Natural Born Lawyers
Review of eight recent books on Natural Law
The Weekly Standard
December 20, 1999
The Natural Law:A Study in Legal and Social History and Philosophy by Heinrich Albert Rommen, Liberty Fund, 306 pp., $27.
In Defense of Natural Law by Robert P. George, Oxford University Press, 354 pp., $65.
Aquinas’s Theory of Natural Law: An Analytic Reconstruction by Anthony J. Lisska Oxford University Press, 336 pp., $24.95.
Natural Law in Judaism by David Novak Cambridge University Press, 210 pp., $54.95.
A Preserving Grace: Protestants, Catholics, and Natural Law edited by Michael Cromartie, Eerdmans, 201 pp., $20.
Narrative and the Natural Law: An Interpretation of Thomistic Ethics by Pamela M. Hall, University of Notre Dame Press, 168 pp., $16 paper.
Natural Law and Contemporary Public Policy by David F. Forte, Georgetown University Press, 416 pp., $65.
Feminist Ethics and Natural Law: The End of the Anathemas by Christina L.H. Traina, Georgetown University Press, 389 pp., $27.95 paper.
It is thought rude these days to say so, but there are some moral truths that we all really know--truths a normal human being is unable not to know. They are a universal possession and an emblem of the rational mind.
This doesn’t mean that we know them with unfailing clarity or that we have reasoned out their implications. Nor does it mean that we never pretend not to know them or that we never lose our nerve when told they aren’t true. Yet, such as it is, our common moral knowledge is as real as arithmetic and probably just as plain--so plain, in fact, that we appeal to it even to justify our wrongdoing: Rationalization is the homage paid by sin to guilty knowledge.
These basic moral principles, together with their first few rings of implications, are what philosophers refer to when they use the phrase “natural law.” The last time natural law theory made a splash in America was shortly after World War II, under the influence of such Continental exiles as Jacques Maritain, Yves Simon, Heinrich Rommen, and Leo Strauss. There followed some dry decades, but now books on natural law are once again pouring from the presses: new ones written, old ones reissued, and yet more about to be released. “Natural Law” appears in the title of at least twenty-six books published in America over the last two years.
To make sense of this deluge--to grasp why it’s happening now--it’s necessary to begin, not precisely with what we all really know (which is quite a lot), but with what the great majority of human beings in all times and places admit that we know (which is rather less). Back in 1931, John M. Cooper offered this summary:
The peoples of the world, however much they differ as to details of morality, hold universally, or with practical universality, to at least the following basic precepts. Respect the Supreme Being or the benevolent being or beings who take his place. Do not “blaspheme.” Care for your children. Malicious murder or maiming, stealing, deliberate slander or “black” lying, when committed against friend or unoffending fellow clansman or tribesman, are reprehensible. Adultery proper is wrong, even though there be exceptional circumstances that permit or enjoin it and even though sexual relations among the unmarried may be viewed leniently. Incest is a heinous offense. This universal moral code agrees rather closely with our own Decalogue taken in a strictly literal sense.
Cooper’s reminder was lost at the time among other travelers’ tales: Margaret Mead’s story of a Pacific free-love paradise among the Samoans, for instance, or Colin Turnbull’s account of the conscienceless Ik in Africa. Of course, as it has since been revealed, Mead and Turnbull were wrong: The Samoans turn out to have been fierce defenders of chastity, and the Ik to have had a strong sense of mutual obligation. And, in fact, the discrediting of Mead and Turnbull’s sort of anthropology is one cause of the revival of interest in natural law--for part of our common moral sense is the notion that there actually is a common moral sense. Philosophers call it “natural” to convey the idea that it is somehow rooted in the way things really are. Chinese wisdom traditions call it the Tao; Indian, the dharma or rita. The Talmud declares that it was given to the “sons” of Noah, which means all of us. St. Paul says that when gentiles do by nature what the law requires, they show that its works are “written on their hearts.”
Of course, much of modern philosophy has turned on the attempt to deny any specific content to this common moral knowledge. And the endless hectoring--by utilitarians (who try to ignore everything but pleasure), libertarians (who try to ignore everything but rights), Kantians (who try to ignore everything but the will), and relativists (who try to ignore everything)--has had its effect. When, in the 1992 Planned Parenthood v. Casey decision, the Supreme Court announced a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” it was widely thought to have at last banished from American jurisprudence any appeal to the idea of natural law.
A little reflection, however, reveals that what the Court was really doing (and this is yet more proof of the fact that we can’t succeed, try as we might, at the attempt to ignore our common moral sense) was not rejecting the theory of natural law, but asserting it--in a degenerate and self-annihilating way. But even a self-annihilating theory is still a theory. Your rights are powers to make moral claims upon me, and thus if I want to deny those moral claims (as the Court said I could do with the unborn child’s), I must pretend that you are not a human being. We turn out to be following the logic of natural law even while we’re trying to escape it; the right to define one’s own existence ends up as an effort to define other people’s non-existence.
Perhaps the best place to start for discovering how we got to this point is Heinrich Rommen’s The Natural Law: A Study in Legal and Social History and Philosophy, a recently reissued volume from 1936 that deserves to be better known. Rommen would lay the blame for the Planned Parenthood v. Casey decision on the Enlightenment’s concept of natural rights. Even in the late Middle Ages, certain Scholastic thinkers had begun to give natural rights prominence in the theory of natural law. But in Scho lasticism, those rights were perceived to be only part of a complete picture of morality. We have rights for the same reason we have duties. We have a natural inclination to use our sexual powers, for example, and this inclination must be good, since everything in nature is good (by Scholastic definition) when it works toward its natural end. The natural end of sex is plainly the making of children and the uniting of spouses. It is proper, then, to recognize in our sexual powers both a right and a duty--the right to marry and the duty to reserve sex for the permanent, potentially procreative union of marriage.
Today’s rights talk works differently. For various reasons, Enlightenment thinkers lost confidence in the possibility of saying what the total picture is. Little by little, instead of reasoning “Because of this total picture, we have these rights and duties,” they came to reason “Because we have these rights, we have the duties we have agreed to in the exercise of our rights.” Once philosophical thought moves in this direction, it becomes difficult to say exactly where our rights came from in the first place. One Enlightenment thinker tried to derive rights from “preservation,” another from “sociality,” another from “happiness,” and every other from somewhere else. At least eight new natural law theories were published at every Leipzig booksellers’ fair in the early 1780s--all of them detailed and all of them completely different--and within a very short time the very idea of natural law seemed a discredited gimmick for passing off one’s personal prejudices as eternal truth.
And yet, though Rommen would argue that we need to return to the place where we got off the track, unlearning the bad habits we picked up in the Enlightenment and going back to the old theory of natural law we somehow forgot, it may be that the Enlightenment didn’t get everything wrong. This, at least, is the argument made by Princeton University’s Robert George in his new In Defense of Natural Law, which is not, in fact, a defense of natural law as such, but a defense of the “new” natural law theory George shares with such modern thinkers as John Finnis and Germain Grisez.
When St. Thomas Aquinas used the phrase “natural law” back in the thirteenth century, he meant that the law is natural because it is grounded in the design by which God made the universe. Yes, of course, certain moral truths are self-evident and we can’t not know them, but the important thing is that they are self-evident truths about the order of creation. That’s why St. Thomas doesn’t just call our natural inclinations good but defines goodness in terms of inclinations. “Good,” he says, “is that which all things seek after.”
This is the sort of reasoning that George, Finnis, and Grisez reject. They agree with the Enlightenment rebuke that the old natural law theory commits the “naturalist fallacy,” which means trying to derive a moral conclusion from a factual premise--in Thomas’s case, “X fulfills nature, so X is good.” We must rather assert that although some truths are self-evident, they are self-evident for a different reason than St. Thomas thought. It isn’t because they are built into nature for the reasoning mind to reflect, but because they are built into the reasoning mind itself. Self-evidence lies not in the way the world is put together, but in the way the mind is put together.
To see what a difference this new sort of reasoning makes, consider an issue in sexual ethics. The old sort of natural lawyer reflects that it is wrong to use the sexual powers in a way which thwarts their built-in working--as, for instance, in the use of artificial contraception, which fights the design of the sexual powers instead of cooperating with it. The new natural lawyers, instead of saying that it is wrong to act against the design of the sexual powers, argue that it is wrong to act directly against “the basic good of life,” something condoms plainly do. Different argument, same conclusion? Maybe not. Under the old theory it is easy to see a difference between condoms and the “rhythm method” of natural family planning, for periodic abstinence doesn’t make a fertile act infertile, while a barrier does. Under the new theory it is hard to see a difference, for both condoms and periodic abstinence are intended to prevent procreation.
And the new natural law theory proposes so many things one must not act directly against. The “basic goods” include not only life, but even such things as “skillful play,” all inviolable (in the sense that it is wrong to act against them) and incommensurable (in the sense that it is impossible to call one better than another). R.G. Wright objects that, under this scheme, I cannot even justify taking off from my golf game to rescue a drowning child. Not only is life no better than play, but I must not act against play directly. Now George has an answer, which on logical grounds cannot be faulted. Of course I should save the child, he says, for the fact that life is no better than play doesn’t mean I have no other considerations to bring to bear; there is always the Golden Rule. And besides, I am not acting directly against the good of play, because ruining the game was not my intention but only a result--a “double effect,” to use the technical term--of saving the child.
It’s a little troubling that George’s defense of the Finnis-Grisez line of natural law reasoning has to bring in the complex and difficult doctrine of double effect to explain why I should lay down my golf clubs to save a drowning child--as though the decision were as difficult as figuring out whether to bomb a terrorist rocket launcher on the roof of an orphanage. The theory of natural law, after all, is supposed to explain the philosophical possibility for what everyone already knows--and we probably ought to be suspicious of theories that turn easy cases into hard ones, even when it settles them correctly.
The old natural law didn’t present us with this difficulty. Although it did hold a few things inviolable, it didn’t list so many, and it didn’t refuse to call any basic good better than any other. So Anthony J. Lisska argues in Aquinas’s Theory of Natural Law. In Lisska’s view, there was no need to develop a “new” natural law theory, because the worry about “naturalist fallacies” in the old one was misplaced. Lisska doesn’t deny that such a fallacy exists. Like other contemporary defenders of St. Thomas--Ralph McInerny, Henry Veatch, Russell Hittinger--he just denies that the old theory commits it: Yes, it’s faulty reasoning to derive a normative moral conclusion from a merely factual premise; but what if the “facts” aren’t “mere”--what if the starting point is normative already? What if we aren’t pasting values into the order of creation, but eliciting from that order the values that are already there?
Of course, making good on this claim requires an understanding of nature in which the properties of things are not “simple” but “dispositional”--which is a technical way of saying that you have to view each thing in the universe as though it were an arrow directed naturally to a goal. That’s what St. Thomas thought. The nature of a thing, he said, is “a purpose, implanted by the Divine Art, that it be moved to a determinate end.” And, regardless of philosophy, it’s the way we all naturally tend to think of things. An acorn is not essentially something small with a point at one end and a cap at the other; it’s something that wants to be an oak. A boy is not essentially something with baggy pants and a foul mouth; he’s something that wants to be a man.
In this way of thinking, everything in creation is a wannabe. You just have to recognize what it naturally wants to be, and natural law turns out to be the technical spec sheet, the guide for getting there. For the acorn, this isn’t law in the strictest sense, for law must be addressed to an intelligent being capable of choice and the acorn can’t be in conflict with itself. But a boy can--and that’s why we need philosophy to formulate the natural law.
And yet, according to the old theory of natural law, the human arrow is unlike all others because it is directed to a goal its natural powers cannot reach. We have one natural longing that nature cannot satisfy. God is not only the author of human nature but the direction in which it faces and the power on which it depends, its greatest good. That boy on the corner is something that wants to be a man, but a man is something that wants, on top of all its other difficulties of fulfillment, to be in friendship with God. And that, short of a supernatural grace, is impossible--which creates a massive problem. God, in such religions as Judaism, Christianity, and Islam, has offered direct revelation concerning this supernatural need of human beings. Suddenly we appear to have two laws, the natural and the divine. Suddenly, the God who implanted law in nature announces another law in words.
Embarrassed, some natural lawyers rush to assure us that the natural law would make perfect sense even if there were no God at all--forgetting that if there were no God there would be no nature either. On the other hand, some believers say that since we have the Bible to tell us what to do, we don’t need a natural law. In fact, maybe there isn’t any. The Old Testament doesn’t even mention “nature.” The New Testament does, but says there is something wrong with it.
This is the problem taken up in A Preserving Grace: Protestants, Catholics, and Natural Law, edited by Michael Cromartie, the elegant Natural Law in Judaism, by David Novak, and the interesting but rather more specialized Narrative and the Natural Law: An Interpretation of Thomistic Ethics, by Pamela Hall. The Rabbinic Jews and Protestant Christians who are skeptical about natural law ought to pick up these books, for present in all three of them is an awareness of the fact that the Bible does not claim that there is no knowledge of God and His moral requirements outside Holy Writ. What the Bible claims is rather that there is no knowledge of salvation outside God’s word, which is a very different thing. Indeed, at least five modes of extra-biblical knowledge of right and wrong and God are acknowledged in the Bible: the witnesses of conscience, of God’s handiwork, of Godward longings, of our inbuilt design, and of the “harvest,” i.e. the consequences of our deeds.
Theologians typically distinguish “general revelation,” corresponding to natural law, which God gives to all human beings through His creation, and “special revelation,” corresponding to divine law, which He gives to believers through His word. Novak argues that natural law is not only compatible with divine law but presupposed by it; if you didn’t have the general revelation, you wouldn’t be able to understand the special. Hall grasps that the relationship also works in the other direction, for the salvation story puts natural law in its context: If you didn’t have the special revelation, then you would still have the general, but it would be a message of futility. Indeed, by itself, natural law is not good news (the literal meaning of the word “gospel”), but bad news--a standard which in this fallen world we cannot keep, which serves primarily to allow us to measure our failures.
Comparison of the Novak and Cromartie books suggests an interesting parallel between the situations of natural law in Judaism and in Christianity. Each tradition contains some who wish to slight the natural law and some who wish to slight the divine law--some who snub the general revelation, and others who snub the special. In Novak’s punning way of putting it, there are people who reduce reason to revelation, and people who reduce revelation to reason. Just as he seeks a middle path for Jews, the contributions edited by Cromartie seek a middle path for Christians. Cromartie’s book is an anthology, the record of a conference. That usually spells dull reading, but in this case the prophecy is wrong. The great hit of the volume is Susan Schreiner’s piece on John Calvin, an eye-opener because Calvin thought much more highly of natural law than do many who fly his flag today. Also appealing is the deftly edited audience discussion, in which the reader cannot help noticing the way that some of the Protestants sound like Roman Cath olics, and some of the Catholics like Evangelical Protestants.
For those more interested in knowing what practical difference natural law makes in law and politics, the volume to get is Natural Law and Contemporary Public Policy, edited by David Forte. Proponents of several theories of natural law are included, and it provides a good sampling of the issues: privacy, homosexuality, bioethics, education, and half a dozen more.
Consider just Christopher Wolfe’s piece on judicial review. Despite their moral traditionalism, some conservatives are wary of the claim that there is a natural law higher than written law. Aren’t activist judges too full of themselves already? Do they really need another excuse to throw their weight around? What these conservatives forget to ask is how these judges got that way. Even when they don’t know it, our activist judges are already working with a theory of natural law--it’s just a bad one. And the antidote isn’t no theory, but a better one. Wolfe points out that the core principles of the natural law are very general, and their application to the detailed circumstances of actual communities is hard work. Prudence suggests a division of labor. Let legislators use natural law to make the statutes, for otherwise they will be unjust. Let judges use natural law to understand the statutes, for otherwise they will be opaque. No guideline is immune from abuse, but so far as it goes, Wolfe’s proposal makes good sense.
And yet, perhaps those conservatives are not entirely wrong to be wary of the effect of recent efforts of natural law theory on political and judicial decisions. The more headway the theory makes, the harder every ideologue will work to reinterpret it, to distort it, to turn it to advantage. One theorist will try to use it to justify same-sex mating. Another to explain euthanasia and abortion. A third to argue that “natural law’s concrete conclusions are dynamic and humanly generated to the same degree that humanity itself is”--which is to say that the unnatural is natural, if we say so. If you want to see how this sort of thing might be done, you might look at Christina Traina’s Feminist Ethics and Natural Law.
But none of these misuses invalidates natural law theory; in fact, they mostly serve to help prove its validity, for a lie travels furthest on the back of truth. We’re seeing in America in recent years a rebirth of interest in natural law, partly because of the failure of Enlightenment ethics to propose a successful substitute, partly because of the intellectual discrediting of 1950s-style anthropological relativism, and partly because Americans may finally be remembering that there really are, after all is said and done to deny them, some moral truths that we know--truths a normal human being is unable not to know. But as one reads one’s way through recent judicial decisions, one comes upon what may be the best reason for the revival of interest: We need the authentic natural law to save us from its impersonators.
by J. Budziszewski
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