An Idiot’s Guide to the Late Great Natural Law Debate

With conservative and evangelical ethicists falling dramatically off the anti-gay-marriage bandwagon at a remarkable pace, superstar theologian David Bentley Hart’s essay “Is, Ought, and Nature’s Laws”  last month in First Things came like a spark on a dry pile of tinder.  Challenging the optimism of many contemporary Catholic thinkers (and recently many evangelical thinkers as well) that natural law arguments can provide a convincing, broadly-appealing basis for opposition to gay marriage legislation, Hart provoked a tide of responses and counter-responses in the blogosphere, which continues even now.  For at stake in Hart’s remarks were not merely how conservatives should and shouldn’t engage in gay marriage debates, but the nature of the public square and of natural law itself, the foundation upon which so much Christian political theory has been built over the centuries.

Rather than attempting to weigh in with yet another contribution to the wide-ranging debate, I will merely seek to provide here something of an annotated catalogue of the more significant blasts and counter-blasts, for the sake of those who may have had better things to do for the past month than trawling such corners of the blogosphere.  (I hope to offer a somewhat fuller version of this, with more evaluative remarks of my own, on my blog later this week).

Hart’s initial essay, while claiming to agree with the basic metaphysical presuppositions of natural law, denied that it had much use epistemologically.  Why?  Because “Hume’s bluntly stated assertion that one cannot logically derive an “ought” from an “is” happens to be formally correct.”  You cannot get from metaphysics to morality on reason alone, but only by “a belief about nature . . . a supernatural judgment that renders natural reality intelligible in a particular way.”  Indeed, even if we succeeded in generating consensus that a particularly way of life in line with nature conduced most to happiness, a Nietzschean could still insist that the noblest act of human will was to defy nature.  In short, “as long as the will remains unconverted, and unwilling to consider conversion, reason is mostly powerless to change things.”

This essay clearly struck a chord with a cohort of American Conservative columnists, looking perhaps for an intellectually respectable way to gracefully withdraw from the bruising culture wars.  While Noah Millman skeptically dismissed the philosophical integrity of the natural law tradition, as having little ground in nature understood scientifically, other columnists took a more nuanced tack.  Rod Dreher enthused over Hart’s article, although his synopsis of it went off in a somewhat different direction:

“This is why I don’t have any faith in the natural-law-based arguments against same-sex marriage. It’s not that I disagree with them necessarily; it’s that a) they are hard for ordinary people conditioned by our culture’s modes of thought to grasp, and b) partly because of this, they (understandably) prompt a, “So what?” response. This is Hart’s point.”

In other words, rather than being formally invalid in the absence of a supernatural premise, as Hart had seemed to contend, these natural-law arguments might well be valid, just rhetorically ineffective in the current cultural context.

Alan Jacobs seconded this general concern, noting that even if we grant that natural law arguments work to those who are reasoning properly, and are only unpersuasive to those who aren’t really listening or thinking carefully, “The unpersuaded people are still there; the social or political problem you’re trying to fix is still there. Is it really the best we can do to say ‘You fail to meet my standards of rationality; therefore I refuse to debate with you further’?

Dreher, commenting on Jacobs’ post, pointed out that “we are in a world in which reason is far weaker than we think”; the majority of ordinary people have lost the ability or the willingness to distinguish between a reasoned argument and a mere assertion of opinion.  To believe that sophisticated metaphysical arguments for ethical and political conclusions will get us far in the current state of public discourse is a silly fantasy.

Meanwhile, the philosophical heavyweights were gearing up for a more sophisticated engagement with Hart.  Hart’s essay had indiscriminately lumped together and rejected the two rather different theories of old natural law (a continuation of the Thomist-scholastic tradition) and new natural law (the Kantianized version offered by recent Catholic philosophers such as Germain Grisez and John Finnis), and representatives of both camps were understandably miffed.

New Natural Law theorist R.J. Snell rejected the claim that natural law theorists violate the Humean dictum not to derive an ought from an is—instead of deducing duties of practical reason from a speculative account of nature, they seek to logically elucidate the internal operations of practical reason, beginning with the innate awareness that “good is to be done and evil avoided.”  The derivation of particular moral precepts from this starting-point is an exceedingly complex and arduous task, and thus it is also a straw man for Hart to describe natural law as insisting “that the moral meaning of nature should be perfectly evident to any properly reasoning mind.”  Nonetheless, Snell argued in a follow-up post that natural law reasoning is not useless, nor does it require total conversion of the will to be heard: “There need not be a fundamental change of metaphysical horizons, supernatural convictions, or religious beliefs; the only requirement is for persons of practical reason to meet themselves, perhaps for the first time, and to pay attention to what they are doing.”

Old Natural Law theorist Edward Feser, in a blistering dissection of Hart’s essay, agreed with Snell’s accusation of “straw-manning.”  Indeed, Feser pointed out that it was “only by running together the two main contemporary approaches to natural law that Hart can seem to have struck a blow against either” and that Hart was “directing his attack at a phantom position that no one actually holds.”  For new natural law theorists, as Snell pointed out, grant the validity of Hume’s dictum, and accordingly self-consciously reconfigure their theory in such a way as to avoid violating it, whereas old natural law theorists refuse to grant the validity of the dictum.  Indeed, says Feser, it is hard to see how Hart can coherent grant its validity either, since from this “it would follow that the purely theological ethics to which Hart seems committed, no less than natural law theory, cannot get off the ground.”  Feser likewise contends that Hart misses his target when he objects that natural law arguments depend on controversial metaphysical premises.  Of course they do, grants Feser, but “if its being controversial makes it ‘hopeless’ as a contribution to the public square, then every controversial position is hopeless.”  What is needed, then, is not an abandonment of natural law, but a recognition that if it is to be rendered convincing to our culture, we have a major task in philosophical education before us, as well as the theological task.

This might seem to bring Feser close to Dreher’s point—that natural law arguments might be valid, but few can follow them anymore—but Feser says that this “entails only that the work of the natural law theorist is more difficult than it would have been in previous generations, not that it isn’t worth doing.”  Indeed, it’s very worth doing, and one reason is “that the liberal, who claims to favor intellectual pluralism in the public sphere, needs constantly to be forced to put his money where his mouth is”—if we do not forthrightly argue unpopular convictions in the public square, we can hardly blame the public for dismissing us as lacking any rational arguments.

While Steven Wedgeworth at The Calvinist International weighed in to offer a Protestant endorsement of Feser’s overall argument, and condemned the writers at First Things for a capitulation to “modernist” presuppositions, Samuel Goldman at American Conservative worried that Feser remained much too confident about what philosophical argument could achieve.  Anyone who hopes to generate “consensus” is deluding themselves; but

“fortunately, consensus is not the only good produced by public discussion. Participants can also clarify the premises and implications of their own intuitions, learn where others see things differently, and seek unexpected areas of  agreement. In short, they can learn to muddle through: agreeing where they can and tolerating when they must.”

Peter Escalante, weighing in this week at The Calvinist International following another related round of exchange (this time with Peter Leithart at First Things, who had echoed Hart’s conclusion that on the subject of gay marriage, “the only arguments we have are theological ones”—see subsequent exchange here, here, and here), answered the consistent worry of the First Things and American Conservative skeptics that “natural law arguments” can be “primary means of public deliberation” by denying that they were ever traditionally intended as such:

“Saying that most people nowadays aren’t persuaded by natural law arguments is true, but not at all to the point. Of course we can’t appeal to natural law as if it were a traffic code written clearly on everyone’s heart– or everyone’s speculative reason– and to which we need only point. That is not what natural law ever really meant.”

Indeed, he agrees that the public discussion of gay marriage “is very probably unsettleable in the terms on which officially sanctioned public discourse presently operates.”  However, he complains that theologians such as Hart and Leithart have gone beyond a mere prudential decision to withhold from making unsuccessful arguments, in questioning the validity of this kind of reasoning altogether.  This represents, he contends, a “retreat to commitment” which forfeits the Christian tradition’s claim to offer a philosophically intelligible account of human reason and human nature.  Thus he concludes,

“What is at stake in this debate is not whether or not natural law arguments can or can’t act as trump cards of public rationality. It is, rather, whether we open our eyes to see the fact of our common nature and common mind, or close them and retreat into the Romantic inner world of conservative subjectivism.”

Escalante’s essay helpfully distinguishes the points that have been blurred in some of the earlier contributions to the discussion: the question of the logic, validity, and universal rationality of natural law arguments as such, and the question of our contemporary political culture’s ability and willingness to process and hear such arguments (and thus, what Christians’ best strategy of engagement should be).  Christian conservatives urgently need to sort out what they think about both questions, but without allowing the answer to one to dictate the answer to the other.