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Contra Naturam

I thank the editors of Law & Liberty for permitting a short answer to three recent responses to the caricatures, cavalier dismissals, and illusions in what I wrote a few weeks back against the idea of natural law.

What is common to all three essays is the assumption that the choice is between naturalistic ethics and moral nihilism. If so, this would be a telling criticism. But it’s not, and it’s easy to point to other moral theories that reject any attempt to identify the good with that which is natural. Here’s one, from J.S. Mill’s Three Essays on Religion: “Nature, natural, and the words derived from them … [are] one of the most copious sources of false taste, false philosophy, false morality, and even bad law.”

In particular, I reject natural law because I think that David Hume was right to claim that a moral injunction (an “ought”) cannot be derived from an existential statement (an “is”). I also agree with Hume about the Stuart monarchs, but that doesn’t require me to agree with everything else that Hume said, as Paul DeHart suggests. I also think that Doug Rasmussen is wrong to suggest that G.E. Moore gave Principia Ethica the heave-ho in his essay on “Is Goodness a Quality,” but that’s a topic for another day, as are my theological disagreements with Nathan Schlueter.

Not unexpectedly, Schlueter argues that John Finnis has satisfactorily rebutted the is-ought problem by appealing to a set of intelligible intrinsic goods to which we are directed by our practical reason. We all desire to live (except when called on to be a martyr). We all desire children (except those called to the religious life). We all desire marshmallow sundaes (except those on a diet). These are all intelligible goods. But to make sense of them, one requires a more encompassing moral theory, and so it has always seemed to me that the Finnis turn is parasitic upon utilitarianism. These intelligible intrinsic goods, this flourishing of yours, why would I want them if they made us all miserable?

A further difficulty with natural law, for lawyers at least, is the severely limited nature of its scope. Here again I agree with Hume that the obligation to perform a promise is unintelligible absent a background language in which it is meaningful to promise. So too for contract law, most of property law, and much of the rest of the law. The prior question is whether it’s desirable that a legal institution exist, and the answer to that is best found in utilitarian theories of ethics. I’ve made the argument in Just Exchange, and don’t have to repeat it here.

A complete contingent set of moral rules isn’t feasible either. Too many things can happen for anyone to prescribe what to do in each of the countless possible future worlds.

Finally, my problem with natural law is a problem with law itself. That’s not to say that laws don’t matter. They’re the first cut at a moral answer, and in many cases that’s all you need. “Thou shalt not kill” doesn’t admit of too many exceptions. But rules are not enough. We might think that we’ve followed all the rules, but still wonder whether something more is wanted of us. The moral life is more than the rule-driven life.

Lawyers understand the limits of rules from their efforts at drafting long-term contracts. The goal in such cases is to assign rights and responsibilities for everything that might happen thereafter, and the problem is that this is impossible. A perfectly specified contract would tell the parties what to do in every conceivable future state of the world, completely covering every possible contingency. But there are just too many things that might happen. A “complete contingent contract” can never be written, and the best one can hope for is that, when the unexpected happens, we’ll find a good judge who’ll interpret the contract the way the parties would have written it had they addressed their minds to the possibility.

A complete contingent set of moral rules isn’t feasible either. Too many things can happen for anyone to prescribe what to do in each of the countless possible future worlds. That’s what Christ taught, in His answer to the rich young man in the Synoptic Gospels. The young man said he had followed all the commandments and wondered if anything more was required of him. Indeed yes, said Christ. If you want to be perfect, sell all you own and give to the poor, then come and follow Me. No wonder the disciples were dismayed. Who then can be saved, they wondered? (The answer is no one, absent grace.)

That is why I am sympathetic to Doug Rasmussen’s perfectionism. “Self-perfection is our natural end,” he writes, “our human good.”

As a comprehensive, ultimate end, it is constituted by many basic goods and virtues. Among these are, for example, knowledge, health, friendship, integrity, temperance, and courage; but none automatically take precedence over others. As a result, the central task of human living is to find a way to coherently achieve these goods and practice these virtues for oneself in contingent and particular situations.

That’s a form of natural law, without law and without rules. If you want to call this natural law, I’d go along with it, up to a point. What I reject is only the idea that moral requirements can be derived solely from the individual’s perspective, without taking into account duties to other people on, for example, utilitarian principles.

The natural lawyer who thinks that moral answers are to be found within each of us must, like Rasmussen, subscribe to a form of moral individualism. That’s an important element in any theory of ethics, but it is radically incomplete to the extent that it fails to account for the very human tendency of self-deception, the sometime requirement of self-denial, and the true counsel of perfection.

Reader Discussion

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on May 19, 2020 at 10:34:07 am

A Few points for now; perhaps, more later;
Buckley appears to reduce natural rights to nothing more than "moral individualism". I know of no proponent of natural rights who would make such a claim. Rather, they argue that it is "natural" BECAUSE it is inherent in ALL human beings. Frank is being less than frank here. Indeed, he seems to be advancing the philosophical position of the most radical postmoderns, i.e. that the individual IS anything, CAN be anything and OUGHT to be anything he or she (or some variant of that biological distinction) damn well wants to be.
Buckley praises utilitarian considerations, or at least faults natural law for not properly considering the utilitarian value consequent upon law or policy. Yet, if it were shown, and our ante-bellum southern citizens did precisely that, the greatest utility may be derived from subjecting others to human bondage, would Buckley be prepared to accept that as a valid expression of Law?

Perhaps, something more later on Natural MORAL Law:
1) It is NOT intended to cover EVERY contingency - but most.
2) It is to be tempered or "violated" only with and by "justification"
Positive Law is nothing more than an attempt to delineate those possible justifications.

Yikes, Frankly Buckley is sounding more and more like a Progressive rather than a humorist Parliamentarian. Then again, if Parliament, the wellspring and expositor of Positive Law, is Supreme as Buckley avers / prefers how can anything so bereft of maximal utility / applicability value such as Natural Law even be considered on a par with positive Parliamentary LAW. Buckley mistakes the paint color for the frame of the house.

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gabe
on May 19, 2020 at 11:38:28 am

Oops! Forgot this line from the essay in support of Buckley's confusion where he opposes "individual morals" and also supports it:

"As a result, the central task of human living is to find a way to coherently achieve these goods and practice these virtues for oneself in contingent and particular situations."

Also, do we not observe an "ought" in this claim.

If this be a "central" task, is it not an "ought."

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gabe
on May 19, 2020 at 12:07:40 pm

Not Even Close, and Certainly No Cigar: Rejoinder to Buckley
by
Douglas B. Rasmussen

1. The purpose of my essay was to show that one could not easily dismiss natural moral law. I did not engage in a comparison of natural moral law with other ethical theories. That is a task for another day.
2. It is most doubtful that Moore continued to adhere to his open-question argument (OQA) later in his career, but even if one grants for the sake of the argument that Moore did not throw over his OQA, that does not remove any of the many powerful and long-standing objections to the OQA. Some of which I noted in my essay.
3. Saying that one still agrees with Hume regarding his is-ought passage is not a reply to its being irrelevant to natural moral law. To assume that it does confuses logic with ontology.
4. Moore’s moral realism should not be ignored, and neither should his admission of goodness supervening on natural properties. Moore is not an adequate foundation from which to launch an attack on natural moral law.
5. The account of natural moral law theory that I and Den Uyl advance holds that the exercise of practical wisdom is the very essence of a self-perfecting life. This is not a rule-based approach to ethics, but it involves the application of ethical principles to particular and contingent situations. It involves moral individualism without either subjectivism or relativism.
6. F. H. Buckley seems to conflate positive law and ethics. To say that the former requires the latter for its legitimacy neither requires their identification nor an isomorphic relation between them.
7. Interestingly enough, avoiding self-deception is one the basic insights of natural moral law theory—it starts with Socrates’ injunction to know thyself.
8. As noted at the end of my essay, there is much more involved in this defense of natural moral law. See the works I have authored with Den Uyl that are cited there.

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Douglas B. Rasmussen
on May 20, 2020 at 03:01:28 am

I think Professor Buckley quite missed the point of my reply to his rejection of natural law--and ascribes to natural lawyers (and presumably to me also) some things that I or any natural lawyer would ever affirm. But let me say a word about Hume. I was talking about the epistemic and metaphysical necessary conditions of Hume's is/ought dichotomy. So I wasn't suggesting--and never said--Professor Buckley must accept everything Hume said. However, Hume's dichotomy requires a particular metaphysic.

Now, let's note that natural lawyers never derive an ought from an oughtless is. But, moreover, natural lawyers don't think the most fundamental oughts are derived at all. Rather, natural lawyers in the classical tradition follow Thomas's claim that the primary principles of natural law are parallel to geometric axioms. They are indemonstrable and so underivable and so underived. Natural lawyers begin with prescription--good is to be done and evil avoided. The primary precepts of of natural law are epistemically and ontologically basic. There are some other immediate precepts that are secondary but nevertheless still epistemically basis.

Natural lawyers begin with an ought. And because they begin with oughtness in the order of practical reason, the is/ought dichotomy never comes home against it. Now it seems to me Hume didn't know this. It seems Professor Buckley is unaware of this too. Nevertheless, this is a basic feature of natural law thought in Aquinas, C. S. Lewis, J. Budziszewski, and every other natural lawyer in the classical tradition of which I'm aware (and as, among other things, a natural law theorist, I'm fairly well read on the matter).

Let's go the matter of theology for a moment. Seems that Buckley is a a theistic voluntarist when it comes to metaethics or, if you will, the ontology of moral obligation. His so-called Augustinianism seems more akin to Thomas Hobbes position in Chapter XXXI of Leviathan or perhaps Van Til. I've spent the better part of my career since my first book arguing that voluntarism (whether theistic in nature or secular) is self-referentially incoherent. I think the argument dispositive. But set that aside for the moment. If Buckley is a kind of divine command theorist and (quite implausibly as I see it) interprets Augustine that way (along what we might call Ockhamist or Scotist lines), divine command theorists nevertheless derive an ought from an is. Hume's is/ought dichotomy was meant to apply to voluntaristic divine command ethics just as much as to natural law theory.

The arguments of CS Lewis, Leibniz, myself and others against voluntarism strike me as dispositive. There's no point in worshipping God rather than the Devil if God is beyond good and evil because good and evil are established only be divine commands (that is, if divine commands are necessary and sufficient for establishing good and evil). The classical Christian tradition has held that God is Good, that Goodness is God--that these are convertible. Richard Hooker famously argued that God's Being is a law to his doing. He maintained this in order to repudiate the notion that God was an arbitrary ruler. It was not sheer omnipotence that ruled the world but eternal Wisdom and Goodness.

As CS Lewis puts it, either Goodness is eternal and uncreated, or it doesn't really exist at all. Buckley's arbitrary deity is omnipotent and free at the expense of Goodness. But sheer power hardly merits worship or inspires love.

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Paul R. DeHart
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on May 23, 2020 at 11:41:13 am

[…] 6. At Law & Liberty, F. H. Buckley says there is more to life than rule-following. From the piece: […]

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