Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, March 3, 2013

Natural Law as an "uncompromising demon breathing down the neck"

A longtime MOJ reader wrote, regarding my recent post which took note of David Hart's critique of the "new" natural law, to recommend Leszek Kolakowski's 2001 essay "On Natural Law" (included in the recently released collection of essays entitled Is
God Happy?
), which the reader said "provides a more realistic and useful understanding
of natural law."  And, he passed along this excerpt:

"…Moral intuition is also a kind
of experience, different from sense perception – and neither of them


Our belief in natural law is not
impaired by the fact that the results of this intuition are not necessarily
identical in everyone’s mind, always and everywhere, nor by the fact that
centuries were needed before people recognized the good and evil of their
various actions and institutions – before they admitted, for example, that
torture is evil and equality before the law good.  This has also been the
case with many discoveries in empirical science: it took centuries before
people realized that their ordinary intuitions were wrong: that the sun does
not revolve around the earth, or that a force is not necessary to cause
movement, or that events are never absolutely simultaneous.  All these
erroneous beliefs were natural and understandable.  So why should we not
accept that the principles and norms of natural law reveal themselves to us
gradually: that we must go through a process of growth before we understand
certain moral truths and laws and recognize them as such?  (Although it
should be said that since antiquity there have been people who preached those
principles and norms with full conviction – without, however, gaining universal


There is no reason to accept the
nihilistic doctrine that because various contradictory norms have been accepted
and applied at various times and in various places, they are all, in terms of
Reason, equally justified, which is to say equally groundless.  While
belief in natural law does not – I repeat – require belief in the existence of
God as a necessary premise, it does require the belief in something that
one might call the moral (in addition to the physical) constitution of Being –
a constitution that converges with the rule of Reason in the universe. 
All the evils of the human world, its endless stupidity and suffering, cannot
impair our belief in natural law in this sense.  Two other realms of
intuition – perception and mathematics – also require suppositions that cannot
be proved but are indispensable for the knowledge we acquire by these
intuitions.  Our life as rational creatures occurs in a realm that is
constructed with the aid of various non-empirical but fundamental courts of
appeal, among them truth and goodness.  Nor need our belief in natural law
be impaired by the fact that it is not universally observed.  This fact
was well known to Seneca and Cicero, to Gratian and Suarez, to Grotius and
Kant, but it did not weaken their conviction that the rules of natural law are
valid, no matter how often they are violated.


Natural law does not, of course, allow
us to infer from it the details of any constitution or civil or penal
code.  It does not allow us to infer, for instance, whether or not capital
punishment or voluntary euthanasia is permissible, whether proportional or a
majority voting system is better, whether or not monarchy can be a good thing,
whether property rights should have priority over other rights in case of
conflict, whether censorship can be recommended on moral grounds, and so
on.  Nevertheless, natural law erects barriers that limit positive
legislation and do not allow it to legalize attempts to infringe the
indestructible dignity that is proper to every human being.  Natural law
is built around human dignity.  Thus it invalidates legislation that, for
instance, admits slavery, torture, political censorship, inequality before the
law, compulsory religious worship or the prohibition of worship, or the duty to
inform the authorities about the non-conformity of people’s political
views.  Within these limits various constitutions and various codes are
possible; natural law does not dictate their details.


    The barriers mentioned above are usually
    accepted today in the legislation of civilized countries, but we must keep in
    mind that they are relatively recent; that they are not recognized everywhere;
    and that in many places where they are present in constitutions they remain
    mere words on paper.  Natural law should be like an uncompromising demon
    breathing down the neck of all the legislators in the world."


Garnett, Rick | Permalink


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I think it's important to remember that David Bentley Hart said: "My skepticism, moreover, has nothing to do with any metaphysical disagreement. I certainly believe in a harmony between cosmic and moral order, sustained by the divine goodness in which both participate. I simply do not believe that the terms of that harmony are as precisely discernible as natural law thinkers imagine."

It seems to me, for example, that it really is impossible to deduce from "natural law"—based on reason alone, with no religious assumptions—all the things the Catholic Church teaches about marriage, and yet that is what some claim. The new (or the old) natural law theory is not like mathematics. When a mathematician proves something, his proof can be validated, and once it is accepted by mathematicians, if you don't understand it, it's your fault. I think some who employ natural law theory would like to imagine themselves as producing math-like proofs that command agreement, and I think that is what David Bentley Hart rejects.

Posted by: David Nickol | Mar 3, 2013 5:48:16 PM


Are you saying there is no such thing as "secular" natural law theory/tradition? One might have axiomatic metaphysical premises or assumptions, like the Stoics, that are not religious, at least in a conventional sense, and derive basic natural law principles from those. As to the relation between moral or even more broadly ethical intuitions and reason (rational intuitionism as it were) one might consult Robert Audi's helpful volume, The Good in the Right: A Theory of Intuition and Intrinsic Value (Princeton University Press, 2004). It's interesting to trace the normative justifications proffered for jus cogens norms in international law. These are, typically and necessarily, of a "natural law" sort (the ones that are not are clearly implausible, as they depend in some way or another on consent or custom), even if quite minimalist in the sense used by Larry May, who draws upon the work of H.L.A. Hart and Hobbes (!) to articulate a natural law grounding for (the 'absolutist' or non-derogable character thereof) jus cogens norms, A Catholic natural law theorist will of course add premises (or interpret particular premises in a way that) a non-Catholic or non-religous natural law theorist might not accept and it is always of course arguable as to precise nature and scope of specific principles as they play themselves out in specific situations and circumstances. Yet I think it's possible (as mentioned above) to find basic principles all natual law theorists can countenance, religious or not.

Posted by: Patrick S. O'Donnell | Mar 4, 2013 1:32:52 PM

Brandon Watson penned an interesting analysis of Hart's article (http://branemrys.blogspot.ca/2013/03/on-harts-kantian-argument.html). He asks Hart why natural law theorists should be committed to a Kantian conception of moral experience and judgment. Hart is mistaken if he thinks that contemporary natural law theories are an answer to some quasi-Kantian demand for categorial imperatives, for the theories themselves are rival accounts of practical reason to Kantian version.

As I mentioned in my comment on the previous post, Hart is Eastern Orthodox and his rejection of the new natural law theory has to be situated in the wider Eastern Orthodox tendency to dismiss Western natural theology. Running throughout this article, Watson suggets, are fideistic assumptions. If someone does not find natural law arguments persuasive, the problem does not necessarily lie with the reasoning. Whether or not an argument is persuasive and whether or not an argument is sound are seperate questions.

Posted by: Clement ng | Mar 6, 2013 12:29:57 AM

FYI, Ed Feser posted a response to Hart today via First Thing's *On the Square* column http://www.firstthings.com/onthesquare/2013/03/a-christian-hart-a-humean-head

Posted by: Clement Ng | Mar 6, 2013 3:36:46 PM

Clement, one could reason that a sound argument is an argument that is grounded in truth and thus would be persuasive to those whose reasoning is grounded in truth, for just as "Faith unfaithful, left him falsely true", so too, with reason that is unreasonable, and thus not true.

Posted by: N.D. | Mar 7, 2013 1:02:20 PM

Which is why Natural Law "as an uncompromising demon breathing down the neck" is an oxymoron;)

Posted by: N.D. | Mar 7, 2013 1:10:55 PM