Tuesday, April 23, 2013

A Brief Introduction to Natural Law Theory IIIb

Part IIIa

IIIb. Particular Precepts as Ordered According to Goods

The ordering of the precepts according to goods is in many ways the most difficult part of natural law theory to cover in an introduction, in part because there are diverse views about what conclusions can be drawn from it, and in part because it is one of the points at which historically one has found the greatest divergence of views among natural law theorists themselves. Different natural law theorists also tend to want to draw different conclusions from the ordering. In order to give just a basic summary, then, I will have to abstract from a great deal of debate, and rather than give any sort of comprehensive historical discussion, which would be overwhelming regardless of one's background, I will just note a few examples. In order even to do this, however, I will have to take some kind of position on a few key points, and the position I will be taking will be controversial. I think it is both essentially right (although this post will only allow a very simplified form of it) and the simplest position to take, and thus very suitable for an introduction. But it should be noted that there are plenty of people who will disagree with me on some key points in the following. This is unavoidable; and part of being introduced to a general approach is being introduced, even if in only a very limited way, to its areas of controversy.

The most obvious starting point here, as elsewhere, is with the account as we find it in Thomas Aquinas. And we must keep in mind the question he is actually considering: how is it that the natural law can be both one and many? Human goods seem to be quite various, so in what way can natural law even be coherent? We start with the first precept of practical reason as a first principle: good is to be done and pursued and bad avoided. All other precepts presuppose this in some way, and so they all concern good or bad as something to be done or avoided, just as all the principles of theoretical principle presuppose the principle of noncontradiction and so concern true and false and what is consistent with them. But human beings recognize good as that to which we tend or incline in some way, so the other precepts after the first are "ordered" according to the order of the natural inclinations:

Kind of Inclination Kind of Good Example Precepts (if any given)
continuing to be, like every substance means of preserving life, eliminating obstacles to life
"what nature has taught to all animals" sexual intercourse, education of children, etc.
inclination to rational good knowing truth about God, living in society shun ignorance, avoid offending those with whom one lives

It is important in this to recognize what Aquinas does not say. He does not say, for instance, that the precepts are somehow directly deduced from the good in question. He doesn't actually tell us any more about the relation between the goods and their precepts than that the precepts, which concern good, are ordered according to the natural inclinations, which tend to good. This is a very indirect kind of locution, and Aquinas does not expand on it. We can go a little farther, and recognize that when he talks of ordering here he is speaking specifically on the question of how the precepts can be unified and yet diverse. There is some kind of hierarchy here, although it is important, again, to recognize that Aquinas doesn't actually tell us its governing principle. It's easy enough to see that, although all the goods in question are human, as we move from substantiality to animality to rationality we are getting into goods that are more distinctively human.

But I want to emphasize -- yet again -- that what Aquinas gives us here is just a scheme of goods that parallels a scheme of precepts, and he does not actually tell us the relation between the two schemes. All he tells us is that the precepts are ordered in the same way the goods are. This parallel follows as a relatively obvious consequence of the first precept combined with the idea that goods are ordered to other goods, and the scheme itself is derived simply by considering goods from least expansive (but least distinctive) to most expansive (but most distinctive). Both the parallel and the scheme can be read in more than one way; St. Thomas's immediate concern, again, is merely to show the way in which the precepts of natural law can be both unified and yet diverse.

Aquinas's scheme here has been quite common, but it might be worthwhile to compare it to a later variant, that of Suárez:

Kind of Inclination Kind of Good Example Precepts (if any given)
of human beings as individual preservation of being and safeguarding of welfare precepts of temperance and fortitude
of human beings as corruptible or mortal preservation of species precepts of prudence and chastity
of human beings as rational immortality, spiritual perfection, communication with God, living in society precepts of justice, religion, etc.

This gives us a somewhat different flavor. We have the stepping away from animality to focus on mortality. Suarez goes out of his way explicitly to reject the idea that there is a natural law common to human beings and other animals, insisting that only rational animals can be subject to law in the relevant sense. Thus we see that he has adapted Aquinas's scheme to eliminate any suggestion that the natural law is shared in any way with all substances or all animals. Nothing about Aquinas's scheme requires that it be read as saying that rabbits have natural law in the sense that we do, but anyone who has tried to explain natural law to anyone soon realizes that this is exactly the way people are inclined to read it when they first come to it. Suarez is deliberately eliminating this possibility: it is our rational recognition of goods available to us as individual, mortal, and rational that establishes the order. This is partly also due to the fact that Suarez wants to hold that natural law is a matter of rational judgment and reject the view, common at the time, that it is somehow built into our inclinations.

Very different from these is the view that we find in New Natural Law theorists like Grisez and Finnis. There are lots and lots of complications in the dispute between New Natural Law theorists and other kinds of natural law theorists that I will not get into here. But the New Natural Law theorists tend to speak less in terms of natural inclination and more in terms of basic human goods, which are incommensurable, i.e., not reducible to each other. (The word 'incommensurable' often causes confusion wherever it lands; it does not mean 'unable to be compared' but 'having no common measure'). The basic list consists of:

(1) life
(2) knowledge
(3) play
(4) aesthetic experience
(5) sociability or friendship
(6) practical reasonableness
(7) religion

The original idea was that this was supposed to be exhaustive, but Finnis has more recently come to the view that there is at least an eighth good, marriage; he had originally thought that it was a good that reduced to the others, but has come to regard as basic and irreducible in its own right. And there are occasional other variations among different New Natural Law theorists; for instance, skilled work sometimes makes it on the list. It is commonly said that these goods are non-hierarchical, and this is commonly treated as being the same as saying that they are incommensurable. The two are in fact two completely different things, and the confusion of them is quite an egregious error: holding that there is a hierarchical ordering among goods simply does not commit you to holding that they are commensurable, and vice versa. While Finnis seems to take a fairly strong line and often treats them as simply not hierarchical at all, Grisez has tended to be more cautious, only ruling out what he thinks are mistaken kinds of hierarchies, while deliberately at times stepping back from any claim that there is no hierarchy among them. My view is that we should take New Natural Law, as such, as simply leaving the question open whether there is any kind of hierarchical ordering among these goods.

New Natural Law theorists argue (rightly, although they often express this in ways that I think are highly misleading) that the precepts of practical reason cover more than moral obligation. Practical reason is not confined to questions of moral obligation; it also includes weaker moral matters and matters of skill or art. Thus the New Natural Law theorists insist that moral obligation arises only when we are considering what is required for (or inconsistent with) a kind of integrity or wholeness of all these goods in human life. (There is some variation among New Natural Law theorists in how this is characterized.) But what I want to point out is that this issue of integral fulfillment is already built into Aquinas's scheme: there it just is the ordering of goods to each other. Now, exactly how we should read this integral wholeness of good (and thus of natural law) is another question; as I noted above, he doesn't give us any kind of detailed account. When New Natural Law theorists talk about integral human fulfillment, therefore, they just are talking about some kind of ordering of goods, even if it's not a rigid one. (But nothing requires that Aquinas's be taken as rigid, either.) And the reason for this is obvious: Both Aquinas and the New Natural Law theorists hold that natural law is both one and many, and so they both have accounts that indicate that it is so. (I take no position here about how they relate or don't relate to each other beyond this functional similarity.)

It's an interesting question how this scheme of basic goods relates to Aquinas's. One possible way to look at it is to see Aquinas as arguing forward from general considerations about human nature to the very general kinds of goods that are possible for a human life; whereas New Natural Law theorists are clearly arguing backwards from human culture, or custom, to the specific kinds of irreducible goods that are required for or at least common throughout human culture. This is why some people feel that the New Natural Law list of basic goods has a sort of rag-tag feel to it. But it is perfectly legitimate, although limiting, to argue in this direction; if Aquinas's approach is analogous to arguing from cause to effect, the New Natural Law approach is analogous to arguing from effect to cause. Nobody took Aquinas's scheme to be the only possible way to organize the discussion of goods, not even Aquinas, who is in context only handling the question of how natural law can be both unified and diverse. Aquinas's own specific natural law discussions are ordered according to virtues, and Suarez (for instance) notes that in addition you can order the precepts according to object (God, neighbor, self) and according to certainty (self-evident, proximately deduced, etc.).

Thus it's important to grasp that natural law theorists are not bound by Aquinas's scheme. The point of the scheme is simply to show how natural law can be coherent, and it does not exclude other schemes being perfectly legitimate. This does not mean that more robust interpretations of Aquinas's scheme are impossible or indefensible; only that in the most obvious context in which he raises it, he is only concerned with a very specific question, and to that extent any additional insights that might be derived from the scheme are incidental to his immediate topic. Hence the genuine possibility of diversity on this matter. It's not my concern here to adjudicate the differences between opposing varieties of natural law theory, nor their differing judgments about the importance of direct appeal to natural inclination, nor to combine them together in an irenic unity. Despite taking a position or two, I have not given any sort of general account. Rather, we're just looking at the basics here, which involves recognizing controversy while abstracting from many of its details.

In any case, in the next post we will move on to a less complicated and controversial discussion, that of how and why people deviate from natural law, before moving on to the question of how natural law is related to positive law.

Part IIIc

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