Natural Law, continued.....

Frankly, I'm more confused than ever.

Aside from some other problems I think are inherent in natural law theory, there is apparently "old natural law theory" and "new natural law theory." I don't know what the difference is; Edward Feser can go on for pages about this, though, criticizing people (like D.B. Hart) for attacking the "wrong" version - or being unclear about which version he's critiquing.  In this post, for instance, Feser says:

That brings us to a second problem with Hart’s articles overall, which is (as I also noted in my earlier replies to him) that he never makes it clear whether it is the “new” natural law theory, or the “old” natural law theory, or both, that he has in his sights.  His remarks in the Letters section of the May First Things may initially seem to clarify the matter at last.  For he writes:

I said only that [moral] truths cannot be deduced from the understanding of nature that modernity presumes, and hence natural law arguments cannot be made from a position that has already conceded the legitimacy of that understanding (by trying to change natural law theory into either a form of Kantian categorical imperative or some sort of utilitarian calculus).

and

My column concerned those who make no appeal to [the] desire [of the heart for God], and who consent to secular reason’s decision to bracket the supernatural out of public consideration, and who think that natural law can be demonstrated in a purely naturalistic key…

Hart had claimed in his original piece that “names are not important,” and in the May Letters section he says:

[T]he names I withhold are specifically those of thinkers who do not practice classical natural law theory at all.

and

[C]lassical natural law theory… was not the topic I addressed.

and

I underestimated the degree to which what I thought a simple distinction between classical natural law theory and “natural law theory” reconfigured as a form of modern practical reason would prove difficult to grasp.

and

[It is those thinkers] armed with natural law arguments of an oddly metaphysically denatured kind… [arguing] on the basis of a kind of Kantian appeal to categorical imperatives, scaffolded within a consequentialist account of natural goods… who were the subject of my column.

End quote.  All of that seems to imply very strongly that it is the “new” natural law theory alone that he had in his sights.  But there are two problems with this interpretation.  First, why in that case did Hart go on at such length in his two articles about final causes, Humean strictures about “is” and “ought,” and the like?  For again, “new” natural law theorists accept the Humean position and deny that one need appeal to a metaphysics of final causes in order to practice natural law theory.  So to insist that Hume’s position makes their approach impossible and that their approach requires premises about final causes to which they are not entitled quite blatantly begs the question against them; indeed, it misses the whole point of the “new natural law,” which is to reconstruct natural law in post-Aristotelian, Humean-friendly terms.  (I hasten to emphasize that, as an unreconstructed classical or “old” natural law theorist, I share Hart’s disagreement with the “new natural law” approach.  The trouble is that his critique has no force against it whatsoever.)

Second, despite Hart’s apparently clear-as-day insistence that it was only non-classical natural law theorists he had in mind, he goes on at the end of his remarks in the May Letters section to write:

[F]rankly, the whole “What alternative do we have?” question strikes me as one corrupted by fantasy.  It is not as if natural law theory, classical or modern, is some sort of effective dialectical strategy that has had any success in the secular realm, or that ever will have such success.  Natural law theory is a practice confined to the circles of natural law theorists, because it requires enclosed, conservatory conditions to flourish; in the open air, it quickly withers…

I am in the end quite happy for believers in natural law theory to continue plying their oars, rowing against the current (so long as they do so in keeping with classical metaphysics), but I do not think they are going to get where they are heading; so I shall just watch from the bank for a while and then wander off to the hills (to look for saints and angels).

And to Howard P. Kainz, who asks what “other approach” one should take to “modern moral life,” Hart answers:

I encourage Mr. Kainz to pursue classical natural law theory (which was not the topic I addressed), if he likes.  The Great Commission also comes to mind.  (Do what you think best.)

End quote.  All of this makes it sound as if Hart thinks that classical natural law theory is, after all, not much better than the “new” version, even given its “classical metaphysics.”  Moreover, the comments about “saints and angels” and “the Great Commission,” in addition to being smug, seem to imply that classical natural law theory, no less than the “new” version, has little or no force outside of a “supernatural” context.  In which case Hart’s remarks in his two articles do seem intended to apply to the “old” natural law theory as well as to the “new.”

I've read some of Feser's discussions of the "new natural law theory" - but at times there are too many references to things I don't have in my vocabulary.  For instance, in his "A Christian Hart and a Humean Head", there's this:

In a piece in the March issue of First Things, David Bentley Hart suggests that the arguments of natural law theorists are bound to be ineffectual in the public square.  The reason is that such arguments mistakenly presuppose that there is sufficient conceptual common ground between natural law theorists and their opponents for fruitful moral debate to be possible.  In particular, they presuppose that “the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation.”  In fact, Hart claims, there is no such common ground, insofar as “our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.”  For Hart, it is only when we look at nature from a very specific religious and cultural perspective that we will see it the way natural law theorists need us to see it in order for their arguments to be compelling.  And since such a perspective on nature “must be received as an apocalyptic interruption of our ordinary explanations,” as a deliverance of special divine revelation rather than secular reason, it is inevitably one that not all parties to public debate are going to share.

Now I have nothing but respect for Prof. Hart and his work.  But this latest article is not his finest hour.  Not to put too fine a point on it, by my count he commits no less than five logical fallacies --equivocation, straw man, begging the question, non sequitur, andspecial pleading.  He equivocates insofar as he fails to distinguish two very different theories that go under the “natural law” label.  He also uses terms like “supernatural” and “metaphysical” as if they were interchangeable, or at least as if the differences between them were irrelevant to his argument.  These ambiguities are essential to his case.  When they are resolved, it becomes clear that with respect to both versions of natural law theory, Hart is attacking straw men and simply begging the question against them.  It also becomes evident that his conclusion -- that it is “hopeless” to bring forth natural law arguments in the public square -- doesn’t follow from his premises, and that even if it did, if he were consistent he would have to apply it to his own position no less than to natural law theory.

Let’s consider these problems with Hart’s argument in order.  Who, specifically, are the “natural law theorists” that Hart is criticizing?  Hart assures us that “names are not important.”  In fact names are crucial, because it is only by running together the two main contemporary approaches to natural law that Hart can seem to have struck a blow against either. 

So let’s name names.  What we might call the classical (or “old”) natural law theory is the sort grounded in a specifically Aristotelian metaphysics of formal and final causes -- that is to say, in the idea that things have immanent natures or substantial forms and that in virtue of those natures they are inherently directed toward certain natural ends, the realization of which constitutes the good for them.  Accordingly, this approach firmly rejects the so-called “fact/value dichotomy” associated with modern philosophers like Hume.  Its most prominent historical defender is Aquinas, and it was standard in Neo-Scholastic manuals of ethics and moral theology in the pre-Vatican II period.  In more recent decades it has been defended by writers like Ralph McInerny, Henry Veatch, Russell Hittinger, David Oderberg, and Anthony Lisska.  (In the interests of full disclosure -- of which, regrettably, self-promotion is a foreseen but unintended byproduct, justifiable under the principle of double effect -- I suppose I should mention that I have also defended classical natural law theory in several places, such as my book Aquinas.) 

What has come to be called the “new natural law theory” eschews any specifically Aristotelian metaphysical foundation, and in particular any appeal to formal and final causes and thus any appeal to human nature (at least as “old natural law” theorists would understand it).  It is a very recent development -- going back only to the 1960s, when it was invented by Germain Grisez -- and its aim is to reconstruct natural law in terms that could be accepted by someone who affirms the Humean fact/value dichotomy.  In addition to Grisez, it is associated with writers like John Finnis, Joseph Boyle, William May, Robert P. George, and Christopher Tollefsen.  (Once again in the interests of full disclosure, I should note that like other classical natural law theorists, I have been very critical of the so-called “new natural lawyers.”  But it is also only fair to point out that Hart’s argument has no more force against the “new” natural law theory than it does against the “old” or classical version.) 

What the two approaches have in common is the view that objectively true moral conclusions can be derived from premises that in no way presuppose any purported divine revelation, any body of scriptural writings, or any particular religious tradition.  Rather, they can in principle be known via purely philosophical arguments.  Where the two approaches differ is in their view of which philosophical claims, specifically, the natural law theorist must defend in order to develop a system of natural law ethics.  The “old” natural law theorist would hold that a broadly classical, and specifically Aristotelian, metaphysical picture of the world must be part of a complete defense of natural law.  The “new” natural law theorist would hold that natural law theory can be developed with a much more modest set of metaphysical claims -- about the reality of free will, say, and a certain theory of practical reason -- without having to challenge modern post-Humean, post-Kantian philosophy in as radical and wholesale a way as the “old” natural law theorist would.  Both sides agree, however, that some body of metaphysical claims must be a part of a complete natural law theory, and (again) that these claims can be defended without appeal to divine revelation, scripture, etc.

So that's a little something - but honestly, I remain a little bit lost.  I don't know what is involved in "the idea that things have immanent natures or substantial forms and that in virtue of those natures they are inherently directed toward certain natural ends, the realization of which constitutes the good for them."    I do understand the basic idea - perhaps - but get lost (for instance) in the discussion of "immanent natures or substantial forms."  Do these words have particular, non-ordinary meanings within the philosophical system that uses them?  I have no idea.

And there's not much information, for somebody like me, in a sentence like "What has come to be called the 'new natural law theory' eschews any specifically Aristotelian metaphysical foundation, and in particular any appeal to formal and final causes and thus any appeal to human nature (at least as 'old natural law' theorists would understand it). "  What are "formal and final causes"?  I don't know.

I do understand - at least I think I do - the idea that "things are inherently directed toward certain natural ends, the realization of which constitutes the good for them."  You do see this idea reflected in Catholic thought; this is, in fact, is the basis of the Catholic argument against homosexuality, and - not surprisingly - it's where a lot of the handwaving comes in!  (It's interesting to me, in fact, that Protestants have picked up this natural ends argument on the same topic, without actually noticing, as far as I can tell.) 

Feser is also very big on the "non-material" - which ends up being a facet of (at least his version of) natural law, too.  He went on a tear awhile back, offering post after post of criticism of criticism of Thomas Nagel’s Mind and Cosmos.  (Do philosophers do this all the time, I wonder?  I should add that I have a time getting through his stuff at times, because he can be rather off-puttingly supercilious - to my eyes, at least - to those he disagrees with.)

He was especially excited about the Nagel book's tagline: "Why the Materialist Neo-Darwinian Conception of Nature is Almost Certainly False."  (Note that here again, we have the playing off of Darwinism against neo-Darwinism!  Whatever all that's about.  Ay yi yi.)

Some of the usual suspects are also talking about this book; Alvin Platagina (a Christian "philospher of mind," as I understand it) reviewed it recently in The New Republic.  I think these people may all be trying to prove the existence of the soul, actually - but I'm not quite sure, honestly.

Following along with all these conversations has had some benefits, though.  I read a pretty interesting article by Nagel called "What is it like to be a bat?", first published in The Philosophical Review in October 1974.  That one's about consciousness - and the discussion is around what consciousness actually is, and whether or not it's reducible to materialism.  I'm guessing that this new book is 30 years' worth of thinking about that subject.

Anyway, back to Natural Law.  What is it?   I don't know exactly yet, but I'm still working on it!