, an autonomy that would make the several state

legislatures counterparts of British Parliament.“2

Hobbes uses natural law terms, but at bottom it was he who made
the definitive break with a theistically oriented natural law tradition;
a break that led him in fact to a denial of natural law.

In the state of nature that Hobbes formulated as a premise, man

lived in a lawless condition, in a state of chaos that was a struggle

 

 

of all ag.
liberty.
and libem
symbolic c
all laws 2
meaning of
but qualit
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Strauss no

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and
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been noted i

that the po

‘40

of all against all. In such a state there was no possibility of true
liberty. Man, according to Hobbes, discovered the way out in the"
Social Contract. Under terms of the contract, all would surrender rights
and liberties to the sovereign prince. This prince, either actual or
symbolic of any center of absolute power, became the de facto source of
all laws and rights. Behind traditional words it becomes clear in the
meaning of Hobbes that "laws of nature" are not laws at all; "they are
but qualities that dispose men to peace and Obedience."u3

That there are really critical differences between the traditional
classic theory of natural law and the natural rights theory of Hobbes,
Strauss notes in the preface to The Political Philosophy of Hobbes (1936).

...We must raise the more precise question whether there .

is not a difference of principle between the modern and the

traditional view of natural law. Such a difference does in

fact exist. Traditional natural law is primarily and.mainly

an objective 'rule and measure,‘ a binding order prior to,

and independent of, the human will, while modern natural law

is, or tends to be, primarily and mainly a series ofnarights,'
of subjective claims, originating in the human will.

Strauss points to the contrast between Hobbes' political theory
and that of Plato and Aristotle, a contrast that may also be discerned
without much difficulty "...if one compares the doctrines of Locke,
Montesquieu, and Rousseau with those of e.g., Hocker, Suarez, and
Grotius."n5 Hobbes, then, is important to an understanding of the
revolutionary rights concepts in early America because many of the
younger lawyers in the colonies knew him through Blackstone, as has
been noted above, and also because it can not be gratuitously assumed

that the political thought of Hobbes is not a component of contemporary

 

 

American
80!
appropria'
objection:
tradition
of natural
theory of
The
device amp
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“changeabli

aBili’Sis the

 

41

American political thought.

Some consideration of Hobbes' political philosophy seems
appropriate to the purposes of this thesis, because many of the modern
objections to natural law theory are in fact not objections to the
traditional theory of natural law but objections to the 'modern theory
of natural law' as d'Bntreves puts it, which is the same as revolutionary
theory of natural rights.

The social contract, keystone of natural rights theory, was a
device employed to explain the societal tendencies or needs of man once
the relationship between the nature of man and the nature of God had
been operatively dissolved. Given this break with the tradition of a
theistically oriented theory of natural law which founded the rights of
man in the law as it existed in the mind of God, some such device was
necessary to explain how and why man stepped from a state of nature to
a state ruled by human law.

Historically, the preoccupation of Hobbes with the individual
traces back to William of Occam (d. circa 1349). Occam extolled the
will as the supreme faculty, more noble than the intellect. For him, as
for Hobbes at a later date, there was no inherent connection between the
essence of God and the essence of man, apart from creation. (No analogy
of being). Consequently, there exists no unchangeable moral order,
unchangeable because it is grounded in the nature of things which is
unchangeable in the sense that this will be worked out in the metaphysical

analysis that follows.

 

 

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Rommen holds that for Occam, "Oughtness is without foundation
in reality, just as universals are merely vocal utterances and not mental

images of the necessary being of ideas of God."u6

In brief, the natural
moral law is positive law, the operation of the divine will; it has no
foundation in reality, in the essential nature of things.

When the human sovereign replaces God, as in Hobbes, the will of
the sovereign is law, and there is no other. Oughtness does not follow
from the nature or structure of things but from the mandate of God or
the human sovereign.

The consequences of this voluntaristic posture, coupled with an
arbitrary separation of fact and value, if generally accepted and lived
in this country, would make ethical conduct in the mass media a matter
of the individual conscience only (whether erroneous or not), or a matter
to be determined solely by civil law with the unacceptable implication
that the state is the final arbiter of the internal as well as the
external affairs of men. From a purely utilitarian point of view,
neither of these alternatives is satisfactory. If each must devise his
own rules, without direction of any kind, the social structure would
soon collapse. For the alternative, recourse to authority only rather
than to reason also is seldom a digestible answer for the curious Whys
of intelligent men. The evidence of experience indicates an escape
route from the apparent dilema...a law that is made up of discoverable
dynamic patterns of tendential beings that is at once Objective, and
capable of suitable interpretations by positive law.

If such a law as this were not Operative and discoverable, it is

extremely difficult to apprehend the possibility of any meaningful

 

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communication between science and the world it attempts to understand.

The confusion that Hobbes introduced into natural law thinking “7

with his state of nature construct stems in part from his fascination
with the evolving methods of physical science. This led him to attempt
to impose these more certain methods on the less certain data of his

social and political thought.”8

Mathematics had captured the imagination of many of the best minds
of the 16th and 17th centuries. Grotius had applied a kind of mathematical
method in his presentation of natural law. Descartes was a mathematician
turned philos0pher, and Spinosa, building on Hobbes, attempted to bring
religion and ethics into harmony with mathematical science.

It was unfortunate then, and to some extent it is unfortunate
today that mathematical method was not and is not limited to mathematics
in its primary work, and applied to the conclusions of other sciences
in its secondary function. The belief that natural law was a product of
private reason led men, intrigued by mathematics, to regard natural law
as a purely speculative science like mathematics, and not as a practical
science that deals with actual human affairs. The traditional method of
judging these affairs involved moral prudence rather than mathematical
logic. St. Thomas Aquinas had noted that to make a law fit every case was

impossible, and experience bears this out.1+9

Traditional natural law left considerable room for the almost
infinite variations of human activity, and could thus absorb the constantly

Changing conditions of civil society.

Cox
philosopht
political
century re

of

sch
pre
nit
frc
the
spi
tic

W01

wit

grc
abu
ind

In
his Positi
rejecting ‘
0f the sup}
because it

00m
L0Gke (163:
’ationalim

“Manon

The
meow of
in magi-mic
that had 811

phil°s°Phy.

 

44

Commenting on the effects that the speculative and rationalistic
philosophers of the 17th, 18th, and 19th centuries have had on Western
political systems, John Wu, a student of Holmes, and an eminent twentieth
century representative of traditional natural law, writes:

The modern speculative, rationalistic philosophies
of Natural Law are aberrations from the highroad of the
scholastic tradition...It is most regretable that
practically all of the seventeenth, eighteenth and
nineteenth century philosophers of Natural Law departed
from this great tradition. They proceded more geometrico;
they wove whole systems of socalled Natural Law just as a
spider would weave a net out of its own belly. To men-
tion a few, Hobbes, Spinoza, Locke, Pufendorf, Christian
Wolf, Thomasius, Burlamaqui, Kant, Hegel, and even Bentham
with his felicific calculus, all belong to the speculative
group. Many of the nineteenth century judges in America
abused the name of Na al Law by identifying it with their I
individualistic bias. 1

 

 

In one of the many ironies of natural law history, Hobbes established
his positivism on a kind of natural law that was infallibly mathematical,
rejecting the traditional natural law because it was not so. Later critics
of the supposed traditional natural law of Hobbes rejected it precisely
because it claimed mathematical certainty.51

Contrary to older and more recent estimations of scholars, John
Locke (1632-170H), at least the equal of Hobbes as a speculative and
rationalistic theorist, did not write his Two Treatises either as a
refutation of Hobbes or as a defense of the'Revolutiod'of 1688.

The purposes of the present thesis do not require a detailed
account of either question. Such correctives are presented here to help
in constructing as nearly accurate as possible a picture of the document
that had such a profound influence on the develoPment of American political

philosophy.

 

 

 

 

La
body thou
then, as
of Sir Ro;
with the l
is as an .'
although i
exaggerate
the politj
constituti

Reg
sllbS’tantia
made in 16

0f I
that the "E
Locke Uses
with his ow
that it is
the eXiSten

He d

when
Plat
out}
askel
Dr. 1
MN

ciliI
ethic

45

Laslett notes that..."When he (Locke) wrote Two Treatises, then,

 

Leviathan was an influence, a gravitational constant exercised by a large

. 52 '
bOdY though at a great distance. But, "We must describe Two Treatises,

 

then, as a deliberate and polemically effective refutation of the writings
of Sir Robert Pilmer...related only in the indirect way we have discussed
with the work of Hobbes. It was other things as well, of course, and it
is as an independent treatise on politics that it has had its influence,
although its connection with Hobbes has so often been distorted and
exaggerated. It was intended to affect, and it most decidedly did affect,
the political and constitutional beliefs of Englishmen who created the
constitution and the political habits under which we still live."53

Regarding the date of writing, Laslett makes an excellent case to
substantiate his claim that the total work excepting a few emendations
made in 1688 was written several years befbre the "Revolution."5n '

Of more interest to this section of the thesis is the Observation

that the "Essay has no room for natural law."55 In Two Treatises,

 

Locke uses language on the subject of natural law which seem inconsistent

with his own statements about innate ideas in the Eggngss Laslett notes

that it is always 'beside his present purpose' for Locke to demonstrate
the existence and content of natural law.57 The same author continues:

He did not do so in his Essay, even in the second edition
where the passage in the second book whichlytrell had com-
plained of was rewritten. He would not do so by bringing
out his early Essays on the Law_g§ Nature, which Tyrrell
asked him to dBfiin the course of their exchange. As

Dr. Von Leyden has shown, these earlier essays would not
have provided a doctrine of natural law capable of recon-
ciling the theory of knowledge in Locke's Essay witgethe .
ethical doctrine of that work and of Two Treatises.

figures
the reig
Pufendor‘
Pufendor:
position:
constitu1
he

seems to
August 30
that the ‘
That man:
Extravageu
and John I
the w
it. Adan:
As
the
Ind
and
met
Jeff
which he a d
new ideas 3
PPeSsed be 19

shifts in A:

Hearty LEe’ ‘

 

46

John Locke is important to this thesis as one of the great
figures of English political and literary history. His lifetime spanned
the reigns of Charles I and Queen Anne. He was born in the same year as
Pufendorf, Spinoza, and Leibnitz. He knew and praised the work of
Pufendorf, using many of the German's arguments, and reproduced his
positions, although the views of the two men were in such contrast on
constitutional matters.

Locke's influence on Jefferson and others of the Founding Fathers
seems to have been such that Jefferson in a letter to Madison dated
August 30, 182359 felt it necessary to mention Richard Henry Lee's charge
that the Declaration was a copy from Locke's Treatise of Government.

That natural law ideas were not, as incorporated in the Declaration,
extravagant improvisations is aflested to in letters of Timothy Pickering
and John Adams. Both of these men seemed surprised, fifty years after

the Declaration was adopted, to discover the acclaim and reverence accorded
it. Adams to Pickering on August 6, 1822:

As you justly observe, there is not an idea in it but

what had been hackneyed in Congress for two years before.

Indeed the essence of it is mmtained in a pamphlet voted

and printed by the Town of Boston before the first Congress

met, composed by James Otis.

Jefferson replied to these charges in the letter to Madison, in
which he added that "I did not consider it as a part of my charge to inVent
new ideas altogether, and to offer no sentiment which had ever been ex—
Pressed before." (Italics added for treatment below of subtle but critical
shifts in American formulations of natural law theory.) In a letter to

Henry Lee, Jr. Jefferson stated that he had not aimed at originality of

mmmW—“w
'2- 5

LT.

-mm- 3 -

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-+

 

principle
The %
All its a
Th

of "self-
the Ameni
investiga
not ident
the meter.
hold itse.
Ron

theory of
"a means c
juridical
Lislett in
Would indi
Slletc‘tIltia
as Med 0:
Alt}
himself Mr
kind"62, (m
S°°ial phi:

epiStemo 10g

natupe 0f 1;

Q7

principle or sentiment, nor had he copied from any particular writing.
The Declaration was intended to be "an expression of the American mind.
All its authority rests upon the harmonizing sentiments of the day."61

There is much to commend the argument that Jefferson's understanding
of "self-evident truths" entailed his interpretation of "an expression of
the American mind," and "the harmonizing sentiments of the day." Further
investigation may well reveal that there is an essential similarity, if
not identity, between these ideas and the concept of the public consensus,
the material with which good government works, both to discover and to
mold itself into an effective structural pattern of ethical human affairs.

Rommen along with several respectable scholars asserts that Locke's
theory of natural law as this was worked out in the Treatises served as
"a means of vindicating the "Revolution" of 1688-89 and of laying the
juridical foundations of bourgeois society." While it may be true, as
Laslett indicates, that Locke made several emendations in his work that
would indicate their being added during this period, the book had been
substantially completed some time befOre the year and the events of 1688,
as noted on page H4.

Although Locke held that man had an obligation not only to preserve
himself but ought also "as much as he can to preserve the rest of man-
kind"62, 610 source indicated for quote,) he was an individualist in his
social philosophy, as was Hobbes. Empiricist though he was in his
epistemology, he failed to accept the two equally essential notes of the

nature of man, his rationality and his sociality. Locke elected to choose

 

the firs
ethics ft
the right
believe i
In this,
matter of
this stat
directed
In
tracts be
mutually
°f nature
Symbol f0:
individua‘
Ba:
theory of
know the 1
the Third
“Future
are thus i
the gum“
no idefi of
Una

SkePtioism

'48

the first and to construct a substitute for the second. Neither law nor
ethics for Locke is based in an objective order of norms out of which
the rights of indivfiduals flow by intrinsic necessity. He did not

believe in what Wild refers to as an "inescapable tendential nature."63

In this, Locke was not true to his empiricist position, because it is a

matter of sense observation that all things are in a state of change. And

this state of change is not a change in any direction but a change that is

directed according to the structure of the being that experiences change.
In Locke's philosophy, order is not a given but a product of con-

tracts between individuals who are urged by self interest to enter into

mutually profitable contractual agreements. The traditional conception

of natural law thus becomes as Rommen puts it "...a rather nominalistic

symbol for a catalogue or bundle of individual rights that stem from

individual self-interest."6u
Basic to Locke's position in natural law theory is his subjectivistic

theory of knowledge that makes him very skeptical of man's capacity to

know the real nature and the inner constitution of natural entities. In

the Third Book of his §§§Ela he remarks that we can never know the real

structure of any natural substance but only its sensible effects, and

are thus in a less favorable situation than a countryman who sees only

the outward figure and motions of the famous clock at Strasburg, and has

no idea of the inner contrivance of that famous clock.65

Unaware of the consequences of his empirical epistemology and his

skepticism about metaphysics as a valid base for natural law theory,

 

Locke cor
comon se
IT
from it c
A]
17th phil
state as
but one i
kamm
0f certai
and to es
deVelop t:
At
nature, a:
SOCiety.

a“lockej

In
’ in en
com“Hts 1

Wm 0f 3

49

Locke contented himself with a belief in natural law "as a dictate of
common sense."66

This basic belief is in no way scientific. The system developed
from it can not and has not stood the test of time.

Although Locke adopted the "state of nature" proposition of many
17th philosophers, he did not, with Hobbes and Spinosa, portray this
state as savage and violent. It was a state of peace and good will,
but one in which man could not develop fully; for this he needed the state.
As a member of the state of nature, according to Locke, man is possessed
of certain inalienable rights among which are the rights to life, liberty,
and to estate or property. It then becomes the state to preserve and
develop these rights.

At some point or other man elects to emerge from the state of
nature, according to the theorists mentioned above, and elects to enter
society. When he does so, man gives up several of his natural powers
as Locke indicates in the following:

The first Power, viz, of doing whatever he thought fit

for the Preservation of himself, and the rest of Mankind,

he gives up to be regulated by Laws made by the Society,

so far forth as the preservation of himself, and the rest

of that Society shall require; which laws of the Society in
many things confine the liberty he had by the Law of nature.

67
In the following section of the same Treatise, Locke holds that
man, in entering society, also gives up the power of punishing which he

c0nverts into an engagement of his natural force to assist the executive

Power of society.

 

 

 

 

 

50

Among the many problems and inconsistencies in Locke is his
treatment of the concept of law. In his view, natural law in the

traditional classic sense of norms based on the essential needs of man
is not law at all. Locke uses the term law to apply only to arbitrary

decrees of a ruling power which are supported.by arbitrary sanctions.

It would be in vain for one intelligent being to set
a.rule to the actions of another, if he had it not in
his power to reward the compliance with, and punish de-
viation from his rule, by some good and evil, that is not
the natural product and consequence of the action itself.
For that, being a natural convenience or inconvenience, .
would operate of itself, with a law. This, if I mistake
not, is the true nature of all law, properly so called.

As Wild notes, what Locke calls "a natural convenience or

inconvenience” is what has been called the natural sanction of natural
law.

For Locke, natural law then is not law at all.

Any spontaneous
action implies liberty, and any law, by its nature, restricts liberty.

““18, in Locke, are law and liberty opposed.

It may be true that law
may put restraints on passing interests or pleasures, but it can be no

more than vicious or mistaken law, if it opposes the essential needs and

spontaneity of man.

It is of some interest to note with regard to Locke, his writings

and his influence, that although religious freedom, and freedom of ex-
pression were fundamental to his thinking as evidenced in his writings

on economics, toleration, and education, he said nothing of either in the
Two Treatises.

He seems, then, to have helped to bring about freedom of

the press without ever considering it within the context of political
rights .69

 

on the e1
theory.
I:
cc
E:
’n
th
ph
cc
nc
we
of
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in
st
th
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S°Phica1 s
and the an
e"Minded
common: a
anphaSis 0

51

Stanlis in his work, Edmund Burke and the Natural Law, comments
on the effects of the 'contributions' of Hobbes and Locke to natural law
theory.

In retrospect and summary there emerge certain basic facts '
concerning the fate of the Natural Law in eighteenth century
England. The fundamental change in the meaning of appeals to
'nature' is most evident in the revolutionary character of

the new doctrine of 'natural rights.‘ Under the influence of
physical science, the conscious attacks of Hobbes and the inept
compromises of Locke, traditional Natural Law as a system of
normative ethics centered in God's being and man's 'right reason'
was replaced by or confounded with a purely materialist view

of the universe and a hedonistic conception of individual 'natural
rights.‘ ...By employing the traditional language of 'nature'

in popularizing Hobbes' egocentric philosophy, Locke left
standing the shell of traditional Natural Law principles, with
their religious imperatives and idealistic connotations, but he

unwittingly destroyed the megaing which Natural Law had carried
for abnost twenty centuries.

 

Locke's empiricism, as Rommen notes (p. 111) contained in seminal

form the forces that would "destroy" the hold exercised by natural law
on the minds of men.

Locke's distrust in the ability of human reason was
only somewhat neutralized by his confidence in practical common sense.

One of the most devasting attacks on the classical concept of natural
law in modern times was mounted by David Hume, (1711-1778), the philo-
sophical skeptics and agnostics, Jeremy Benthan (l7u8—l832), the utilitarians,

and the antirationalists who followed the philosophy of traditionalism as

 

expounded by DeMaistre and DeBonald7l. All of these had one point in
common, a definite distrust of the ability of human reason in individual
men. It is more than likely that this was caused in part by the over-
emphasis on reason that was characterized by the Ethics of Baruch SpinOZa
(1632-1677) .

As indicated above, the rationalists conceived law as a

_._———-

body of
mthemat
T
practica
the prod
indivicm
points 0
that man
In a sim
made up i
the peep
delibepa‘
grows in
cePi'ible
and Perot
BI
t111th, a1
confr01ft:
Practica;
11“man be]
Itasca u
some actj
Vel“ifiab:
there is

not PUDej

 

52

body of deductions which human reason could construct according to
mathematical method.

The reaction to this rigid and logical process as applied to
practical human affairs was to conceive law as the effects of habits,

the product of the experienced utility of conventional behavior for
individualistic self-interest.

Hume, for example, very frequently
points out that reason is and ought to be the servant of the passions;

that man is ruled by passions, that reason does not control the passions.
in a similar vein the historical school of jurisprudence insists that law,
made up of time—honored customs of the people, grows out of the soul of

the peOple, is a creation of the Volksgeist, and is not and cannot be
deliberately fashioned by reason.

Law, then, is not made by men, it must
grows in the fashion of Topsy.

As a consequence, 'nature‘ is not a per—
ceptible structured reality but a collection of passions, propensities

and Perceptions without content or directive of reason.

Because Hume rejects a basic conception of St. Thomas that being,

truth, and goodness are intrinsically linked together, he holds that what

confronts the theoretical reason as true, cannot present itself to

practical reason as the good to be realized, as the objective norm of
human behavior.

This was the gratuitous denial of the ability of human
reason to grasp the reality from which it could receive directives that
some actions are to be performed and others are to be avoided.

A basic,
verifiable of human nature is thus denied, i.e., that in all men everywhere

there is a recognition that good must be done and evil avoided.

This,
not purely a matter of subjective inclination, but rather a conformity

 

 

 

 

 

of right

be expec
and skep
with whi
law and

Henry de
retained
praetors

original

PSVolt 0;
soil as a
0f nature
through g
tI‘c’iditio:
that Sta1
Cites 00}
Well as r
cl‘iteria

Cc
this Was
developed
apMoria
ass°°iati

 

53

of right reason with an objective order of things.

The effects of this onslaught were not as pronounced as might‘
be expected, in the Anglo-Saxon world. This resistance to the agnosticism
and skepticism of the philosophers was due in large part to the tenacity
with which the English common law hung on to the conceptions of natural
law and equity that it had assimilated in the Catholic Middle ages.
Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476)
retained the posture of common law judges, in the tradition of the Roman
praetors, in allowing equity to control the stiff formalities of the
original common law.

In spite of the danger that grew out of the English religious
revolt of the 16th century that caesaropapism might take root in British
soil as a kind of Anglo-Byzantine absolutism, the traditional elements
of natural law remained vital enough in the English judges. Sir Edward Coke,
through whom many of the American Founding Fathers contacted the
tradition of natural law, spoke in Bonham's Case (1610) for the principle
that statutes are void if they do not conform to the natural law. Wright
cites Coke among the English lawyers who emphasized "natural rights" as
well as natural law in the form of a set of positive standards or
criteria for legal judgements.73

Coke's thinking, which became a vehicle of natural law thinking as
this was passed on to the founders of the American constitutional system,
developed out of his struggles with the early Stuarts who attempted to
appropriate to themselves powers which former monarchs had exercised in
association with Parliament. During the period of his two chief justice-

ShiPs Coke repeatedly asserted that the royal prerogative was a common~1aw

 

 

 

concept

W
Regardin
in many

sometime
is again
perfome

void...i

51%

concept and as such was subject to judicial delimitation.74 In the

Bonham Case, cited above he turned the same argument upon Parliament.
Regarding this latter, he remarked "And it appears in our books, that

in many cases, the common law will controul acts of parliament, and

 

sometimes adjudge them to be utterly void: for when an act of parliament
is against common right and reason, or repugnant, or impossible to be
performed, the common law will controul it and adjudge such act to be
void...iniquum est aliquem suae rei esse judicem."75

Coke then is seen here to be a foundation upon which Locke would

 

later build safeguards against power.

For the purposes of this thesis it may be interesting to note here
the several statements of Coke and his point of view as it reflected his
natural law philosophy.

He and his associates in the same year as Bonham's Case presented
a summary of arguments in Calvin's Case, as follows:

1. That ligeance or obedience of the subject to the
Sovereign is due by the law of nature: 2. That this law
of nature is part of the laws of England; 3. That the

law of nature was before any judicial or municipal law in
the world: #. That the law of nature is immutable, and
cannot be changed."

...The law of nature is that which God at the time of
creation of the nature of man infused into his heart, for
his preservation and direction; and this is lex aeterna,
the moral law, called also the law of nature. And by this
law, written with the finger of God in the heart of man,
were the people of God a long time governed before the law
was written by Moses, who was the first reporter or writer
of law in the world...And Aristotle, nature's Secretary
Lib. 5. Aethic. saith that jus naturals est, quod apud
omnes homines eandem habet potentiam. And herewith doth
agree Bracton lib. I, cap. 6. and Fortescugecap. 8. 12. 13.
and 16. Doctor and Student, cap. 2 and u.

 

 

 

B
M
. generati
at a tin:
he was m
absolute
natural

and was ‘

55

Blackstone, whose (1765-1769) Commentaries began to replace
Coke-Lyttleton as the law book of the American colonies for the
‘generation of lawyers following Jefferson, was widely read in the colonies
at a time when natural law thinking was gaining in popularity. Although
he was much less consistent than Coke, and could as easily uphold the
absolute power of Parliament, he wrote the following description of
natural law which happened to suit the needs of Americans at that time
and was thus taken over by them:

This law of nature being coeval with mankind, and

dictated by God himself, is of course superior in

obligation to any other. It is binding over all the

globe, in all countries and at all times: no human laws

are of any validity, if contrary to this; and such of

them as are valid derive all their force and all their
authority, mediately or immediately, from this original.

77
Blackstone, according to Corwin, (p. 53) was eloquent, suave, and
completely undismayed by palpable self-contradiction. He was not bothered
at all in his use of phraseology taken from Locke and Coke which he turned
to the entirely opposed position of Hobbes and Mansfield, whose defense
of the Declaratory Act of 1766 was admittedly based on Hobbes. According
to Blackstone, with due disregard for his previous statements on natural
law, Parliament is possessed of absolute power. This doctrine was later
summed up by DeLolme in the following aphorism: "Parliament can_do anything
except make a man a woman or a woman a man."78
Before proceeding to specific indications of the influence of

Grotius, Pufendorf, Burlamaqui on the Founding Fathers, it may be helpful

to note at this point by way of summary that several widely differing

 

 

 

 

 

theories
18th cen
natural

can be 1
W
that in

of natur

politica

presente
seventee:
departur
from exp.

by his 5‘

to and q1
SYStem 0;
me time
Minced
and the .(
Since be:
both d0c1
William

law basis

56

theories of natural law found their way into the thinking of the late
18th century Americans. Although there were strong currents of classical
natural law, introduced by Coke, Blackstone, Grotius among others, there
can be little doubt that the Declaration of Independence and the Con-
stitution of the United States rest upon a concept of "natural right"
that in turn rests upon an historically untenable hypothesis, a "state
of nature" that supposedly existed before the social compact to unite
politically was agreed upon.79

It does seem from a review of the evidence, a sampling of which is
presented in the preceding pages, that the political theorists of the
seventeenth and eighteen centuries did not take as their point of
departure the Aristotelean position that man, by his very nature, known
from experience and reflection, was a political being, one who was meant
by his structure and not by his intention alone, to live in human society.

With the exception of Hugo Grotius, the men most often referred
to and quoted by the formulators of American political theory built a
sYstem of natural rights or natural law on the assumption that man at
one time lived in an original state of nature that existed before
political society. And if, as Davitt notes (p. 163), the REEEEEEEEEE
and the Constitution rest upon theoretical foundations that have long
since been disproven as political theories, it would seem to f°ll°W that
bOth documents and the system that has been constructed upon them are as
antiquated as the notions they embrace. If the case for such a natural

' h
law basis of American political theory were as clear as the above mlg t

 

suppose,
would so:
of the U:
amodem

T]
from the
disagree:
itself t
the face

Wz‘
number 01
at this I

St
the 17th
this stat
before th
for amp
does not
there any
theologic
the Fall
is an,“
influence
"“6 Prim

““1011 ti

 

 

57

suppose, it would be understandable why some and perhaps many today

would say that "Locke's principles '...were embalmed in the Constitution
of the United States which survives like an ancient family ghost haunting
a modern skyscraper.”80

Thus, it would seem, natural law has once again been dismissed
from the scene of intelligent, meaningful discussion. Yet, this kind of
disagreement and impatience with a constantly reappearing_'ghost' exposes
itself to the charge that the argument has been arbitrarily concluded in
the face of evidence and issues that refuse to yield or to be long ignored.

With the hope of clarifying both the issues and the argument a
number of observations pertinent to the question may profitably be made
at this point.

Some authors have suggested that the 'state of nature' concept of
the 17th and 18th century philosophers had theological connotations, that
this state was related to the condition of mankind as portrayed in Genesis
before the Fall. Given the radical contrasts between Hobbes and Locke,
for example, as these men viewed the original state of nature, this
does not appear to be what the philosophers were talking about. Nor is
there any intrinsic evidence that the philosophers were concerned with the
theological account of man's creation, life before the Fall, the 'test,’
the Fall itself and the condition of man as fallen, yet redeemed. It
is always possible that the religious struggles of that period had some
influence on them, but it seems safe to assume that the philosophers
were primarily intent on giving an account from reason alone for the

tension that existed between individual rights and state authority.

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58

It has already been indicated above that while the thought and
even in some cases, as with Locke's words and phrases were adapted by
Jefferson, Otis, Hamilton, Adams and others of the American Revolution,
there were important changes that made for a unigue formulation of natural
law theory on the American continent. Geographical, cultural and temporal
differences would seem to demand modifications. What might be acceptable
to Englishmen in the "Revolution" of 1988 would not necessarily meet the
needs of Americans in the Revolution of 1776.

The unique American formulation of natural law theory, based on
the political philosophy of the seventeenth and eighteenth centuries,
may now be considered archaic, and in a sense it has to be. This would
seem to be a necessary conclusion, since there has been another change
in time and change in modes of thought as a result of new experiences
and considerable advances in man's knowledge of the world in which he
lives. This last does not necessarily follow solely from an advance
of time and an increase of experience, for it is possible for mankind to
forget, to fail to learn from experience, and to regress from civility
to barbarity. This has been the case with cultures that have become
extinct, and With peoples who have been grossly misled by barbaric
leadership as happened in Nazi Germany. However, this thesis presupposes
that with the passing of time, the intellectual and moral efforts of man-
kind in general do produce a better understanding of the world, and can
result in more sophisticated standards of morality that make it possible
for man to live better lives, morally and ethically.

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59

outmoded in the How it attempted a solution to the problems of 1776;
it is not outmoded in the What it attempted in resolving for that time
the continuing problem of liberty against government.

Thus is spelled out one of the Several reasons why natural law
theory, here taken to identify the two thousand year old tradition of
phiIOSOPhical realism, has alternately won and lost the respect of
educated men. Even when it has not been confused with natural rights
theory and the currently untenable foundations of that particular node,
the proponents of the theory have too frequently insisted upon a total
grafting of the theory from one time and culture to other times and
other cultures without taking into account cultural variations and the
valid conclusions of the physical sciences.

More than two thousand years of human intellectual effort cannot
reasonably be brushed aside. On the other hand, the discoveries and
formulations of the past must, if they are to be relevant to contemporality,
be constantly reexamined and reevaluated.

Whether or not man's intellectual history is known by any given
man at any given time, whether he has been influenced in his thinking by
currents of thought contemporaneous with him, it seems neither unusual
nor remarkable that an independent thinker in any period may be discovered
as representative of a centuries long tradition. Such would seem to be
the case with Thomas Paine (l7§7-1809).

Paine lived in an America whose revolutionary leaders drew freely

uDon the 'state of nature' concept of the English philosophers. Yet,

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as Wild notes, "Paine agrees emphatically with a central thesis of
authentic natural law philosophy that man is a social being not by
contract but by nature, and originally endowed with tendencies that fit

81

him fbr social life." Citing Paine, Wild continues, "As nature created

him for social life, she fitted him for the station she intended."82

Consequent to this position, Paine does not begin from.a ’state of nature'
and 'social contract' to an explanation of 'natural rights,’ but rather
argues to this from the fact of man's existence and his nature. "Natural
rights are those which appertain to man in right of his existence. Of
this kind are all the intellectual rights or rights of the mind."83

Paine argues close to the line of Aristotle that man is rational by

nature and as such has by the fact of his existence a natural right to
education for example that he may develOp his intellectual faculties.

Man is also animal, with physical needs which are so much a part of his
nature that if not satisfied he cannot continue to live. Thus, it is that

man has a natural right to property and security.8“

Paine makes a telling argument in support of his position that
man is by his nature social when he observes that "social cooperation is
not founded merely on certain special tendencies. It is required by every
dynamic phase of his being. No human want can be adequately realized

"86 ‘ThuS: Wild's summary in preparation

without the support of others.
for the statement of Paine: "In all cases she (nature) made his natural
wants greater than his individual powers. No one man is capable without

the aid of society of supplying his own wants; and those wants acting

up

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61

upon every individual impel the whole of them into society, as naturally
as gravitation acts to a center."86
Given the influence that Hobbes and Locke seem to have had in the
formulation of American political philosophy, it is interesting to note
that Paine disagrees radically with Hobbes who opposes natural law to

civil law. He also contends with Locke insofar as the latter holds that

some at least of man's natural rights are surrendered when civil govern-

. . 87 . . .
ment comes into being. Opposing this p031tion of Locke's,Pa1ne remarks
that "Man enters society not to have fewer rights but to have original

rights better secured."88

As against the division of Hobbes, Paine claims that civil law
when properly construed will always be founded in natural law. "Every
civil right grows out of a natural right."89

The insight of Paine is that human obligation and duty, if these
are to be seen as objective and meaningful, will be known from an analysis
and a reflection upon the common needs of man. When these common needs
of man are realized, individual reason becomes capable of discovering how
these needs may be met, through cooperative action. This is easily enough
understood if it is kept in mind that this social activity is a dynamic
action engaged in by individuals all of whom strive toward a realization
of their tendencies. The result of this human ability to relate needs
to means of satisfying those needs joined with the general human awareness
of the tendencies or drives of human nature is what has been called 'the
sense of obligation.‘ To approach the same topic from a slightly different

point of view, when a man becomes aware of certain rights that are rooted

62

in his needs, intellectual or physical, he can then conclude that others
who share his nature, share his needs and also his rights. These rights
in others he then reacts to with a "sense of obligation."

Whether the above always works out this way in the human situation
is another question. If all men were of equal intelligence and if all
were determined in their actions as guided by this intelligence, there
would be a considerably closer similarity between the argument fer the
relation between right and obligation and the observable data of human
experience. But, all men are not of equal intelligence, and all men are
not totally determined in all of their acts, as personal awareness, the
presupposits of law and the record of history will testify.

Thomas Paine, then, an influential figure of the American Revolution,
seems clearly to represent a natural law position quite different from
those political philosophers who were so often quoted and referred to
by the majority of the American leaders.

In the fbllowing section an attempt will be made to demonstrate
the relationship between Jefferson, Wilson, Hamilton, Madison, Otis,
Washington, Sam Adams, and John Adams and the sources which apparently
influenced their political thought.

It may be helpful to recall here that the historical study in
progress and the empirical investigation to follow have as their purpose
in this thesis the reasonable ground for the explicit development of an
ethic for the mass media of communication that is prOper to the unique

American political philosophy rooted as this is in natural law theory.

‘5

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63

This historical study must take into account not only the multiplicity
of sources of natural law thinking that came into the American colonies
but must attempt to account for the modifications in these sources as
they were adapted to the particular times and circumstances of the 1
American revolutionaries. Finally, it can reasonably be assumed that
these theories, adapted as they were, did not become matter for mere
repetition. It would be closer to the fact to hold that they (the.
theories of natural law) were vehicles of thought, stimuli for the
individual thought processes of intelligent men, and perhaps as often
apologia for their revolutionary acts.

In this regard, it seems important to keep in mind that not only
do most men not follow the thought of others in a slavish manner, all
the time and everywhere, but it is likely that even the 'originator' of
the thought or theory is never so conditioned by his own thought and
theory to the extent that he becomes one with it, and inescapably
determined by it. Experience indicates that each new moment and each
new experience presents new possibilities of choice which result in an
evolution, radical modification of or complete conversion from the.
previously held theory. Here, then, enters the necessity for an under—
standing of the concept of process in all things, in human affairs, and
in particular, toward the development of an ethics of mass communication
that derives its flexibility not from personal whim but from the equivilation
and prOportion that exists between reality and man's attempt to adjust

to it through the formulation of'behavioral patterns and structures.

6'4

The word is not the thing signified. The image in the mdnd is
not the.same as its external cause. The ethical demands of man are the

conclusions of insight and experience. They do not exist as such in the

structure of reality.
In the preceeding pages, an attempt was made to trace the several

currents of natural law thinking that influenced the Founding Fathers of
It now remains in the concluding pages of this historical

this Republic.
section to discover evidence of natural law thinking in these men, to

indicate, when possible, either intrinsic or extrinsic evidence of

derivation, and finally, to show from their own writings the kind of

natural law theory that was the unique product of the American policy.
'90 said:

George Washington, during his "Farewell Address'

I dwell on this prospect with every satisfaction

which an ardent love for my country can inspire, since
there is no truth more thoroughly established than that
there exists in the economy and course of nature an in-
dissoluble union between virtue and happiness, between duty
and advantage, between the genuine maxims of an honest and
magnanimous policy and the solid rewards of public

prosperity and felicity; since we ought to be no less
persuaded that the propitius smiles of Heaven can never
be expected on a nation that disregards the eternal rules

of order and right which Heaven itself has ordained.

Writing again of a law higher than the state that governed the

actions of man which were beyond the province of the state, Washington
address himself to the united Baptist Churches in Virginia in May, 178091:

If I could now conceive that the general Government might

ever be so administered as to render the liberty of
conscience insecure, I beg you will be persuaded that no
one would be more zealous than myself to establish effectual

barriers against the horrors of spiritual tyranny and every
species of religious persecution. I have often expressed

 

65

my sentiments that every man conducting himself as a good
citizen, and being accountable to God alone for his

religious opinion, ought to be protected in worshipping

the Deity according to the dictates of his own conscience.

Thomas Jefferson has frequently been accused in history of copying
his ideas (in the Declaration) from a pamphlet of James Otis, of merely
representing the common sentiment of the day on the question of natural

 

rights, of pirating the Second Treatise of John Locke, of being a Deist.
His letters to political contemporaries cast some reasonable doubt on
the validity of these charges, many of which have little meaning and less

His sentiments expressed outside of the ring of political

support.
argument w0uld seem to express his concern for matters of religion, the

relationship that existed in his mind between church and state, and the
implication of his acceptance of a law higher than that of the government.

writing to the Ursuline Sisters in New Orleans on May 15, 1804, Jefferson

answered:92
...The principles of the Government and Constitution of the

United States are a sure guarantee to you that it will be
preserved to you sacred and inviolate, and that your in-
stitution will be permitted to govern itself according to

its own voluntary rules, without interference from the civil
authorities. WhateVer diversity of shade may appear in the
religious opinions of our fellow—citizens, the charitable
objects of your institution cannot be indifferent to any; and
its furtherance of the wholesale purposes of society by
training up its young members in the way they should go,
cannot fail to insure it the patronage of the Government it is
Be assured it will meet with all the protection my

under.
office can give it.
I salute you Holy Sisters, with friendship and respect.

(Signed) Thomas Jefferson, President.

 

66

Again, writing to the General Assembly of North Carolina, in.1808,
disapproving of a third term Jefferson noted:93

The wrongs our country has suffered, fellow citizens, by
violations of those moral rules which the Author of our

being has implanted in man as the law of his nature to

govern him in his associated, as well as individual character,
have been such as justly to excite the sensibilities you
express, and a deep abhorence at indications threatening a
substitution of power for rights in the intercourse between
nations.

Quoting from No. 20 of The Federalist, Cornelia Le Boutillier94

attempts to establish Alexander Hamilton's early interest in natural law
as a bit of whimsy. "The final paragraph of No. 20 begins with these

words: 'I make no apology for having dwelt so long on the contemplation

 

of these federal precedents. Experience is the oracle of truth; and where

its responses are unequivocal, they ought to be conclusive and sacred.'"

Boutillier continues: "Here Hamilton expressly repudiates an earlier

dalliance with rationalism and with the transcendental natural law. A man

who says, 'Experience is the oracle of truth,‘ is a man who will place

no final faith in 'the ignis fatuus of a priori speculations of closet

philosophers.‘ By the time Hamilton addressed himself to the challenge

of writing The Federalist with James Madison and John Jay, he had put

away casuistry."95
This kind of comment would hardly deserve response except for the

fact that it represents an attitude toward natural law theory that has

still many adherents among the ill-informed. As has been shown above,

and as will be developed in the following section, experience is not only

a Vital component of natural law thinking, but is, in fact, its point of

 

67

departure. The faith, of which LeBoutillier speaks is neither faith
at all, nor any kind of worship for speculations, a priori or otherwise
that hang in the air like so many Japanese lanterns. Finally, there is
neither an implicit nor explicit denial of his earlier philosophical
posture in these and other statements of the older Hamilton.

In the citation following, Wright seems to sympathize with
LeBoutillier but offers no evidence to support Hamilton's 'deviation.‘
Aside from the fact that this would be quite difficult to substantiate,
the proving of the fact would not add much to the argument pro or con
natural law theory. Assuming that Hamilton did change radically in this
regard as he grew older, he could have done so for any number of reasons.
It could have been that he no longer saw it necessary to belabor the
obvious. It could have been that his increased knowledge of political
affairs left him impatient with the formulations of his youth. It could,
finally, have been that what he saw more clearly in youth escaped him in
his later years. There is no guarantee that natural law theory once
accepted will always be accepted by the same man. There is likewise
no guarantee that once a man ascribes to natural law theory he will not
err either at that time or at a later time. In brief, a mistake in
arithmetic is no argument against arithmetic.

Wright in noting the contribution of Hamilton to the natural law

thinking of revolutionary America says that:

 

 

 

68

Probably the most influential pamphlets of this period

which were produced in the colony of New York were those
written by Alexander Hamilton. Although he was but

seventeen years of age when the first appeared, and but
eighteen when he wrote the second, they are by no means juvenile
performances. And although later writings of Hamilton indicate
that he soon ceased to have much sympathy with the doctrine

of natural rights, these pamphlets are second to none in their
reliance upon this concept. In the first of them he argues
that the proper solution of the present discontents can be
secured only by a study of the principles of 'natural justice'
and the 'fundamental principles of the English Constitution.’

Wright proposes that Hamilton's opponent, the 'Westchester Farmer'
seems to have been familiar with Hobbes and to have agreed with Hobbes

that rights come from society and not from nature. To which Hamilton

 

replied, "Good and wise men, in all ages have embraced a very dissimilar

theory."96

They have believed that the Deity 'has constituted an
eternal and immutable law, which is indispensably
Obligatory upon all mankind, prior to any human instatution
whatever. This is what is called the law of nature.

In line with his natural law preoccupations of this period,
Hamilton refers to Blackstone in support of his position that all human
laws, if they are valid, derive what authority they possess from the law
of nature and that any law that contradicts the law of nature is by that
fact invalid and of no account.

Upon this law depend the natural rights of mankind; the

Supreme Being gave existence to man, together with the

means of preserving and beautifying that existence. He

endowed him with rational faculties, by the help of which

to discern and pursue such things as were consistent with

his duty and interest; and invested him with aESinviolable
rlght to personal liberty and personal safety.

 

 

 

69

Commenting on the inherent right of the colonists to exercise
a legislative power, Hamilton placed a plea beyond the civil law, for
no charter existed in New York at that time:

There is no need, however, of this plea. The Sacred Rights

of Mankind are not to be rummaged for among old parchments

or musty records. They are written, as with a sunbeam, in

the whole volume of human nature, by the hand of divinity

itself, and can never be erased or obscured by mortal power.

From the foregoing and supported by the following citations from
Wilson, John Adams, James Otis, and Samuel Adams, it seems reasonable
to assume that natural law philosophy was ingrained in the thinking of
the Founding Fathers. Documents cited and the curriculum of studies in
colonial institutions of higher learning in that period substantiate
. . . 100
both the inclination and the fact.

James Wilson, one of the principle authors of the Federal Con-
stitution and a member of the first Supreme Court was a Philadelphia
attorney of Scotish birth. It is likely in the estimate of those
competent to judge such matters that Wilson had no equal in the colonies
in his control of British constitutional history, with the exception
of John Adams. The introductory pages of his pamphlet, "Considerations
on the Nature and Extent of the Legislative Authority of the British
Parliament," written in 1770 and published in 1774 indicate his natural
law position as he attempts to establish basic principles for his legal
and constitutional argument.

Those who allege that Parliament has power to
legislate for the colonies, he writes, argue that there
must be in every state a final, absolute authority, and

that this authority in Great Britain is Parliament.
(Works [Bird Edition], III, 205). This principle, he

 

 

 

 

 

70

continues, is of great importance, but that importance
is derived from its tendency to promote the ultimate
end of government. If, in any particular instance, its
application would deStf8X instead of promoting that end,
it should be rejected.

 

 

 

The following rather lengthy citation is included below not
only to show the natural law thought of Wilson at work, but also to
indicate his use of Burlamaqui's Principles of Natural and Politig_§aw.
There is also evidence of his use of Blackstone whom he sometimes quotes
to refute.

All men are, by nature, equal and free: no one has a
right to any authority over another without his consent:
all lawful government is founded on the consent of those
who are subject to it: such consent was given with a view
to ensure and to increase the happiness of the governed,
above what they could enjoy in an independent and un-
connected state of nature. The consequence is, that the
happiness of the society is the first law of every govern—
ment.

This rule is founded on the law of nature; it must
control every political maxim: it must regulate the.
legislature itself. The people have a right to inSist
that this rule be observed; and are entitled to demand
a moral security that the legislature will observe it.

If they have not the first, they are slaves; if they have
not the second, they are, every moment, exposed to slavery.
For "civil liberty is nothing else but natural liberty,
devested of that part which constituted the independence
of individuals, by the authority, which it confers on _
sovereigns, attended with a right of inSisting upon their
making a good use of their authority, and Withniomoral
security that this right will have its effect.

 

As Wright notes "Perhaps the longest, and almost certainly the
heaviest of the pamphlets written in defense of the stand taken by the
Continental Congress is the well-known Novanglus of John Adams."

(The series of letters which make up this tract were written by Adams

in anSWer to the letters of 'Massachusettensis' (Daniel Leonard): and

 

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71

were published in the Boston Gazette between November, 177a and April,
)103

 

1775

 

...I would ask, by what law the parliament has authority
over America? By the law of God in the Old and New
Testament, it has none; by the law of nature and nations,

it has none; by the common law of England, it has none, for
the common law and the authority of parliament founded on
it, never extended beyond the four seas; by statute law it
has none, for no statute was made before the settlement

of the colonies for the purpose; and the declaratory, act
made in 1766, was made, without our consent, by a parliament
which had no authority beyond the four seas. What religious,
moral, or political obligations then are we under to Eafimit
to parliament as a supreme legislative? None at all.

 

Adams seems to have been early taken with the doctrine of natural
law and expounded upon it throughout his very long career of political
writing.

Among the earliest of his political pamphlets is the Dissertation
on Canon and Feudal Law.105 He maintains here that in Spite of the
repeated attempts of authority to "wrest from the populace, as they are
contemPtuously called, the Knowledge of their rights and wrongs," the
People continue to hold those rights antecedent to all earthly governments...
"Rights, that cannot be repealed or restrained by human laws - Rights,
derived from the great Legislator of the universe." (Works III, 449)
His method for examining the spirit of liberty is significant:

Let them all become attentive to the grounds and.

Principles of government, eccleSiastical and ClVll: .

Let us study the law of nature; search into the Spirit

of the British Constitution; read the histories of

ancient ages; contemplate the great example of greiczh

and Rome; set before us the conduct of our own Pl.l t

ancestors, who have defended for us the inherent righ s

of mankind...Let it be known that British liberties er:t
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72

conditions of original contracts, coequal with
prerogative, and coeval with government; that many

of our rights are inherent and essential, agreed on
as maxims, and established as preliminaries, even
before a parliament existed. Let them search for the
foundations of British laws and government in the
frame of human nature, in the constitution of the
intellectual and moral world.106

In a letter to Richard H. Lee which was later published as a
pamphlet, Adams speaks of principles that are justified by 'nature and
experience.’ He suggests nature and experience as the basis for a science
of politics. In this vein he writes that the works of the great political
philosophers must be studied, and he adds that those of Locke, Milton,
Sidney, and Harrington "will convince any candid mind, that there is no
good government but what is republican. He continues that "a good
government is an empire of laws," and the first step in making those

laws is "to depute power from the many to a few of the most wise and

good "107

Samuel Adams, cousin of John, was not nearly as learned in the

law, nor had he read as widely...in the literature of political thought.
He wrote neither books nor pamphlets, but he did produce hundreds of

Private letters and state papers reflecting the most advanced ideas of

his time. What is most important to the purposes of this thesis is that

Samuel Adams was one of the most prolific journalists of his time,

and the principal tool for the propagation of his revolutionary ideas

was the colonial newspaper. Although not a many talented man, Samuel

Adams was a genius in one field. He knew how to interpret the aspirations

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Of the common man to the general Public.lo9 For this reason, he is in

the estimate of many historians a leading candidate for the title
"Father of the American Revolution."

A sample of the thought of Sam Adams is found in the following
set of resolutions that he prepared which were adopted by the House of
Representative of Massachusetts on October 29, 1765.

1. Resolved, That there are certain essential rights

of the British Constitution of government, which are

founded in the law of God and nature, and are the common

rights of mankind; - therefore

2. Resolved, That the inhabitants of this Province are

unalienably entitled to those essential rights in common

with all men: and that no law of society can, consistent

with the law of God and nature, divest them of those

rights.

3. Resolved, That no man can juif&y take the property of
another without his consent....

According to his theory, Samuel Adams holds that the rights of
man, as indicated in the resolutions noted above, are derived
immediately from the British constitution, but are ultimately founded in
the law of nature. This principle he repeated many times during his
active political life. And, because of his industry in letter writing
and in journalism, his thoughts became widely known in the colonies.
Perhaps the best known of his statements on natural rights is contained
in the Massachusetts Circular Letter of February 11, 1768:

' Q I C 0 'tlme

...it is an essential, unalterable right, in na ,

engrafted into the British constitution, as a fundamental

law, and even held sacred and irrevocable by the subjects

within the realm, that what a man has honestly acquired t

is absolutely his own, which he may freely give, but canno

be taken from him without his consent; that the American

' ' f any charter rights,
subJects may therefore, excluSive o
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74

and subjects, assert this natural and constitutional

right.

As had John and Samuel Adams, James Otis graduated from Harvard
and went on to practice law in Boston. He has in history the reputation
of having been a 'spellbinder,‘ one of the great orators of the day.

Otis does not frequently seem to have used the terms natural or
natural law in a way that would clearly indicate that he was, in fact,
speaking from a natural law or naturalrights position. He may not have
used the words but he was dealing with a 'higher law' when he referred
to the Writs of Assistance in his defense of Paxton as "destructive of
English Liberty and the fundamental principles of law." In the same trial
he contends that:

...reason and the constitution are both against this writ...

had this writ been in any book whatever, it would have

been illegal. All precedents are under the control of

principles of law... No Acts of Parliament can establish

such a writ; though it should be made in the very words of

the petition, it would be void.

In the year following the trial, Otis published a pamphlet under the
title "A Vindication of the Conduct of the House of Representatives of the
Province of the Massachusetts—Bay," in the course of which there can be no
question as to his use of natural law theory. Defending the position of
the House that it had the right to originate taxes, Otis comments:

1. God made all men naturally equal. 2. The ideas of

earthly superiority, preheminence, grandeur are educational,

at least acquired, not innate. 3. Kings were (and plantation

Governors should be) made for the good of the people, and not

the people for them. u. No government has a right to make hobby

horses, asses and slaves of the subject, nature having made

sufficient of the two former, for all the lawful purposes of

man, frOm the harmless peasant in the field, to the most refined

politician in the cabinet; but none of the last, which
infallibly proves they are unnecessary. 5. Tho' most govern—

 

 

 

75

ments are de facto arbitrary, and consequently the curse
and scandal of human nature; yet none are de jure arbitrary...

112
Near the end of this pamphlet, Otis treats the rights to which the

colonists are entitled by 'common law, by their several charters, by the

law of nature and nations, and by the law of God.113
As authority for the statements he calls 'data' Otis refers to

Locke's Discourse on Government, as he calls it. Wright notes that

John Adams exaggerated when he declared that 'this little fugitive pamphlet'

contained the 'solid substance' of the Declaration ofgthegpontigental Congress_

in 177%, of the Declaration of Independence, of the writings of Price

and Priestly and Tom Paine, and of the French Revolution. It was however,

according to Wright "...in point of time, first of the many pamphlets

which were to be of major importance in importing, modifying, and

popularizing the doctrines which were to culminate in the Declaration of

on...“

 

 

Independence.

Tom Paine, considered at some length previously, a recently arrived
Englishman, seems to have been the first of the revolutionary leaders to
use the theory of national rights in favor of the colonies without reference
to or dependence upon England's laws or customs.

In his famous Common Sense, published in Philadelphia on January 9,
1776, he set forth his political belief. For him government should be a
kind of public utility, to be operated at the least expense for the interests
of the general pepulation. The most important function that a government
can have is its full recOgnition of the rights of man. Arguing for
independence, he declared that, "...a government of our own is our

natural right."llu

76

Thomas Jefferson read Paine's book Rights of Man, with approval
in a later 'Second American Revolution' and used it aa.a tool to mold
public opinion in his struggle against those who would make the new
republic an aristocracy.of wealth and station.

Thus concludes the historical study that has attempted to trace
the several currents of natural law theory that influenced the formulation
of American political theory. That natural law or 'higher law' thinking
is intimate to the very being of the American 'way' has seldom been
seriously questioned. Naturallaw thinking has not been repudiated as
an essential component of American political philosophy. It has, however,
been largely ignored for more than one hundred years. It has as often
been misunderstood and poorly used by those who would wish to do away
with it, and sometimes by those who choose to defend it.

However complex the confusions and disagreements about natural law
theory, this thesis proposes that neither American political philosoPhy
nor an ethic of communication that stems from it can be evaluated or
usefully employed toward a resolution of socio-ethical problems in the
United States unless the existence and influence of natural law is
Properly accounted for.

Professor Jay W. Jensen, head of the Department of Journalism in
the University of Illinois, speaking on "Freedom of the Press: A Concept
in Search of a PhilosOphy," as the 1962 Nieman Chair lecturer at
Marquette University, addressed himself to a number of questions that are

central to this thesis.

77

He speaks of the concept of press freedom as a product cast in
the mold of seventeenth and eighteenth century liberalism. And he sees
this concept under lethal attack by the forces of neo-liberal thought.
Before proceeding to a discussion of Jensen's arguments and premises,
several observations might be made to place the discussion in the frame-
work of the thesis, to single out issues critical to this thesis, and
to reiterate a posture or attitude stated above in this study.

About the attitude indicated, this thesis presupposes that the
concept of freedom of the press as formulated in this country at the time
of the Declaration and Constitution was a product both of history and of
the unique times and circumstances of its adoption. As has been noted
in the historical study of the natural rights thinking of the Founding
Fathers there were many and varied philosophical, social, economic,
and political currents of influence that render at least a partial account
of the concept of press freedom and the meaning and understanding of it,
when it_wa§ so formulated. A contemporary appreciation of both the
uniqueness of the situation and of the concept which was a component of
the situation should avoid several possible extremes.

It should not arbitrarily be assumed that because the concept of
freedom of the press was formulated in the middle of the eighteenth
century it has no meaning, value, or relevance to the twentieth century
and its needs. Nor ought it be assumed under the rubric of reverence
for the traditions of the past that the concept must be taken strictly,
literally, and entire to be forced into the mold of modern social and

political structures. The first assumption rests upon a dangerous premise

 

 

 

78

that there is no significant relationship between the past and the
present, that all things must be discovered anew in each moment of time,
that the past has no meaning in the present. The second assumption rests
upon an equally dangerous premise that the time continuum linking past
and present is a rigid and determined line that admits of no dynamism,
no process, no evolution or progress in human experience and knowledge.

The insights of the Founding Fathers were necessarily limited and
to some extent determined by the knowledge of the world that they possessed
at that time. These insights were valid and remain valid insofar as
they gave an accurate account of reality as they experienced it. This
validity is based on two premises of this thesis: that man is intelligent
and that reality is intelligible. Given the existence of such constants,
a number of variables must also be acknowledged in the face of verifiable
evidence. In this instance the variables include the kinds and qualities
of the experience of reality shared by the Founding Fathers, the particular
needs of the times as they understood them, the prejudices that were
built into their sources of political theory, and their own natural
limitations in gathering and evaluating the many kinds of data that con-
sciously and unconsciously went into the formulation of the concept of
freedom of the press.

The concept today looks at different data; the variables of time
and circumstances will differ from the variables of the mid-eighteenth
century, and, although the constants of human nature and its potentialities,
tOgether with the content of the concept will remain substantially unchanged,
there remains the demand of dynamic process in human events that the

concept be constantly re-examined and modified as fresh insights into new

 

 

 

 

 

79

experience may direct.

To summarize briefly, a denial that the truth of the past is
relevant to the truth and the search for truth in the present is an
implicit denial of the value and relevance of truth in any period. Such
a denial neglects the evidence of the dynamism, process, and tendency
of things and thoughts to grow and develop from what they are to what
they can and ought to be. The world which such thinking represents is
static and atomisically complete, a world in which there is no motion,
no change, and no truth other than what is in any given moment possessed.

On the other hand, the truths of the past need to be accommodated
to the needs of the present for the same reasons, i.e., the dynamism,
process, and tendency of things and thoughts to grow and develop from
what they are to what they can and ought to be.

Jensen's concern may now be studied in the light of the observations
made above.

Professor Jensen looks first at the rise and incipient decline of
what he refers to as "a powerful social myth, the individualistic
Weltanschauung of Classical Liberalism." Noting that this philosophy grew
gradually during a period of four centuries, from the time of Thomas
Aquinas to John Locke, Jensen observes the coincidence of this growth
With the develoPment of capitalism, science, and the secular state. This
Would seem to be his appreciation of the several shifts from an "other-
oriented world" to a "self-oriented" world discussad at some length in

these Pages treating Grotius, Pufendorf, Hobbes, and Locke.115

 

80

The new philosophy, out of which grew the American concept of
freedom of the press, was typified by an image that was "...a rational,
moral, and autonomous self having reality and meaning in relation to an
objective order of reason and moral law and limited in the exercise of its
will only by 'right reason' and individual conscience."116 As the fore—
‘going pages have indicated and the following pages will further
substantiate, this is something of an oversimplification of individualism
representing as it does only the classic Graeco-Roman-Medieval theory of
natural law, and excluding largely the impact of Pufendorf, Hobbes, and
Locke with their considerably different natural rights theories.

What Jensen does not see or at least does not put into proper focus
is that the very forces that gave birth to the liberalism and individualism
of the seventeenth and eighteenth centuries also contained the seeds of
its destruction. Once the superiority of the intellect over the will is
denied, once the ability of the reason of man is seriously questioned,
once the value of metaphysics is impatiently brushed aside, empiricism,
positivism and materialism must result. Jensen seems to hold that these
collectiveisms are a consequent of "new modes of thought and the develop—
ment of new social forms,"ll7 without noting that Classical Liberalism
with its key concept of an atomistic autonomous Self and neo—Liberalism
with its central concept of "cultural" Self might both be extreme positions
resulting from overemphases on particular aspects of the data of human
experience. And further, these 'isms' are not really new modes of thought.
There roots and manifestations have a history at least as long as the

philosophy of moderate realism that Jensen seems to hold as attacked or

 

 

 

81

subverted.by positivism.

Continuing his discussion, Jensen remarks:

So far as it has progressed to date the mutation of

the traditional concept of freedom of the press may

easily be perceived in at least two dimensions. The

first dimension is manifested in the subversion of the

basic premises of Classical Liberalism, in the growth of

Positivism since David Hume, in the "flight from reason"

in psychology and the social sciences, and in the

increasing collecfigization of contemporary perspectives

and institutions. 1

Although there appears some little confusion in what Jensen attempts
to propose as the cause and effects of the shift from Classical to neo-
Liberalism, he comes to the point of his concern about press freedom in
the following:

What was in Classical Liberal theory regarded as a natural

right (that is, the freedom of the press) is taken in neo—

Liberal theory to be a permissive, conditional, and social

right. As Dean Theodore Peterson reminds us in his analysis

of social responsibility theory, when the framers of the

Constitution appended an amendment for the protection of the

liberty of the press, "they had no intention of binding the

publisher to certain responsibilities in exchange for his
freedom."

Aside from the observation that it is frequently hazardous to
Presume the nature of the intentions of both contemporary and, a fortiori,
of historical figures Jensen and Peterson seem to prescind from the social
aSpects of rights as these were incorporated in the thinking and in the
sources of the Founding Fathers.

Few of the Classical—Liberals conceived of rights in general and
the right to freedom of the press as absolute. John Milton, one of the
most eloquent spokesmen for press freedom would deny this freedom to

Roman Catholics and to the ephemeral journalists of his day. As Siebert

notes, "Milton recognized that the right of free discussion might be

 

 

 

 

82

limited but he avoided any general principles on which these limitations

might be based."119

It was in his Areopagitica that Milton made the
statement so well known to students of press freedom:

...though all the winds of doctrine were let loose to play

upon the earth, so truth be in the field, we do injuriously

by licensing and prohibiting to misdoubt her strength. Let

her (truth) and falsehood grapple; who ever knew truth put

to the worse, in a free and open encounter?

Emery comments that Milton's glory is somewhat dimmed by the fact
that he himself was serving as licenser and censor only seven years after
making this statement. (The Mercurius Politicus, an official organ
published during the reign of Cromwell).

John Locke, on rights in general, could not have viewed them as

. 120
absolute, if one or several could be given up to the State.

Later in his paper, Jensen returns to his theme adding this time a
reference to the natural law framework of the right:

As an autonomous self, the individual was limited in

the exercise of his will and interest only by an order

of values transcending social existence, objectified in

natural law and natural rights, and to which he was on-

tologically linked by reason and conscience.

The above statement is very much in agreement with the realistic
theory of natural law as proposed by Aquinas, Suarez, and to a great
extent by Grotius, but once again, in the light of the preceding historical
study of the problem, it is difficult to reconcile Jensen's assessment
with the natural rights thinking of the Founding Fathers.

Jensen then speaks of the Classical Liberal notion of "a natural

oPPOSition between the individual and society, a dichotomy which assumed

that individuals have discrete and independent existence apart from the

83

"122 The present thesis tries to show that

society in which they live...
this tension between the individual and society has existed as a puzzling
problem for many centuries perhaps from the beginning of time, and not
from the Renaissance as Jensen supposes. There may well have been a
preoccupation with the concept of Self dating from this period, but the
tension would seem to be built into the very nature of man, as individual
and social. He (man) cannot be what he is and what the evidence of
history shows him to be without both of these dimensions. And, it may
Well be that not only can there not be a resolution of this tension,

but it may be that this tension between man as individual and as social
is at the very source of the dynamism that makes progress possible for
mankind.

Jensen seems to feel that the shift from the individual-oriented
philosophy that was in vogue at the time of the formulation of the First
Amendment in its structure of Libertarianism as a theory of the press,
to the so—called Social Responsibility theory as discussed by the Hutchins
Commission is a sign that man as individual is being gobbled up by the
culture in which he moves. There is little doubt that the note of
responsibility has received more attention in recent years than it had
formerly in philosophies of the press in England and the United States.
And there may be a danger in this shift that the autonomous Self could be
assimilated by collectivism. However, the note of responsibility as a
concommitant of press freedom does not demand such a surrender.

‘As will be discussed in more detail in the final section of this

thesis, rights, including freedom of the press, have no meaning unless

 

8H

they refer to other persons possessing the same rights by virtue of a
shared human nature.
Rommen clarifies the issue in the following statement:

As the person is a self-sufficient autonomous being, but
directed to communal life, so, too, these natural rights
cannot be understood as isolated and wholly independent.
They are by far more coincident with the order among the
socially connected persons. No right has a meaning if it
is not a right positively to act with other persons, or
negatively to be free from interference by other persons.
Consequently the rights receive their intended meaning
from the social order in which the persons live and they
are necessarily counterbalanced by duties. 23

Professor Jensen concludes his paper with a call for the re-
habilitation of the concept of freedom of the press.

Hence, what is most urgently required for the re-
habilitation of the concept of freedom of the press is

a new metaphysics — a metaphysics that will restore what
Positivism, Romanticism, Collectivism, and other
derivative isms have lately destroyed: an image of the
Self as ontologically independent of Culture and
existentially related to an objective order of values.
For only thus can the concept of freedom of the press,
like that of human freedom in general, be grounded in a
structure of philosophic categories capable of ensuring
the freedom of thfi self, of public communication, and of
public opinion . 12

Again there is much agreement between what Jensen has said and what
this thesis proposes. But, there is a difference in attitude. If
dissatisfaction with present trends toward an engulfment of the Self may
be taken as a starting point, it seems logical enough to investigate
the record of history, as this thesis has attempted to do, to attempt
the clarification of issues necessary for an understanding of the

dissatisfaction. An interest in and an impatience with metaphysics are

 

 

 

85

nothing new. These opposing attitudes are as old as recorded philosophy.
Hence it is not a new metaphysics that is needed but a deeper under-
standing of the place of metaphysics in the structure of the problem of
human rights and freedom of the press. Then, the investigator is ready
to measure what has been discovered in the past against the new ex-
periences and circumstances of the present. The result will not be a
final solution to the problem of press freedom but a formulation,
accounting for advances in knowledge that will be seen as relevant to the
needs of the present time. This is, of its nature, a continuing labor
requiring constant observation, correction, adaptation, because man is
in motion, is free, is capable of truth, and is susceptible to error.
Jensen wants a rehabilitation of the concept of freedom of the
press, a rehabilitation that he sees as possible only as a consequent
of a new metaphysics. This kind of thing is not, or does not appear
to be, a popular preoccupation among those who struggle to meet the
issues involved in the concept of freedom of the press. There are signs,
and they have increased in number during the past forty years in the
United States, that natural law thinking is once again moving toward a
position of respectability in both the world of the academy and the world
of practical affairs. Philip Selznick points the way to its value in the
social sciences. The Natural Law Institute at the University of Notre
Dame brought together a wide variety of scholars and political leaders
from many parts of the world to discuss natural law issues. The Center

For the Study of Democratic Institutions has published a series of six

 

 

86

papers devoted to natural law. Among the participants was Robert Gordis
who remarked:

Today signs are multiplying that there is a growing
interest in natural law and its possible rehabilitation
for modern use. Circles which have long looked askance

at it— philosophers, lawyers, sociologists-are manifesting
a desire to find the viable elements in the concept of
natural law.12

Allied documents of World War II were underlaid with the con-
viction of mankind that totalitarianism was literally inhuman. As
LeBuffe and Hayes put it:

To make the state all powerful, to derive all rights

from the state and thus give the state a free hand to do
what it liked and when it liked, was seen, in its effects,
to be a horrible thing. Men were thrown back to
principles of morality and to "inherent," "fundamental,"
"human" rights as they have rarely been thrown back before.
The "absolute state" had the mask of respectability torn
from its face and its lewd, leering visage shocked mankind.126

These same basic human rights founded in a natural law of moral
realism appeared in the Declaration of the United Nations, the Berlin—
Potsdam Conference, the Charter of United Nations, the post-war treaties,
the Nuremberg Tribunal, the French Constitution, and in numerous other
national and international agreements, among which that of Dutch-Indonesia
is typical.

The Dutch-Indonesian Agreement, November lens, Article X

states that the forthcoming Statutes of the Netherlands-

Indonesian Union shall contain provisions safeguarding in

both parts of the union "the fundamental human rights and

liberties referred to in the Charter of the United Nations'
Organization."l

 

 

87

It would be the burden of an altogether different kind of
investigation to establish with a respectable degree of rigor that these
returns to natural law are either an attempt to escape from reality or
a desire to penetrate reality with an urgency proper to the tensions
and crises of the present era. Whatever the motives ample evidence of
a return to natural law thinking is abroad.

A good case might be made, in consequence of this renewed interest,
for a return to perennial natural law theory rather than to the outmoded
formulations of periodically stamped variations and alterations of the
traditional theory proposed by the philosophers of moral realism.

In one guise or another, either of dissatisfaction with alternative
attempts to resolve the issues that press for answers in the social
sciences, or of a natural curiosity to place the question beyond the
question of disciplinary premises, metaphysics may once again be making a
plea for general acceptance.

Rommen, among others, comments:

Yet one point history does make clear. The idea of

natural law obtains general acceptance only in the

periods when metaphysics, queen of the sciences, is

dominant. It recedes or suffers eclipse, on the other

hand, when being (not taken here in Kelsen's sense

of mere existentiality or factuality) and oughtness,

morality and law, are separated, when the essence of

things and their ontological order are viewed as un-

knowable.

The same author observes that natural law depends on the science
of being which is metaphysics. And this brings the argument again back

to Jensen's plea for a new metaphysics required for a rehabilitation of

the concept of freedom of the press. It seems clear enough that the

 

 

88

object of the study of metaphysics, the data which it examines and
structures, is not the study itself. What might have been satisfactory
to the scope of man's knowledge in the past will very probably not be
sufficient for the needs of the present. On the other hand, it would be
more than presumptuous to conclude that the formulations of the past have
nothing to offer toward attempts to solve current problems. Since, then,
the reality that is the object of metaphysics is constant, and the
knowledge of this reality is a variable dependent upon man's abilities
and opportunities, what seems to be needed is not, strictly speaking,
a new metaphysics, but new metaphysical formulations based upon fresh
insights into the data of reality as this data is opened up for
investigation by modern science. Philip Selznick supports this view in
his statement of the need of natural law philosophy:

I also believe that natural law philosophy would benefit

from a greater effort to increase the scientific component

of its discourse. A vigorous research program, devoted to

the formulation and testing of natural law principles, might

do much to advance both the cause of justice and sociological

truth.

Jacques Leclercq also seems to be in agreement with the attitude
of this thesis and with the statement of Selznick:

The conclusion I reach is that natural law is permanent;

that it does not change, but that our knowledge changes;

and that to develop our knowledge it is necessary to study.

To elaborate theories and reasoning, to argue and oppose

different mental attitudes without positive foundations,

is of little use, if any use at all. The example given of

the introduction of divorce into France shows how these

questions have been investigated and why there has been no

advance. As I reach the end of my career, I can only hope

that more young men will approach the problems of natural

law in the only way which seems to me able to lead toward a
progress of thought.1

 

 

89

Speaking to problems of legal theories closely related to the
several ethical questions of this thesis, Anton Donoso remarks:

Contemporary legal theories can be divided, as they

have been throughout the past century, into varieties of
legal positivism and natural or "higher" law theories.

A survey of the writings in jurisprudence since the war's
end, especially in the United States, reveals that legal
philosophers are a bit wary of those legal positions that
can be characterized, at best, as more "positivistic,"
i,e., maintaining that basically law is what is said to be
(posited as) law and has the force behind it to be considered
such. The current trend is clearly toward what can be
characterized, at best, as more "naturalistic," i.e., that
positive law is to be guided in its formulations and judged
as to its validity by "ideas“ foundgd on the "condition"
and operation of the human person.

 

 

In a footnote to the above Donoso remarks that, "The most striking
fact about current national developments is the rise of natural law
philosophies almost everywhere. England, Sweden, and Denmark (as well as
Russia) are among the few countries which do not participate in this
world movement..."132

Earlier in this thesis, Wild's five basic doctrines were enumerated
as the criteria of moral realism which will now be examined under the
rubric of the premise that moral realism is the pervading attitude of
traditional natural-law philosophy rooted in a metaphysics of basically
empirically verifiable data.

Wild takes the position that the moral realist must hold:

(1) that the world is a nexus of interdependent tendential

systems; (2) that each recurrent tendency is determined by

a specific structure or form; (3) that the structure of

substantial entities, like living things, determines

essential tendencies shared by every member of the species;

(4) that such tendencies must be activated according to a

certain normal pattern or law; if (5) the good of that entity,
its realization or completion, is to be achieved.

 

f I .
. V . o . y
. .
u _ .
. . o. . .
. P . I n
. . .
.
. u n I
F I t .
. i
t
. . . .
. .
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90

From these ontological principles Wild moves to their application
to human nature in the development of three specifically ethical theses.

(l) the universality of moral or natural laws;

(2) the existence of norms founded on nature; and

(3) the good for man as the realization of human nature.134

This in outline is the structure of the argument to be pursued in
the following pages toward an attempt to find firm ontological foundations

for ethics in general, and an ethics of the mass media of communication in

particular.

 

Footnotes

lWild, p. 6%.

2The AmericaniPhilosophy of Law, LeBuffe and Hayes, p. 41.
3 Q
Ibid., p. #2.

uStanlis, p. 4.

5"The Scope and Purpose of Sociological Jurisprudence," Harvard Law
Review, XXV (Nov., 1911), 162, Charles G. Haines' The Revival of
Natural Law Concepts, 1930; and Otto Gierke's Natural Law and the
Theory of Society, 1934.
6 .
Gordis, p. 249.
7Plato's Modern Enemies and the Theory of Natural Law, p. 104.

8Ernest Barker, in Natural Law and the Theory of Society: 1500-1800, ed.

Otto Gierke, Cambridge, England: At the University Press, 193”, I,
xlvi.

9Stanlis, p. 11.
10 ,
Ibid., p. 135.
11 ° L 61
The Rights of Man and Natural aw, p. .
12
S. T. I-II, q. 91, a. 2.
13
Wild, p. 64.

1a ,
Wlld, p. 73.

5 - 311
Ehg Rev1val of Natural Law Concepts, p. .

16
Wild, pp. 132-133.

17 .
Wright. p. 16.
- -u97
18T. Hutchinson, History of the Colony of Massachusetts Bay, I, 496 ,
as quoted by Wright, p. 16.

91

 

 

 

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92
19 . . . .
Massachusetts Historical Collections, as Clted by Wright, pp. 20-21.
20 , .
History of New England as cited by Wright pg. 28-29.

1
See pages 6 and 7 these notes.

22De Jure Belli, I, i, 10, 1.

23
Wright, p. 8.

24
wright, pp. 89-900

25
Wright, p. 8.

26
Corwin, p. 53.

27
Rommen, p. 71.

28
Rommen, p. 71.

29C. Becker, The Declaration of Independence, pp. 256, 257.

30Haines, The Revival of Natural Law Concepts, p. 65.

31

32De Jure Belli Ac Pacis, Bk. I, p. 12.

33
Wild, pp. 119-120.

34
Rommen, pp. 93, 9Q.

35Eris Scandica, 2nd ed., 1743, pp. 102, 103, as cited by Wild, p. 135.

 

36
Rommen, p. 95.

37 -
Rommen, p. 96.

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93

38
Natural Law, p. 56.
39 ,
Suarez, De Legibus, bk II, chapt. V.
no
d'Entreves, pp. 54-55.
u
lWright, p. 11; Corwin, p. 56.

2
Corwin, p. 57.

usCorwin, pp. 52-53; Leviathan, Chpts. 13, 17, 18.

u
Strauss, p. xi.
5 ..
Strauss, p. x11.
46
Rommen, Natural Law, p. 58.
#7
Strauss, p. 104.
#8

Stanlis, p. 17.

HQ ,
Stanlis, p. 2n.

50John C. H. Wu, "Natural Law and Our Common Law," Pordham Law Review,
XXIII (March, 195”), pp. 20-22.

51Stanlis, p. 25.
52Laslett, p. 7M.
53Laslett, p. 75.
5“Laslett, pp. #5 ff.
55Laslett, p. 81.

56
Laslett, n. p. 81.

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94
57
Laslett, p. 81; Locke in Treatise II, 12.
58
Laslett, p. 81.

59
Nat. Law Inst. Proceedings, 1947, p. 17.

60
N. L. Proceedings, p. 17.

61 . .
Writin s, V, p. 343, as cited in Natural Law Institute Proceedings,
Vol. I, pg. 19.

 

62
Wild, 128.

63 .
Wild, p. 129.

 

64
Rommen, p. 89. u
65 , . .
Essay, Bk III, chapt. v1, sec. 9, p. 64, A. C. Fraser edition.
66
Rommen, p. 90.
67 .
2nd Treatise, sec. 129.

68
Essay, Bk II, chapt. xxviii, sec. 6.

69
Laslett, n., p. 85.

70 .
Stanlis, p. 27.

71
Rommen, p. 110.

72
Rommen, p. 110.

73
Wright. p. 9.

74
Corwin, p. 34.

75 - ' 34-35
8 Co. 118a (1610) as Cited by CorWin, PP. °

 

 

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89 '
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91
The Writ:
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93

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95

76
7 Co. 1 4b, l2a-l2b (1610) as cited by Corwin, p. 36.

77Commentaries (12th ed., 1793), I, up as cited by Wright, p.111.

8
Corwin, p. 56.

79
Davitt, Elements of Law, p. 163.

80Broad, John Locke, 31 Hibbert Journal 249, 256 (1933) as quoted by

Davitt, p. 165.

81Wi1d, p. 121.

 

82The Works of Tom Paine, ed. Faner (New York: Citadel Press, 1945), I,
356, as cited by Wild, p. 121.

83 ,
Ibid., I, 275, as cited by Wild, p. 121.
81+ 0 o a
Ibid., I, 342, as Cited by Wild, pg. 121.
85 ,
Wild, pp. 121-122.
85 . . .
Ibid., 1, 356, as Cited by Wild, p. 122.
87
See pages above.
88 . . . ,2
Ibid., I, 275, as Cited by Wild, Po 1 -

89 .
Ibid., p. 276, as cited by Wlld. P- 122'

9 169-175, as cited by LeBuffe and Hayes,

0
Commager, Documents, Vol. 1. PP-
p. 83.

nghe Writing of George Washington, Vol. 30, p. 321 as quoted PY LiBuffe
and Hayes in The American Philosophy of Law, Jesuit Educationa
Association, New York 10: N- Y" 1953’ PP' 94—95.

f d
92The Ursuliness of New Orleans, Semple, p. 60, as quoted by LeBu fe an

Hayes, p. 95.

93

N. Y, Times, Nov. 23, 1939, p. 32 as quoted by LeBuffe and Hayes, P. 96.

(I

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96

94
American Democracy and Natural Law, Columbia University Press, New York:
1950, p. 112.

 

951bid., p. 113.
96 ,
Wright, p. 90.
97 . .
The Farmer Refuted (1775), Works I, 59, Cited by Wright, p. 90.

98Wright, p. 90 seems to be a citation from The Farmer but Wright
doesn't indicate where it may be found.

99Ibid., p. 108; Wright, p. 90.

 

0 . .
1 0For documents, see "Declarations and Resolves of the First Continental

Congress," Oct. 14,1774 Documents Illustrative, etc. p. 1—4;
Declaration of the Causes and Necessity of Taking Up Arms, ibid.,

p. 10; "Virginia Convention", ibid., p. 19;"Articles of Confederation, "
ibid., p. 27, "Northwest Ordinance", Hill, Liberpy Documents,

pp. “227— 243. Very ample collections are The People Shall Judge;

and Commanger, Documents of American History. For the natural law

educational background of the Founding Fathers, see Walsh, The
Education of the Founding Fathers of the Republic. Also Obering,
The Philosophy of Law of James Wilson.

 

lOlWright, p. 85.

lonright, p. 85.

103
Wright, p. 88.

04 .
Works, IV, 37, Wright, p. 88.

05Works, II, l48ff. W. 74.

106Ibid., p. 462. See also his "Clarendon" letter of 1766, 3229', p. 480.

107 Citations from Wright, p. 103.

Plato and Federalist-Anti—Federalist dispute.

08
Emery, p. 98 ff.

09 .
Emery, The Press and America, 2nd ed., p. 100.

110Writings (Cushing ed.,) I, 23 Cited by Wright, P' 72’

 

 

”119-, I

112
Vindicai
ll3Vinc11ca1

111+ . _
Writings

115"Freedor

Socia'
Press

116Jensen ,
117
Jensen ,

118Jensen,

119F
our Th1

12oSee p.

121
Jensen ,

2
JenSen ,

 

97

111

Ibid., I, 184.
112 _ . .

Vindication, pp. 17-21; Wright, p. 65.
ll

3
Vindication , p. 52 .

114
Writings (1798 ed.) I, 44, as cited by Wright, p. 94.

 

115"Freedom of the Press: A Concept in Search of a Philisophy,"
Social Responsibility of the Newspress, Milwaukee: Marquette University
Press, 1962, p. 45 ff.

11

6Jensen, p. 76.

17
Jensen, p. 77.

118Jensen, p. 78.

119 _
Four Theories, p. 45.

120See p. 49 these notes.

21
Jensen, p. 77.

22
Jensen, p. 77.

123The State In Catholic Thought, St. Louis: B. Herder Book Co., 1945, p. 192.

124
Jensen, p. 88.

125 .
Natural Law and Modern Soc1ety, p. 241.

126

LeBuffe and Hayes, p. 110.
127
LeBuffe and Hayes, pp. 122-123.

128
Rommen, Natural Law, p. 161-

 

29 . 3
Natural Law and Modern Society, p. 19 .

 

 

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98

130
"Natural Law The Unknown," Natural Law Forum, 1962, p. 15.
M.

131
U. of D. Law Journal, Oct. 1963, p. 60.

 

132
Ibid., p. 60.

133
Plato's Modgpn Enemies pad the Theory of Natural Law, p. 134.

134 ,
Ibid., p. 134.

 

 

 

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CHAPTER III

METAPHYSICAL ANALYSIS

With Wild this thesis will agree that the recognition of
metaphysics as the basic empirical discipline was characteristic of the
founders of natural law ethics as well as of the major representatives of
this philosophy. "No revival of authentic realistic philosophy is possible
without a revival of metaphysics," Wild statesl, and then asks whether
such a revival is possible.

Metaphysics is commonly regarded as a chaos of abstract
speculations quite remote from the immediate data of
concrete experience. Hence, the most influential objection
raised against it is that its concepts and theorems, having
no empirical reference, are unverifiable and therefore
meaningless. As a matter of fact, it provides us With the
only possible instruments by which we may hope to grasp the
immediate data of experience in their full concreteness.

Of all the philosophical disciplines, it is the most
eminently empirical and closest to the brute facts as they
are actually given. Not only do its basic concepts and
theorems refer to evident data of experience - not only are
they directly verifiable and meaningful — but Without
unambiguous reference to these foundational meanings, the
basic concepts and theorems of all other disc1plines 1a se
into vagueneSS, unintelligibility, and meaninglessness.

The data of which wild speaks, with emphasis on the brute datum

0f science has at least three definable characteristics.
(1) It must be thrust before the cognitive faculties
With an external constraint which rules out subjective
inference and interpretation. (2) To have any confirming b
power it must be structuralized; no intelligible thpori can e
Verified by an ineffable datum; if there 18 any suc tfpng. t
(3) It must be accessible to different observers at d1 eren
times working under somewhat divergent conditions.

99

 

 

100

The data of metaphysics enjoys these three definable characteristics
to this extent that the existence of anything before the observer demands
an assent on the part of the observer that the 'thing' in question 'is'
even though in the moment of observation it may not be clear to the
observer precisely what the 'thing’ is. The data of this science also
reveal a structure, i.e., plurality in both the time and space dimension.
Active tendency and dependency in many cases are also given by the data
to the observer with a high degree of clarity. Metaphysical data,
finally, is so accessible to any human observer that without it there
would be no human experience at all.“

In the above fashion, metaphysics may properly be defined as a
science in terms of the data with which it works. How, then, does it
differ from the restricted or particular sciences under the data rubric?
In the first instance, the data of metaphysics are pervasive, non—
9uantitative, and extremely rich in scope. The data of the physical
and social sciences, on the other hand, are likely to be quite restricted,
primarily quantitative, and most often abstract in the construction of

premises.
Scholars not philosophically oriented sometimes manifest impatience

with a disciplines that calls itself a science and yet uses no spec1a1

instruments or machines for measurement and analy31s- The reason for

this is simple and perhaps frustrating enough. The data 0f metaphySics

o ‘ f.
is not only in the laboratory but on the way home and 1“ the home itsel

he
As Wild notes, measuring techniques are all but useless here because t

primordial data of metaphysics includes much more than the note of quantity.

 

101

Among the many objections that have been raised against the
science of metaphysics is this that the data of common everyday ex-
perience is by definition crude and inexact. This generally is intended
to mean that the data are qualitative and relational, rather than
quantitative, and thus not subject to exact measurement. While this
must be admitted as quite true, it must also be noted that because one
science does not yield to the method of another science, it is not by
that fact meaningless. While the data of metaphysics may not be measured,
it may perhaps be accurately described and analyzed. On this point Wild
comments that "Different kinds of data are apprehended in different ways,

and each discipline must develop its own standard of exactitude."5

Another objection to the data of metaphysics is offered by Wild:

...it is said that these data are confused and vague. I

have heard positivistic philosophers sometimes use the

word "sloppy" in this connection when speaking of every-

day experience. What they mean is that the world of every-
day eXperience is filled with a very rich and variegated
content, and that it also fades away into obscure lacunae

and dim horizons where, without patient examination and
analysis, nothing can be clearly graSped, and sometimes not
even then. These facts also must be admitted. But they
hardly justify the proposed inference that this vast field

of data should be neglected and the structures underlying
them dismissed as insignificant. It is certainly true that
the range of a concept such as existence is so broad that

it cannot be covered by any univocal definition. In this
sense, it must be vague and confused. But this does not mean
that it cannot be grasped at all, as for example analogy, and
that we must abandon thesattempt to understand the basic
structure of experience.

Another objection to the claims of metaphysics as a respectable
discipline whose findings can be meaningful to all other scientific
disciplines is the fact that the field continues to be a chaos of con-

flicting opinions, theories, and positions. In contrast, the other

 

‘

 

 

102

sciences seem to lead a more orderly life subject to controls and in
more or less constant progress. One reason for this seemingly dis-
advantageous comparison is that philosophical data, being all pervasive
and concrete, are available to all, and to all a concern, to some degree
at least. All men, however well trained, or not trained at all, will
form attitudes and opinions that they must have in order to live. These
men explicitly or implicitly adhere to positions on knowledge and the
confidence that may be placed in it; on truth or falsehood; on fact and

value; on good and bad; on norms of human conduct, objective and/or

 

subjective. Life cannot be lived without this sort of thing that is the
data of metaphysics.

On the other hand nuclear physics, for example, is not necessary
for human life. Its data are most abstract and remote to the untrained.
Its language is unintelligible to those who have not been schooled in its
meaning. If the data of nuclear physics were accessible to all, and
if the language were more or less intelligible to all, there would be
many in the field beside the Specialist. A confusion similar to that in
philosophy would result. This confusion would not substantially alter the
nature of the science. The task of the nuclear physicist would be more
complicated than it is at present, but confusion would not prove that his
Subject was trivial or meaningless.

Another of the several difficulties approached by Wild is that
raised by the so-called "empiricists."

...who complain that these ubiquitous and inescapable

data are apt to turn out to be very 293. This also is

quite true, and constitutes the final paradox. How

strange to hear this from the lips of so many
positivistic thinkers who pride themselves on their

 

 

 

103

ruthless empiricism, which of course, in this connection

means precisely the opposite, a bigoted dogmatism which

knows what the data must be Without even examining them,

and is ready to condemn anything not fitting their a priori

theories as impossible or odd.

If the peculiar and all-pervasive data of metaphysics cannot be
investigated in any quantitative manner, how, then, can they be
investigated? Wild suggests that the only possible way to examine these
data is through the method of phenomenological description. "We must,"

he states, "Return to concrete experience itself, examine it carefully,

separate what is incidental and transitory from the pervasive ontological

 

data, and then USe our reason to describe these data as they are given,
refraining from all inference and interpretation."8

Wild further claims that this is the only method that can be used
to gain what he calls structuralized evidence capable of verifying our
explanatory theories.

Only then will a philosophical discipline be possible.

Phenomenology and metaphysics go together. When men

lose interest in the primordial data of everyday

experience, metaphysics dies. Philosophy disin-

tegrates into a chaos of partial 3bstractions and

finally into linguistic analysis.

It is possible for a man to fly a small airplane without much
knowledge of aeronautics, and with little or no knowledge of aerodynamics.
If, howeVer, he plans to fly often and successfully in larger and more
SOphisticated aircraft, he will of necessity have to learn these sciences
at least to the extent that he is able to follow their rules. He may, in
fact, be able to do this quite well without a deep understanding of the

theories inVOIVed. But someone'must know the theories, and the work of

neither the theorist nor the practitioner is ever complete. Both must

 

 

 

 

lOl.L

continually struggle with current problems of efficiency, economy,
and safety and constantly cope with changing and increasingly complex
situations moving from the future into the present.

Just as this man may occasionally fly a small plane safely with
a minimum of the most elemental instruction, and fly well or poorly
under these conditions depending on his natural talents and his ability
to grasp essentials quickly, so it is in the field of communication
ethics. A person quite unfamiliar with the theory and functions of

the media of mass communication might occasionally apply his natural

 

talents and ability to grasp essentials to the satisfactory solution

of a simple ethical problem. However, should this man attempt to solve
such problems on a regular basis without much practical experience and
the consequent formal or informal education in ethics that this implies,
he could not reasonably anticipate more success than the man who would
fly under similar conditions. And, as the problems increased in
frequency and intensified in complexity, his situation and the effects
of his decisions would predictably be harmful both for himself and for
others.

It is assumed for the present that there is an ethical dimension
in communications, that communications involves human beings, that these
human beings make decisions and have decisions made for them, and that
these decisions are good or bad for them as human beings.

Unless a study of the ethics of communication is to be an endlessly
frustrating and impossible task both the theorist and the practitioner

must, as occasion demands, concentrate on the ethical issues of this

 

105

particular area. And yet this necessity for concentration or specialty
of focus must not be allowed to overlook the fact that the area of
attention is an integral, dynamic segment or component of the total
human reality. This is to say that an ethical action in communications
will always be based on an ethical principle that would be equally valid
as principle for any human being under any circumstances. The principle
is derived from circumstances and experience, but is by definition an
abstraction from concrete reality, and is not caught up in the process

dynamics of time and space.

 

As there have been and are conflicting theories of aerodynamics
and aeronautics, so there are conflicting ethical theories in both
general ethics and in applied or special ethics, within which latter
category communication ethics falls. And, for reasons given above in
attempting to account for the greater number of conflicting positions in
the philosophical as opposed to the physical sciences, it seems advisable
in the interest of intelligible, hopefully fruitful discourse to point
out what would seem to be the critical and most basic difference between
the ethical foundation of this thesis and opposing ethical positions.

It has been noted above and will be repeated here that the basic
issue between those who defend natural law and those who oppose it is not
that of theism or nontheism. This, as Wild claims, is a peripheral
metaphysical issue. Natural law studies can and have been done outside
of a religious context. Belief or non-belief in God is another question
entirely. The study of natural law as such has nothing to do with

Catholicism, with Protestantism, with Judaism, with paganism, agnosticism,

 

 

 

 

106

atheiSm or any other ism. Natural law and the basic issue of the problem
now under consideration concerns the nature of moral norms.

Are they grounded in something which exists in-
dependently of human interest and opinion, or are
they man-made? The philosophers of natural law are
moral realists. They hold that certain moral norms
are grounded on nature, not merely on human decree.
It is this thesis that binds together the various
strands into a single tradition and which radically
separates all of thsm from the subjectivistic schools
of modern thought.

It is held with equal vigor in this thesis that the question of

the objectivity of moral norms as such has nothing to do with either

 

political or social systems. This does not mean nor is it intended to
mean that natural law and moral norms have no relevance to religious,
social, economic, or political systems or structures. On the contrary,
the reality and the theories that attempt to interpret reality would have
no practical value or use unless applied to concrete structures and cir-
cumstances. This again is the question of principle in the abstract
and practice or application in the concrete.

For the purposes of this thesis it seems necessary to clarify
this matter above because ethical problems in the communications media
confront not only each individual religion, social, economic and political
group, but they likewise face these groups in such pluralistic societies
as the United States, and they become increasingly more pressing on the
international scene as the facilities and need for international communi-
cation make great demands for the practical working out of complex
ethical problems in communications. The technical means for audio and

Visual communications between and among all the peoples on the planet

 

 

 

 

 

 

 

107

are now available and will very likely become more readily available

to more people for more purposes in the future. Technology has marched
perhaps dangerously ahead of ethics and law. And, perhaps this must
always be the case if ethics and law are to be realistically founded in
experience. Yet, should the gap continue to expand, and should the use
of existing facilities long continue without an understanding and
reasonable governance of the process, use, and effects of communication,
there can be little hope that order in the human affair will long be

maintained.

 

Assuming, then, for the moment that the moral law is discovered
and not invented by men, that it is not merely a human construct but
rooted in reality and structured on the basis of ontological categories,
the mind is now led to the exploration of the most basic data of ex-
perience in the expectation of meeting the questions of moral ontology.
Such a quest will prepare the way for an examination of the ethical
doctrines held by moral realists.

Wild's treatment of the meaning of the term nature will serve well
as a point of departure for this investigation.

The basic conception is the realistic thesis that there
are norms grounded on the inescapable pattern of existence
itself. This pattern is an order in which many diverse
factors are brought together into a relational unity. From
the time of its first origin in ancient Greece, realistic
philosophy has employed the term nature «0&375), meaning
, growth or change, to refer to this normative order which is
manifested in the acts of changing things. This order has
many distinguishable aspects adapted to one another by the
peculiar normative relation of fitness. The good is always
ontologically proper or fitting, what is owed to a thing in
virtue of its tendential structure.

 

 

. I . . . n _ I
. r » .

.1 . . . v

. a a . . .
. r .

. . .
u . e . ll.
.
. . .

b . . I. n.

. .

. o .
t . . t .

. U . I
. . .
. n v .
C I .
e .
. .
y . I I. .
. .

 

108

As Wild explains it, it was necessary to discover a unifying

word for a concept that could be used to represent not only the "general

relation but also the more important relata. The word nature was chosen

to exercise this unifying function, holding together in a single concept

several distinct but related meanings."12

This word or concept in its richest meaning stands for a definite

structure of a finite entity which determines both the basic tendencies

 

of the structure and the kind of activity which will fittingly complete
those tendencies.

Nature, then, is seen to say structure, the tendencies of the
structure, and the activity involved in the tendencies of the structure.

This is the dynamic order of activity in time and in space.

It seems appropriate now to proceed to a consideration of the

three elemental ontological categories of essence, of existence, and of

tendency.
Essence may be conceived as the principle in a thing which

determines it to be what it is and marks it off from everything else that

it is not.
Existence is that which separates a thing from nothing. It answers

the question Is it? whereas essence answers the question What is it?
Under the aspect of essence all things are united. This at root is

the solution of history to the fundamental problem of the one and the many.
The third category, tendency, is well explained by Wild in the

following:

 

 

 

109

Wherever being is found, it is determinate. There
\

is present a factor (essence) which marks it off from
There is also present another

other entities and kinds.

factor (existence) which separates it from nothing and
brings it into act. But in addition to these, there is

a third factor which results necessarily from the union

of the two. This is an active tendency which arises

primarily from the act of existence but which is determined

to proceed in a certain direction by the limiting essence.

All being is vectorial and tendential on the way towards
further existence not yet possessed.lé

Wild continues this explanation with a caution that these three

 

ontological phases are not to be understood as separate things or
substances loosely associated together. "They are not 'things' at all
,1u

but relational structures, each of which is only be virtue of the others.‘
This kind of philosophical orientation needs attention today when
essentialist ontology seems to predominate in the face of so much con—
tradictory evidence. The physical world is not frozen in space but includes
Natural substance is not something palpable

space and proceeds in time.
Reality is not an

and rigidly contained somehow within geometrical bounds.
enormous collection of billiard balls to be set in motion. The whole
notion of reality and the physical world must be dynamized if it is to
conform to reality as this is known by the physical sciences. This reality
as known by the physical sciences would require that it no longer be
statically conceived but rather that it be viewed as dynamic, as fields
of force and energy.

Aristotle, very much a philosopher of change and dynamics, saw

all the data of human experience, including man himself, as a continuing
A natural entity for him is one which tends

Process of transformation.
"As he states specifically in the Physics,

or moves toward something.

110 1
'all the beings of nature seem to have in themselves a source of \

movement or rest.‘15
This source of movement and rest is in itself a complex of several

sources. Change, then, is a composite having a composite cause.
One of these (sources) is something incomplete, for

change is never finished, but always on the way towards
Aristotle calls this factor potency

something beyond.
But it is never absolutely indeterminate.

(JV/V9413).
It is moving in one way rather than in another, toward some
What is responsible for this definite

determinate goal.
factor of change? Aristotle gives his answer while dis-
cussing the different meanings of the term nature in Book V

of the Metaphysics (The so-called Book of Definitions).

'The source of change,' he says, 'in all natural entities
is essence (or form.) In the case of substantial change,

the most radical kind of transformation, the form is
But in the case of accidental

 

present only potentially.

changes of a single substance, this form is actually present,
determining the tendency to pgoceed in a certain direction
towards further fulfillment.

Empirical obserVations do not extend very far into the vast
complex of the universe with its numberless units or entities constantly

changing within themselves and as often changing in their relationship to
other entities. And yet this vast realm of continuing change, growth,
Though there are now and again examples,

and decline is not a random chaos.

sometimes striking, of exceptions to the order in the universe at least,

as man perceives that order, order rather than chaos is the datum of

experience and the presupposition of any scientific investigation.
...'nature does nothing in vain, nor does it omit anything
really necessary.’ Working always in orderly ways, 'nature
eVer tends towards the best of what is possible.’ If we
examine these changes from a long-range point of View, we
discover anti—chance and orderly procedure 'in all the works

of nature.’ The forms of human art are not merely

arbitrary inventions. 'The resulting end of the generations

and combinations of nature is the basic form of the beautiful.‘

and thf7highest manifestations of human art are modeled after

these.

 

 

 

 

111

And Wild continues with Aristotle on nature:

'The nature of the whole universe' is compared to an

army made up of independent individuals whose activities

are nevertheless 'ordered together somehow for a common end.’

They are like the members of a single household each of whom

contributes something towards the good of all. The subordinate

participants in this ordered life, animals and children, like
the natural elements, make a necessary contribution in a largely
unconscious way by random coming and going. But the more

mature members, understanding what is required of them, are

bound by the moral law,1 (Meta 1075a 19)

If, then, the universe as it is known to man through the data of
experience, and by reflection upon this data of experience is in fact a
vast and dynamic complex of interdependent tendential entities, generally
ordered rather than chaotic, man, a component of this complex, may safely
be assumed to be subject to the same laws at least insofar as they are
operative in him as a rational, intellective entity.

The conception of moral law as treated in its elements above has
played a vitally important role in the intellectual, political, and social
history of the West. The Stoics popularized this theory of moral law
which was later to be taken up by the Roman jurists. In the Middle Ages,
it joined similar conceptions known to all men, independently, as far as
can be determined, in Judaic, Christian, and pagan cultures. In this
setting it was to develop as the basis on which scholastic ethics would
be founded.

The early thinkers of the Reformation were led to ignore

it, or even to deny it, by their anti-intellectualism and

moral pessimism, but it was kept alive by Suarez, Hooker,

and others, who used it to criticise authoritarianism and

political tyranny. Later on, thinkers like Locke and Paine

used it in formulating those political principles which

played an important role in the American and French
revolutions. In the comparatively peaceful period of the

 

 

112

nineteenth century, it was again almost completely

eclipsed by historicism and moral relativism. But now

once again, in a time of troubles and unrest, it is

being revived, as it always must be revived when men are

led to think with radical seriousness about the foundations

of human life and culture. The most noteworthy expression

of this recent revival is the United Nations Universal

Declaration of Human Rights which, in addition to the

political rights recognized by the eighteenth century

formularies, also recognizes social, igltural, and

economic rights - and duties as well.

This brings the present discourse to particular problems arising
from the dichotomies imposed upon the conceptual couplets of ought-value,
goodness-existence, fact-value, and goodness-obligation.

As noted above, "there is an odd reluctance on the part of social
scientists, "according to Selznick, "to deal with normative systems."
Several reasons for this reluctance have been indicated in the preceding
pages. Perhaps the social sciences want the same kind of rigor in their
method as the physical sciences demand in theirs. Perhaps the data of
normative systems do not lend themselves to the precise molds of physical
data. Whatever the case may be, normative systems cannot arbitrarily be
dismissed as meaningless and somehow unworthy of the dignity of scientific
study simply because they do not lend themselves to the investigations
and research tools of quantitative systems. The fact of the matter is
that values are facts of some kind, and cannot safely be ignored, if any
sense and order is to be made of the human enterprise which is largely
if not entirely motivated by value.

What is true of the human enterprise in general is valid for the

communications dimension of the enterprise. If no attention is paid to

such questions as good and bad, right and wrong in communication problems,

v.

 

113

not only is there then given a rather arbitrary denial of history and
of culture and its meaning and influences, but it becomes more than a
little difficult to understand how communication questions can be
attacked at all, if, in fact, they can even be recognized as problems,
if either problem, or communications have any meaning at all. Such a
denial of value, then, may be seen to lead to a dogmatic, doctrinaire,
and arbitrarily constructed dichotomy between the world of the mind and
the world of experience.

Wild notes that:

It is also significant that many thinkers of divergent

schools agree that basic moral categories such as

goodness, so far as they can be defined at all, must be

identified with fixed, determinate qualities or

properties of some kind. But this metaphysical assumption

seems to lead only to reductionism, eclectic pluralism,

or the dubious doctrine of indefinability. Can it be that

a more basic existential category is being forgotten or

ignored?

The same author then focuses his attention on the problems that
arise in modern ethical theories when attention is addressed to two pairs
of related concepts, the ought and the good, and existence and value.
None of the more recent theories have been able to bring into focus the
relationships that exist between these and other conceptual pairs. Either
one, taking value-existence as an example, is reduced to the other, or
they haVe been so separated by a yawning chasm that some rather strange

and Paradoxical conclusions result, often in contradiction of the examined

data.

Either reductionism or disintegration. This is the price
we pay for a neglect of the concrete data and those
ontological concepts by which alone they may be coherently
understood.

 

 

 

111}

If an attempt is made to reduce oughtness to what is good, here
conceived as an hedonic quality, the investigator is confronted with the
difficulties that arise concerning the essential goodness of virtuous acts,
i.e., what makes these acts virtuous, Why are they conceived to be good?
If the good and the ought are one and the same, how explain the binding
power which the good exerts on the individual agent? This needs some
explanation.

The good that a.man ought to do, if good is taken to be reduced
to ought, says nothing. If, however, the good is understood, in
scholastic or Aristotelean categories, to be the final cause of the agent,
and the ought is conceived in some way as related to efficient cause, then
the two causes, efficient and final may be said to coincide with the
determining formal cause of a structured nature. Coincidence is not
sameness, and the coincidence seen in the above is given only in
subrational entities.22

Each thing tends to act in accordance with its structure

(flopf’yl ). The world is through and through tendential.

When such an essential tendency is realized, the act is said

to be according to a nature.

This is the meaning of the Second Book of the Physics which defines

O 0 O 0 2”
nature as an 1ntr1n31c cause of motion or rest.

In the above it was noted that there is a coincidence among formal,
final, and efficient causalities in subrational entities. By implication,
this coincidence is not given in rational creatures except for those who
would hold that man is completely determined in his acts as man, i.e.,

rational acts, and thus has nothing more than an apparent freedom of

115

choice. While it is doubtless true that man is largely conditioned

by heredity and environment, it is far from conclusive that he is

wholly so determined. Not only does this latter position need con-
siderably more proof and evidence to be convincing, but it stands against
the burden of history in every culture studied by contemporary scholars,
makes a mockery of all systems of crime and punishment, disembowels the
meaning of law, and must lead either to a universal state of anarchy or,
in the imaginations of some, to a return to some abstract and idyllic
state of nature.

To return to the main lines of the argument which address the
problems arising from the reduction of ought to good or vice versa, and
the opposite attempt to separate the two, very real difficulties are
discovered regarding the disintegration of the two concepts. If ought
is separated from factual value and they are conceived to be two insular
essences totally divorced from each other,

...we are forced to say that what we ought to do is not

good, and the good is not what we ought to do. If they

have nothing in common, how, then, can we weigh them

against one another and compare them, as we must do in

any serious process of deliberation? Moral law is then

left with no factual feundation whatsoever, and moral

justification seems meaningless.

Value can be more deeply understood and seen to be distinct from
yet related to ought only when the significance of the three basic
ontological categories of essence, existence and tendency is appreciated.

‘Then it will quite easily be understood that no determinate structure

can be in existence without at the same time possessing active and

 

 

116

determining tendencies.

When such a tendency is fulfilled in accordance with .
natural law, the entity is said to be in a stable,

healthy, or sound condition — adjectives of value. When

it is obstructed or distorted, the entity is said to be in
an unstable, diseased, or unsound condition - adjectives of
disvalue. Goodness and badness in their widest ontological
sense are not phases of abstract structure but rather modes
of existence, ways in which the existential tendencies
determined by such structures are either fulgglled or bare-
ly sustained in a deprived, distorted state.

 

A dilemma similar to that confronted in an analysis of the value-
ought couplet meets the enquirer of the goodness-existence combination.
If goodness is reduced to existence conceived of as a finished fact,
then what exists is right and good and ethics and morality simply
disappear. On the other horn of the dilemma, if Kant and his followers
are to be taken seriously in their separation of existence and good,

then value or good is left without any basis and crumbles into a mere

 

human construction, or to put it more starkly, into nonbeing, or nothing.

We may seek a refuge in the notion of indefinability or
ineffability. But granted that this notion can be freed
from difficulties, it offers no refuge for anyone who still
conceives of ethics as an intelligible discipline. A
supposed discipline whose basic concepts are ineffable and
uncharacterizable cannot be anything but vague and ambiguous.
It will be a house built in rotten foundations.

If metaphysics is not judged a priori to be impossible,
there may be an escape from these problems and dilemmas.
A neglect of the metaphysics of ethics is common to the
modern schools. Nowhere is moral analysis brought into2gny
disciplined relation with a critical analysis of being.

Now to the fact and value combination that Selznick claims creates
such a problem for contemporary social science. Can the one, value, be
deduced somehow from a study of fact? "If by deduction we mean the

tautology of modern logic, the answer is of course no."28 The

 

 

 

1‘

117

realization or fulfillment of a tendency is not identical with the
incipient stages of that tendency. There is a synthetic connection
between the two, fact and value. "But if we mean by synthetic two
separate items which merely succeed each other in time with no real bond
between them, the answer to this again is no."29 There can be no
apprehension of incipient tendency with any degree of clarity without
some understanding of the Gestalt which determines the tendency and its
fitting fulfillment.

The tendency is not an atomic essence which we first

understand by itself alone and from which we 'infer'

the completion as another separate entity. It is rather

a relational activity which is either grasped all together

with some degree of clarity or not at all. In apprehending

a relation, we must apprehend something of its term; so in

apprehending a tendency, we must grasp something of what

it is tending toward?o Thus, values are rightly said to

be founded on facts.

The fourth and final combination under consideration namely that
of goodness and obligation is in its components commonly fragmented by
contemporary schools of ethics. For example, goodness is often thought
to be an object of the power of cognition having no binding power in any
objective sense. Oughtness or obligation is a subjectively felt thing of
some kind which is considered to be a compulsive tendency to act. In
this way, the two are divorced one from the other as though they were
fixed essences like blackness and whiteness, as though goodness ought not
be realized, and as though doing what ought to be done were not good.

This does not seem to make much sense. It would then seem that some

relationship must be given between goodness and obligation.

 

 

 

 

 

118

The essential needs or tendencies of human nature may
be objectively understood, together with the fitting
values or realizations founded upon them. From these
values certain modes of required action may then be
strictly deduced and stated in the moral law of nature.
In a given situation, I may see that such an act is
possible for me. I will then experience that peculiar
union of rational insight into the tendential nature of
man and the law founded on this nature, together with
subjectively felt tendency (for I myself am human) which
constitutes what we call an obligation. If I have ever
paid any attention to the factual tendency of human
nature, I must feel something of this sort. If I do not
feel it in a given instance, either my analysis of the
tendency is wrong or I do not understand myself.

To sum up what has preceded in this section on four apparent
dichotomies, and to attempt to clarify some of the difficulties that
social science would seem to have with the fact—value problem, it may be
helpful to indicate that fact, as experience seems to reveal, is not
something finished and complete. Nor is value something that enjoys
some mystical kind of existence quite apart from the existence of fact.
In short, a fact is not something fixed and finished and value quite
separate and altogether different from fact.

Value is what ought to be. And the ought implies a
certain futurity and tension which cannot belong to a
finished fact. Hence, value is thought of as a peculiar
kind of quality or property dwelling in its own realm
apart from actual existence. But if value is really
separated from existence completely, how can it be anything
at all? Surely, there is some relation between the two.
What is it?

Our analysis suggests a reasonable answer to this
fundamental question. Existence as we have seen is
tendential. Value is the fulfillment of existential
tendency. It is true that it cannot be identified
with any finished fact in so far as this includes ful»
fillment. But in the concrete no facts are finished.
They are incomplete and tendential. Hence the sense of

futurity and tension that attaches to the concept of ought.32

 

 

119

Given the foregoing analysis of the three basic ontological
categories, essence, existence and tendency which are derived from
experience, the student of problems in communication ethics is not
forced to reduce oughtness to goodness, goodness to oughtness, or
goodness to existence. Neither is he forced to restrict these categories
to isolated atomic compartments. They may be put together as ex-
istential categories into a meaningful structure that has some
corresPondence with the data of moral experience. This, however, according
to Wild, will require the abandonment of essentialist prejudices very
dear to the modern mind.

The first of these is the doctrine that value, if it is

anything at all, must be a peculiar quality or property.

Such a view must lead either to a reductionist ethics like

hedonism and utilitarianism, a chaotic View like moral

pluralism so-called, or a flight to ineffability like that

of G. E. Moore and the so—called intuitionists. These are

striking examples of the terrible price that must be paid

for the neglect of first philosophy. Basic concepts like

goodness and rightness can be clarified only by ontological

analysis. Unless they are so illumined they will either

be reduced and distorted or fade into unintelligibility.

Wild comments in the concluding pages of his excellent study on
natural law that the great social and political struggles of the present
era have forced upon the attention of men's minds the necessity for a
widesPread and intensive reflection on the nature of law and its founda-
tions. What is true of law, ethics, and morality in general is likewise
true of the law, ethics and morality of communications, which function

of society plays so vital a role in the human enterprise. And, just as

reflections on the nature of law have led to a serious questioning of that

 

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120

positivistic legal theory which denies any natural foundations for
prescriptive principles and reduces all law to the level of subjective
human decree, so too such reflections would seriously question the
position that freedom of speech and of the press in the United States
have meaning only insofar as they are stated, interpreted, and practiced
by law, positive law without any relation to the foundations of law or to
the history of the development of these freedoms in the Anglo-American
tradition.

This interest is now shared by all those who have any

living hope for the establishment of a world community

without the use of military force. The realistic doctrine

of natural law has received its most recent, and in certain

ways its most adequate, political formulation in the

United Nations Declaration of Human Rights. A convenant for

the legal enforcement of these rights is now under con-

sideration. Such a covenant would revolutionize international

law and also modifg the internal law of many countries,

including our own. 4

Wild's observations and concerns might be paraphrased to suit
the Specific occupations of this thesis. The widespread concern with
natural law will very probably have widespread effects not only on in—
ternational communication but upon the laws and codes governing communi~
cation in this country.

Before progressing to the second section of the empirical in-
vestigation, i.e., an examination of relevant laws, codes, custom and
Practices, on the assumption that the ethic is in the industry, and can

be discovered and explicated, something should be said first about human

reason and its relevance to natural law theory.

 

 

 

 

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121

. 35 , ,

According to Rader , reason is not exclu81vely man's attr1bute
as Aristotle would contend. Apparently accepting without question the
authority of psychologist Wolfgang Kohler that chimpanzees also have the
capacity of reason because "they can figure out ways of piling and mounting
boxes, for example, so as to reach bananas hanging high from the ceiling
of their cage," Rader attempts to save the situation of inconclusive
evidence and endless argument by distinguishing man from brute not under
the rubric of reason but according to the criterion of cultural develoPment.

Reason, to follow this line of argument, is found in brute animals
inchoatively, yet it is not manifested, as in humans in the same way, if
not to the same degree of development. Granting that there may well be
some similarities between the manifestations of human reason and the
manifestations of some animal capacity, it seems rather difficult to
account for the absence of any real evidence of progress in the lower
forms of "intellectual" life. Why, for example, have the animals no
culture, a natural product of reason?

Man is unique: he is the only living species that has a

culture. By culture we mean an extrasomatic, temporal

continuum of things and events dependent upon symboling.

Specifically and concretely, culture consists of tools,

implements, utensils, clothing, ornaments, customs,

institutions, beliefs, rituals, games, works of art,

language, etc. All peoples in all times and places have

possessed culture; no other species has or has had culture.

In the course of the evolution of primates man appeared

when the ability to symbol had been developed and become

capable of expression. We thus define man in terms of the

ability 58 symbol and the consequent ability to produce

culture.

So speaks White and the overwhelming majority of anthropologists

on the issue of reason, man vs. animal. Until more convincing evidence

has been accumulated and evaluated, it will be assumed in the following

 

 

 

 

 

 

122

consideration of reason that this is a capacity belonging exclusively
to man.

The present controversy over the morality of contraceptive
practices in Catholic circles has opened up the larger question of the
nature of morality and has brought into dispute the very idea of natural
law.

According to Robert 0. Johann,37 "It is not a question of Simply
holding on to the concept of natural law or of abandoning it altogether.
More profoundly, at least within Catholic circles, the discussion centers
on the precise meaning to be assigned to it."

Johann seemingly would be in agreement with Leclerq, as cited in
the preceeding pages, when the American remarks that the notion or theory
or natural law needs careful interpretation if it is not to be misleading.
In support of his contention, Johann quotes from the French Moral
Theologian, Pere de Finance in the section of his Essai sur lfggir_humain
that treats of the essence of moral value:

It is not because reason is natural that we should

follow reason; on the contrary, it is only because our

nature shareg in reason that it is good to act in accord
with nature. 8

The remark according to Johann is critical because it is not nature
itself but reason and reason alone that has moral relevance. "The morally
,good is not simply what is in accord with nature, but what presents
itself as reasonable in the particular circumstances. The eminent dignity
of human nature, Pere de Finance continues, Springs from its aptitude to
follow reason, to determine itself reasonably; only in terms of this

capacity does it have moral value."39

 

 

 

123

The implications of the Johann and de Finance remarks and the

conclusions that would seem to follow from them appear at first glance to
There may or may not be

damage the argument structure of this thesis.
However, this can not be known with any

a basic disagreement here.
certainty until there is available more extensive treatments of the subject

Until such a study and comparison is

by one or the other of these men.
possible, it will be assumed here that this is not a radical or substantial

 

change in the traditional interpretation of natural law theory, but rather
a Shift in emphasis that in itself is not entirely new.

As Johann himself notes:
Criticism, then, of conventional natural law arguments
does not necessarily Spring from a subjectivistic bias,
personalist, or otherwise, or from some sort of anti-
Its origin is not

rational and relativistic confusion.
a desire to extol personal freedom over nature but a

refusal, on the contrary, to exalt brute, natural
facticity over man's capacity to c0pe with it rationally.
Instead of ousting reason, many critics of the "natural
law" are seeking simply to restore it to its central and

creative role.
They recall that for Aquinas himself the nature that is
morality's norm is not a complex of impersonal structures,

but precisely recta ratio - reason rectified by love.
And they think it might not be a bad4gdea to get back to

this liberating and refreshing view.
Before commenting on the several perhaps overly optimistic notes of

the above citation, it seems good here to suggest that the many and complex

problems in natural law theory and its applications to communication
ethics may never be satisfactorily structured and properly attacked unless
the total nature of man and the world in which he lives are included in the

establishment of methods, investigatory techniques, and approach to the
To repeat from the introductory

ethical data of communication studies.

 

 

 

 

 

121+
pages of the present thesis, it is a premise of the present investigation
that the phenomenon of information cannot be properly construed apart
from the basis of its meaningfulness which is total man. And, total
man is taken here to mean man in the all that he is, his dimensions of

individuality and sociality, his reason and its operation, and the

 

tendential characteristic of man, all his actions, and the tendential
characteristic of the physical world and the human society within which
man moves.

As has been noted throughout the metaphysical section of this study,

 

there are and haVe been many critics of natural law who are not "seeking
simply to restore it to its central and creative role." There are at
least several modern ethical theories that completely ignore natural law.
Others of the Kantian variety considerably overemphasize its rational
dimension. Still others, reacting against the rationalism of Kant, deny,
ignore, or radically modify the rational dimension. Finally, in the
light of the historical section of this thesis, it would seem somewhat
hazardous to hold that "Criticism, then, of conventional natural law
arguments does not necessarily spring from a subjective bias, personalist,
or otherwise, or from some sort of anti-rational and relativistic confusion."
A perusal of the contributions of G. E. Moore, Ayer, Stevenson and Perry
will indicate that the modern scene is not likely to be transformed into a
beneficient universal acceptance of natural law, at least in the academy.
The same sort of realistic and tempered pessimism seems appropriate in
the light of the writings of Pufendorf, Hobbes, Locke, Hume, Spinosa

and others mentioned in preceding pages.

 

125

 

 

It may fondly be anticipated that current and future attempts

to interpret traditional natural law will not so much seek solutions

in the extremes of individuality or sociality, in the extremes of

rationality or tendential structures but in and from a posture of approach

that attempts to discover and interpret balance of dimensions and

characteristics that will be found only in total man.
No treatment of natural law written or attempted in the manner of

 

tradition would wisely neglect the contribution of Thomas Aquinas.
The Treatise on Law, then, will be mentioned here, and reason will

be given before-hand fbr its not receiving as much consideration as the
De Legibus of Francis Suarez that will immediately follow.

According to Mortimer Adler

The false issues and confused controversies of modern

jurisprudence must be shocking to the Thomist who finds

the Treatise on Law in the Summa Theologica an almost perfect

expression of wisdom about the nature, sources, and kinds of
Anyone who, having commenced with typically modern

 

law a
discussion of these matters, comes subsequently to a study
of the Treatise on Law is equally perplexed by the contrast.

St. Thomas appears to know the answers to problems which,
since his day, have been raised again and again, each time

with less clarity in the problem itself and consequently less
definiteness in the answer. This is equally true in the case

of natural law ~ whether it is, what it is, and how it is

related to positive law. And the consideration of natural law
has generated the central issues of modern jurisprudence -
whether law is disggvered or made, whether law is a work of
reason or of will.

While there can be no reasonable questioning of the contributions

to the history of human intellectual progress made by Aquinas, it helps

little in the advance of the argument about natural law to be historical
As Adler notes, "Though

about every human thinker except St. Thomas.
historical evidence plainly suggests that every human thinker suffers

 

 

126

from the limitations of his cultural location, and has defects peculiar
to the time and circumstances of his work, these historioans often

seem to extricate St. Thomas from the impurities of history, while at
the same time accounting for the failure of later ages to understand

St. Thomas' teaching in terms of causes which must somehow apply to

St. Thomas himself and which, if applied, would lead us to look for error
and inadequacies in Thomistic doctrine - defects appropriate to the
historical circumstances of its development."u3

Adler then proceeds to suggest that if Thomas is approached in this
manner, he may be brought more effectively into contemporary discussion.
There is little possibility of bringing his wisdom to bear on modern
problems unless he be examined, and corrected as necessary after the manner
of Adler's suggestion. If, as Adler notes, the misinterpretations of
natural law are not entirely of modern origin and if the doctrine as
expounded by Thomas were as clear as it is in some circles thought to be,
it is difficult to understand how the doctrine has come to be so greatly
misunderstood, not only in the present day, but also in the period between
the present and the time of St. Thomas.

While there may well be several other explanations for this mis-
interpretation and ignorance of natural law, Adler suggests two defects
in the Treatise on Law which account in his estimation for the difficulties
about natural law.

In the first place, considering it as a part of the

Summa Theologica, it is, as it should be, primarily

theological. It is not primarily concerned with human

positive law, or even with natural law, but with Divine

positive law, and with natural law as a human participation

of Eternal Law. In contrast, human law, as positively in-
stituted and as naturally founded, is the primary concern of the

 

 

 

 

127

Philosopher of law...In the second place, in the

Treatise on Law, there are ambiguities in the use of

some of the principal words, such as "common good"

and "law" itself...Now these ambiguities, fundamental

though they are, do not affect or mar the Treatise on

Law in so far as it is primarily a theological work

dealing with Divine positive law, with the Old and the

New. That may be one reason why St. Thomas did not make

the effort to increase the precision of his language.

Adler comments that the distinctions for Thomas need not have been
made more explicit because he himself saw them so clearly that it never
occurred to him that he would be misinterpreted. Basic to the kind of
misinterpretation referred to is that which has confused the meaning
and use of the concept "law" in the Treatise. Whatever Thomas intended or
understood, the fact remains that several of the misunderstandings about
natural law arise out of the false presupposition that the law of natural
law and the law of positive law are one and the same thing, that the term
is univocal. If this difficulty were attended to, perhaps a beginning,
at least, could be made towards introducing the Thomistic doctrine into
contemporary discourse.

What is more to the point here, however, is the first defect that
Adler sees in the Treatise, i.e., that human law as the primary concern
of the philosopher of law was not the preoccupation of Thomas Aquinas.
This charge will be accepted as substantially true here, and for this
reason the De Legibus of Suarez, certainly more philosophical than

theological, will be used rather than the Treatise on Law in the following

section on the role of reason in natural law theory.

 

 

1
Wild, p. 181.

2
Ibid., p. 181.
3Ibid., Pp. 186-187.

1"mm, p. 186.

SWild, p. 187.

61bid., p. 187.

7Ibid., p. 189

8
Ibid., pp. 189-190.

9
Ibid., p. 190.

lovild, p. 105.

ll ,
W1ld, p. 107.

12 ,
Wlld, p0 1080

13..
”lld. p. 199.

1”Wild, p. 199.

15 ,
Wild, p. 160.

16Wild, p. 161.

17 .
Wild, p. 159.

18 .
Wild, p. 159.

19 ,
wild. p. 175.

20Wild, p. 183.

Footnotes

128

129

21mm, pp. 183-188.

22
Phys. 198a, 25, Meta 10AM a 36, Pol 1252b 30 as cited by Wild, p. 169

23
Wild, p. 170.

2“Phys 192 b 22.

25Wild, p. 189.

26Wild, p. 206,

27Wild, p. 189.

28mm, p. 231.

29Wi1d, p. 231.

30 ,
Wild, p. 231.

31w11d, p. 232.

32,.
filld, p. 2300

33
Wild, pp. 232, 233

an ,
Wild, p. 239.

3 0
5Ethics and the Human Community, p. 63.

36 .
Leslie A. White, The Evolut1on of Culture, p. 3.

7
America, April 10, 1965, p. 487.

38
America, p. 487.

39
America, p. u87.

“0
Ibid., p. “87.

 

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130

41 .
"A Question About Law, " Essays In Thomism, Robert E. Brennan, O.P. ed.,

New York: Sheed 8 Ward, 1942, p. 207 ff.
#2 .
A Question About Law, p. 207
43
Ibid., p. 208

1w. ,
Ibldo. pp. 208, 2090

 

 

CHAPTER IV

DEFINITION AND LOCATION OF NATURAL LAW

In the early pages of this thesis, several authors, i.e.,
Maritain, Aquinas, and Wild, were cited fOr their definitions of natural
law. An exhaustive litany of definitions from the time of Sophocles,
Plato, and Aristotle to the present time is possible but would serve
no other purpose than to establish the continuity of thought and belief
that has existed in Western civilization for more than five thousand
years. For the student interested in pursuing the subject an adequate
beginning will be found in Rommen and Gierke both of whom have been
referred to in earlier sections of this study.

For the purposes of the present treatment of the subject, it will
be sufficient to follow the sources used by Suarez preliminary to his
investigation of the meaning, location, and operation of natural law.

In the proper sense of the term, according to Suarez, natural law
which pertains to moral doctrine and to theology is "that form of law
which dwells within the human mind, in order that the righteous may be
distinguished from the evil, in accordance with the passage of Psalsms
(iv [vv.y,7]): 'Who Sheweth us good things? The light of Thy countenance,
O Lord, is signed upon us.‘ Such is the explanation of St. Thomas in
the passage (I-II, qu. 91, art. 2) wherein he concludes that the natural
law is, 'a participation in the eternal law on the part of the rational

creature.'"l

131

 

 

.
.
.
.

 

 

132

In another passage2, St. Thomas says: "Because man (alone) among
living beings is cognizant of the essential nature of his end and of the
comparative relationship between the work and the end, the natural power
of comprehension implanted in him, which is directed toward befitting

action, is therefore spoken of as the lex naturalis, or ius naturale

 

(natural law), while in the case of other animals, it is called naturalis
aestimatio."

Suraez adds that this is plainly the opinion of Cicero3 as
indicated in the following: "Wherefore that law which the gods have given
to the human race has been justly praised; since it is the reason and
mind of a wise being, suited to commanding and to restraining."

Thus it is that the law, or that aspect of law under consideration,
is called natural, not only, as Suarez puts it, in so far as the natural
is distinguished from the supernatural, but also in that what is natural
is distinguished from what is a matter of free choice. This is the case,
he continues, not because the execution of that law is natural, or the
result of necessity, as is true of the natural executive of the in-
clinations of other animals or inanimate objects, but because the law in
question is a kind of characteristic of nature, and because God himself
has annexed that law to nature.

Moreover, according to Suarez, the natural law is also divine,
in that it is decreed directly by God himself.

Such was the opinion of St. Thomas as expressed in the

above mentioned passage (Q. 91 and qu. 94, art. 6), where

he cited the words of St. Augustine (Confessions, Bk. II,

Chap. iv), spoken to God, 'Thy law is written in the hearts
of men', words which had reference to natural law; where-

 

 

133

fore Augustine has said, in another work (On the

Sermon of Our Lord on the Mount, Bk. II, chap. ix),

that there is no soul, 'in whose conscience God does not

speak. For who save God writes the natural law in the

hearts of men?‘

In addition to the general criteria which may be used to classify
those modes of natural law theory that belong to the Graeco—Roman-

Medieval tradition, as these criteria were set down by Wilds, and the
definitions selected in the pages immediately preceding, an understanding
of what the natural law is requires an inquiry into the nature of that law.
In this manner, it may be hoped that the meaning of natural law will
become more evident, and the fact of its existence more certain.

Many writers in the classical tradition have asserted that natural
law is none other than rational human nature itself. Because this concept
may be advanced with at least two meanings it needs some clarification.

In the first instance, or meaning, as Suarez notes, the assertion
that natural law is rational nature itself may be understood to refer to
nature itself, strictly speaking, and in so far as, by reason of its
essential character, certain actions are by nature appropriate to it,
and contrary actions inappropriate, "According to the other interpretation,
the statement in question is to be understood as referring to nature on
the basis of the power of (gig) rational judgment which is inherent in
it, and with respect to which it has the character of law."6

Concerning the first opinion, that rational nature, strictly
Speaking, is natural law itself, in the sense that rational nature involves

no inconsistency and is the basis in human actions, either of all their

righteousness (through their accord with the said rational nature),

 

134

or else, on the contrary, of their turpitude (through their disaccord
with that nature), it will be seen through a study of the arguments
advanced in favor of this position that it is unacceptable.

The basis of this opinion held by Vanuez7 and others as cited
by Suarezg, is that certain actions are so intrinsically bad of their
very nature, that their wickedness in no way depends upon external
prohibition, nor upon the exercise of judgment, nor upon the divine will;
and similarly, other actions are so essentially good and upright that their
possession of these qualities is in no sense dependent upon any external
cause. Suarez assumes that this is the common opinion of theologians as

he cites Sentences, Bk II, dist. xxxvii, the words of St. Thomas I-II,

 

qu. 100, art. 8, ad 3, and from the Relectio X (De Homicidio, nos. 1 et
seq. of Victoria).

To avoid confusion, before proceeding with the argument, it should
be kept in mind that what is supported above and confirmed by Suarez is
a doctrine that regards the intrinsic goodness or evil of human actions.
This is an objective order, as opposed to the subjective order which is
man‘s determination of the objective goodness or evil of his actions.
This subjective order may or may not, culpably or not culpably coincide
with the objective order of things.

Basic to the position that human acts are good or bad by their
Very nature is the view that such moral actions have their own intrinsic
character and unchangeable essence. Further, according to this view,
these actions depend in no way upon any external cause or will, any more

than do the essences of other things.

 

 

 

135

As an illustration of the foregoing, Suarez offers the following:

...lying, for example, is not evil because it is

adjudged by reason to be evil; rather, the converse

is true, that lying is adjudged evil because it is
essentially evil; therefore, it is not judgment that
measures the evil of this action, and consequently, it

is not a prohibitory law on the subject. Wherefore,

other conclusions may be prOVed by the converse reasoning,
as follows: the action in question is evil for this reason,
namely, that in its very essence it is out of harmony with
rational nature; hence, that nature itself is the standard
by which this action is me sured, and, consequently, that
nature is the natural law.

 

A second argument that may be advanced to support this opinion is

that precepts of natural law are either principles that are self-evident

 

from an analysis of their terms or they are obvious conclusions that
are necessarily derived from self-evident principles. According to this
view the principles and conclusions which are the body or content of
natural law are prior to every judgment framed by reason.

This would seem to be the case not only for judgments of the
created intellect but also for the judgments of the divine intellect as

well.

For just as the essence of things, in so far as it does not
involve a contradiction, is in each case of a given nature,
by virtue of the fact that it is such inherently and prior

to any causality on the part of God and (as it were)
independently of Him; even so, the righteousness of truth and
the evil of falsehood, are such of themselves and by virtue
of eternal truth. Hence, with respect to such actions and
precepts, a judgment cannot have the nature of law, seeing
that prior to every (possible) judgment they possess their
good or evil character, and are prescribed or forbidden
accordingly; and therefore, with regard to these same actions
and precepts, there can be nothing endowed wish the character
of natural law, save rational nature itself.

 

 

 

 

136

After exposing the first interpretation of rational nature as
natural law, Suarez rejects the position and lists several reasons for
its unacceptability, the first of which as he claims is foreign to the
teaching of all theologians and philosophers.

Because rational nature itself, strictly viewed in its essential
asPect, does not give commands, nor does it make evident the rectitude
or turpitude cf anything, Suarez holds that it cannot be law in any
sense. He confirms this in adding that rational nature does not direct
or illuminate or produce any of the other proper effects of law.

Therefore, it cannot be spoken of as law, unless we choose

to use that term in an entirely equivocal and metaphorical

sense, a use which would render the entire discussion futile.

For, we assume, in accordance with the common opinion found

not only in the words of the Doctors, but also in the canon

and the civil law, that the body of natural law (ius) is a

true body ofliaw, and that particular natural law (lex)

is true law.

Proposing a third argument for his contention that rational nature
is not natural law, Suarez comments that not everything which forms the
basis of the goodness or rectitude of an act prescribed by law, and not
everything which is the basis of turpitude of an act forbidden by law
may in themselves be called law. While it is true that although rational
nature is the foundation of the objective goodness of the moral actions
of human beings, it may not on that account he called law.

As Suarez claims, nature may be spoken of as a standard, "yet it
is not correct to conclude on that ground that it is law, for 'standard'

'12 In support of his

is a term of wider application than is ‘law.
position, Suarez cites the example of almsgiving. The need of a poor

man and the ability of the one giving the alms are the basis of the

 

137

Vgoodness or the obligation in the giving of alms. Nevertheless, no
one holds that neither the need of the poor man nor the ability of the
giver, is the law that imposes almsgiving.

The words of St. Thomas (II.-II, qu. 141, art. 6), concerning
temperance, furnish a similar example when he says that the
need of the body is the rule of temperance; yet no one will
say that this need is the law (of temperance); on the con—
trary, it is the foundation of the law. In that same passage
(ad I), indeed, St. Thomas says that happiness is the rule of
human actions in so far as they are morally good; and yet
happiness is not law.

After offering as supporting evidence of his position, several
absurdities that follow from the position which holds that rational nature is
the same as natural law, he concludes his attack and prepares to set forth
his argument in support of the position that holds natural law to be
rational nature regarded on the basis of its power to judge, by the light
of natural reason, concerning those things which are in accord or discord
with it.

It is natural reason and not rational nature that is natural law.
And natural reason is then seen to be the Very precept (lex) of nature
which lays commands or prohibitions upon the human will regarding what
must be done (or left undone), as a matter of natural law (jus).

This appears to be the Opinion of theologians, as one

gathers from St. Thomas (I.-II, qu. 9%, arts. 1 and 2

and on the Sentences, Bk. IV, dist. xxxiii, qu. 1, art. I),

and from Alexander of Hales (Summa Universae Thgologiae, Pt.

III, qu. xxvii, memb. 2, art. I). Moreover, the same view

is held by Abulensis (Tostado) (on Matthew, xix, qu. 30),
Soto (De Iustitia et Iure, Bk. I, qu. iv, art. I),
Viguerius (Institutiones Theologicae, Chap. xv, I),

in many instances by other theologians; by the jurists on
Digest, I. i; and by Albert of Bologna (Tract. De Lege,
Iure et Aeguitate, Nos. (Chaps.) xxv and xxvi), who
especially may be consulted, in a passage wherein he refers
to other authorities. The philosophers, too, frequently

 

 

 

 

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138

speak in this vein, as we have Previously noted
(Bk. I, chap. iii).

Noting St. Paul (Romans, Chap. II, vv 14-15), Suarez continues:

...who, after saying: 'For when the Gentiles who have not

the law, do by nature those things that are of the law, these
having not the law, are a law to themselves', adds, as if

to indicate the way in which the Gentiles are a law unto
themselves and the nature of that law: 'Who show the work of
the law written in their hearts, their conscience bearing
witness to them.‘ For conscience is an exercise of the reason,
as is evident; and conscience bears witness to and reveals

the work of the law written in the hearts of men, since it
testifies that a man does ill or well, when he resists or

obeys the natural dictates of right reason, revealing also,

in consequence, the fact that such dictates haVe the force

of law over man, even though they may not be externally clothed
in the form of written law. Therefore, these dictates constitute
natural law; and, accordingly, the man who is guided by them

is said to be a law unto himself, since he hears law written
within himself through the medium of the dictates of natural
reason.

This position is also supported in the long Christian history of
natural law tradition by Basil, John Damascene, Jerome, Maximum of Turin,
Augustine, Ambrose, Isidore and Lactantius among many others. Suarez
cites all of those listed before he sets out to confirm his position by
reason.

The opinion above set forth may be briefly supported by
reasoning, in accordance with what has been said. First,
(we may argue) by means of an adequate discrimination:

for natural law resides in man, since it does not reside

in God, being temporal and created, nor is it external

to man, since it is written not upon tablets but in the
heart; neither does it dWell immediately within human nature
itself, since we have proved that it does not do so; nor

is it in the will, since it does not depend upon the will
of man, but, on the contrary, binds and (as it were) coerces
his will; hence this natural law must necessarily reside
in the reason. 6

 

 

 

 

139

After proposing a second argument on the basis of the legal
effects of natural law, Suarez notes that the exercise of dominion and
the function of ruling are characteristic of law; and in man, these
functions he attributes to right reason, that man may be rightly governed
in accordance with nature. Thus, he concludes that the natural law must
be constituted in the reason of man as in the immediate and intrinsic
rule of human actions.

The question now arises as to whether natural law consists in an
act of judgment or in a habit of the mind. Suarez holds here that natural
law, in the strictest sense, is in the actual judgment of the mind.
However, he adds that the natural light of the intellect, the habit of
the mind, may also be called the natural law, since men retain that law
in their hearts, although they may be engaged in no (Specific) act of
reflection or judgment.

...Therefore, just as human law, in so far as it is external

to the legislator, implies on the part of the subject not

only active knowledge thereof, or an act of judgment, but

abo a permanent sign of its existence, contained in some

written form which is always able to awaken knowledge of that

law; even so, in the case of natural law, which exists in the

lawgiver as none other than the eternal law, there is, in the

subjects, not only an active judgment, or command, but also

the (mental) illumination itself in which that law is (as it

were) permanently written, and which the law is always capable

of incorporating.

At this point it seems necessary to dismiss one final point before
moving on to the next section which will attempt to explain why the reason
Of man may be sometimes correct and sometimes in error.

Natural law and the conscience of the individual are sometimes

comPared. Although these two powers or forces are thought by some to be

 

 

 

1M0

identical, it can be shown, that strictly speaking, this is not the
case.

The term 'law' as it is understood in this thesis, is taken to
mean a rule in general terms regarding those things which should be done

and those things which should be avoided. 'Conscience' on the other

 

hand is taken here to mean, and it is so accepted generally, a practical
dictate in a particular case. Thus conscience is seen to be the appli-
cation of the law in a particular case rather than the law itself.

From these facts, it also follows that 'conscience' is a
broader term than 'natural law', since it puts into application,
not only the law of nature, but also every other law, whether
human or divine. Indeed, conscience is wont to apply not
merely true law, but even reputed law, in which sense it some-
times occurs that conscience is in error. (True) law, on the
other hand, can never be in error, for, by the very fact that
it was erroneous, it would fail to be law, an assertion which
is especially true with respect to the natural law, of which
God is the Author.

 

A final difference between natural law and conscience, as noted by
Suarez, lies in this that law is prOperly concerned with acts that are to
be performed, whereas conscience deals also with acts that have already
been done. Thus, conscience is endowed not only with the attribute of
imposing obligations, but also with the attributes of accusing, bearing
witness, and defending as may be gathered from St. Thomas.19 On this
point, Alexander of Hales and Bonaventure may be consulted in the $231
cited by Suarez.20

This thesis on the natural law foundations of freedom of expression
in American political philosophy defends the capability of human reason
to discover truth, and the capability of the human will to act according

to reason. Not to defend the second of these propositions, at least in

—‘—_,

 

 

 

141

practice, would make law, reward, and punishment meaningless or worse.
Not to defend the first would constitute at least an implicit denial of
the purpose of all human search for knowledge. This is not to say that
all theoretical questions involved in either case have been conclusively
resolved. 'Man and the complexity of his relationships to society, to
events, and to the physical world in which he.lives will never cease to
be an all but limitless field of exploration for theologians, philosophers,
and scientists of every dimension, physical as well as social.

In the face of the mass of evidence to the contrary, a denial of

man's ability to know, and to act according to reason assumes the

responsibility for proof in the testimony of evidence, that there never

has nor can be such a human enterprise.

To clarify the position held by this thesis, it is held here that
men, all men, know the natural law with greater or less difficulty.
To a large extent, men's knowledge of this law will be determined by the
stage of development of their powers of observation, reason, and moral
consciousness. This natural law that all men know is at root a matter
of principles in which no process of reasoning is involved, since
principles, by definition, are indemonstrable, and ultimate in nature.
As such, there can be no specification to particular circumstances.
Among such principles would be the prologue to natural law, "Do good and
avoid evil." Also included in this category would be the three propositions
Proposed by Ulpian in the third century: "Do good to others," "Avoid

injuring others," "Render to each his own."

 

 

 

 

142

There is little or no possibility of a process of deduction
either from these principles or from the following precepts that will
eventuate in a minutely detailed code of law and human conduct.
Natural law and the common law of nations do not work out in this
fashion. And, it is on the basis of such claims as this that natural
law philosophy has in the past fallen into disrepute.

Understanding principles, then, as the first level of law, the
way is clear for an inclusion of precepts that are immediately and
necessarily drawn from the principles of law. These are summed up in
the Decalogue. The propositions of the precepts underlie the laws and
customs of all societies, and they do so because they are necessarily
deduced from the principles of law.

In recent times, most if not all of the precepts of the Decalogue
have been verified by modern methods of investigation. The noted
anthropologist, Clyde Kluckholm, held a position on cultural values,
based on long and thorough study, that establishes beyond any reasonable
doubt that there are in the midst of many cultural value variances
a number of cultural values that are universal. Among these he names
the following: that no culture has made of human suffering an end
of and for itself; nowhere is murder, nor indiscriminate lying and
cheating allowed within the group. He further states that cultural
relativism does not justify the conclusion that cultures are in all
respects utterly disparate monads and hence strictly non—comparable

entities.21

 

 

 

 

 

_L"

 

 

 

 

143

Both the principles and the precepts are inadequate by themselves
to govern ethical action, but for different reasons. In the case of the
principles the inadequacy arises because the principles specify only
the end, the finality of human action, and say nothing about the means
of attaining that end. In the case of the precepts of law, the means
are specified, but only in a general way, without reference to the con-
tingent circumstances that are always involved in action and in the
governance of action.

Before proceeding to a consideration of the place of positive law
in this brief analysis of legal structure, some mention should be made
of the ’us entium, the law of nations, to place it within the structure
of law, to distinguish it from natural law, strictly speaking, and to
indicate its relevance to formulations of international codes of
communication ethics.

Grotius who has been treated at some length earlier made a con-
siderable contribution to the question of the law of nations; yet as will
be seen he paved the way for the confusion of Pufendorf who eradicated
the distinctions between natural law and the law of nations.

To the undying merit of Grotius, as Rommen puts it, he systematized
international law and placed it upon the solid.foundations provided by
natural law. In the midst of an era of fierce wars, including the Thirty
Years' War (1618-1648). when the civitas christiana was being rent with
enormous cruelty and radical disregard fer legal norms, Grotius powerfully
and impressively upheld the idea of rule by law even in time of war. In

so doing he brought back to life the intellectual unity of the West, after

11m

its religious unity had been destroyed during the time of the Reformation.
Thus he substituted an intellectual solidarity founded on reason for a

solidarity that had once been grounded on a common faith.

It was, however, because of his heavy emphasis on reason that
Grotius tended toward a kind of rationalism which led him to obscure
the clear separation between natural law content and the positive con-
tent of the jus gentium as this was deftly exposed by Suarez and the
Late Scholastics. The path was then Open, as has been noted, for the
Pufendorf equation of ius naturale and ius gentium.

The great accomplishment of Suarez and de Vittoria in particular

was to clear up the ambiguous distinctions of Roman law that had infil-

trated natural law thinking.

Ius gentium in the proper sense is not ius naturale,
although the precepts of the latter are evidently valid
for the ordering of the community of peoples. Thus
differentiated, ius gentium is the quasi-positive law

of the international community: it is founded upon
custom as well as upon treaty agreements. The basic
norm of this positive ius_gentium is, besides the
material principles of the natural law, especially the
axiom, pacta sunt servanda. To positive international
law belong the doctrines of war, truce and peace, in-
ternational trade and commercial treaties, and the law
concerning envoys. But the requirements that a war must
be just, and that the community of peoples must establish
and foster friendly intercourse, pertain to the natural law.

 

22

The Scholastics distinguished further the ins gentium as a basis
for international affairs from international private law.

The latter contains norms regarding legal institutions
that are common to nearly all peoples, and hence are
closely related to the natural law. Such are the general
formal legal institutions touching purchases, leases,
promissory notes, contracts, ownership, the family and

145

inheritance. For, despite regulations that differ

in detail, all these legal institutions have, among
almost all peoples, many things in common over and above
their natural-law foundation. 3

Thus it is seen that the natural law may well be operative beneath
all law as a kind of substratum, but neither positive law nor the
jus gentium may either be equated with or logically deduced from natural
law. An understanding of these distinctions may help to clear the air
for ethical discussions that are often frustrated in the face of false
and pretentious natural law claims. When, for example, ius entium, is
so distinguished from natural law and seen to include customs and treaties,
as well as natural law, the way is open for empirical procedures that
may effectively be employed in the establishment of a code of ethics for
communication that will be valid for a given country, and with appropriate
allowance for cultural variations, for the community of nations.

In the search for a code of communication ethics upon which a
system of laws may be built that will be founded on reason rather than
arbitrary will, whether this search is made to establish a code for one
nation or for the international community, a return will perhaps be made
to the original discovery of the ius gentium.

The Roman world empire, with its toleration of the legal

institutions of subject peeples, placed in the hands of

the jurists still another important source of knowledge.

This was the unwritten iusggentium, which arose out of

actual practice and was substantially "found" by the
jurists and magistrates.2u

 

Historically, what has been said of the ius gentium is rooted in
Stoic thought with implications for an age of communications that are un-

mistakeable. To issues current and pressing today within this nation and

 

 

 

146

among the family of nations the following might appropriately be addressed:

All that you behold, that which comprises both god

and man, is one-we are the parts of one great body.

Nature produced us related to one another since she

created us from the same source and to the same end.

She engendered in us mutual affection, and made us

prone to friendships. She established fairness and

justice.

It seems quite critical in the face of the real technological
possibilities of the common use of television signals transmitted via
satellite systems that serious study he made of the ius gentium, its
history, defects of interpretation, its methods, its discoverable content,
and its application to ethical and legal problems that will grow out of
increasingly more closely knit inter-cultural relationships. The positive
laws of one nation or of many nations cannot be relied upon in themselves
to solve the difficulties. Positive law, as will be seen below, performs
a function in society quite different from that of the common law of
nations.

The United Nations seems a likely organization to develop such
studies in spite of its failures and procrastinaticns of the past in
the communications area.

At the third level of law, the necessity and objective "oughtness"
of principles and precepts gives way to contingency, uncertainty, and the
tentative. The reason for this lies in the circumstance that rules
attempt to meet facts. Because, however, rules involve facts, and
because facts are practically infinite in number, and subject to change,
at least in relation to one another, the rules will consequently be

defective insofar as they fail to provide for the unknown or unusual

 

 

1’47

cases; and, on the other hand, since facts change in their relationships,
the rules.must change, if they are to account for the change in relation-
ship and maintain a reasonable harmony with the facts. This is the level
of positive law.

The role or function of positive law in the pattern structured
above is something quite different from that of natural law or the common
law of nations. Positive law has a job to do which natural law and the
common law of nations cannot do. Positive law is not, strictly speaking,
a deductive result from one or the other or both. Rather, positive law
is a determination of both to the facts of the circumstances about which
the positive law attempts to speak. These determinations are made by
the lawmakers of the community. To these lawmakers, insofar as they are
deeply concerned with justice in the personal, business, social, and
political relationships of the community, belongs one of the most
arduous tasks assigned to man. Thomas Aquinas was so impressed with the
difficulty of this task that he wrote: "Suitably to introduce justice
into business and personal relations is more laborious and difficult to
understand than the remedies in which consist the whole art of medicine."26

To meet all of the objections that have been raised and will be
raised against the existence or validity of natural law, and in its
meaningfulness as a basis for an ethics of communications proper to the
American political philosophy is patently impossible, and, for the most
Part, largely irrelevant to the purposes of this thesis. Since most of
the objections fall under the general heading of man's susceptibility

to error, an answer to such objections will be attempted here.

 

 

 

 

 

148

To some extent both the development of man's moral consciousness
and the fallibility of human reason have led more than a few to discredit
natural law. If, as is now known, man once was victimized by myth and
superstition, how can there be any certainty that further advances in
human knowledge will not reveal a continuing and increasing number of
misconceptions, judgments and conclusions about man and the world in which
he lives? 0n the same grounds, these objectors could discredit
arithmetic because some people do not know how to add, and others make
mistakes in addition.

A noted authority on the problem of Church and State, John Courtney
Murray, S.J., had this to say about the fallible reason of man:

In making human nature rational, God made it subject

to the laws of rational nature; and one of these laws

is the general law that all laws of human nature must

reach man, and be imposed upon him, by reason and its

practical judgments. There is no other way, in keeping

with the dignity of man, whereby his obedience to the

laws of his nature may be secured, save by these practical

dictates of reason which procure obedience, and a rational

obedience...Reason may, indeed, perform its function badly;

it may mistake for law what is not law, and it may be

blind to the law that really is law. But, eVen when

performing its function badly, reason cannot destroy its

own function...

For reasons given in the immediately preceding pages, supported
explicitly in the sections on Suarez and Wild, and implied throughout the
thesis, the posture of the thesis is that man does have the capacity to
discover truth, and that man does haVe the capacity to act according to

the dictates of his reason. Man, however, as experience clearly indicates,

does make mistakes, does make bad ethical decisions. Some account has

 

 

 

 

 

149

already been given of the reasons for this, in that the reason of man

is capable of development, does, in fact, grow and evolve not only in
his growth from childhood to manhood but in his growth from more
primitive to more civilized societal life. BXperience also indicates
that man, under the influence of passion, i.e., anger, lust, envy, greed,
will make mistakes that he is capable of seeing himself when not so
influenced.

To put the phenomenon of human error in another way, man as a
social animal spontaneously moves slowly out of himself into a world that
exists apart from his knowing or not knowing of it. In this moving out
he gradually becomes aware that his image of reality does not always
conform satisfactorily to that reality. He makes mistakes. These
mistakes, or errors, may generally be ascribed to two causes; he may
not really want his image of reality altered, or he may want his image
to conform to reality, but, for want of sufficient evidence, or the
ability to comprehend the evidence, he will, as a result, fall into error
when he makes his judgment. This error he may or may not perceive as such,
depending on the development of his intellective faculties and his con-
tinued exposure to evidence.

A further explanation of man's susceptivility to error may be
found in the Catholic doctrine on Original Sin. Because this account
seems to meet the two attitudes of the social reaponsibility theory of
the press as this is presented by both Peterson and Schram, a brief

survey of the doctrine will be attempted here.

 

 

 

 

150

The two attitudes referred to in the social responsibility theory
noted above are that man has a reason and is capable of using it, but is
loath to do so; and that the media have a responsibility to protect man
from temptation beyond his ability to resist.28

According to Catholic doctrine on Original Sin, man, by his fall
from grace, suffered a wounding of his nature. This wounding, however,
was not a complete corruption as the Reformers and the Jansenists con-
ceived it to be. In the condition of Original Sin, man possesses the
ability of knowing natural truths, including natural religious truths,
and is capable of performing natural and morally good actions. The First
Vatican Council taught that man, with his natural power of knowing, can
with certainty know the existence of God (D 1785, 1806). The Council
of Trent taught that the free will of man was not lost or extinguished
by the fall of Adam. (D 815). This is not to say, according to this
doctrine that the wounding of man's nature was of little significance.

On the contrary, the teaching of the Church extending back to the
time of the 2nd Council of Orange, A.D. 529, was and is that the wounding
of nature extends to the body as well as the soul: "totum, i.e., secundum
corpus et animam, in deterius hominem commutatum." (the whole man both in
body and in soul was changed for the worse. D 174, cf. D 181, 199, 793).
Together with the two wounds of the body, i.e., sensibility to suffering
and mortality, theologians, including Thomas Aquinas, enumerate four
wounds suffered by the soul of man as a result of Original Sin:

1) ignorance, the difficulty of knowing the truth, as opposed to prudence.

2) malice, the weakening of the power of the will, as opposed to justice.

 

 

 

 

151

3) weakness, the recoiling from difficulties.in the struggle for the_good,
as opposed to fortitude, and 4) desire, the desire for sense satisfaction
against the judgment of reason, as Opposed to temperance. The wounds of
the soul, then, are conceived to be caused by the loss of the preternatural

.gift of freedom from concupiscence.29

For purely theological reasons, the Protestant tradition has,
in theory, been reluctant to place much confidence in natural law with
its presupposit of a wounded yet not completely corrupt human nature.

On theological grounds no confidence is to be placed in the ability of
unaided (by Divine action) human reason to discover the truth, nor in
unaided human will to perform good or ethically acceptable actions.

In practice, however, the Protestant tradition has assumed that man
can arrive at the truth, and if this implied some supernatural assistance,
there does not seem to be any real evidence, as the following citations
indicate. The first is from the writings of Mr. Justice Holmes, a
supposed opponent of natural law theory.

...But when men have realized that time has upset many

fighting faiths, they may come to believe even more than

they believe the very foundation of their own conduct that

the ultimate good desired is better reached by free trade

in ideas - that the best test of truth is the power to get

itself accepted in the competition of the market, and that

truth is the only ground upon which their wishes can be

carried out. That at any rate is the theory of our
Constitution.30

John S. Hill disputed the validity of this proposition as it was
espoused by Hilton in the Aereopagitica, but not necessarily because the
truth could not be discovered; rather that it was doubtful that this was

the way to do it infallibly. Professor Hocking expressed similar doubts,

152

again without any denial that the truth could not be discovered, in the
following excerpt from his book, Freedom of the Press, (p. 93): "I.fear
it is simply not the case that in the profuse and unordered public ex-

pression of today the best views tend to prevail."

Now having completed, as far as the purposes of this thesis require,
an historical study of the problem of natural law, an analysis of the
three basic ontological categories of essence, existence and tendency, a
study of the function of reason in natural law theory, and an explanation
for man's capacity for truth and susceptibility to error, an examination
will now be made of selected laws, codes, customs, and practices. The
assumption that such an examination will attempt to support is that the
ethic is in the industry, i.e., the media of mass communication, and
that this ethic can be discovered and explicated in the light of the
preceding study of natural law.

It should be mentioned here that it is not the purpose of this
thesis to propose answers to particular ethical problems in communications,
but rather to establish the validity of a natural law framework within
which such problems may be studied and worked out. And this framework
for investigation will have been seen not to be the result of an
arbitrary selection but one that is consonant with the American political
philosophy rooted as this is in natural law theory. Secondarily, such a
framework, established both on an historical as well as on a metaphysical
foundation, may serve to correct such departures from the American philosophy
as have occurred and will very likely continue to occur in formulations

of ethical practice for the mass communications media in this country.

 

 

 

153
Footnotes

lDe Legibus, Francis Suarez, Lib. I, caput III, trans. The Classics of
International Law, ed. James Brown Scott, Oxford: At the Clarendon
Press, lean, p. #2.

 

2Sentences, BK. IV, dist. xxxiii, art. 1.
30n Laws, Bk. II, chap. iv, no. 8.
”Ibid., p. u2.

SSupra, p. 33.
5 .
Ibid., p. 178.

7Vazquez I.-II, disp. 150, chap. iii.

8Suarez, p. 178.

9Suarez, p. 179.

loSuarez, p. 180.

llSuarez, p. 181.
12

Suarez, p. 181.
13Suarez, p. 181.
14

Suarez, p. 183.
15

Suarez, p. 18#.
16

Suarez, p. 185.
17

Suarez, p. 187.
18

Suarez, p. 187.
l

9
St. Thomas, Pt. I, qu. 79, art. 13, and I-II, qu. 19, art. 6.

20
Alexander and Bonaventure, cited by Suarez, p. 187.

 

 

 

 

 

 

 

 

 

 

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154

2
1"Culture and Behavior,"'Handbook of'Social'Psychologz, C. Kluckholm.

p. 954.-

 

22Rommen, pp. 68-69.

Rommen, p. 69.

2”Rommen, p. 29.

25Epistulae morales and Lucilium, XCV, 52, trans. by R. M. Gummere,

in the Loeb Classical Library as quoted by Rommen, p. 25.

26Ethicorum, V, 15, quoted by Rommen, p. 252.

27JohnACourtney Murray, S. J., "Freedom of Religion: I The.Ethical Problem,"

Theological Studies, VI, 2, June, 1945, p. 250.

 

28Responsibility in Mass Communications, Schramm, pp. 93, 9Q.
29 0
Ludwig Ott, pp. 112-113.

30Oliver W. Holmes, Jr., "Dissenting Opinion in Abrams v. United States,"
Thomas I. Emerson and David Haber, Political and Civierights in the
guited States (Buffalo: Denis 6 Col, Inc., 1952), p. 359.

 

 

 

CHAPTER V

LAWS AND CODES RELEVANT TO PROBLEM IN THE UNITED STATES

In the United States, today, in spite of the simplicity of the
free speech and free press clauses in the First Amendment to the national
Constitution, in spite of the equally and apparently evident natural law
philOSOphy found in the writings of the Founding Fathers, questions
concerning the exercise of these liberties continue to engross and perplex
moral philosophers, political scientists, and lawyers who attempt to
define these rights and their limits in a democratic, pluralistic society.

One of several examples of the scrutiny to which supposed and once-

hallowed principles have been subjected is the following, taken from an

article by Gerhart Niemeyer, Professor of Political Science at Oglethorpe

University:

Under freedom of speech, all ideas bearing on common
affairs are considered to be equally entitled to ex-
pression, regardless of their content and intrinSic
value...This principle of nonpreferment 18 based on
certain characteristic beliefs...belief in the free
quest for truth, belief in the free determination of
the will of the people, and belief in the rational.
method of discussion as a 'common good' of the social
order...Like much of political liberalism, it (free
speech) turns out to be a self-defeating proPosition.

The argument here revolves around the proposition that the

Principle of free speech, born of reverence for truth, proceeds to

dethrone any truth already gained, by guaranteeing that the further quest

will not be affected by respect for what insight has already been won.

Having established such a premise, the writer then logically concludes

155

156

that such a use of the principle of free speech must inevitably lead

to relativism. He closes the article with a plea for humility rather
than neutrality in this seeking of truth, basing his plea on the nature
of these Opposing attitudes. Neutrality, he alleges, develops out of a
profession of ignorance while humility springs from a confession of
imperfection.

Taking the above as one of many instances of confusion in the
question of freedom of expression, an attempt will now be made to show
that the issue is not altogether helpless of resolution. 0n the contrary,
within the framework of natural law theory as this has been seen to underlie
the political philosophy of this country, an outline will be sketched
to indicate that the ethic is in the industry and can be discovered and
explicated. This attempt will be made through an examination of relevant
laws, and codes that reflect the basics of American political philosophy.

The First Amendment to the Constitution, adopted in 1791, reads
as follows: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the Press; or the right of the people to assemble,
and to petition the Government for a redress of grievances."

It is generally accepted on the basis of Madison's careful minutes
of the convention that only casual and infrequent mention of the press
was made. Aside from some discussion as to whether or not the men
intended to accomplish more by this amendment than to prohibit prior
restraint of the press by government, there is sufficient evidence in

available documents that the entire Bill of Rights was a concession

157

offered.by the conservatives, a price paid by the authors for the public
consent that made the document of Constitution practicable.

It would seem that freedom of the press was a matter of serious
concern for the authors of the national charter even though little
discussion of the issue is indicated, as noted above, in Madison's minutes
of the convention. Some did not think it necessary to include the
provision, and, in fact, seem to have felt that such an inclusion might
have the effect of limiting freedom of expression. Many of the
Federalists, including Hamilton viewed the liberty of the press clause as
superfluous or meaningless.

What signifies a declaration, that "the liberty of the

press shall be inviolably preserved?" what is the liberty

of the press?...I hold it to be impracticable: and from

this I infer, that its security, whatever fine declarations

may be inserted in any constitution respecting it, must

altogether depend on public opinion, and on the general

spirit of the People and the Government.

According to Lee, it was only after the objections of Hamilton and
the Federalists had been answered by Samuel Adams and his supporters that
the First Amendment took effect on December 15, 1791.

Thus there were arguments and disagreements among the delegates.
In addition, public sentiment apparently operated as a strong factor in

the eventual ratification.

Delegates from Massachusetts reported it would be
impossible to win ratification of the Constitution in

that state without a clause concerning freedom of ex-
pression. Virginia could not muster enough votes for
ratification until Governor Edmund Randolph called upon
the framers to add the Bill of Rights. ...Delegates were
then told to return to their respective states, and to

use all influence available in mustering support for
ratification of the main document on the promise that the
Rights clauses would be included in the charter. It was on

158

this understanding that New York finally approved the

Constitution, but even so, it was not an easy victory

for the Federalists.3

The evidence then would seem to indicate, in an issue admittedly
obscured by a variety of reasons and purposes, that the press clause
was forced upon the.framers of the Constitution by expedience. That
their intentions were somewhat ambiguous seems clear in that the same
. group was responsible for the Alien and Sedition Acts passed by the
Congress in June and July, 1798. The first law was aimed at troublesome
foreigners living in the country, and the second attempted to muzzle
irritating editors.

However the freedom of expression clauses came to be included in
the Federal Constitution, two points might be noted. Freedom of speech
and freedom of the press are a part of the fundamental law of the land.
Thus it is not the government in the United States that grants these
freedoms, and any restrictions on these could ensue only after the
question had been submitted to Constitutional amendment. In passing,
it might be noted that this is not the case in Great Britain where the
Parliament provides the protection for the rights of free expression and
could presumably take them away.

As a part of the fundamental law of the land, these guarantees
came about not only through the action of the political leaders, nor
necessarily through an overt action of the majority of people, but rather

as a result of debate, concession, public opinion, and public pressure,

all of which are taken here to be mechanisms of the public consensus.

 

159

If it-is true, as assumed in this thesis, that the.ethic is in
the communication industry or community, its meaning, method, and content
will necessarily be resenant with the statement, meaning and method of
the First Amendment. The content of the ethic of communication will be
qualitatively the Same as the Amendment, but quantitatively different, as
political, social, and economic situations become increasingly more
complex in national and international life.

Admittedly, it is no simple task to determine whether or not in

any given instance a code statement or a law relating to freedom of ex-

 

pression is resonant with the First Amendment. Further, it helps very
little to say that all that follows from the First Amendment, if it is
consonant with the Amendment, will have been implied in the Amendment.
This last, in fact, is accepted as largely true in this thesis, but this
would seem to be a post factum sort of thing that would have little
practical significance.

What is required as a means of evaluating the resonance of a
communications ethic with the fundamental law of the land is a "basic
philosophy to serve as a stabilizing influence in the interpretation of

the First Amendment.“l This stabilizing influence will be, as this thesis

 

has attempted to show, a careful consideration and study of the natural
law theory that constituted the framework, and was, in fact, the environ-
ment of the Constitution and the Amendment.

Unless it is held that this country and its political philosophy
have changed radically and substantially into something other than what

these were in 1791, it may, with some assurance, be presupposed that the

   

 

160

predominant tone and structure of the laws and codes of communication
reflects the.natural law philosophy upon which these structures are
founded.

An important component in this structure of law affecting freedom
of expreSSion is the Fourteenth Amendment, adopted in 1868, which reads
in part as follows:

"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, with due process
of law..."

By a series of United States Supreme Court decisions, it has been
established that freedom of speech, freedom of the press, and freedom of
assembly which are protected by the First Amendment from infringement
by the Federal Government, are among the fundamental rights and liberties
protected by the Fourteenth Amendment from invasion by state action.5

The freedoms thus established by American constitutional law are
not absolute. Restrictions on freedom of speech and the press not held
to be unconstitutional fall into four general categories: 1. Protection
of individuals against libel and slander. 2. Protection of the community
_against the dissemination of obscenity. 3. Protection of the state
.against internal disorder. 4. Protection of the state against external
aggresSion.

Before passing on to a brief consideration of communication codes
of ethics, it seems appropriate to.remark that since the ratification of

the First Amendment in 1791, only fivg major pieces of legislation have

 

 

 

161

been passed.that treat the problem of free eXpression: the Sedition Act
of 1798, the Fourteenth Amendment (1868), the Espionage Acts of 1917 and
1918, the Alien Registration Act of l9u0 (Smith Act), and finally the
Atomic Energy Act passed in 1946. It might be noted in addition that
the Court did not definitely declare itself on the doctrinal extension
of judicial review under the "due process" clause until 1925 in Gitlow v.
New York, more than half a century after the passage of the Fourteenth
Amendment.

The brief and selected treatment of laws relevant to the communi-
cation media completed above and the similarly limited study of media
codes in the following section are intended neither to be panoramic views
of such laws and codes nor to be samplings of all appropriate laws and
codes in the sense that samplings would be understood statistically.

For readings and projects of this kind ample materials are already
available in such works as Huddon's Freedom of Speech and Press In
America, Chafee's Free Speech in the United States, and in the various
collections of codes for journalism, motion pictures, and the broadcasting
industries.

Selections of laws and codes are made here both as points of evidence
and points of departure in an effort to determine whether or not the
ethic is in the communication industry. This can be done in a meaningful
manner provided it can also be shown that these laws and codes by their
nature and with some kind of necessity both reflect and are resonant
with the political philosophy of the nation in which the laws and codes

develop. As applied to the United States whose basic philosophy is rooted

162

in natural law theory, as demonstrated in the historical section of the
thesis, the task then will be to determine whether or not the laws and
codes reflect natural law philosophy, i.e., an objective norm of human
conduct.

Laws, codes, customs, and practices do not develop out of a vacuum,
nor haphazardly in random fashion. They develop from the will of man
regulated by reason. This should not be taken naively to mean that all
laws, codes, customs, and practices are either good or reasonable. It
has been assumed in theory here, and can be demonstrated in practice,
through observation, made within the natural law frame of reference of
this thesis that man is capable of truth and susceptible to error. In
a similar manner, it may be shown that man's will, although tending by
its nature towards what man perceives to be good and just, can lead to
evil and objective injustice through ignorance in the intellective
faculty and under the influence of disordered passions or emotions.

In much the same manner as human reason and will, in practical
matters, may be made manifest by speech so they may be made manifest
by deeds, since seemingly a man chooses as good that which he carries
into execution.5 Thus the laws and codes which attempt to regulate
and direct the media of mass communication in a free, pluralistic society
are seen to be or to reflect what their formulators have perceived
to be good and just for the industry and for the community that it serves.

But the laws and codes affecting communication may be changed both
for better or for worse as times and circumstances change, as man digests

and interprets the growing deposit of his experience.

 

 

 

163

But it is evident that by human speech, law can be

both changed and expounded, in so far as it manifests
the interior movement and thought of human reason.
WherefOre, by actions also, especially if they be
repeated, as to make a custom, law can be changed and
expounded; and also something can be established which
obtains force of law, in so far as by repeated external
actions, the inward movement of the will, and concepts
of reason are most effectually declared; for when a thing
is done again and again, it seems to proceed from a
deliberate judgment of reason. Accordingly, custom as
the force of law, abolishes law, and is the interpreter
of law.

 

In the abstract, and in principle, this is seen to be a sufficiently
straightforward appraisal of the mechanisms that bring laws, codes, and
customs into being. It also accounts for their evolution and replacement.
In concrete historical situations this operation in large part is determined
or conditioned by the culture in which it functions. In short it is
accepted in this analysis that neither total determinism, nor the random

formulation of laws and codes renders a convincing interpretation of their

 

genesis, evolution, and /or demise in the concrete experience of the
history of American laws and codes relevant to the media of mass communi-
cation.

Understanding from what has gone before that the natural law theory
underlying the political philosophy of the United States is multifaceted,
and assuming that this philosophy has not undergone radical and substantial
change on the level of constitutional law, it may be held mutatis mutandis
that the laws and codes of communications share in differing degree the
authority of the Declaration of Independence and the First Amendment which

"rests then on the harmonizing sentiments of the day, whether eXpressed

 

 

164

in conversation, in letters, printed essays, or in the elementary books
of public rights, as Aristotle, Cicero, Locke, Sidney, etc."8

In passing it may be reiterated that this thesis proposes not
only that laws and codes affecting communication media be stabilized in
their interpretation by placing them and the First Amendment in their
proper natural law environment, but that these laws and codes cannot,
in fact, successfully do what they are intended to do unless they are
formulated, studied, and interpreted within the natural law framework
that, in theory, is the philosophical basis for the present historical
situation of the United States.

A preliminary task at this point, then, is to select statements
from the code of the American Society of Newspaper Editors (adopted in
April, 1923), from The TelevisigngCode of the National Association of

Radio and Television Broadcasters (from the version revised to March,

 

1954), and from A Code to Govern the Making of Motion Pictures (adopted

 

in 1930, with occasional revisions and amendments having been made at
various times since that date). Then an attempt will be made to discover
whether or not these statements correspond to the social responsibility
theory of the press which presumably reflects the harmonizing sentiments
of the day in this area of the human experience.

The preamble of the ASNE code reads as follows:

The primary function of newspapers is to communicate
to the human race what its members do, feel and think.
Journalism, therefore, demands of its practitioners
the widest range of intelligence, of knowledge, and of
experience, as well as natural and trained powers of
observation and reasoning. To its opportunities as a
chronicle are indissolubly linked its obligation as
teacher and interpreter.

 

 

 

 

 

 

165

 

To the end of finding means of codifying sound

practice and just aspirations of American journalism,

these canons are set forth:9

The above would seem to accept Weiner's proposition that to live_

effectively means to live with adequate information. It can also be taken
to assume that both journalists and the consumers of the mass media
product are possessed of intelligence and reason in so far as these are
human powers found in varying degrees of development in any human society.

It also states the importance of observation; the observation of objective

data, and the necessity of training the human ability or power to

 

observe. Finally, it proposes as a prime function of the press the

burden of interpretation. Thus, the journalist observes to discover

 

facts that he then interprets or attempts to interpret. This finally may
be understood as an advocacy of the existence and meaningful relation

of value to fact. At very least, this statement, its implications, and
underlying assumptions are capable of being interpreted as coincident
with the natural theory proposed in this thesis as the basis of the
political philosophy of the Founding Fathers.

MacDougall implies this coincidence when he urges aspiring young
journalists to attempt to live up to this code. He offers this challenge
in the light of what he perceives to be the purpose of the First
Amendment.

...On the one hand, the founding fathers wanted to

prevent any governmental interference with or censorship

prior to publication of news in the public interest, as

they recalled the centuries of struggle which it took

in England to obtain such rights. On the other hand,

freedom of the press also was intended as a positive
instrument to bolster the chances of success for an

 

166

experimental government of, by, and for the people..
It.really was the "right to be informed" that was
being protected. ‘If the founding fathers had thought
some form of governmental regulation would best serve

that purpose, undoubtedly they would have prescribed'it.lo

According to MacDougall, the Founding Fathers felt that wide-.
open freedom for all to publish and to speak, even though this opened
up the gates for error, evil, and unfairness, would in the long run
serve the public interest more satisfactorily than the alternative of
government regulation. He sees freedom of the press and of speech as
means to an end, and not as ends in themselves.

Echoes of Milton's Aereopagitica, and Holmes’ 'market-place of
ideas' concept may be detected in MacDougall. This kind of thinking seems
to have been, in large part, overcorrected by the Hutchins commission.
The search for truth, the task to which the mass communications media
are unalterably committed, might better be characterized neither by the
naive optimism of a Milton nor by the neutralistic pessimism of a
Hocking, but by a kind of humility as indicated above.

On this note, it may be appropriate to refer to a comment made by
Aristotle in his Metaphysics:

The investigation of the truth is in one Way hard, in

another easy. An indication of this is found in the

fact that no one is able to attain the truth adequately,

while, on the other hand, we do not collectively fail,

but every one says something true about the nature of things,

and while individually we contribute little or nothing to

the truth, by the union of all a considerable amount is amassed.

Therefore, since the truth seems to be like the proverbial

door, which no one can fail to hit, in this respect it must'

be easy, but the fact that we can have a whole truth and not
the particular part we aim at shows the difficulty of it.11

 

167

The meaning of the statement that the ethic is in the.industry,
and can be.discovered.and explicated comes into focus in the course Of
an examination of laws and codes when these are studied within the frame-
work that accounts for the natural law basis of American political
philosophy.

How this works out becomes clear when the society of human beings
living in‘a specific and definable historical current of time and space .
is seen as a dynamic, living organism, a human body built large. Just
as the life of the whole body is also the life of each organ of that
body, so the life of the social and political organism is the life cf any
one of its functions. In the terms of this thesis, the media of communica-
tionsare functions of the American socio-political body which cannot be
properly understood or interpreted apart from its philosophical basis,
natural law theory. In some sense, then, natural law is the living force
of the total organism of this country. Consequently, the living force
of the organ that is mass communication will be identical. The ethic
is in the industry and this ethic is a natural law ethic. And an essential
note of this natural law ethic is that there is an objective norm according
to which ethical and legal decisions may be measured. This objective norm
can be known in thejudgment of human reason which is made on the basis
of objective evidence given to the intellect by the senses as these operate
in the observation of empirical data.

The second canon of the ASNE code directs itself to issues central

to the concern of the present investigation.

 

 

 

168

Freedom of the Press. Freedom of the press is to be
guarded as a vital right of mankind. It is the un-

. questionable right to discuss whatever is not explicitly
forbidden by law, including the wisdom of any re-
strictive statue.

 

To live effectively as a rational, individual, and social animal,
man needs adequate information. He needs this information in order to
adjust constantly to the dynamic of process in which he moves. Man is
in a state of change, always tending towards what he will be in moments
along the time-space continua. And these tendencies of man are not given
in a vacuum, but in his relationships to other men, and to the world about
him.

To illustrate man's situation as portrayed above, the figure of
man in flight may be used once again. In his life situation as total
man with all his intellectual, psychological, emotional, and physical
needs, man is the pilot of an aircraft flying towards a destination.
Such a pilot needs to know that destination. He needs to know his
ship and its characteristics. He needs to know his flight pattern, his
route, and whatever elements may be or become involved in the course of
the passage, such as weather conditions (cloud cover, wind velocity,
Visibility), and the changing relative positions of other aircraft as he
approaches them along his route. He needs to know all of this, if he is
to accomplish his destination effectively. To a large extent he obtains
this information from others with the assistance of mechanical and
electronic instruments and devices of several sorts such as altimeters,
airspeed indicators, artificial horizons, radar, and other

communication systems. With all of this, the

 

 

 

 

169

pilot himself is the essential component of a successful flight, not
only in this that he must effectively interpret the data given to him,
but also, he must be prepared to meet new situations arising from such V
unpredictable factors as human error, his own and that of others,
mechanical failure, and unforeseen changes in weather conditions.

The human situation of process involVes all of the informational
needs and complexities of the above figure plus one critical addition.
No human has ever moved into the future to return with the kinds of
information that a pilot possesses as he proceeds toward his destination.

Several questions may be considered within this framework of man‘s
need for information. One which should at least be mentioned in passing
is the important, perhaps vital, role that statistics play in helping
to meet man's informational needs. While it is quite true, as has been
mentioned above, that no human has ever moved into the future to return
with the kinds of information that a pilot possesses, it is equally
valid to view process as a centinuum. In this event, from informational
materials gathered from the past and from present knowledge and experience,
probability projections may be made with sufficient potential for in-
creasing precision development to insure against a general and dangerous
condition of "blind flying."

Probability theory tends to render more satisfactory results in
the theoretical sciences than in such practical sciences as communication
ethics and law. Much in human affairs is subject to some degree of

predictability.' However in the view of this investigation that man is

 

 

 

 

 

 

170

neither.totally determined nor totally random or free,.the tasks of
probability projection need not only depend on increasingly more
sophisticated models but must also account for those factors in the human
equation that may, in the nature of things and events, remain always

and to some degree unpredictable. There would seem to be in these
observations nothing more than an acknowledgment of the inherent limitations
built into the mechanisms of probability theory. All, in fact, that is
added here is a caution that probability not be construed as possessing

any kind of necessity, either mathematical or logical.

In the order of practical human affairs, the foregoing may now
be applied to the second canon as this canon relates to its implied
purpose, the formulation of a healthy public opinion.

Assuming that no single man is able to attain the truth of his
situation in the process of things, events, and relationships, but that
living and working with other men together they will amass a considerable
"amount" of truth, it would seem that what is rendered here is verifiable
proof of the social dimension of man's nature. Total man cannot meet all
of his needs, physical, psychological, emotional, and intellectual, alone.
Yet, living as a man with other men he is able to meet all of his natural
needs.

The information that a man needs to adjust to the always changing
relationships of process he gathers partially as a result of his own ex-
perience, and largely as a result of the experience of others. This
latter experience and resultant knowledge reaches the individual, for

the most part, either directly or indirectly through the media of mass

 

 

 

 

 

 

 

l7l

communication. It is, in turn, on the basis of such information,
individually and collectively gained, that man makes his adjustment to
the world of affairs in which he liVes.

How this works out in terms of the formation of a healthy public
opinion may be seen with the help of a figure borrowed from the space age.

If a rocket on its launching pad is taken to represent a state,
e.g.. the United States, then the contours of the rocket and its internal
mechanisms will be the external dimensions and internal parts and powers
of the body politic. The form and purposes of the rocket are determined
by the many who put it together and direct its course. As with the rocket,
so with the body politic, many of its components have demonstrated
performance capabilities in previously constructed and different devices.
Neither rocket nor body politic is built entirely "from scratch."

In the example, the general structure or plan of the rocket stands
for the constitution which establishes the body politic. The details
of rocket construction stand for the body of positive laws enacted by the
state according to its constitution. The fuel that puts life and power
into the constitution and the body of positive laws of the nation is the
public consensus. The public consensus, as was seen in the early pages of
this thesis, is in the words of Adolph A. Berle, as Quoted by John Courtney
Murray, "a set of ideas, widely held by 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...It is not a

 

 

 

 

 

172

spontaneous fact in the minds of many individuals. It is the product of
a body of thought and experience...Were it codified, it would be seen as
a 'systematized recording of experience and attitudes."12

This composite of attitudes, beliefs, and value systems, a product
of man's capacity for truth and susceptibility to error, then, is the
power plant that makes the body politic move with its own special identity
along the continua of time and space.

As the rocket mOVes off the pad and into space towards its objective,
e.g., the moon, it constantly adjusts to the new situations that it meets
in each stage of its progress. If it meets these circumstances
effectively and as predicted, it will adequately perform its task and
reach its objective.

In the case of the public consensus as it operates within the body
politic, this consensus, the fuel which powers the nation, must possess
the capability to expand and/or contract according to need, if it is to
do its job effectively. The consensus has this capacity provided the
constitutional and statute laws of the nation are flexible enough to
withstand the pressures of changing times and circumstances, and durable
enough to maintain the substantial national identity that is the external
form of the public consensus.

The question that now arises is that which concerns the cause of
the expansion and contraction of the public consensus. This cause, in
the construction attempted here, is the reaction of the public consensus
to an event which is of cencern to the body politic.

To continue with the figure of the rocket as it moves upward

through its various stages,'Me body politic as it moves upward toward its

 

 

 

173

objective, the common good of all its citizens, meets situations like
Korea, Viet Nam, and the Dominican Republic.

Very few individuals received their information directly from
the scene of the above mentioned crises. And those who were on the scene
observed and reported from a frame of reference that reflected the public
consensus. These observations and reports, in differing form and
dimension, were then given to the government of the United States and to
the people of the same nation.

At this point in the argument both the first and second sections
of the fourth canon come into play.

Sincerity,_Truthfulness,_nccuracy. Good faith with the

reader is the foundation of all journalism worthy of its

name.

1. By every consideration of good faith a newspaper is

constrained to be truthful. It is not to be excused for

lack of thoroughness or accuracy within its control or

failure to obtain command of these essential qualities.

2. Headlines should be fully warranted by the contents of

the articles which they surmount.

The better informed, i.e., the more accurately and more fully
informed, the public and the government is about such events as Korea
and Viet Nam the more and better the opportunity for the formation of a
healthy public opinion.

As information becomes available to the general public, attitudes
will form, generally in support of or against a course of action already
initiated by the government. Here is seen the burdensome task explicitly
undertaken by the Johnson Administration, the task of government by con-
sensus. This posture of government has been attempted with varying degrees

of success by Washington, Jefferson, Monroe, and P. D. Roosevelt.13

17%.

The differences that constitute public opinion, even under the
assumption that all the people are equally exposed to all of the data

available, stem from varying degrees of intelligence, intensities of

interest, and modes of bias or prejudice.

Whatever, in any specific instance, may be the cause for differences
of attitude, and differences in individual reaction to a public event,
public opinion is formed when the public conscience, an equivalent

of public consensus, confronts an issue which involves the public.

If
this opinion is healthy, i.e., if it conforms to the data of the event,

and has ample room for discussion with consequent opportunity for correction,
the resultant public affirmation may be articulated in the Congress and
become a healthy component of the public consensus.

When all of these
conditions are satisfactorily met, there is good reason to expect that

the nation will proceed through the event on a true course towards its

objective, the common good of its people.

The Commission on Freedom of the Press laid down two main conditions
necessary for the preservation of healthy public opinion.

Chafee refers

to these essential conditions as the two-way process and the self-righting
process.

In his consideration of the first, Chafee has this to say:

Communication is a two-way process of mutual response
between the members of the community. The right to Speak
implies a readiness to listen and give consideration to
What the other man says. A community is a universe of
discourse in which the members participate by speaking and
listening, writing and reading. In a free community the
members establiSh and re-establish, examine and re-examine,
in response to one another, their formulations of man's

ultimate ends, the standards of their behavior, and their
application to concrete issues.

 

 

 

175

It was the mind of the Commission that in the very course of the

self—righting process such differences could build up to the point of

splitting the community, and thus bring an end to the universe of dis—
course.

John Courtney Murray places the issue in sharper focus:

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“ (in the classical Greek sense) can it include,

and still have a public life; how many idioms, alien to one
another, can it admit

3 and still allow the possibility of
public conversation?l

Here the halt is not made with the end of public conversation,

rather the.question may well be that of societal or national survival.

The Johnson Administration has expressed similar sentiments regarding

the rash of academic sit-ins as reactions against the government’s present
policy in Viet Nam.

The companion of the two-way process, the self—righting process

operates on the assumption that in the long run, truth will emerge from
the cLash of opinions, good and bad.

The Commission, as a result of its
study, concluded that this process was not working at all well.

It was unquestionably demonstrated to us that the

output of the press includes an appallingly large
quantity of irres

pensible utterances and even
deliverate lying. 6

The same author indicates three reasons why the process is not

working, or at least was not working at the time of the Commission's
investigations.

1) The drift toward concentration of power, exemplified

by the large number of cities with only one newspaper, the common

ownership of newspapers and radio stations, and the growth of newspaper

 

176
chains.

Apparently the Commission felt that these factors militated
against a fundamental presupposition of the self-righting process,
i.e., diversity in the effective communication of facts and opinions.

2) The present prevalence of sales talk in American life, a substantially

different phenomenon from discussion that tries to uncover the facts.

"If the spirit of sales talk prevails over the spirit of discussion, talk
can no longer be met with talk.

Freedom loses its self—regulating power."
(p. 25). '3) The public reads unfavorable news and opinions about people
and policies with more appetite than the favorable. Hence an unfavorable
item may be insufficiently counteracted because the opposing item (a) will
not be printed or (b) will not be read. 7

Before concluding this section which has attempted to relate the

canons of the ASNE to man's natural need for information, to the
formulation of public opinion and the relationship of the last to public
consensus, the meaning of consensus should be indicated as this may be

discovered in the natural law theory proposed in this thesis.

Murray notes that St. Thomas constructed with firmness and delicacy
a system of moral thought that renders "a remarkable account of the

origins and structure of the public consensus..."

In his account which he sets out under five headings, Murray notes

the consensus in its principles and rules as "remote principles of natural
law."

They are "removed“ from the primary common precepts and from
the immediately derivative precepts as particular con-

clusions 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,

 

 

177

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 19
‘"got here" in time; the.1atter always substantially "is." ‘

In consequence cf the preceding it will be seen.that the principles
and standards of the consensus are by no means self-evident. These
presuppose a rather thorougthing study of the circumstances in their
historical context. For this reason, among others, the.elaboration of
the consensus is the task of the wise and the honest, a result of careful

inquiry and subtle reflection. Consequently, the consensus will be con-

 

sciously formulated by the Wise. The.same phenomenon exists in the ferm
of simple affirmation or diffused opinion among the people at large.

As Peterson remarks in his essay, "The Social Responsibility Theory
of the Press,"20

The codes of the movie industry in 1930, of the radio

industry in 1937 and of the television industry in 1952

reflected the changed intellectual climate...the codes.

reflect a far different picture of man than the newspaper

code. All three codes regard man as essentially immature
and as highly susceptive to the corruption of his morals.

21

In view of the availability of the excellent study of the four
theories of the press, noted above, it is not necessary here to comment
at any length on this highly relevant area of the present discussion.
For the purposes of this thesis, it is sufficient to repeat that social
responsibility theory is much more skeptical about the emergence of

truth from the clash of opinions than was its forebear, libertarian theory.

Hocking expresses his somewhat pessimistic attitude that few citizens

 

 

 

 

178

_ genuinely Search for ideas which attack those they.already hold.22

Man, then, is currently admitted to he possessed of reason and capable
of using it, but quite reluctant to do so. Furthermore, under social
responsibility theOry, the media are thought to have a re3ponsibility
to protect man from temptation beyond his ability to resist.

In all three of the codes, television, radio, and motion picture,
considerable attention is paid to the area of sex morality. For example,

the television code under the heading of Acceptability.of Program Material,

 

lists the following subsections: d) Respect is maintained for the sanctity
of marriage and the value of the home. Divorce is not treated casually
nor justified as a solution for marital problems. e) Illicit sex re-
lations are not treated as commendable. The radio code is more general

in its directives in this area because of the nature of the medium. In
its creed it encourages the intelligent and sympathetic honoring of the
sanctity of marriage and the home. And, under the heading of Eggs, it
states that "Good taste should prevail in the selection and handling of
news. Morbid, sensational or alarming details not essential to factual
reporting should be avoided. The motion picture code likewise upholds
the sanctity of the institution of marriage and the home. It further
states that pictures shall not infer that low forms of sex relationships
are the accepted or common thing, and that adultery and illicit sex,
sometimes necessary plot material, must not be explicitly treated or
justified, or presented attractively. There is more of the same, but this
sampling will suffice for the following discussion of fact and value in

a natural law context of communication ethics.

 

 

 

 

179

For whatever reason these codes may have come into existence,
whether as safeguards against government controls, for economic reasons,
out of fear of pressure groups, or any combination of these and other
similar reasons, the codes presume to reflect a reasonably accurate picture
of what pluralistic America regards as its composite value system.

In one important sense, because man himself and the world in which he lives
are in a state of process, physically, psychologically, and morally, it
would be more accurate to say that the codes of ethics of the communica-
tion industries and the laws that touch these areas of the human enterprise
reflected the composite value system, insofar as this could be articulated,
at the time or perhaps sometime before the codes and laws were devised.

It is precisely this concept of process that is so essential to
this attempt to develop an ethic of the media of mass communications proper

to American political philosophy rooted as this is in natural law theory.

 

 

 

Footnotes

lGerhart Niemeyer, "A Reappraisal of the Doctrine of Free.SpeeCh,"
Thou ht, xxv, 97.(June, 1950), pp. 251-27u-

2AlfrendClung Lee, The.Daily NewsPaper in America (New York: The v
Macmillan Company,-19377, p. 36...citation taken from the Federalist -

Papers.

 

3Edwin Emery, The Press and America, 2nd ed., Prentice-Hall, Inc. 3rd
printing, June, 1964 (1954), p. 130.

“Huddon, p. 172.

5Gitlow v. New York, 268 U.S. 652 (1925); Near v. Minnesota, 283 U.S. 697
(19317} grosjean v. American Press Co. 297 0.8. 233 (1936); Hague v.
C.I.0. 307 U.S. #96 (1939). .

 

53. T. I-II, q. 97, art 4.

7S. T. I‘ll. q. 97’ a. 4.

8The Writings of Thomas Jefferson, Memorial Edition (1904), v. 16,
pp. 118, 119) as cited by Huddon, Freedom of Speech and Press in the
United States, p. x.

9Interpretive Reporting_(4th ed.), Curtis D. MacDougall, pp. 27, 28.

lOIbid., p. 27.

l .
lMetaphysics, Bk a (II), 993b, McKeon, p. 712.

 

12 .
John Courtney Murray, "Natural Law and Public Consensus," Natural Law
and Modern Society, p. 53.

 

13

The New York Times Ma azine, March 7, 1965, p. 26 ff.
lL'LGo'Vernment and Mass Communications, Chafee, Vol. I, p. 21.
15 ..

Natural'Law and Modern Society, p. 75.

16 .
Chafee, p. 2hr

180

 

 

 

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181

17

Chafee, pp. 2"}, 250
18

Murray, 93. cit., p. 75 ff.
19

Murray, p. 76.

2oFour Th '
eories of the Press, Siebert, Petersen, Schramm, p. 86

21Petersen, p. 86.

22 .
Ibid., P0 1020

CHAPTER VI

CONCLUSION

There are facts which are susceptible to investigation that can
lead to a discovery of the ethic that lies buried, as it were, within
the communications industry in this country, and within the phenomenon
of information that is its product. Among these facts is the presence
and influence of natural law theory which underlies American political
philoSOphy. This can be determined, as has been attempted in this study,
through an historical investigation of the several currents of natural
law thinking that came to the surface as the American nation emerged
as a distinct political entity. As has been shown in the preceding
pages, this unique political union was possible because, as Jefferson
remarked, it was possessed of an authority that rested on the harmonizing
sentiments of the day. These harmonizing sentiments in turn were, and
presumably still are, substantially, clusters of attitudes, beliefs,
and standards that constitute a particular view of the nature of man,
the nature of the state, the nature of the relationship between man and
the state, and certain generalized assumptions and attitudes about truth
and knowledge.

The same underlying political philosophy can be traced, as it
evolves in space and time through a study of what the people accept as
values. These values in the communications industry are to be found in
the codes and laws of the industry. In a very real sense,.such codes

and laws are historical specifications of the more generalized clusters

182

 

 

183

of attitudes, beliefs, and values that make up the public conscience.

One level or dimension of fact that can lead to.a discovery of
the communication ethic that has not been treated in this study, but
which would constitute a fruitful field of investigation, is.a study of
the kinds of ethical decisions communication people are actually making.
Unless these people are idiots, in the classical Greek sense, their
ethical decisions will be found to be sympathetic, in the long run, with
the conscience of the body politic.

Insofar as these ethical decisions are hardened, i.e., slavish

 

reflections of an historically past public conscience, they are likely
to be irrelevant to historically present ethical problems. Insofar

as these decisions completely ignore the tradition and the public
conscience, they are likely to be sloughed off as an attempted graft of
skin that the body refuses to accept. These ethical decisions will be

both relevant and accepted by the body politic when they truly reflect

 

 

 

 

 

 

the evolution of the public conscience that process has effected.
A dimension of fact that has been treated here is that which is at
the philOSOphical bottom of the concept of process, i.e., an attack on the 3
Very nature of fact itself through an analysis of the basic ontological I
categories of essence, existence, and tendency.
With Wild this thesis accepts the data of experience.as revealing
the reality of motion, change, and process. Essential to this structure
of thought.is the acceptance of facts as incomplete. All that is, the
nature of everything whether it be physical, psychological, or Spiritual,
is tendential. This is another way of saying with Wild that no facts

are ever finished. They are always incomplete and tendential. And that

184

toward which facts.tend are values in the sense that values are the ful-
fillment of existential tendency. Hence it is, as Wild puts it, that
"the sense of futurity and tension attaches to the concept of ought."l
Thus it may be seen that this thesis, at the level of first
philosophy, apart from which it seems meaningless to discuss natural law,
denies that facts are capsulated, complete, and totally distinct from ;
values. On the contrary, this thesis affirms that value can be dis-

covered through a study of fact, if this fact is seen to be in process

' 'fi‘r—‘ "_— \-

or tending toward a fulfillment of that which is due to the nature of
the fact. And that toward which an entity or incomplete fact tends
essentially, which will realize its nature, is precisely what is good
for it.

As applied to communication ethics, this means that a decision is
either good or bad, ethical or unethical insofar as the decision takes
into account what is good for the man making the decision, and what is
good for the men affected by the decision. What is good and what is not
good in particular circumstances is seldom easy to discover. It requires
a knowledge of total man, and this man in his tradition, as well as in the
present historical moment.

No one man can hope to accomplish this. He will do it, if he does
it at all, in union with other men. He should have some training in ethics
and the sciences related to it, such as epistemology, metaphysics,
psychology, law, and the social sciences, including political science,
sociology, and anthropology. The man who would hope to be proficient

in ethical areas of communication should also have more than a passing

 

 

185

acquaintance.with the history and content of religious thought.. In
short, no area of study that can reveal data of the human experience
should be arbitrarily ignored by those who would become skilled in the
science of communication ethiCs.

Should all of this seem far beyond the grasp of the people now
forced to attempt daily decisions, some encouragement can be given in
this sense that their decisions cannot and are not made in a vacuum.
These men are products of a tradition, living and making decisions in a
specific historical moment, guided by codes, laws, and customs that can
_ generally be relied upon to establish adequate guidelines fer present
and future attempts at ethical decisions.

What is recommended and treated in this thesis is directed
primarily to University faculties, and to those who have both the time
and the talent to dig beneath the surface of human events for causes and
meanings of the issues involved in the complex mechanisms of the roles
of the mass media in modern society.

These kinds of investigations can lead to a development of the
ethic that is in the industry, an ethic that is rooted in the natural law
foundations of the nation, an ethic that can be continually explicated,
and so lead the way to a more satisfactory solution of present and future

ethical and legal problems in mass communication.

 

 

Footnotes

lWild’ p. 2300

 

I
J
I
|
x

186

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