Monday, March 16, 2015

Gutting on Natural Law

Gary Gutting has an odd argument about natural law theory at The Stone. Part of the oddness, perhaps, derives from the fact that he never bothers to clarify most of the things he is talking about. This, for instance, is his account of natural law theory:

This tradition sees morality as a matter of the moral laws that follow from what fundamentally makes us human: our human nature.

This is extraordinarily misleading. The natural law tradition sees at least some morality as a matter of the moral laws that are rationally evident in themselves, or that follow from such laws. Natural law theorists have historically held that there are areas of moral life only loosely related to moral law; it's just that these looser areas presuppose the moral laws as a skeletal framework. Natural law theory is also not itself a theory of human nature; it is a theory of practical human reason where it concerns the common good of human beings. Human nature enters into the picture because the kinds of goods that can be common goods for all human beings obviously have to be identified in light of human nature itself. Gutting then goes on to suggest:

The problem is that, rightly developed, natural-law thinking seems to support rather than reject the morality of homosexual behavior. Consider this line of thought from John Corvino, a philosopher at Wayne State University: “A gay relationship, like a straight relationship, can be a significant avenue of meaning, growth, and fulfillment. It can realize a variety of genuine human goods; it can bear good fruit. . . . [For both straight and gay couples,] sex is a powerful and unique way of building, celebrating, and replenishing intimacy.” The sort of relationship Corvino describes seems clearly one that would contribute to a couple’s fulfillment as human beings — whether the sex involved is hetero- or homosexual. Isn’t this just what it should mean to live in accord with human nature?

But natural law theory is not specifically about "fulfillment as human beings", a vague phrase that describes almost every moral account one could name. Corvino's argument is entirely focused on consequences, but no natural law theorist would look only at consequences. And, what is more, the goods identified by Corvino's argument are all arguably private goods: meaning, growth, fulfillment, intimacy -- while these might touch on or be relevant to goods common to all humanity, nothing about them requires that they be common goods in themselves. Contrast this with reproduction as continuance of the human race or reason itself, which are reasonable candidates for a good that is common to all human beings. Your private meaning, growth, fulfillment, and intimacy only become even plausibly significant for determining right and wrong in a genuine natural law theory to the extent that they become entangled with something like reproduction or the goods of reason itself. Now, in a matter like sex, as with politics and religion, this can happen fairly easily, since sex is a major pillar of civilized life; but it has to happen.

Gutting then attributes a supplementary argument made by some natural law theorists (the selfishness point he mentions) to all natural law theorists as if it were their primary argument, and manages to mangle it, as well, focusing on selfishness rather than objectification. In the course of this mangling, he says:

The awkward talk of “an act that could not in principle result in pregnancy” is necessary since those who put forward this argument want to maintain that heterosexual unions in which one (or both) of the partners is sterile are still moral. There’s nothing unnatural about their intercourse because it’s the sort of act that in general can lead to reproduction.

Here we see Gutting falling into a common misapprehension, that natural law theorists arguing against same-sex sexual activities do so because they are claiming that the intercourse is "unnatural" (unless by this you simply mean 'not appropriate to a rational life'). Natural law theorists rather argue that they are wrong on the same ground that they would argue that it is wrong to quarrel with people just because you feel like it: that it is in a robust sense irrational in the sense established by the account of practical reason in natural law theory. They may sometimes also hold (and often have held) that certain problematic features of the wrong are aggravated because it is unnatural in some specific sense; but this is a distinct issue, and the specific sense matters.

All of these obscurities and confusions are rookie mistakes; they are not what one would reasonably expect of a professor of philosophy at Notre Dame. Despite the reference to Corvino, for instance, Gutting's argument on the subject is massively more muddled than the arguments of Corvino himself, even when Corvino is also talking in a very limited and popular forum. Contrast Gutting's argument, for instance, with Corvino's argument in this seven-minute YouTube comment; despite the fact that they are very similar in many of their basic ideas, Corvino's argument in the last three minutes alone is massively better than Gutting's: less vague, more coherent, better reasoned.

[I found, incidentally, the 'many would see the argument as proving too much' line a bit amusing, since this is how one plays rhetorical games: if it were narrowly focused, the argument would be dismissed as biased against gays and lesbians; since it covers "birth control, masturbation and even non-reproductive sexual acts between heterosexuals" (you have to love that "even", as if sexual acts between heterosexuals were somehow especially immune to ethical scrutiny), and, indeed, only addresses homosexual sexual activities as a secondary and incidental matter, one instead casts the net as widely as possible to get as many allies as possible. In reality, of course, any Catholic account of sexual ethics is going to be fairly restrictive across the board because (1) it will maintain the central importance of marriage between man and woman; and (2) it will preserve essential elements of the ethical ideas of Classical antiquity, which also tend to be quite restrictive in sexual matters (since even when they tolerate things that later ceased to be tolerated, the philosophers of antiquity were constant critics of common indulgences of their culture). Expecting a Catholic position on sex that does not argue for what "many would see" as "proving too much" would be absurd; and it is irrelevant to the question of what a Catholic position can accommodate, which is the question at hand.]


  1. John Casey9:31 AM

    What you're calling "natural law theory" is a bit vague, I think. Gutting clearly has some specific version of NL in mind, yet you reply that his claims do not apply to all (or the best) versions. I'd say the best reply to him is to outline the different versions, show how he should have discussed them (not the allegedly weak and unrepresentative one he chose).

    One further question. You write: "Natural law theorists rather argue that they are wrong on the same ground that they would argue that it is wrong to quarrel with people just because you feel like it." I'm struggling with this analogy with gay sex, as in this example, one person isn't consenting.

    By the way, I stumbled here looking for Kant's discussion of dinner table conversation. I enjoyed your post on that.

  2. branemrys2:54 PM

    Gutting's purpose is quite clear; he needs to address not this or that branch of natural law theory but all Catholic natural law theories in general; otherwise he cannot derive his further conclusions. You seem to be dropping this argumentative context. Further, while there are arguments that tend to be shared by different schools of natural law theory, Gutting has selected one that would only occasionally be used, and then almost never as a primary argument, outside a very specific set of New Natural Law theorists. This is simply not a reasonable approach for the kinds of conclusions he is arguing.

    Quarreling is not an analogy to gay sex in every way; its wrongness, however, has the same general account in natural law theory, which I note in the next clause. Consent, for instance, would only be one of a number of things considered by natural law theorists, and only insofar as it is directly relevant to the thing that natural law theorists hold actually makes something wrong: practical irrationality in light of human common good.

    The Kant post has become one of the more popular posts on the blog.

  3. John Casey4:17 PM

    Thanks for the coherent reply.

    I can see that Gutting attempts to prove to much, as it were, with his narrow focus on teleological natural law claims. Those are clearly the weakest of the bunch--but they're arguments some people seem to make and seem to believe. I'd guess, and can support anecdotally, that most lay defenders of NL would make the strong (and thus weak) teleological claims Gutting is addressing. Thus, I think, his preference for them. Naturally, as you point out, this is a move that warrants clarification. Having said that, would you consider such telelogically-based natural law claims to be weak, as Gutting alleges? If that's the case, maybe Gutting isn't confused, he's just attacking a weak man.

    On the other hand, I'd benefit from your providing a bit of context on natural law. In what sense is it a "natural" law at all? I'm not asking for much here, just why we're calling upon "nature" at all.

    Another question, if you don't mind, along these same lines. I don't get the quarreling analogy at all--would you mind giving it another try?

  4. branemrys1:36 AM

    All natural law claims are going to be teleological in some sense -- practical reason is inherently about means and ends, and natural law claims are about practical rationality given certain goods that serve as ends -- so I suppose it would depend in great measure on precisely what one takes 'teleologically based natural law claim' to include. I don't think Gutting manages to hit any real-world natural law theorists, no matter how crude. (One of the problems with Gutting's argument is that he's so vague about what he actually has in mind -- this is one of the contrasts with Corvino, who is very good at making this clear, and who in every case I've come across focuses on very specific accounts. Gutting reads throughout like someone who is following Corvino but repeatedly garbling the argument because he doesn't know the source material very well. But part of this could simply be that he lacks Corvino's caution, and so generalizes parts of Corvino's arguments far beyond what they can actually tolerate.)

    Natural law theory gets its name because it posits a law natural to human reason, insofar as it is practical and concerned with good common to human beings, which accounts for moral obligation. (Thus Aquinas, for instance, argues that there are principles of practical as well as theoretical reason, and that these rational principles, when concerned with certain kinds of goods, are properly considered laws.) Human nature also comes in insofar as we are considering what goods are or can be shared by human beings as human beings: reasonable security of survival, the preservation and education of the human race, rational pursuit of truth, civilization, and so forth.

    Quarreling itself is not the key issue. I think perhaps the problem is in thinking of quarreling as a (specific) analogy in the first place; the point is rather that, if we are talking only the very basic question of whether something is wrong, for the natural law theorist the general account is going to be the same across the board, whether we're talking sex or quarreling or anything else. Thus at the level of wrongness, if one hasn't introduced some specifically defined sense of 'unnatural', quarreling is as 'unnatural' in natural law terms as any kind of 'unnatural' sex might be, and for exactly the same reason: it is inconsistent with a practically rational life concerned with common human good. The precise goods at issue would be different, and the inconsistency might be more or less severe; but on a natural law account there's not a different kind of wrongness for (say) necrophilia as 'unnatural' sex and quarreling, which would have just as much right to be called 'unnatural' communication, because it, too, is inconsistent with the moral law natural to human reason.

  5. John Casey8:23 AM

    Thanks for the reply.

    I see your point about Gutting's argument. I'm not defending him here, but I think we have a limitation of forum to some extent.

    I fail to see, however, how the account of natural law you're outlining here is either (1) not teleological in the clumsy sense Gutting alleges or (2) question-begging, where calling it "natural" doesn't add anything. As for (1), what determines whether a law is "natural" to human reason? Is this an empirical claim of some variety? I say this because this is how I usually learn about nature (by observation, in other words). As for (2), if perhaps some other meaning of "natural" is meant, then what is the point of calling it "natural" law. Why not just call it "the moral-realism I defend"?

    Perhaps, however, you could directly answer me this: what makes homosexual sex (and marriage, etc.) wrong? I still fail to get that.

    Thanks again for your replies--I apologize for my beginner questions.

  6. branemrys9:25 AM

    I think Corvino shows that limitation of forum is actually not an issue at all with this.

    As far as I can tell, you are confusing Gutting's argument with some other argument; Gutting doesn't address teleological questions, and has no argument that the teleology in question is clumsy. Indeed, he can't; his explicit argument is actually the reverse, that the kind of natural law arguments used by natural law theorists would make more sense if taken as allowing rather than prohibiting. He has no argument that the kinds of argument used are defective in any way.

    The relevant question is actually: What makes the principle of noncontradiction natural to human reason? That's more the sense of 'natural' that's relevant. (Indeed, often quite literally; you have only to look at Aquinas, for instance, to see that this is explicitly stated.)

    Why not just call it "the moral-realism I defend"?

    I'm not sure whether this is actually a serious question. 'Moral realism' is a term that is a few decades old. 'Natural law', in some form, goes back nearly two millenia and possibly more. And Cicero (to give just one example) in calling it natural was pretty clearly not obligated to take into account whatever baggage anyone today is attaching to the word.

    what makes homosexual sex (and marriage, etc.) wrong?

    If you are talking about what natural law accounts generally would say, I've already answered that: anything that is wrong is wrong because it violates practical reason insofar as it is oriented to common human good. If you are asking about specific arguments, they will vary depending on the kind of natural law theorist in question; which is one of the reasons why Gutting's argument is a structural wreck (and Corvino's is not), because it doesn't make proper distinctions among them or distinguish between what natural law accounts have in common and what diversifies them. Thus his statement, for instance, that natural law theorists 'typically' give arguments that in the form he states are in fact mostly found only among some of one school of the Catholic natural law tradition.

  7. John Casey1:18 PM

    Let me try this another way: what makes homosexual acts specifically wrong for the most representative of the natural law tradition? I get the general idea that some think them wrong according to their general account (as you've described it). How do I know, in other words, how this (and other) particular acts "violate practical reason insofar as it is oriented to common human good"? I'm guessing it's not the principle of non-contradiction.

    By the way, the "moral realism I defend" remark was actually serious (see the Murphy SEP entry):

    "Even though we have already confined ‘natural law theory’ to its use as a term that marks off a certain class of ethical theories, we still have a confusing variety of meanings to contend with. Some writers use the term with such a broad meaning that any moral theory that is a version of moral realism — that is, any moral theory that holds that some positive moral claims are literally true (for this conception of moral realism, see Sayre-McCord 1988)— counts as a natural law view. Some use it so narrowly that no moral theory that is not grounded in a very specific form of Aristotelian teleology could count as a natural law view."

    He answers this, of course, by saying, no, NL is really mainly Aquinas.


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