On the Faults of Natural Law
This short essay is not intended as an exhaustive exploration of the subject, but is designed to express in a short space the primary difficulties I have with the concept and application of natural law. This presents a problem at the outset as there are at two very different understandings of the term “natural law.” The 1910 edition of the Catholic Encyclopedia article on the subject begins,
In English this term is frequently employed as equivalent to the laws of nature, meaning the order which governs the activities of the material universe. Among the Roman jurists natural law designated those instincts and emotions common to man and the lower animals, such as the instinct of self-preservation and love of offspring. In its strictly ethical application — the sense in which this article treats it — the natural law is the rule of conduct which is prescribed to us by the Creator in the constitution of the nature with which He has endowed us.
It is the final understanding, and its application, I am addressing at this point — as it is the one that I feel is most pernicious and ethically problematical, and open to the greatest abuse.
However, let me first raise the question of why anyone should feel the need to develop such an overarching theory of morality in the first place. It seems to me that this stems from a desire for objective standards, rather than a willingness to live in a conditional moral universe that is subjective at its heart. The evident problem with such a desire for objectivity lies in the fact that morality itself is necessarily relative — that is, it deals with the interrelations between various entities, and how they interact with each other. This necessitates an inescapable degree of subjectivity. Even behaviors of an individual in relation to some nonhuman entity — the state, the church, or even God — are by definition relational. The desire to declare a given act as moral or immoral divorced from the relation of the actor to the act and to that which is acted upon leaves precious little with which to deal.
For example, theft, which as an act-in-itself is simply the manipulation of some object (real or — in this day and age — even virtual), is only considered “theft” because of the relationship of the thief to the thing stolen, and touches on whole areas of presupposed or unexamined philosophical groundwork such as the nature of ownership itself: what makes something “belong” to one individual and not to another. There is nothing essentially rational or necessary in the concept of ownership — it depends upon other concepts that derive from cultures and their attitudes and have no objective or universal standing.
This exposes the greatest problem with natural law: that the supposedly self-evident truths to which it appeals are themselves philosophical constructs that even if widely shared still reflect the cultural prejudices of those who share them. I commend reading the whole article in the Catholic Encyclopedia (see link below) which, dating from 1910, reveals rather clearer traces of these cultural prejudices proclaimed as self-evident truths than might be risked with such bluntness today.
In short, natural law, as a system, is hopelessly guilty of begging the question. It assumes as its necessary premises answers to some of the very issues it purports to address.
Perhaps the most “question-begging” aspect of the concept lies in the essentially useless conclusion identifying the ultimate principle of natural law. As Aquinas says, (and as the CE reports),
the supreme principle [governing all of natural law], from which all the other principles and precepts are derived, is that good is to be done, and evil avoided (I-II.Q94.2).
Well, that’s settled then. Just do what is good, avoid evil, and all is taken care of. The problem, of course, is that rational people disagree as to what is even the highest good, and what subsidiary goods flow from it, and what actions and relations are in accordance with the highest or subsidiary goods.
The problems begin almost as soon as one begins to attempt to apply the basic premise. As the article in the CE goes on to say, the universality of natural law
pertains not to those abstract imperfect formulæ in which the law is commonly expressed, but to the moral standard as it applies to action in the concrete, surrounded with all its determinate conditions. We enunciate, for instance, one of the leading precepts in the words: “Thou shalt not kill”; yet the taking of human life is sometimes a lawful, and even an obligatory act. Herein exists no variation in the law; what the law forbids is not all taking of life, but all unjust taking of life.
The emphasis above is mine: the authors recognize that the concrete reality and conditions of any action have a role in determining whether that action is in fact good or not — that is, if it is in accordance with natural law. But the natural law itself cannot be used to make that determination because all it says, in essence and in its pure form, is that one should seek the good and avoid evil. In the case cited, all hinges on what is determined to be “unjust” — and of course in some contexts even the meaning of “life” — and so the whole weight of morality has to refer to that universe of conditions and circumstances rather than to any objective, immutable, or universally shared principle.
Take, as another example, the good of procreation — any rational person would say that the continuance of the human species is a good thing. But some cultures or moral systems (such as rabbinic Judaism, see mYebamoth 6.6) have held that the duty to procreate is incumbent upon all men; while others (for example, the Roman Church) have held that celibacy is not only permissible but virtuous. (Aquinas’ way around the problem of celibacy — II-II.Q152.2 — was to note that the commandment to be fruitful and multiply was addressed not to the individual human but to humanity as a species — a rather clever solution, but one that also tends to undercut the very basis of natural law as incumbent upon every human as human! And clearly the Roman Church is not willing to apply this same principle to birth control, but invokes a completely different moral touchstone: the dubious notion that the “procreative function” is not to be separated from the “unitive.” Since these functions are to some extent separate even in nature and can further be separated by human action, and there may well be quite rational causes for doing so — for example, in the case of a woman for whom it has been determined that bearing a child would be a significant danger to her life — the objectivity of this moral law comes into question.)
Additional difficulties arise the further one wades into the defense of natural law. In an effort to define its “essence” the CE continues with these two principles:
(a) The natural law is universal, that is to say, it applies to the entire human race, and is in itself the same for all. Every man, because he is a man, is bound, if he will conform to the universal order willed by the Creator, to live conformably to his own rational nature, and to be guided by reason. However, infants and insane persons, who have not the actual use of their reason and cannot therefore know the law, are not responsible for that failure to comply with its demands. (b) The natural law is immutable in itself and also extrinsically. Since it is founded in the very nature of man and his destination to his end — two bases which rest upon the immutable ground of the eternal law — it follows that, assuming the continued existence of human nature, it cannot cease to exist. The natural law commands and forbids in the same tenor everywhere and always.
Noting already the exceptional cases of those who do not have the use of reason, another problem with this asserted universality arises when particular human actions judged irrational by some are judged rational by others. Who is to set the objective standard as to what is rational? Do we not end at base with reliance upon cultural norms and prejudices, which by definition are not universal?
The usual response from natural lawyers is to say that a culture (or an individual) who fails to follow some precept which the proponents derive from natural law is either depraved or perverse: that is to say, like infants or the insane they simply have not attained or have lost the use of reason or have reasoned in error, or they know full well that what they are doing is wrong but persist in doing it out of some innate disordered desire to do what they know full well is “evil.”
This is, however, merely a cloak for cultural prejudices. Allow me to cite one more example from the CE article, which is at some pains to defend the toleration of polygamy in the Hebrew dispensation (“dispensation” itself being a somewhat uncomfortable fit with a supposedly universal and immutable law):
Under no circumstances is polyandry compatible with the moral order, while polygamy, though inconsistent with human relations in their proper moral and social development, is not absolutely incompatible with them under less civilized conditions.
This blatantly sexist (and vaguely racist) declaration is clearly at odds with right reason. If polygamy is permitted (because it advances a primary end of marital union, i.e., procreation) then surely the same is true of polyandry. The rabbinic ruling (cited above) that commands a man whose wife does not bear a child within a certain term of years to take another assumes that the problem lies in the woman. But a woman whose husband is sterile is forbidden to take another man. This stems not from any truly “natural law” but from a firm bondage to patriarchy, in which tracking the patrilineal descent is considered crucial. Obviously matriarchy and family inheritance by matrilineal descent is not only just as “natural” but arguably more secure, as the occasional doubts about paternity do not arise in the case of maternity. In fact, I recall a woman stand-up comedian some years ago deriving quite a laugh from her line, “I don’t have any kids... [proud smirk] that I know of...!” The allowance of polygamy and rejection of polyandry is not objective and rational, but mere cultural prejudice at work. (I do not, by the way, say any of this in defense of either polygamy or polyandry, but simply to point out the inconsistency and sexism inherent in culturally conditioned “natural law.”)
So, is it possible to develop some objective standard that is actually helpful in guiding moral behavior. Clearly, simply to say, “Seek the good and avoid evil,” is entirely unsatisfactory and only begs the question — perhaps giving a useful definition of morality but no actual particular guidance to what constitutes moral behavior. It is rather like telling someone who wants to learn how to spell to use the alphabet.
Some of the hardest moral questions facing us in our day will not yield to a merely doctrinaire and “objective” conclusion. Acts cannot be judged good or bad in the abstract apart from the actors and what is acted upon, and the circumstances and motives underpinning and enveloping the action. Some will judge acts entirely on the basis of their consequences — and all sorts of ethical systems have evolved which attempt to judge the good or ill of those consequences (pleasure, prosperity and well-being of the greatest number, for example). Others will judge acts on the basis of positive laws and duties — surely a rational approach, but hard to put into practice divorced from motive and circumstance. Others will appeal to the social contract for interactions between human beings. Some, such as myself, will fall back upon the moral advice of Jesus in terms of love of God and neighbor.
My point is that the very existence of all of these various systems of morality seriously damage the credibility of the base assertions of natural law — and of all the systems at our disposal, it is the least likely actually to bear useful fruit, given its question-begging, cultural bondage and sterile dogmatism.
Tobias Stanislas Haller BSG
citations of the Catholic Encyclopedia are from the online version of the article: Fox, James. “Natural Law.” The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company, 1910. Accessed 28 Aug. 2011 http://www.newadvent.org/cathen/09076a.htm. The CE received the approbation of the Roman Catholic Church as follows: Nihil Obstat. October 1, 1910. Remy Lafort, Censor. Imprimatur. +John M. Farley, Archbishop of New York.
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