Goldberg v Kelly illustrated Brennan's jurisprudence—his confidence that the Court was better than the political branches at making social policy.
In “Natural Law, Natural Rights, and Private Property,” Edward Feser offers a way for natural law theorists to be natural rights theorists, and he shows how natural law and natural rights provide the intellectual foundation for private property. This essay and his longer piece in Social Philosophy and Policy develop natural law theory in an interesting way. After all, Aquinas, a natural law theorist than which none greater can be thought, does not include private property in the natural law; he calls it an invention of human reason (ST IIa-IIae q. 66 a. 2 ad 1). Nicholas Wolterstorff, in chapter 7 of his Justice: Rights and Wrongs (Princeton University Press, 2008), holds that Aquinas cannot consistently hold to his ethical positions and adopt a rights-based conception of justice. If Feser can move us from natural law to natural rights and then to private property, he will show us a way to develop and to defend the natural law tradition—a welcome accomplishment.
In what follows I offer an observation and then a remark. First I want to consider the way in which the family and appeals to the family are woven into the fabric of Feser’s argument. Then I’ll consider whether or not views about the family are in tension with his views about the relationships between nature, goodness, and moral obligation. I think there is a tension, and that tension causes a problem for Feser—or, more optimistically, an opportunity for further reflection.
First, let’s see how important the family is to Feser’s argument. When moving from natural law to natural rights, Feser emphasizes our social nature, and familial relations are the most obvious social relations we have. The family has more than mere epistemic priority, though: It isn’t just that, when we think about how we aren’t alone in this world, we tend to think of familial relations. That is, of course, true. But there’s a further claim: Families are the very building blocks from which society is built. In his longer “Classical Natural Law Theory, Property Rights, and Taxation,” in Social Philosophy and Policy 27:1 (2010), Feser remarks, “Natural law theory takes the family to be the fundamental social unit, which puts it as odds with both the excessive individualism of the libertarian and the collectivism of the socialist” (51). It is within this context of the family that natural rights most obviously arise. Rights arise because of obligations family members have for each other. They are natural rights because they arise within the context of natural, family obligations.
Feser does not stop with familial obligations and rights, but it is within the context of the family that these natural obligations make sense. It is also within the context of the family that these obligations are most natural. Put differently, but perhaps more explicitly, the analogy between goodness and obligation most obviously holds in the context of the family. So just as a good lioness cares for her cubs, a good human mother cares for her children. A good lioness ought to care for her cubs; a good human mother ought to care for her children.
Feser appeals to the family when moving from natural law to natural right. He relies on the family again when he moves from natural right to private property. Feser relies on two observations to make this move. First, we are naturally suited to private property. Second, we require private property for our well-being.
I want to focus on the second claim, for, again, we see the role the family plays in his argument. Feser begins with individuals and moves to families, “the fundamental social arrangement, for the sake of which others (such as states) exist.” He ends with “the larger societies that tend naturally to form out of groups of families.” It’s families the whole way: families raise you; you form a family in your adult life, and it is the aggregation of families that form what we call society. Families are crucial to the argument, so, if families naturally need private property—if it is naturally good for families to have private property—then others have an obligation to let families acquire the private property they need. If families do not naturally need private property—if it is a perk, but not a necessity—then others do not have an obligation to let families acquire private property, etc.
The above may need some refinement. I may not have accurately captured, at every turn, Feser’s argument. My main aim in the previous section was merely to demonstrate the importance of the family at every turn, and I think it should now be obvious and noncontroversial, if it was not already, that families are important for Feser’s account. In this section, I want to voice the following concern: the family could offer problems for Feser’s essentialist and teleological account of goodness, on the one hand, and the family could pose problems for his movement from natural law to natural right and private property, on the other.
First, consider human parenting and the family in relation to Feser’s account of what is good for humanity. In a nutshell, my concern is that the naturalness of being a parent raises a potential counterexample to the general claim that the nature of a thing determines an objective standard of goodness. Consider the following argument:
1. It is part of the nature of a mother to care for her children.
2. The nature of a thing determines an objective standard of goodness.
3. If something is good for us, we are obligated to do it.
Therefore, 4. A mother is obligated to care for her children.
Feser uses precisely this kind of argument in his essay. To know what one is obligated to do, one simply needs to ask what is good for one. To know what is good for one, one simply needs to find out what is part of one’s nature. To know the nature of a thing is to know what is good for that thing and what one is thus obligated to do. That’s clear.
Now consider this argument, built along very similar lines:
1. “It is part of our nature to become parents.”
2. “The essence or nature of a thing determines an objective standard of goodness.”
3. “We are obliged to do what is good for us.”
Therefore, 4. We are obligated to become parents.
The conclusion of this argument is as straightforward as the first, though considerably more controversial. Feser disagrees with its conclusion: Feser would not, for example, hold that Roman Catholic priests are doing moral wrong by not pursuing parenthood. In fact, they do a moral wrong if they (ahem) try to become parents. It isn’t just Roman Catholicism, though: Evangelical Christians do not hold that John Stott (who never married) did a moral wrong by not having children. Of course, atheists and agnostics are even more likely—at least sociologically, if not philosophically—to be open to people not having children. So, if speaking about each and every human, it is simply false to say that we are obligated to become parents. The problem for Feser is that the premises of the argument are taken directly from his work—that is why they are all in quotation marks. If the premises are his, how can he avoid the conclusion?
One possible response is that the second argument is invalid. But if that’s the case, then the first argument will be, too, which cannot be helpful to his overall position. So, assuming the argument is valid, the only way to reject the conclusion is to say that one of the premises is false. From Feser’s point of view, it seems most obvious that we should qualify (1). After all, (2) and (3) are things he will want to say about everything, not just parenting. Perhaps we can qualify (1)—it is part of our nature to become parents—by dividing humanity into two groups: those for whom it is natural to be parents and those for whom it is not. So it is not natural for, e.g., a particular man to be a parent, even though it is part of the nature of many, many people that they become parents.
But there are problems with this maneuver. If it is part of the nature of some people to be parents but not part of the nature of other people to be parents, it is simply not part of the nature of people to become parents. After all, if some lionesses care for their cubs and others do not, or if some squirrels gather nuts for winter and some squirrels do not, then it is considerably more difficult to make the case that it is natural for lionesses to care for their cubs and for squirrels to gather nuts for winter. Of course, there are some things that are part of our nature that we do not have, but, as Feser elegantly and at times humorously notes, these lacks are bad. But not being parents is not always bad, though it is a choice against nature, at least in some sense. Many people simply give up on (2); they deny that the essence of a thing determines an objective standard of goodness. Feser, of course, does not want to deny this relationship between essence and goodness.
And, second, if the family is not natural—if the family is not something to which we are oriented by our natures, a departure from which constitutes a moral wrongdoing—then it is hard to imagine how we have natural obligations within the context of the family. Remember that this discussion is important—apart from the teleological and essentialist concerns—because the movement from natural law to natural rights, and from natural rights to property, relies upon the family, as we saw in section 1. But if we don’t have natural obligations, then we don’t have natural rights, either. So, in order to have natural rights, we need to have natural obligations which arise within the context of a family, the membership in which is natural to who we are. But, as we saw above, if the family is natural, then there is something that is wrong about not having children. Yet there are instances when we think it is morally acceptable not to have children, so it is hard to see how the family is natural for everyone.
I am not sure how Edward Feser can resolve this dilemma. It may be that he can rely upon double effect: Someone who is celibate is not vowing not to have children but is instead vowing to abstain from sex (which leads to children). This response will be unsatisfactory to an unsympathetic audience, though: One may simply say that vowing to abstain from sex is itself unnatural, too. We do not see lions showing such self-restraint, after all. A balanced defense of singleness in the face of the naturalness of the family would greatly strengthen Feser’s natural law account of the family, which, as we have seen, is crucial for his movement from natural law to natural rights and private property.
Regardless, Edward Feser’s “Natural Law, Natural Rights, and Private Property” is interesting, well argued, and thought provoking; it also affirms much of what I personally believe. Yet Feser needs an account for how we can make a choice against nature—a choice not to have children (however this choice is understood)—that is not only not wrong but is instead commendable. His need is especially great because of his thoughtful and creative reliance on the family in making his case from natural law for natural rights and private property.