Skip to comments.The Law that Dare Not Speak Its Name
Posted on 04/27/2013 8:40:34 AM PDT by NYer
Over the past couple of months, in the pages of First Things – both real and virtual – as well as in a few other online venues, an important and animated conversation has been occurring over the nature and limits of natural law reasoning. It started with an essay written by the eminent theologian David Bentley Hart (author of the magnificent book Atheist Delusions). His critics have included philosophers Edward Feser (here and here) and R. J. Snell (here and here). Among Hart’s sympathizers are Rod Dreher, Peter Leithart, and Alan Jacobs, a soon-to-be colleague of mine at Baylor.
The strength of Hart’s case against natural law depends on a claim made by the Scottish philosopher David Hume (1711-1776). According to Hume, one cannot derive an “ought” from an “is.” Explains Hart: “Even if one could exhaustively describe the elements of our nature, the additional claim that we are morally obliged to act in accord with them, or to prefer natural uses to unnatural, would still be adventitious to the whole ensemble of facts that this description would comprise.”
So, for example, it does not follow from the fact that human beings require nutrition and hydration for survival that it is morally wrong that Josef Stalin starve the residents of the Ukraine and place its dissenting Orthodox priests and bishops in Siberian Gulags. No knowledge of the human good, according to Hart, follows from human nature.
There is a sense in which Hart is correct, if all he means is that mere observations of human nature, without any recourse to what we seem to know about the human good, can ever tell us what is good for human beings. But in that case he just begs the question, since he is abstracting from his picture of the world what he claims is not essential to viewing it and what his critics claim is in fact essential to viewing it.
It would be like a jealous Boston Celtics fan explaining to a Miami Heat fan that the Celtics are better than the Heat if one just imagines that Dwayne Wade and LeBron James do not play for Miami, and then based on that abstraction conclude that because the Heat can exist without Wade and James, therefore, it is perfectly appropriate to compare the present Celtics to the Wade-James-less Heat.
That is precisely Hart’s strategy: “The assumption that the natural and moral orders are connected to one another in any but a purely pragmatic way must be logically antecedent to our interpretation of the world; it is a belief about nature, but not a natural belief as such; it is a supernatural judgment that renders natural reality intelligible in a particular way.”
David Bentley Hart
In other words, any oughtness we attribute to human nature is not derived from human nature, but rather, from a conceptual framework we impose on human nature. Thus, the natural law is not natural. It is, in the words of Hart, a prompting of “one’s prior supernatural convictions.”
If that is in fact the case – that all judgments of “ought” are artificial impositions with no universal import since nature qua nature is devoid of final and formal causes – then it’s not clear why we should worry about Hart’s prescription. He is, after all, suggesting to his readers that given the nature of nature, they ought to agree with him. So, if one cannot get an “ought” from an “is,” how does Hart manage to do it?
It’s because the law is “written on our hearts,” (Romans 2:15), and that even those who vehemently deny it, must at some point rely on its insights to make their case. Thus, we can ask Hart, why should one embrace your argument? Is it because it provides truth to us, and it is good to embrace the truth? And if it is, what is the basis for believing that embracing the truth is good?
One answer – and the one that seems to make the most sense – is that the human mind is ordered toward the truth: because of its form, the mind’s end is the acquisition of knowledge and wisdom. For this reason, if Hart is correct, one would lack virtue if one intentionally and willfully rejected his case.
But such a judgment depends on deriving an “ought” from an “is,” precisely because our knowledge of what “is” includes not only its material and efficient causes, about which we are conspicuously aware, but also our tacit apprehension of its formal and final causes that dare not speak their name.
Hart is certainly correct, as he notes in his essay, that we live in an age in which this understanding is denied by many in our culture who have embraced a mechanistic view of nature. But as we have seen from Hart’s own example, a verbal denial is not the same as an actual denial. Sometimes people practice what they don’t preach. Our duty, as Christians, is to draw their attention to this fact, to tell them of the unknown God they worship in ignorance. (Acts 17:22-23)
An ought can be derived from an is. Values are not intrinsic or subjective, but objective. An objective value requires answers to certain questions such as a value to whom and for what. The answers to these questions requires a valuer and a purpose. The purpose serves as the standard of value by which the valuer makes a value judgment by means of reason, based on facts of reality about whether or not something is good. The good accordingly, is not good in itself, or arbitrarily bases on feelings,but is good based on the combination of reason plus reality, and thus objective. Objects and actions are objectively good to man for the sake of reaching a specific goal.When man chooses life as the ultimate goal and the standard of value, then what is beneficial to life ought to be desired.
Then, if one starts with the basic axiom that one ought to desire what is really objectively good and only what is really objectively good, and then one is able to determine what is really objectively good based on reason, reality and one's standard of value, then one can conclude that one ought to desire it because it is objectively good.
Hume believed that you could separate faith and reason, and pitch faith as far as you could throw it.
"Reason alone" is where people always get on the wrong train that leads them into a vast wilderness where they think they have no need for God or human nature.
That way of thinking gave us nihilism, communism and all the other "-isms" that have led to so much human misery and death.
Because of Hume's faulty thinking, he was never offered a professorship in philosophy. All of the other Scottish professors made sure of that.
It was Thomas Reid's reaction to Hume that created the Common Sense movement.
Hume wrote a history of England that even Thomas Jefferson rejected when he was gathering history books for his students at the University of Virginia and chose instead John Lingard's "History of England," who was a Jesuit.
I can't understand why anyone would still be fascinated with Hume.
The defenders of natural law cite Rom 2:15, as Dr. Beckwith did, saying that the law is written on our hearts. But I think they are missing something. Here is Rom 2:14 and 15:
14 For when Gentiles, who do not have the law, by nature do what the law requires, they are a law to themselves, even though they do not have the law. 15 They show that the work of the law is written on their hearts, while their conscience also bears witness, and their conflicting thoughts accuse or even excuse them
I may be splitting hairs here, but when I read those two verses I do not see that the specific content of the law is written on people's hearts, which would be required if natural law advocates are correct. In fact is specifically says that the Gentiles "do not have the law."
Instead, what I see is that the idea of law is written on people's hearts. What that means is that everyone has a sense of right and wrong, that some things are good and some things are evil. That does not say that everyone will agree with the specific content, or forms that sense may take. C.S. Lewis has an excellent analysis of this in the chapter entitled, "Right and Wrong as a Clue to the Meaning of the Universe," in his book, Mere Christianity.
Where Beckwith says that "the human mind is ordered toward the truth..." I would say merely that the human mind is ordered toward truth. Again, that seems to be nit-picking, but the insertion of "the" suggests that there is some positive (in the legal sense), knowable content. By removing "the" I am arguing that while all humans know that "truth" exists, no content is available to us through reason alone.
What natural law advocates seem to want to do isas Beckwith accuses Hart of doing by stealthto "derive an ought from an is (i.e.. nature)" to assist in establishing principles of law that all would have to agree were self-evident in nature. But nature does not cooperate with us in that task. Much of what we perceive as nature is a result of the Fall. But nature, as Tennyson famously reminded us, is "red in tooth and claw." (I accept that is a far too simplistic understanding of Beckwith's position.)
Even if nature were not corrupted by the Fall, our own reasoning is corrupted, and fundamental to the human condition is the idea that we are incapable of rightly perceiving good and evil without revelationand in this case, I don't believe general revelation is sufficient, hence we have the Scriptures.
The problem is not so much that Hume is wrong in saying that “you cannot derive an ought from an is,” but that no one can possibly live by that maxim.
Thanks, I’ll check it out. In the meantime you might enjoy this PDF of an out of print work by Jacques Ellul, entitled The Theological Foundations of Law.
Sorry, I don’t have a picture of the cover. ;-)
Thanks back at you. I prefer pre-PC works. A summary would make a good FR post. (Hint)
Yikes. Summarizing Ellul is no mean task. I’ll give it a shot, but it will probably be few days (I’m a little busy right now.). I’ll ping you when I’m done.
Wow. Thanks for posting that link!
It is true that from necessity of nutrition does not follow that starving the farmers is wrong. For example, in order to repel an invasion the troops forage in the farmland and that might cause starvation of the farmers. Or, a natural famine might not be alleviated at any reasonable cost and the farmers starve through fault of no one.
However, this is not the only “is” producing the “ought”. Generally if there are two objective facts: (1) a good is destroyed and (2) an outside actor free to act differently destroys it, then we can say objectively that the actor ought not do that: he is violating a natural law. For example, if the Russian countryside were simply left alone in 1930’s, the Russian farmers would not starve and would have excess produce to feed the rest of the country. Therefore forced collectivization was a moral wrong, — not simply because the farmers starved but because if left alone no one would have starved.
In short, if a good is enjoyed solely through ownership of a resource, then such enjoyment is a right and freely chosen violation of that right is a violation of natural law.
I suppose Double Effect is both one of the most important concepts in natural Law, and one of the most frequently misapplied/misundestood. It's hard to explain the difference between Proportionality and Consequentialism. But it CAN be explained, and when people get it, it's like he cartoon light bulb going in over their heads.
It's indispensable. Every year, I try to teach Double Effect to my n00bie RCIA Catholics.
The Double Effect is a secondary consideration. The primary consideration is: does the actor have a freedom to act and does he choose to destroy a good in another? This is an objective criterion. If the answer is yes, then he initiated violence against the owner of that good.
Now, real life situations usually call for a balance of diverse intents and so double effect becomes a consideration; but the fundamental right and wrong per natural law is rooted in the above principle alone.
I am not sure if this is necessarily Catholic. In popular mind this resembles the libertarian Live and Let Live; the philosophical discovery of the natural rights belongs, I believe, to Fichte.
Well, I admit I’m not entirely clear about this. I tried, repeatedly, to reach Elizabeth Anscombe’s “Intention” and really couldn’t make heads or tails out of it.
"Natural law" implies a law and a morality independent of G-d. Theonomic positivism has its problems, but I far prefer it to "natural law."
Here’s a little parable that contrasts free act with intent.
Let us say I grew an apple tree on my land so that there are apples on it.
A storm came and destroyed some of the apples.
A passerby took some apples so that her child would not starve.
A revolutionary took some apples in order to give them to all the children.
A thief took some apples and ate them.
Here we see, in succession, no human actor, a human actor who is not free, a human actor who is free and has a good intent, and a human actor who is free and has a selfish intent. The good that is destroyed: a few apples, — is the same in all cases. The natural right to the apples is mine in all cases, since I took nothing from others to grow my tree. But the right is violated when a free actor chooses to take my good, that is in the two last cases. The intent of the revolutionary and the intent of the thief are different, but the objective observed result is the same: the apple is mine; they did not have to take my apple; they took it knowing it is mine. That is natural law. The moral judgment will make a further distinction of intent and may exonerate the revolutionary based on the nobility of intent; but that would be mercy as opposed to natural law.
Let me pose a different example. Say there's a fire in a multi-story building. The fire-fighters rush up the narrow staircase to try to rescue 2 children on the second floor. Seconds count. At the top of the stairs they find a 300-lb woman collapsed from smoke inhalation--- and collapsed in such a position that she's blocking the door at the top of the stairs and the firefighters can't open it. They can't lift this woman, but they could push her off to the side so that she falls down to the first floor, then open the door and get the two children out of the building.
They know that this will probably result in at least bruises, probably broken bones, for the very heavy woman, and in any case it;s unlikely they could come back for the after they get the children out.
Are they justified in pushing her off the staircase?
You answer. Then I'll tell you mine.
It seems that since they have to actually push the woman to her likely death, and cannot bypass her, the firefighters must not do that in order to rescue the children.
This is a double effect question, not a more general rights question.
(1) The paramount objective is to save lives, if this can be done without violating any exceptionless moral norms.
(1) Since the woman's life cannot be saved, that is off the table as a duty. (Something that is impossible cannot be obligatory.)
(2)The duty that remains is, saving the children.
(3)What will happen to the woman if you push her off the stairs? That is unknown. She could land someplace soft and be uninjured. She could be bruised. She could break a bone. She could break her neck and die. Any of these outcomes are foreseeable, but unintended. The one thing intended is to move her away from the top of the stairs.
(4) Will pushing her over the side of the steps, kill her because she'll be burned in the fire? No, because she will be burned in the fire in any case. At the top of the steps, she is doomed to die in the fire. At the bottom, she is still doomed to die in the fire. Pushing her off there steps is neutral with regard to fire fatality hazard.
(5) My conclusion. Push her off the steps.
If there is any possibility of doing so (in this seconds-count situation) try to minimize the harm of her fall. If there is a mattress handy, shove it over for her to land on. (But if you can't, you can't.)
After the children are out, go back and see if you can drag her out of the house on the mattress. (But if you can't, you can't.)
I see it as essentially a triage situation. Your "perfect" intent is to save everyone--- and you will, if things go "perfectly." But you know in all probability that won't happen. So you save the two children you can. Then (if remotely possible) you go back and try to save the woman. (But if you can't --- say the ceiling has collapsed --- you can't.)
What do you think of this?
There is a question of freedom to act. In the example, when a mother steals an apple to fit the child, I indeed did not clarify the presumption that for a mother there is no choice but to feed the child. If she has a choice: the child is crying but not in danger of death, then she may not grab that apple. Another example would be if the private property is not marked: then, perhaps (depending on the acculturation) an intruder is not acting freely simply because he does not know that the apple is private and cannot be taken. (The latter was the situation with the American Indians who simply could not grasp the concept of private land for agricultural use).
Back to your example: the firefighter is a professional, trained to evaluate the situations and consequences of them. So, he will be killing the fat woman freely by pushing her off the stairs. His duty is above all not to kill anyone; this duty remains even though she is about to die anyway. His duty to save the children is satisfied: he made an attempt and discovered that he could not do so without committing a murder. If the child pushed the woman, or a parent, then the moral equation would have been different because the child or parent would be acting in a highly agitated state and not freely.
Likewise, a doctor may attempt to save the life of the mother in labor, but he may not kill the baby in order to treat the mother: both the baby and the mother are his patients.
Likewise, a priest who is told at confession that the penitent is about to commit a heinous crime may not use the information the priest obtained to stop the crime.
These are all cases when double effect provides no excuse because a positive step is taken freely and in the knowledge that the step is immoral. The fact that the criminal step serves a greater good does not excuse the step.
I should have clarified, too: that under no circumstances can the firefighters kill the fat woman, as a means or as an end. Even if they can't save her, she has to be treated as a dying person, not a sack of meat.
For instance, if they found they couldn't shove her because of her weight, they couldn't dismember her and throw the pieces down separately. That would be murder full stop.
However, if the landing point is only one floor (10 feet) down, you can quickly make a reasonable judgment that hitting the floor won't kill her. You might (professionally) anticipate that it could cause broken bones, depending on how she hit, but that doesn't absolutely rule out an action: EMT's sometimes break ribs doing CPR on frail patients, people sometimes break legs landing in a rescue net, it's a commonly acknowledged risk, justified (I think) by the proportional and reasonable expectation that this will save lives.
As I mentioned also, it would be morally obligatory, if possible, to try to ensure a safer impact (throw a mattress down first) and, later, to rescue her, of course, again if it's possible.
But in my view, just pushing her off the steps in itself is not murder. There is not the intent of murder, and it is not an act of murder. It is an act of triage. (In my view. I am not an expert in the situations that arise in fire rescue situations, for sure.)
I would agree that just shoving her off as a "dead loss" when she's not dead, would be gravely wrong.
Breaking ribs during CPR or breaking legs jumping are different scenarios: the rescue effort is directed at the same person suffering a double effect. Here the fat woman gets an injury before she dies, and the injury is direct result of a freely undertaken act of the firefighter.
I suppose you can say that the injury can be neglected in comparison to death, if it is merely a risk of injury. However, I still don’t see pushing her to a sure injury. It could the the case where the mind of the firefighter simply cannot contain the amount of faith in God necessary to consider the situation intractable. But still, the moral ideal is to leave the situation to God and not push the women; the situation, in truth, is intractable.
So do we have a recognized Catholic moral theologian opine on this?
I’m not sure to whom I’d turn.
I would add this. Between cutting the fat woman to pieces in order to remove her from the stairway, and dropping her to a likely injury, the difference is in degrees. In principle, both are intentional causing injury: actions intrinsically bad.
Here's where we disagree. Dropping her to a likely injury is surely physical harm, but there is nothing morally bad about it, no --- zero ----moral offense, if these two conditions are simultaneously met:
In all your recent examples both the harm and the benefit accrue to the same person, as well as perhaps another: the child pushed out of the way is the same child protected from the psychological scar of causing injury (plus, of course, the other child is protected from the injury itself); the other two are exactly the same person getting both sides of the double effect.
I do not see how injuring a woman before her death in the fire is intrinsically good or neutral. It is intrinsically a moral bad.
It is only the huge imbalance between the injury: merely a broken bone a minute before painful death and the good: the rescue of a child from the fire that obscures the analysis.
Remember there are three components to invincible double effect:
1. Intrinsic nature of the act is good or neutral.
2. Intent is good.
3. Harm is outweighed by the good.
In your principal example, (1) is lacking. If the firefighter pushed her out of the way of the fire, but caused an injury, that would be an intrinsic good like in your three recent examples, but that was not your original case. If he pushed her around while still unable to remove her from the fire, that would be intrinsically neutral. But he, a firefighter capable of evaluating the odds, injures her; injuring people is intrinsically bad.
Yes, I have children and understand the realism of the three recent examples. I also still remember nearly poking the eye of my play-fencing childhood mate and shudder at the thought.
In this case, removal of the woman from the door entry is precisely what is intended, and it is intrinsically neutral. Injury is what you do not want, and try (within the limits of the possible) to prevent or mitigate, and therefore is not intended.
Injuring her is not desired, neither as the means nor as the end. It is a separate thing from removing her from the door entry area, which is a neutral act. "Injure the woman" was never part of the plan.
If you push her away and --- despite the mattresses --- she hits hard and breaks her collarbone, that was foreseeable but unintended. It formed no part of what you desired to accomplish, neither as a means nor as an end.
I would say that a result you absolutely do not want, and tried to prevent or mitigate, cannot be said to be "intended."
It's somewhat like an ectopic pregnancy situation. You're not intending the death of the human embryo; that's not what you desired to accomplish. You intend the removal of the life-threatening condition. IF you could remove that embryo and get it to reimplant someplace else -- in the mother's uterus, or in some artificial gestational system -- you would be morally obliged to do so. But if you can't, you can't.
You still remove the embryo: its removal is precisely what is intended,; but its removal causes an unintended harm. Avoiding the harm, or even saving its life was not, in any case, possible. That which is impossible cannot be morally obligatory.
Come to think of it, that would make it very hard to justify the removal of an ectopic pregnancy; and as far as I know, she raised no moral objection to the embryo and tube removal. Yet one can't imagine this conversation: "You harmed a living embryo!" "I didn't know I was doing that.")
It applies, I think, to my example, in this way. Say you pushed the woman off the stairs and she ruptures her pancreas and collapses a lung. You could honestly say, "I didn't know I was doing that." Or say she suffers a broken ankle. "We did what we could to prevent broken bones." Or say she lands in precisely such a way that she crashes onto a sofa without injury to herself. "Thank God, that's just what we were hoping for." Any and all of these phrases could show lack of harmful intent.
Compare the situation where they try to lift her (rather than just roll her off the stairs) and, pulling hard on her arms, they dislocate her shoulders and tear ligaments. In this case even though they knew there was a risk of doing that, I would say there still was not intent. "We didn't know we were doing that." "It's sure not what we were aiming for. We were just trying to remove her."
Thank you for both. Tomorrow...
This set of criteria states that an action having foreseen harmful effects practically inseparable from the good effect is justifiable if the following are true:Of interest to us is that the first two are separate. There is the intrinsic nature of the act, and the intent of the act. You are correct that the intent of the firefighter is good. But that speaks nothing of the intrinsic nature of the act.
- the nature of the act is itself good, or at least morally neutral;
- the agent intends the good effect and not the bad either as a means to the good or as an end itself;
- the good effect outweighs the bad effect in circumstances sufficiently grave to justify causing the bad effect and the agent exercises due diligence to minimize the harm.
The intrinsic nature of pushing a woman down the stairs is to cause an injury. It is in the nature of falling down from a certain height that an injury results. That is itself does not yet fully describe the act: for example, similarly injuring the enemy in a just war is not intrinsically bad. However, the woman is not an enemy: her injury is not preventing her from doing harm. It is then intrinsically bad act of causing injury to an innocent.
If that does not work to you, please explain how anything can be intrinsically bad in your system. For example, how is it that abortion is intrinsically bad but causing the same fatal injury to an enemy soldier is not bad.
I can't answer your hhouht-provoking questions right now, because Ih ave to get at my garden again before it rains. You know how it is in the Springtime, weeks of enforced idleness because the weather isn't right, and then all of a sudden everything is urgent, and needs to be done at once!
I WILL get back later today. If I don't, give me a sharp kick!
We had snow in Kansas City. Enjoy the rain.
Snow! Yow! My little 6-pack of Israeli tomato plants just came in the mail, and I’m thinking of putting ‘em in the ground on Saturday. Snowy KC, eek! I guess I’ll stop complaining about our Tennessee weather :o/
OK, I just got back from my RCIA’ers -— we’re doing Mystagogy and getting ready for our “Missioning” thing with Bishop Stika this Sunday. Lord, I love these converts!!!
I will absolutely get back to you tomorrow about Natural Law. We’ll get that ironed out for sure :o)