August 28, 2011

On the Faults of Natural Law

This short essay is not intended as an exhaustive exploration of the subject, but is designed to express in a short space the primary difficulties I have with the concept and application of natural law. This presents a problem at the outset as there are at two very different understandings of the term “natural law.” The 1910 edition of the Catholic Encyclopedia article on the subject begins,

In English this term is frequently employed as equivalent to the laws of nature, meaning the order which governs the activities of the material universe. Among the Roman jurists natural law designated those instincts and emotions common to man and the lower animals, such as the instinct of self-preservation and love of offspring. In its strictly ethical application — the sense in which this article treats it — the natural law is the rule of conduct which is prescribed to us by the Creator in the constitution of the nature with which He has endowed us.

It is the final understanding, and its application, I am addressing at this point — as it is the one that I feel is most pernicious and ethically problematical, and open to the greatest abuse.

However, let me first raise the question of why anyone should feel the need to develop such an overarching theory of morality in the first place. It seems to me that this stems from a desire for objective standards, rather than a willingness to live in a conditional moral universe that is subjective at its heart. The evident problem with such a desire for objectivity lies in the fact that morality itself is necessarily relative — that is, it deals with the interrelations between various entities, and how they interact with each other. This necessitates an inescapable degree of subjectivity. Even behaviors of an individual in relation to some nonhuman entity — the state, the church, or even God — are by definition relational. The desire to declare a given act as moral or immoral divorced from the relation of the actor to the act and to that which is acted upon leaves precious little with which to deal.

For example, theft, which as an act-in-itself is simply the manipulation of some object (real or — in this day and age — even virtual), is only considered “theft” because of the relationship of the thief to the thing stolen, and touches on whole areas of presupposed or unexamined philosophical groundwork such as the nature of ownership itself: what makes something “belong” to one individual and not to another. There is nothing essentially rational or necessary in the concept of ownership — it depends upon other concepts that derive from cultures and their attitudes and have no objective or universal standing.

This exposes the greatest problem with natural law: that the supposedly self-evident truths to which it appeals are themselves philosophical constructs that even if widely shared still reflect the cultural prejudices of those who share them. I commend reading the whole article in the Catholic Encyclopedia (see link below) which, dating from 1910, reveals rather clearer traces of these cultural prejudices proclaimed as self-evident truths than might be risked with such bluntness today.

In short, natural law, as a system, is hopelessly guilty of begging the question. It assumes as its necessary premises answers to some of the very issues it purports to address.

Perhaps the most “question-begging” aspect of the concept lies in the essentially useless conclusion identifying the ultimate principle of natural law. As Aquinas says, (and as the CE reports),

the supreme principle [governing all of natural law], from which all the other principles and precepts are derived, is that good is to be done, and evil avoided (I-II.Q94.2).

Well, that’s settled then. Just do what is good, avoid evil, and all is taken care of. The problem, of course, is that rational people disagree as to what is even the highest good, and what subsidiary goods flow from it, and what actions and relations are in accordance with the highest or subsidiary goods.

The problems begin almost as soon as one begins to attempt to apply the basic premise. As the article in the CE goes on to say, the universality of natural law

pertains not to those abstract imperfect formulæ in which the law is commonly expressed, but to the moral standard as it applies to action in the concrete, surrounded with all its determinate conditions. We enunciate, for instance, one of the leading precepts in the words: “Thou shalt not kill”; yet the taking of human life is sometimes a lawful, and even an obligatory act. Herein exists no variation in the law; what the law forbids is not all taking of life, but all unjust taking of life.

The emphasis above is mine: the authors recognize that the concrete reality and conditions of any action have a role in determining whether that action is in fact good or not — that is, if it is in accordance with natural law. But the natural law itself cannot be used to make that determination because all it says, in essence and in its pure form, is that one should seek the good and avoid evil. In the case cited, all hinges on what is determined to be “unjust” — and of course in some contexts even the meaning of “life” — and so the whole weight of morality has to refer to that universe of conditions and circumstances rather than to any objective, immutable, or universally shared principle.

Take, as another example, the good of procreation — any rational person would say that the continuance of the human species is a good thing. But some cultures or moral systems (such as rabbinic Judaism, see mYebamoth 6.6) have held that the duty to procreate is incumbent upon all men; while others (for example, the Roman Church) have held that celibacy is not only permissible but virtuous. (Aquinas’ way around the problem of celibacy — II-II.Q152.2 — was to note that the commandment to be fruitful and multiply was addressed not to the individual human but to humanity as a species — a rather clever solution, but one that also tends to undercut the very basis of natural law as incumbent upon every human as human! And clearly the Roman Church is not willing to apply this same principle to birth control, but invokes a completely different moral touchstone: the dubious notion that the “procreative function” is not to be separated from the “unitive.” Since these functions are to some extent separate even in nature and can further be separated by human action, and there may well be quite rational causes for doing so — for example, in the case of a woman for whom it has been determined that bearing a child would be a significant danger to her life — the objectivity of this moral law comes into question.)

Additional difficulties arise the further one wades into the defense of natural law. In an effort to define its “essence” the CE continues with these two principles:

(a) The natural law is universal, that is to say, it applies to the entire human race, and is in itself the same for all. Every man, because he is a man, is bound, if he will conform to the universal order willed by the Creator, to live conformably to his own rational nature, and to be guided by reason. However, infants and insane persons, who have not the actual use of their reason and cannot therefore know the law, are not responsible for that failure to comply with its demands. (b) The natural law is immutable in itself and also extrinsically. Since it is founded in the very nature of man and his destination to his end — two bases which rest upon the immutable ground of the eternal law — it follows that, assuming the continued existence of human nature, it cannot cease to exist. The natural law commands and forbids in the same tenor everywhere and always.

Noting already the exceptional cases of those who do not have the use of reason, another problem with this asserted universality arises when particular human actions judged irrational by some are judged rational by others. Who is to set the objective standard as to what is rational? Do we not end at base with reliance upon cultural norms and prejudices, which by definition are not universal?

The usual response from natural lawyers is to say that a culture (or an individual) who fails to follow some precept which the proponents derive from natural law is either depraved or perverse: that is to say, like infants or the insane they simply have not attained or have lost the use of reason or have reasoned in error, or they know full well that what they are doing is wrong but persist in doing it out of some innate disordered desire to do what they know full well is “evil.”

This is, however, merely a cloak for cultural prejudices. Allow me to cite one more example from the CE article, which is at some pains to defend the toleration of polygamy in the Hebrew dispensation (“dispensation” itself being a somewhat uncomfortable fit with a supposedly universal and immutable law):

Under no circumstances is polyandry compatible with the moral order, while polygamy, though inconsistent with human relations in their proper moral and social development, is not absolutely incompatible with them under less civilized conditions.

This blatantly sexist (and vaguely racist) declaration is clearly at odds with right reason. If polygamy is permitted (because it advances a primary end of marital union, i.e., procreation) then surely the same is true of polyandry. The rabbinic ruling (cited above) that commands a man whose wife does not bear a child within a certain term of years to take another assumes that the problem lies in the woman. But a woman whose husband is sterile is forbidden to take another man. This stems not from any truly “natural law” but from a firm bondage to patriarchy, in which tracking the patrilineal descent is considered crucial. Obviously matriarchy and family inheritance by matrilineal descent is not only just as “natural” but arguably more secure, as the occasional doubts about paternity do not arise in the case of maternity. In fact, I recall a woman stand-up comedian some years ago deriving quite a laugh from her line, “I don’t have any kids... [proud smirk] that I know of...!” The allowance of polygamy and rejection of polyandry is not objective and rational, but mere cultural prejudice at work. (I do not, by the way, say any of this in defense of either polygamy or polyandry, but simply to point out the inconsistency and sexism inherent in culturally conditioned “natural law.”)

So, is it possible to develop some objective standard that is actually helpful in guiding moral behavior. Clearly, simply to say, “Seek the good and avoid evil,” is entirely unsatisfactory and only begs the question — perhaps giving a useful definition of morality but no actual particular guidance to what constitutes moral behavior. It is rather like telling someone who wants to learn how to spell to use the alphabet.

Some of the hardest moral questions facing us in our day will not yield to a merely doctrinaire and “objective” conclusion. Acts cannot be judged good or bad in the abstract apart from the actors and what is acted upon, and the circumstances and motives underpinning and enveloping the action. Some will judge acts entirely on the basis of their consequences — and all sorts of ethical systems have evolved which attempt to judge the good or ill of those consequences (pleasure, prosperity and well-being of the greatest number, for example). Others will judge acts on the basis of positive laws and duties — surely a rational approach, but hard to put into practice divorced from motive and circumstance. Others will appeal to the social contract for interactions between human beings. Some, such as myself, will fall back upon the moral advice of Jesus in terms of love of God and neighbor.

My point is that the very existence of all of these various systems of morality seriously damage the credibility of the base assertions of natural law — and of all the systems at our disposal, it is the least likely actually to bear useful fruit, given its question-begging, cultural bondage and sterile dogmatism.

Tobias Stanislas Haller BSG


citations of the Catholic Encyclopedia are from the online version of the article: Fox, James. “Natural Law.” The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company, 1910. Accessed 28 Aug. 2011 http://www.newadvent.org/cathen/09076a.htm. The CE received the approbation of the Roman Catholic Church as follows: Nihil Obstat. October 1, 1910. Remy Lafort, Censor. Imprimatur. +John M. Farley, Archbishop of New York.

15 comments:

Grandmère Mimi said...

50-plus years ago, I bought into the theory of the natural law and held onto it for a good long time. Now I see that the case for the natural law as the 'rule of conduct' is not rationally sustainable, because the case in its favor is based on a phallacy.

Back those 50-plus years ago, the Jesuit professors were selling Aristotle's 5 proofs for the existence of God, which I did not buy. Even then, the proofs proved nothing to me, and I thought them a weak argument in favor of faith in God - an argument better not made at all.

Tobias Stanislas Haller said...

Thanks, Mimi. It still astounds me that otherwise rational and intelligent folks can continue to give credence to such an obviously flawed and ultimately irrational mode of moral reasoning. As it ultimately comes down to who has the power to define and declare what it right or wrong, it seems to me that Original Sin and the libido dominandi are the most obvious explanation.

Grandmère Mimi said...

Did I really type 'phallacy'? Did I type that?!! Nooo. It was my evil twin.

word verification: undiest

I'd best stop now.

Bill Ghrist said...

What I find particularly bothersome about the concept of "natural law" is that--wittingly or unwittingly--it misappropriates for itself a false aura of objective truth. The name makes one think that it is somehow scientific ("equivalent to the laws of nature" per the first definition), whereas it is in reality almost the exact opposite of science. It makes no attempt to determine "the constitution of the nature with which [God] has endowed us" by observation or experiment; rather it relies entirely on philosophical assumptions and reasoning. And as you point out those assumptions and that reasoning inevitably are culturally biased.

This is not to say that I think that a system of morality can be derived by scientific means (although scientific knowledge is important in understanding how moral principles apply to particular "action in the concrete, surrounded with all its determinate conditions"). It is to say that natural law is fraudulent in implying a scientific objectivity that does not and cannot possess.

JCF said...

One might compare Aquinas "Do Good/Avoid Evil" w/ the Hippocratic Oath's "Do No Harm". But even there, which (HO-affirming) physician is "doing no harm": the one who takes all life-prolonging measures, or the one who (depending on circumstances) doesn't?

***

The usual response from natural lawyers is to say that a culture (or an individual) who fails to follow some precept which the proponents derive from natural law is either depraved or perverse

We've seen this one before, too: in the Soviet Union, dissidents were shipped off to psychiatric hospitals!

***

The Gordian knot to be cut, IMHO, is violence. When the Irresistable Force meets the Immoveable Object re Natural Law ("You're unnatural!" "No, you're unnnatural!"/"You're insane!" "No, you're insane!/"You're sinning against me!" "No, you're sinning against me!" etc etc ad nauseum), how to we keep from using violence to stack the deck? Shipping the dissident to psychiatic hospital, locking up the "sodomite" for "crimes against nature", deciding whether someone who kills in accord w/ his highest Good gets a medal or an execution?

As always, I say "See re Gandhi" . . . but even there, I know there are gray areas: "Do No Harm", um....

[In my one and only time baby-sitting (a 3 year-old), I recall my Gandhian self (age ~22?) trying to extract said 3 year-old from playing IN a refrigerator. I can't hit in any way. I can't bite her back. How much physical restraint can I use? A grab&hold? [I just remember the tantrum---no wonder that was my only experience baby-sitting, and I never had children. Sorry, mYebamoth! ;-)]

Tobias Stanislas Haller said...

Mimi, in this case the alternate spelling seems appropriate.

Bill, you've hit the nail on the head. Perhaps the thing that irritates me most about natural-law proponents is that self-satisfied smugness and sense of magisterium based on an entirely specious "objectivity" that is subjective in the extreme. The irony is that something that deems itself "catholic" is in fact so very, very "parochial."

JCF, how true that the real danger arises when people have the power to enforce their views! This is why "power over" or "authority" is ultimately problematical. Jesus offers service as opposed to authority as the solution -- though even he lost his temper over the money-changers' tables!

Daniel Weir said...

It is interesting to note how popular Michael Sandel and his course on justice have become. Reading him and watching some of his PBS series,it seems clear that it isn't as clear as the natural law proponents would suggest.

WSJM said...

This is a very good article, Tobias. Thank you.

It has always struck me that the folks who make the biggest noise about "natural law" are the same ones who claim for themselves the right to define "nature."

As for the "Laws of Nature" -- how has that been working for us since the beginnings of the development of quantum physics?

Tobias Stanislas Haller said...

Thanks, Daniel. WS, I'm a little behind in my reading in SciAm, but there was a recent article on quantum effects at the macro scale that was quite interesting!

As noted above, the main problem with the natural-law philosophy is that it takes so little account of reality, at any scale...

Jesse said...

An interesting essay, Tobias. Thank you. I wonder, is the problem with "natural law" not so much the premise that there is such a thing, but the claim to know with certainty the contents of such a law? If we posit the existence of a benevolent creator, we may be entitled to wonder if the universe isn't designed according to some sort of order that will, of itself, give rise to moral obligation.

If I recall my Dictionary of Christian Ethics correctly, natural law is based on an understanding of the nature of the human person and of humanity's natural "end". For Aquinas, that end is "eternal blessedness". So one's understanding of moral obligation will be linked to a teleological understanding of human nature.

Where the traditional Catholic understanding of natural law (as in the CE article) breaks down is in its failure to foresee (a) major shifts in our understanding of human nature and (b) major revisions to our understanding of the arising "content" of the natural law. As you rightly point out, there's a certain amount of "question begging".

Bernard Lonergan's ethical approach is helpful here, I think, since his focus was on how we come to know things as human beings. Our moral behaviour is no different: we learn from experience and make judgements based on an ever-accumulating pool of experiential and traditional wisdom. But every now and again we have our "horizons breached", that is, we become aware of something crucially important to our ethical decision-making of which we were previously ignorant. (I'm basing this on Kenneth Melchin's eminently readable little book, Living with Other People: An Introduction to Christian Ethics based on Bernard Lonergan.)

Lonergan started out as a Thomist, and I think (though I'm not any kind of expert on his thought) that he would be willing to say that there is such a thing as natural law. But he would say that our knowledge of it is only partial: we have a few reliable "virtually exceptionless norms" by which to chart our course, norms that our experience tells us lead to moral "progress" rather than "decline"; but new knowledge, often traumatically acquired, may change the landscape considerably (and if we're serious about our responsibilities as moral agents, this painful experience will be welcomed and reflected upon rather than ignored).

So it may be that there is a natural law informing us of what is the good to be done and the evil to be avoided. But we are in a continual process of learning what good and evil are, and sometimes a new revelation will require our whole system to be rethought.

Does that get us anywhere to a rehabilitation of "natural law" in and of itself? Perhaps it's just situation ethics under a different name. Thanks for a stimulating read!

Tobias Stanislas Haller said...

Thanks, Jesse. You've hit upon the nub of the problem. The issue isn't whether there is not some divine intent for humanity -- I believe there is -- but how that intent is understood in the details and implementation. The real problem lies in the implementation of the overarching "theory." My proposition here is that the "theory" of natural law amounts to what in mathematics is considered "trivial." The very notion of what is true about natural law being universal and immutable renders it something that "goes without saying." In addition, as you and I both note, even the undeniable premise of natural law concerning good and evil leaves the particular working out of what is good and evil to a secondary elaboration and definition of terms -- where we immediately begin to get into disagreements between and within cultures.

It may also be that this is part of the conflict between idealism and realism: as I alluded to, and somewhat ironically, those who are seeking the most "objective" moral standard are actually appealing to ideals rather than realities, not to nature as it is, but as they believe it ought to be. This in itself leads to some confusion.

I also have to say that another thing I don't care for in natural law ethics, though I can't say it is a "fault" in a logical sense, but is a difference of opinion, is the reliance on teleology in a universe in which I think it a bit hubristic to assume we know the proper end of each created entity. I see God working out the will of God in a process in which each entity has a degree of openness rather than a necessary determinate end, as part of the freedom with which God has imbued the universe as a reflection of God's own Being and Becoming. This is precisely why I think morality has to work its way out and through human life in all its richness and diversity, again based on the Love of God that is reflected in every loving act. I'd be curious to hear what you think of my series of essays on the Golden Rule linked at the end of the essay above, in which I attempt to limn out a "genealogy of morals" along those lines... my own nearest approach to a "natural law" notion, but taking a very different course from that described in the CE article!

Fr. J said...

Forgive me if I'm being obtuse, but it's been a while since I took ethics. Is your contention that there is no objective standard for morality or that the concept of natural law simply doesn't get us to that standard? Personally, I think that natural law is useful as far as it goes, but the thing that it is unable to address on its own is the problem of our nature being corrupted by sin. The objective moral standards that might be somewhat visible in nature can never be totally visible to people whose nature is already so damaged as to render our reason almost useless unless transformed first by grace. I see hints of that in your critique, but it seems like the overall direction you want to move in is that of a free floating ethic, based on a notion of love that is not terribly well fleshed out. What is love? How can you apply it to moral reasoning? How can you know that what you think is love actually is?

Tobias Stanislas Haller said...

Fr. J., I don't think you're being obtuse, but I'm not sure you are being clear. The primary question is, "What do you mean by 'objective?'" Perhaps you could say more about what you mean by that. Some people in ethical discussion use the term almost as a synonym of "absolute" in response to what they describe as "relativism."

From my perspective, the moral touchstone: "Do unto others as you would be done by" is objective -- but it does not give an absolute rule for which behaviors are always right and which always wrong, because the "behavior" is conditioned by context, motive and so on. Even the CE article acknowledges as much in its fudge on "killing." The problem is that most absolutist maxims have to find ways to 'bundle' the context or motive or situation into the term -- hence "murder" is a class of "killing" that includes those other aspects. Thus it is easy to say, "murder is always wrong" but only because that 'bundles' the various aspects that distinguish murder from, for example, manslaughter.

As to the "love" issue, I attempt to flesh it out in the essay to which I linked. A "loving" act is one that meets the test of reciprocity that Jesus described, dong that which one would be done by in any given circumstance. Morality is, ultimately, always about the concrete, objective, and particular actions, actors and circumstances -- so far from being "free-floating" I think it is very grounded indeed, and has moreover the warrant of both Jesus and (as in today's Epistle) Paul.

I agree that the fallibility of human capacity, and defective reason, is a fatal blow to natural law as a system. It leads inevitably to the Animal Farm "some animals are more equal than others" sort of special pleading, which is about as far from objectivity as you can get, it seems to me!

Are there things I think are inherently wrong? Of course -- but in naming them I have to 'bundle' the circumstances and situations into the very term in order to distinguish, say, torture from surgery, or murder from a negative fatal outcome to chemotherapy. Thus, I can confidently say, "torture is always morally wrong" (on the grounds of the Golden Rule) because by definition torture is the infliction of pain without consent.

Hope this helps to clarify...

Fr. J said...

I hadn't seen the link to your essay on the Golden Rule before, probably because I was reading on a mobile device. Having read through it, I think I have more questions now then I did before. When you speak of self-interest as a necessity for the evolution of free persons whom God then leads to the higher value of self-giving, it makes me wonder if you are arguing that God in fact causes the fall on purpose. And it also seems that you are contending that a person does not become a person until he or she has consciousness. Is that right or am I totally misreading?

I was using "objective" not necessarily to mean "absolute" (though that is sometimes true) but to mean true unto itself, outside of the realm of opinion or individual subjective experience. As in, the chair I'm currently sitting on is objectively a chair, even if I happen to think it's an aardvark.

I do see that your ethic based on love is made from the positive attribution of Christ's self-giving that is grounded in the cross. And, of course, I would agree that this is what love is, that in fact the revelation of God in Christ and specifically in the crucifixion is the only way we know what love is. Of course, there is a danger here of making Christ too much into an example, a figure we watch and learn from so that we can know how to be good people, all on our own, as if we would be anything but hostile to the cross of Christ without His first opening our eyes to see our sin and our need of Him.

This problem seems more acute when considering what you're saying about context. Not that I think you're totally off base there. Of course context is necessary to understand any given situation, whether something is murder or unintentional killing. But such context is itself an outgrowth of the fall, in which the corrupted world presents us with nothing but corrupted choices and our darkened minds flail around, incapable of true judgment and yet always hungry to try. The problem with the law is that no matter how precise it gets, the little lawyer that lives in our flesh is always trying to make an end-run around it. This is as much true of the Golden Rule as it is any of the commandments which show us how to apply that rule in various circumstances.

Tobias Stanislas Haller said...

Thanks, Fr. J. This is most helpful. I think you have hit on a key difference in our distinct approaches to the question. If I may put it so, your emphasis on the Fall takes a kind of classic Pauline / Augustinian view of the state of things. That is, Paul filtered through the Augustinian / Western lens. Thus, it seems to me, you are understandably suspicious of anything that appears to come "from within" or "subjectively" -- with a proper alert to Pelagian self-sufficiency.

Of course, as you rightly noted above, the very foundational premise of natural law -- that the true law of God is written on the human heart -- presents the very same problem! It may be printed there, but do we read it rightly?

I, on the other hand, take a more Orthodox (i.e., Eastern) view of things, with far less emphasis on the Fall as and explanation of "why do people sin." I do not regard the Fall as an historical event, but as a myth -- properly understood as a way of seeing why things are the way they are. So in response to your reading, while it might appear that I'm saying God "causes" the Fall, I'm really saying that there is no Fall in the sense of historical event -- but that the story in Genesis is a way of understanding the rise to consciousness that for the first time makes humans (as a species and as individuals) capable of making choices. This is actually embedded in the myth as "knowledge of good and evil." (Of course, the myth itself is presented in a world view with strong cultural notions of right and wrong; i.e., the "objective" evil of nakedness, of which the couple were unaware -- and their awareness is the revelation of their rise to knowledge of evil.

And yes, a person is not a "moral agent" until they are conscious of what they are doing. I think that's a fairly standard understanding of what it means to be human in a moral sense -- as the catechism says concerning the imago dei: to be able to reason and to love. It is precisely consciousness of ones actions that brings moral responsibility.

So my argument is that the moral in humans is "Christ at work in us" as an extension of the Incarnation. Our own consciousness is redeemed by Christ-consciousness. It is not Pelagian self-sufficiency, but complete reliance on "Christ in us" -- which brings us back to a very Pauline notion, whether one regards the Fall as history or etiological myth. As to God "causing" the Fall (as Fall) that is clearly not part of the story -- but we are not presented with alternative scenarios. I see the rise to consciousness and free will (with its incorporate capacity to choose wrongly) as "necessary" in the sense that had it not happened we wouldn't be here having this discussion! One might from a Western standpoint see it as a felix culpa; or as I suggest the essay, a step in the moral development of humanity.