Archive for the ‘Understanding Natural Law’ Category

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QUESTIONS 91 & 94 on Natural Law – St. Thomas Aquinas

December 5, 2013

Justus van Gent was an Early Netherlandish painter (1410-1480) who later worked in Italy. Detail of a painting of St. Thomas teaching from 28 portraits of "Famous Men" in the Louvre.

Justus van Gent was an Early Netherlandish painter (1410-1480) who later worked in Italy. Detail of a painting of St. Thomas teaching from 28 portraits of “Famous Men” in the Louvre.

Questions 91 and 94 of the Summa Theologiae deal with the natural law. Peter Kreeft in the Shorter Summa, further shortens our approach by summarizing the two questions for us.

Question 91: Of the Various Kinds of Law

FIRST ARTICLE Whether There Is an Eternal Law?

I answer that, As stated above (Q. 90, A. I ad 2; AA. 3, 4), a law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect [complete] community. Now it is evident, granted that the world is ruled by Divine Providence, as was stated in the First Part (Q. 22, AA. I, 2), that the whole community of the universe is governed by Divine Reason. Wherefore the very Idea of the government of things in God the Ruler of the universe, has the nature of a law. And since the Divine Reason’s conception of things is not subject to time but is eternal, according to Proverbs 8:23, therefore it is that this kind of law must be called eternal…

Second Article
Whether There Is in Us a Natural Law?

On the contrary, A gloss on Romans 2:14: When the Gentiles, who have not the [Mosaic] law, do by nature those things that are of the law, comments as follows: Although they have no written law, yet they have the natural law, whereby each one knows, and is conscious of, what is good and what is evil.

I answer that, As stated above (Q. 90, A. 1i ad 1i), law, being a rule and measure, can be in a person in two ways: in one way, as in him that rules and measures; in another way, as in that which is ruled and measured, since a thing is ruled and measured, in so far as it partakes of the rule or measure. Wherefore, since all things subject to Divine providence are ruled and measured by the eternal law, as was stated above (A. I); it is evident that all things partake somewhat of the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends.

Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the [very nature of the] rational creature is called the natural law.

Hence the Psalmist after saying (Psalms 4:6): Offer up the sacrifice of justice, as though someone asked what the works of justice are, adds: Many say, Who sheweth us good things? in answer to which question he says: The light of Thy countenance, O Lord, is signed upon us: thus implying that the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light.

It is therefore evident that the natural law is nothing else than the rational creature’s participation of the eternal law. [Thus the voice of conscience (natural reason judging good and evil) is the echo of the voice of God, and is therefore sacred and inviolable.that just as, in the speculative reason, from naturally known indemonstrable principles.]

Third Article
Whether there Is a Human Law?

I answer that, As stated above (Q. 90, A. 1, ad 2) , a law is a dictate of the practical reason. Now it is to be observed that the same procedure takes place in the practical and in the speculative reason: for each proceeds from principles to conclusions, as stated above (ibid.).

Accordingly we conclude [Self-evident theoretical axioms like the law of non-contradiction. There are also self-evident practical axioms, both general ("Do good, avoid evil") and specific ("Be just"). These are "the precepts of the natural law", which, since it is in our nature, is also naturally known, just as first theoretical principles are.] we draw the conclusions of the various sciences, the knowledge of which is not imparted to us by nature, but acquired by the efforts of reason, so too it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particular determination of certain matters.

These particular determinations, devised by human reason, are called human laws. ["Human law" is "positive law", law posited (made) by man. Moral positivism reduces all moral law to this, denying the eternal law and the natural law. A philosopher could admit the natural law without admitting the eternal law, since one could know the effect without knowing the cause; therefore the argument between legal positivism and natural law does not depend only on whether or not God is admitted. St. Thomas would disagree with Dostoyevsky’s saying, "If God does not exist, everything is permissible."]

Fourth Article
Whether There Was Any Need for a Divine Law? [The divine law is that part of the eternal law which God made known by special revelation.]

I answer that, Besides the natural and the human law it was necessary for the directing of human conduct to have a Divine law. And this for four reasons. First, because…man is ordained to an end of eternal happiness… Secondly … on account of the uncertainty of human judgment… Thirdly, because … man is not competent to judge of’ interior movements, that are hidden…Fourthly, because. . . human law cannot punish or forbid all evil deeds…

QUESTION 94 Of the Natural Law

Fifth Article
Whether the Natural Law Can Be Changed?

I answer that, A change in the natural law may be understood in two ways. First, by way of addition. In this sense nothing hinders the natural law from being changed: since many things for the benefit of human life have been added over and above the natural law, both by the Divine law and by human laws. [E.g.,the Beatitudes and the "evangelical counsels" in the New Testament add significantly to the old law; or there is the obligation to vote in a modern democracy, but not in an ancient monarchy.]

Secondly, a change in the natural law may be understood by way of subtraction, so that what previously was according to the natural law, ceases to be so. In this sense, the natural law is altogether unchangeable in its first principles: but in its secondary principles, which, as we have said (A. 4), are certain detailed proximate conclusions drawn from the first principles, the natural law. . . may be changed in some particular cases of rare occurrence, through some special causes hindering the observance of such precepts, as stated above (A.4)….

Sixth Article
Whether the Law of Nature Can Be Abolished from the Heart of Man?

On the contrary, Augustine says (Confessions ii): Thy law is written in the hearts of men, which iniquity itself effaces not. But the law which is written in men’s hearts is the natural law. Therefore the natural law cannot be blotted out.

I answer that, As stated above (AA. 4, 5), there belong to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men’s hearts.

But it [i.e., the knowledge of the moral law, not the "rectitude" or objective rightness of it.] is blotted out in the case of a particular action, in so far as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (Q. 77, A. 2).

But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart … by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rom i), were not esteemed sinful. [The greatest harm done by vice is thus its blinding of the reason against even knowing good and evil (cf. John 7:17). Cf. the blithely self-confident justification of "unnatural vice" today.].

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A Philosophical Approach to Natural Law 2 – Fr. Joseph Koterski, S.J.

December 4, 2013
Fr. Koterski’s Course: “What we will be attempting to do then is to submit the notion of law, the notion of nature, the notion of human nature, and finally the notion of natural law to philosophical scrutiny in order to try to provide a morality, a theory of ethics that has those characteristics: objectivity, universality, and intelligibility.”

Fr. Koterski’s Course: “What we will be attempting to do then is to submit the notion of law, the notion of nature, the notion of human nature, and finally the notion of natural law to philosophical scrutiny in order to try to provide a morality, a theory of ethics that has those characteristics: objectivity, universality, and intelligibility.”

 

Martin Luther King wasn’t the first to apply natural law to the questions of civil rights, but rather he is that wonderfully heroic prophet of natural rights and civil rights in our own day. But he relies upon a tradition that was much older.

A century before Martin Luther King, Charles H. Langston was convicted by an Ohio court. The year is 1859 and so we are before the civil war. He was convicted for violating the federal laws at that point that required the return of fugitive slaves. This is one of those incidents that led to our civil war. In the course of his defense speech, he too invoked a higher law. He did not succeed in his plea before the court. Civil rights, at that stage in our history, required a very bloody war and then after the war required amendments. We will have a chance to look at them later on in the course of our lectures. But listen to his words and hear that doctrine of natural law ring out in the course of what he considered to be the civil rights of individuals, where those civil rights were not being respected.

He said: “I will do all I can, for any man thus seized and held, though the inevitable penalty … hang over me!” He says: “We all have a common humanity and you all would do that; your manhood would require it; and no matter what the laws might be, you would honor yourself for doing it, while your friends and your children to all generations would honor you for doing it, and every good and honest man would say you have done right!”

Notice his reference to a common humanity. His sense that no matter what the law may say, (calling the black people of that day who were slaves and therefore property or chattel; nonetheless, he recognizes in them a common humanity and he thinks that this requires that he act) failing to return fugitive slaves, even if it is against the federal law of that day (precisely because there are duties that flow from our common humanity), he is willing to accept the penalty. This too will be an important part of the natural law tradition. The willingness to accept the penalties that civil disobedience incurs because there is a higher law that must be respected as higher, not because we prefer it but rather out of a sense that it is superior and supreme.

Now in these examples what I hope to have shown is, is that people of very widely different periods of time, in extremely varied circumstances, and even of different background and religious belief, have nonetheless called upon this tradition of a higher law or a natural law. In this course what I would like to do is to give philosophical consideration to that idea.

Philosophy is a wonderful approach to these questions that we sometimes have an intuitive sense of. We heard in all three of those examples, especially in Antigone’s speech, her intuition that she had to do something for her brother. We heard in Martin Luther King, a sense that we have a fundamental humanity, which must be respected. But when we find that others disagree with us, we need to make arguments. And so the burden of this course of lectures will be to try to make a philosophical argument. It will be an effort to make those intuitions that we have more rigorous — give them very precise statement — for that is for a large part what philosophy does.

We need to consider ideas that are other than our own. Ideas with which we might disagree or agree spontaneously; and we must submit them to rigorous scrutiny. Because sometimes the things that we find so evident and so compelling are merely prejudices. And the things that we find a little disagreeable with, perhaps because we sense something uncomfortable about their implications, might actually bear tremendous importance and have affect upon things that we have taken for granted. That there can be tremendous moral progress, even in the course of examining the ideas that we have a spontaneous reaction to — favorable or unfavorable.

A second reason for submitting this to philosophical scrutiny, beyond merely the desire to be fair and honest about somebody’s idea, has to do with the institutionalization of these ideas. Mainly, we can have ideas (Antigone had them, Martin Luther King had them, Ike justices at Nuremberg were very deeply having them), but there is a need for the institutionalization of ideas if we want everyone to receive fair treatment by law courts, by administrative officials, by those authorities who are charged with the care of the common good.

Philosophy, especially the philosophy of natural law, is aimed with considering how to institutionalize those ideas. Some of the obligations of morality will be relatively easy to institutionalize. Laws for instance against murder or against theft, laws that defend our property and our liberty.

But other ideas of morality will be extremely difficult to institutionalize. Have you ever thought for instance about whether there could be a law that required gratitude? We tell our children from the time when they are knee high to a grasshopper that they need to say thank you and that they are not doing right if they fail to be grateful. And if we wouldn’t think of locking somebody up for not being grateful. Some parts of morality can be institutionalized in ways that requires sanction, penal sanction if they are violated. Others are things which moral suasion does better at and hence a philosophical review is intended to consider these questions.

A third reason for turning to philosophical consideration of natural law is precisely because of the status of natural law ideas in our own legal theory today. Legal theory that is present in most law schools and practiced in most courts goes under the name of “positivism.” Just a few minutes ago we talked about those supra-positive ideas that were referred to in the German 1955 decision. Positivism is a broad legal theory, which suggests that law and morality have to be kept entirely separate. Perhaps morality can have a role in legislatures. So that if you have moral ideas, whether from a philosophical source or from a religious source, you ought to work with legislatures to try to enact those if think it appropriate and for the common good.

But that courts should stay strictly away from any such reference to morality. And that courts should insist only upon formality (on asking about whether a particular deed does or does not follow under a particular law) and secondly to ask whether a particular law does or does not fall under the purview of the constitution. As such, the consideration is purely formal and in a pluralist society that may be the best we can do. Confining the questions of morality to the legislature and then asking our justices to make a strictly formal consideration of it.

On the other hand, something doesn’t sit right within us when we have laws that seem to violate our moral convictions. One found that, for instance in the civil rights cases of last century, when the case of slaves was brought to the court and decided against the slave in the case of Dread Scott, most of us feel that there is something dreadfully wrong about that. But it’s a question of whether or not there should be a moral angle to the judicial review that is practiced by the courts charged with considerations of deeds and laws.

What we will be undertaking then, with a philosophical consideration of the matter, is to bring philosophical scrutiny to these fundamental ideas of justice and a theory of justice. I’ll be referring again and again to the following traits: objectivity, universality and intelligibility because I think these are philosophical ideals for anything that we try to turn our philosophical acumen to. When it’s a matter of questions of ethics, these will be extremely important. In considerations for instance of universality, what we’ll be aiming at is some kind of notion, some kind of theory, some kind of justification that applies to every human being, not just a people of certain race, not just a people of certain religion, not just a people of a certain kinship relationship to us. But rather something that is truly universal.

Secondly, there will be a concern with objectivity. That is to say, a desire to have any person who is attempting to make these claims provide the kind of evidence, provide the kind of argument, provide the kind of understanding of the material that will compel, that will seem to be truly coercive, that will seem to be truly strong to another person considering the matter. It won’t be just subjective opinion, but rather will have an element of objectivity to it; something that I do not create or control or alter that is the basis of my truth plan.

Third, we’ll be considering intelligibility. That is, whether or not the notion that I propose, or that anyone in the natural law tradition proposes, is something that is readily understandable. Some of these things will I think strike us as very simple and common. And ethics is generally on sound footing when it starts with cases that are intuitively clear. Murder for instance is wrong because it’s a matter of taking an innocent life and doing so deliberately. That’s an intelligible notion and we find it readily intelligible that there should be no arbitrary license to kill.

But when we turn to things that are much more complicated, things much further in detail, the intelligibility will come only when there is sufficient training. What we will be attempting to do then in this course is to submit the notion of law, the notion of nature, the notion of human nature, and finally the notion of natural law to philosophical scrutiny in order to try to provide a morality, a theory of ethics that has those characteristics: objectivity, universality, and intelligibility.

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A Philosophical Approach to Natural Law 1 – Fr. Joseph Koterski, S.J.

December 3, 2013

To a great extent, the approach that one takes to questions of ethics and the type of answers at which one arrives depends on the view one takes of human nature. Whether human rights are actually protected by specific legislation or not, the moral demand that a given rights claim ought to be respected depends on recognizing a fundamental dignity in every human being without respect to that person's beliefs or stage of development. Also at issue here is the question of whether human beings are different in kind or just different in degree of complexity in comparison with other animal species, especially the higher primates, because only a genuine difference in kind warrants a difference in the way we treat them.
To a great extent, the approach that one takes to questions of ethics and the type of answers at which one arrives depends on the view one takes of human nature. Whether human rights are actually protected by specific legislation or not, the moral demand that a given rights claim ought to be respected depends on recognizing a fundamental dignity in every human being without respect to that person’s beliefs or stage of development. Also at issue here is the question of whether human beings are different in kind or just different in degree of complexity in comparison with other animal species, especially the higher primates, because only a genuine difference in kind warrants a difference in the way we treat them.

 

In his introductory lecture on Natural Law (one of the great courses here), Fr. Koterski considers a number of famous cases (Antigone, the Nuremberg trials, and Martin Luther King). He recall the long tradition of invoking an unwritten but universal law that stands higher than the written laws and customs of particular communities.  In each example, we find an appeal by aggrieved parties to the ideal of justice that laws ought to respect and defend, an appeal that claims the support of a standard that is objective and impartial. Such experiences ground the long and admittedly checkered history of the idea of natural law. The lecture then explains what is required for a philosophical approach to this question and outlines topics to be covered in the course. The lecture also simply answers the question, “Does natural law exist?”

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A study of natural law ethics, in this course, intends to reflect upon a very ancient and venerable tradition in the consideration of morality. It is a study that involves the consideration of ethics as it’s been known since the time of the Greeks, through the Middle Ages and into the modern period, and to our own day. It’s a study of one important strand of ethics that goes by various names. I’ll be entitling it “natural law.”

But you also see it under the term “higher law.” It is an unwritten, but nonetheless superior, law which stands over any piece of jurisprudence that any particular community, any kind of custom, that any human culture has ever devised and asks about the justice of those customs and the justice of those laws. It’s called a higher law. Sometimes it is referred to under the tradition of natural rights.

Sometimes one finds it being talked about in terms of human dignity. And these are just a few of its names. In order to try to make clear what this tradition is, right here at the start, what I would like to do is to begin with three important cases that bring out this notion of a higher law or a natural law. And then reflect for just a little bit on the importance of considering our topic philosophically. And then finally I’ll say a few words about the general nature of this whole course and the parts that the course will take. But let me begin with calling upon an ancient story from Greece in the classical period.

A wonderful play by Sophocles is called Antigone. You may well know that story, it’s the story of the town of Thebes which has been rent by a civil war on which opposite sides two brothers have fought, Polynices and Eteocles. Both have been killed in the course of the war. They are brothers to the heroine of the play. Their sister’s name is Antigone and she gives the play its name.

She finds herself in that predicament of having family loyalties to both brothers. But the king has decided that only the brother who supported the side that won — that supported the administration of the city — should be buried and buried with honor; whereas Antigone’s other brother will be left to rot in the fields as a kind of dishonor precisely in order to discourage rebels from raising arms against their city.

It’s an understandable position that Creon would have to maintain order and will stand for the maintenance of that system of justice which he is charged with considering and charged with maintaining in the course of his administration. But Antigone feels a very strong loyalty to her brothers and she cannot imagine leaving her brother to rot. She finds that her obligation is an obligation that takes her counter to the civil law — to the law that Creon has enacted which forbade her brother to be buried — but which calls upon a higher law, calls upon a law which is invoked by Zeus.

Let me read a short portion of the relevant text. Creon is speaking: “You, tell me not at length but in a word. You knew the order not to do this thing.” And Antigone says: “I knew, of course I knew. The word was plain.” Creon then says: “And still you dared to overstep these laws.” Antigone: “For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind. Nor did I think your orders were so strong that you, a mortal man, could over-run the gods’ unwritten and unfailing laws. Not now, nor yesterday’s, they always live, and no one knows their origin in time.”

Now one finds in that short passage of a very interesting play, all the important themes of the natural law, which will eventually be articulated by the philosophers in the course of history. We start in the first thing that she says, with an admission that this has been a voluntary action on her part. She has gone and buried her brother — thrown dust upon the corpse — so that the soul will now rest in peace. And she has done so knowing that this transgressed the law, which the king had made.

Hence, we find that scenario which is so common in the history of natural law, that a law that is higher and unwritten is being invoked against the law that was laid down by the authority in the community. Creon is the authority in the community. And there’s every sense that he is a legitimate authority, that he bears his power correctly.

And in fact that he has given a command here — namely that the corpse of a traitor should not be buried — given a command, which is quite reasonable. A command which is clear, a directive which requires that its citizens do something which makes good sense for the common good of the community.

Her appeal is to a higher source. It’s interesting how she does it. Again, to read just the relevant line. “For me it was not Zeus who made that order. Nor did that Justice who lives with the gods below mark out such laws to hold among mankind.”

She is invoking a higher source. She calls this higher source Zeus, but she also calls it Justice. And one has a sense that this is not just an appeal to some specific command that the Greek god Zeus ever gave. We could look in the various stories of the mythology and we will not find a particular command to that effect, but rather this is a very philosophical kind of Zeus. This is a sense of using the word, the name Zeus, and linking it with the very notion of justice, as Justice personified. That this is what Justice requires that I do for my brother.

In fact, later in the play, in a passage that is somewhat complicated (the scholars debate over whether or not it is the original rendering or a later change that was made in the manuscript) she even makes the case that it is not simply because it is her brother lying there, but that anyone who died should be given proper rights of burial. And if that second reading of the text were accurate, this would invoke that very strong natural law theme of the universality of natural law. That it is something that applies to every human being, regardless of our particular kinship relations with them.

It also assents in Antigone’s speech that this is a higher law because she contrasts it very strongly and immediately with the law that Creon has laid down. She does not dispute his authority in general; he is, as the leader of the city, perfectly justified in making laws that give directives that we sometimes dislike.

But rather, what she finds is that the particular directive he has given violates justice. That it transgresses this higher law. Hence she invokes a higher law against a law laid down by a human ruler and urges that morality requires her to do what she did, even if it will cost her. And indeed it does cost her life.

As the play goes on, she is shut up in a cave and Creon leaves her to starve to death. There is an interesting romantic element because she has been a fiancée of Creon’s own son. He rushes to find her, but too late. It is one of the great tragedies of that period. And it begins some of that reflection upon natural law that the Greek period knew.

Let me turn to a second great story because it also gives an important sense of the way in which natural law has been present, not just in the period of Antiquity, but is present in our own modern jurisprudence. One of the interesting factors I think of this whole course will be the tremendous recurrence of the natural law. That it comes again and again in every age.

The incident I mean to mention for the second story are the Nuremberg trials. That in the history of our own century just past, one found a scenario where natural law, not under that name but under one of its synonyms, had to be invoked in order to solve a problem in modern jurisprudence. Namely the fact of a government, the Nazi government, which did actions and laid down as policies, which in fact enacted legislation, which after the war was prosecuted in the city of Nuremberg.

The judges of the trials of the Nuremberg found themselves, at the very start of the proceedings, with a very difficult legal problem. Namely, that even though they were British, or American, or French, or Russian jurists that they could not try German officers, or members of the German government under British, American, French, or Russian laws because what had been done had been done not in any of their jurisdictions.

And yet here they were set up as the trial court to examine certain of the deeds of Nazi Germany. They found that they could not use German law; because although the people who were now being accused of these crimes were indeed German citizens and had done their deeds on German soil, they had done them in perfect legality, according to the German law. For part of the story of the Nazi period is the care with which the Nazi movement made sure to bring the deeds that it intended to do under legal jurisdiction by enacting appropriate legislation.

So you couldn’t use the law of the victors and you couldn’t use the law of the vanquished. What could you use? What the members of that court decided to do was to prosecute the people who were brought before its tribunal under the term “crimes against humanity.” And there we see another one of those synonyms for natural law. I suspect they did not use the term natural law because natural law has a checkered history. We will in fact see in the course of these lectures when we turn to some of the historical instances of natural law, that natural law theory has sometimes been used, and I dare say abused, for ideological purposes.

In fact, a part of the Nazi period was an attempt to justify the repudiation of tribes, of races other than the Aryan race, under natural grounds suggesting that there was a superiority to the Aryan race by nature. And hence you did not want to now try them under natural law or at least to be using that term if it in any way suggested an acceptance of what the Nazi’s had done. But the natural law idea is never confined to that particular terminology. Sometimes it will be human dignity, sometimes it will be natural rights, and sometimes it will be human rights, although in most of its history it has been called natural law.

Here these justices required a term that would speak to the consciences of the world about what it was they were doing. They settled upon crimes against humanity for the sake of the trials that they needed to conduct. Post-war Germany also felt the importance of what the Nuremberg trials had done; in the effort to re-establish a system of justice and good jurisprudence in Germany after the war, one finds German basic law and the jurisprudential tradition within Germany making use of this natural law idea.

Let me again read a short portion that comes from some of the jurisprudence that was elicited after the war. “These laws of confiscation” (this is the passage that deals with the return of the property that had been taken unfairly during the war). “These laws of confiscation, though clothed in the formal rules. of a law are in extremely grave violation of the supra-positive principle of equality before the law as well as of the supra-positive guarantee of any legal order and must remain inviolable. These provisions were and are by reason of their unjust content and their violation of the basic demands of any legal order mill and void; this law could not, even at and during the time of the Nazi regime, produce any legitimate legal effect.”

That passage from 1955 is a very interesting instance of natural law reasoning. It suggests the importance of a law that is somehow higher than the laws which were used during the Nazi period and whose validity and legality were now being commented upon. This reference to a justice that stands higher than the laws that were actually enforced makes that same contrast between what the formal rules of law were and what the justice that any code of law must embody always has to insist upon.

Here the insistence upon a just order and a just content manifests that same sense of a moral tradition. And it brings up this need for judicial review. Judicial review is one of the terms that we will be invoking again and again in the course of our lecture and it refers to the employment by the court of a standard by which to judge the legality and the justice of legislation. Our own American Supreme Court has a doctorate and judicial review which operates in a somewhat similar manner; we’ll have a chance to examine later in one of the lectures about the extent to which it uses a natural law standard.

Here there is a very interesting bit of terminology that I want to call your attention to, it talks about “supra-positive principle of equality” and a “supra-positive guarantee of any legal order” and that is terminology with which we must be familiar right from beginning of this course. Positive here is not being used in the sense of contrast between positive and negative, rather positive is being used in the technical legal sense of a law which has been posited, or a law which has been laid down by human authority.

In this sense, a constitution, as well as administrative laws, as well as the legislation that is passed by a particular congress or particular legislator, all of these, are positive law because they have been laid down by a human authority. And what the German court is referring to in this 1955 opinion is the notion of a supra-positive standard. That is some principle, which stands above anything that has been laid down by human authority.

A suggestion that whatever the human authority lays down, or posits for the sake of procedure or for the sake of some substantive principle of law, there are higher principles yet. Principles which are above anything that has ever been positive. Principles that are eternally true, true because of what we are, our human nature. True perhaps because God laid them down.

But from whatever source they come, they are true and they are supra-positive or they stand above the legislation that comes from the human authority. In this sense, the German court is invoking the natural law tradition without having to call the thing by that particular name.

Let me now turn to a third example that comes from our own American history and that cuts very deep to our hearts I think. It is the case of civil rights and the enormous progress that has been made in the civil rights movement, especially in the course of the Twentieth Century. I’d like to refer to the case of Martin Luther King in particular. In his letter from the Birmingham jail, a very famous document, he also makes use of this natural law tradition in order to protest against racial prejudice. And here we see a third important scenario because we have not just the actual state of existing laws against which he was protesting, but he is also protesting against the custom, which was of a very long standing here on these shores.

And so in the course of making his analysis, he is invoking the natural law not just against a particular decree, as in the case of Creon, or system of law, as in the case of the Nazis, but managing to use natural law to examine human custom as well. Hence, I think this is a very important third representative case.

Let me quote from Martin Luther King. He says:

“A just law is a man-made code that squares with the moral law or the law of God.. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas: `An unjust law is a human law that is not rooted in eternal law and natural law.”

Now, in that passage we find Martin Luther King invoking Thomas Aquinas. And Thomas Aquinas is a figure whom we will see again and again in the course of these lectures. In the whole history of philosophy, he is probably the most famous proponent of natural law. He does it in a rather brief compass within a treatise on theology that he wrote. But in the course of doing so he manages to state with great precision what these principles are and to put the thing in a systematic compass.

Martin Luther King, knowing of this tradition, invokes him as an authority. But does so largely to emphasize to us that one can do this from the point of view of morality considered in secular society. The kind of instance that Martin Luther King must consider because of the jurisprudence in this country. Or it may be done in a religious tradition, not just the traditions of ancient Greece where we had that reference to Zeus in the first passage that I read, but now in reference to the God that Christianity accepts.

The God of Jesus Christ which Thomas Aquinas had reflected upon in such great detail and which Martin Luther King believes in. And Martin Luther King, invoking the tradition in this way, urges us to say one can do this philosophically as well as can do it theologically. I’ll be trying to make use of those themes in the course of our lectures, trying to talk about its theological roots as well as its strictly philosophical roots.

Now mindful of this recent history of ours, Martin Luther King, it’s good to reflect that Martin Luther King didn’t invent the idea.

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Aquinas and Natural Law Theory 2 – Edward Feser

May 1, 2013
As the neo-Scholastic natural law theorist Michael Cronin has summed up the Thomistic view, "In the fullest sense of the word, then, moral duty is natural. For not only are certain objects natural means to man's final end, but our desire of that end is natural also, and therefore, the necessity [or obligatory force] of the means is natural" (Science of Ethics, Volume 1, p. 222). Clearly, the "naturalness" of natural law can, as I have emphasized, only be understood in terms of the Aristotelian metaphysics to which Aquinas is committed.

As the neo-Scholastic natural law theorist Michael Cronin has summed up the Thomistic view, “In the fullest sense of the word, then, moral duty is natural. For not only are certain objects natural means to man’s final end, but our desire of that end is natural also, and therefore, the necessity [or obligatory force] of the means is natural” (Science of Ethics, Volume 1, p. 222). Clearly, the “naturalness” of natural law can, as I have emphasized, only be understood in terms of the Aristotelian metaphysics to which Aquinas is committed.

Given what was said earlier, human beings, like everything else in the world, have various capacities and ends the fulfillment of which is good for them and the frustrating of which is bad, as a matter of objective fact. A rational intellect apprised of the facts will therefore perceive that it is good to realize these ends and bad to frustrate them. It follows, then, that a rational person will pursue the realization of these ends and avoid their frustration.

In short, Aquinas’s position is essentially this: practical reason is directed by nature towards the pursuit of what the intellect perceives as good; what is in fact good is the realization or fulfillment of the various ends inherent in human nature; and thus a rational person will perceive this and, accordingly, direct his or her actions towards the realization or fulfillment of those ends.

In this sense, good action is just that which is “in accord with reason” (ST I-11.21.1; cf. ST I-11.90.1), and the moral skeptic’s question “Why should I do what is good?” has an obvious answer: because to be rational just is (in part) to do what is good, to fulfill the ends set for us by nature. Natural law ethics as a body of substantive moral theory is the formulation of general moral principles on the basis of an analysis of these various human capacities and ends and the systematic working out of their implications.

So, to take just one example, when we consider that human beings have intellects and that the natural end or function of the intellect is to grasp the truth about things, it follows that it is good for us — it fulfills our nature — to pursue truth and avoid error. Consequently, a rational person apprised of the facts about human nature will see that this is what is good for us and thus strive to attain truth and to avoid error. And so on for other natural human capacities.

Now things are bound to get more complicated than that summary perhaps lets on. Various qualifications and complications would need to be spelled out as the natural human capacities and ends are examined in detail, and not every principle of morality that follows from this analysis will necessarily be as simple and straightforward as “Pursue truth and avoid error.”

Particularly controversial among contemporary readers will be Aquinas’s application of his method to questions of sexual morality (SCG 1-II.122-126; ST II-I1.151-154). Famously, he holds that the only sexual acts that can be morally justified are those having an inherent tendency towards procreation, and only when performed within marriage. The reason is that the natural end of sex is procreation, and because this includes not merely the generation of new human beings but also their upbringing, moral training and the like, which is a long-term project involving (in the normal case, for Aquinas) many children, a stable family unit is required in order for this end to be realized.

Any other sexual behavior involves turning our natural capacities away from the end set for them by nature, and thus in Aquinas’s view cannot possibly be good for us or rational. This rules out, among other things, masturbation, contraception, fornication, adultery, and homosexual acts.

This is a large topic which cannot be treated adequately here. (I discuss Aquinas’s approach to sexual morality in detail in my book The Last Superstition.) But this much is enough to provide at least a general idea of how his natural law approach to ethics determines the specific content of our moral obligations. The method should be clear enough, whether or not one agrees with Aquinas’s application of that method in any particular case.

What has been said also suffices to give us a sense of the grounds of moral obligation, that which makes it the case that moral imperatives have categorical rather than merely hypothetical force (to use the distinction made famous by Kant). The hypothetical imperative (1) If I want what is good for me then I ought to pursue what realizes my natural ends and avoid what frustrates them is something whose truth Aquinas takes to follow from the metaphysical analysis of goodness sketched above. By itself, it does not give us a categorical imperative because the consequent will have force only for someone who accepts the antecedent.

But that (2) I do want what is good for me is true of all of us by virtue of our nature as human beings, and is in Aquinas’s view self-evident in any case, being just a variation on his fundamental principle of natural law. These premises yield the conclusion (3) I ought to pursue what realizes my natural ends and avoid what frustrates them. It does have categorical force because (2) has categorical force, and (2) has categorical force because it cannot be otherwise given our nature. Not only the content of our moral obligations but their obligatory character are thus determined, on Aquinas’s analysis, by the metaphysics of final causality or natural teleology.

As the neo-Scholastic natural law theorist Michael Cronin has summed up the Thomistic view, “In the fullest sense of the word, then, moral duty is natural. For not only are certain objects natural means to man’s final end, but our desire of that end is natural also, and therefore, the necessity [or obligatory force] of the means is natural” (Science of Ethics, Volume 1, p. 222).

Clearly, the “naturalness” of natural law can, as I have emphasized, only be understood in terms of the Aristotelian metaphysics to which Aquinas is committed. But it is also illuminating to compare the natural law to the three other kinds of law distinguished by Aquinas. Most fundamental is what he calls the “eternal law,” which is essentially the order of archetypes or ideas in the divine mind according to which God creates and providentially governs the world (ST I-1I.91.1).

Once the world, including human beings, is created in accordance with this law, the result is a natural order that human beings as rational animals can come to know and freely choose to act in line with, and “this participation of the eternal law in the rational creature is called the natural law” (ST I-II_91.2). The “natural law,” then, can also be understood in terms of its contrast with eternal law, as the manifestation of the latter within the natural order.

Now the natural law provides us with general principles by which individuals and societies ought to be governed, but there are many contingent and concrete details of human life that the natural law does not directly address. To take a standard example, the institution of private property is something we seem suited to given our nature, but there are many forms that institution might take consistent with natural law (cf. ST 11-11.66.2).

This brings us to “human law,” which is the set of conventional or man-made principles that govern actual human societies, and which gives a “more particular determination” to the general requirements of the natural law as it is applied to concrete cultural and historical circumstances (ST 1-11.91.3). Human law, then, is unlike both eternal law and natural law in that it is “devised by human reason” and contingent rather than necessary and unchanging.

Finally there is “divine law,” which is law given directly by God, such as the Ten Commandments (ST I-II.91.4-5). This differs from the natural law in being knowable, not through an investigation of the natural order, but only via a divine revelation. It is like human law in being sometimes suited to contingent historical circumstances and thus temporary (as, in Aquinas’s view, the Old Law given through Moses was superseded by the New Law given through Christ) but unlike human law in being infallible and absolutely binding.

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Aquinas and Natural Law Theory 1 – Edward Feser

April 30, 2013
Benozzo Gozzoli (c. 1421 – 1497) was an Italian Renaissance painter from Florence. He is best known for a series of murals in the Palazzo Medici-Riccardi depicting festive, vibrant processions with fine attention to detail and a pronounced International Gothic influence. This picture, the Glory of St. Thomas Aquinas, is now in the Louvre.

Benozzo Gozzoli (c. 1421 – 1497) was an Italian Renaissance painter from Florence. He is best known for a series of murals in the Palazzo Medici-Riccardi depicting festive, vibrant processions with fine attention to detail and a pronounced International Gothic influence. This picture, the Glory of St. Thomas Aquinas, is now in the Louvre.

After all our examination of natural law last week reviewing the David Bentley Hart articles and Edward Feser’s criticism of them, I thought it might be good to look at Professor Feser’s writings on Thomas Aquinas and Natural Law Theory. The man has, after all, written a book on Aquinas  and a wonderful one at that, “a clear, contemporary introduction (and defense!) of Aquinas’ thought which interacts with modern objections.” A sampling below:

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For Aquinas, knowing what is truly good for us requires taking an external, objective, “third-person” point of view on ourselves rather than a subjective “first-person” view; it is a matter of determining what fulfills our nature, not our contingent desires. The good in question has moral significance for us because, unlike other animals, we are capable of intellectually grasping what is good and freely choosing whether or not to pursue it. Aquinas identifies three general categories of goods inherent in our nature.

  1. First are those we share in common with all living things, such as the preservation of our existence.
  2. Second are those common to animals specifically, such as sexual intercourse and the child-rearing activities that naturally follow upon it.
  3. Third are those peculiar to us as rational animals, such as “to know the truth about God, and to live in society,” “to shun ignorance,” and “to avoid offending those among whom one has to live” (ST I-11.94.2).

These goods are ordered in a hierarchy corresponding to the hierarchy of living things (i.e. those with vegetative, sensory, and rational souls respectively). The higher goods presuppose the lower ones; for example, one cannot pursue truth if one is not able to conserve oneself in existence. But the lower goods are subordinate to the higher ones in the sense that they exist for the sake of the higher ones. The point of fulfilling the vegetative and sensory aspects of our nature is, ultimately, to allow us to fulfill the defining rational aspect of our nature. 

What specifically will fulfill that nature? Or in other words, in what does the good for us, and thus our well-being or happiness, ultimately consist? It cannot be wealth, because wealth exists only for the sake of something else which we might acquire with it (ST I-11.2.1). It cannot be honor, because honor accrues to someone only as a consequence of realizing some good, and thus cannot itself be an ultimate good (ST I-I1.2.2). For similar reasons, it cannot be fame or glory either, which are in any case often achieved for things that are not really good in the first place (ST I-1I.2.3). Nor can it be power, for power is a means rather than an end and might be used to bring about evil rather than genuine good(ST 1-11.2.4).

It cannot be pleasure, because pleasure is also a consequence of realizing a good rather than the realization of a good itself, even less likely is it to be bodily pleasure specifically, since the body exists for the sake of the soul, which is immaterial (ST I-II.2.6). For the same reason, it cannot consist of any bodily good of any other sort (ST I-II.2.5). But neither can even it be a good of the soul, since the soul, as a created thing, exists for the sake of something else (i.e. that which creates it) (ST 1-II.2.7). Obviously, then, it cannot be found in any created thing whatsoever; our ultimate end could only possibly be something “which lulls the appetite altogether,” beyond which nothing more could be desired, and thus something absolutely perfect (ST I-II.2.8).

And “this is to be found,” Aquinas concludes, “not in any creature, but in God alone … Wherefore God alone can satisfy the will of man … God alone constitutes man’s happiness(ST 1-1I.2.8). That is not to deny that wealth, honor, faille, power, pleasure, and the goods of body and soul have their place; they cannot fail to do so given that we are the kinds of creatures that we are.

Aquinas’s point is that it is impossible for them to be the highest or ultimate good for us, that to which every other good is subordinated. God alone can be that. In Aquinas’s view, what is good for us is, as I have said, something that remains good for us even if for some reason we do not recognize it as good. What is good for us is necessarily good for us because it follows from our nature. As such, even God couldn’t change it, any more than he could make two and two equal to five. Here we see one important consequence of Aquinas’s view that the intellect is metaphysically prior to the will, in the sense that (as we saw in the last chapter) will derives from intellect rather than vice versa.

The divine intellect knows the natures of things and the divine will creates in accordance with this knowledge. To be sure, the natures in question exist at first only as ideas in the divine mind itself, in this sense they are, like everything else, dependent on God. Still, in creating the things that are to have these natures, the divine will only ever creates in light of the divine ideas and never in a way that conflicts with what is possible given the content of those ideas.

Aquinas’s position is thus very far from the sort of “divine command ethics” according to which what is good is good merely because God wills it, so that absolutely anything (including torturing babies for fun, say) could have been good for us had he willed us to do it. This sort of view was famously taken by William of Ockham (c. 1287-1347), according to whom God could even have willed for us to hate him, in which case that is what would have been good for us. Such a position naturally follows from the “voluntarism” or emphasis on will over intellect associated with Ockham and John Duns Scotus (c. 1266-1308), which is one of the key features distinguishing their brands of Scholasticism from Thomism.

This difference between Aquinas and the voluntarists is related to the reasons for which Aquinas’s position is, as we saw in chapter 3, immune to the famous “Euthyphro objection” to religiously based systems of ethics. The objection, it will be recalled, is in the form of a dilemma: either God wills something because it is good or it is good because he wills it; but if the former is true, then, contrary to theism, there will be something that exists independently of God (namely the standard of goodness he abides by in willing us to do something), and if the latter is true, then if God had willed us to torture babies for fun (say) then that would have been good, which seems obviously absurd.

Ockham essentially takes the second horn of the dilemma, but for Aquinas the dilemma is a false one. What is good for us is good because of our nature and not because of some arbitrary divine command, and God only ever wills for us to do what is consistent with our nature. But that doesn’t make the standard according to which he wills something existing independently of him, because what determines that standard are the ideas existing in the divine mind. Thus there is a third option between the two set out by the Euthyphro dilemma, and it is one that is neither inconsistent with our basic moral intuitions nor incompatible with the claims of theism.

Natural Goodness To Natural Law
It is but a few short steps from “natural goodness” (as Foot calls it) to Aquinas’s conception of natural law. The first principle of natural law, as Aquinas famously held, is that “good is to be done and pursued, and evil is to be avoided. All other precepts of the natural law are based upon this,” where the content of those precepts is determined by the goods falling under the three main categories mentioned above (ST I-1I.94.2). That “good is to be done” and so on might seem at first glance to be a difficult claim to justify, and certainly not a very promising candidate for a first principle. For isn’t the question “Why should we be good?” precisely (part of) what any moral theory ought to answer? And isn’t this question notoriously hard to answer to the satisfaction of moral skeptics?

Properly understood, however, Aquinas’s principle is not only not difficult to justify, but even seems obviously correct. He is not saying that it is just self-evident that we ought to be morally good. Rather, he is saying that it is self-evident that whenever we act, we pursue something that we take to be good in some way and/or avoid what we take in some way to be evil or bad. And that seems clearly right.

Even someone who does something he believes to be morally bad does so only because he is seeking something he regards as good in the sense of worth pursuing. Hence the mugger who admits that robbery is evil nevertheless takes his victim’s wallet because he thinks it would be good to have money to pay for his drugs; hence the drug addict who regards his habit as wrong and degrading nevertheless thinks it would be good to satisfy his craving and bad to suffer the unpleasantness of not satisfying it. Of course, these claims are true only on a very thin sense of “good,” but that is exactly the sense Aquinas intends.

Acceptance of Aquinas’s general metaphysics is not necessary in order to see that this first principle is correct; it is supposed to be self-evident. But that metaphysics is meant to help us understand why it is correct. Like every other natural phenomenon, practical reason has a natural end or goal towards which it is ordered, and that end or goal is just whatever the intellect perceives to be good or worth pursuing. This claim too seems obvious, at least if one accepts Aquinas’s Aristotelian metaphysics. And it brings us to the threshold of a further conclusion that does have real moral significance.

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Edward Feser, David Bentley Hart, and Natural Law — Steven Wedgeworth

April 28, 2013
One can claim that religious faith goes all the way down and claim that basic reason is objective and capable of compelling public persuasion. This is because people do not have to know how or why something is true to still know that it is true. Most self-evident truths operate efficiently apart from self-reflection. The Christian natural philosopher and natural-law thinker is not denying the comprehensive nature of faith, but he is saying that this faith can be rationally demonstrated as a good and necessary thing. Additionally, he claims that basic morality is not only helpful and attractive but inescapable, and it is so on absolutely reasonable grounds.

One can claim that religious faith goes all the way down and claim that basic reason is objective and capable of compelling public persuasion. This is because people do not have to know how or why something is true to still know that it is true. Most self-evident truths operate efficiently apart from self-reflection. The Christian natural philosopher and natural-law thinker is not denying the comprehensive nature of faith, but he is saying that this faith can be rationally demonstrated as a good and necessary thing. Additionally, he claims that basic morality is not only helpful and attractive but inescapable, and it is so on absolutely reasonable grounds.

Yet another point of view I would like to feature here on the Feser/Hart dustup. So much of what the two have written is for master or doctrinal classes in theology and philosophy. Steven Wedgeworth is the editor of The Calvinist International. He is a graduate of Reformed Theological Seminary in Jackson, MS. A Presbyterian pastor and classical school teacher, Steven lives in Jackson, MS. He recently weighed in with an opinion that helps us interpret and learn from the exchange.

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Edward Feser administers a much-needed corrective on the subject of natural philosophy and natural law in this response to David Bentley Hart. Before Dr. Feser’s article, the original piece from Dr. Hart was mostly applauded by other noteworthy names like Rod Dreher, Alan Jacobs, and Peter Leithart. We will not reproduce all of Dr. Feser’s argument, but we will highlight a few key points to show how he demonstrates that these critics are actually confused about the basic points of the natural law position. And in their confusion, these critics end up furthering the modernist cause they seek to defeat.

Dr. Feser begins by pointing out the existence of two schools of natural law: the classical (or “old”) natural-law theory and the “new natural-law theory.” These two schools hold some ideas in common, but they disagree on some important fundamentals. Dr. Feser summarizes:

What the two approaches have in common is the view that objectively true moral conclusions can be derived from premises that in no way presuppose any purported divine revelation, any body of scriptural writings, or any particular religious tradition. Rather, they can in principle be known via purely philosophical arguments. Where the two approaches differ is in their view of which philosophical claims, specifically, the natural law theorist must defend in order to develop a system of natural law ethics.

The “old” natural law theorist would hold that a broadly classical, and specifically Aristotelian, metaphysical picture of the world must be part of a complete defense of natural law. The “new” natural law theorist would hold that natural law theory can be developed with a much more modest set of metaphysical claims – about the reality of free will, say, and a certain theory of practical reason – without having to challenge modern post-Humean, post-Kantian philosophy in as radical and wholesale a way as the “old” natural law theorist would.

Both sides agree, however, that some body of metaphysical claims must be a part of a complete natural law theory, and (again) that these claims can be defended without appeal to divine revelation, scripture, etc.

The problem with Dr. Hart’s critique, among other things, is that he conflates the two schools. He seems to affirm the truth of the “old” natural-law theory, but then he uses modernistic assumptions, those held by the “new natural-law theory,” to explain why the old theory, while still true, has no persuasive power. In doing so, however, he must grant that some of the new positions are also true, or at least true enough not to publicly contest, which is all very strange and self-contradictory.

Dr. Feser explains how Dr. Hart’s practical skepticism is itself incoherent:

[He] supposes that even if our nature directs us to certain ends that constitute the good for us, reason could still intelligibly wonder why it ought to respect those natural ends or the good they define. But this implicitly supposes that reason itself, unlike everything else, somehow lacks a natural end definitive of its proper function, or at least a natural end that we can know through pure philosophical inquiry. And that is precisely what classical natural law theory denies.

In the view of the “old” natural law theorist, when the metaphysics of intellect and volition are properly understood, it turns out that it cannot in principle be rational to will anything other than the good.  The fusion of “facts” and “values” goes all the way down, without a gap into which the Humean might fit the wedge with which he’d like to sever practical reason from any particular end. Hart simply assumes that this is false, or at least unknowable; he doesn’t give any argument to show that it is. And thus he has offered no non-circular criticism of the classical natural law theorist.

Here we see that so many of the new classicists, many of whom write for First Things and Pro Ecclesia, are themselves still thorough-going modernists. Individual reason, even if only for the sake of criticism, is the one thing privileged enough to critique contextualization.

Thus the criticisms of Hume and the alternatives of Kant are mostly accepted. But then, in modernism’s wake, classical philosophy and theology are held up as an aesthetically-attractive anchor to the subjectivist dilemma, but, importantly, one still subjective in nature. In other words, these Christian philosophers choose to hold to classical positions, but they acknowledge that this is a subjective value whose utility is only truly discernible after the fact.

This leads to very pressing problems, namely a basic relativism and its apocalyptic solution which is invariably utopian and violent. Dr. Feser explains how the first dilemma results from an equivocation:

Sloppy popular usage aside, “supernatural” is not a synonym for “metaphysical” – as Hart himself implicitly acknowledges with the phrase “supernatural (or at least metaphysical),” quoted above. What is supernatural is what is beyond the natural order altogether, and thus cannot be known via purely philosophical argument but only via divine revelation. Metaphysics, by contrast, is an enterprise that Platonists, Aristotelians, materialists, idealists, philosophical theists, atheists, and others have for millennia been engaged in without any reference to divine revelation.

The classical natural law theory asserts a specific metaphysical framework, to be sure. And it acknowledges that this is controversial, as Dr. Feser also does. But it does not acknowledge, and has not acknowledged, that the project of metaphysics itself is wholly “supernatural,” dependent on some sort of apocalyptic intervention into the normal order of things.

To do so would make metaphysics dependent upon special revelation, which would make it non-rational and subjective at bottom. Such a position fits perfectly within postmodernism, but it is directly at odds with the earlier tradition. That tradition said that certain metaphysical truths were self-evident and necessary for all other rational discourse. “The contrary” was, to borrow a phrase from other Christian transcendentalists, “impossible.”

Certain truths have to be the case in order for reason to be coherent, and since reason itself is necessary to dispute reason’s coherency, those truths’ existence is itself necessary or self-evident. Thus objective truth is itself self-evident and capable of being appealed to. For Dr. Hart to consign metaphysics to supernatural revelation is to forfeit this claim of objective reality.

Dr. Feser does not miss the fact that this postmodern Christian philosophy is itself a product of secularist advances. He writes, “Notice also the rich irony of a thinker who urges us to trust in divine revelation rather than natural reason, and who appeals to a secularist philosophical argument in order to make his case!”

Instead of defeating secularism, which Dr. Hart has claimed to at least attempt, the result is actually a furtherance of the secularist foundation. The practical result is actually more identity politics with the claim that “Christians” or “religious people” are a class-in-miniature who have something rich to offer the larger market of ideas.

One will see this same phenomenon replicated in Neo-Orthodoxy, Radical Orthodoxy, and certain forms of “worldview” thinking. Instead of argument, we will see appeals to “apocalyptic” transformation through a sort of event-metaphysics.

All of this leaves us with the hopeless contest of competing ultimate worldviews. While it is true that only persuasion will bring a person from one competing position to another, reason has traditionally been the vehicle, or at least one of the primary vehicles, which enables persuasion to be compelling. Apart from it, we are left with fideism or, worse, coercion. Dr. Feser illustrates the futility of the “apocalyptic” methodology:

And then there is the question of why anyone else should accept the revelation – of the missionary activity that, as I’m sure Hart would agree, the Christian is called to. If you are going to teach an Englishman Goethe in the original, you’re going to have to teach him German first. If you’re going to teach him algebra, you’d better make sure he already knows basic arithmetic. And if you’re going to preach the Gospel to him, you’re going to have to convince him first that what you’re saying really did come from God, and isn’t just something the people you got it from made up or hallucinated.

That’s why apologetics – the praeambula fidei, the study of what natural reason can and must know before it can know the truths of faith – precedes dogmatics in the order of knowledge, and always will. The theologian who thinks otherwise is like the Goethe scholar who screams in German at his English-speaking students, telling them what idiots they are – and deriding those who would teach them German as engaged in a “hopeless” task.

All one can say to this is Amen. John Warwick Montgomery made the same point in his essay “Once Upon an A Priori.” Without some inescapably common reason, call it what you will, all we are left with is a shouting match. Or perhaps, as in the current case, what we’ve got is simply marketing.

We will have much more to say about this topic in later essays. For now we will leave our Christian readers with this reassurance. One can claim that religious faith goes all the way down and claim that basic reason is objective and capable of compelling public persuasion. This is because people do not have to know how or why something is true to still know that it is true. Most self-evident truths operate efficiently apart from self-reflection. The Christian natural philosopher and natural-law thinker is not denying the comprehensive nature of faith, but he is saying that this faith can be rationally demonstrated as a good and necessary thing. Additionally, he claims that basic morality is not only helpful and attractive but inescapable, and it is so on absolutely reasonable grounds.

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Nature Loves to Hide — David Bentley Hart

April 25, 2013
It does not then represent some grave failure of natural reason that philosophy cannot achieve definitive moral demonstrations, or that true knowledge of the good is impossible without calling upon other modes of knowledge: the (ubiquitous) supernatural illumination of a conscience -- a heart -- upon which the law is written, Platonic anamnesis (of the eternal forms or of what your mother taught you), cultural traditions with all their gracious moments of religious awakening (Jewish, pagan, Christian, Hindu, Taoist, Buddhist, Muslim, Sikh, and so on), prayer, inspiration, the cultivation of personal holiness, love of the arts, and so on. Ultimately the world is a cruel and relentless place and we are not of it because we can interpret its moral fundamentals through the full range of our human capacities and senses, physical and spiritual.

It does not then represent some grave failure of natural reason that philosophy cannot achieve definitive moral demonstrations, or that true knowledge of the good is impossible without calling upon other modes of knowledge: the (ubiquitous) supernatural illumination of a conscience — a heart — upon which the law is written, Platonic anamnesis (of the eternal forms or of what your mother taught you), cultural traditions with all their gracious moments of religious awakening (Jewish, pagan, Christian, Hindu, Taoist, Buddhist, Muslim, Sikh, and so on), prayer, inspiration, the cultivation of personal holiness, love of the arts, and so on. Ultimately the world is a cruel and relentless place and we are not of it because we can interpret its moral fundamentals through the full range of our human capacities and senses, physical and spiritual.

I think Feser and Hart rather talked past each other, but the event of my two favorites being in some kind of disagreement with each other really became a learning experience for me. Feser is much more capable of defending and presenting purely philosophical arguments whereas Hart tends to fade into reveries that emphasize the being of the world: “To encounter the world is to encounter its being, which is gratuitously imparted to it from beyond the sphere of natural causes, known within the medium of an intentional consciousness, irreducible to immanent processes, that grasps finite reality only by being oriented toward a horizon of transcendental ends (or, better, “divine names”).” is a sentence Feser would never produce. I don’t think you need to choose sides here but can feel an allegiance to both the Christian natural philosopher (Hart) and a kind of natural-law thinker (Feser) Both advocate a  comprehensive nature of faith, and believe their faith can be rationally demonstrated as a good and necessary thing. Morality is inescapable, and it is so on absolutely reasonable grounds.

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Two issues back, I spoke ill of a modern form of natural law theory that unsuccessfully attempts to translate an ancient tradition of moral reasoning into the incompatible language of secular reason. Because of an obscurity I allowed to slip into the fourth paragraph, several readers imagined that I was speaking in propria persona [from Latin "for one's self," acting on one's own behalf, generally used to identify a person who is acting as his/her own attorney in a lawsuit.] from that point on, rather than on behalf of a disenchanted modern rambling among the weed-thronged ruins; and some were dismayed.

Edward Feser, for instance, issued a robust if confused denunciation, accusing me of numerous logical errors I did not commit and of being a Humean modernizer who doubts reason’s natural orientation toward the good. I suppose I should savor that as a refreshing change from the invective I usually attract; but, honestly, what most interested me about Feser’s argument were its fallacies, chief among them a notably simplistic understanding of such words as “revelation” and “supernatural.”

There is an old argument here, admittedly. Somewhere behind Feser’s argument slouches the specter of what is often called “two-tier Thomism”: a philosophical sect notable in part for the particularly impermeable partitions it erects between nature and grace, or nature and supernature, or natural reason and revelation, or philosophy and theology (and so on). To its adherents, it is the solution to the contradictions of modernity. To those of a more “integralist” bent (like me), it is a neo-scholastic deformation of Christian metaphysics that, far from offering an alternative to secular reason, is one of its chief theological accomplices. It also produces an approach to moral philosophy that must ultimately fail.

Before completing that thought, however, it might help to rehearse just a few of the conceptual obstacles our age erects in the path of natural law theory. So:

First. Finality’s fortuity. Most traditional accounts of natural law require a picture of nature as governed by final causality: For every substance, there are logically prior ends — proximate, remote, or transcendent — that guide its existence and unite it to the greater totality of a single cosmic, physical, moral, social continuum embraced within the providential finality of the divine. They assume, then, that from the “is” of a thing legitimate conclusions regarding its “ought” can be discerned, because nature herself — through her evident forms — instructs us in the elements of moral fulfillment.

In our age, however, final causality is a concept confined within an ever more beleaguered and porous intellectual redoubt. One can easily enough demonstrate the reality of finality within nature, but modern scientific culture refuses to view it as in any sense a cause rather than the accidental consequence of an immanent material process.

Within any organic system, for instance, ontogeny is fruitfully determined by strict formal constraints, but these are seen as the results of an incalculably vast series of fortuitous mutations and attritions, and therefore only the residue of an entirely stochastic phylogeny. Hence nature’s finality indicates no morally consequential ends (much less the supereminent finality of the Love that moves the stars), but is rather merely the emergent result of intrinsically meaningless brute events.

Second. Dame Nature, serial murderess. Even if final causality in nature is demonstrable, does it yield moral knowledge if there is no clear moral analogy between natural ends and the proper objects of human motive? After all, our modern narrative of nature is of an order shaped by immense ages of monstrous violence: mass extinctions, the cruel profligacy of an algorithmic logic that squanders ten thousand lives to fashion a single durable type, an evolutionary process that advances not despite, but because of, disease, warfare, predation, famine, and so on.

And the majestic order thus forged? One of elemental caprice, natural calamity, the mercilessness of chance — injustice thrives, disaster befalls the innocent, and children suffer. Why, our deracinated modern might ask, should we believe that nature’s organizing finality, given the kinds of efficient causes it prompts into action, has moral implications that command imitation, obedience, or (most unlikely of all) love?

Third. Elective priorities. Assume, however, that we can establish the existence of a moral imperative implicit in the orderliness of the world, as perceived by a rational will that, for itself, must seek the good: Does that assure that we can prove what hierarchy of values follows from this, or how we should calculate the relative preponderance of diverse moral ends? Yes, we may all agree that murder is worse than rudeness; but beyond the most rudimentary level of ethical deliberation, pure logic proves insufficient as a guide to which ends truly command our primary obedience, and our arguments become ever more dependent upon prior evaluations and preferences that, as far as philosophy can discern, are culturally or psychologically contingent. Consistent natural law cases can be made for or against slavery, for example, or for or against capital punishment, depending on which values one has privileged at a level too elementary for philosophy to adjudicate. At some crucial point, natural law argument, pressed to disclose its principles, dissolves into sheer assertion.

Fourth. Theory’s limits. The most gallantly errant of Feser’s assertions is that, because reason necessarily seeks the good, there exists no gap into which any “Humean” separation of facts from values can insinuate itself. But obviously the gap lies in the dynamic interval between (in Maximus the Confessor’s terms) the “natural” and “gnomic” wills: between, that is, the innate yearning for the good that is the primal impulse of all rational life and the particular acts of judgment and choice by which finite individuals live.

The venerable principle that the natural will is a pure ecstasy toward the good means that, at the level of our gnomic deliberations, whatever we will we inevitably desire as the good (for us); it does not mean that philosophical theory can by itself prove which facts imply which values, or that the good must naturally be understood as an incumbent “ought” rather than a compelling “I want.”

Feser asserts that “purely philosophical arguments” can establish “objectively true moral conclusions.” And yet, curiously enough, they never, ever have. That is a bedtime story told to conjure away the night’s goblins, like the Leibnizian fable of the best possible world or the philosophe’s fairy tale about the plain dictates of reason.

The question relentlessly left open in all of this is what “reason” really is. It is perfectly possible to believe that the whole natural dynamism of our reason and will is toward the good, and even to desire a true moral cultural renewal, and yet still to deny that natural law theory provides a sufficiently rich or logically coherent model of how the intellect can know moral truths. There is nothing scandalous in this unless one creates a false dilemma by imagining a real division between the discrete realms of supernatural and natural knowledge.

Feser thinks of revelation as an extrinsic datum consisting in texts and dogmas, and of the supernatural as merely outside of nature, and believes there really is such a thing as purely natural reason. From that perspective, one cannot deny philosophy’s power to demonstrate objective moral truth without denying reason’s intrinsic capacity for the good. Like a Kantian (the two-tier Thomist’s alter ego), one must believe that philosophical theory’s limits are also reason’s.

These divisions are illusory. What we call “nature” is merely one mode of the disclosure of the “supernatural,” and natural reason merely one mode of revelation, and philosophy merely one (feeble) mode of reason’s ascent into the light of God. Nowhere, not even in the sciences, does there exist a “purely natural” realm of knowledge.

To encounter the world is to encounter its being, which is gratuitously imparted to it from beyond the sphere of natural causes, known within the medium of an intentional consciousness, irreducible to immanent processes, that grasps finite reality only by being oriented toward a horizon of transcendental ends (or, better, “divine names”). There is a seamless continuity between the sight of a rose and the mystic’s vision of God; the latter is in fact implicit in the former, and saturates it, and but for this supernatural surfeit nothing natural could come into thought.

It does not then represent some grave failure of natural reason that philosophy cannot achieve definitive moral demonstrations, or that true knowledge of the good is impossible without calling upon other modes of knowledge: the (ubiquitous) supernatural illumination of a conscience — a heart — upon which the law is written, Platonic anamnesis (of the eternal forms or of what your mother taught you), cultural traditions with all their gracious moments of religious awakening (Jewish, pagan, Christian, Hindu, Taoist, Buddhist, Muslim, Sikh, and so on), prayer, inspiration, the cultivation of personal holiness, love of the arts, and so on.

There is no single master discourse here, for the good can be known only in being seen, before and beyond all words. Certain fundamental moral truths, for instance, may necessarily remain unintelligible to someone incapable of appreciating Bach’s fifth Unaccompanied Cello Suite. For some it may seem an outrageous notion that, rather than a collection of purportedly incontrovertible proofs, the correct rhetoric of moral truth consists in a richer but more unmasterable appeal to the full range of human capacities and senses, physical and spiritual. I, however, see it as rather glorious: a confirmation that our whole being, in all its dimensions, is a single gracious vocation out of nonexistence to the station of created gods.

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A Christian Hart, a Humean Head — Edward Feser

April 24, 2013
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism.

David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism.

Edward Feser, the author of  The Last Superstition: A Refutation of the New Atheism and Aquinas, tells us the background to the Natural Law questions raised by David Bentley Hart: classic vs. new natural law theory and how they differ in approach. According to Feser, Hart appears to have confused the two and appealed to a theological position as untenable as the position he is criticizing.

The argument reminds me of a recent dustup between Bill O’Reilly and other conservatives over the former’s criticism of “bible thumpers” in the gay marriage debate. While O’Reilly was sympathetic to the biblical arguments against gay marriage, his advice was that they would not convince the public at large.

Hart is sympathetic to natural law theorists but feels that the harmony between cosmic and moral order, sustained by the divine goodness in which both participate, are not as precisely discernible as natural law thinkers imagine. Needless to say, bible thumpers and natural law theorists take high umbrage at such cavalier dismissal of their claims.

Feser explains what is really going on in the background.

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In a piece in the March issue of FIRST THINGS, David Bentley Hart suggests that the arguments of natural law theorists are bound to be ineffectual in the public square. The reason is that such arguments mistakenly presuppose that there is sufficient conceptual common ground between natural law theorists and their opponents for fruitful moral debate to be possible.

In particular, they presuppose that “the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation.” In fact, Hart claims, there is no such common ground, insofar as “our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.”

For Hart, it is only when we look at nature from a very specific religious and cultural perspective that we will see it the way natural law theorists need us to see it in order for their arguments to be compelling. And since such a perspective on nature “must be received as an apocalyptic interruption of our ordinary explanations,” as a deliverance of special divine revelation rather than secular reason, it is inevitably one that not all parties to public debate are going to share.

Now I have nothing but respect for Prof. Hart and his work. But this latest article is not his finest hour. Not to put too fine a point on it, by my count he commits no fewer than five logical fallacies: equivocationstraw manbegging the question,non sequitur, and special pleading.

He equivocates insofar as he fails to distinguish two very different theories that go under the “natural law” label. He also uses terms like “supernatural” and “metaphysical” as if they were interchangeable, or at least as if the differences between them were irrelevant to his argument.

These ambiguities are essential to his case. When they are resolved, it becomes clear that with respect to both versions of natural law theory, Hart is attacking straw men and simply begging the question against them. It also becomes evident that his conclusion — that it is “hopeless” to bring forth natural law arguments in the public square — doesn’t follow from his premises, and that even if it did, if he were consistent he would have to apply it to his own position no less than to natural law theory.

Let’s consider these problems with Hart’s argument in order. Who, specifically, are the “natural law theorists” that he is criticizing? He assures us that “names are not important.” In fact names are crucial, because it is only by running together the two main contemporary approaches to natural law that Hart can seem to have struck a blow against either.

So let’s name names. What we might call the classical (or “old”) natural law theory is the sort grounded in a specifically Aristotelian metaphysics of formal and final causes — that is to say, in the idea that things have immanent natures or substantial forms and that in virtue of those natures they are inherently directed toward certain natural ends, the realization of which constitutes the good for them. Accordingly, this approach firmly rejects the so-called “fact/value dichotomy” associated with modern philosophers like Hume.[Professor David Oderberg will walk you through this debate that is found at the root of empiricist philosophy.]

Classical natural law theory’s most prominent historical defender is Aquinas, and it was standard in Neo-Scholastic manuals of ethics and moral theology in the pre-Vatican II period. In more recent decades it has been defended by writers like Ralph McInerny, Henry Veatch, Russell Hittinger, David Oderberg, and Anthony Lisska. (In the interests of full disclosure — of which, regrettably, self-promotion is a foreseen but unintended byproduct, justifiable under the principle of double effect — I suppose I should mention that I have also defended classical natural law theory in several places, such as my book Aquinas.)

What has come to be called the “new natural law theory” eschews any specifically Aristotelian metaphysical foundation, and in particular any appeal to formal and final causes and thus any appeal to human nature (at least as “old natural law” theorists would understand it). It is a very recent development — going back only to the 1960s, when it was invented by Germain Grisez — and its aim is to reconstruct natural law in terms that could be accepted by someone who affirms the Humean fact/value dichotomy.

In addition to Grisez, new natural law theory is associated with writers like John Finnis, Joseph Boyle, William May, Robert P. George, and Christopher Tollefsen. (Once again in the interests of full disclosure, I should note that like other classical natural law theorists, I have been very critical of the so-called “new natural lawyers.” But it is also only fair to point out that Hart’s argument has no more force against the “new” natural law theory than it does against the “old” or classical version.)

What the two approaches have in common is the view that objectively true moral conclusions can be derived from premises that in no way presuppose any purported divine revelation, any body of scriptural writings, or any particular religious tradition. Rather, they can in principle be known via purely philosophical arguments.

Where the two approaches differ is in their view of which philosophical claims, specifically, the natural law theorist must defend in order to develop a system of natural law ethics. The “old” natural law theorist would hold that a broadly classical, and specifically Aristotelian, metaphysical picture of the world must be part of a complete defense of natural law. The “new” natural law theorist would hold that natural law theory can be developed with a much more modest set of metaphysical claims — about the reality of free will, say, and a certain theory of practical reason — without having to challenge modern post-Humean, post-Kantian philosophy in as radical and wholesale a way as the “old” natural law theorist would.

Both sides agree, however, that some body of metaphysical claims must be a part of a complete natural law theory, and (again) that these claims can be defended without appeal to divine revelation, Scripture, etc.

Now Hart characterizes natural law theory in general as committed to the reality of final causes, indicates that he affirms their reality himself, but then (bizarrely) appeals to Hume’s fact/value dichotomy as if it were obviously consistent with affirming final causes, uses it as a basis for criticizing natural law theorists for supposing conceptual common ground with their opponents, and concludes that it is only by reference to controversial “supernatural (or at least metaphysical) convictions” that natural law theory could be defended. This is a tangle of confusions.

For one thing, if there were a version of natural law theory that both appealed to final causes in nature and at the same time could allow for Hume’s fact/value dichotomy, then Hart’s argument might at least get off the ground. But there is no such version of natural law theory, and it seems that Hart is conflating the “new” and the “old” versions, thereby directing his attack at a phantom position that no one actually holds. The “new natural lawyers” agree with Hume and Hart that one cannot derive an “ought” from an “is,” but precisely for that reason do not ground their position in a metaphysics of final causes. The “old” or classical natural law theory, meanwhile, certainly does affirm final causes, but precisely for that reason rejects Hume’s fact/value dichotomy, and in pressing it against them Hart simply begs the question.

It seems Hart thinks otherwise because he supposes that even if our nature directs us to certain ends that constitute the good for us, reason could still intelligibly wonder why it ought to respect those natural ends or the good they define. But this implicitly supposes that reason itself, unlike everything else, somehow lacks a natural end definitive of its proper function, or at least a natural end that we can know through pure philosophical inquiry. And that is precisely what classical natural law theory denies.

In the view of the “old” natural law theorist, when the metaphysics of intellect and volition are properly understood, it turns out that it cannot in principle be rational to will anything other than the good. The fusion of “facts” and “values” goes all the way down, without a gap into which the Humean might fit the wedge with which he’d like to sever practical reason from any particular end. Hart simply assumes that this is false, or at least unknowable; he doesn’t give any argument to show that it is. And thus he has offered no non-circular criticism of the classical natural law theorist.

Of course such a non-Humean view of practical reason is controversial — though I defend it in Aquinas, and other classical natural law theorists have defended it as well — but the fact that it is controversial is completely irrelevant to the dispute between Hart and natural law theory. For no natural law theorist denies that some controversial metaphysical conclusions have to be defended in order to defend natural law theory. That is true of any moral theory, including secular theories, and including whatever approach it is that Hart favors. Certainly it is true of the Humean thesis about “facts” and “values,” which is just one controversial metaphysical claim among others. Having to appeal to controversial metaphysical assumptions is in no way whatsoever a special problem for natural law theorists.

It also has nothing whatsoever to do with claims about the supernatural order. Sloppy popular usage aside, “supernatural” is not a synonym for “metaphysical” — as Hart himself implicitly acknowledges with the phrase “supernatural (or at least metaphysical),” quoted above. What is supernatural is what is beyond the natural order altogether, and thus cannot be known via purely philosophical argument but only via divine revelation. Metaphysics, by contrast, is an enterprise that Platonists, Aristotelians, materialists, idealists, philosophical theists, atheists, and others have for millennia been engaged in without any reference to divine revelation. So for Hart to insinuate that its dependence on metaphysical premises entails that natural law rests on divine revelation, “supernatural” foundations, or “an apocalyptic interruption of our ordinary explanations” is simply a non sequitur.

On the other hand, if all Hart means to assert is that natural law theorists suppose that the metaphysical commitments crucial to their position are uncontroversial, then he is attacking a straw man. No natural law theorist claims any such thing. What they claim is merely that, however controversial, their position can be defended via purely philosophical arguments and without resort to divine revelation. And if its being controversial makes it “hopeless” as a contribution to the public square, then every controversial position is hopeless.

Including Hart’s. Which brings us to special pleading. For what exactly is Hart’s alternative approach to moral debate in the public square, and how is it supposed to be any better? Is a theological position like his — with its appeal to the supernatural, to “apocalyptic interruptions,” and the like — less controversial than natural law theory? Is it more likely to win the day in the public square? To ask these question is to answer them.

Nor could Hart plausibly retreat into a quietist position that refuses to engage with those who do not already share his fundamental commitments. For one thing, there is nothing quiet about his book Atheist Delusions, which was presumably intended as a contribution to the public debate over the New Atheism, not as a mere sermon to the circle of his fellow believers. That presupposes enough conceptual common ground with those who disagree with him for them to understand his position, controversial though it is, and in principle come to be swayed by his arguments. If Hart can do this, why can’t natural law theorists?

Here we see one of several ways in which Hart’s position is ultimately incoherent. Insofar as he applies his criticisms consistently he will find that they undermine his own view no less than the natural law theorist’s.

Suppose Hume’s stricture against deriving an “ought” from an “is” really were well-founded. It would follow that the purely theological ethics to which Hart seems committed, no less than natural law theory, cannot get off the ground. For statements about what has been divinely revealed, or what God has commanded, would be mere statements of “fact” (as Hume understands facts), statements about what “is” the case. And how (given Hume’s account of practical reason) does that tell us anything about “value,” about what we “ought” to do?

The most we can have are the merely hypothetical imperatives Hart rightly (if inconsistently) derides as insufficient for morality. If we happen to care about what God has said, then we’ll do such-and-such. But that tells us nothing about why we ought to care. Hart, like so many other Christian philosophers and theologians eager to accommodate themselves to Hume and other moderns, fails to see that he has drunk not a tonic that will restore youthfulness to the Faith, but a poison that will kill the modernizer no less than the traditionalist.

Notice also the rich irony of a thinker who urges us to trust in divine revelation rather than natural reason, and who appeals to a secularist philosophical argument in order to make his case. Here Hart recapitulates a muddle that one finds again and again in those who would absorb nature into grace, or otherwise do dirt on mere natural theology and natural law in favor of revelation alone. They inevitably appeal to premises that cannot be found in revelation itself, because there is no way in principle to avoid doing so.

For what is it in the first place for something to be revealed? How can we know it really has been? Why accept this purported revelation rather than that one? If the answers are supposed to be found in some purported revelation itself, how do we know that that was really revealed, or that its meta-level answers are better than those of some other purported revelation? And why wouldn’t such a patently circular procedure — appealing to a purported revelation in order to defend it — justify any point of view? It is only from a point of view outside the revelation — the point of view of our rational nature, which grace can only build on and never replace — that these questions can possibly be answered.

And then there is the question of why anyone else should accept the revelation — the missionary activity that, as I’m sure Hart would agree, the Christian is called to. If you are going to teach an Englishman Goethe in the original, you’re going to have to teach him German first. If you’re going to teach him algebra, you’d better make sure he already knows basic arithmetic. And if you’re going to preach the gospel to him, you’re going to have to convince him first that what you’re saying really did come from God, and isn’t just something the people you got it from made up or hallucinated.

That’s why apologetics — the praeambula fidei, the study of what natural reason can and must know before it can know the truths of faith — precedes dogmatics in the order of knowledge, and always will. The theologian who thinks otherwise is like the Goethe scholar who screams in German at his English-speaking students, telling them what idiots they are — and deriding those who would teach them German as engaged in a “hopeless” task.

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Is, Ought, and Nature’s Laws — David Bentley Hart

April 23, 2013

natural law theory

Natural law refers to the use of reason to analyze human nature — both social and personal—and deduce binding rules of moral behavior from it. But is it, after all, simply a fact that many of what we take to be the plain and evident elements of universal morality are in reality artifacts of cultural traditions. David Bentley Hart thought he was stating the obvious. Many took offense and the back-and-forth gave the rest of us a great opportunity to see what the fight was all about. First round to Mr. Hart follows. Some of the reactions tomorrow.

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There is a long, rich, varied, and subtle tradition of natural law theory, almost none of which I find especially convincing, but most of which I acknowledge to be — according to the presuppositions of the intellectual world in which it was gestated — perfectly coherent. My skepticism, moreover, has nothing to do with any metaphysical disagreement. I certainly believe in a harmony between cosmic and moral order, sustained by the divine goodness in which both participate. I simply do not believe that the terms of that harmony are as precisely discernible as natural law thinkers imagine.

That is an argument for another time, however. My chief topic here is the attempt in recent years by certain self-described Thomists, particularly in America, to import this tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause.

Classical natural law theory, after all, begins:

  1. From the recognition that the movement of the human will is never purely spontaneous, and that all volition is evoked by and directed toward an object beyond itself.
  2. It presupposes, moreover, that beyond the immediate objects of desire lies the ultimate end of all willing, the Good as such, which in its absolute priority makes it possible for any finite object to appear to the will as desirable.
  3. It asserts that nature is governed by final causes.
  4. And, finally, it takes as given that the proper ends of the human will and the final causes of creation are inalienably analogous to one another, because at some ultimate level they coincide (for believers, because God is the one source in which both participate). Thus, in knowing the causal ends of nature, we should be able to know many of the proper moral ends of the will, and even their relative priority in regard to one another.

So far, so good. But insuperable problems arise when — in part out of a commendable desire to speak to secular society in ways it can understand, in part out of some tacit quasi-Kantian notion that moral philosophy must yield clear and universally binding imperatives — the natural law theorist insists that the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation.

Thus, allegedly, the testimony of nature should inform any rightly attentive intellect that abortion is murder, that lying is wrong, that marriage should be monogamous, that we should value charity above personal profit, and that it is wicked (as well as extremely discourteous) to eat members of that tribe that lives over in the next valley.

“Nature,” however, tells us nothing of the sort, at least not in the form of clear commands; neither does it supply us with hypotaxes of moral obligation. In neither an absolute nor a dependent sense — neither as categorical nor as hypothetical imperatives, to use the Kantian terms — can our common knowledge of our nature or of the nature of the universe at large instruct us clearly in the content of true morality.

For one thing, as far as any categorical morality is concerned, Hume’s bluntly stated assertion that one cannot logically derive an “ought” from an “is” happens to be formally correct. Even if one could exhaustively describe the elements of our nature, the additional claim that we are morally obliged to act in accord with them, or to prefer natural uses to unnatural, would still be adventitious to the whole ensemble of facts that this description would comprise.

The assumption that the natural and moral orders are connected to one another in any but a purely pragmatic way must be logically antecedent to our interpretation of the world; it is a belief about nature, but not a natural belief as such; it is a supernatural judgment that renders natural reality intelligible in a particular way. I know of many a stout defender of natural law who is quick to dismiss Hume’s argument, but who — when pressed to explain why — can do no better than to resort to a purely conditional argument: If one is (for instance) to live a fully human life, then one must . . . (etc.). But, in supplementing a dubious “is” with a negotiable “if,” one certainly cannot arrive at a categorical “ought.”

In abstraction from specific religious or metaphysical traditions, there really is very little that natural law theory can meaningfully say about the relative worthiness of the employments of the will. There are, of course, generally observable facts about the characteristics of our humanity (the desire for life and happiness, the capacity for allegiance and affinity, the spontaneity of affection for one’s family) and about the things that usually conduce to the fulfillment of innate human needs (health, a well-ordered family and polity, sufficient food, aesthetic bliss, a sense of spiritual mystery, leisure, and so forth); and if we all lived in a Platonic or Aristotelian or Christian intellectual world, in which everyone presumed some necessary moral analogy between the teleology of nature and the proper objects of the will, it would be fairly easy to connect these facts to moral prescriptions in ways that our society would find persuasive. We do not live in such a world, however.

It is, after all, simply a fact that many of what we take to be the plain and evident elements of universal morality are in reality artifacts of cultural traditions. Today we generally eschew cannibalism, slavery, polygamy, and wars of conquest because of a millennial process of social evolution, the gradual universalization of certain moral beliefs that entered human experience in the form not of natural intuitions but of historical events.

We have come to find a great many practices abhorrent and a great many others commendable not because the former transparently offend against our nature while the latter clearly correspond to it, but because at various moments in human history we found ourselves addressed by uncanny voices that seemed to emanate from outside the totality of the perceptible natural order and its material economies.

One certainly may believe that those voices in fact awakened us to “natural” truths, but only because one’s prior supernatural convictions prompt one to do so. To try then to convince someone who rejects those convictions nevertheless to embrace those truths on purely “natural” grounds can never be much more than an exercise in suasive rhetoric (and perhaps something of a pia fraus).

The truth is that we cannot talk intelligibly about natural law if we have not all first agreed upon what nature is and accepted in advance that there really is a necessary bond between what is and what should be. Nor can that bond be understood in naturalistic terms. Even if it were clearly demonstrable that for the majority of persons the happiest life is also the most wholesome, and that most of us find spiritual and corporeal contentment by observing a certain “natural” ethical mean — still, the daringly disenchanted moralist might ask: “What do we owe to nature?”

To his mind, after all, the good may not be contentment or even justice, but the extension of the pathos of the will, as Nietzsche would put it: the poetic labor of the will to power, the overcoming of the limits of the merely human, the justification of the purely fortuitous phenomenon of the world through its transformation into a supreme aesthetic event. What if he should choose to believe (and are not all values elective values for the secular moralist?) that the most exalted object of the will is the Übermensch, that natural prodigy or fortunate accident that now must become the end to which human culture consciously aspires?

Denounce him, if you wish, for the perversity of his convictions. Still, after all hypothetical imperatives have been adduced, and all appeals to the general good have been made, nothing would logically oblige him to alter his ideas. Only the total spiritual conversion of his vision of reality could truly change his thinking.

To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural. 

There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions. And, in an age that has been shaped by a mechanistic understanding of the physical world, a neo-Darwinian view of life, and a voluntarist understanding of the self, nature’s “laws” must appear to be anything but moral.

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Tradition and the Natural Law

May 24, 2011

Allen: That’s quite a lovely Jackson Pollock, isn’t it?
Woman: Yes, it is.
Allen: What does it say to you?
Woman: It restates the negativeness of the universe. The hideous lonely emptiness of existence. Nothingness. The predicament of man forced to live in a barren, godless eternity like a tiny flame flickering in an immense void with nothing but waste, horror, and degradation, forming a useless, bleak straitjacket in a black, absurd cosmos.
Allen: What are you doing Saturday night?
Woman: Committing suicide.
Allen: What about Friday night?
Woody Allen, Play It Again Sam (1972)

No U.S. Supreme Court dictum in decades has faced such vilification as has poor Justice Kennedy’s 28 words in Planned Parenthood vs Casey 505 US 833 (1992):

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the mystery of human life.”

Interestingly enough, Kennedy’s words aren’t even original. Rather they reflect the dictum of another Supreme Court majority opinion written almost 50 years earlier, in which Justice Felix Frankfurter included his own “mystery” passage:

“Certainly the affirmative pursuit of one’s convictions about the ultimate mystery of the universe and man’s relation to it is placed beyond the reach of law.”

That case, Minersville v. Gobitis, (1940) was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution.

The Court ruled that public schools could compel students — in this case, Jehovah’s Witnesses — to salute the American Flag and recite the Pledge of Allegiance despite the students’ religious objections to these practices. Happily they overthrew it three years later but then Justice Kennedy dusted it off for the feminists in the Casey decision. The point of all this being that when some issue is at stake there is a segment of the population (either left or right) who will say the law shouldn’t apply, that FREEDOM and our right to choose what that means, trumps all. Viva Guns, Abortion and Woody Allen’s girlfriend above.

Needless to say they are all wrong — in a secular blindness the court chose again to propound a universal moral right not to recognize the universal moral laws on which all rights depend.  As J. Budziszewski notes “Such liberty has infinite length but zero depth. A right is a power to make a moral claim upon me. If I could “define” your claims into nonexistence — as the Court said I could “define” the unborn child’s — that power would be destroyed.

What the Supreme Court tells us is that we need to have an understanding of nature as being designed according to its teleological purposes. The key definition concerning freedom (“a process of growing into the habits (i.e., virtues) that allow us to fulfill our end as human beings without the impediments of vice”) implies that we know what the end of human being to be. Saint Thomas has written that the “nature” of any particular thing is “a purpose, implanted by the Divine Art, that it be moved to a determinate end”. Provided that we haven’t been taught not to, this is the way we tend to think of things anyway. Part of the despair of modernity is that we have lost the will to distinguish not only what our purpose in life is, but the very notion that things (even us) possess an essential nature:

An acorn is not essentially something small with a point at one end and a cap at the other; it is something aimed at being an oak. A boy in my neighborhood is not essentially something with baggy pants and a foul mouth; he is something aimed at being a man. In this way of thinking, everything in Creation is a wannabe. We just have to recognize what it naturally wants to be. Natural law turns out to be the developmental spec sheet, the guide for getting there. For the acorn, nature isn’t law in the strictest sense, because law must be addressed to an intelligent being capable of choice. For the boy, though, it is. The acorn can’t be in conflict with itself. He can.

But there is something missing here. According to the old tradition of natural law, the human arrow is unlike all others because it is directed to a goal which its natural powers cannot reach. We have one natural longing that nothing in nature can satisfy. That boy on the corner is something that by nature wants to be a Man, and being a Man is hard enough. But a Man is something that by nature wants to be in friendship with God, and that, short of grace, is impossible.

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. He isn’t just the most important good for me because of my faith commitments; He is the most important simply. Revealed religion concurs: “For [even] the Gentiles seek all these things; and your heavenly Father knows that you need them all. But seek first his kingdom and his righteousness, and all these things shall be yours as well.”
J. Budziszewski, What We Can’t Not Know

We appear to be running smack into what the detractors of Natural Law accuse it of being – a cover for divine law and a theocratic state. “Some natural lawyers 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.”

Even though the elementary principles of the moral law are known by nature, they are elicited, elucidated, and elaborated by tradition. “Nature dependent on tradition” may sound inconsistent but it shouldn’t. Sound tradition works like a talented sculptor with a piece of marble: the artist liberates the object which is imprisoned in the block. In the same way, tradition gives voice to what in some sense we already know, but inarticulately. When tradition is silenced or forgotten, people are left to work out all these things out for themselves — a hit-or-miss undertaking at best. What is evident to the isolated tradition-less self is the repeatable human error sealed with the words “self-evident.”

Moreover, in tradition, intellect and moral character work together. As J. Budziszewski points out, if the mind is like the eyes, then the virtues are like the lenses which focus them. The classical Natural Law thinkers held that although there are broad moral truths which cannot be blotted out of the heart of man, there are others, more remote from first principles, which can all too easily be blotted out, usually by bad living.

The goods of fidelity, are plain and concrete to the man who has not strayed, but they are faint, like mathematical abstractions, to the one who is addicted to other men’s wives (think Arnold). The assistance of “second nature” is needed for nature to come into its own; the natural is brought to bear by the habitual. This is the source of all Eastern artistic teachings, copying the works of the masters over and over and over again. Americans are the bane of any Japanese art – they’re ready to fly and explore their inner selves after they think they’ve got the basics. Indispensable, then, is a living tradition that transmits not only teachings, but disciplines. How many American Catholics do you know who think of their faith as a discipline?

So when we require the assistance of tradition here, we are speaking of the assistance of a particular kind of tradition. Understand that clear vision of the moral law can be crushing. Because the first thing that an honest man sees with this clear vision is a debt which exceeds anything he can pay. Apart from an assurance that the debt can somehow be forgiven, such honesty is too much for us — it can kill with a deadly realization of our complete unworthiness. The sinners first reaction is what forgiveness, what salvation can there be?

Without a special revelation from the Author of the law, it is impossible to know whether the possibility of forgiveness is real. Therefore we look away; unable to accept the truth about ourselves, we may keep the law in the corner of our eye, but we cannot gaze upon it steadily. We are simply unworthy, our damnation more than reasonable.

Without a faith and salvation that is greater than our Natural Law tradition, one that settles the matter of forgiveness once and for all, our highest ethics would be littered with evasions and suicides. Although Natural Law was named by the pagans and is in some dim fashion known apart from the Bible, reflection about it has never gone far except within biblical revelation.

J. Budziszewski borrows a metaphor used by C. S. Lewis in another context, namely that our particular traditions are like the different rooms of a great house, and the public square is like the entrance parlor. The parlor is indispensable room; it is where everyone meets and goes in and out. But we learn even our parlor manners in the family rooms, the family rooms are where people actually live, and one of the chief topics of parlor conversation is — surprise! — our families.

Members of different traditions cannot always speak together, but sometimes they can, and in ways that tradition less people never can. The greatest insights into Natural Law coincided with the period during which they were intensely and simultaneously engaged with the pagan thought of Aristotle, the Jewish thought of Maimonides, and the Muslim thought of Averroes. A great leavening of all these traditions has occurred and all that is required of us is to cultivate the art of listening to each other to learn what the Natural Law teaches us.

The greater difficulty lies in speaking with people (relativists, atheists, et. al.)who have no traditions of unfolding the Natural Law, only “traditions” of evading or obscuring it. Budziszewski cautions us that although this kind of conversation is not impossible, it presents special difficulties: we can better teach speech to the mute if we have learned it among people who speak. So seek out the philosophical and the traditions on the issues of faith in the public square. Learn the vocabulary, understand the traditions of the Natural Law.

It is only in God and in light of God that we rightly know any man. Any “self-knowledge” that restricts man to the empirical and tangible fails to engage with man’s true depth. Man knows himself only when he learns to understand himself in light of God, and he knows others only when he sees the mystery of God in them.
Jesus of Nazareth – Joseph Ratzinger (Pope Benedict XVI)

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