Are we to abridge the Constitution, shear off its meaning, edit it down, whenever applying it faithfully calls for a “value judgment”?
F. H. Buckley takes pleasure in being a conservative contrarian. Sometimes this is valuable, even when one disagrees with the argument. Incisive criticisms can show the weaknesses of commonly accepted beliefs and point out hidden premises that need to be more fully examined. Especially when seasoned with a little wit, even weak arguments are forgivable. Unfortunately, Buckley’s recent criticism of natural law and natural lawyers in these pages fails in both respects.
The problems begin with his first paragraph. The first principle of a good argument is a clear articulation of the terms, usually expressed in a definition. Yet Buckley’s account of a natural lawyer is so broad as to include virtually anyone he wants to target. He tells us that natural lawyers are some subset of “American lawyers who are apt to bootstrap their conservative beliefs;” they are also “philosophers, in possession of an ostensibly accessible but actually secret code,” but who “have not read much of Aquinas.” Later he refers to “the natural lawyer’s obsession with property rights” and “experiments about bargains in the state of nature.” He concludes: “A mere profession of faith in natural law suffices.” Philosophers have a term for Buckley’s fallacy: “straw man.”
Buckley begins his argument with the breathless assertion that “Nearly 300 years ago, Hume demolished the pretended link between nature and goodness.” Is it possible that he has noticed what three centuries of natural law philosophers have missed?
In fact, defenders of the natural law have directly responded to Hume’s objection in a number of different ways. Some of them, like Alasdair MacIntyre in chapter five of After Virtue, have given cogent reasons for why Hume’s argument is “bogus.” Others have affirmed the substance of Hume’s objection while denying that it has any relevance to the truth of the natural law. Perhaps the most famous of these is the natural lawyer/philosopher John Finnis, who spends almost an entire chapter of his 1981 book Natural Law and Natural Rights on this subject. C.S. Lewis actually relies on Hume’s argument in his defense of the natural law in the second part of The Abolition of Man. (A helpful overview of the arguments on this issue can be found in chapter six of Douglas Kries, The Problem of Natural Law.)
Buckley further objects that the diversity and incompatibility of competing conceptions of the good undermine the natural law. He points out, for instance, that the Kansas Supreme Court “found a right to abortion in the related doctrine of natural rights” and that “human sacrifice was everywhere a custom in primitive societies.”
Buckley is assuming here what virtually no natural law philosopher, including Thomas Aquinas, ever asserted: that for the natural law to be real, its requirements must be obvious and clear to all. Buckley never bothers to consider whether any domain of knowledge, including theology, mathematics, or natural science, has these qualities of obviousness and clarity. And if they do not, why should the natural law be any different?
What underlies this confusion is Buckley’s failure to distinguish between the natural law as an immanent and objective moral order, and natural law as a theory about that order. And although Buckley seems to be targeting theories of the natural law, he also appears to deny that there even is such an immanent and objective moral order. This is evident in his misguided Jansenist/Calvinist (but not Augustinian) critique of Pelagianism, which seems to rest on the false and dangerous voluntarist conception of God which was the object of Benedict XVI’s Regensburg Lecture.
“Natural law shorn of revealed law and the need for religious faith,” Buckley says, “is Pelagianism.” It is tempting to accuse Buckley’s argument of going off the rails here, but this assumes it was ever on them. The issue with which Pelagianism deals is not whether fallen human beings have some capacity to know and follow the natural law (a knowledge, in any case, that St. Paul affirms in Romans 2); it is whether they can, by their own efforts, merit sanctifying grace by their moral actions. But natural lawyers are not treating this theological question of the moral life as it relates to salvation. Rather, they are treating the political question of whether human beings have a sufficient moral capacity to live together in tranquillitas ordinis, Augustine’s “tranquility of order,” or peace, noted in book XIX of The City of God. Buckley’s criticism, therefore, is misdirected. Philosophers also have a term for this fallacy: red herring.
In the end, Buckley wants to distinguish two forms of conservatism, one which is rooted in the natural law and natural rights, and another which is “rooted in the traditions of our religions,” which, he assures us, “will not be illiberal.” But, to quote Buckley to himself, “two can play at that game.” Apparently he has not been reading Harvard Law Professor Adrian Vermeule and his followers closely. Grounding politics in “religion,” even Christianity, does not solve any of the problems Buckley identifies in the natural law, it just pushes them further down the road, while at the same time undermining a civil basis for resolving them. Even in a world occupied by Buckley’s imagined “conservatism of religious traditions” there will be disagreement over issues like welfare, abortion, euthanasia, and marriage (unless of course everyone happens to shares Buckley’s religion). How will those disagreements be resolved when they are viewed as competing claims to divine revelation, rather than competing arguments that are, at least in principle, available to all rational human beings? Buckley’s profession of epistemic humility is in fact a setup for civil war.
But Buckley’s dichotomy is, of course, a false one. Natural-law lawyers and philosophers are not all guilty of “apriorism,” and they can and do affirm with Buckley that “without religious faith liberalism carries the seeds of its own destruction.” But not just any “religious faith” will do. It must be one that acknowledges both grace and nature, faith and reason.
The fact is, the natural law is fundamental to both orthodox Christianity and Western civilization. Any attempt to discard the natural law by appealing to some more basic tradition can only really be an illusory effort to promote a more radical and troubling alternative to that tradition.
So why isn’t Buckley a natural lawyer? Perhaps because he doesn’t understand the argument. If Buckley wants to promote true conservatism, he should consider contributing his impressive intellectual and rhetorical abilities to the defense, rather than to the denial, of the natural law.