Adam Seagrave should be a familiar figure to readers of Public Discourse: he has produced a number of essays for PD, some of which have invited response and debate of high quality. Those readers will not be surprised to learn that his new book, The Foundations of Natural Morality: On the Compatibility of Natural Rights and the Natural Law, is likewise of significant merit. Its account of the foundations of natural law and natural rights does not strike me as ultimately persuasive, but that should be expected of a book that self-consciously takes aim (though always charitably) at the so-called “New Natural Law” theory.
A brief review of some of the areas that I find problematic will be helpful given the ongoing debate over the grounds of natural law and the relationship of natural law to natural rights.
Natural Rights vs. Natural Law
Seagrave’s book proceeds in four stages. The introduction lays out the conflict between natural law and natural right approaches. What is the relationship between the two?
Seagrave notes that thinkers such as Jacques Maritain and John Finnis have argued that the idea of natural rights emerges organically from natural law thought. While Finnis notes that rights talk often refers to rights as subjective powers that individuals possess, he argues that the best way of thinking about rights articulates the demands of justice for the common good from the standpoint of those who will be benefited by just action. Thus, natural rights are both continuous and compatible with the natural law that establishes the order of justice. In this view, “absolute” human rights reflect absolute demands made by the natural law: e.g., never to intentionally kill an innocent, never to rape, to enslave, and so on. For each of these we may identify a natural, absolute, inviolable right.
By contrast, thinkers such as Leo Strauss have argued that the modern era of natural rights sharply breaks with the ancient and medieval intellectual framework. The latter emphasized the community; the former, the individual. The latter framed the law as under the command of a divine lawgiver; the former saw rights as emergent from and protective of the free and autonomous nature of the individual. From this standpoint, doctrines of natural rights neither emerge from nor fit comfortably with doctrines of natural law. The first stage of Seagrave’s book establishes this dilemma: continuous and compatible or not?
The Case for a Third Way
The second stage of the book provides a fascinating reading of John Locke that establishes Seagrave’s case for a third way: not continuous, but genuinely compatible. The doctrine of natural rights is something novel, and it does represent a break with the past, but it is not incompatible with the doctrine of natural law.
This thesis gets fleshed out in the third stage of the book. There, Seagrave shows that natural law and natural rights emerge from different starting points. Seagrave calls these “ordering facts,” facts rooted in observable features of human nature that can be known inductively and that have an intrinsically normative aspect. These facts are, in both cases, relational.
In the case of natural rights, the relation is between what Seagrave calls the “potential self,” understood primarily in terms of its capacity for self-consciousness, and the actual self made possible by the potential self’s self-conscious stepping back from its ordinary embedded perspective. Seagrave’s discussion of self-consciousness deserves a separate response, but the core is this: the potential self, by virtue of being a maker of the actual self, has property in that actual self. As Seagrave writes strikingly, “The potential self with which ‘I’ am identifying owns the actual self.” This ownership generates rights claims to life, liberty, and property, in that order. Infringement of any of these rights is antagonistic to the potential self’s ownership of the actual self.
The natural law also emerges from a relational ordering fact, one that parallels the potential-actual self relationship. Here, the relationship is between the common humanity of all human persons—a humanity that is given, not made, and that underwrites all our natural capacities—and the individual self-conscious self, which is self-making and self-made. As I understand Seagrave, normativity emerges from two features of this relationship: first, that the individual self is tempted to act as if it does not depend at all on its given humanity; and second, that human capacities are hierarchically ordered, with reason at the top.
According to Seagrave, this ordering relationship provides a blueprint for moral action by way of commands that humanity imposes on individuals and natural consequences that form punishment and reward for actions out of or in accord with those commands. Again, Seagrave’s language is striking: our common humanity is admittedly neither a substance nor a self. Nevertheless, Seagrave argues that “it is not a merely metaphorical extension of language to speak of one’s own humanity as a legitimate superior to one’s unique selfhood, and thus as a potential legislator.” In his view, humanity “does possess the central characteristics of a distinct personal agent to an extent sufficient to warrant its more-than-metaphorical description as the legislating source of the natural law.”
Humanity and Reason’s Commands
Despite my admiration for Seagrave’s book, I find this claim puzzling and mysterious. Understood properly, I think it is intelligible to speak of “reason’s commands.” But I can make no sense of “humanity’s commands,” certainly not as anything more than a mere metaphor.
Moreover, Seagrave’s examples of the natural law at work strike me as somewhat weak. The primary command of humanity is to act in accordance with reason. Fair enough; the trick is all in figuring out what the content of reason’s deliverances is. Here is an example:
True propositions of practical relevance thus serve as the conduit through which the natural law becomes applicable to concrete and particular actions. For example, the true proposition that human beings are animals issues in the practical consequence that procreation is in accordance with reason.
Now, I do not believe that the bare proposition in question does issue in that practical consequence, for, unlike Seagrave, I do not think that that there are ordering facts of an intrinsically normative nature that are observable. The fact of our animality does not prove the desirability of procreation. What is wanted is an understanding of reasons for action, and facts about human animality do not provide those.
But even if one grants the inference, we need to know much more about the claim and what follows from it. Is procreation therefore required of everyone? At all times? In marriage or out? How should we understand actions that right here and right now are intended to thwart the possibility of procreation? The level of generality here does not offer us much promise for resolving these questions.
Dealing with Controversial Moral Questions
This leads to the fourth part of Seagrave’s book. The final chapter attempts to show that Seagrave’s twofold approach—uniting natural law and natural rights grounded in the single fact of self-ownership through self-consciousness—provides a more adequate foundation for dealing with controversial moral topics such as our debates about universal health care, same-sex marriage, and the death penalty.
Seagrave thinks his account has at least two advantages over other accounts, including that of New Natural Law. First, because its foundations are in observable facts, he thinks his theory can provide an objective anchor to prevent the interminable debate in which we find ourselves. Second, he thinks his account offers clearer and more adequate content with which to work in thinking about these issues.
But Seagrave does not fully make good on the second claim. He does not answer the question of whether a government’s concern for the common good requires, in addition to an interest in stable relationships, also an interest in procreation before it gets in the business of recognizing certain relationships as marriage. The New Natural Law account is, in fact, much more precise in this, and other areas, than Seagrave is in his book.
And as regards the first consideration, surely Seagrave’s sights are set problematically high. If being able to bring many different parties on board where important moral concerns are at stake is a requirement for an adequate theory, then there are no adequate moral theories. Nor will Seagrave’s view pass muster on this front: observable or not, the facts on which he grounds natural law and natural rights are tricky, complicated, and not always clear in their nature or effect; widespread agreement on Seagrave’s account is not to be expected, even if that account has identified the relevant facts. And, as I shall suggest, some of those facts are not, as stated, facts at all.
Self-Making, Self-Ownership, and Human Goods
What in particular should worry us about Seagrave’s account? While there are a number of issues one could turn to, I wish to return to a quotation above. Recall that, for Seagrave, the potential self makes the actual self through self-consciousness, and this making generates a claim of ownership. I think this description of the relationship between the individual human person and the self that that person can become are deeply problematic and (as Seagrave would surely acknowledge) deeply modern.
Let us consider “making” first. It is true that our selves are not merely given, but emerge through our action. But how should we describe this? Not as making, I think, but by the notion of self-constitution. Why? Partly because the notion of self-constitution does justice (as the notion of making does not) to the intransitive nature of human action. When we hit a ball, our action goes out to the ball and acts on it. Similarly, in all forms of making, our actions have transitive effects on some material—we form it into something, but we do not give that something its existence.
In human action, however, our actions intransitively constitute our selves, but not by shaping or molding pre-existing material. Moreover, our choices and actions last in a way that differs from what we make. What is made can change and decay by the pressure of outside forces; what is intransitively constituted remains unless reshaped by other choices. What is done to us cannot reshape our character; that can only come about through choice, something that would not be the case if “making” were the best model for the relationship.
I have a similar set of concerns about the notion of ownership. It is the right word to use for talking about what is made; but it seems the wrong word to characterize our relationship to our self, which is not something separate from the person who constitutes the self. The self is that willing and choosing person, just as it is the organic being without which there is no self; it is that knower of the world and that user of techniques and symbols that impress the self upon the world. It is not something other than these. But it nevertheless transcends each of these dimensions of its existence in a way that owned property never transcends its owner. The self is mysterious in a way that property is not, and I worry that there is a peculiarly modern de-mystifying of the self at work in Seagrave’s talk of making, property, and ownership.
Finally, but perhaps most importantly: I believe that human goods give us reasons for action in a way that facts about human nature do not. They are correlated to the transcendence of the self and its self-constitution. Basic human goods are horizons of possibility for human agents: some further possibility for good is always available to us as long as we exist. But what is made is all done, finished, closed off from any future except one of use and decay.
And a natural law account grounded in human goods captures a truth about the human possibility for transcendence in a further way: God willing, we may continue to have that horizon available to us eternally in a life of endless openness and opportunity to what is humanly fulfilling. Let us call this possible state of affairs the Kingdom of Heaven: its desirability is consonant with natural law’s grounding in basic human goods.
None of these concerns is, as stated here, anything like a definitive claim against Seagrave’s original and important account in his book. Yet they are concerns that leave me unconvinced that Seagrave’s marriage of the pre-modern and modern is, all things considered, a happy one.