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.