In defense of natural law I: The audacity of natural law

Consider the following statements:

• It is intrinsically immoral to have sexual intercourse with someone who is not one’s spouse.
• Parents have a duty to raise their children, and children have a duty to obey and revere their parents.  Unless extreme circumstances make it impossible, children should be raised by their biological parents.
• It is intrinsically immoral to deliberately cause a sexual act to be infertile.
• It is immoral to drink live blood.
• Suicide is intrinsically immoral.
• It is always wrong to kill an innocent person, even if he has low quality of life and wants to die.

Setting aside for the moment the all-important question of whether or not these statements are true, what they have in common is that they all belong to the natural law system of ethics.  They all take a set of biological facts–coitus, filiation, death–and purport to read moral meanings out of them.  The natural law presumes that the human body is charged with meaning, so that biological acts and relations have their significance built into them.  The “natural meaning” of the act exists prior to and independent of what the actor understands or intends by that act, and yet he is morally bound by the natural meaning none the less.

I saw a nice example of natural law reasoning in the movie Vanilla Sky.  (It’s not very good; don’t watch it.)  I don’t remember the characters’ names, but in actors’ names here is the setup:  Tom Cruise has been sleeping with coworker Cameron Diaz in an informal relationship, and then he decides to leave her for Penelope Cruz.  (When you’re Tom Cruise, you can do those sorts of things.)  Diaz’s character becomes distraught and pleads with Cruise that he can’t just leave her like that after they have coupled.  ”Your body makes a promise even if you don’t.”  This is a natural law way of thinking.  We say that fornication is wrong because when you have sex with someone, you make her a promise–whether that’s what you and her want to communicate or not–and that promise is the same one a person makes at a wedding ceremony.

This way of seeing things is very different from the modern mentality (although, as we’ve seen, the old mentality pops up in unexpected places).  Modern man is, whether he admits it or not, strongly shaped by Cartesian dualism to see the body as “brute matter”, as res extensa distinct from the res cogitans (the soul).  Meaning, it is believed, is a distinctly mental phenomenon.  Its origin, and indeed its whole being, is in the mind.  What an act means is what the actor intended it to mean and what he knew his observers would take it to mean–no more, no less.

Modern ethics is usually consequentialist or deontological.  Sin is identified either as harming someone else or instrumentalizing him (treating him as a “mere means”).  Harm and instrumentalization are defined solely in terms of the person’s preferences and choices.  Natural law agrees that harm and instrumentalization are wrong, but it defines them differently, in terms of man’s natural telos and natural meanings.

Modern man finds this idea of normative natural meanings foolish and arbitrary.  Natural law advocates are said to be ignoring the person to focus on the body, of ignoring intention to focus on biological function.  Natural law is accused of committing the “naturalistic fallacy” by hostile philosophers; Catholic heretics accuse it of “physicalism”.  These accusations have the merit of getting at the essence of the disagreement.  It it’s “physicalism” to believe that sex, parenthood, etc. don’t just mean what we decide for them to mean, then we natural lawyers are physicalists.

The modern critique of natural law has an undeniable plausibility.  Biological facts can no doubt affect our and other people’s desires and thus indirectly become morally relevant on modernity’s terms, but it is not obvious how they can dictate duties to the res cogitans independent of these considerations.  And yet, there are strong reasons why we should give the natural law account a careful hearing before we dismiss it.

First of all, one must be clear that to object to physicalism means having a quarrel not only with a few Catholic ethicists, but with the consensus of all mankind.  Across ages and cultures, all peoples have believed in natural meanings.  If nothing else, they have all agreed on the moral import of filiation and kinship.  That one person emerged from the uterus of another is a biological fact.   The social state of “motherhood” recognizes not only this fact, but also duties and rights that are supposed to flow necessarily from it.  A man has no right to expect love from his neighbors or coworkers.  His behavior may warrant their respect, but love can only be an unearned gift.  He has no right to ask his secretary “Why don’t you love me?” nor would she probably have any answer.  Love was never “on the table”.  A man can expect his mother to love him; the very relationship gives him a rightful expectation.  ”Mother, why didn’t you love me?” is a natural question for an unloved son to ask.  There probably is a reason, although no reason could justify so grave a failure of duty.  I have special duties to my children and my kin.  Partly, this is because they happen to be the people who are closest to me, but this isn’t the whole story.  I would fail morally if my brother on the other side of the country were homeless and I didn’t fly him to me and take him under my roof; yet there are homeless strangers in my very county to whom I am not obliged to make such an offer.

The consequentialist and deontologist can only agree with these intuitions by accident.  They will often grant that having children raised by their biological parents is administratively convenient.  As a practical matter, it would be hard for the State to find enough caretakers to replace all these parents.  But the family is only a matter of practicality, and in fact its ultimate value is open to question.  After all, it puts children at the mercy of people with no childcare training and next to no official supervision, all because of a “biological accident”; our bureaucratic age wouldn’t tolerate such feudal anarchy in any other area of life.  Similarly, they may agree that a particular act of adultery was wrong because it hurt the other spouse’s feelings, but they must also admit that this is because that spouse is being irrational.  A regime of universal promiscuity, where sex is “just like shaking hands”, might well be a happier world, and, consent assumed, wouldn’t obviously involve reducing any other person to a “mere means”.

Here is the second reason to consider carefully before rejecting the system of natural meanings.    As the two examples above indicate, a world without them would be a nightmare.  Unchecked by natural law, consent, efficiency, and happiness maximization would replace the love of parents with the expertise of childcare professionals; it would erase the bonds of family, ethnicity, and nation; it would reduce sex to a meaningless pastime.  Our desires would be satisfied.  We would all be happier.  Or would we?  For me, one of the most important aspects of happiness is the knowledge that I personally matter to some particular other people.  Being a man of no great importance, these people are a half-dozen family members.  What I do matters because they depend on me and they care about me.  In the post-natural bureaucratic utopia, there will be nothing like this.  What I do won’t matter much to anyone else–this will be true by construction.  If anyone really depended on me, that would limit both our freedoms.  It would make my dependent unequal, because if I failed that person would suffer, through no fault of his own, relative to those depending on someone else.  There must be supervision, uniform rules, backups and failsafes, so that in the end I can’t be allowed to matter to anyone else.

As Hegel pointed out, there is a leap from abstract right and morality to the ethical life.  We have no way to put abstract moral rules (e.g. utilitarian or Kantian) into effect–no way to know what they mean–until we are embodied in an “ethical society” where everybody has a specific place and duties.  How, though, are we to assign these particular duties?  Modern abstract ethical systems can only produce abstract organizations and can never provide this element.  In the past, it has always come from relationships like marriage and filiation that rely on natural law for their normative character.  After they are wiped out, a utilitarian calculus of the future may register the unhappiness that results, but it could not replace what it had destroyed.  Natural law seems to be the only way to lock particular people in duties to each other.  There is true happiness from the sense of meaning this provides, and the utilitarian rulers of the future might be forced to reinvent natural law as a “noble lie” to fill this void.  Let us then see first if we can defend the theory honestly as truth.

A defense of natural law must establish several points.  To fail on any one of them is to fail overall.  First, it must defend the claim that there are natural meanings.  It must establish that these are not merely projections of our subjective wishes or the mistaking of the customs and assumptions of our own culture for universals of nature.  This will be part 2 of this series.  Next, it must argue that these natural meanings are morally binding.  This step is often skipped over, but I think it’s a crucial and underdeveloped part of the theory.  Suppose we allow, with Cameron Diaz, that sex has a natural meaning that includes commitment.  Why could not the man and woman simply agree that this natural meaning is not the one they intend to give it?  That way, no false expectations would be generated; moving on would not be a betrayal.  That natural meanings are binding I will argue in part 3 of this series.  Finally, we must ask how the two meanings, what something naturally means and what we intend, are meant to relate to each other.  We must show that natural law does not itself fall back into a different sort of dualism.  This will be the subject of part 4.