The Death of Natural Law

Pope Benedict XVI¹ was severely vexed by the refusal of the European Union to officially recognize it's Christian heritage. In his 2011 address to the German Reichstag, Pope Benedict noted:

Unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation.

Whether or not that is an accurate portrayal of history, it does represent the aspiration of natural law, that it is accessible to any and all without resort to religious faith or revelation.

Unfortunately, natural law has fallen out of favor. Pope Benedict acknowledged this:

The idea of natural law is today viewed as a specifically Catholic doctrine, not worth bringing into the discussion in a non-Catholic environment, so that one feels almost ashamed even to mention the term.

Pope Benedict blamed Positivism and the "unbridgeable gulf" it created between 'is' and 'ought'. According to this view, modernists, following David Hume, have elevated scientific reasoning above all else holding all competing claims to tests of scientific validity.

However, modern societies are awash in competing belief systems that are rooted in nothing more than emotionalism and common agreement. We are constantly subjected to laws and regulations that have not the slightest scientific basis. Courts do not strike down laws on scientific grounds.

To give just one example among many, egalitarianism is a widely held modern ideal that has no basis whatsoever in science. Nature is decidedly inegalitarian but for egalitarians that is unacceptably Darwinian.

If Positivism truly reigned we would have none of that. Far more commonly we find modern morals are rooted in subjectivism. Subjectivism substitutes emotion for reason as a basis for morality. Something is wrong if it feels wrong.

But genuine subjectivism, too, is an incomplete answer. Raw subjectivism would be nothing less than anarchy with each person following his own intuition about right and wrong. Instead, what we encounter is a hierarchy of ideas loosely rooted in history but always evolving in ways that seem almost designed to avoid a consensus and morality plays involving various perceived injustices demanding correction.

Then, too, there is the hierarchy of thinkers centered in university social science departments giving rise to what could most charitably be called a secular magisterium complete with its own system of anathema and excommunication with public shaming of deviants. Subjectivism is given a scientific veneer by social science researchers such as Michael Ruse² and Jonathon Haidt³ in the form of moral sentimentalism which essentially claims that morality is a product of sentiment and taste, not of reason and knowledge.

To appreciate the paradox of moral sentimentalism, imagine a world in which Ruse and Haidt like chocolate so much that they are willing to have people who disagree with them executed by the state or at least thrown in jail for enjoying vanilla. They readily acknowledge that this is nothing more than a matter of taste. But their preference for chocolate is so strong that they cannot abide anyone who might disagree and choose differently. This is an indulgence of monumental proportions. Not only the indulgence of taste but an indulgence of vengeance against violations of fashion.

What leads people to abandon reason for subjective sentiment in moral reasoning? Certainly logical positivism plays a crucial role. Positivism is the sword that is wielded against moral reasoning and subjective sentiment is the shield that defends their alternative choices.

What is the modern problem with natural law? Why do natural law arguments carry so little weight in today's culture, politics, and law? It certainly doesn't help that natural law, as Catholics understand it, is rooted in medieval scholasticism and little improved since. Fundamentally the problem is that natural law requires a humility before nature and the human condition. That is, itself, intolerable to the modern mind and unsuited to perpetual political action.

---

1. ADDRESS OF HIS HOLINESS BENEDICT XVI, Reichstag Building, Berlin Thursday, 22 September 2011.
2. Michael Ruse, "Evolutionary Ethics: A phoenix arisen", 1986.
3. Jonathon Haidt, "The emotional dog and its rational tail: a social intuitionist approach to moral judgment", 2001.

What Is Natural Law?

What is natural law and why does it matter?

Natural law, sometimes called natural justice or natural right, is moral law based upon human nature and the human condition. Natural law is universal at least insofar as circumstances are the same.

But let's begin with what it's not.

Natural law is not the laws of nature. The laws of nature, or scientific laws, are statements that describe and predict natural phenomena based on observation and experimentation. The laws of nature are the province of science which makes no attempt to prescribe morality. At best science will describe and predict the ethics and moralities of various cultures and civilizations.

Natural law is not civil law or positive law which are laws developed by a society through it's polity or by custom. Ideally, civil law will be based on natural law but that is not a given. Natural law precedes civil law and is based, in part, on the laws of nature.

Not everyone accepts the existence of natural law. We might imagine that murder and rape are perfectly moral choices in a state of nature and that civil law exists as a compact among men in which liberties are surrendered to society and police appointed to enforce this agreement. Murder and rape, then, become bad choices only because of this enforced civil law. In this view, civil law is more or less arbitrary, whatever people happen to agree on, and varies arbitrarily across cultures where different agreements have come into practice.

Natural law is also distinct from religion and culture though, again, we would expect each to reflect it.

Finally, and perhaps most importantly, natural law is not divine law. In particular, natural law does not require any religious belief. As such, it is accessible even to atheists. It should be possible to lead someone to it through reason and observation regardless of their religious or cultural background.

Of course, it is possible that natural law, as described here, does not exist. It may be that no matter how earnestly it is sought it cannot be discovered. If that is so then we are left with the two main alternatives: divine law and civil law with no way to independently evaluate the correctness of either.

There are some interesting problems that we must consider in claiming that there exists a natural law discoverable by reason and observation. First, it is not always followed. Second, we do see variation in ethics and morality across cultures and civilizations. And, third, it may not be what we expected or wanted to find.

If what is morally good is discoverable by reason and observation why is it so elusive?

One possibility is that natural law is not simple or obvious. It may require deep thought and intense study to discern. If so, this would answer the first two questions above. Saint Thomas argued that we are prone to the pursuit of apparent goods, things which seem attractive but which prove not to be so. This is hardly controversial. We can all recall times when we made choices that turned out badly. What is good is not always obvious.

If that is so then we should not be surprised to find cultural variation either. Science is a good analogy. Science is a method for describing and predicting natural phenomena. But the discovery of science was neither simple nor obvious and came to fruition first in Europe. Nobody would suggest that science is not real or that it is not universal merely for this historical fact.

However, others can learn science. We can imagine it being developed independently by different societies and we can observe it's spread and adoption as different people come to recognize it's value.

If natural law is like science, then, we would expect it to become widely adopted even if it arose uniquely. But that has not happened.

We would expect those who know and understand natural law to be in demand by those who see the value and need for it. But that has not happened.

A Conversation With Aristotle

Christianity is nominally and principally founded on Christ but, in fact, incorporates wisdom and traditions from a variety of sources. Chief among these are the pre-Christian Hebrews, Greeks, and Romans. The pagan Greek and Roman influences have proven controversial, especially to Protestants, but the simple fact is that reading and understanding Holy Scripture requires, at a minimum, a basic understanding of the human condition and such an understanding was certainly available to the ancients long before the time of Christ. Revealed truth builds on natural truth.

Among these, the Hebrew influence is obvious. Jesus, the apostles, and the earliest Christians were Jews and they all referenced the Hebrew scriptures which we know today as the Old Testament.

The Roman influence is relatively straightforward. Israel was, in Jesus' time, a province of Rome. Roman law and traditions held for centuries after throughout Europe and the Mediterranean. When Israel waged two ill-fated rebellions against Rome it was utterly destroyed. Rome became the seat of Christianity and some have even go so far as to say that the Roman Catholic Church is the surviving vestige of the Roman Empire

The Greek influence, though, is far more subtle and complex. By the time of Christ Israel had been in the Greek sphere of influence for centuries. Alexander the Great had conquered the near east in 330 BC and upon his death his successors carved up his empire between them and held it until they were, in turn, conquered by the Romans. Israel fell between Egypt, ruled by Ptolemy, and Syria, ruled by Seleucid, and changed hands between them a few times. The Macabee rebellion was a war against Greek influence on Israeli society. The wealthy Sadducees were especially infatuated with Greek culture but historians argue that the Pharisees, too, were influenced as, for example, in their formal methods of analysis and argument. The diaspora Jews were even further immersed in Greek culture.

But perhaps the most important Greek influence on Christianity came from Aristotle through Saint Thomas in the middle ages. Like Saint Augustine in 5C AD, Thomas drew upon pagan sources to weld faith and reason. Faith, from Holy Scriptures, and reason primarily from Aristotle. When today you inquire as to why Christians believe something or why the Church teaches something, if the answer is not Holy Scripture or Tradition, it is very likely to be Aristotle. In particular, the Christian concept of the nature of things comes straight from him.

But we have learned a great deal about the nature of the cosmos since Aristotle. Now, to be fair, Thomas didn't just copy Aristotle, he built upon him. Yet Thomas, himself, was a product of the middle ages and much has transpired since then as well. Thomas' magnum opus, Summa Theologica, is generally regarded as the greatest work of Scholasticism, now an arcane field of philosophy.

So let's imagine a short conversation with Aristotle who was, by all accounts, a brilliant man. Our goal is to update him on what mankind has learned in the last couple millennia. What would be the most important ideas we would wish to convey? Would any of these ideas be news to Thomas as well?

We would begin with science. Although Aristotle deserves great credit for laying the foundation, and although his ideas held sway until relatively recently, in fact we know a lot more about how the world works and how to learn about how the world works. Science is, essentially, a marriage of reason and empiricism but the most important ingredient of science is its tentativeness. Every scientific theory is, and always will be, subject to revision upon new evidence.

Aristotle recognized that the perfect is the enemy of the good and so it is with the pursuit of certainty. Only logical deduction can achieve certainty; the Scholastic obsession with achieving certainty exaggerated the value of logic to the exclusion of empiricism.

Taking a more empirical and tentative approach, science delivered the goods principally in physics and chemistry but also in areas such as medicine and technology. But the traditional deterministic, mechanistic model of science is bounded by two relatively recent discoveries: quantum physics and chaos theory. The universe, it turns out, is fundamentally indeterministic and, even if it were deterministic, it's complexity defies prediction except in certain, simple situations.

Perhaps the single most important and relevant discovery is in the field of biology: evolution.

Aristotle proposed that all things have a nature. But what gives things their nature? In biology, the most basic answer is: natural selection and the survival of the fittest. Why do birds sing? Why do fish lay eggs? Why do lions chase gazelles? Why do humans think? Natural selection and the survival of the fittest species. The most fundamental nature of biological beings is their struggle to survive in competition for finite resources.

While the evidence for evolution is pretty strong, the concept has found broader application in more speculative fields including, especially, sociobiology. Sociobiology is based on the idea that social behavior is a product of evolution and that cultures evolve in their practices. Why are men more promiscuous than women? Why do people get married? Why do nations go to war? Natural selection of the fittest culture. The most fundamental nature of social groups is their struggle to survive in competition for finite resources.

All of this may seem a tad dark but there is another idea that would have been totally foreign to Aristotle though Thomas would have been less surprised by it: human progress. Starting around 1400 AD, a couple hundred years after Thomas, Europe experienced a social explosion unparalleled in human history.

Which brings us to the last major element of note: capitalism. Human progress was not merely academic and philosophical, it was also material. Greater wealth and longer lifespans.

The nature of capitalism is, essentially, a domesticated competition and natural selection. Both its advocates and critics recognize in it the familiar survival of the fittest. Capitalism is often denigrated as social Darwinism by the very same people who champion Darwin's theory of evolution.

Humanity prospered under capitalism and this prosperity fed the growth of science and culture in a virtuous cycle. Much as Alexander the Great had conquered the Persian Empire, so Europe set sail to conquer the world; its wealth and technological superiority enabled it to do so.

Today we see the Chinese and Indians, among others, embracing capitalism and prospering similarly from it. China, which had once been prostrate before individual European powers, is on the verge of becoming the largest economy in the world with a growing military to match.

Seeing the bounty of capitalism we can reflect back on life itself. The struggle to survive may seem harsh, even brutal, but it drives evolution and produced human beings, the most complex and reflective creatures in the cosmos.

So, to summarize, what we would tell Aristotle is that the nature of life is the struggle for survival and the nature of that which we observe is that it has found a way to flourish in that struggle to survive. This is true from the lowest organic cells to the most complex human societies. That would not be an alien idea to the ancients who were witness to frequent war and civil strife but I think Aristotle might be surprised at how much it explains and how it influences the foundations of philosophy.

Surely Aristotle would be the first to concede that his philosophy of natural law needed to be updated. We need a new Thomas to weld two millennia of human progress with Christian theology.