A Postmodernist Defends Natural Law

Tod Kelly sees an inherent danger in the theory of natural law:

For if you believe that there is an absolute Good and Evil — and that these absolutes are knowable — then you tend to favor the systems that most clearly and staunchly define them. You are pushed, ultimately and over time, toward a place where doubt does not exist and is not welcome.  And a lack of doubt concerning what God considers Good and Evil public policy always leads to the disenfranchisement of the Other  — if not in individuals, then certainly in groups. For those who consider themselves warriors of The Truth, doubt is synonymous with moral relativism even though they are in fact disparate things.  One can believe that there is good and evil and still doubt exactly where to draw the line.  And make no mistake: embracing that doubt is necessary in a pluralistic society.

What Tod describes here clearly happens, but I’m not convinced the culprit is the belief in natural law. To believe that there are knowable absolutes of good and evil does not imply absolute certainty that you have the last word on what they are. Saying such absolutes are knowable means simply that they can be apprehended by reason and can therefore serve as a guide to reason. If the precepts of natural law were unknowable, then you’d have nothing on which to base a natural law theory and develop natural law arguments. You wouldn’t know where to begin and where to go. An ethical theory has nothing to say if its principles are unknowable. This goes for any kind of ethics: utilitarianism, consequentialism, Kantianism, you name it.

The first precept of the natural law, classically understood, is that good is to be done and pursued and evil is to be avoided. The good is that which all things seek after—the end to which they are naturally inclined. Naturally here does not mean whatever occurs in nature, as if what happens in nature is by definition morally good. When classical natural law theorists like Aquinas speak of the nature of something, they are speaking of the kind of being that it is. Ontologically, not biologically. So, for example, you and I are rational animals—living beings capable of knowledge, reason, and free choice. We are naturally inclined to preserve our lives and our livelihoods. We seek knowledge of ourselves, one another, and our world. We desire freedom. According to the natural law, these things—life, knowledge, rationality, freedom—are among our natural ends and are therefore included in the good. A secondary precept of natural law, then, would be that we ought freely to know the truth and to live according to it.

All precepts of the natural law follow the logic of the first precept, so developed natural law theories tend to be complex teleological systems. However, not everything the natural law says is absolute. In its first principles, the natural law cannot change without the whole structure collapsing, but you can add or subtract to its secondary principles, and should, as our knowledge about human nature changes, deepens, and expands. Aquinas said as much, though no doubt he’d disagree with some revisions I’d suggest. In my favor, the natural law leaves a lot of room for diversity of judgment and doubt about natural ends. Admittedly, its close ties to the perspectives of scholasticism and later the Enlightenment have kept it grounded to these foundations, and too often appeals to natural law are attempts to pass off beliefs and prejudices in regal philosophical clothing, but its heart is open to pluralism.

In this vein, I like what Aragorn says to Éomer in The Lord of the Rings when the bewildered horseman asks how anyone is to judge what to do in such a time of marvels and strange occurrences. “As ever he has judged,” Aragorn answers, explaining that good and ill don’t change with time or place, but that they must be discerned whenever or wherever people find themselves.  Aragorn appeals to a natural law, but he doesn’t tell Éomer what judgments he ought to make. He counsels discernment precisely because the natural law isn’t a laundry list of moral norms covering every possible situation and circumstance. It’s a guide to the discernment that each person has to make in her unique time and place.

For my part, I tend not to appeal to natural law as it has historically relied on philosophical assumptions I don’t hold.  To my way of thinking, the meaning of human nature owes as much (maybe more) to the productivity of language and thought as it does to what we apprehend in the study of actual human beings. Natural law, so to speak, begins as an interpretation of nature.  It’s rooted in human thought about nature, not in nature itself. It’s a construct and therefore open to deconstruction.

Regrettably, natural law has been used by people in positions of power to oppress individuals and groups; but the problem isn’t natural law, either in its classical conception or my postmodern spin on it.  Natural law thinking could just as easily serve the goal of equality. The problem is the uncritical willingness of those with power to remake the world in their image, others be damned.

Kyle Cupp is an author and freelance writer. Follow him on TwitterFacebook, and his website.

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33 thoughts on “A Postmodernist Defends Natural Law

  1. I agree. There can be fanatics who make natural law claims, but making natural law claims does not seem to be a particularly good indicator of fanaticism. Divine command claims seem to be the real problem.

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    • I think almost any theory is open to abuse by those so inclined. I’m pretty sure that if we wait long enough, either tyranny and poverty will all be very nearly abolished or some petty tyrant would come along and abuse Rawls, Nozick or Rothbard in order to justify all sorts of oppressive bullshit.

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    • , did you see my comment to Tod’s post? (Near the bottom. Sorry, copy/pasting and such seems beyond the version of Android on this old phone.) Tl;dr version: I see what you and Judge Moore are doing as fundamentally different things. In fact, I would go so far as to say that Moore is actually doing positive law with God replacing human legislatures and judges and Moore acting as His self-appointed representative. The real issue for me is the “divine command” thing which, of necessity, has to allow for arbitrary and capricious will of the deity.

      Your project, which I interpret as trying to devine logically some kind of moral order baked into the universe or mankind, seems fundamentally different. It feels like an attempt to build a castle on a floating chunk of unobtainium to me, but at least your result has the virtues of constancy and consistency and universality.

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  2. This is a good breakdown of the subject, Kyle (of course, since I tend towards the pomo, I would say that, wouldn’t I?).

    I thought Tod’s piece was good. I thought he covered the specific topic (that politician dude) well, but I wasn’t comfortable with the extrapolation onto Natural Law overall. I think you’ve added the necessary nuance.

    I’m not really averse to the idea of Natural Law. There are some aspects of it to which I could be amenable. However, like you, I just don’t find it particularly useful, and I find it has too much baggage.

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  3. Philosophy, as classicly practiced, addresses three big questions: 1) how do we know what we know? 2) how do we know what is good? 3) how shall we govern ourselves?

    It seems that the notion defended here is natural law as a school of moral thought, a way to address the second question rather than the third. I see that in Kyle’s description of immutable first principles translating into malleable second principles.

    It’s the next step in the process that interests me, and that I think were the focus of Tod’s post to which this is a partial riposte. That’s when you move on to the third Big Question and translate those culturally-specific second principles into positive law through some sort of governmental, political process. I’m not all that sure how the thoughts expounded in the OP reach that process.

    In other words, were I to concede that there is a knowable, objective Good (whatever that might be) that doesn’t get us to a positive law that teleologically oriented towards achieving that Good, nor at the notion that this is what the positive law ought to do in the first place. I still agree with Tod’s point that this process seems to always be corrupted whether cynically or by confusing a preference for a principle, resulting in the government working evil rather than good and the natural lawyer faced with the dilemma of obeying either the True Law to vindicate the good at the risk of punishment, or the positive law to stay out of trouble at the expense of a stained conscience.

    We might be able to derive a system of morals using this method. Whether, should we do so, the resulting morality is truly teleologically oriented to the first principles is difficult if not impossible to know, but of course we would try our best. But I still maintain that turning those into rules enforced by the government’s monopoly on violence is an endeavor faced with near certain doom. Certainly, I can think of no historical example of any society to have threaded this needle.

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    • Good question, Burt. In the Catholic tradition, which is also a natural law tradition, you see a distinction made between the moral principles that the church teaches and the prudential judgments that individuals have to make when applying those principles to concrete situations. For example, the church states the principles of just war, but it doesn’t (usually) judge particular wars to be just or unjust, at least not in a way that requires the assent of the faithful. You’ll see bishops occasionally get behind or oppose specific legislation, but the laity in the pews don’t actually have to agree with them (usually)*. If natural law works (and I’m not sure it does), the most it can provide are principles or norms. It’s up to individuals or specific bodies to assess the situation on the ground and determine how best to address the situation in light of the principles.

      *Some laws the church will take an absolute stand against and require obedience from the faithful. These would be those laws that blatantly contradict the church’s principles.

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  4. Again, the Natural Law theory of morality is not the same thing as Natural Law Theory in philosophy of Law.

    And belief in Natural Law theory of morality is not the only kind of moral realism or moral absolutism.

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  5. Naturally here does not mean whatever occurs in nature, as if what happens in nature is by definition morally good. When classical natural law theorists like Aquinas speak of the nature of something, they are speaking of the kind of being that it is. Ontologically, not biologically. So, for example, you and I are rational animals—living beings capable of knowledge, reason, and free choice. We are naturally inclined to preserve our lives and our livelihoods. We seek knowledge of ourselves, one another, and our world. We desire freedom. According to the natural law, these things—life, knowledge, rationality, freedom—are among our natural ends and are therefore included in the good. A secondary precept of natural law, then, would be that we ought freely to know the truth and to live according to it.

    Excuse my absolute ignorance here, but all of this falls apart here for me. We go from here you and I are rational animals to the nature of something, they are speaking of the kind of being that it is. Ontologically, not biologically (though they are presented in opposing order in Kyle’s writing).

    There’s some abstracting of humans up and out of a ‘natural order,’ a setting them apart, outside the system. This makes no sense to me at all; I see it is a tendency rooted in human ego. We are not outside, above, or separate from, but part of. I realize that this is because it is difficult to see good and evil ontologically, to separate one person’s murdering another from the cat murdering the mouse; but I think you can get there through cognition. As we rise above ‘nature’ to define good and evil and regulate it, if we don’t dip back down into nature and see how that regulation functions on the ground, we fail to hold ourselves accountable. Visually, it’s a sine wave; and we tend to want to only look at the peaks and avoid the troughs.

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    • Most natural law theorists would say that human beings are not outside, separate, or above nature, but they do argue that human beings are a different and higher kind of being, ordered toward ends that other animals are not directed.

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      • Most natural law theorists … argue that human beings are a different and higher kind of being, ordered toward ends that other animals are not directed.

        Well, they might benefit then from studying biology.

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      • is there a proper word for thinking humans are not part of nature, from seeing themselves totally outside the process of nature most of the time? Because it’s a pretty common assumption in most people’s thinking at least some of the time. We sorta pride ourselves for being above nature, and we venture into it to challenge ourselves, like the gods testing themselves amongst the humans.

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      • Devils advocate.

        “Most natural law theorists would say that human beings are not outside, separate, or above nature, but they do argue that human beings are a different… kind of being, ordered toward ends that other animals are not directed.”

        I am in no way a believer in natural law, but If I drop the term “higher”, I think someone could argue a strong case that humans are different in several essential ways. Rationality, moral intuitions and complex culture do make humans fundamentally different in important ways from other animals. Consider it a phase transition.

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      • that is the hubris in question.

        We may get to another planet in our system in a capsule that is not a biosphere, but we’ll make it outside this system in something that is not a biosphere and I suspect that at least some components of the biosphere that arrives at some distant planet won’t be the same species that left Earth. And here on Earth, there are some members of our biosphere that, change the balance, could push us over numbers of tipping points.

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      • I don’t know. Religion almost seems to cover it, but I suppose there are those who share that view without actually being religious.


        Animal behaviorists have demonstrated rationality, and foresight in other animals, and those plus moral intuitions in other primates. There is also culture demonstrated in animals ranging from birds to primates, although nothing as complex as ours. Language also. As far as I can tell, the only differences we can still rely on–or so we hope–is metacognition (thinking about thinking/meaning) and various things related to that, such as philosophy and religion. But those are most plausibly just evolved traits as well. Do they make us different in important ways? Sure. But in the end reproduction is still our primary motivator.

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      • Religion almost seems to cover it, but I suppose there are those who share that view without actually being religious.

        Seems to me religion usually does the opposite, reinforces the notion of man as separate, made in god’s image, not part of the strum and drang.

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      • Ah, no, I was confused by your answer; just verifying your meaning by expressing it a different way. The essence of my interviewing technique, that.

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      • Hi James, thanks for responding.

        The key term in my comment was “phase transition.” The fact that culture, rationality and moral intuitions arise from biological evolution and have been found in limited degrees in other species is not in dispute.

        “Do they make us different in important ways? Sure. But in the end reproduction is still our primary motivator.”

        Yes, they make us quite different. One key difference is that, to paraphrase De Waal, humans tend to think in terms of acceptable and unacceptable behavior, while other primates tend to think in terms of accepted and unaccepted. This is an essential part of what separates a moral from an amoral species. The difference could be considered a phase transition to an entirely different behavioral smorgasbord.

        Another key difference is the sheer extent and complexity of human culture. Although a few other species have a small arsenal of culturally transmitted tricks, humans are the only species with two complex adaptive evolutionary learning systems. We have the slow, steady biological one shared by other species, and have the fast-changing, quickly spreading and accumulating cultural system. This is an essential phase transition which makes humans different and in some ways incomparable to other species without culture or where culture is extremely limited.

        And no, reproduction is absolutely not our prime motivator. Indeed, I would be willing to bet that neither you nor I have ever met a fellow human focused primarily on optimizing the number and success of offspring.

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      • Roger,
        Actually, humans think in terms of “acceptable” and “naughty” and “evil” — most particularly when we’re talking about the sex drive.

        Humans are game theorists just like every other animal is. and because of that, our moral intuitions are very different from our ethical ones. Which, granted, is not to suggest that we’re all identical. Because we very much aren’t.

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  6. Kyle: “The first precept of the natural law, classically understood, is that good is to be done and pursued and evil is to be avoided”

    This first precept is tautological. Anyone, except perhaps psycopaths, would disagree. But it doesn’t say yet what is good and what is evil.

    Kyle: “To believe that there are knowable absolutes of good and evil does not imply absolute certainty that you have the last word on what they are. Saying such absolutes are knowable means simply that they can be apprehended by reason and can therefore serve as a guide to reason”

    This where natural law loses me. Everyone seems to say””absolute good and evil can be known. Mind you, I don’t claim I particularly know them, but I believe they can be known”

    So if you, and you, and Tod, and Kyle, particularly, don’t know what absolute good and absolute evil are, who does? If no one, them perhaps, just perhaps, it is really not knowable. Ít can only be experienced particularly. This particular thing in these particular circimstances is good, this other particular thing in these other circumstances is evil.

    And from there on, we can try to build by analogy. If that particular thing was good in those circumstances, it might be good in these Let’s try it and see what happens (like “marriage is in general good for families headed by opposite sex couples, it might be good for families headed by same sex couples, let’s give it a try”).

    Kyle: “The good is that which all things seek after—the end to which they are naturally inclined” Sowhat are quasars inclined to? Are quasars not things? tornadoes? penguins? rhinoviruses? doors? Do quasars and penguins and rhinoviruses and doors seek the same thing? And do we know what they seek?

    Kyle: ” In my favor, the natural law leaves a lot of room for diversity of judgment and doubt about natural ends” If it does (and yes, I belive this is in your favour, Kyle), then natural law it is of very little use, because it can’t go beyound the tautology of good is good and evil is evil, but we are not sure, nor can ever be, exactly what is teh boundary.

    And taht brings as to Aragorn: Yes, you have to judge as you always did: you look at the thing, and the circumstances of the thing, and rule it good and evil as best you can, without a proclamation about what is end -the telos- of the thing, because that end, Iluvatar has not yet revealed , neither to the Maiar, nor to His children.

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    • “But it doesn’t say yet what is good and what is evil.”

      Correct.

      “If no one, them perhaps, just perhaps, it is really not knowable.”

      Perhaps so. But you won’t hear natural law theorists say that these absolutes are unknowable. If they said so, they wouldn’t be advocates of natural law.

      “Sowhat are quasars inclined to? Are quasars not things? tornadoes? penguins? rhinoviruses? doors? Do quasars and penguins and rhinoviruses and doors seek the same thing? And do we know what they seek?”

      We can observe what they seek–the end to which they go. There are some shared ends. Penguins and rhinos both seek sustenance, for example.

      “Yes, you have to judge as you always did: you look at the thing, and the circumstances of the thing, and rule it good and evil as best you can, without a proclamation about what is end -the telos- of the thing, because that end, Iluvatar has not yet revealed , neither to the Maiar, nor to His children.”

      I’m not sure you need revelation in order to have a teleology.

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  7. Kyle: A great response, as I had expected. I agree with most of what you say here (and Jason says above), save one tiny but important bit. Indeed, the exact bit of my post you chose to quote is where our disagreement lies, I think.

    You say this:

    “However, not everything the natural law says is absolute. In its first principles, the natural law cannot change without the whole structure collapsing, but you can add or subtract to its secondary principles, and should, as our knowledge about human nature changes, deepens, and expands.”

    As I noted in my own post, I am very willing to grant that individuals can start with the point of a Good/Evil universe and end up, say, where Jason does. (The fact that Jason does is proof of this, obviously.) Where I split with the two of you is the direction a focus on a Good/Evil universe inevitably nudges groups of people.

    Groups tend to think without nuance. This is why, I believe, Roy Moore is an inevitable outcome of groups embracing natural law. A focus on Good/Evil in an individual can be inspiration for self-refelction; in a group, it becomes a demand to root out and eliminate evil — and groups are rarely discriminating in such activities. Indeed, I firmly believe that if you made a list of the 100 most evil events in history and lopped off those that were the acts of individuals who were clearly one-off nutjobs (e.g.: Jeffery Dahmer), you would find that almost all (or maybe even all) were the outcome of groups of people buying into this notion that we live in a Good/Evil universe and that something should be done to tip the scales in favor of Good.

    It’s obvious that I am far more cynical than you, but I really do believe having your starting point being Good/Evil leads to men gathering to do evil.

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    • Thank you, Tod. Who would you include and not include in groups demanding to root out and eliminate evil? Would you include, say, humanitarian groups that work to reduce poverty or crime or other social ills? Feminist groups that strive to eliminate sexism, misogyny, and patriarchy? Maybe I’m reading you wrong, but it seems to me that any group trying to make the world a better place is operating on some notion of good/evil.

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      • My time is limited this afternoon (apologies) so let me just address the fist example on your list and hope that it can be extrapolated to my larger point:

        “Would you include, say, humanitarian groups that work to reduce poverty or crime or other social ills? ”

        Yes, but here’s the thing: Most people I know who go into humanitarian/nonprofit work don’t start from a point of Good v. Evil. Sure, they may believe in good and evil, but it isn’t their starting point.

        Rather, they start from a square that can best be described as “helping their fellow man.” Now, this may lead down a path where they late consider good and evil, but when considering those kinds of questions they filter them throughout the prism of “helping their fellow man.”

        My experience is that that works substantially different than, say, someone who wonders whether they should help or harm particular members of their fellow man and runs those questions through the filter of “what side of Good and Evil are they on?”

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