natural law
0.1 INTRODUCTION
Morality is basic to every human community. Man is a
social animal, the very nature of man calls him to commune with his neighbour
and environment. It is absolutely impossible for man to live in isolation of
his surroundings and so there is a certain idea of transcendence in human
nature. It is on the verge of seeking a suitable means and ways of coming and
living together that morality evolves. In fact, morality is about man and his
environment. There cannot be morality where it to be that all human beings live
separately isolated from each other. So the very nature and instinct of meeting
one another is the birth of morality.
However, it is very controversial, especially in the
recent time, over the evolution of laws which serve as a guide to keep man in peace
with one another. Law brings harmony and mutual existence to the state and
human nature. Many have argued for the plausibility a law which has divine
origin while many have vehemently refuted such notion and see such opinion as a
distortion in human reasoning which was imposed on man during the dark ages.
Natural law has been an age long concept in the history of human quest for
knowledge. Man has tried to understand the origin of the laws that govern him.
He tries to reach out to the transcendent and understand it as something given
to him since it seem obvious that some laws are intrinsic and natural to him.
The concept of natural law is a perennial classical problem that has never
cease to engage the great mind of intellectuals of different epochs.
This essay shall be an attempt to understanding the
very concept of natural law. We shall in this presentation try to cast light at
some very perplexing arguments concerning natural law. As a way of methodology,
we shall first start from a pre-thomistic notion of natural law, which is
mainly to highlight some thoughts of the ancient philosophers on the very notion
of natural law. Afterwards, we shall move to the very notion of natural law
according to Thomas Aquinas. And this shall be the crux of this presentation.
But to enhance better comprehension, we shall state his various kinds of laws.
This shall lead us to an evaluation of the various criticisms levelled against
this notion by the contemporary scholars and legal philosophers. After this, we
shall conclude.
1.0 PRE-THOMISTIC NOTION OF NATURAL LAWS
The concept of the natural law is as old as western
philosophy itself. Although the pre-Socratic philosophy was mainly concerned
with the cosmos, some of them however, did show some interest in the study of
man and society. Accordingly, they tried to find the element that unifies the
entire human society. This they identified as a common law,’ law of nature’.
Heraclitus is said to have written a book on political philosophy and he spoke
of a common law of nature which he called a divine law, which is infinitely
strong, and suffices, and more than suffices, for them all.[1] All laws, according to
him, derive ultimately from this law, the primordial law.
Some of the sophists clearly distinguished between the
laws of the state and nature, taken as ideal. The laws of the state are,
according to them, conventional and should not conflict with the demands of
nature. Nature is the ideal or the standard to which the law of the state
should conform. Thus for example, Hippias of Elis says “I hold you all kinsmen
and relatives and fellow citizens by nature, though not by law: for like this,
by nature, akin to like, but law, the tyrant of mankind, often constrains by
violence in contravention of nature.[2]
He also spoke of certain unwritten laws, which are
observed in the same way in every country and which cannot have been enacted by
men.
Plato thus the originator of natural law, as well as
the natural philosophy, sees laws as an expression of reason, and ideal law as
law of reason. For Plato, laws are necessary only when reason fails, for the
law of reason is the ideal law. For him positive laws are needed only because
men are weak and cannot observe the law of reason without the help of the
positive laws. In an ideal situation where men are perfectly rational and
willingly submit to the rule of the reason, positive laws would be unnecessary.
Following the footsteps of his teacher, Aristotle also
sees reason as the ideal law of human conduct. A virtuous man is a man who is
always guided by ‘the rule of reason’, which is the right rule’[3] He also distinguished
between natural justice and legal justice or conventional justice. Whereas
natural justice applies everywhere with force, legal justice depends on the law
or convention of the place in which it is being applied. That is, naturally,
justice which is everywhere, has the same force and does not depend on local
opinion.
However, the stoic developed their concept of natural
law within the context of a cosmopolitan political theory and pantheistic
metaphysics. God and the universe are one and the same reality, a reality of
which God is the soul while the universe is the body. The stoics continued this
universalistic outlook and taught the brotherhood of all men. All men are free
and are citizens of the world-state. No man is a slave by nature, for all men
are free citizens of the world-state. The stoics contrasted individual states
with the world-state. While individual states are ruled by positive laws, the
world-state is ruled by only one law, namely, the law of nature.
Finally, Saint Augustine defines law of nature as the
reason and will of God which commands the preservation of the natural order and
prohibits its disturbance.’ This law’ he says, is called the highest and always
obeyed.[4]
2.0 THE VARIOUS KINDS OF LAW
Thomas identified four kinds of law. These are;
1. Eternal Law: According
to Thomas, the world is ruled by Divine Providence (Summa I-I, a. 1 and 2, q.
22). He then notes that, since the Divine Reason’s conception of things is not
subject to time but is eternal, and the very idea of government of things in
God as Ruler of the universe, has the nature of a law, such a law must be
eternal.[5]
2. Natural Law: Given
that everything subject to Divine providence are ruled and measured by the
eternal law, it is evident that all things partake in some way in the eternal
law. The rational creature’s participation in the eternal law is what has been
labelled natural law.[6]
3. Human Law:
Provided that other provisions for law are maintained, the laws arrived at when
by human reason, we proceeds to the most particular determinations concerning
certain matters, are referred to as human laws.
4. Divine Law: According
to Thomas, there are four reasons why there must be a Divine law. First, so
that man may be well directed to his end, which is eternal happiness. Second,
so that man may know without doubt what he ought to do and what he ought to
avoid. Third, because human laws cannot sufficiently curb and direct interior
acts. Fourth, so that no evil might remain unforbidden and unpunished.[7]
3.0 NATURAL LAW IN THOMAS
The eternal law, we have said covers all of creation.
However, by being provident both for itself and for other creatures, the
rational creature is subject to Divine providence in the most excellent way. In
this way, notes Thomas, “the light of natural reason, whereby we discern what
is good and what is evil, which is the function of the natural law, is nothing
else than an imprint on us of the Divine light.”[8]
According to Thomas, the precept of natural law is
essentially one. However, from this one precept, several other precepts emerge.
He argues that the precept of natural law is to practical reason, what the
first principle of demonstration is to the speculative reason. He notes that,
of things apprehended universally, there is an order, in virtue of which, the
first of things that falls under apprehension is being, which is to be found in
all things humans apprehend.[9] To this end, the first
indemonstrable principle is that, “the
same thing cannot be affirmed and denied at the same time;”[10]
and on this principle, several other principles are founded. Like being, the
first thing that the practical reason apprehends is the good. This, according
to Thomas, is directed to action since every agent acts for an end under the
aspect of good. Hence, the first principle of practical reason in one founded
on the notion of good, which is, “that
good is to be done and pursued, and evil is to be avoided.”[11]
Thomas notes that every other precepts of the natural
law are based upon this. Thus, “since good has the nature of an end, and evil,
the nature of a contrary, those things, in virtue of which the human person has
a natural inclination, are naturally apprehended by reason as being good, and
consequently as objects of pursuit, and their contraries as evil, and objects
of avoidance.”[12]
To this end, according to the order of natural inclinations, there follows an
order of the precepts of the natural law. First is the means of preserving
life, and warding off its obstacle; then, the inclination to things which he
shares in common with other animals; and then, the inclination to know the
truth about God, and to live in society, to shun ignorance, to avoid offending
those among whom one has to live.[13]
According to Thomas, virtuous acts may be spoken of in
two ways: First, under the aspect of virtuous; second, as such and such acts
considered in their proper species.[14] As virtuous act, natural
law may be considered as virtue. The reason is because, to natural law belongs
everything to which a man is inclined according to his nature. However, if we
consider virtuous act in the second sense, that is, virtuous acts as considered
in themselves, not all virtuous acts are prescribed by the natural law since
“so many things are done virtuously, to which nature does not incline at first;
but which, through the inquiry of reason, have been found by men to be
conducive to well-living.”[15]
Natural
law when considered as a general principle is the same for all humans. However, when certain matters are considered
in detailed form, that is, as conclusions of those principles which we consider
as general, it is the same only for the majority of cases. This failure
according to Thomas is a result of certain obstacles preventing reason and the
perversion of reason by passion, evil habit, or an evil disposition of nature.[16]
For Thomas, changes are only admitted by natural law by way of addition since
many things for the benefit of human life have been added over and above the
natural law, both by the Divine law and by human laws. However, change as a
subtraction, in virtue of which what was once considered as natural law ceases
to be, is inconsistent with natural law’s first principle. But in its secondary
principles, by virtue of which certain detailed proximate conclusions drawn
from the first principles, natural law may be changed in some particular cases
of rare occurrence.[17]
Thomas concludes by
pointing out that although natural law is always in the heart of every human
person, there are cases where as individuals we can seal off this principle
from our hearts. As a first principle, certain and most general principle which
is known to all, natural law in the abstract cannot be abolished from the
hearts of any human person. However, “natural law is capable of being blotted
out in the cases of a particular action, in so far as reason is hindered from
applying the general principle to a particular point of practice, on account of
concupiscence or some other passion.”[18] As a second precept,
drawn from the first principle, the natural law can be blotted out from the
human heart. This is achievable either by “evil persuasions, or by vicious
customs and even by corrupt habits.”[19]
4.0 POST-THOMISTIC CONCEPT OF NATURAL LAW
If man is the measure of all things, as the Sophists taught, then a given society is the measure of
its own culture, including its moral and legal standards. This is the ground
for which most post-Thomistic scholars on natural law based their argument up
till the twentieth century before the revival of natural law.
With the Enlightenment and the Reformation, there
arose an increased aversion against traditional postulation of natural law
theory. Revisionist moral theologians have dissented from the traditional
thought on natural law against human morality and sexual questions such as
contraception, sterilization, birth control, abortions, divorce, artificial
insemination, mercy killing[20] etc. Such ethicist
criticized the traditional natural law theory because of its Physicalism, (identification of the human moral act with
the physical structure of the act), classism (emphasis on the eternal, immutable, universal, and unchanging), and
naturalism (failure to give primary
significance to the personal)[21]. They held according to
Evans that, not everything which can be said to be in one sense or another
“unnatural” is against natural law.
Most human activities according to Evans is artificial
and yet may be required by natural law; and it is, in one of the commonest uses
of that most ambiguous word “natural”, very natural indeed to offend against
natural law[22].
Stanley Hauerwas rejected the doctrine of natural law on the ground that it
provides an insufficiently theological basis for Christian ethics[23]. Karl Rahner and Bernard
Lonergan according to Nicholas Wolterstorff argued that, the account of natural
law is inadequate because it represents a “static” or “classical” view of the
human nature.[24]
Also, because it’s fundamental assumptions cannot be sustained in the light of
contemporary science.[25]
Many theologians also rejected the traditional theory
of natural law which held that there is an unchanging human nature from which
moral norms can be derived. A number of factors came together to render this
claim unacceptable to many. To mention the most obvious, is the traditional
(natural law) teaching on, sex, birth control, euthanasia, etc. which became
problematic in the society and was subjected to critical scrutiny. This typical
statement of the conventional Catholic according to Dr.Rock, runs as follows:
“The
reason why the artificial practice of birth control is immoral is written into
the very nature of the sexual organs and the marital act itself. The sex organs
were made by God to reproduce the human race. Only when husband and wife unite
naturally is the union of sperm possible. Therefore, the primary purpose of
marital act is the conception of the human life.[26]
However, man is not simply a complex organ with
in-built rules of nature. Human beings define themselves in relation to the
world, and in relation to those around them. Thus, to discover what it is to be
human and to achieve properly human fulfilment, account must be taken of man
not simply as a biological object, but in the specifically human dimension in
which he enters into communication with others in the human society. And as
such, Evans believed that, one cannot immediately base principles such as “thou
shall not commit suicide”, “thou shall not practice birth control”, “thou shall
not lie” etc. but rather upon principles of forms “some arrangements should be
made for the preservation of life, some for the organization of the family,
some for the organization of the society, in each case, leaving it open to
further experiences and enquiring what the arrangement are to be[27]
For John Finnis, natural law is a set of rules or
principles of practical reasonableness on ordering human life and human
community. This principle explains the obligatory force of positive laws even
when they cannot be deduced from the principles of natural law. These
principles are buttressed by “a set of basic methodological requirements of
practical reasonableness which distinguish sound from unsound practical
thinking and provide the criteria for distinguishing between [reasonable and
unreasonable acts].” Following these
methodological requirements allows one to distinguish between acting morally
right or morally wrong and “to formulate a set of general moral standards.
Finnis also propose practical reasoning as the means of distinguishing moral
acts. These principles are derivations of the first principle of practical
reason which states, “Good is to be done and pursued, and evil is to be
avoided.”
Thomas Hobbes denied the divine or universal attribute
attributed to natural law by the scholastic scholars. Reason he believes is
utterly unable to know universal, i.e, ideas. For words denoting universals are
mere names. He held that, man in the depth of his being is what the state of
nature shows him to be: a wolf, wicked, devoted solely to the self. In the
state of nature, there exist only lawless individuals in whom is found no
natural tendency to live in the society; and man’s life is solitary, poorer,
nasty, brutish and short.[28] Thus according to Hobbes,
only the covenant which springs from the basic natural law norm of
self-preservation, discoverable via passion, is natural law. Thus, the older
idea of natural law as an ethical system with material contents thus loses all
its functions: namely, to serve as a moral basis for positive law; to give men
a standard and critical form for the justice of positive law; to represent the
eternal ideal for which the historical state, as lawgiver and protector of
justice, ought to strive.[29] The state of nature of
man according to Hobbes is ruled by two things: fear of the might of others and
power to instil fear into others. He denied that man has a natural inclination
toward mutual help and love, which Aquinas speaks of so frequently. Law and
order of law cannot be derived from human nature but from the sovereign.
John Locke in his own theory does not view the law as
an objective order of norms out of which individual rights flow by intrinsic
necessity; the right of the individual is prior, and in them originates
whatever order exist. Locke substitute the traditional idea of the natural law
as an order of human affairs, as a moral reflex of the metaphysical order of
the universe reviewed to human reason in the creation as God’s will, the
conception of natural law as a rather norminalistic symbol for a catalogue or
bundle of individual rights that stem from individual self interest[30]
In the mid-20th century, however, there has been a revival of natural law approach, especially its claim that there must be a
higher set of principles, separate from the positive law, which the latter must
satisfy if it is to be regarded as valid. A number of factors led to this
revival: the general decline of social and economic stability worldwide; the
expansion of governmental activities, especially the increasing encroachment of
state institutions on the private lives of the citizens through the medium of
law; the development of weapons of mass destruction and their increasing use in
wars on global scale; increasing and doubts regarding the use and effectiveness
of the empirical sciences in determining and resolving problems of human
conditions.
Some scholars also
believed that, this revival was sparked by the widespread
belief that the Nazi regime of Adolf Hitler, had been
essentially lawless, even though it also had been the source of a significant amount
of Positive law. As in previous centuries, the need to challenge the unjust
laws of particular states inspired the desire to invoke rules of right and
justice held to be natural rather than merely conventional. However, the 19th
century's Skepticism about invoking nature as a source of moral and legal norms
remained powerful, and contemporary writers almost invariably talked of human
rights rather than natural rights[31].
5.0 THE MAGISTERIAL ACCOUNT ON NATURAL LAW
The Physicalist interpretation of natural law
dominated much of the Catholic moral traditions in sexual and medical matters
pertaining to reproduction. (The Physicalist held that, moral norms, are
written in nature). Thus, the Catholic tradition has regarded any violation of
the natural order as a serious offence since violating the natural order is an
affront against God, its author.[32]The
churches Magisterium has appealed to the natural law as the basis for its
teaching pertaining to a just society, sexual behavior, medical practices,
human life, religious freedom, and the relationship between morality and civil
law.
However,
Roman Catholic moral theology today, developed more rational aspect of the
natural law tradition in the use of reason and not the Physicalist approach.
For a morality that has reason as its basic standard, then, is a morality based
on reality. The work of reason is to discover moral value in experience of the
reality of human being. Thus, the human person does not need to conform to
natural patterns as a matter of fate; rather, nature provides the possibilities
and potentialities which the human person can use to make human life truly
human. The human person, should thus, creatively intervene to direct the
natural order in a way that is properly proportionate to full human
development.[33]
6.0 A
CRITIQUE OF NATURAL LAW THEORY
Natural
law propositions greatly conflicts with both atheism and agnosticism. Central
to natural law theory is the idea that everything in existence has a nature
which gives everything in existence a purpose and a goal in life, and that all
these natures are related such that everything in existence is in one way or
another connected to other things in existence.[34]
Atheism
denies the existence of a Creator for the universe. This is in conflict with
natural law theory which avers that the Creator’s existence has a purpose that
is considered to be obvious. Nothing
else but a Creator can subject existence to a pre-defined purpose. Therefore,
he who denies God must of necessity deny that existence has a purpose; so, he
must deny natural law in its entirety.
On
the other hand, agnosticism, although accepts the existence of a Creator,
refuses to research His reality deeply. Rather it believes that the Creator did
not intend anything with His creation and has, since creation, completely
distanced or disconnected Himself from His creation. Natural law, which claims
that existence has a purpose, stands diametrically opposed to this view.
Therefore,
neither the atheist nor the agnostic can accept natural law theory – which, by
the way, proves Grotius was wrong when, in referring to natural law, he said:
“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”.[35]
The
view that man is generally a social being whose natural state is political that
was accepted among philosophers from Aristotle to Aquinas was recanted by
Thomas Hobbes. He posited that human state of nature is solitary and
characterized by constant, chaotic warfare in which each man is pitted against
every other in a struggle for survival. From this view arose the notion of
individuality that characterised the Early Modern understanding of human
nature.[36]
The
claim that the human mind can determine the purpose of life by natural law as a
theory has very undesirable natural consequences. The human mind is limited
because it can only think about what has been experienced by man, either
directly or by means of reliable narration. This implies that at every moment
in time, the human mind will not be able to identify the complete natural law.
For, the complete natural law requires man to have experienced all that can be
experienced, and new experiences do not end until time ends. Until the end of
time, therefore, under the natural law theory, the law must follow the
experiences of man. Natural law theory is really saying that “Get into trouble
first, and then I will come to rescue you.”
The
guidance of natural law will leave man in perpetual conflict about what is
correct, since the human mind are prone to disagreement because experiences
differ between humans.
Natural
Law Theory conflates that which is the case with that which ought to be the
case. This was advanced by the Scottish philosopher, David Hume. According to
him, one cannot logically derive a moral imperative or value judgment simply by
observing facts of nature. Natural law theorists often argue, for instance,
that because God’s laws (and in this case, laws of nature) dictate the purpose
of sexual intercourse in reproduction, it is unnatural and thus, immoral to
have sex for any other purpose. The fallacy inherent in this reasoning becomes
obvious when we consider natural tendencies which are seemingly irreconcilable
with ethical behaviour. For instance, if one concedes that it is natural for
human to care for themselves before strangers, then one must also accept that
this ought to be the case.[37]
Another
criticism against natural law theory is on its assumption that moral principles
are written in the laws of nature (or by God). Findings from modern science
contradict this assumption. The scientific perspective sees only cause and
effect in the natural world; morals and values, it claims, are inventions of
the human mind. Accordingly, the continued use of natural law theory in the
Catholic Church (where it is most prominent) is a holdover from medieval
thought.[38]
Throughout
the early modern, Enlightenment, and modern periods, many thinkers critical of
the natural tradition have expounded philosophies of human nature, law, and the
role of government that have been widely influential in the Western world. In
Italy, thinkers like Machiavelli and Guicciardini both expressed the ruthless
and pragmatic political ethos of their time in terms of a permissive power of
the state. They advocated reason of state as the only guide for political
rationality.[39]
Another
strain of thinking in contrast to the natural law theory was that of
progressivism. This was initiated by Charles Darwin’s scientific theory of
evolution. It argues that the chief law of social and political life was none
other but the law of the jungle: ‘right’ was whatever led to survival and
growth. With no fixed goal of human life, the norms of ethics and the goals of
politics were necessarily ever-changing.[40]
7.0 CONCLUSION
One
major problem that is so perplexing and yet interesting is the very idea of
objectivity and universality which roams around the various schools of thought
we have tried to highlight in this presentation. The question tends to be,
“will there be a universal basic norm”? Such that all men can understand and
apply accordingly. The natural law theorists are universalistic in their argument
and faced with such question, they can answer yes, since the very idea of
natural law tends to be universalistic. But experience shows the contrary. We
have different ideas and we vary in our orientations, religions, personalities,
mentalities, idiosyncrasies and biases. In fact, it is almost impossible to get
a universal basic norm such that is written in the mind of all men. This is not
to say that there is no possibility of such. It can only be possible, only when
we subject such imperative as coming from the divine, when we give a
transcendental lineage. And that is what the natural law theorists argue, as
such we do not need experience so much to accept natural law but reason.
Having
gotten to this end, we shall say that we have been able to do justice to our
said aim which was given at the introduction of this paper. Although we have
tried to make an elaborate exposition of this concept it therefore does not
terminate or exhaust the entire notion of natural law, further research are
also encourage for a broader apprehension of so interesting a concept.
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IIItud. Ed. Light on the Natural Law.
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Hugo. On the Law of War and Peace
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[1]
Cf. Diog. Laert.ix, 5:Ernest
Barker, Greek Political Theory, (London, Methuen, 1970) ,p.59
[2]
Joseph Omeregbe, Philosophy of Law
An Introduction to Philosophy Jurisprudence (Lagos: Joja press Ltd 1994), p.2
[3]
Joseph Omeregbe, Philosophy of
Law: An Introduction to Philosophy Jurisprudence (Lagos, Joja press Ltd,
1994), p.5
[4]
Joseph Omeregbe, Philosophy of
Law: An Introduction to Philosophy Jurisprudence p.12
[9] Cf. Thomas Aquinas, Summa Theologiae, II - II, q. 94, a. 2.
[10] Thomas Aquinas, Summa Theologiae, II - II, q. 94, a. 2.
[11] Thomas Aquinas, Summa Theologiae, II - II, q. 94, a. 2.
[18]
Thomas Aquinas, Summa Theologiae, II
- II, q. 94, a. 5.
[19]
Thomas Aquinas, Summa Theologiae, II
- II, q. 94, a. 6.
[20]Note:
this paper is limited in scope and as such may not cover the various argument
on natural law and questions arising from morality and medical ethics
[21] Charles E. Curran, The Modern Catholic Encyclopedia, edited
by, Michael Glazier and Monika K. Hellwig, Liturgical press, Collegeville,
Mnnesota, 2004. P. 579
[22]IIItud Evans, OP, ed. Light on the
Natural Law, Helicon Press, Inc, Baltimor, Maryland, 1965, pg, 20
[23] Stanley Hauerwas, The Peacable
Kingdom; A Primer in Christian ethics, Notre Dame. IN: University of Notre Dame
Press, 1983, pg, 50
[24] Nicholas Wolterstorff, Natural law
and Divine law; reclaiming the tradition for Christian ethics, Wm. B. Eerdmans
Publishing Co. Cambridge, UK, 1999, pg,
31
[25] Nicholas Wolterstorff, Natural law
and Divine law; pg, 32
[26]IIItud Evans, OP, ed. Light on the Natural Law, pg, 22
[27]IIItud Evans, OP, ed. Light on the Natural Law, pg,28
[28] Thomas Hobbes, Levianthan, or the
matter, forme& power of a commonwealth, ecclesiasticall, and civill, ed. By
A. R. Waller. (Cambridge: the university press, 1904, p. 13)
[29] Heinrich A, Rommen, the natural
law; a study in legal and social history and philosophy, Vail-Ballou Press, New
York, 1964, p,83
[30] Heinrich A, Rommen, the natural
law, p. 89
[31] Julius Stone, Law, philosophy
of.Encyclopædia Britannica. Encyclopædia Britannica Student and Home
Edition. Chicago: Encyclopædia Britannica, 2012
[32]Richard M. Gula, S.S, Reason informed by Faith;
foundations of Catholic Morality, Paulist Press, New York, 1989, pg, 227
[34] Cf. Thomas Aquinas, Summa Theologiae, I, q. 90, a. 2.
[35] Hugo
Grotius, On the Law of War and Peace edited
by Stephen C. Neff. (Cambridge: Cambridge University Press, 2012).
[36] “The
Early Modern Liberal Roots of Natural Law,” Natural Law, Natural Rights, and
American Constitutionalism, accessed March 2, 2016, https://www.nlnrac.org/earlymodern
[37] James
Rachels, The Elements of Moral Philosophy
(The McGraw-Hill Companies, 2007), pp. 60-61.
[38] James
Rachels, The Elements of Moral Philosophy
p. 61.
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