On Kozinski on the Hart Debate

Thaddeus Kozinski discusses the recent debate over Hart's article on natural law theory. It's interesting in that it shows just how seriously the pro-Hart camp doesn't understand what natural law theorists actually do. The very first sentences make this quite clear:

What is at the heart of the debate over Hart? It is this: both the classical and new natural law schools are wrong if they think that the natural law can be known, lived, and legislated in abstraction from tradition and culture, which is, at heart, theological. The classical view of metaphysics, at least as articulated by Edward Feser, presupposes an extrinsicist understanding of the relation of nature and grace, and reason and Faith, and is, therefore, not Thomistic. It’s as if Feser has not read, or just not digested, the work of John Milbank, Tracey Rowland, and Alasdair MacIntyre.

But, first, who in the natural law schools thinks "that the natural law can be known, lived, and legislated in abstraction from tradition and culture"? Natural law theory is in essence an argument for a practical logic; right back to the beginning it has pointed out that, like logic on the theoretical side, there is a sense in which the natural law is natural to us all (hence the word 'natural') and there is a sense in which it has to be developed out into its consequences, and that obviously requires (and is affected by) education and the like. This is explicitly pointed out by Aquinas; it's a common point among classical natural law theorists; and new natural law theorists, if anything, emphasize it even more. Consider the corresponding analogue with logic: people are wrong if they think that logic can be known, lived, and applied in abstraction from tradition and culture, for the obvious reason that the rational life can't be known, lived, and applied in abstraction from tradition and culture. Human beings don't spring out of the womb engaging in rational discourse proceeding from a pure natural power of understanding; we have by nature the capacity to engage in logical reasoning, but this has to be developed. Natural law theory just applies this same idea to practical reasoning.

This is why the appeal to Radical Orthodoxy and to MacIntyre doesn't work; none of these people are saying anything that is contrary to the basic idea in all natural law theory, because this tradition-based type of critique already presupposes that we share a human nature that allows us to participate rationally in traditions at all, and natural law theory, like logic, concerns what in human nature is required to participate rationally in the traditions in which we are raised. You can't accuse people of being extrinsicist, and therefore not accepting the Thomistic principle of nature being perfected by grace, if all they are doing is insisting that there is a nature to be perfected.

The same problem laces the entire argument. Kozinski says, "Of course, the error of the new natural law theorists is grave compared to such extrinsicism, namely, the adequacy of practical reason alone to ground and explain ethical theory and practice." But no one says that, whether classical or new. Every natural law theorist, regardless of preferred approach, recognizes that there are elements of practice that don't depend on "practical reason alone"; and if there were any who didn't, this would be a position entirely independent of their natural law account itself.

He then goes on to say:

In my view, both the classical and the new traditions neglect these four realities: 1) the mutually dependent relation of speculative and practical reason; 2) the subjectivity-shaping role of social practices; 3) the tradition-constituted-and-constitutive character of practical rationality; and 4) the indispensability of divine revelation in ethical inquiry and practice.

But classical natural law theory depends entirely on "the mutually dependent relation of speculative and practical reason": that's how classical natural law theorists argue for the first precepts of practical reason; both classical and new natural law theorists explicitly emphasize "the subjectivity-shaping role of social practices" and by extension "the tradition-constituted-and-constitutive character of practical rationality", because that's precisely how they explain disagreements in practical reasoning; and since the overwhelming majority of natural law theorists have been Christians of one stripe or another, they've never denied "the indispensability of divine revelation of ethical inquiry and practice" -- in fact, classically it's been common, going back to Aquinas himself, to point out that problems in our practical reasoning that are uncovered by natural law theory at least suggest a need for divine positive law.

This has been much of the difficulty in the discussion, that the critics in question repeatedly make their criticisms fly simply by attributing to natural law theorists positions that natural law theorists don't seem actually to accept, and never telling us what in the discussions of these theorists is supposed to back up these generalizations.

There are some interesting elements to Kozinski's article, particularly his appeal to MacIntyre's criticism of Maritain's "democratic charter". The problem, however, is that Maritain was entirely aware of the problem MacIntyre raises: it's explicitly noted by him on more than one occasion, he had to deal with it repeatedly in his rights advocacy (I like MacIntyre a lot, but Maritain, unlike MacIntyre, actually had to deal with the practical issues of rights advocacy from a Thomistic perspective on a regular basis, and so had a better understanding of them than MacIntyre's more academic standpoint really allows MacIntyre to have), and it is the foundation for his Communication with regard to the Draft World Declaration of Human Rights (PDF). Kozinski's use (against Feser) of MacIntyre's specific criticism of Maritain requires a conflation of natural law with natural law theory that would not be accepted by Maritain or Feser (or any other natural law theorist worth his or her salt): it confuses, that is, the account with what it accounts for, and thus a theory of reason with reason itself. You don't need a theory of reasoning, much less a correct theory of reasoning, for it to be true that you depend on the principles of reasoning for living any kind of human life. And, likewise, you don't need a theory of practical reasoning (like natural law theory), much less a correct one, for it to be true, if natural law theory is correct in its basic contentions, that living a human life depends on natural law itself.

Lent XXXII

Now so is the progress of men, as we see the growths of trees to be. For the essence of the future tree is first in the seed, afterwards in the springing, and at last it is carried out into boughs. Thus then, surely the goodness of every one doing works grows up. For it is sown in understanding, it springs up in practising, and at last it is consolidated to the full width of great advancement. But when his understanding uplifts any one, the tree that might have sprung up rots in the seed. And when after good practice he is spoilt by the bane of self-exaltation, it is as if, having already sprung up, it withered. But when neither understanding nor practice corrupt, but its greatness growing up, when the applause of persons commending follows, and overturns from its seat the mind of him that doeth rightly, the tree has encountered the winds of the tongues, and all that had grown up strong in it, the tempest of fame has plucked up by the roots. For in proportion as the tree has risen higher to the regions above, forcibly does it feel the violence of the winds; because the more a man is lifted to a height in good practices, with so much the greater blast is he oppressed by the mouth of those that praise him. Therefore if the tree is still in the seed, there is need to fear lest it should be made rotten by the mere acquaintance with knowledge; if it has now already issued into a shoot, we have to be on our guard that the hand of self-exaltation touch it not, and parch it of the greenness of its conduct; but if it already lifts itself up on high with vigorous strength, it is very greatly to be dreaded lest the over strong wind of praise that is applied pluck it up from the roots.

St. Gregory the Great, Moralia, Book XXII, section 16

Lent XXXI

What is the sum of all the doctrine touching the performance of the works of mercy?

The Apostle has as it were comprised the whole matter in this one saying: Bear (a) one another's burdens: and so you shall fulfill the law of Christ, that is, the law of charity, of which law again he says: (b) If there be any other commandment, it is comprised in this saying, you shall love your neighbor as yourself. And the Apostle St. Peter: (c) Before all things, says he, having mutual charity continually among yourselves: because charity covers the multitude of sins. Which precept, or office of showing mercy or charity, as it is most agreeable to nature and reason: so does it touch even all kinds of men without exception: insomuch as of this we read it written: (d) God has given every man a charge of his nature. And he has given charge in this manner, as Christ interprets: (e) All things whatsoever that you will men to do to you, do you also to them: for this is the Law and the Prophets.

(a) Gal 6
(b) Rom 13; Gal 5
(c) I Pet 4
(d) Ecclus 7
(e) Mat 7; Luk 6

St. Peter Canisius, A Sum of Christian Doctrine, p. 304. I have modernized some spelling and (very slightly) some wording. The Latin is found here, p. 214.

Is, Ought, Can

It's a common dictum, derived from over-reading Hume, that 'is' does not imply 'ought'(INO). But it is also a common dictum, derived from Kant (I make no judgment here about whether it is Kant over-read), that 'ought' implies 'can'(OC). It's notable that these two dicta are inconsistent with each other:

(1) If X ought to do Y, X can do Y. [OC]
(2) If it is false that X can do Y, it is false that X ought to do Y. [(1), Contraposition]
(3) If it is false that X can do Y, X is lacking in the ability to do Y.
(4) If it is false that X ought to do Y, it is true that X ought to do something other than try to do Y [as if Y ought to be done].
(5) If X is lacking in the ability to do Y, X ought to do something other than try to do Y [as if Y ought to be done]. [(2), (3), (4)]

But (5) tells us that an 'is' implies an 'ought', which violates INO. But (3) is clearly a tautology, and (4) is clearly true for anything to which 'ought' can apply at all, assuming that you ought not to try to do things that you ought not to do; which is arguably a tautology itself.

This is a general issue. The reason someone like Hume can accept something like INO is that he has a very restricted and minimal account of modality (i.e., necessity, possibility, etc.). Anyone with a more robust account of modality than Hume has to allow for the possibility that they can, in fact, get an 'ought' from an 'is' that has these more robust modalities. At least it would have to be proven on a case-by-case basis. An 'ought' is just a strong modal operator. It can indeed be difficult to get from a situation that has no well-defined modal operator, or a distinct and isolated null modal operator (as 'true' sometimes is), to one that has a strong modal operator. But it is not generally a problem to get from one well-defined modal operator to another; it just depends on the modal operators in question and how they are related.

Incidentally, this kind of modal situation is not uncommon. Kant has a more robust account of modality than Hume, but almost all of Kant's more skeptical results follow simply from the fact that for Kant all modalities are in one way or another epistemic, having to do entirely with how we know things. If you have a less restrictive account of necessity and possibility than Kant does, you can no longer assume that Kant's conclusions follow from his principles -- it would have to be examined on a case-by-case basis.

[ADDED LATER: A phrase accidentally was dropped out that made (4) read oddly, and this mistake was propagated through the rest of the argument. I have fixed it.]

Lent XXX

Spiritual needs are relieved by spiritual acts in two ways, first by asking for help from God, and in this respect we have "prayer," whereby one man prays for others; secondly, by giving human assistance, and this in three ways. First, in order to relieve a deficiency on the part of the intellect, and if this deficiency be in the speculative intellect, the remedy is applied by "instructing," and if in the practical intellect, the remedy is applied by "counselling." Secondly, there may be a deficiency on the part of the appetitive power, especially by way of sorrow, which is remedied by "comforting." Thirdly, the deficiency may be due to an inordinate act; and this may be the subject of a threefold consideration. First, in respect of the sinner, inasmuch as the sin proceeds from his inordinate will, and thus the remedy takes the form of "reproof." Secondly, in respect of the person sinned against; and if the sin be committed against ourselves, we apply the remedy by "pardoning the injury," while, if it be committed against God or our neighbor, it is not in our power to pardon, as Jerome observes (Super Matth. xviii, 15). Thirdly, in respect of the result of the inordinate act, on account of which the sinner is an annoyance to those who live with him, even beside his intention; in which case the remedy is applied by "bearing with him," especially with regard to those who sin out of weakness, according to Romans 15:1: "We that are stronger, ought to bear the infirmities of the weak," and not only as regards their being infirm and consequently troublesome on account of their unruly actions, but also by bearing any other burdens of theirs with them, according to Galatians 6:2: "Bear ye one another's burdens."

St. Thomas Aquinas, ST 2-2.32.2

Lent XXIX

Corporal need occurs either during this life or afterwards. If it occurs during this life, it is either a common need in respect of things needed by all, or it is a special need occurring through some accident supervening. On the first case, the need is either internal or external. Internal need is twofold: one which is relieved by solid food, viz. hunger, in respect of which we have "to feed the hungry"; while the other is relieved by liquid food, viz. thirst, and in respect of this we have "to give drink to the thirsty." The common need with regard to external help is twofold; one in respect of clothing, and as to this we have "to clothe the naked": while the other is in respect of a dwelling place, and as to this we have "to harbor the harborless." Again if the need be special, it is either the result of an internal cause, like sickness, and then we have "to visit the sick," or it results from an external cause, and then we have "to ransom the captive." After this life we give "burial to the dead."

St. Thomas Aquinas, ST 2-2.32.2

Three Poem Drafts

Burdens

Anticipating resurrection,
I am here in quiet calm
as brightest breath of benediction
rests on me like soothing balm.
Alas, O Lord, what hard religion
as a yoke you ask us bear,
not consolation but derision
marks this ever-winding stair;
and yet another count of failing,
yet another task is laid,
as all is hidden in a veiling
woven with an iron braid.
But you, O Lord! in all your glory,
you alone are worth it all,
and all the promise of your story,
however often I must fall.
From you, O Lord, I ask remission
of my never-ending sins
and rise anew in grand commission,
taking up the tasks again.

In you my weak, my failing, side
soars to do the wondrous thing;
this weariness breaks only pride,
so that this humbled heart might sing.

Secret

I must be silent, friend;
the secret must be unrevealed.
To you my will might bend,
but fate my word and voice have sealed.

As fish beneath the wave
must swim, or drown in violent air,
within my heart I save
the burden of an oath of care.

In silence I remain
taht none my oath held secret hear;
no matter what the pain,
still God alone may see my tear.

De Hebdomadibus

From the starry peak Olympus
to the tarry, earthen mass,
the circles of the different
encircle mental hebdomad
proceeding from the one alone,
as monad's image recreated
in its entering itself,
for thus the gods are born.
And hebdomadic splendor
then births new hebdomadic law,
exuberant in number
yet coming from the one.