Long on Porter: Social Mediation and Embededness of Natural Law

JEAN PORTER'S VIEW OF THE NATURAL LAW as a "capacity" instead of an actual motion or teleological ordering affects her "nuanced elision" over the "close-in" teleologies or "metaphysical biology" as we discussed in our last posting. Long, 164. However, Steven A. Long points to another effect of Porter's view of the natural law as mere "capacity," and this relates to her notion of the social mediation or social embededness of the natural law. Porter, for example, talks of things such as "a variety of adequate expressions of our nature," "socially particular expressions of the natural law," "natural moralities," and so forth. Porter, in Long's view, tends to deemphasize the content of the natural law (especially in the area of the determinations*) and overemphasize the role of social mediation or social expression of the natural law, so much so that Porter comes close to talking about "natural laws" and not a natural law.

The intelligibilities of human nature inform social norms, and for that reason we can analyze and evaluate particular moralities in terms of their natural origins. In that sense, the Thomistic theory of the natural law is a realistic theory, and implies a version of moral cognitivism. Yet the intelligiblities of human nature underdetermine their forms of expression, and that is why this theory does not yield a comprehensive set of determinate moral norms, compelling to all rational persons.

Long, 166 (quoting Porter) (emphasis added).

It is unquestionable, in fact "manifestly true," Long, 170, that, with respect to its more remote determinations (though not necessarily in its more proximate determinations), the natural law does not come down from heaven ready-made. There is no heavenly rule that requires us in the United States to drive on the right side of the road, and yet such a rule coincides with the natural law that we ought to structure or manner of living so as to minimize the loss of life and increase social order. In the concrete, both historical and social, the natural law "underdetermines the more remote precepts closer to the concrete circumstances of the person," and is therefore affected by "contingent social conventions and custom." Long, 166. We must, moreover, have a grasp of the social circumstance and setting and indeed other sciences (which themselves may be conditional and contingent) in order to apply natural law moral principles. With respect to the natural law and its application in all manner of contingencies, there is a lot of play in the joints in the area of remote determinations.

But there is a huge difference between advocating "plural moralities" versus "plural social embodiments of one morality." When is it that our accommodation to the realities of the contingent aspect of the natural law in its remote determinations turns from a theory of concretization of objective law to a theory of sheer relativism? When is it that we lose the ability to discern the accidental determinations which rely on contingent circumstances from the essential kernel of natural law? If we overemphasize the social mediation and social embededness of natural moral norms sufficiently, it may be that we end up with the view that we never have access to the natural morality since it always comes with its social and contingent cover. We may end having unwittingly traveled into the realms of relativism and moral agnosticism. It is as if we can never really know nature because it always comes dressed in the relative dress of contingent social circumstances, and since we ourselves suffer from contingent social circumstances we do not have the tools to peer under the contingent cover and see the natural law naked. Unlike the Prime Minister of Spain during Francisco Goya's time, Manuel de Godoy, we will never see La maja desnunda, but only see La maja vestida.

La maja desnuda and La maja vestida
by Francisco Goya

So to be true to a natural law theory, must have a method by which we may separate out the contingent from the essential:

[S]ocial mediation of natural law judgment by convention and custom, while permeating, is nonetheless in principle reducible to circumstance (one implication of this is, for example, that there are per se mala acts, acts that by their natures are evil irrespective the particular conventions of any society). Once it is clear that diverse circumstances may be governed by the same principles, it seems to be the case that there is an intelligibly unifying body of precepts, and that the extension of these within diverse social matter may indeed evoke and require creativity and connatural awareness without for all that yielding plural moralities as distinct from plural social embodiments of one morality.

Long, 167. We have to be able to say that "there is only one natural order," and "so only one possible 'morality,'" albeit "embodied in diverse customs and conventions." Long, 168. It is in this area that Porter's notion of natural law as "capacity," coupled with her distrust of "in-close" teleologies, hamstrings Porter. In Long's view:

[B]oth the construal of the natural law as at root a "capacity," and the reluctance to draw any limited ethical implications whatsoever from the knowledge of close-in teleology, seem likely to affect one's view of the degree to which natural law judgment is at the mercy of contingent social fact. Surely it is, to some degree, at the mercy of contingent social fact, but this may nonetheless be understood as a function of the embodiment or instantiability of moral truth within social matter. Nature abstracted as a whole is both formal and yet includes the common matter of the definition.

Long, 168. But if we find ourselves unable to ferret out the natural from the conventional, if we say that we will never see the naked Maja of the natural law, but that we are condemned always to see the clothed Maja of the law always covered up in contingencies, then we have lost our moorings from the objective and are doomed to travel, to change metaphors from painting to sailing, in the waters of relativism in a philosophical Flying Dutchman.

[I]f social contingencies render natural law an indeterminate guide; if we cannot move from natural teleology to any howsoever limited initial ethical conclusions; and if the natural law is more properly seen as a remote potency than as at root an actual impressed ordering of human nature in its rational unity toward the Good, then how, for Dr. Porter, will natural law be able to serve as a basis for social, political, and legal order--either within one society, or, more pressingly, among different societies?

Long, 171.

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*The distinction between the various "levels" of the natural law from fundamental precepts to conclusions to determinations is treated in various places in prior postings, but one may conveniently refer to The Gordian Knot of Natural Law as a start. As Long observes regarding the nature of these determinations (and this is an important point): "[N]ot all such determinations are equally remote from the form they particularize. That some given determination is not derived from the natural law as a principle does not make it utterly contingent, for the nature of the matter varies from instance to instance." Long, 169. There are "degrees of necessitation" in determinations. Moreover, one must not forget that there are certain conclusions that are much closer to the heart of the natural law than the more or less remote determinations. "[T]he reality of determinationes, which are prudential extensions and applications of natural law principle with respect to diverse social matter, should not obscure the truth that there remain also conclusions from the natural law." Long, 170.

Contra Consequentialismum: Contractual Conundrum

ODERBERG OBSERVES HOW HIS THEORY OF RIGHTS departs starkly from that notion of rights that was advanced by the social contract thinkers. His criticism is levied against those who believed that the social contract which took us out of the "state of nature" was historically real such as Hobbes, Locke, and Rousseau. But it equally applies to the likes of Kant or Rawls, who did not think that the social contract was a historical fact, but simply a convenient way of thinking of things, a heuristic device, as it were.

Falling Through the Conventionalist Trap Door

If one believes that rights originate with the social contract--whether it is real or hypothetical--one has fallen through a conventionalist trap door into a cellar of relativist morality. All morality will be a matter of convention, and there is virtually no limit to the conventions that men can make among themselves, and all morality becomes a matter of convenience. The conventions that may be imagined can easily turn out to be very repugnant, depending on the bias of the one making the contract, and the social contract theorists have come up with devices (such as the Rawlsian "veil of ignorance" and "difference principle") whose aims are to remedy the fundamental defect in the theory. A lot of these devices begin to smell like pre-existing ethical principles which are suggestive of a system of right and wrong that is given.

One of the biggest hurdles confronting a social contract theories is the issue of bindingness of the contract. Why should any person be bound by the supposed convention? If the contract is hypothetical, as distinguished from historical, the problem becomes even more apparent. It is bad enough for me to be bound by some compact made long in the past, and about which I had no say. But to be bound by a contract that is not even real, but hypothetical, seems to be an absurd limitation on freedom of action.

Some social contract theorists suggest that the social contract, whether real or hypothetical, binds because of its rationality. But that simply begs the question by placing it a bit further back and transforming it to the question: Why is the social contract rational?

To avoid the conventionalist trap, some conventionalist suggest that there is an underlying reality, "an unchanging, prior notion of individual benefit and harm from which follow the foundational and subsidiary principles governing the contractualist decision procedure." Oderberg, 65. But, if so, then it would appear that the greater reality is not the social contract, but this reality behind it.

So the social contract theorists finds himself perpetually in a dilemma. Either he takes the position that the social contract is good because it is binding or he takes the position that it is binding because it is good. If he takes the first route, he falls into the pit of conventionalism in ethics, and all is relative. If, to avoid this result, he takes the second fork, the social contract theory itself becomes of secondary importance because the greater reality is the "good" that is presupposed and enforced by the social contract. In the latter case, the social contract is "theoretically dispensable."

By "theoretically dispensable" I mean that it does no work in accounting for the origin of morality in general and rights in particular. The work is being done by a prior notion of the good and of the rights and duties flowing from that notion properly analyzed. . . . Any social arrangement, to be just and desirable, must be ordered according to the true system of morality.

Oderberg, MT, 65. Which is, of course, another way of saying that any social arrangement cannot violate the natural moral law, since that is the theory that insists that morality is not conventional, but based upon the nature of things.

C'mon guys. Isn't it time to admit the social contract theory is a failure?

Leo Strauss and Natural Right: Hidden Nature, Hidden God

PHILOSOPHY DISCOVERS BOTH NATURE AND ITS MAKER, the contingent and the necessary, permanent, eternal First Cause--God. Nothing comes from nothing. De nihilo nihil. Nature--the first things or the right way--comes from the necessary, permanent, eternal. Philosophy thus leads us from phenomena to nature and unto God.

Nature would not have to be discovered were it obvious, were it not hidden. God is Deus absconditus. Nature is likewise recondite, hidden: natura abscondita. In part, nature is hidden by convention, by human custom, by human law--nomos.

Man cannot live without having thoughts about the first things, and, it was presumed, he cannot live well without being united with his fellows by identical thoughts about the first things, i.e., without being subject to authoritative decisions concerning the first things: it is the law [nomos] that claims to make manifest the first things or "what is." the law, in its turn, appeared to be a rule that derives its binding force from the agreement or the convention of the members of the group.

Strauss, 91.

Here, perhaps, is the germ of animosity between politics, especially arbitrary power, and philosophy and the natural law. Both philosophy in general, and the natural law in particular, challenge the artifice, the convention that man seeks to impose, perhaps first as an expression of the first things and the right way, but later, often in a sort of creeping challenge or perhaps a slow ossification or sclerosis, in substitution of, or in contradiction to, nature. So philosophy in general and the natural law in the area of morals in particular, seek to go beyond or behind convention to the mother of all customs, the custom of all customs, the tradition of all traditions:

Nature is the ancestor of all ancestors or the mother of all mothers. Nature is older than any tradition; hence it is more venerable than any tradition. . . . By uprooting the authority of the ancestral [and a fortiori the conventional], philosophy recognizes that nature is the authority.

Strauss, 92. It is an authority, but Strauss clarifies, perhaps better referred to as the standard, as it is reason or understanding that discovers nature through abstraction of reason from sense perception, and so nature is never known except through reason. It is the latter that may be said to be the authority that both discovers and then applies the standard.

As Strauss observes the discovery of nature, which means also the distinction between nature and convention, is a necessary but not sufficient condition for the discovery of natural right. The reason why the discovery of nature is not enough to inform us of natural right is that it may be that all right is conventional, and there is no such thing as natural right. Nature may be bereft of right. It may be beyond good and evil, a sort of premoral given, like the nominalists or voluntarists would liken God. It is still possible--even after having discovered nature--that God, for example, simply does not care about justice. He is far above us, an Olympian. He is far away from us, a Deistic self-regarding not communicating, not a Providential God.

God [it may be] is not concerned with justice in any sense that is relevant to human life as such: God does not reward justice and punish injustice. Justice has no superhuman support. The justice is good and injustice is bad is due exclusively to human agencies and ultimately to human decisions.

Strauss, 94. Indeed, it is precisely the rejection of "particular providence" that is father of such a thought. That thought comes into the mind of man when he stumbles upon the scandal of particular providence, a scandalous providence that states that God regards the number of hairs on our head, or that he concerns itself with the fall of the sparrow. (Cf. Luke 12:6-7) If so, we doubt, where is the proof of it? The vast cosmos seems indifferent to our plight. It appears, for example, not to have answered the prayer of the Jew caught within killing camps, the Vernichtungslagers and the Todeslagers of the Nazi. It appears sublimely unconcerned in the main. It is possible to get stuck in the apparent disconnect between Providence posited and Providence realized. So, for example, Simone Weil could not jump the gap, and separated the world of nature from the world of God. But Strauss thinks that there is an Aristotelian--etiamsi daremus non esse Deum--way around the problem, that "the example of Aristotle alone would suffice to show that it is possible to admit natural right without believing in particular providence or in divine justice proper." Strauss, 94. So technically, the light of the Gospel, or even belief in a providential God, is not required to believe in natural law or natural right. This, at least, is Strauss's view. He would expand the tent of the natural law and natural right to bring in those who harbor doubt, perhaps even disbelieve, in the God of revelation, and even in the God of natural theology.* For Strauss, natural right and natural law exist, etiamsi daremus non esse Deum.

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*Strauss cites Aristotle, Nicomachean Ethics, 1178b7-22, Socinus, Praelectiones theologicae, cap. 2, Grotius, De jure belli ac pacis, Prolegomena § 11, Leibniz, Nouveaux essais, Book I, chap. ii, § 2, and III, chap. 16 and II chap. 6 of Rousseau's Social Contract. I am not sure of it. It seems to me that there is a greater connection between the providence of God and the rule of the cosmos (including man)--the eternal law--and natural law or right, which is nothing less than man's participation in the eternal law. While the difficulty of believing in particular providence may be conceded, its existence need not. We must ever realize that our sights are limited. We have no ability to see sub specie aeternitatis, under the light of eternity. And we certainly have no ability to encompass the entirety of the cosmos so as to become privy to the particular plan of God for each of his creatures in particular and the cosmos as a whole. There has to be room for faith, even if intellectual and not supernatural, in a philosophy of natural law or natural right. We have addressed this issue before: see Natural Law: Ecstasis and Telos and Potpourri of Natural Law, though a lot more could be said about it. Moreover, we have to remember that particular Providence may be hidden because of our sin, because of others' sins, because of convention, or a combination of all three. In the maw of Auschwitz, where God's providence was hid, as it were, with the black drapes of institutionalized and personal sin and wicked convention--like our statues draped in purple cloth during Lent--St. Maximilian Kolbe was able to look past all these veils and never disbelieved God's particular providence even in extremis. Indeed, he was a vehicle of particular providence for Franciszek Gajowniczek, the Jewish father and husband whose place he volunteered to take in a starvation cell.

Leo Strauss and Natural Right: From We to I, From Ours to What Is

AUTHORITY IS QUESTIONED BY PHILOSOPHY, and by its adjuncts, natural law and natural right. Confronted with the legion of authoritative "divine codes," divine laws and commandments, even in matters of the "way" and of "first things," how is one to chose? They cannot all be right. And even if they are all conventional, at least one view is not. "The view that the gods were born of the earth cannot be reconciled with the view that the earth was made by the gods." Strauss, 86. Even less can the existence of gods, whether earth-bearing or earth-born, be reconciled with the I AM WHO AM, the Ehyeh asher ehyeh, אהיה אשר אהיה‎, who revealed himself to Moses. Here, then, is the fundamental question whether one be Jew or Greek, Muslim or Hindu, Buddhist or Shinto, Atheist or Agnostic:

[T]he question arises as to which code is the right code and which account of the first things is the true account. The right way is now no longer guaranteed by authority; it becomes a question or the object of a quest. . . . It will prove to be the quest for what is good by nature as distinguished from what is good merely be convention.

Strauss, 86.

So how is this quest for the first things and the right way to be engaged? If authority cannot be relied upon because of the clamor and inconsistency of the number of authorities "The philosophic quest for the first things presupposes . . . that the first things are always and that things which are always or imperishable are more truly being than the things which are not always."
--Leo Straussand no single authority to distinguish among the true and the false, then in our quest for the first things and the right way where are we to turn? If, because the number of authorities making claims, we are not to able simply to rely upon authority, are we to rely on "hearsay," or are we to rely on what we see "with our own eyes." That is, do we rely on indirect evidence or on direct evidence of what is the right way and the first things? Direct evidence is considered superior to indirect evidence, and so the philosopher for the first time was able to oppose the "I" to the "We." The search for first things and the right way became personal.

Judgment on, or assent to, the divine or venerable character of any code or account is suspended until the facts upon which the claims are based have been made manifest or demonstrated. They must be made manifest--manifest to all, in broad daylight. Thus man becomes alive to the crucial difference between what his group considers unquestionable and what he himself observes; it is thus that the I is enabled to oppose itself to the We without any sense of guilt.

Strauss, 87. But this "I" which engages in pursuit of the right way and the first things is not an autonomous I. "But it is not the I as I that acquires that right" to oppose itself against the We. That would be merely to shift the authority from the group to the individual. This is no forward progress at all; indeed, it is arguably a negative progress."The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy."
--Leo Strauss It would be to splinter authority and exacerbate the problem of finding the right way and first things. Instead of social or group answers in the dozens, we have individual answers in the millions. The vision that must govern the "I" is not a private, idiosyncratic world. The I must look for "the one true and common world perceived in waking," and reject "the man untrue and private worlds of dreams and visions." Strauss, at 87. The "I" that separates itself from the "We" is man as man. The things that are looked at as the source of standard are things as things, not things made by man. We are relegated to the only possible source for sifting and parsing through the multiple answers posited by authority and private dreams to find what is true: nature, the natural reality of things, things that are not made by man, but by the Creator:

Thus it appears that neither the We of any particular group nor a unique I, but man as man, is the measure of truth and untruth, of the being or nonbeing of all things.

Strauss, 87. So, ultimately, objective reason, both speculative and practical, must be retained to help us select among rival versions of ultimate reality. The natural law is what helps us determine which rival versions of reality are false (a religion whose moral teachings violate the natural law is to be rejected). Natural philosophy likewise helps us determine which rival versions of reality are false (a religion that teaches contradictory things, or whose doctrines are against reason is to be rejected). The nature of things, then, was the judge of the false oracle from the true. But this philosophical quest had also to distinguish between things of man and things that are of nature prior to man, things that are permanent and things that are not:

Nature was discovered when man embarked on the quest for the first things in the light of the fundamental distinctions between hearsay [indirect evidence] and seeing with one's own eyes [direct evidence], on the one hand, and between things made by man and things not made by man, on the other. . . . In brief, then, it can be said that the discovery of nature is identical with the actualization of a human possibility which, at least according to its own interpretation, is trans-historical, trans-social, trans-moral, and trans-religious.
. . . .
The philosophic quest for the first things presupposes not merely that there are first things but that the first things are always and that things which are always or are imperishable are more truly beings than the things which are not always . These presuppositions follow from the fundamental premise that no being emerges without a cause or that it is impossible that "at first Chaos came to be," i.e., that the first things jumped into being out of nothing and through nothing. In other words, the manifest changes would be impossible if there did not exist something permanent or eternal, or the manifest contingent beings require the existence of something necessary and therefore eternal.
. . . .
Once nature is discovered, it becomes impossible to understand equally as customs or ways the characteristic or normal behavior of natural groups and of the different tribes; the "customs" of natural beings are recognized as their natures, and the "customs" of the different human tribes are recognized as their conventions. The primeval notion of "custom" or "way" is split up into the notions of "nature," on the one hand, and "convention," on the other. The distinction between nature and convention, between physis and nomos, is therefore coeval with the discovery of nature and hence with philosophy.

Strauss, 88-90.