Natural Law: A response to D.B. Hart

In Understanding Natural Law, R. J. Snell, an associate professor of philosophy and director of the philosophy program at Eastern University, responds to David Bentley Hart's original First Things article about natural law.

Here's the second part of Snell's article; the first part is a summing-up of Hart's original argument.  This is especially interesting to me at the moment; what's being said bears strongly upon what human beings can say about "morality" in language that doesn't depend directly on religious ideas, or on "revelation."   This is one of the basic conversations happening all around us now, and so much of what's said currently is entirely dependent upon unexamined premises.

Natural Law Doesn’t Derive Ought from Is

First, despite its centrality to Hart’s rejection, in no way does natural law theory derive what ought to be from what is; if anything, contemporary theorists are often criticized precisely for refusing to ground practical reason on theoretical anthropology or metaphysical claims about nature.

In Natural Law and Natural Rights, for instance, John Finnis writes that natural lawyers “have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation . . . the most popular image of natural law has to be abandoned. The corresponding and most popular objection to all theories of natural law has to be abandoned, too, and the whole question of natural law thought through afresh by many.” “It is,” he continues, “simply not true that ‘any form of a natural-law theory … entails the belief that propositions about man’s duties and obligations can be inferred from propositions about his nature.’”

Principles of practical reason are not derived from factual claims about nature or metaphysics, not only because Hume was correct on that point, but because first principles are not derived from anything—they are entirely underived. Neither are they innate, although they are self-evident; grasping them entails “no process of inference” but rather an “act of non-inferential understanding.”

Such understanding is hardly supernatural, for it is the ordinary act of insight whereby we grasp what is intelligible. For Finnis, we begin with the data of our own inclinations and purposes for acting; some goods, we realize, are insufficient reasons for acting and thus merely instrumental—we do not brush our teeth as an ultimate good but as conducive to health, and do not seek money for itself but for what it allows—while other goods require no further explanation. I can intelligibly ask “why do you want the promotion?” in a way I cannot ask “why do you want to be happy?” The answer to both those questions might be “to be happy, of course,” indicating that happiness is ultimate in a way the promotion is not. But I’ve not inferred anything from nature in doing so; I’ve just recognized what it is that makes my action purposive.

Similarly, Martin Rhonheimer agrees that natural law does not “read off” morality from nature, a naïve physicalism. Natural law does not have physical nature (ordo naturae) as its measure, but rather the governance of reason (ordo rationalis) insofar as practical reason intends goods attainable by action. In desiring goods, practical reason directs action—Seek this! Avoid that!—and it is precisely these judgments (not deductions or derivations from nature) that are the natural law operative in voluntary action.

Unlike the Hart/Potemra version, Finnis and Rhonheimer never consider reading ethics off human nature but rather develop their anthropologies and metaphysics of human nature from their account of practical reason. Finnis, for instance, suggests in Fundamentals of Ethics that “epistemologically . . . human nature is not ‘the basis of ethics’; rather, ethics is an indispensable preliminary to a full and soundly based knowledge of human nature.” Likewise Rhonheimer, for whom knowledge of one’s own nature “cannot be derived from metaphysics or anthropology,” but rather “metaphysics and anthropology . . . are not even possible without” practical reason’s reflection on its purposes and inclinations. Hart and Potemra have it precisely backwards.

The Difference Between Practical Reasoning and Morality

Second, it is not the case, as Hart claims, that the natural lawyer “insists that the moral meaning of nature should be perfectly evident to any properly reasoning mind.” Not only is moral meaning not derived from nature, but the relation between principles of practical reasoning and principles of morality is more nuanced than Hart indicates, and it takes reasoning—not immediate and obvious intuition—to arrive at moral knowledge.

The first principle of practical reasoning is not as yet a moral principle, for the first principle of practical reasoning—“good is to be done and pursued, and evil is to be avoided”—directs us to intelligent and purposive choice without yet telling us the proper way to conduct that choice. The difference is subtle but substantial, implying that basic human goods are, as yet, pre-moral. While directing us toward purpose, practical reasonableness is in itself no guarantee of moral action, merely of intelligible action, and immoral action need not be senseless.

Distinctly moral principle is needed to determine how we are to keep the precept of practical reasonableness, “the way we are to pursue the good and avoid evil,” as William E. May articulates the distinction. The first principle of morality is not “do good and avoid evil”—for even immoral choices might do this—but rather “one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment,” a notion requiring yet additional specification of moral norms and even further application regarding issues such as abortion, lying, marriage, and so on.

In fact, if one reads very much of contemporary natural law theory, one finds that applying specific moral norms can be rather taxing, as, for example, when the norm “direct killing of an innocent life is always wrong” does not tell us if craniotomy is direct killing in cases when a physician attempts to save the life of a woman in delivery by crushing the head of the baby.

Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions. In short, determining the rightness or wrongness of concrete actions takes thought, not just a passive gaping at nature. That natural law theorists conclude that some acts are intrinsically evil, without exception, does not mean that conclusions are immediate, obvious, and attained without thought.

What’s Self-Evident in Natural Law?

Third, while it is true that the first precepts of practical reasonableness are self-evident, natural lawyers certainly don’t suggest wickedness or stupidity as the necessary cause when someone fails to reach proper conclusions about concrete actions. As articulated above, self-evidence means only non-inferred or underived, suggesting neither innateness nor immediacy.

The distinction between something self-evident “in itself” or “to us” is an old one: A proof in geometry may be perfectly self-evident in itself, as well as to one who understands, yet remain opaque to one who does not understand, not because the student is depraved or moronic but simply because he or she does not yet understand.

For theorists like Finnis or Rhonheimer, self-evidence doesn’t mean that we don’t require insights that help us understand our purpose in acting. These insights are not deductions, but neither are they intuitions or introspections by which all but the wicked or stupid have a god’s-eye view into themselves, or nature, or morality. In no way does self-evidence mean that either one immediately receives “clear commands” in “the content of true morality,” as Hart suggests, or that one is barbaric.

I cannot help but think that the commentators have assumed that the self-evidence of basic human goods somehow implies a corresponding belief that metaphysics, applied ethics, and public policy are also self-evident, but that’s not the theory. Natural law might be rooted in reason, but it’s still human reason. As for those persons of practical reason who cannot know the natural law without supernatural assistance and metaphysical enlightenment? I suspect they no more exist than do those unnamed straw men critiqued by Hart and Potemra.

Tomorrow I discuss the usefulness and danger of natural law, and argue that the skeptics’ very act of denying natural law demonstrates they are already following that same interior law, and, further, that human dignity is thereby revealed.