On the New Natural Law Theory by po2378


									On the New Natural Law Theory
Joseph W. Koterski, S.J.

PRINCETON PROFESSOR Robert George is one moral norms. Although natural law takes of today’s outstanding thinkers in the theultimatesourceof these in-built moral area of law, morality, and politics. Unprinciples to be the divine artist who afraid of weighing in on such contencreated human natureand thereby serves as the moral lawgiver, the tradition has tious issues as abortion, homosexuality, regularly held that inand pornography, he has succeeded in redividuals in any culBOOKS DISCUSSED in this ARTICLE newing civil-tongued ture can come to know In Defense o f Natural Law, by debate on issues where the natural law even Robert P. George. Oxford: Clarendon shrill voices had prewithout direct adverPress, 1999. dominated. In two edtence to God by reflecting on the incliited volumes and in a Natural Law and Moral Inquiry: nations of their nature book from his own pen, Ethics, Metaphysics, and Politics and discerning with George collects a wellin the Work o f Gerrnain Grisez, ed. f the aid of personal exbalanced set o essayby Robert P. George.Washington, D.C.: ists, pro and con, on perience (as well as Georgetown University Press, 1998. various controversial the vicarious experif topics and provides an ence o others) which Natural Law and Public Reason, inclinations were wellexceptionally clear deed. by Robert P. George and Christoordered and which fenseof the position he pher Wolfe. Washington, D.C.: not. The tradition has himself advocates, a Georgetown University Press, 2000. also claimed that phiposition that titles itself “the new natural losophers can articulate a systematic natural law ethics on law theory” and flows from the thought the basis of theoretical work in anthroof Germain Grisez (the central subject of the essays in the 1998 collection). pology and metaphysics. Presupposed f The mainstream tradition of natural here, o course, has been a realist epistemology which permits one to gain aulaw ethics follows Thomas Aquinas in f thentic knowledge of the natures o things holding that reason reflecting on human and a sense that there is sufficientcomnature can discover the truth of certain monality among human beings to warrant the claim that there is a universal S.J., is Professor o f PhiJOSEPH KOTERSKI, human nature despite all the undeniable losophy at Fordham University and editor o f differences among cultures, histories, and the International Philosophical Quarterly.


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personalities. George, however, holds for the new natural law theory that was articulated as early as 1965 by Germain Grisez and subsequently developed by figures such as John Finnis, Joseph Boyle, William May, and Patrick Lee. As the present volumes frequently explain, this new approach to the subject tries to maneuver around what they regard as objections that are insurmountable by the traditional approach. The first of these problems is the naturalistic fallacy, the charge that ethical thinkers sometimes make an illicit logical move from fact to value in their efforts to ground moral obligation on some aspect of an object’s nature. This charge was formalized as the naturalistic fallacyby G. E. Moore on the basis of David Hume’s objections to the sudden shift he detected within moral arguments from what is the case to what ought to be the case without adequate justification. Mindful of the power that this argument has commanded in the circles of modern analytic philosophy, Grisez and Finnis have tended to grant that natural law theory would commit the naturalistic fallacy if it depended on grounding moral obligation in any kind of theoretical knowledge about human nature. f It is precisely by virtue o offering an entirely different grounding for moral obligationthat the new natural law theory claims to be new. The other main problems which it envisions as needing to face include providing an adequate defense of freedom (the problem is to explain how persons can be simultaneously free and yet morally obligated in a world that must be as morally determinate as it is physically determinate if the natures of things really are what generate moral obligations) and adequately resisting the utilitarian denial of moral absolutes (on the grounds that all values are in principle commensurable and thus any negative moral evaluation can in principle be

outweighed if one can amass enough favorable consequences). What the new natural law theory proposes in order to solve problems such as these is a re-location for the foundation o nzttural :aw iheoiy h i i i iiietaphysics f to practical reason. Instead of trying to derive an ought from an is by theoretical reasoning such as a philosophy of human nature, we should concentrate on practical reasoning and better appreciate that moral arguments involve “reasons for actions” that come to be formulated as we grasp possible ends or worthwhile purposes. Thus, besides needing to carry less metaphysical baggage (such as content-rich claims about human nature, which contemporary skeptics and many analytic philosophers in the AngloAmericanworld would be loathe to grant), these new natural law theorists simply say that this approach gives a better defense of the freedom of moral agents by treating even the first practical principle and the basic moral norms as premoral and thus part of the operating assumptions of practical reason by free beings. This is to say that there are a number of basic and incommensurable goods whose importance is simply selfevident and need not be inferred on the basis of any other theoretical knowledge. The basic goods (such as life and health, knowledge, play, aesthetic experience, sociability and friendship, religion, and practical reasonableness) are self-evidently worthy of choice and can serve as reasons for a person to act. But to act morally one must have reasons by which to judge certain choices as less than fully reasonable despite being intelligiblereasons for which someone might act. And, of course, by making the basic goods incommensurable, this approach preserves certain moral absolutes (one may never deliberately attack a basic good, such as life or knowledge) and undercuts from the start any utilitarian calculus of values that could permit “doing evil that
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good may come.” Although t h i s writer remains unconvinced that these objections are insurmountable for traditional natural law, he can only praise George for presenting the case for new natural law so clearly. In Aquinas’s Natural Law Theory (1996), for example, Anthony Lisska seems to me to have definitivelyanswered the charge that traditional natural law ethics necessarily commits the naturalistic fallacy in its recourse to knowledge about human nature when grounding obligation,for he shows the way in which the developmental aspects of human nature already implant an ought within the is and the way in which this can be recognized within an individual’sawareness of natural inclinations toward authentic goods and a theorist’s knowledge of the more fruitful and fruitless paths toward genuine fulfillment. Moreover, at any number of points in both the more theoretical passages of these books and especially in the applications of the new natural law theory to such current moral problems as marriage and homosexuality George himself invokes content-rich theoretical knowledge to defend propositions about basic human goods that are otherwise claimed to be self-evident. Now, on the question about the need and the permissibility of using theoretif cal knowledge to arrive at knowledge o moral obligation, there has been a great impasse in the scholarly debate between the traditional and the new natural law camps. Someof the quarrels are reflected in the extremely courteous and fairminded reports of the position of George’s opponents such as Russell Hittinger, Henry Veatch, and Ralph McInerny. But I wonder if a resolution here might not come by making a better distinction between the sort of knowledge needed by f the moral agent as opposed to the sort o knowledge needed by the moral theorist. Traditional natural law theorists have
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never claimed that the individual moral agent needs elaborate and sophisticated theoretical knowledge of anthropology and metaphysics in the way that the moral theorist does when trying to formulate a science of ethics. The knowledge of nature which a moral agent needs may come from within by way of natural inclinations but there is still need for reflection on these inclinations in the light of experience (one’s own and those o others in one’s community), and this f reflection cannot be adequately described as the work of practical reason but is an exercise of theoretical reason that can be put in service of practical reasoning. For George to speak of practical judgment as affirming things like the self-evidence of the first principle of practical reasoning or the incommensurable f goodness o the basic human goods is confusing an act of practical reasoning with an act of theoretical reasoning about practical reasoning. Among the stronger points in George’s arsenal, however, is his thoroughgoing refutation of the position championed by David Hume and repeated by countless followers, who have argued that, if norms cannot be deduced from fact, they must be projections of our feelings and desires. Truly rational (as opposed to merely emotional) motivation is impossible, according to Hume, and in practical matters reason must be regarded as the “slave of the passions,” for it is taken that our desires are alone what motivate us and so reason is forced into an instrumental role. Rather, George rightly insists, it is often our rational grasp of the f intelligible point o certain possible actions that stimulates the emotional support necessary for us to perform the actions. In this argument George is successful in controverting non-cognitivist opponents of natural law as well as in answering revisionist moral theologians on topics as divergent as homosexual marriage, pro-choice arguments for the

permissibility of abortion, and the legitif macy o contraception. In making his case on these controversial points, however, it seems that George needs precisely to engage theoretical reasoning about the values for human iife at stake in any of these practices, and this means theoretical reasoning about practical lifematters, not practical reasoning as such. Were it not for the protests elsewhere in these books against such recourse to theoretical reason to derivemoral truths, this writer would have nothing to complain about here, for this is precisely the strategy recommended by the traditional approach to natural law. One of George’s clearest strengths is in the area of politics, and a significant portion of this material is devoted to defending natural law ethics as a legitimate form of “public reason” against the objections raised by John Rawls and his followers. This role, of course, has always been one of natural law’s strong suits, for however close its conclusions have been thought to parallel the moralf ity, say, o the Decalogue, the mode of its

reasoning has always been directed to making a philosophical case independent of revelation. In this sphere George’s incisive writing points up the Rawlsian sleight-of-hand involved in trying to exf d u d e comprehensive visions o the good from public reason even while setting up the rules for ethical debate in a way favorable to the comprehensive view favored f by certain brands o modern liberalism. The most interesting aspect of these volumes, however, remains George’s contribution to the defense of the new natural law theory. In explaining the basic tendencies inherent in practical reasoning and in holding for certain basic human goods as incommensurable, he still needs to resort to metaphysical argumentation. Despite the vigorous insistence of this school of thought that such an appeal to metaphysics can and should be avoided, here we find one of its most ableadvocates forced to undertake metaphysical endeavor, and the recognition of the necessity to find bedrock in metaphysics is good to see, but not surprising.


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