The Late Great Natural Law Debate: Synopses and Reflections, Pt. 1

Time was, maybe 20 years ago, when “natural law” was a foreign notion to most evangelical Protestants.  “Isn’t that some crazy Catholic idea?  Or some outdated relic of the Middle Ages?” most might ask.  More thoughtful Reformed folks might have an arsenal of theological arguments against the concept—presuppositionalism and all that.  But for a variety of reasons, there was a rapid sea-change.  With the ascendancy of the Moral Majority, conservative Christians found themselves catapulted into the public square, and the more sophisticated were conscious that a raw and undiluted biblicism was not going to get them very far in public debates.  Finding themselves shoulder-to-shoulder with Catholic co-belligerents in the culture wars, evangelicals glanced over at the popish playbook and thought natural law looked like a pretty promising notion.  Accordingly, they took up the idea with gusto.

But now, scarcely a decade into this revolution, the twofold curse of evangelicalism has reasserted itself.  First, evangelicals are always at least twenty years behind; they only jump on the bandwagon of an idea when it is nearing the end of its life-cycle—tired, worn-out, and ready to be discarded by its earlier proponents.  Second, evangelicals are like the second group in the parable of the sower: “this is the one who hears the word and immediately receives it with joy, yet he has no root in himself, but endures for a while, and when tribulation or persecution arises on account of the word, immediately he falls away.”  Having no roots in themselves, evangelical allegiance to a theological concept is often only skin-deep, ready to be abandoned as soon as difficulties and objections present themselves.

So it is beginning to prove now, particularly when it comes to the use of natural law arguments in what seems to be the Somme battlefield of the current culture wars.  Finding that natural law arguments are gaining them no traction in the current debate, evangelicals, and indeed many within the whole cobbled-together conservative coalition, were already wavering and considering withdrawal.  When Catholic and Orthodox stalwarts, then, under whose table we are so often picking up the theological scraps, sounded the horn for retreat, ranks break and a disorderly retreat to our ecclesial safe-havens begin.  

So it was when superstar theologian David Bentley Hart's opined in an essay for First Things, "Is, Ought, and Nature's Laws" that natural law is not all that useful, nor all that natural.  The essay provoked a tide of responses and counter-responses in the blogosphere, which continues even now.  For Hart’s remarks went deeper than mere tactical recommendations for conservatives engaging in public policy debates, and struck at the root of the natural law tradition itself, the foundation upon which so much Christian political theory has been built over the centuries.

As the controversy has ended up expanding to incorporate a number of my friends or mentors (Doug Wilson, Peter Leithart, Steven Wedgeworth, Peter Escalante, and Alastair Roberts), as well as high-profile thinkers and commentators such as Edward Feser, Rod Dreher, Alan Jacobs, and as it seems likely to rumble on a bit longer, it seems desirable to give something of a round-up for those who, like me, were somewhat late in listening in on the conversation, and want to be brought up to speed.  So I will seek here to provide a crash-course overview—I cannot be exhaustive, summarizing every contribution, of course, but I will try to take note of the more significant and helpful ones that have come to my attention, and will offer a few of my own thoughts about where the most important faultlines and unanswered questions lie (this is a considerably longer version of the synopsis I posted last week at the PT Blog).  

Although he began by claiming to agree with the basic metaphysical presuppositions of natural law (“a harmony between cosmic and moral order, sustained by the divine goodness in which both participate”), Hart expressed serious skepticism that this order could be rendered transparent to most people, as the natural law tradition claimed.  He characterized this tradition as “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. . . . 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.” “This,” he concluded, “is a hopeless cause.”

Why?  Because "Hume’s bluntly stated assertion that one cannot logically derive an “ought” from an “is” happens to be formally correct."  You cannot get from metaphysics to morality on reason alone, but only by "a belief about nature . . . a supernatural judgment that renders natural reality intelligible in a particular way."  Indeed, even if we succeeded in generating consensus that a particularly way of life in line with nature conduced most to happiness, a Nietzschean could still insist that the noblest act of human will was to defy nature.  In short, "as long as the will remains unconverted, and unwilling to consider conversion, reason is mostly powerless to change things."  

In view of the ability of so many people to arrive at very different conclusions about what nature demands, or to scoff at the whole notion that nature imposes any moral constraints upon us, Hart concluded that “our concept of nature [and its moral implications], in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.”

This essay clearly struck a chord with a cohort of American Conservative columnists, although their approaches to the issue differed somewhat.  Noah Millman went further than Hart in skeptically dismissing the philosophical integrity of the natural law tradition, as having little ground in nature understood scientifically.  His argument, however, highlighted a concern Hart voiced in his closing sentence: “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.”  If “natural law” claims to rest not merely on metaphysical foundations, but on physical foundations (as the classical natural law tradition clearly did; Aristotle took himself to be giving a scientific account of human nature), then we must contend with the fact that the reigning account of the physical universe today is very different.  Ordered teleology has been replaced with chaotic survival of the fittest?  If Darwinism is true, does that destroy the foundations of natural law?  Or can we argue, as Jean Porter does in her magisterial Nature as Reason, that the metaphysical foundations remain largely intact, whatever we concede to physical science?  In any case, as we shall see, Millman’s argument somewhat misses the mark, as most natural law accounts of morality proceed more from the starting point of the nature of human rationality and psychology than the nature of our physical environment.  (Of course, that just raises the question of whether, then, natural law theorists need to be more concerned about studies in psychology and the cognitive sciences.)

Rod Dreher’s response, however, drew considerably more attention than Millman’s angle.  Enthusing over Hart’s article, Dreher summarized:

"This is why I don’t have any faith in the natural-law-based arguments against same-sex marriage. It’s not that I disagree with them necessarily; it’s that a) they are hard for ordinary people conditioned by our culture’s modes of thought to grasp, and b) partly because of this, they (understandably) prompt a, “So what?” response. This is Hart’s point."

But actually, that wasn’t really Hart’s point.  Or certainly not his main point.  Hart was not simply lamenting that natural law arguments, while formally valid, are hard to grasp for our society, that we’re trying to teach calculus to junior-high students, or noting that they are rhetorically ineffective, like trying to teach anything to students these days without PowerPoint.  Hart was saying, it appeared, that these arguments were formally invalid in the absence of a supernatural premise.  But Dreher’s concern, as he made clear again in a follow-up post, was less about the universal viability of natural law than its contingent viability within our particular cultural context: “we are in a world in which reason is far weaker than we think"; the majority of ordinary people have lost the ability or the willingness to distinguish between a reasoned argument and a mere assertion of opinion. To believe that sophisticated metaphysical arguments for ethical and political conclusions will get us far in the current state of public discourse is a silly fantasy.  

Dreher’s concerns about rhetorical effectiveness, and about the cultural conditioning that has undermined our society’s ability to reason, are important ones, and we encounter them in several other contributions to the discussion.  However, it is important to distinguish, as Dreher did not, between these practical concerns and Hart’s more theoretical question of whether natural law could be compelling to natural human reason as such.

Alan Jacobs seconded Dreher’s general concern, noting that Christians needed to recognize the importance not merely of proclamation, but of persuasion, in the public square, and that “arguments founded on the existence of natural law get no traction in the current intellectual climate.”  His concern went somewhat further, though (and this reveals that there is more connection between the contingent pragmatic claim and the universal theoretical claim than might have first appeared).  If we account for the ineffectiveness of natural law in the current climate by saying that natural law arguments work to those who are reasoning properly, and are only unpersuasive to those who aren't really listening or thinking carefully, we have a problem: "The unpersuaded people are still there; the social or political problem you’re trying to fix is still there. Is it really the best we can do to say 'You fail to meet my standards of rationality; therefore I refuse to debate with you further'?”

In part, Jacobs is just making the pragmatic point again—if we conclude that the problem is just that our opponents are irrational, we’re still, both as good Christians and good citizens, left with the responsibility to try and persuade them, and we need to find a compelling way to do so, a way that presumably does not resort to natural law reasoning; so Jacobs concludes,

“In the short term we need to find ways to commend our strongly-held views without recourse to natural law arguments; and in the long term we need to think about how the existence of natural law can be made both plausible and appealing to people who now see nothing in it. I don’t see a responsible way out of either pursuit.”

(I would note in passing that there is no true persuasion that does not include an appeal to someone’s reason, and so, if persuasion is by any means possible, the very fact that we can appeal to someone’s reason in a matter of moral argument demonstrates the existence of some kind of underlying natural law.)  But Jacobs’s remark suggests that we have more than just a practical problem, but an intellectual one: are we really prepared to dismiss all our opponents as incapable of reasoning?  What are the consequences of doing so, and what, ethically speaking, does that entail about how we are obliged to treat them?  I will return to this below when addressing Samuel Goldman’s contribution to the discussion.  But let us move on on to the more philosophical/theological side of the debate for a bit.  

Hart's essay had indiscriminately lumped together and rejected the two rather different theories of old natural law (a continuation of the Thomist-scholastic tradition) and new natural law (the Kantianized version offered by recent Catholic philosophers such as Germain Grisez and John Finnis), and representatives of both camps were understandably miffed.  While some pointed out that Hart had at other times and places spoken more favorably and more advisedly on the subject of natural law, his fellow philosophers and theologians were not about to let him off the hook for this particular utterance.

New Natural Law theorist R.J. Snell rejected the claim that natural law theorists violate the Humean dictum not to derive an ought from an is; on the contrary, the new natural law studiously avoids doing just that.  Instead of beginning with an account of nature grounded in speculative reason, and deducing from this duties of practical reason, they begin with the self-evident (in the sense of innate, underived, or basic) presence of moral first principles in practical reason, the awareness that "good is to be done and evil avoided."  That is to say, they begin on the ought side of the divide, our experience of ought-ness, and stay there.  The derivation of particular moral precepts from this starting-point is an exceedingly complex and arduous task, and thus it is also a straw man for Hart to describe natural law as insisting "that the moral meaning of nature should be perfectly evident to any properly reasoning mind.”  Nonetheless, Snell argued in a follow-up post that natural law reasoning is not useless, nor does it require total conversion of the will to be heard: "There need not be a fundamental change of metaphysical horizons, supernatural convictions, or religious beliefs; the only requirement is for persons of practical reason to meet themselves, perhaps for the first time, and to pay attention to what they are doing."  Persuasion by means of natural law reasoning may be difficult, therefore, but it is possible within the horizon of the natural.

Old Natural Law theorist Edward Feser, in a blistering dissection of Hart's essay, agreed with Snell's accusation of "straw-manning."  Indeed, Feser pointed out that it was "only by running together the two main contemporary approaches to natural law that Hart can seem to have struck a blow against either" and that Hart was "directing his attack at a phantom position that no one actually holds."  For new natural law theorists, as Snell pointed out, grant the validity of Hume's dictum, and accordingly self-consciously reconfigure their theory in such a way as to avoid violating it, whereas old natural law theorists refuse to grant the validity of the dictum, resting their case as they do on an allegiance to the Aristotelian concept 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.” 

Indeed, says Feser, it is hard to see how Hart can coherently grant the validity of the Humean dictum either, since from this "it would follow that the purely theological ethics to which Hart seems committed, no less than natural law theory, cannot get off the ground."  Feser likewise contends that Hart misses his target when he objects that natural law arguments depend on controversial metaphysical premises.  Of course they do, grants Feser, as in fact do all moral theories whatsoever, including secular theories.  Feser thus calls Hart’s bluff of conflating “supernatural” and “metaphysical,” and declares that "if its being controversial makes it 'hopeless' as a contribution to the public square, then every controversial position is hopeless."  What is needed, then, is not an abandonment of natural law, but a recognition that if it is to be rendered convincing to our culture, we have a major task in philosophical education before us, as well as the theological task.

This might seem to bring Feser close to Dreher's point—that natural law arguments might be valid, but few can follow them anymore—but, responding to Dreher in another post, Feser says that this "entails only that the work of the natural law theorist is more difficult than it would have been in previous generations, not that it isn’t worth doing."  Indeed, it's very worth doing, and one reason is "that the liberal, who claims to favor intellectual pluralism in the public sphere, needs constantly to be forced to put his money where his mouth is"—if we do not forthrightly argue unpopular convictions in the public square, we can hardly blame the public for dismissing us as lacking any rational arguments.

(It should be noted in passing, though I have no space here to develop or discuss it, that Thaddeus Kozinski, in response to Snell and particular Feser, offered a forceful philosophical and theological defense of Hart’s critique of both old and new natural law traditions.  This is well-worth digesting (and perhaps discussing another day), revealing as it does that, regardless of the sloppiness of Hart’s original argument, the matter remains considerably more complicated than pure ONL or pure NNL theorists would have us believe.)

Steven Wedgeworth at The Calvinist International weighed in to offer a Protestant endorsement of Feser's overall argument, and condemned the writers at First Things for a capitulation to "modernist" presuppositions.  For many Protestants, still skeptical of natural law, it might seem odd why we would want to defend the idea 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,” as Feser puts it—mustn’t revelation always be our foundation?  Wedgeworth seeks to explain the importance of something like Feser’s natural law theory:

“That tradition [of Christian philosophy] 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.” 

As Christians committed to the existence of objective truth and to the idea that God created man a rational being, naturally capable of knowing Him and the world around him, natural law is crucial.  

My friend Ben Miller seeks to eludicate this concern from a more biblical perspective in a post here, offering this excellent closing observation:

“If we surrender the metaphysical ground that man is made in God’s image and that as such he is (though fallen and in dire need of God’s Word and Spirit) both subject to and at some level aware of the moral order of the universe, we leave ourselves in a position where we can, in fact, only thump our Bibles – and worse, our biblically intelligent hearers will recognize that we have actually given up on what our Bible says. If they hear us cite the Bible, but see that we have no confidence that God’s moral order is operative within them and they within it, or that His moral order is known to them (in other words, if they see that we have accepted their moral autonomy as real), then we have yielded not just the authority of natural law but also the authority of the Bible.”

   

Meanwhile, however, the more practical and political sides of the question remained.  In response to Feser, Samuel Goldman at The American Conservative wondered just how much Feser thought that philosophical argument could achieve.  Does Feser think “that the metaphysical foundations of natural law theory can be demonstrated such that any rational and sufficiently attentive person would be compelled to accept them?”  Goldman is skeptical of such a strong claim.  In any case, if that is our claim, we are bound to find that, in point of fact, plenty of people are not “rational” or “sufficiently attentive.”  Accordingly, anyone who hopes to generate “consensus” is deluding themselves.   But

“fortunately, consensus is not the only good produced by public discussion. Participants can also clarify the premises and implications of their own intuitions, learn where others see things differently, and seek unexpected areas of  agreement. In short, they can learn to muddle through: agreeing where they can and tolerating when they must.”

Goldman’s brief post, like Jacobs’s, invites us to wrestle with the question of how we are to understand and handle moral disagreement.  This is a very serious question, because for many of us who have been attracted to natural law theory, coming out, perhaps, of an evangelical biblicism or a belligerent Reformed presuppositionalism, its attraction lies in its potential to replace war with dialogue.  From the standpoint of the various fideisms that dominate the conservative theological landscape, moral disagreement is not at all surprising, or difficult to account for.  “Well, of course they hold to nonsense and wickedness,” we say; “after all, they’re sons of Belial.”  Outside of faith in Christ is only darkness of the mind and hostility toward truth, and only conversion or conquest (and regrettably, the two are often rather blurred together), not persuasion, can be our answer.  We thus find ourselves trapped in a situation where we are confident, a priori, that we will not find common ground with the world around us, and this conviction becomes a self-fulfilling prophecy.  Of course, quite clearly, Scripture leads us to believe that on many points, this is precisely the case—the unbelieving mind is enmity against God; you are either for Christ or against him.  

But both the Catholic natural law tradition and all the more so the Protestant one, founded on the two-kingdoms foundation, assert that this cannot be the case for all of life.  If it were simply the case that our rational faculties were destroyed by sin, then grace would not perfect nature, but would replace it.  Scripture would have to tell us everything whatsoever, which it clearly doesn’t; or rather, even this would not work, because we would be deprived of the rational apparatus needed to grasp and apply Scripture (one of Hooker’s key arguments).  Immediate revelation by the Spirit would be our only guide, and since each person’s revelation would be immediate and interior, there would be no possibility of rational discourse among believers.  (A bit of a straw man, maybe, but this is the logical trajectory of a rejection of natural law.)  Therefore, our epistemic paralyzation must apply only within a certain realm, or at any rate, must be total only within a certain realm and limited in its effects elsewhere.  To be sure, the tradition, both Catholic and Protestant, has generally asserted that within the realm of ethics, the Fall has more severely affected our faculties than it has in more abstract and impersonal areas of inquiry.  Indeed, neither Aquinas nor Hooker, for all their reputed optimism about the powers of reason, was under the impression that we could get along just fine in moral and political matters without divine aid.  James Chastek pointed this out with regard to Thomas and from Hooker, we could cite this passage, from among many:

If then it be here demanded, by what means it should come to pass (the greatest part of the Law moral being so easy for all men to know) that so many thousands of men notwithstanding have been ignorant even of principal moral duties, not imagining the breach of them to be sin: I deny not but lewd and wicked custom, beginning perhaps at the first amongst few, afterwards spreading into greater multitudes, and so continuing from time to time, may be of force even in plain things to smother the light of natural understanding; because men will not bend their wits to examine wherewith they have been accustomed be good or evil.
. . . . Unto this . . . somewhat besides may be added.  For whatsoever we have hitherto taught, or shall hereafter, concerning the force of man's natural understanding, this we always desire withal to be understood; that there is no kind of faculty or power in man or any other creature, which can rightly perform the functions allotted to it, without the perpetual aid and concurrence of that Supreme Cause of all things.  The benefit whereof as oft as we cause God in his justice to withdraw, there can no other thing follow than that which the Apostle noteth, even men endued with the light of reason to walk notwithstanding 'in the vanity of their mind, having their cogitations darkened, and being strangers from the life of God through the ignorance which is in them, because of the hardness of their hearts." (LEP I.8.11)

The natural law theorist, need have little difficulty accounting for the fact that in our society today, natural law seems to have so little traction.  Perhaps we have fallen victim to “lewd and wicked custom”; perhaps we have caused God to withdraw the light of reason from among us.  Perhaps, then, we are in something like the situation that the belligerent biblicists assume our culture is in—estranged from the truth, incapable of reason.  And if this is so, then aren’t we right back in a culture-war mentality?  That is to say, it’s all well and good to explain what sort of moral reasoning a “rightly-functioning intellect” is capable of, but if this leads us to conclude that all of our interlocutors are simply irrational and immoral, we don’t seem to have advanced very far at all in our ability to engage in civil public discourse within a pluralist society, we have not advanced at all in retrieving the possibility of persuasion.  We seem to be back in a situation where we must simply give up on the rest of “irrational” society and retreat to our strongholds, or else aggressively assert the superiority of our own reasoning and call upon our opponents to subject their reasons to the yoke of Christ.  

Is there an alternative?  How can we still go about persuading, and in the absence of consensus, how may we still live together? 

I will attempt to explore and perhaps even address these questions in a second installment next week, by interacting with a second phase of the Late Great Natural Law Debate, one prompted by Peter Leithart’s First Things post, "Gay Marriage and Christian Imagination."