Understanding Natural Law: A Response to Hart and Potemra

 
 

A recent claim to reject the natural law risks misunderstanding the role of reason and overlooks the difference between practical reasoning and morality. The first in a two-part series.

In the most recent issue of First Things, David Bentley Hart, the noted theologian and author of the modern classic, The Beauty of the Infinite, brusquely rejects natural law theory, especially “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.”

While having no “metaphysical disagreement” with them about the nature of the cosmos, Hart judges it a “hopeless cause” to hold “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.”

Further, it just isn’t likely, he claims, “that the moral meaning of nature should be perfectly evident to any properly reasoning mind,” so that “any rightly attentive intellect” would know the wrongness of abortion, lying, same-sex marriage, and so on. For Hart, nature “tells us nothing of the sort,” nor does “knowledge of our nature or of the nature of the universe at large instruct us clearly in the content of true morality.”

First, he agrees with Hume “that one cannot logically derive an ‘ought’ from an ‘is,’” and even if we could exhaustively know our nature, which is unlikely, there is no reason “we are morally obliged to act in accord with” nature or “prefer natural uses to unnatural.”

Second, while natural law is “a belief about nature,” the belief is not justified by nature itself but depends on “prior supernatural convictions.” Nature signifies nothing moral in itself, and “in abstraction from specific religious or metaphysical traditions, there really is very little that natural law theory can meaningfully say.” Nothing “would logically oblige” the modern skeptic to grant the natural law, for it is “entirely dependent upon supernatural (or at least metaphysical) convictions.” Only if we find “ourselves addressed by uncanny voices” that “emanate from outside . . . the perceptible natural order” do we find purpose in nature, but only “the total spiritual conversion” of the modern person would allow this.

That is, natural law depends on faith, which renders it entirely non-natural, and there is no real way to “translate that form of cosmic moral vision into the language of modern ‘practical reason’ or of public policy debate.”

With these claims, Hart continues the forceful and brilliant narrative found in The Beauty of the Infinite. There he argues that “Christian thought . . . is suspicious of every claim to neutrality,” and has “no belief in or knowledge of” any rationality not already rooted in a narrative about the cosmos. Even more, notions of public reason or neutral space are veiled power grabs, rooted not in fairness or nature but the Will to Power, and are even, potentially, heretical in proclaiming peace independent of the peace of Christ.

All narratives other than the Christian claim are attempts to dominate, and neutrality is thereby complicit with violence. Consequently, when natural lawyers purport neutrality rather than proclaiming their prior “supernatural” commitments, this “can never be much more than an exercise in suasive rhetoric (and perhaps something of a pia fraus).”

It is this pious fraud, according to Michael Potemra’s approving commentary, which explains why “so many people deny” natural law despite its supposed necessity and accessibility. Two explanations suggest themselves for the widespread hesitation to accept the alleged fraud, says Potemra: Either (1) “the deniers have their minds darkened by sin”—an explanation particularly unhelpful when “the accessibility of the truths to non-religious reason is precisely what’s being argued about”—or, (2) “the deniers are just plain stupid.”

Read thus, natural law ends up being useless and dangerous. Useless in that so few are persuaded, all claims to self-evidence and universality notwithstanding; dangerous in that playing the game of liberal neutrality is fraudulent and violent.

As a proponent of natural-law thinking, I ought to be somewhat concerned by these “bracing” criticisms. Instead I find myself wondering what theory Hart and Potemra are bludgeoning, for it certainly isn’t one with which I’m familiar. In fact, perhaps Hart insists that “names are not important” when identifying his targets because no one exists to be named. Certainly his objections are non-responsive to “self-described Thomists” such as Germain Grisez, John Finnis, Joseph Boyle, Martin Rhonheimer, and several scholars on the First Things masthead.

In today’s article I explain how Hart and Potemra misunderstand natural law thinking. Tomorrow I argue that natural law thinking is neither useless nor dangerous, even in the “modern conceptual world.”

Natural Law Doesn’t Derive Ought from Is

First, despite its centrality to Hart’s rejection, in no way does natural law theory derive what ought to be from what is; if anything, contemporary theorists are often criticized precisely for refusing to ground practical reason on theoretical anthropology or metaphysical claims about nature.

In Natural Law and Natural Rights, for instance, John Finnis writes that natural lawyers “have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation . . . the most popular image of natural law has to be abandoned. The corresponding and most popular objection to all theories of natural law has to be abandoned, too, and the whole question of natural law thought through afresh by many.” “It is,” he continues, “simply not true that ‘any form of a natural-law theory … entails the belief that propositions about man’s duties and obligations can be inferred from propositions about his nature.’”

Principles of practical reason are not derived from factual claims about nature or metaphysics, not only because Hume was correct on that point, but because first principles are not derived from anything—they are entirely underived. Neither are they innate, although they are self-evident; grasping them entails “no process of inference” but rather an “act of non-inferential understanding.”

Such understanding is hardly supernatural, for it is the ordinary act of insight whereby we grasp what is intelligible. For Finnis, we begin with the data of our own inclinations and purposes for acting; some goods, we realize, are insufficient reasons for acting and thus merely instrumental—we do not brush our teeth as an ultimate good but as conducive to health, and do not seek money for itself but for what it allows—while other goods require no further explanation. I can intelligibly ask “why do you want the promotion?” in a way I cannot ask “why do you want to be happy?” The answer to both those questions might be “to be happy, of course,” indicating that happiness is ultimate in a way the promotion is not. But I’ve not inferred anything from nature in doing so; I’ve just recognized what it is that makes my action purposive.

Similarly, Martin Rhonheimer agrees that natural law does not “read off” morality from nature, a naïve physicalism. Natural law does not have physical nature (ordo naturae) as its measure, but rather the governance of reason (ordo rationalis) insofar as practical reason intends goods attainable by action. In desiring goods, practical reason directs action—Seek this! Avoid that!—and it is precisely these judgments (not deductions or derivations from nature) that are the natural law operative in voluntary action.

Unlike the Hart/Potemra version, Finnis and Rhonheimer never consider reading ethics off human nature but rather develop their anthropologies and metaphysics of human nature from their account of practical reason. Finnis, for instance, suggests in Fundamentals of Ethics that “epistemologically . . . human nature is not ‘the basis of ethics’; rather, ethics is an indispensable preliminary to a full and soundly based knowledge of human nature.” Likewise Rhonheimer, for whom knowledge of one’s own nature “cannot be derived from metaphysics or anthropology,” but rather “metaphysics and anthropology . . . are not even possible without” practical reason’s reflection on its purposes and inclinations. Hart and Potemra have it precisely backwards.

The Difference Between Practical Reasoning and Morality

Second, it is not the case, as Hart claims, that the natural lawyer “insists that the moral meaning of nature should be perfectly evident to any properly reasoning mind.” Not only is moral meaning not derived from nature, but the relation between principles of practical reasoning and principles of morality is more nuanced than Hart indicates, and it takes reasoning—not immediate and obvious intuition—to arrive at moral knowledge.

The first principle of practical reasoning is not as yet a moral principle, for the first principle of practical reasoning—“good is to be done and pursued, and evil is to be avoided”—directs us to intelligent and purposive choice without yet telling us the proper way to conduct that choice. The difference is subtle but substantial, implying that basic human goods are, as yet, pre-moral. While directing us toward purpose, practical reasonableness is in itself no guarantee of moral action, merely of intelligible action, and immoral action need not be senseless.

Distinctly moral principle is needed to determine how we are to keep the precept of practical reasonableness, “the way we are to pursue the good and avoid evil,” as William E. May articulates the distinction. The first principle of morality is not “do good and avoid evil”—for even immoral choices might do this—but rather “one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment,” a notion requiring yet additional specification of moral norms and even further application regarding issues such as abortion, lying, marriage, and so on.

In fact, if one reads very much of contemporary natural law theory, one finds that applying specific moral norms can be rather taxing, as, for example, when the norm “direct killing of an innocent life is always wrong” does not tell us if craniotomy is direct killing in cases when a physician attempts to save the life of a woman in delivery by crushing the head of the baby.

Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions. In short, determining the rightness or wrongness of concrete actions takes thought, not just a passive gaping at nature. That natural law theorists conclude that some acts are intrinsically evil, without exception, does not mean that conclusions are immediate, obvious, and attained without thought.

What’s Self-Evident in Natural Law?

Third, while it is true that the first precepts of practical reasonableness are self-evident, natural lawyers certainly don’t suggest wickedness or stupidity as the necessary cause when someone fails to reach proper conclusions about concrete actions. As articulated above, self-evidence means only non-inferred or underived, suggesting neither innateness nor immediacy.

The distinction between something self-evident “in itself” or “to us” is an old one: A proof in geometry may be perfectly self-evident in itself, as well as to one who understands, yet remain opaque to one who does not understand, not because the student is depraved or moronic but simply because he or she does not yet understand.

For theorists like Finnis or Rhonheimer, self-evidence doesn’t mean that we don’t require insights that help us understand our purpose in acting. These insights are not deductions, but neither are they intuitions or introspections by which all but the wicked or stupid have a god’s-eye view into themselves, or nature, or morality. In no way does self-evidence mean that either one immediately receives “clear commands” in “the content of true morality,” as Hart suggests, or that one is barbaric.

I cannot help but think that the commentators have assumed that the self-evidence of basic human goods somehow implies a corresponding belief that metaphysics, applied ethics, and public policy are also self-evident, but that’s not the theory. Natural law might be rooted in reason, but it’s still human reason. As for those persons of practical reason who cannot know the natural law without supernatural assistance and metaphysical enlightenment? I suspect they no more exist than do those unnamed straw men critiqued by Hart and Potemra.

Tomorrow I discuss the usefulness and danger of natural law, and argue that the skeptics’ very act of denying natural law demonstrates they are already following that same interior law, and, further, that human dignity is thereby revealed.

R. J. Snell is an associate professor of philosophy and director of the philosophy program at Eastern University.

 

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