In the context of this paper I will regard lex naturalis and jus naturale substantially as being synonymous. Even if one were to distinguish between them, relating lex naturalis to the problem of obligation (debitum morale) and jus naturale to that of a virtual juridical order (debitum legale), which in the name of humanity and in the absence of an international juridical power could be made effective by official judicial authorities and even by single individuals, (1) there would be not be -for the purposes of the contents and their evolution- any difference. Indeed, if -following Aquinas- we regard jus naturale as ipsa res iusta,(2) i.e. as a just act with regard to its object, then it is determined by the law, whether this be natural or positive. The content of natural law is the conclusion drawn from the use of the principles of practical reasonableness.(3) We might say, à la Wittgenstein, that the sense of the principles of natural law lies in their use.

 

AMBIGUITY OF THE PRESENCE OF NATURAL LAW TODAY 

 

In the long history of the conceptions of natural law, there have been numerous attempts to demonstrate its actuality and its lasting presence in concrete historic events. Some of these attempts have gone so far as to hypothesize an opening-up of natural law to historicity and to the mutability of beliefs. I recall that Leo Strauss(4) emphasized the difference between the Aristotelian conception, which - in his opinion - was probably favourable to a mutable natural law, and that of Aquinas, who asserted its immutability.(5) Michel Villey is more sensitive to the mutability of natural law, influenced as he is by the practice of Roman law, and a supporter, for this reason, of a clearer distinction between lex naturalis and jus naturale.(6) Others have spoken of "natural law of variable content", of "historical natural law" and of "diritto naturale vigente" (enforced).(7) But I do not think this is the most felicitous way of demonstrating the permanence of the contents of natural law.

The question of the evolution of natural law obviously takes on some theoretical importance if in some way it refers to a substantial change in it. For it is no problem if the moral conscience of humanity evolves - it is a problem if it is stated that the fundamental contents of ethics change. The problem of the mutability of natural law is therefore either a false problem or else it poses itself only for those conceptions of natural law that make no distinction between principles and their conclusions. I am referring of course to the modern doctrine of natural law, which, abandoning the meaning of practical reason, has conceived natural law as a body of pre-defined, eternal and immutable norms. But in a conception like that of Aristotle or Aquinas, for whom natural law is the exercise of practical reasonableness and its result, the problem of change does not exist, as the principles of natural law are unchangeable and known to all, while their conclusions may not be known to all and may vary to some extent according to circumstances. And it is here - as is well known - that Aquinas makes the distinction between «ut in pluribus» and «in aliquo particolari, et in paucioribus, propter aliquas speciales causas impedientes observantiam talium praeceptorum».(8)

Once the idea is accepted that natural law is the fruit of practical reasoning, the question of the proper exercise of reason becomes one of crucial importance. It implies the identification of the prime principles and the arguing of their conclusions. The controversial character of the principles and the debate on the correctness of the conclusions constitute the principal reasons for the instability of natural law in the conscience of contemporary man.

Another source of confusion is the widespread conviction of the identification of natural law with human rights. Human rights cannot in fact themselves alone provide an ultimate justification and require to be justified both in their attribution and in their exercise. It is possible to have a right and use it badly, i.e., against natural law - it is plainly true that courts of justice pass judgement on the correct use of rights.(9) In the conscience of contemporary man, law in the subjective sense has separated itself from duty, i.e., from the rule, and this has destabilized natural law, to which both law in the subjective sense and the norm belong. Rights are attributed on the basis of natural law, but when they are ill used they contravene the principles of practical reasonableness which nonetheless belong to natural law. A conflict is thus created within natural law itself.

On the basis of these considerations it seems to me particularly necessary today to reflect on the manner of interpreting practical reasonableness, on its principles and on its articulations, bearing in mind that here inevitably we come upon the question of natural law and its contents. From this point of view, contemporary juridical and political culture is going through a phase of ambiguity, because on the one hand it is particularly open to natural law and on the other it is certainly not favourable to the stability of its contents.

Law is born out of reason and then becomes an act of volition. The need for a co-ordination of social actions gives rise to rules that time purifies in the test of reason. Social stability helps to preserve these rules from change, protecting them with the mark of authority. What is born as the rule of reason is reclassified as a source of law in a positivistic sense.(10) But in this way the principle of authority prevails over practical reasoning and the demand for stability of the contents of positive law does not always allow it to adapt to the complexity of concrete problems. Today, from different points of view, we are witnessing a profound transformation of the juridical-positive structure of the past - now law must once again knock on the door of reason, i.e., of natural law.

However, if we take another point of view, that of contemporary pluralism, of the widespread refusal to accept that there are models of behaviour valid for all persons - even only those belonging to one and the same political community - and to believe that the solutions to todays problems may be valid for those of tomorrow, then recourse to reason and to reasonableness will take on a purely contingent character with regard not only to the conclusions but also to the very principles themselves. And this is not favourable to natural law and the stability of its contents. The return to reason is therefore not sufficient to rediscover the meaning of natural law, as this is related to a specific use of reason and practical reasonableness.

It is my belief that a supporter of natural law has today two obligations: the first is to show that the juridical reasoning actually practised in courts of justice is from the point of view of argumentative structure not in conflict with the use of the reasonableness that is proper to natural law; the second is to show that the tradition of natural law is able to provide the most appropriate justification of the principles of practical reasonableness. Here I will seek to indicate in summary and very general fashion how - in my opinion - these two tasks should be performed.

 

THE PRINCIPLE OF REASONABLENESS IN POSITIVE LAW

 

It is an incontrovertible fact that the principle of practical reasonableness has now attained the rank of constitutional value. The constitutionalization of human rights necessarily implies the consideration of reasonableness as a constitutional value, even if it is not explicitly formulated. This means something more than the observation that the quality of reasonableness is prescribed for the exercise of all public functions (and therefore also those of the Constitutional Court).(11) This means that the constitution is not a table of values and principles to be applied in the automatic manner of subsumption, which is the directive idea of juridical rationality, but is rather a set of orientations that takes on a precise appearance and an organic composition only in concrete cases. It is the language of principles that suggests the idea of a process of law that starts with the constitutional text but is fully achieved only in its application, of which ordinary law is itself the first step and the constitutional sentence is the last.

Application of the constitution is not the same thing as application of a law. Traditional literal and logical interpretative methods are not enough for a constitutional judge. What are necessary are substantial confirmations of conformity to the constitutional law and forms of judgement that are clearly oriented towards an assessment of the consequences of the legislative act and towards a verification of the material rationality of normative prescription, i.e. of its capacity to achieve objectives of social well-being and to relate the means and ends of state action in a reasonable relationship.

Now, the general rule in this process is precisely reasonableness. Reasonableness is thus a much more comprehensive and basic concept than the juridical concept of subsumptive rationality. It is at once - according to constitutional jurisprudence - a means-concept and an end-concept, a technique and a goal that juridical processes have to strive for. Reasonableness is a means for the satisfaction of values and is itself a value without which other values could not be adequately achieved.(12)

It is part of the spirit of constitutionalism that human dignity should be not merely an abstraction but rather something to be respected to the greatest possible extent. If that is the case, reasonableness is necessary both because of the statute of the "ultimate end" (i.e., not subordinate) of fundamental rights and because of the need to meet the demands of the expectations of particular events in life, the demands of concrete cases of justice.(13)

In an ethico-juridical regime governed by the ethic of rights, as we have today, the principle of duty - necessary for the practicability of any ethic and intended as a measure or, in one word, as a "rule" - is entirely concentrated in reasonableness.(14) Reasonableness transforms principles into rules. This value expresses, for individuals, the need to give to their actions, habits and customs a general order sensitive to integrity and authenticity,(15) while for communities it is an occasion to harmonize the expectations of their members in order to guarantee certainty as well as justice. At the end of the day, every juridical initiative justifies itself on the basis of practical reasonableness, i.e. of the need to co-ordinate social actions not in any way whatever but according to fairness and justice.

The constitutional doctrine of European and non-European countries is endeavouring in different forms to define more precisely what exactly the "judgement of reasonableness" consists in, on the assumption that it possesses an identity of its own with respect to other decisional processes employed by constitutional judges.(16)

The evolution of the constitutional judgement of reasonableness clearly records its progressive autonomy from the judgement of equality when we realize that this judgement is not merely formal and necessarily implies value judgements that require to be justified. We consequently perceive that the judgement of reasonableness in the strict sense no longer possesses an intra-systematic character, i.e. internal to an already established set of norms, but has an extra-systematic character, inasmuch as it evaluates a norm on the basis of parameters that are in some way "external" and can be found juridically in constitutional values related to judgements of functionality, suitability and proportionality, as also of equity.

A further step in this direction is made when it is necessary to operate a balancing of rights. In this case it is particularly evident that an interpretative-type technique of judgement is flanked by a predominantly argumentative type of process. This balancing is itself a form of decision that is not derived from a judiciary syllogism, but on the contrary is intended to formulate the judgements of value that are necessary for the selection of the premises of the syllogism itself. Here reasonableness achieves its maximum independence from the merely applicative functions that are usually attributed to a judge.

In reality the technique of balancing initiated by a constitutional judge is legitimate only if it is possible to demonstrate that the paths of reasonableness that have been tried are very different from the logic of political convenience and from ideological choices. As Bickel has observed, courts of justice do not compete with the rules of democratic representation only inasmuch as they offer it a contribution that only they can give, i.e. the contribution of arguments related to an institutional history and not to political contingency.(17) These reasons refer directly to values that are widely accepted and are absolutely indispensable for civil co-existence, values that are profoundly sensitive to equal respect for all persons, without which the procedures of democratic representation could not function correctly.

It would be possible to demonstrate a similar evolution of the concept of "reasonableness" in relation to international law and the use of such a principle by the International Court of Justice and in the interpretative practice of international treaties. I must not dwell long on the subject,(18) but I can say that here too the attractive force of the idea of reasonableness induces one to seek the maximum possible achievement of justice in concrete circumstances marked by the normative equality of national states. We may therefore consider reasonable all those solutions which tend to make international society more respectful of individual and collective rights, in the least conflictual manner, and which increase the possibilities of co-operation and understanding.

It is not rare to find pronouncements by the International Court of Justice that refer to intentions that may reasonably be attributed to States as a function of circumstances. More generally it is said that the purpose reasonably pursued by a State is to be taken into consideration. But this is evidently a juridical construction: it is rather the purpose it should have pursued rather than the purpose it did in fact pursue. The expression "should have" does not suggest an ideal model of behaviour but rather that which we might have expected, given the current condition of the international order. And yet this does not merely indicate an adaptation to a status quo dominated by sovereign States, because it is undeniable that objective obligations that are above the will of States are increasingly common in international law. Jus cogens is one of the fruits of the exercise of reasonableness in international juridical practice.

To insist that this method of reasonableness follows (or should follow) standards that are nevertheless juridical and not extra-juridical makes sense only on condition that it does not exhume the old dispute between natural law and legal positivism(19) and provided it takes cognisance of the fact that international legality does not reside in the empirical will of States but in the interpretation made of this by a juridical practice that is already marked by fundamental values and specific guarantees. In the absence of the social consensus of a specific community (whether national or international), it may be assumed that there are resources internal to juridical practice for the determination of the concept of reasonableness - some goods are properly speaking juridical inasmuch as they may be obtained only through the law and enjoyed within the law, i.e., within the practice of legality.

 

THE FORMS OF REASONABLENESS IN POSITIVE LAW

 

If we take even a cursory look at the forms of juridical argumentation adopted by constitutional jurisprudence, which in this respect is for obvious reasons much more advanced than international jurisprudence, we can see that certain typical common paths of reasoning are beginning to be identifiable. These are not exactly "argumentative techniques", as each of them sets itself an objective that could be achieved by different technical procedures. In general, we are all agreed that there are reasonable and unreasonable ways of doing certain things. And we might add that what is in this sense "unreasonable" also appears "unnatural", i.e. contrary to the "nature of things". This means that forms of reasonableness must take into account the social and historical contexts in which they operate. 

If we consider the problem from this extremely comprehensive viewpoint, we will notice that a comparison between the jurisprudences of various constitutional courts reveals «una certa koiné degli strumenti argomentativi».(20) There are of course notable differences, because the constitutional practice of reasonableness depends on the cultural conception of "a constitution". For example, argumentative processes are indubitably affected by the question whether or not a specific constitution has formulated values according to a hierarchy of priorities. However, despite all the possible variants, we are able to identify some maxims of "common sense" or "sensible" maxims that are present in the constitutional practice of different countries. Here I can indicate only a few, but only somewhat approximately and incompletely:

A legal decision that without an acceptable justification damages a fundamental value or prevents its realization is not reasonable (criterion of legitimacy).

It is reasonable to limit a fundamental right only if this is justified by the necessity to protect an essential public interest(21) or another fundamental right (criterion of necessity).

A measure restricting a fundamental right is reasonable if, besides being necessary, it is the only practicable means or the mildest of the practicable means available (criterion of least damage).(22)

It is unreasonable to formulate a measure restricting fundamental rights in terms so vague as to allow extensive interpretations (criterion of determinateness).(23)

It is unreasonable to limit a fundamental right to the point of substantially nullifying it (criterion of essential content).

It is reasonable to require that preordained legislative means should be adequate (or not patently inadequate) for the achievement of the purpose (criterion of adequacy).(24)

It is interesting at this point to observe the similarity between these argumentative jurisprudential constraints and the methodological exigencies of practical reasonableness that since time immemorial have been the object of philosophical reflection. Their presence shows that practical reasonableness itself is a fundamental value that is necessarily present at the moment of the achievement and realization of the other values. Substantially it is a question of the value of the rule and of the measure, without which value the participation in other values would be rendered false or impossible. It is not sufficient to aim at a fundamental good - one must do so with a sense of measure and order, otherwise one will be at the mercy of the "tyranny of values", with devastating effects.

John Finnis has spoken of the «basic requirements of practical reasonableness», recognizing therein the «method of natural law», i.e., the specific way in which it is possible to draw the moral principles of natural law from first practical principles.(25) I do not mean to say that there is complete identity between these maxims of constitutional jurisprudence and the exigencies of practical reasonableness identified by philosophers, although one cannot avoid in some way justifying the mutual similarity.

The principles from which a judge draws his conclusions on the basis of reasonableness are not the first principles of natural law, but constitutional rights, i.e., principles already in some way positivized that in turn are conclusions drawn from more fundamental principles. But at this point the positivist constitutional judge calls a halt: he does not return to the principles of natural law, and invokes as his constraint social consensus, i.e. positive morality, interpreting constitutional values as the public ethic actually accepted by the members of a society. Social consensus plays the same role of the first principles of natural law, with the difference that it is (or is at least thought to be) an empirical fact.

What I am most interested in showing here is the closeness between the argumentative structure of juridical reasoning, applied to rights and constitutional values, and that of the tradition of natural law. But the difference, which is certainly not a matter of little account, lies in the way of considering principles and of understanding their content. Each of us sees how important this difference is as regards the permanence and stability of the content of natural law.

 

PLURALISM AND JUSTICE

 

I certainly do not intend to tackle here the difficult problem of the justification and foundation of the first principles of natural law, as I do not wish to lose sight of the reference to current juridical and political practice. I will limit myself to observing that the substitution of social consensus for the first principles of natural law is not in itself convincing and is no longer acceptable in todays context.

The criterion of social consensus no longer functions as a univocal constraint for the judge. Constitutional courts all over the world are accused of deciding on the basis of their political and ethical criteria. Political societies have lost the compactness of their basic culture and, as a result, social consensus on a nucleus of shared values - and especially on the manner of interpreting them - is breaking up. Even the concerted appeal to rights reveals itself to be a fragile form of unity when we observe how differently these are interpreted and practised. The conviction is therefore strengthened that only through the reasonableness of ends (and not only of means) will it be possible to face pluralism. In this sense a return to natural law in the full sense becomes necessary. However, at this point, I must pass from the philosophy of law to moral and political philosophy, whatever value such distinctions may have within the realm of practical knowledge.

It is significant that the current debate in political philosophy is so strongly attracted by the question of reasonableness and public reason.

Today reasonableness is generally understood as a willingness to take into account the consequences of ones actions for the good of others, i.e., an attitude that predisposes one to participate in a co-operation that is fair, respectful of others as free and equal persons, and characterized by reciprocity. To be reasonable means to recognize that others have the same rights to pursue their aims and that therefore it is necessary to seek conditions that are acceptable to all.(26) A reasonable person perceives as a fundamental value that is an end in itself a social world in which all can co-operate as free and equal individuals, on conditions that are acceptable to all, in full reciprocity and with mutual benefit.(27)

What meaning are we to give to this way of understanding the reasonable person? There may be many meanings, not necessarily all mutually compatible. But it undoubtedly expresses a perfectly clear general tendency that is excellently put in the words of an Italian constitutionalist: «"ragionevole"... è colui che si rende conto della necessità, in vista della coesistenza, di addivenire a "composizioni" in cui vi sia posto non per una sola, ma per tante "ragioni". Non lassolutismo di una sola ragione e nemmeno il relativismo rispetto alle tante ragioni (una o laltra, pari sono), ma il pluralismo (le une e le altre, per quanto possibile, insieme)».(28)

The fact of pluralism is understood as the Kantian "fact of reason", i.e., as the institution of a new condition of truth between absolutism and relativism, between the only truth and no truth. Absolutism would mortify pluralism inasmuch as it would delegitimize opinions not in conformity with the only truth; relativism would deprive pluralism of all epistemic dignity. We do not content ourselves with having our preferences satisfied: we want our preferences to be recognized as right and proper. And this is not hard to understand, for in this way such preferences have social dignity and are not a mere caprice. But it is impossible that at one and the same time A and non-A should be right and proper, as we learn from the no-contradiction principle of classical metaphysics.

It is no fortuitous matter that the conception of justice that seeks to attribute philosophical significance to this demand is clearly Hegelian in origin. Michel Rosenfeld has thus defined his "comprehensive pluralism": «in a contemporary pluralistic society there are many competing conceptions of the good, each good in itself, but none good enough to be embraced by all. Under these circumstances, it becomes imperative to imagine an overriding conception of the good which would encompass all others in the context of an elaboration of a community of communities. While working on breaking free from the impasse resulting from clashing visions of the good, it should become apparent that there is no escape from plurality, but the plurality of conceptions of the good can itself become a good - or, more precisely, the good that may bind together other goods. And once this becomes accepted, all that can be done is to embark on a dialectical quest to harmonize the plurality of goods ».(29)

It is characteristic of Hegelian dialectic to embrace all the opposed conceptions of truth and good in a single process and in a supreme synthesis, but this is possible precisely on the basis of an  "absolute knowledge" that is certainly not the outcome desired by contemporary pluralism. For this reason Rawls has more prudently left the question of truth and good outside the door of political justice.(30) In his opinion it is not political philosophy that has to resolve the epistemological difficulties of pluralism. Its task is only to design fair institutions in the cultural conditions prevailing today. I will now consider whether this is possible without taking into consideration the principles of natural law, and as a paradigmatic case I will take the thought of John Rawls.

 

THE PRINCIPLE OF CO-OPERATION

 

Rawls use of reasonableness rests entirely on the "principle of co-operation", without which no civil social existence could ever develop.(31) Even in a plural society, by virtue of its being a society, the mere co-ordination of actions that might derive from strategic action or rational choice is not sufficient. It is not sufficient because a society needs some common quality if it is to be something other than a mere modus vivendi. But there is no common quality when it acts simply on the basis of expectations of other peoples probable actions. There must also be a co-operative attitude, which however in consideration of pluralism cannot consist in a previous sharing of purposes.

No one deny both the necessity of social co-operation and the idea of a fair system of social co-operation. But one may ask oneself whether this idea can itself alone take on the role of the principle of justice without any presupposition. How can we judge whether a system of co-operation is fair without presupposing the characteristics of the persons who co-operate and of the good that has to be distributed? Strangely enough, in Rawls thinking, the idea of equal, i.e. reasonable, co-operation comes before the concept of person and indeed it is precisely the idea of the right terms of co-operation that shapes the characteristics of the persons who participate in it.(32) In this way political theory closes in on itself and has no need to turn to "external" anthropological or ethical principles.

What do ordinary "free and equal" persons, as such, have in common? One might answer: nothing at all! The equality of equal beings does not in itself imply commonality and reciprocal aid. On this basis alone it would not be possible to understand the reason for co-operation. Why should people who consider themselves to be "free and equal" wish to co-operate? But to Rawls way of thinking such questions are meaningless inasmuch as persons can be thus considered only if one presupposes the idea of fair social co-operation: i.e., such persons are already "citizens" or political persons, endowed with co-operative attitudes. But this has every sign of being a case of petitio principii: here the nature of society is not drawn from peoples way of being - on the contrary, it is they who configure themselves on the basis of a presupposed idea of fairness. But where is this idea of fairness taken from? A supporter of natural law would have recourse to a principle of natural law, but for Rawls the matter is a postulate of political theory. Nor are these points of view that might ultimately be compatible, for from the manner of derivation of the principle of co-operation it is also possible to infer its interpretation and the use within it of the exigencies of practical reasonableness, as more careful analysis will show.

A central element of Rawls principle of co-operation comes from the idea of reciprocity, according to which all those who co-operate in obedience to established rules derive an appropriate benefit.(33) It must therefore be recognized that behind Rawls principle of co-operation there is always the factor of personal interest. It must be clarified at once that this idea of reciprocity is halfway between the altruistic idea of impartiality and the egoistic idea of reciprocal advantage. We therefore find ourselves with three models of political justice: the impartial model, which consists - as Barry pointed out - in taking everyones point of view into account and acting without considering self-interest;(34) the model of reciprocal advantage, which takes into account the constraints that induce a person guided by self-interest to pay the lowest price possible to obtain the co-operation of others; and the model of Rawlsian reciprocity, which does not consider the exchange in particular but rather a general system of co-operation that assigns to all the same basic rights and duties and establishes rules for a fair distribution of the benefits produced by everyones efforts. This last is different from mutual advantage since it is not motivated egoistically, i.e. also at the cost of damage to others, and it is different from impartiality since it does not eliminate personal interest, inasmuch as no one would support a social order without expecting some advantage from it. It is therefore, to use Adam Smiths term, a case of uninterested interest.(35)

It is important to note that this idea of reciprocity pursues two objectives: that of not renouncing self-love and that of finding some commonality among persons. Both these exigencies seem to be worthy of our attention. There is however much to contest with regard to the way Rawls seeks to pursue them and to the manner of their justification. And it is precisely from this angle that I wish to demonstrate the superiority of the principles of natural law.

To put it in short, Rawls strategy is to elaborate the concept of a political person who, though aiming at his own interest, adopts principles of action that can be accepted by all. Rawls would say that this requires the conception of a person detached from his own ends (the unencumbered self) and from his own identity.(36) Only the person who has the moral power to suspend the point of view that identifies him can defend principles that all can accept. This is also a conception of reasonableness in political life. A person is reasonable when he is ready to propose - and to accept when they are proposed by others - those principles that are necessary to specify what can be accepted by all as fair terms of social co-operation.(37) Reasonableness is the capacity to be sensitive to what others are able to accept. We cannot ask sacrifices of others which they cannot accept. In the absence of social consensus because of pluralism, it is necessary to construct the conditions of "ideal consensus" by means of the neutralization of all personal points of view. What is at stake is clearly the idea of the common good, i.e., of a common accord regarding principles that can (and must) be accepted by all.

How is one to know what can be accepted by others? One might ask people in the public square. But this way - according to Rawls - would be too empirical and contingent, and certainly inappropriate for the construction of a political theory. Nor can one subscribe to Kants idea that everyone discerns moral law thanks to practical reason, which satisfies rigorously cognitive demands, because according to Rawls one can expect from a contracting party only decisions that are rational as regards their purpose. The only thing left to do is, within the person, to isolate reasonableness from rationality so that on the basis of reasonableness one may propose to others equal, and for that reason, acceptable terms of collaboration. But in this way what remains obscure and unjustified is the type of bond that people have between them. Everyone hopes that co-operation will provide more benefits than one might obtain by remaining alone, but that is not sufficient to adequately justify the relationships and bonds that people have between them. Consequently, the idea of the common good is also merely instrumental to the interests of persons seen as single individuals.(38) When all is said and done, Rawls prime principle from which he derives social co-operation is always only that of reciprocal advantage, and from this one draws a conception of justice as reciprocity, which remains within this paradigm and is certainly not an alternative model to it. We might call it the conception of "mutual far-sighted advantage".

 

THE GOLDEN RULE

 

I now wish to show that the just attempt conjugate self-love with the common good - certainly present in Rawls thinking - could be adequately achieved by having recourse to a traditional principle of natural law, that of the Golden Rule.

Both in its negative formulation ("do not do unto others that which you would not they did unto you") and its positive formulation  ("do unto others as you would they should do unto you") the golden rule substantially states the principle "Love your neighbour like yourself".(39) This principle is so widely present in nearly all cultures and religions that it can be numbered among the éndoxa of all mankind, i.e. among the moral intuitions rooted in the general practice of social life.(40) Its normative role has however been subjected to such criticism that one cannot help thinking that it is at most a maxim of common sense or that it is valid only in relation to some religious faith;(41) whatever the case, it can be excluded as the basis of any ethical or political theory.

These criticisms have been taken up by Hans Kelsen, following Kant,(42) but they are totally unfounded. On the one hand, it has been affirmed that the golden rule leads to such contradictory results as to be ruinous for law and morality, while, on the other, it has been argued that even if one accepts its validity the golden rule is tautological and empty, and consequently cannot provide any true and proper moral directive. Only the second order of objections is however worthy of consideration.

The golden rule, if we consider it, leads to contradictory results only when one takes it to mean that one should wish for others that which one wishes for oneself without qualifying this wish in a strictly normative sense. One cannot transform ones own personal preferences into the preferences of others and, consequently, be obliged in this way. We are obviously not dealing here with personal preferences or inclinations. The meaning of the golden rule is without a doubt as follows: the good that I would like to be done to myself, i.e. that I desire as a good for myself, as my good, must be desired as a good for others, i.e. as a good for all and a good per se. In his comment on Matthew 7.12, St Augustine had already noted that in the traditional formula of the golden rule one has to infer the term "good", i.e. one must do unto others that which is good, and that this is implicit in the reference to will, which is the faculty of that which is good, while greed, not will, is proper to evil actions (43).

It is this specification of the formulation of the golden rule that is the object of the second and more serious criticism. This seeks to show the uselessness of the golden rule in determining rules of moral rules and behaviour. Indeed - says the objection - if only morally justified desires are important, one is presupposing the existence of a normative order that determines which desires are morally justified and which are not. The golden rule would therefore not be the first principle of moral life - it would be this presupposed normative order. The golden rule consequently becomes purely tautological or empty as it finishes simply by stating that I must treat others as others must be treated, i.e., applying general norms impartially, in other words without making any exceptions. But the golden rule does not in itself say what the content of these general norms should be, but only that once the norms are presupposed they must be applied without exception. Going by the golden rule, one would not be able to examine the content of moral norms but only reaffirm the manner of their application, which in any case would be superfluous.

It is not in fact true that the golden rule plays no part in the determination of the content of moral norms, for no one can deny that at least it excludes the validity of all norms discriminating between people. It maintains that the single person to whom an imperative is directed and the others (all persons) towards whom his behaviour is directed all belong to the same category of beings and that it is forbidden to make discriminations within this category. It affirms the substantial equality of all persons with regard to the good and, at the same time, their commonality in that good.

If we formulate the golden rule in the following terms: "I must do (or not do) to others what I justifiably desire (or do not desire) for myself", the difference from Kants principle of universalization will appear all the clearer. This principle completely excludes any reference to a subjectivity desiring the good and concentrates on the fact that it can be accepted that the maxim of ones own action may become a prescription that is valid for all in similar circumstances, i.e. a universal law. But in this way we separate the desire from its justification and the good becomes a duty.(44) For there to be a good, there has to be desiring subjects, in the same way as the sense of value lies in participation in that value. Now, the golden rule is criticized precisely because it does not admit this separation between desire and its normative justification, but it is also precisely here that its significance lies: the universal and communicative desire of good.

The measure of this commonality is given by self-love if this is meant not as an attachment to ones personal preferences and life projects, nor even as the possibility of a separation of oneself from myself in order to enucleate a detached and neutral ego, but rather as an attention for all the basic human aspects that every man finds before him and for which reason - as Aristotle says - he must be "his own friend".

The proof of self-love, i.e. the verification of its rectitude, is given by the fact that it is not in opposition to love for another. If, in himself, man loves what is human, then love of ones neighbour is something natural.(45) I cannot love another for what he is other than on the basis of loving oneself for what one oneself is, on the horizon of similitude. A friend is "another self".(46) The similitude permits a link between self-esteem and solicitude for another person. I cannot rightly esteem myself without esteeming the other like myself.

And here we come upon the idea of reciprocity that is peculiar to the golden rule: each man loves the other for what he is for himself.(47) To love another for what the other is corresponds to loving oneself for what one oneself is, which is the self-love of the golden rule. It is possible to put oneself on the side of the others point of view only on the basis of the communication of perspectives.

A distinction has been made between "mere reciprocity", thanks to which one recognizes that the other man has his own point of view, and "reversible reciprocity", thanks to which one identifies oneself in the other mans perspective.(48) This distinction does not exist on the level of the golden rule that supports the communication of perspectives in the framework of basic human values. It introduces the notion of humanity as a mediating term between the diversity of people, overcoming the dissymmetric character, due to otherness, of an intersubjective relationship. Whatever the case, owing to the golden rule, "reciprocity" does not mean "mutual advantage", even in the long term. It does not say: "do not do unto others that which you would not they did unto you if (and only if) they do not do it unto you". In this sense it prescribes the love of benevolence and prefigures social relations between «givers of gifts».(49)

In the golden rule there is therefore self-love and the principle of benevolence. But this is a very general and comprehensive horizon that regards all moral life and the multiplicity of intersubjective relations. On the plane of social and political ethics the golden rule introduces the principle of solidarity and mutual aid. As there is a general commonality with regard to basic human goods, to promote them for others is the same thing as promoting them for oneself. Single individuals become parts of a whole which they help to feed and from which they draw their resources.(50) Their very realization is a constituent part of this community. This is not yet a political community - it is the moral community of all human beings that is immanent in every concrete community, one for which every person has the right to be treated as "one of our own sort".(51) It is evident here that without a principle of solidarity there could not be any general concept of the common good, which therefore precedes that of justice.

We have regarded the golden rule as a prime principle of natural law and as such it precedes any theory of justice, and provides this with a general set of concepts. It will however be necessary to proceed to further determinations, also in the light of concrete historical circumstances. Reasonableness is the means to treat such questions in such a way as not to break the golden rule, although it would be wrong to consider them to be already resolved by the golden rule itself. My purpose was only to show that it is not an empty formula and that it is indispensable for the foundation of the principle of co-operation.

 

CONCLUSION

 

If in conclusion we now once again consider Rawls theory of justice, we can see that it breaks the golden rule in a number of decisive ways.

First of all, Rawls believes that it is possible to grant the role of prime principle to the principle of co-operation, even with respect to the notion of a political agent, and this is impossible as it is clearly subordinate to the principle of benevolence and to that of solidarity. These principles end up by being implicitly presupposed without themselves being thematized, thus avoiding the onus of interpretation and justification. 

Secondly, Rawls believes it is possible, within the person and among persons, to separate self-love from the co-operative attitude and from reasonableness. In this way, however, the juxtaposition of interests prevents the idea of justice from rising to achieve true recognition and a solidarity in which each of us feels a debt towards everyone else.(52)

Thirdly, in Rawls thinking, there is no real idea of solidarity. Normative equality, which is not an existential similitude, is not enough to motivate people to co-operate among themselves and to justify the principle of co-operation. This does not mean that the principle of co-operation cannot give an important contribution to the evolution of natural law and to the quest for practical truth. Respect of another persons rights is respect for truth as it is part of a persons good not only to have beliefs that are true but also beliefs that are not only aware but also reached in full liberty. The authentic way of practising benevolence does not oblige one to make other peoples aims ones own but to make it possible for them to assert themselves in a fair society.  

Fourthly, and lastly, in this way the question of pluralism is not tackled but avoided. The elimination of the identity of the political person put pluralism in parentheses. Rawls idea of co-operation requires the idea of the neutralization of pluralism, while in reality the challenge today is how one must and can co-operate in conditions of pluralism. In this sense an extremely rich concept of common good helps one to understand and confront contemporary pluralism much more than unduly restricting it. Is not our global and plural society the amplest and most suitable place to seek the truth without prejudices and preclusions?

I believe that use of the golden rule might have given Rawls theory a more solid foundation. Certainly there are aspects of the one that are not compatible with those of the other, especially with regard to the amplitude of the concept of "common good". There are however also implicit and unconscious confirmations of the perennial actuality of this prime principle of natural law.

It may be pointed out that I have not dealt with the stability and evolution of the contents of natural law but only with the actuality of its prime principles and the permanence of its argumentative structure. But I am confident that these elements are much more important than fundamental values because they affect their justification, interpretation and realization.