Natural Law, Positive Law, and Liberty

Natural moral law has been understood in various ways. A well-known understanding, which I champion here, holds that the nature of the individual human being ultimately provides the standard or measure for determining the morally worthwhile life. This is the ultimate sense of “law”—not commands, conventions, or practices. The nature of human beings and the moral life provide, in turn, the ultimate basis for individual rights. Thus, these rights are natural. Further, these rights, when expressed as basic, negative rights to life, liberty, and property, can be used to determine the legitimacy of positive law.

I would like to make some brief observations about what is and is not entailed by natural moral law and show that it is not vulnerable to the kind of cavalier dismissal offered by F.H. Buckley in these pages.

Natural Law and Natural Rights

Though compatible with theism, natural moral law does not depend on theology for its account of ethics. Its concern is with the natural order. Nor is natural moral law a form of ethical rationalism that assumes that ethical guidance can be provided by an abstract consideration of ethical principles alone. And finally, natural moral law is not only congruent with natural rights but supportive of them when they are understood as the ethical foundation for the political/legal order.

First, natural moral law is not divine command theory, if by such a theory we mean that the goodness or the obligatory character of any conduct is determined solely by its being commanded or willed by God. Natural moral law holds instead that it is the nature of the individual human being (apart from a consideration of the ultimate source of his or her existence) that provides the foundation for all basic ethical principles. In this regard, it is important to recall that Aquinas has an intellectualist conception of God, and hence God cannot command something that is contrary to His nature. God can neither make “2 + 2 = 5” true nor the torturing of babies for fun legitimate. God commands or wills what is true and good; what is true and good is not determined by merely what God commands or wills.

 Second, self-perfection is our natural end, 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.

Self-perfection is, therefore, not simply a matter of deducing from basic moral goods and virtues what ought (or ought not) to be done. Rather, it is a highly nuanced activity that requires insight, and it does not generate one-size-fits-all edicts for concrete situations. Its essence is the exercise of one’s own practical wisdom. As Aristotle states in the Nicomachean Ethics, “Virtue . . . is a state of character concerned with choice, lying in a mean, i.e., the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it.” And as Aquinas states, “Prudence directs the moral virtues not only in the choice of means, but also in appointing the end. Now the end of each moral virtue is to attain the mean in the matter proper to that virtue, which mean is appointed according to the right ruling of prudence.” The achievement of one’s human good is not something abstract, universal, or impersonal.

Third, the questions of what ought to be and what the law ought to command will not necessarily have the same answer. There is a distinction, as Aquinas notes, between demands of justice that are morally binding and demands of justice that are morally and legally binding. So, knowing what justice requires ethically is not sufficient to determine what is required by the positive law. Thus, one way to understand the relationship between natural moral law and natural rights is to conceptualize the latter as having the ethical purpose of determining which matters of morality are to be matters of concern for the positive law. The function of natural rights would be to provide the basis for a political/legal framework that protects the possibility of individuals employing moral principles in their pursuit of self-perfection while living with and among others. The protection of liberty would be the paramount concern.

In other words, the common good for the political community would be a legal order whose basic function is the protection of natural rights. Thus, natural rights could be understood as the principle by which one interprets and understands the meaning and purpose of a constitution. This is certainly not the way many natural law moral theorists have conceived of the connection between natural moral law and natural rights, but it is an option that is available—one that Douglas J. Den Uyl and I have sought to advance over the years. It should at least be clear that natural moral law in no way necessitates Catholic integralism or even, more generally, the statecraft-is-soulcraft view of political philosophy.

The Naturalistic Fallacy

Buckley claims that natural moral law can be dismissed as an example of the so-called naturalistic fallacy. This fallacy, however, is neither clear nor obvious. Indeed, it is highly controversial and is by no means established. There are three points to be noted here.

Since goodness is found throughout all of reality in the relation of the actual to potential, it cannot fall under any classification or category. It transcends them.

First, it is often claimed that Hume showed the fundamental error of natural moral law by observing that one cannot derive a conclusion that contains terms about what is valuable, worthy of doing, or obligatory from premises that do not have such terms. This observation is correct, but irrelevant. It does not show that there is or must be, in every case, an unbridgeable ontological gap between what is and what ought to be; it only shows that such an argument must contain premises that make mention of what is valuable. Logic is not ontology.

Second, a related argument put forward by G. E. Moore claims to show that goodness cannot be defined. We can only say that good is good, nothing more. Any other attempted answer is open to question and does not tell us what goodness necessarily is. It confuses goodness with something else and hence commits “the naturalistic fallacy.” This argument is called the “open-question argument” (OQA) and is often used against natural moral law. However, it is fraught with many difficulties. Some of them are: the assumption that an adequate definition must be analytic—that is to say, a definition cannot say something new about what is being defined; the conflation of a nominal and a real definition; and the failure to grasp that even analytic definitions do not explain necessary truth. Such definitions merely push the explanation back another step, because even requiring a definition to be as straightforward as “A is A” still does not explain why “A is A” is a necessary truth. The OQA, therefore, fails as a test for determining whether a proposed definition of goodness, or for that matter anything else, is adequate. Later in his career, Moore admitted that all of his supposed proofs in his Principia Ethica that goodness is indefinable ”were certainly fallacious.”

Moore is a moral realist. Goodness for him is not a construction, an emotive expression, or merely a matter of linguistic usage. In fact, Moore claims that the reference for the term “good” is indeed fixed by natural properties, but goodness is nonetheless not reducible to natural properties but instead supervenes upon them. In other words, goodness goes “piggy-back” on certain natural properties. For example, to say that a strawberry is good is not to say that it just is red, juicy, and sweet. Rather, it is good because it is red, juicy, and sweet. This admission of supervenence on the part of Moore is most important, because it is something that Aristotle, and certainly Aquinas, hold. As Henry B. Veatch observes:

And why should being sweet, red, and juicy constitute grounds for calling a strawberry good, or having good judgment, the courage of convictions, etc. be grounds for calling a man good? The answer is that it is precisely the fully developed, perfect strawberry that has such properties; or, analogously, it is only the man of reason and judgment, of courage and justice, who approximates to what a human being might be or could be, and who in this sense has really actualized the full potentialities of being human.

Goodness is, then, the actual as compared to the potential, and since goodness is found throughout all of reality in the relation of the actual to potential, it cannot fall under any classification or category. It transcends them. Thus, it can only be “defined” in a broad, analogical manner. A natural law moral theorist, then, could agree with Moore regarding goodness being indefinable in a strict sense and yet hold that Moore’s argument against defining goodness would not in principle be opposed to a naturalistic grounding of goodness.

Finally, understanding the ontological context for natural moral law theory is crucial for understanding why there is no necessary gap between what something is and what is valuable for it. Things in the natural order—or at least living things—have a telos or ergon, an end or function; and when the results of a living thing’s action or conduct is described, that description can be judged as good or bad in terms of its end or function. In other words, there can be natural goodness or defect. As David S. Oderberg states:

Stones and electrons might have functions, but they cannot flourish, or behave better or worse, rightly or wrongly, or be harmed, satisfied, or possess any of the fundamental normative states belonging to subjects of immanent causation, that is, . . . living things. There is no mere continuum here, but a point at which nature is carved at the joints. Yet the normative functions of living things are as real as the nonnormative functions of everything else in the cosmos. Natural goodness is as real as natural viscosity, natural harm as natural radioactivity.

Living things have causal powers that result from properties that are not reducible to the properties of the material elements that compose them. These non-reductive properties add to the ontology of the world and provide a mode of causationnamely, an immanent final causation. For living beings like ourselves, these causal powers can be expressed volitionally, but they are nonetheless teleological. The normative character of beings and their actions is therefore rooted in the very natures of living things. Such an ontological context undercuts the claim that natural moral law commits the so-called naturalistic fallacy.

There is much more that can be said about these observations, but the purpose of these remarks has simply been to show that one cannot easily dismiss natural moral law. It remains highly relevant for any account of ethics, political philosophy, law, and liberty.

Reader Discussion

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on May 14, 2020 at 13:36:54 pm

This is a wonderfully and richly fecund piece. Seminal, and so necessary within our contemporary landscape and period. Because we have forgotten such more finely textured soundings we are at risk of succumbing to (e.g.) what Joel Kotkin describes as a "hygenic fascism" and the neo-feudalism he similarly warns of.

It makes for an intriguing challenge. We are fortunate to live in such an interesting era.

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Michael Bond
on August 07, 2020 at 04:00:58 am

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