Ultimately, one can only attain to such a perspective (see: the series introduction for context) by invoking both the contrast and the continuity of natural right with natural law. The latter notion is generally misunderstood. It has a double historical origin. First, it can be mainly located in the works of Philo Judaeus as a coming together of Hebrew notions of the cosmos as subject to an omnipotent personal rule, with a Greek metaphysical discourse concerning the structures of being. In terms of this strand, natural law is thoroughly Biblical in origin, and indeed Philo thinks of the revealed law of the Hebrew Bible as alone fully proclaiming the natural law, even if the world constitutes a kind of megalopolis with one law and one constitution, to which the constitutions of cities are dubious “additions,” allegorically symbolized by Joseph in terms of the supposed etymology of his name and his coat of many colors. The Decalogue is a saving deliverance from this addition: thus it was proclaimed far from cities in the “deep desert,” and unlike human law is offered as pure redemptive counsel, unaccompanied by any (extrinsic) punitive sanctions.
By contrast, for the Greeks nomos and phusis were generally set in apposition. To be sure they had strong concepts of “natural justice,” but that could betoken a link to an ontological order that was ultimately impersonal and perhaps indifferently reserved behind and beyond human affairs. The personalisation of ultimate being after Philo, as sustained by the Church Fathers, implied rather a yet greater exaltation of equity, in terms of the divine rule by “economic” adaptation to our circumstances, and equally an assumption of historical providence or of divine government of all human history, in continuity with his government of nature. Thus, for Tertullian the natural law, which is quasi matrix omnium praeceptorum Dei . . . non scriptum, quae naturaliter intelligebatur, was inherently known to Adam and Eve who failed to keep it, while the patriarchs prior to Moses again adhered to this unwritten counsel. For Gregory of Nyssa also, natural law was originally engraved within human nature and he also says that it was restored to nature by the Incarnation, with Moses’ giving of the law being only a foretype of this event. In consequence the Church alone fully follows and enacts on earth the natural law through her “economy,” in such a way as to compensate for the constitutively protean malleability and “absence of a nature” that uniquely defines the human animal. It is therefore far from being the case that natural law was conceived in opposition to temporality, or in contrast with the law of revelation. Indeed the first council of Arles described the natural law as being “the first grace of God.”
The second historical origin, whose relation to the first is somewhat obscure, lies in Stoicism. Here the coincidence of phusis with nomos is attained, not by the raising of personally enacted law from a middling divine to a fully transcendent height, but rather by the bringing down of divine will to full coincidence with immanent nature and with fate. If Philo’s megalopolis denotes a “politicization of nature,” since the ontological is now coincident with divine governance, the Stoic cosmopolis denotes inversely a “naturalization of politics” that is coincident with its internationalization, initially to some degree convergent with the literal extent of the Roman empire, though also exceeding it as an ideal order. Thus, on the one hand, Cicero can identify the natural law with Roman rule and order itself, but, on the other hand, as Michael Schofield says, within the cosmic city for Stoicism “the dictates of natural law . . . do not require for its intelligibility or acceptability any reference to citizenship at all.”
It is for this reason that there ensues from Stoicism, by way of Cicero and much Roman thought, a certain prefiguration of the transition from natural law to natural right, which is newly important in the Renaissance and the 18th century and central to the arguably first “liberal,” theory which is that of Hugo Grotius, and which is not accidentally first focused on international law or the ius gentium. Thus to over-insist, with Moyn, upon the admitted and admittedly all-crucial co-belonging of private natural right with absolute state sovereignty is to overlook the aporetic authorization of rights by pre-political nature and yet the operative enactment of this authorization only by the state.
It is this in respect significant that Grotius’s “the law of the sea” as non-possessable, with its corresponding insistence on the right of “first occupancy,” preceded Hobbes’s state-founding contract, while the latter conveys international anarchy oddly into the very heart of the nation-state by erecting absolute sovereignty as both the salve of such anarchy and its diversion into a legal monopoly of violence. Thereby the sea starts to irrigate all of landed settlement, in the course of the transition from the Dutch maritime outreach from the Continent towards the English liberal re-conception of their insularity. And already with Francisco de Vitoria, the beginnings of a shift in the meaning of natural law and the substitution of willed lex for intrinsically equitable ius are directly connected to a new (both Stoic and humanist influenced) reading of the ius naturale as a whole in terms of the ius gentium, in the context of maritime adventure and encounter with the Indian peoples of South America.
One can understand the re-construal of natural law in terms of international law from Vitoria through to Grotius in five crucial respects: 1) The ius gentium itself becomes more formalized, conventionalized and contractualized, given a certain decay of the sense of a binding shared international culture. 2) Correspondingly, the “over-arching” international authority of Empire or Church has diminished, encouraging the idea of a “space between states,” as opposed to the notion of a continuum of territorial polities, often complexly overlapping and interlinked in terms of their co-belonging to the super-polity of Christendom. 3) This new idea of “gaps” between discrete polities becomes best symbolized and exemplified by the sea rather than the land. 4) The intra- and inter-state belong together, without conceptual priority to either the novel “state” dimension, nor the novel “international relations” dimension. Grotius, in focusing on the latter, also further crafts the former; with Hobbes it is the other way around, such that the situation between states more conforms to the original state of nature, even though Noel Malcolm rightly says that for Hobbes international cooperation may to some extent increase on the basis of coinciding collective self-interest. 5) The belonging together of these two aspects is graphically conveyed by Grotius’s treatment of marginal instances: fish caught in the sea are after all subject to the landed law of first occupancy, as are also coastal inlet or firths which may be enclosed, and the sea within sight of the shore that can be subject to national coastguards and customs patrols, even if the freedom of maritime transport still applies. In this way, if we fully understand that modern foundational natural rights belongs equally in an IR as in a “political thought” context, we can say that it is, precisely, a “theory of the shoreline”—and so at once of “free trade” and of imperialist ownership by virtue of supposedly “first acquisition,” besides an inland internalization of just the same twofold logic of absolute bounds mediated by a neutral interval. This is substituted by Grotius and then Hobbes for the relational mediation of things through the id quod iustum est of classical tradition.
Like the reconceived ius gentium which newly invades and re-shapes the natural law, Stoic morality itself was similarly bifurcated between the bios and the polis. On the one hand it advocated a resigned identification of the individual with the fate of the natural cosmopolis, on the other a dutiful fulfilling of civic officium within a specific polity which, in default of any teleological order of just flourishing within a fated and cyclically doomed universe, begins to be defined in terms of both individual and collective utility. At the same time and for the same reasons, the now non-teleological main purpose of the Civic Empire is for Cicero already the protection of individual life and private property.
Elements of the Stoic view were variously and to various degrees integrated within a more fundamentally Philonian view within the Christian era. When it comes to the most famous Christian statement of natural law by Thomas Aquinas, these two elements are reinforced by the perspectives of mainly Aristotle, but also Augustine. As for Philo, Aquinas’s statement includes, crucially, the affirmation that God is the governor of the world he has created. Law is first of all eternal law, coincident with the Logos, the second person of the Trinity, and all other law, natural, revealed and positive is only true law insofar as it participates in this eternal law. Yet this participation also happens necessarily: in the case of sub-organic and most organic nature indeed automatically, insofar as each thing seeks to conserve its own nature and being; in the case of animals additionally by instinct insofar as they feed and reproduce themselves; in the case of rational spirits with the further addition of conscious collaboration or, if this collaboration be refused, by inevitable negative and corrective impact. For if human beings do not participate in eternal justice, then they simply do not flourish.
As to the imperative content of this conscious participation in divine government, it is in one sense both vague and minimal. In no sense does Aquinas think, unlike later theorists like Suarez (as John Finnis here rightly points out) that divine commands can be “read off” nature, especially from the most obviously given features of rational human nature and then applied to the ethical and political. Although he recognizes the dimension of natural law that is divine government, the “naturalness” of the law refers for Aquinas, as earlier for Tertullian, as much to its conscious mode of participated perception of the eternal by creatures, as to its inevitable enforcement through them. But its perception by human beings is confined to its inspiring and rudimentary seminalia and does not extend to details. Even if, already, some canonists were trying to turn the natural law into a decisionistic instrument, Aquinas does not generally engage in this exercise and in the case of the one recorded instance where he does, the discussion of polygamy in the Sentence Commentary, he concludes that the verdict of the natural law is here uncertain: it is rather ruled out by recourse to typological analogy—as Christ has only one bride, the Church, so men should not have recourse to plural wives.
It is just because the natural law gives so positively little that, for Aquinas, it must be supplemented by the weight of human tradition, human example and teaching which all go to support the density and variety of positive law. However, and again in contrast to Suarez (for whom only positive will gives the force of law—the divine to the natural, the human to the positive, above and beyond nature) and early modern thought in general, there is no cleavage in Aquinas between nature and positivity, as there is none between intellect and will. For the variety and circumstantiality of positive law for him only betokens a prudential and economic attention to equity that the natural law itself enjoins, out of its most crucial substance. Thus, in effect, for fallen man the discernment of natural law is a work of time and culture and the supplementation of natural law by human addition is just what natural law, in its very naturalness for us most of all requires if its naturalness is not to be betrayed:
The force of a law depends upon the extent of its justice. Now in human affairs a thing is said to be just from being right according to reason. But the first rule of reason is the law of nature . . . Consequently every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer law but a perversion of law.
In summary: for Aquinas, insofar as we are both created “things” and “created animals” subject to divine government we must necessarily follow the natural law of both self-preservation and self-perpetuation. Beyond that point, as rational animals we are naturally inclined both to live in society (which requires attention to equity, education and artificial legal reinforcement of nature herself) and to seek to contemplate the truth which, for Aquinas, means ultimately bound to seek unity with God in the beatific vision.
Since this vision only comes by grace, and since for Aquinas all of nature is to grace-given charity as matter to form, it is clear that Aquinas does not see the level of “natural law” as totally autonomous with respect to the revealed law, which gives a deeper degree of participation in the eternal law of God. Indeed, in his Romans Commentary he makes it clear that to imagine that one could fulfill the natural law without the aid of grace would be to fall into the heresy of the Pelagians. And while he thinks that we discern the natural law through the natural architectonic virtue of prudence, he also declares that prudence can only be perfected by the “counsel” which is the gift of the Holy Spirit. Again there is a link to the divine government of history here: the divine prudence, or providence, is infinitely more perfect than ours, on account of divine omniscience. But thanks to the Incarnation, something of this historical as well as ethical sense has now been imparted to us.
Indeed for Aquinas, as for Gregory of Nyssa, the proper exercise of the natural law is dependent upon the Incarnation. As Russell Hittinger has stressed, Aquinas did not at all share the view of most modern Thomists that the Fall left the ethical sense of the human mind in some essential region unimpaired, nor, a fortiori, as for the post-Kantian perspective of John Finnis and Germain Grisez, that the natural law takes its origins from cognitive rather than ontological structures, or deploys more a priori reasoning than it does a posteriori observation. To the contrary, just because the Fall involves an insane refusal of divine government, the entire ontological order is wrecked, including the operation of the natural law among human beings. Thus while some glimmerings of it remained post lapsum, since total depravity would be impossible short of ontological nullity (because participation in the good is germane to any existence), nevertheless the natural law was essentially in this epoch “destroyed” (as Aquinas explicitly says, in a late writing), since the divine government now operates negatively, to human chastisement. It could only be restored through grace: first by the giving of the written law and finally through the incarnation of the Logos who is also Nomos itself. There was therefore, as Hittinger underlines, no positive “time of the natural law,” having recourse to an ahistorical norm for Aquinas, as for the majority of modern Thomists.
My account of Aquinas here, which I think is a more accurate one, goes clean against most modern Catholic attempts to render his natural law theory “universally relevant” to those of all beliefs and none. Surely then, I am thereby rendering natural law totally irrelevant to people in the world today? But I think that, to the contrary, it is the most seemingly alien features that, when properly considered, can also be seen as now most congenial in a postmodern and perhaps postsecular era.
First, the opening of law and justice to divinely-given grace is not without a pre-echo in Aristotle, who, in the Eudemian Ethics suggests that justice is contained within friendship rather than the other way round and is only fulfilled, paradoxically beyond justice, as friendship, which expresses the gratuitous eternal spiral of the dance of the three graces. Somehow then, the free-exchange of gifts is more than necessary for Aristotle and yet the most necessary thing of all. Love exceeds justice, yet if justice is for harmony and community it can only be completed by the interplay of love. And this of course implies that any legitimate human state must be concerned with promoting good relationships—certainly with fair transactions, but even beyond that with the fostering of meaningful fraternity and sorority. Clearly again, this lies in excess of the more limited concern of natural rights with equal given individual status, leaving the state “agnostic” as to any concern with what goes on “between us,” despite the fact that all of actual, content-filled life is always to do with this interval.
How, though, can the political state be concerned with “grace,” with ritual belief, style and practice in a pluralist cultural universe? Here again, the real Aquinas can be of help. For him, although there is ultimately no clear dividing line between natural and revealed law, there is nonetheless a distinction. And this allows that there may be alternative and even co-existing religious “completions” of a more widely accepted shared order, and also that they can contribute to and intermingle in that generally shared sense of order, just because this distinction implies no firmly locatable border. Although, of course, Aquinas made no pluralist suggestion of this kind, it becomes all the more conceivable insofar as for him the natural law of political practice and philosophical contemplation is to be discerned by the judging faculty of synderesis in terms of (rather vague and ineffable) “principles,” and by the circumstantially-attuned faculty of prudentia (the equivalent of Greek phronesis) in the case of “application,” and in no way by a grasp of rational assumptions from which conclusions are deduced according to an abstract theoretical logic—as again with some early modern scholastic conceptions. Hence one could read him as saying that the affirmation of law is the regulative assertion for practical knowledge (though with ontological bearing) that there exists objective good, not made up by us, and that therefore it is possible for us to make a continued individual effort to discern and to engage in a continued collective debate (as for Socrates, Plato and Aristotle etc.) about this goodness which we can only share in by living a properly human life. It is then also possible with various degrees of assent to allow that religious intuition and tradition contribute to or even further complete this process of debate and discernment.
It can plausibly be contended here that, even today, Aquinas’s outlook runs more with current non-reflexive instinctual sense than do natural rights perspectives. Even today, despite the massive program of liberal counter-intuitive propaganda, people do not generally imagine that their interactions with others cannot be assessed in terms of equity, nor that prices should be criminally extortionate if so dictated by “the market,” nor salaries impossibly bloated for the same reason, nor that the relative needs of women, men and children in relationships cannot be ethically and then legally mediated, nor that sentencing and judgments in courts should not be proportionate rather than simply meted out according to precedent and deterrent. Likewise, they still often suppose that there should be some sort of match, however difficult to determine, between human ability, achievement and needs on the one hand and rewards and resources on the other. Currently we see an inchoate global rebellion against economic inequity and yet it is very unclear that either economic liberalism, or the welfare liberalism of entitlements can do much about this in default of a cultural shift that would more openly see the lack of such equity as both dishonorable and dishonoring.
Aquinas’s linking of natural law to a certain supernaturalized account of history seems, of course, yet more alien and unhelpful in a secular era—yet, as already intimated, natural rights accounts have not really proved able to dispense with historical theologies. And one problem with these modern theologies of history is that they tend to involve a sharp rupture between the natural and the cultural, according to a “biopolitical” cleavage that renders modern thought problematically divided between the thesis that humanity belongs to factually given nature on the one hand, and the equally strong view that it is an artificial construct on the other. In the case of thinking about natural law this already encourages, in the case of early modern scholasticism, the view that this law is now theoretically “based upon” given factual features which then dictate deductively the norms of practical construction. This perspective encourages a Stoicizing drift towards the primacy of self and social preservation, besides a greater stress on the biologically given natural units that are human individuals rather than upon cultural relationships which now tend to be seen as more “artificial” or, especially in the case of Francisco Suarez, as the vehicles for a willed confirmation that the naturally given, general factual circumstances of our behavior do indeed possess legal force. For Suarez, in keeping with Stoicism rather than Aquinas, the natural law derives from the structures of our reasoning in detachment from social and cultural insertion and this reasoning is exercised by a detached observation of rationally graspable consistencies in human nature—a stress which already tends to downplay the teleological. But the actual force of law added to nature comes from will alone—human or divine, and for this reason Suarez already articulates the scission and yet problematic co-dependence between bios and polis that is so fundamental to the perspective of Thomas Hobbes.
In consequence, while, indeed, to begin with, the “given” powers and instincts of individuals are seen to imply first duties rather than rights, this shift encourages a further swerve away from an objective to a subjective foundation of now already more subjectivized right, for which given powers and capacities become not so much signs of dutiful responsibilities as themselves the subjective source of now naturalized subjective rights, even if these remain underwritten by the divine absolute power, itself seen as the source of God’s overriding legitimacy.
By contrast, Aquinas’s perspective assumes that, while indeed culture “adds to” nature and does not simply copy or represent it, it can indeed do so “naturally,” just because what we take to be valuable human habits can be seen as completing, in a somehow intended way, that which naturally precedes us. The alternative is to suppose with Hobbes that “what is really going on” is just pre-human material forces working through humanity, while all our proud cultural artifices are so many fairy-tales. But again, one could submit that this is not how people regularly and almost automatically think, if they are not corrupted by modern liberal pseudo-reflexivity: spontaneously people imagine that in the best aspects of their lives they are in multiple ways “beautifying” the world and that this cannot be a fantasy, else beauty would be an illusion and not worth the effort. And their presumption that thereby they win the approval and favor of others gives the lie to the notion that they are merely expressing their own tastes, however often they may today imagine that. Here it is important to note that it is not Aquinas who is guilty of misconstruing facts as values, and so of seeing merely given nature as an unproblematic guide to life, but rather the early modern revision of natural law and its evolution into foundational natural rights.
The point here is that Hobbes, in an exemplary fashion at once claims to just read off nature and yet at the same time (in accordance with modern biopolitical aporia already alluded to) also sees values as entirely a construct, since their content is arbitrary and their real “substance” is now merely formal and materially constrained. Aquinas to the contrary, just because he is innocent of any fact/value, as of any nature/culture duality, takes it to be the case that nature is already a process that generates newly different and meaningful “forms,” including psychic forms, and that human culture continues this process in an intensified way, such that “added value” is also a further emergence of the naturally factual. It is clearly teleology that provides the linkage between these two. Thus, Thomas is able to think both that we are freely participating in the eternal law as natural creatures through our exercise of judgement, and that thereby we are in conformity with nature and mediate the divine government. It is just for this reason that, far from thinking of the natural law as an unalterable code, he declares that it may imply different courses of action in different circumstances which positive law must perforce take note of.  Thereby he recognizes the dynamism of nature as such—the unalterable lies for him with eternity, and not with finitude or time, whose consistent measures arrive only insofar as they bend towards the eternal.
EDITORIAL STATEMENT: This is the second installment of a six-part series by John Milbank on natural law and natural right. The installments will be collected here as they are published. The third installment is now available.
Featured Image: Lorenzetti, Allegory of Good Government [detail], 1339; Source: Wikimedia, PD-Old-100.
 Philo, The Decalogue, I (2); XXIII (176-177).
 Philo, On Joseph, VI (28) - VII (32).
 On all this see: (despite several debatable and some false claims) the highly acute and original work of Giorgio Agamben, The Kingdom and the Glory, trans. Lorenzo Chiesa (Stanford Cal: Stanford UP, 2013). See also: Thomas Aquinas, ST I qq. 103-109.
 Tertullian, Adversus Judaeos, Cap. 2.
 Gregory of Nyssa, The Life of Moses, II §§215-216; On the Making of Man, VII-VIII. And see Russell Hittinger, “Natural Law and Modern Catholic Theology” in A Preserving Grace: Protestants, Catholics and Natural Law ed Michael Cromartie (Grand Rapids, MI: Eerdmans, 1997), 1-30,
 See Hittinger “Natural Law and Modern Catholic Theology,” op. cit., 5.
 See Malcolm Schofield, The Stoic Idea of the City (Chicago: Chicago, 1999), 57-103.
 Schofield, op. cit., 103.
 Benjamin Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge: CUP, 2015).
 Hugo Grotius, The Free Sea [Mare Liberum] (New York: Liberty Fund, 2004).
 Michel Villey, La formation de la pensée juridique moderne (Paris: PUF, 2003), 340-344.
 Noel Malcolm, “Hobbes’s Theory of International Relations” in Aspects of Hobbes (Oxford: OUP, 2007), 432-456. As Malcolm writes (256), in “the Hobbesian international state of nature . . . moral rights do exist . . . but they are not fixed by nature in any pattern of mutual harmony or reciprocity. Outside the commonwealth rights and duties may be in direct conflict; only inside the commonwealth can they be presumed to be in harmony.”
 Grotius, op. cit., Ch. 5.
 See Villey, op. cit., 538-558. Grotius and Hobbes share a logic, even though the former, like his Continental successors such as Jean Domat and Samuel Pufendorf, thinks in intellectualist and rationalist terms of the divinely objective normativity of the occupation-contract schema, whereas the latter conceives it in more empiricist and voluntarist terms—less seeing the balance of power as a matter of methodical order, than of fact and determination, albeit still, in the end, by God.
 Cicero, On Duties, II, xxi, 73, xxii, 78.
 Aquinas, ST I.II. q. 93 a.1.
 Ibid., I.II. q. 94 a.2.
 Francisco Suarez, De Legibus, II, vi. And see John Finnis, Natural Law and Natural Rights (Oxford: OUP, 2011), 45,
 S.T. “Supplement” [added by later editors] and see: Russell Hittinger, op. cit.
 Suarez, De Legibus, II, vi. See also (and for further points made about the Spaniards below), Jean-Franҫoise Courtine, Nature et empire de la loi: études suaréziennes (Paris: Vrin, 1999).
 Aquinas, S.T. II.I. q. 95 a. 2 reps. And qq. 95-97 in general.
 Ibid., II.II q.2 a. 9 ad 1.
 See Eugene F. Rogers Jr, Aquinas and the Supreme Court: Race, Gender and the Failure of Natural Law in Thomas’s Biblical Commentaries (Oxford: Wiley-Blackwell, 2013). Regardless of the controversial treatment of issues of gender and sexuality in this book, it is one of the most accurate and important ever written on the topic of natural law in Aquinas, building creatively on the work of Russell Hittinger and others.
 Aquinas, In Romans 2:14 (§ 216).
 Aquinas, S.T. II.II. q. 52.
 Russell Hittinger, op. cit.
 Aquinas, Collationes in Dicem Praeceptis I, line 27. And see Hittinger, “Natural Law,” 7, 176 n. 23.
 Aristotle, Eudemian Ethics, VII, x, 5-20; Nicomachean Ethics, VIII-IX. Recent research has stressed that it is false to separate the aesthetic and the religious senses of charis, whether in classical, the early Christian, the Medieval or the Renaissance periods. See: Arpad Szakolczai, Sociology, Religion and Grace (London: Routledge, 2007).
 See Rogers, op. cit., 23-146.
 See John Milbank, “Dignity Rather than Right” [longer version] in Open Insight, Vol 5 No 7 (2014): 77-124.
 See Michel Villey, op. cit., 347-368. In stressing that legality flows from willed action, Suarez opposed the position of Vasquez who saw it as innate in reasoning about nature as such. Accordingly the latter’s view tends to anticipate that of Grotius, for whom the natural law is clear even with the existence of God bracketed. But really these are two versions of the same impoverished metaphysics: reason is sundered from will, nature already from value and all these things, as Villey stresses, can now be univocally regarded in independence of analogical participation in God, as affirmed by Aquinas. See also on late scholasticism and the transition to Grotius Heinrich Rommen, Natural Law: a Study in Legal and Social History and Philosophy , trans Thomas R. Hanley (New York: Liberty Fund, 2014). Rommen was perhaps the earliest clearly to grasp the difference between traditional natural law and modern natural right.
 Villey, op. cit., 360-362.
 Hobbes, Leviathan, Part 3, Chap XXXII. See also: Pierre Manent, La loi naturelle et les droits de l’homme (Paris; PUF, 2018).
 Natural law is not itself for Aquinas a habit, but consistently following it can become so. For a brilliant argument to divinity based on the non-arbitrariness and yet non-mimicry of linguistic and cultural “addition” see: Rowan Williams, The Edge of Words: God and the Habits of Language (London: Bloomsbury, 2014). See also Félix Ravaisson, On Habit, trans. Clare Carlisle and Mark Sinclair (London: Continuum, 2008).
 I consider that there are very good arguments for natural and biological teleology which are indispensable for a natural law outlook, but these cannot be developed here.
 Aquinas, S.T. I.II. q. 94 aa. 4-5.