Friday, December 10, 2004

Thoughts on Natural Law

Thanks to the folks who've emailed me asking why I haven't been blogging. Lots of stuff going on the home front, too boring to recount but too demanding to ignore, is one reason. Another was that during all the stuff going on, I felt compelled to blog, that the blog was demanding my attention, that I simply had to keep up or I'd "lose out" on something. The blog was getting uppity. It was time to put it in its place. I've heard it, whimpering in the night, cowed and beaten, for some days now. I have won this round, and so I hope to return to my scribbling over the Christmas holidays.

In the meantime, I couldn't help but notice what I think is a vindication of my position in a running argument with some fellow Catholics about natural law. For those new to the subject, the "natural law" can be pictured as an "over-law," holding a similar position with respect to human laws as Christ, the King of Kings, occupies with respect to human authorities:
[W]e observe . . . in all those who govern . . . that the plan of government is derived by secondary governors from the governor in chief; thus the plan of what is to be done in a state flows from the king's command to his inferior administrators: and again in things of art the plan of whatever is to be done by art flows from the chief craftsman to the under-crafts-men, who work with their hands. Since then the eternal law is the plan of government in the Chief Governor, all the plans of government in the inferior governors must be derived from the eternal law. But these plans of inferior governors are all other laws besides the eternal law. Therefore all laws, in so far as they partake of right reason, are derived from the eternal law. Hence Augustine says that "in temporal law there is nothing just and lawful, but what man has drawn from the eternal law."
St. Thomas, Summa, I(II), q. 93, a. 3
My argument, which has lasted for a couple of years in conversation, correspondence (email and otherwise) and, I must admit, in my own head, is with people who think that the "natural law" can be usefully applied without reference or recourse to the revealed truths of Catholicism.

They believe that the proof and tenets of "natural law" depend primarily on the observation of creation which, established by God and therefore knowable by man, is capable of informing us about our natures and the proper order of society. At first blush this seems well and good: "Our holy mother, the Church, holds and teaches that God, the first principle and last end of all things, can be known with certainty from the created world by the natural light of human reason." Catechism of the Catholic Church, ¶ 36 (quoting Vatican Council I, Dogmatic Constitution on the Catholic Faith, Canons, Art. 2, ¶ 1). But when their position is explored, one soon enough finds it subjected to an astonishing myopia that compresses the natural law into an Enlightenment-style materialism. That is not what these individuals intend, but it is where they end up. By taking, as they do, reason and observable creation as the sole framework in which the existence and content of natural law can be achieved, they hope to "rescue" natural law by making it acceptable to modern secularists. This is supposedly accomplished in two ways; first, by assuring secularists that any meta-law adopted by society will not embody "theocratic dogmas" and second, by assuring men of different faiths that their religions will not be contradicted by an order based on a legal tradition that is (the contribution of classical culture notwithstanding) Christian in its provenance. This second argument, by the way, also pleases secularists, since it jibes nicely with modern conceits about what "freedom of religion" and "separation of church and state" are supposed to mean. Having grounded our meta-law on nothing save empiricism and "reason," it is thought that we will restore a true natural-law tradition to our civilization with all the benefits that law offers mankind.

I wrote an essay once about the natural law which took the opposing point of view, arguing that without revealed truths "natural law" is simply a shibboleth. I almost regret writing that essay, since it gave occasion for unfavorable review of what is a very fine book featuring the thoughts of far more distinguished scholars and lawyers than myself. The National Review found the book blurb-worthy, and the blurb adequately summarizes the complaints about my essay and one or two others which took a similar position:
[The book] assembles 13 essays asking whether law ever has a deeper basis than the mere consent of the governed. The essayists agree that it does: that-in a tradition dating back to ancient Greece-there is a natural law "written on our hearts." A number of contributors discuss the problem in a religious context, but John Jenkins, in his essay on Aquinas, makes the important point that in natural law "the goodness and value of things human . . . are not explicitly dependent" on a particular faith.
-- Michael Potemra, "Shelf Life," National Review, April 3, 2000.
The prima facie reasonableness in Mr. Potemra's relieved comment can be quickly dispelled by asking if the goodness and value of walking onto an Israeli bus with a bomb strapped to your chest is explicitly dependent on a particular faith. Of course it is. Any successful fedayeen would tell you just that -- if he were allowed to return from Hell, that is. And while we may agree with Mr. Potemra that the "goodness and value" of heterosexual marriage doesn't "explicitly depend" on believing in Presbyterianism or Islam, Judaism or Catholicism, we must admit that saying so and nothing more in a discussion of natural law evades the subject altogether.

Scholars may parse the issue all they like, but one may affirm the goodness of heterosexual marriage without explicit reference to a particular faith only by subscribing to one of two positions. We may affirm it because we believe that our "particular faith" is the true one, but that shards and remnants of truth also exist in other faiths as well and it does no immediate harm to allow others to act in conformity with God's will even though they do not fully grasp everything He requires. We may also affirm it if we believe in a gauzy syncretism that locates super-human truth wherever human religions happen to display some acceptable level of mutual agreement, or because we believe in some separate, "revelation-free" way of objectively knowing truth about the human condition. In other words, we can affirm the goodness of heterosexual marriage either because we have particular faiths, or because we have a general faith that is superior to all particular faiths. The issue is not whether the laws will serve faith. The issue was, is, and shall always be: Which faith will the laws serve?"

Attempts to locate the natural law without reference to a "particular faith" will always reduce themselves to a simple apologia for fascism. If we accept that the state will make laws about the goodness and value of human actions according to a faith superior to all particular faiths, we accept the state as the supreme arbiter of good and evil. What is the individual in such a state? What is God? God is the State, and the individual a simple manifestation of God's will:
[T]he Fascist conception of life stresses the importance of the State and accepts the individual only in so far as his interests coincide with those of the State, which stands for the conscience and the universal will of man as a historic entity . . . Fascism reasserts the rights of the State as expressing the real essence of the individual. And if liberty is to be the attribute of living men . . . then Fascism stands for liberty, and for the only liberty worth having, the liberty of the State and of the individual within the State. The Fascist conception of the State is all-embracing; outside of it no human or spiritual values can exist, much less have value. Thus understood, Fascism is totalitarian, and the Fascist State -- a synthesis and a unit inclusive of all values -- interprets, develops, and potentiates the whole life of a people.
-- Benito Mussolini, Fascism: Doctrine and Institutions (New York: Howard Fertig, 1935).
One reviewer of my essay expressed dismay that I left doubt whether natural law could ever "leave the Catholic farm." Indeed. I was not raised on a farm, but I know you can't get milk without a cow. Without "particular faiths," there can be no such thing as natural law. There can only be popular opinion and, ultimately, death. One of the "dogmas" that the modern perspective on natural law jettisons is the dogma of the Fall, the dogma which reminds us that we are not -- even when using our reason -- our best selves: "human nature . . . is wounded in the natural powers proper to it, subject to ignorance, suffering and the dominion of death, and inclined to sin - an inclination to evil that is called concupiscence". Catechism of the Catholic Church, ¶ 405. "Particular faiths" put Mussolini's dream out of reach because they prevent the State from dictating the terms of its own legitimacy, its own "faith." Particular faiths hold the State to account, and place limits on its power: It is no accident that constitutional governments appeared in societies with "particular faiths." Without that, there is only the mob, howling for peace, justice and -- eventually -- the death of Christ.

Vatican I taught us all that God can be known by reason from created things. It did not teach us that everything about Him -- including His plans for us in this life -- can be so known, and it certainly didn't tell us that revelation is an obstacle to the use of our reason. Yes, we can know God from reason and creation. And if we use our reason rightly, and observe creation accurately, we will accept Jesus Christ as His divine Son, the Bible as His holy words, and the Roman Catholic Church as His Body with the triple mission to teach, to rule, and to sanctify. That is my particular faith, and it provokes great revulsion. Let's examine, for a moment, the reasons for this fear, this disgust, which supposedly-civilized men experience at the thought of a society organized by Catholic dogma.

A state authentically based on a Catholic view of natural law will subscribe to the principles explained by Dignitatis Humanae, and will accept its citizens' disputing questions of law and public policy from religious motives. It will also accept that some, many, or a few of its citizens will view some, many, or a few of its laws as illegitimate departures from the divine will. It will take care to justify itself, as to these matters, on theologies which permit men to observe even "unjust" laws and keep the civil peace without violating their consciences. It will force as few as possible to violate the dictates of their religious sensibilities, and it will humbly but respectfully oblige them to observe others' rights to enjoy the benefits of those laws. But there should be no mistake, that such a society will punish some people because of their religions, and force them to act against their most deeply-held beliefs. All this, men say, is completely unacceptable. I fail to see why, since all "free" secular societies mirror this dread vision in almost every respect.

All such societies accept that their citizens will dispute questions of law and public policy. They all accept that some, many, or a few of their citizens will view some, many, or a few of the laws as illegitimate, wrong-headed, and objectionable. These states take care to justify themselves, as to such matters, on political philosophies which permit men to observe even "unjust" laws and keep the civil peace without violating their consciences. These states force as few as possible to violate the dictates of their religious sensibilities, and they oblige dissenters to observe others' rights to enjoy the benefits of those laws. They also punish some people because of their religions, and force them to act against their most deeply-held beliefs. As to the simple fact of "ideological oppression" there is no difference.

Secularists excoriate Pius IX for kidnaping Eduardo Mortara, forcing him to live apart from his Jewish parents and become Catholic. They claim it proves that Catholicism is oppressive and contrary to human dignity. But no ardent secularist objects when a child-custody dispute between a parent who is "obsessively religious" or in a "cult," is decided in favor of the more "reasonable" and "enlightened" parent. Secularists point to the Index as proof that a Catholic polity will always crush dissent and free-wheeling inquiry, while passing laws against "hate crimes" that allow men to be more harshly punished because they possessed objectionable literature. They decry the Inquisition as the nadir of human politics, then go off and establish "Un-American Activities Committees," launch operations like COINTELPRO, or adopt Orwellian practices to ferret out employees who believe differently than the company's official positions on gay rights. Secularists claim it would violate every decency to compel religious instruction for schoolchildren, while at the same time approving of mandatory psychological testing for every child to "ensure appropriate and culturally relevant assessment" of their "social and emotional development."

"Religious" societies are no more likely to engage in "oppressive" behavior than "secular" ones. For every sad example of persecution in a "theocratic" context one may find an equal or worse counterpart in the supposedly-enlightened secular world. Washington was right to compare government and fire, for both are tools, no better or worse than the men who employ them. If we can exonerate the ideals of democracy from responsibility for HUAC by attributing it to a combination of base motives, cowardice, or ignorance on the part of those who could have known better, can we not excuse the ideals of Catholicism from inquisitorial wrongs on the same account? Can we refuse to do so, knowing that the Inquisition occurred as part of a long historical struggle that yielded those very same democratic ideals? Secularist opponents of natural law should do so, and would, if they had the principles they imagine for themselves. But, unfortunately for all of us, they do not. They have not learned the harsh and sober lessons which the Church recites in Dignitatis Humanae. They are not progressives, but atavists of an earlier time in which the Truth was thought to travel along a sword's thrust or a fire's tongue. They do not object to persecution and coercion. They only object to not being recognized as the God in whose name those things are done.

A perspective on natural law which caters to this hypocrisy, effectively granting the state the right determine what is good and valuable in human life by acquiescing to the idea that secular power follows a "reason" and "objectivity" which is superior to all other faiths, is also an atavism. "We have no king but Caesar!" Civilized men have two kings, one who reigns in this world on behalf of the other, who rules from the next. Only men with "particular faiths" can make a society that is not a totalitarian theocracy, because only they can clearly see that the state is not God. Only such men can create a society that respects human dignity, because only they clearly understand how that dignity exists without the permission of their own thoughts and desires. And none of them can deify the king without, at least, being called into question by their neighbors. Of course such men have, and will, from time to time abuse their powers and betray their birthrights. That is the story of man as a whole, the dogma of the Fall. All the more reason, then, to cling to our particular faiths; it is no accident that the most vicious and gross violations of man's dignity have been perpetrated by societies which rejected the Fall as "mere religious dogma."

That's prologue. (Anybody still curious about why I've had no time to blog recently?). Now I come to the latest exhibit in my case, courtesy of Fr. Dowd's Waiting in Joyful Hope. It is the advisory decision by the Canadian Supreme Court giving our northerly neighbors permission to make the disordered affection known as homosexuality a building block of family and social life in Canada. Among the questions raised -- and dispensed with -- by the Court is the argument quite similar to the one which would be fashioned by some modern natural law theorists on the issue:
First, it is argued, the institution of marriage escapes legislative redefinition. Existing in its present basic form since time immemorial, it is not a legal construct, but rather a supra-legal construct subject to legal incidents. In the Persons case, Lord Sankey, writing for the Privy Council, dealt with this very type of argument, though in a different context. In addressing whether the fact that women never had occupied public office was relevant to whether they could be considered "persons" for the purposes of being eligible for appointment to the Senate, he said . . .
The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested.

Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive.


Lord Sankey acknowledged. . . that "several centuries ago" it would have been understood that "persons" should refer only to men. Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.

Second, some interveners emphasize that while Lord Sankey envisioned our Constitution as a "living tree" in the Persons case, he specified that it was "capable of growth and expansion within its natural limits." These natural limits, they submit, preclude same-sex marriage. . . .

The natural limits argument can succeed only if its proponents can identify an objective core of meaning which defines what is "natural" in relation to marriage. Absent this, the argument is merely tautological. The only objective core which the interveners before us agree is "natural" to marriage is that it is the voluntary union of two people to the exclusion of all others. Beyond this, views diverge. We are faced with competing opinions on what the natural limits of marriage may be.

Lord Sankey's reference to "natural limits" did not impose an obligation to determine, in the abstract and absolutely, the core meaning of constitutional terms. Consequently, it is not for the Court to determine, in the abstract, what the natural limits of marriage must be.
Notice, first, the hypocrisy of the Canadian jurists. Determining, in the abstract, what the natural limits of marriage are is precisely what they're doing -- the natural limits go past heterosexuality, through homosexuality and (for the present, at least) stop somewhere inside the human race. Secularism always advances with such hypocrisy, because its success rests largely on men remaining blinded to the fact that the laws must serve god and the only issue men can really influence is whose god will be served. But notice as well the short -- and impeccably just -- shrift the justice's opinion gives to the idea that marriage can be defined by reason and observable reality without reference to religious dogmas. Arrive at a definition of marriage by reason and observation, relying on the commonality of prior human experience? Nonsense:
"[S]everal centuries ago" it would have been understood that "persons" should refer only to men. Several centuries ago it would have been understood that marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions as well as two European countries belies the assertion that the same is true today.
Quite so. Several centuries ago it would have been understood that the sun revolves around the earth. Now only Bob Sungenis believes it. Have the rest of us lost our minds, or have we discovered more about heaven and earth than were previously known? The reason-and-observation school of natural law can't answer the question. It can only frustrate itself by making unpersuasive appeals to popularity or antiquity, and this after it's consigned religious truths to a second-class status of "personal preferences," or "particular faiths," individual matters which cannot answer social questions. And so:
The natural limits argument can succeed only if its proponents can identify an objective core of meaning which defines what is "natural" in relation to marriage. Absent this, the argument is merely tautological. . . . [V]iews diverge. We are faced with competing opinions on what the natural limits of marriage may be.
You say it's natural for gays to marry, I say it's not. You say Jews aren't human, I say they are. You say tomato, I say tomahto. Disputes between two people about what should and should not be allowed always resolve themselves into impenetrable "tautologies" so long as the people involved have radically-different and contradictory beliefs which share no common standard. The secularists have their common standard -- the dictates of a hypocrite state silently serving a religion that dare not speak its name. What is our common standard? Domestic-violence statistics for gay couples? The cranial circumference of Jews? Pointing out that an object's soft, red and round and demanding that we forego the possibility that it's Ted Kennedy's nose?

Natural-law theory should attract our attention only to the extent that it claims to indisputably recommend a social order conducive to our fulfillment as human beings. Arguing, as some do, that one may have natural law by reason and observation alone is tantamount to arguing that the meaning of humanity is a material phenomenon that can be established by scientific method. We've had all that before:
[W]e do not start from what men say, imagine, conceive. . . in order thence and thereby to reach corporeal men; we start from . . . their life-process [and] show the development of the ideological reflexes and echoes of this life-process. Morals, religion, metaphysics and all other ideology and the corresponding forms of consciousness thus no longer maintain the appearance of independence. They have no history, they have no development; but men, developing their material production and their material intercourse, change, along with this their real existence, also their thinking and the products of their thoughts. It is not consciousness that determines life, but life that determines consciousness.
Karl Marx, German Ideology
It's no accident that this modern view of "natural law" arose in the century whose culture was almost entirely dominated by Marxist paradigms. In this respect, the adoption of paradigms and terms which cannot accommodate the fullness of faith, some legal theorists have strayed in the same way as the old Modernists.

The Modernist project was, essentially, a good one -- to engage the currents and thoughts of modern culture in their own terms, and to offer Catholicism as the only enduring and relevant solution to modern problems. The early Christians did the same thing with the classical culture of their own day. And like some in the era of the Fathers, many who took direction and inspiration from the modernist project became seduced, by presumptions about the power of their own efforts, or by the glittering guile which their host culture offered in place of truth, into departing from the main course of their faith even as they tried to champion its preeminence. In the century of the Fuhrerprinzip it made little sense to speak of law in terms that indiscriminately characterized it as a reflection of the divine will, or allowed the law to be seen as the command of a ruling elite made without any justification other than nebulous appeals to the "common good." Stalin, Mao, and Hitler had seen to it that the world was tired, even frightened, of such ideas. It might have seemed, and indeed was, a good idea to speak to those concerns, to reassure men that Christianity's idea of natural law was scrupulously objective, to inspire them to confidence that Christians can make laws to fit the human condition and not vice versa.

But the modern thought with which I disagree has, I think, repeated the same mistake as the modernists' -- it has forgotten that the issue is not whether culture, philosophy, law, or any other part of civilization will serve God. That is not the argument. The question at issue is, was, and ever shall be, whose god will culture, law, art, or civilization itself serve? Confining any part of our civilization's pursuit of human meaning to the limited horizons of pure reason and empiricism will not make society more reasonable, charitable, or happier. As Chesterton said, "The lunatic has not lost his reason; he has lost everything except his reason." An attempt to explain Christianity, or the Christian view of human affairs, which adopts the same approach will resemble lunacy because it leaves the sanest part of itself unspoken and unwitnessed. Christian legal theory is, so far as I know, unique because it can address the gap between "what is" and "what should be" without abandoning the higher aspirations of our nature or demanding jihads against sinners, unbelievers and backsliders. It does this precisely -- and only -- because it preaches and worships Christ the King, the living, divine God-Man who is the source and summit of our existence. The law will either serve him, or someone else. No meaningful argument in favor of natural law can proceed from any other idea without becoming its own worst enemy.

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