Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 28, 2013

An interesting conversation about (the new) natural law

In the latest issue of First Things, David Bentley Hart (an amazing writer, in my view) has a piece called "is, ought, and nature's laws" in which he rejects "the attempt in recent years by certain self-described Thomists, particularly in America, to import this [natural-law] tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause."

Hart concludes:

To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural. 

There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions. 

R.J. Snell responds, here and here, contending -- among other things -- that Hart is attacking a "straw man", because John Finnis's account of natural law is not as Hart describes it.  I'm painfully aware that I'm not close to being competent to referee this debate.  If I have it right, Snell's claim is that the Finnis (et al.) account of natural law does not involve deriving, or "reading off", moral truths from "nature"; it has to do, instead, with (underived) principles of practical reason.  With respect to these princples, Snell writes, "[n]either are they innate, although they are self-evident; grasping them entails 'no process of inference' but rather an 'act of non-inferential understanding.'”  He adds:

Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions. 

Read it all.  (And, maybe also Russell Hittinger.)



Garnett, Rick | Permalink


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David Mills had a post on First Things on February 20 in which he said the following:

Conservative activists had long used the supposed absence of such actions [homosexual behavior] among animals as a moral argument against such actions by humans, which seemed unwise and has proven to be so.

Their understanding of the Fall was deficient, and their identification of “natural” confused a way of thinking about who we really are and how we ought to act, with “natural” meaning the life we observe in nature. Using that logic, homosexualist activists now invoke these animals as a moral argument for the good of human homosexuality.


There seem to be many versions of natural law, and I doubt that John Finnis or Robert George explicitly make reference to the Fall in understanding nature, and perhaps they have banished all traces of the Fall from their thinking. So regarding the "new natural law," I can't say much of anything. But I would say that any theory of natural law that bases its understanding on the Fall is obviously not going to be convincing to people who do not subscribe to the belief that our "first parents" committed some act that damaged human nature.

Posted by: David Nickol | Feb 28, 2013 9:59:08 AM

David, If there are many versions of Natural Law, it is not due to the inherent nature of Natural Law but rather to a flawed understanding of Natural Law. I suppose one could argue that the sin of pride, is what separates us from God, and has from The Beginning.

Posted by: N.D. | Feb 28, 2013 12:52:38 PM

David Hart's rejection of the new natural law theory is not unexpected, since he is Eastern Orthodox. Thinkers in that sphere have been largely skeptical towards Western developments of natural theology. It would be interesting to hear from an Eastern Orthodoxer who does advocate a natural law theory of some sort. It is the more classical or traditional variants of the theory that Hart has affinities with, but a positive Eastern Orthodox account of this he does not set out, but only sketches.

Posted by: Clement Ng | Feb 28, 2013 5:16:56 PM

I am wondering if by denying The Filioque, one cannot fully understand how the communion of Love that God desires for every family, is a reflection of The Communion of Love that Is The Blessed Trinity.

Posted by: N.D. | Mar 1, 2013 1:03:17 PM