The Complexities of Natural Law

Natural Law Theory: Contemporary Essays
edited by robert p. george
clarendon/oxford university press, 371 pages, $39.95

A few years ago I appeared on “Firing Line” with my Notre Dame colleagues Gerhardt Niemeyer and Ralph McInerny for a discussion of natural law. My memory of that occasion is vivid: our attempt to discuss the possibilities for the theory of natural law in the contemporary intellectual climate was frustrated throughout by the way we seemed to be talking about three different subjects. Father Niemeyer approached the topic of natural law as if it essentially concerned moral objectivity, and, from his point of view, Kant was as much a defender of the theory of natural law as Suarez; McInerny and I quibbled about how much of the specifically Thomist project can still be defended; and William F. Buckley, the host of the program, was primarily concerned about whether a natural law argument could be mounted to show that the progressive income tax was unjust. In short, we spent most of the program simply talking past one another.

I was reminded of the frustrations of this discussion by Professor Robert George’s superb collection of original essays on natural theory. Professor George somehow convinced many of the leading participants in the contemporary discussion of natural law to contribute to this collection, and he is to be commended. Nevertheless, one comes away from reading it with the impression that at the heart of the contemporary debate about natural law there is not a single set of relatively well-defined issues, but rather a complicated, and sometimes confusing, set of problems and queries that intersect at odd angles. The collection, to be sure, is none the worse for this, representing so perfectly as it does the untidy state of the current discussion.

Among the issues that come up for discussion is the ancient question of the relation between virtue and law—a particularly important issue for natural lawyers, of course, because of the complicated historical relation of Thomism to its Greek and Hebrew roots. Notoriously, the natural law theory of Aquinas brings together two traditions of ethical thought in a synthesis that many persons since have thought illegitimate. Aquinas drew on the then newly discovered Aristotelian texts to develop an ethical theory of a deeply eudaimonistic sort, emphasizing the teleological structure of ethical thought and placing the concept of virtue at the center of his picture of the successful human life. This classical Greek picture, however, is laid over the more legalistic picture of the successful life found in the Hebrew Scriptures (as well as in Roman and, later, canon law). One aspect of Aquinas’ great achievement in ethics is that he developed a theoretical setting in which the cardinal virtues can live comfortably (or so it seemed to him) alongside the Decalogue.

But this synthesis has seemed to some to be unstable; natural law theories have tended to lean more in the direction either of Aristotle and the virtues or of the Old Testament and the law. Professor Joseph Boyle’s contribution to this volume comes down clearly on the side of law, arguing that while the concept of virtue must certainly play a key role in any natural law theory, it must be less fundamental than that played by the concept of law. His paper is especially useful in that it precisely attempts to sort out the relation between “virtue theories” in ethics”discussion of which are now much in the air thanks to the work of Alasdair MacIntyre and other neo-Aristotelians—and more traditional natural law theories.

Professor Russell Hittinger takes up the same issues but with a concern directly contrary to Boyle’s. While Boyle aims to preserve law from corruption by the virtues, Hittinger fears that developing a concept of law prior to that of personal excellence as embodied in the virtues will yield an account of law too thin, really, to inform human life. Making law prior to virtue or, in the jargon of contemporary ethics, the right prior to the good, might indeed be regarded as the abiding vice of political liberalism. In addition, Hittinger’s article—as do a number of other articles in this collection—focuses on what one might call “the metaphysical issue” concerning natural law theory. One might call it so, that is, were it not for the fact that there are a number of issues deserving of this characterization.

One of these concerns what has come to be called the “new natural law theory”—associated with the works of Germain Grisez, Joseph Boyle, and John Finnis, whose 1982 book, Natural Law and Natural Rights, provides the most complete presentation of the view (although, as Finnis and Boyle generously point out, Grisez arrived at the view first). Finnis and his friends claim that the natural law theory as originally developed by St. Thomas was hijacked by later moral theologians who add to it certain accretions of argumentation that distort its original intent. Finnis attributes to the hijackers the view that Thomist theory claims that the natural law is somehow deduced from certain metaphysical features of the world, in particular a metaphysical account of the human agent and his natural end. Finnis argues that this distortion was fatal to natural law theory because it left the theory vulnerable to later objections, classically stated by Hume, which charge that in this transition from metaphysics to law there is a breach of a logical gap between fact and value”or the descriptive and the normative. If natural law theory is what the revisionists say it is, then Hume and his followers are right: it has at its core a simple logical fallacy. Finnis argues, however, that the revisionists are wrong; Aquinas in fact held the view that the first principles of natural law, far from being derived from metaphysical features of the world, are instead self-evident. If they are self-evident, then Humean charges are irrelevant and natural law theory can avoid what many regard as the most serious modern objection to it.

This view, brilliantly deployed and defended by Finnis et al., has not, however, in recent years carried all before it. More traditional Thomists like Ralph McInerny, Vernon Bourke, Henry Veatch, Ernest Fortin and others (sometimes referred to as “Thomheads” by the more enthusiastic and irreverent of Finnis’ aficionados) have challenged the “new view” on both historical and systematic grounds. They argue that Finnis has taken the so-called fact-value problem on board just when most philosophers (including many who are not special friends of natural law) are jettisoning it. The ensuing debate has become very complicated, with parties on both sides combing Question 94 of the I–II of the Summa looking for some smoking gun that will polish off their opponents. In my view, the “Thomheads” have had slightly the better of this argument, but the issues continue to be vigorously contested with ingenuity and determination on both sides.

A number of pieces in the George collection are devoted to this controversy. Professor Neil MacCormick, for instance, gives the best brief summary I have seen of Finnis’ view and explains how an old legal positivist like himself is almost persuaded. Finnis himself contributes a piece in which he seeks to show the superiority of his own view to certain other current jurisprudential theories, including those of the Critical Legal Studies movement and of Ronald Dworkin. And Professor George, a longtime defender of the Finnis view, examines the criticism of this view by McInerny and others who claim that the Finnis position completely severs an account of human nature from its account of morality. George argues that, while the Finnis view does entail that “our knowledge of basic human goods and moral norms need not, and logically cannot, be deduced, inferred, or (in any sense that a logician would recognize) derived from facts about human nature,” this does not mean that these goods and norms are not grounded in human nature in some looser sense.

The debate between Finnis and his opponents does not exhaust the metaphysical questions taken up in this volume. Many of the papers examine the more general question of how much classical metaphysics is required for any adequate defense of natural law. Natural law thinking emerged in the ancient world in the context of a certain teleological conception of the world. Natural law binds us, according to the earliest Stoic conception, because it tells us how to move toward our final end—i.e., how to become fully what we are only potentially. The decline in natural law thinking after the seventeenth century is often explained by the steady erosion of this teleological picture of the world under the pressure of the new science. Alasdair MacIntyre has argued in his influential After Virtue that it was the collapse of this teleological picture that made a classical defense of morality impossible and that led to the fatuous and ultimately failed enlightenment attempts to defend morality in a world devoid of natural ends.

Modern rationalist thought, however, has attempted to preserve the force and objectivity of traditional moral thought without what it regards as the needless baggage of traditional metaphysics. This goal, pursued most brilliantly and influentially by Kant and his disciples, often involves invoking the notion of natural law. But this modern resort to the concept of natural law does not require that such laws be teleologically grounded. That is, it doesn’t require that natural laws link certain actions with certain natural human ends. This goal of “natural law without nature,” as one might call it, continues to drive many contemporary research programs in ethics and politics. Even MacIntyre declared in After Virtue that classical ethical thought had to be revived without the aid of Aristotle’s “metaphysical biology” (although his more recent writings suggest that he might not insist on that point today).

A number of papers in this volume touch on this issue in different ways. Russell Hittinger, one of the most prominent critics of Finnis’ view, represents the more traditional position and argues persuasively that, without the support of a well-defined classical metaphysical position, natural law theory will be at sea. Michael Moore, disagreeing radically with Hittinger, argues most curiously that to be a natural lawyer is just to be, in the jargon of contemporary ethical theory, a moral realist. Moore’s paper defends what we might call the metaphysically minimalist position. A natural law theory, according to Moore, is just the view that there are some real properties in nature that somehow support the truth of moral judgments. These properties need not be of a broadly teleological sort, and indeed Moore seems confident that any teleological view is bound to fail.

Jeremy Waldron’s contribution—largely an attack on Moore—takes up a difficulty particularly evident in Moore’s paper: a kind of confusion, as philosophers would put it, between metaphysical and epistemological considerations. Moore wants law to be metaphysically anchored in nature (albeit a rather anemic nature) because he fears that if it is not so anchored we cannot have genuine knowledge of it. He is afraid of epistemological skepticism with regard to the law and proposes to halt any skeptical drift by dropping, so to speak, a metaphysical anchor. As Waldron points out, however, the attempt to create epistemological warrant from metaphysical postulates is a particularly barren kind of alchemy.

It may or may not be the case that genuine knowledge of the law is possible only if moral realism is true, but it is certainly not the case that moral realism guarantees that genuine knowledge of the law is humanly possible. This latter claim fails because it might easily be the case that morality is “written in nature,” but we lack the capacity (because of original sin, a corrupt environment, or simple obtuseness) to discern it. Moore’s view is sufficiently complex that it is difficult to decide whether he is guilty of this simple confusion, and in a lengthy appendix to his paper he attempts to rebut Waldron’s claim, but Waldron makes a compelling case that he is guilty as charged. 

 Jeffrey Stout goes even farther than Waldron in trying to defuse the realism issue. He appeals to recent work in the philosophy of science to argue generally that we do not need a thick metaphysical account of an area in order to warrant the use of the notion of truth in that area. Such contemporary anti-realists as Bas Van Frassen and Arthur Fine are invoked by Stout in defense of this claim. His position, an increasingly common one among philosophers, draws on an understanding of the role of the notion of truth in science to illuminate its role in ethics. He argues that Van Frassen, Fine, and others have shown that if one gives up scientific realism (roughly, the belief that scientific claims represent something real and independent of the observing subject) one need not give up the (serious) use of the word “truth” to describe these claims. If this is plausible in science, why not in ethics? What is implied here is that we are driven to “heavy breathing” metaphysics because we want to be able to say (seriously) that some of our moral beliefs are true—and mean, really mean, that they are true. But, Stout suggests, might not we be asking for too much? Can’t we find a notion of truth that allows us to take our moral beliefs seriously without committing us to some baroque metaphysical theory that populates reality with queer moral properties? The answer, for Stout, is yes—yes in science as well as in ethics. As he says:

I am objecting . . . to the idea that we need a theory of moral truth in a sense that transcends the result of both descriptive anthropology and ordinary moral deliberation. Descriptive anthropology tells us how the term “true” functions in moral discourse. Ordinary moral deliberation tells us which moral sentences we have good reason to deem true in media res. I see neither the need for more than this nor the likelihood that trying for more will end outside the Serbonian bog.

Stout would go farther than Waldron, then, at least in these papers. Waldron argues that metaphysical realism is not sufficient for moral knowledge; Stout claims that metaphysical realism is not even necessary for our ordinary notion of truth. We can be comfortable with the thought that our moral claims are true while dumping any metaphysical baggage that thought may appear to bring on board.

In many ways the issues raised in this series of papers are the most important issues in contemporary philosophy. At stake is the question of whether the various kinds of reductionist theories on offer in modernity can accommodate our deepest thoughts and beliefs about the good, the true, and the beautiful. Some people, to be sure, are not interested in the outcome of this discussion, since they have determined that they will either hang onto their pre-theoretical beliefs come what may or they will hang onto their reductionist theories no matter what mutilation these theories inflict on our moral, aesthetic, or epistemological beliefs. For others, though, the issues are of the first importance. If one wants not only to hold onto one’s moral beliefs come what may, but wants to hold onto them because they are true (or at least because one believes them to be true), then one must care about what else one must believe in order to believe that they are (really!) true. Hittinger thinks one must believe a lot more; Stout, hardly anything more. Such disagreements are certainly not resolved in this volume, but the materials for important and interesting defenses of the various possible positions are put into place. Thus for anyone who might still believe that natural law theory is merely a relic of bygone days, discussion of which is kept alive by aging seminary professors and benighted religious traditions, Professor George’s book provides an indispensable antidote.

David Solomon teaches in the Philosophy Department at the University of Notre Dame.