Natural Law and LoveBy R. J. Snell for FRONT PORCH REPUBLIC
The following is an excerpt from R.J. Snell’s new book The Perspective of Love: Natural Law in a New Mode.
Preface: According to the rightly celebrated theorist J. Budziszewski, natural law is a fact, a “feature of the world having to do with the constitution of the human person, and behind that, with the constitution of created reality as a whole.” While it is, he suggests, possible to question that fact, if “we are serious about being Christian philosophers . . . we should already know the answer to that logically possible question,” and it would “be frivolous—a squandering of what has been given to us—to waste breath on the question of whether the human person has a constitution.” In other words, we could, but ought not, ponder the existence and reality of the natural law—it is a fact.
Further, if we do exert the effort to theorize about the natural law, our questions should be humble before the factual reality; they should “come in second place, not in first,” and accept as given knowledge of the world and the human person. Consequently, theory “will not be the belly-buttonsearching kind . . . will not always be turning into metatheory of the natural law, a theory about theories.” Instead, theorists will get busy, engaging the pathologies and deceptions of the time—they will serve as signs of contradiction—a task frustrated by “turning . . . eyes skull-inward in a futile attempt to catch [themselves] at the act of contemplation.”
In this book, I do not heed his counsel, turning not only to metatheory but of the type attempting to catch itself in the act of contemplation (although I’ll call that noetic exegesis). I do so cautiously, for his was good advice, and I’m well aware that such metatheory tends to sharpen knives without ever cutting anything, and our time may lack such luxury. Still, whatever the immediate crisis, there is a place for the long game, for understanding and creating conditions of inquiry and progress. I’m not so hubristic as to think my work will accomplish this, but I hope to pull in that direction. Further, Budziszewski allows that while metatheory may be frivolous for a Christian to ask “on his own behalf . . . it is not frivolous if we live among humans who deny the personal structure of their being.” Charity recognizes that the scandal of our time is so dire as to require inquiry into the obvious, and, moreover, Budziszewski suggests the Fall has rendered “our state . . . out of joint with our nature.” So while Christians needn’t theorize about the fact of the natural law for themselves, the Fall and the revolt of modernity justifies explaining the obvious—or so his argument allows.
Oddly, however, it is the doctrine of the Fall which renders natural law a non-starter, a dead end theologically and culturally for so many Christians, mainly but not only Protestants. Culturally, the argument goes, the natural law fails to persuade anyone not already on board because it relies (generally under deep cover) on theological commitments about creation, design, purpose, and human identity. Theologically, natural law downplays the Fall, overlooks the noetic effects of sin, ignores salvation history, makes the Gospel non-essential to the moral life, confines grace to a heavenly or spiritual domain, and thinks that the human can know and act well without first knowing and acting like Christ and being formed by his Church and its sacraments. Not only does natural law smuggle in theology, it’s bad theology (likely Pelagian).
But if the denial of natural law by non-believers justifies metatheory, so does friendly fire from Christians, which is now almost a barrage. This text engages metatheory in an attempt to show that the “Protestant Prejudice” should be incorporated into natural law theory, but also that the usual objections fail to distinguish the varieties of natural law theory; while the arsenals of the Protestant Prejudice may score direct hits on some modes—what I’ll term the common sense and theoretical—they are far less troubling to what I’ll term the modes of interiority and transcendence.
After a brief introduction explaining the project and its context, Part One differentiates natural law as common sense, as theory, and as interiority, explaining how the Protestant Prejudice tends to overlook interiority. Part Two examines interiority in more detail, grouping together a range of contemporary thinkers beginning from the first person perspective of ethics. As opposed to earlier, or classical accounts, these thinkers do not begin with theoretical anthropology, metaphysics of the person, or metaphysical biology but share a methodology of noetic exegesis—adverting to the performance and intentionality of the concrete person’s practical reason—and so can be grouped together, despite their differences: John Paul II and Martin Rhonheimer, contemporary natural law, or the so-called “new natural law” of Germain Grisez, John Finnis, Joseph Boyle, and others, and the methodological phenomenology of the Canadian Jesuit, Bernard Lonergan. While these three “schools” do not agree on every detail, they provide a broadly similar starting point from which to address the usual Protestant concerns.
In Part Three, I outline natural law in the mode of transcendence, explaining how concrete subjects undergo both the reign of sin and the transformation of love. Without negating the natural, the Holy Spirit allows the proper function of natural reason again, and natural law operates as a normative account of human authenticity—an account of natural law rooted in value. Rather than denying the Protestant objections, I provide a non-abstract, non-conceptualist account of the natural law that (1) incorporates the Protestant objections, (2) avoids the usual philosophical problems, and (3) allows a normative and publically accessible account of human flourishing genuinely adequate to human nature. This is natural law in a new mode, the mode and perspective of love.
Chapter One: Natural Law as Ordo Naturae
In a very helpful essay, J. Budziszewski explains those elements common to all natural law theories. All “share a conviction that the most basic truths of right and wrong . . . are not only right for everyone, but at some level known to everyone by the ordinary exercise of reason. They are an heirloom of the family of man.” Every natural lawyer would agree, he suggests, that basic truths are natural because somehow “embedded into the structure of creation, especially human nature, which includes the structure of the human mind,” and all would agree that this structure obligates or binds. True, known to be true, and right.
Particularly, he differentiates four aspects commonly affirmed by classical accounts, while new natural law demonstrates less commitment to the second and third: (1) a normative structure to practical reason; (2) an evident design to human nature; (3) the particular aspects of this design and the innate purposes and meanings of the designs; (4) natural consequences or discord to violating the good proper to our nature.3 As Budziszewski indicates, much of the dispute in the natural law literature between classical and contemporary theories pivots around the status of teleology in nature: does nature reveal design, can design be known absent theological commitments, does design entail normativity and obligation, is the Aristotelian paradigm of final causality still meaningful, is metaphysical biology sensible, and does natural law begin with and ground its conclusions upon nature? In short, what is the status of teleology?
As Leo Strauss articulated in his classic Natural Right and History, commitment to natural right seems reminiscent of a world existing no longer, part of a teleological universe “destroyed by modern natural science” and rejected by the social sciences in the name of “History and in the name of the distinction between Facts and Values.” Given the ateleological universe, historicism, and the fact/value distinction, it might appear quite unreasonable to maintain belief in natural law or natural right, for the intellectual substructure is, as Alasdair MacIntyre put it, echoed by David Bentley Hart, “unacceptable by the dominant standards of modernity.” Yet the cultural and scientific developments noted by Strauss have not resulted in the withering away of either natural right or natural law but instead contributed to a renewed vitality as some thinkers deepen the commonplaces of the tradition while others develop or stretch the tradition in new directions. This is to be expected, for challenges to a tradition cause crisis, irrational and wooden traditions either capitulating or refusing to engage while more supple and reasonable traditions ask new questions, pose new answers, transpose old answers, and articulate themselves in new and productive directions.
This is not the first time that natural law has developed in response to a crisis presented by some theoretical or social challenge, so we should not be surprised to find it developing previously. And in each of these moments of challenge, I suggest, the crisis has been occasioned by the meaning of “nature.” What is so natural about the natural law; what is nature?
In the Introduction I claimed that “nature” functioned as a heuristic, which is to say that its meaning comes from what we seek to know, the unknown x, or from what we intend. Since what humans seek to know differs quite radically across cultures, times, places, and tasks, there are consequently many “natures.” This is not an unknowable chaos, however, since paying attention to how our conscious operations work—noetic exegesis—allows us to explain the origin and development of the many “natures” by adverting to the disparate ways or exigences of how humans direct consciousness. Consequently, we can distinguish the multiple meanings of nature, including the historical development of those meanings and the various crises which have emerged in that history, by adverting to the different functions of consciousness.
According to Lonergan, Aristotle expressed something fundamental in the opening lines of the Metaphysics: “All men by nature desire to know.” When the animal has its physiological needs met, it sleeps, but when the human has met its needs, we do math or theology or go exploring, for our intelligence is essentially dynamic love; so long as we want to know, so long as we care and direct our intelligence towards knowing, our consciousness continues to operate in a cumulative, self-correcting, and indefinite process of accumulating data and acquiring new insights. This dynamism is for some unknown, and we seek this unknown spontaneously, by some innate tendency, although it “is a conscious tendency . . . we do so intelligently.” Children ask incessant questions, without prompting, according to some inner impetus, although the dull child, the one who does not care to know, can rarely be coaxed or coerced into knowing if he lacks the desire, for knowledge does not just happen because the external data is present but because of the interior condition of inquiry and the interior operations by which we arrive at knowing. The interior condition manifests itself in questions, for we would not ask unless there was an unknown, and we could not ask unless we sought something. Something: what we seek exists as an ideal, but not clearly or explicitly or we would already have what we
The transcendental condition of our questions is the dynamic desire to know, and to know what is unknown, an x, and this unknown x functions as a heuristic, as an intended ideal that as yet is not appropriated or known. It is whatever is intended by the question. But what is intended by questions is not empty or abstract. The condition of questioning is transcendental—the “pure question”—but “no one just wonders. We wonder about something.” Of course, we can wonder about many things, in many different ways, and there are different heuristics at different times, in different communities, and so on. The pursuit is intelligent and conscious, but it is not conceptually explicit, and it differs and develops as questions differ and develop, so “how do you proceed methodically . . . to the attainment of something that you do not know, something which, if known, would not have to be pursued?” According to Lonergan, the solution is precisely that metatheory by which we try to catch ourselves in the act of knowing which Budziszewski judged distracting:
The solution . . . to this problem is self-appropriation. . . . The ideal we seek in seeking the unknown, in trying to know, is conceptually implicit. There does not exist naturally, spontaneously, through the whole of history, a set of propositions, conceptions, and definitions that define the ideal of knowledge. But to say that conceptually it is implicit . . . that these statements differ in different places and at different times—they are historically conditioned—is not to say that it is nonexistent. While the conception of the ideal is not by nature, still there is something by nature. The ideal of knowledge is myself as intelligent, as asking questions, as requiring intelligible answers . . . and if we can turn in upon these fundamental tendencies, then we are on the way to getting hold. . . .
Denying any universal set of propositions and definitions may seem surprising for a proponent of natural law, but note as well his affirmation of a basic, universal, and innate tendency—the pure question—to which we pay attention as a clue.
The pure question is innate and universal, but the exigences of the pure question are disparate, with the plurality of “natures” tied to the plurality of patterns in which questions can develop. We should not be surprised to find within the natural law tradition serious differences of articulation and meaning, then; nor should this pose any threat to the coherence of the tradition and its claims of universal legitimacy, for any theory which claims to be inextricably caught up in human reason is thereby inextricably historical. Further, as tied to reason, which has its grounding in the pure question and the dynamic desire to know, we can investigate differences within the tradition as understandable because of the patterns and exigencies
Common Sense as Meaning
Intelligence has as its transcendental condition the desire to know; insofar as this desire is innate and operative, inquiry occurs spontaneously, for the conditions of inquiry are (a) desire itself and (b) something about which to inquire, which is provided through data. Not only is inquiry spontaneous, but so too are the insights arising from the questions of inquiry. When we ask questions in response to some data, we experience the tension of inquiry (the not knowing) as well as a release of that tension when we have an insight into the data. Insights occur in response to asking “What is this?” and present a possible grasp of intelligibility immanent to the data. Of course, insights often turn out to be inadequate or incorrect, but the “Aha!” experience when we “see” or “understand” or “get” something, even if still vaguely and inchoately, is not at all unusual or recondite. This happens to us all quite frequently. Since intelligence is dynamic, an intelligence which follows out its innate desire or love of knowing hardly turns off whenever the first bright idea pops up; instead, one bright idea leads to another and another, allowing insights to accumulate in the process of learning. Further, such insights can be communicated to others, even taught to others, and an intersubjective sharing of perceived intelligibility allows from “the communal development of intelligence in the family, the tribe, the nation, the race,” since humans “are born into a community that possesses a common fund of tested answers.”
For Lonergan, the spontaneity of inquiry, the similarly spontaneous accumulation of insights, and the communication of insights are components of common sense. In its particular mode, common sense, unlike theory, exhibits little concern for universality. Rooted in the experiences of individuals and the promulgation of those experiences within particular communities, common sense is “not concerned with the universal definition of bravery or truth or justice” even though, of course, it wants “people to be truthful, brave, and just. . . .” Common sense will develop understandings of those virtues, will bequeath and educate members of the particular community into them, and may even assume that its understanding is normatively and universally true, but it does not methodically develop symbolization attempting a universal account; it uses “our” language to convey “our” beliefs about how “we” live, and perhaps even “our” thoughts about how “they” live.
The reason for this unconcern is that common sense rests on how things of the world relate to us, and while persons of common sense very often think that how things relate and appear to them is self-evidently the way things are in themselves, common sense has no methodology by which to demonstrate this, nor would it be interested. In epistemological terms, as I discussed in the Introduction, common sense confines itself to description in relation to us, not an explanation of data in relation to other data. So the water is hot, the man is tall, the car moves fast relative to us, as opposed to the relationship of data to data in degrees, mass, or velocity. The perspective of data relative to us is not unintelligent, of course, but it is a limiting of concern, a particular stance towards the world under a certain description and use, and the world appears under the guise of concern and interest. The person of common sense approaches the world from a certain domain of interests, and whatever does not fit that domain of love and cares does not, in a certain sense, exist at all for them. It is meaningless and thus ignored or censored out: “It clings to the immediate and practical, the concrete and particular. It remains within the familiar world of things for us. Rockets and space platforms are superfluous if you intend to remain on this earth.”
Nor is this bigotry or provincialism. Most of us spend most of our time in the world of common sense, existing in a world of bodies “out there” as sources of pleasure, pain, use, comfort. When we drive our car or fix a meal, play a game or teach our children how to ride a bike, use a fork, or treat the neighbors justly, we are most often in the world of common sense. Common sense is not unintelligent, but a mode of intelligence by which we organize the concrete world in such a way that is predictable, manageable, and coherent: “the man of common sense wants a nucleus such that with the minimum of further insights he will be able to deal with any concrete situations that arise in his living.” As such, common sense tends to arise within multiple individuals and communities: “Far more than the sciences, common sense is divided into specialized departments. For every difference of geography, for every difference of occupation, for every difference of social arrangements, there is an appropriate variation of common sense.” The way “we” do it may work very well for the conditions of life we tend to find “here,” which is why “they” seem like bumblers when “they” use the accumulated insights of their community “here” and also why we feel such vertigo when we are “there.”
Common Sense as Law
Since common sense is intelligent, its accumulated insights are very often coherent and reasonable, but that which is coherent and reasonable has a claim to be true, even binding—“this is the way that we organize and do things here, and it is the way you ought to do it as well.” Still, the way that common sense obliges or demands is peculiar to the mode of common sense; in the following sections I explain three variations of how common sense expresses natural law.
Natural Law as Inclination
Insofar as common sense confronts the world relative to our own perspectives, projects, interests, and concerns, it carries a latent possibility of reductionism whereby the being of the world is what it is insofar as it serves or frustrates my projects and concerns. The world, after all, is not given to us except through the mediation of our own awareness, an awareness which we govern through our own mode of concern:
Both the sensations and the bodily movements are subject to an organizing control . . . there is, immanent in experience, a factor variously named conation, interest, attention, purpose. We speak of consciousness as a stream, but the stream involves not only the temporal succession of different contents, but also direction, striving, effort. Moreover, this direction of the stream is variable.
We do not inhabit the world as passive receptors, but rather as active organizers and censors, with our conation or attention the principle by which the world is organized. Of course, we can attend the world in a variety of ways. Conation, or patterns of care, function as organizing principles which, in a sense, command consciousness and make the world. If “nature,” in its plurality, is the whatness of the objects of our intention, and our intention can be governed by the interests of common sense—as biological, or aesthetic, or dramatic—then nature can be viewed as whatever our inclinations intend.
Plato gives us several characters who serve as symbols of this understanding of nature. Consider Thrasymachus from the Republic, for whom it is by nature right and just to seek the advantage of the stronger but unnatural to curtail and curb such advantage.23 Similar views are expressed by Polus and Callicles in Gorgias, with Callicles particularly apt as an example. He enters by asking if Socrates is joking, then rebukes him for claiming to pursue truth but actually dragging “us into these tiresome popular fallacies, looking to what is fine and noble, not by nature, but by convention.”
Nature herself makes it plain that it is right for the better to have the advantage over the worse, the more able over the less. . . . But if a man arises endowed with a nature sufficiently strong, he will, I believe, shake off all these controls, burst his fetters and break loose. And trampling upon our scraps of paper, our spells and incantations, and all our unnatural conventions, he rises up and reveals himself our master who was once our slave, and there shines forth nature’s true justice.
As Eric Voegelin interprets this scene, the dispute is over what form of love is to master and obligate our lives, either the Good (Socrates) or nature understood as “the stronger or weaker physis” (Callicles). In the end, what occurs is an existential re-ordering by Socrates, for whom pleasure is not identical to the good, and for whom eros is the proper governing love, and thus for whom the “ordered universe,” or nature, is a different world entirely. Multiple natures, corresponding to the objectives of distinct loves, are at stake, but it is the existential ordering of loves—the therapy of desire—determining which nature prevails.
In a more contemporary context, the ambiguity of “nature” is observed in the moral and legal disputes about sexuality. On the one hand, homosexual acts are described by some as unnatural acts; on the other, the prevalence of same-sex sexual activity in animals is used to articulate the naturalness of homosexuality, as is the experience of same-sex attraction within humans. Some animals, and some persons, have sexual inclinations or desires for members of the same sex, and it is thus natural for them, while others find such desires alien and thus unnatural.
The unifying thread between Callicles and contemporary sexual politics is the role of inclination and desire in interpreting and defining nature. When we say of a person’s behavior, “It’s only natural,” are we appealing to the statistically common inclination, or the inclination of this particular person whether statistically usual or unusual? In either event, nature is defined in reference to patterns of inclination, perhaps biological, but also aesthetic or dramatic. It’s quite easy to find judgments on the naturalness or unnaturalness of a desire, a food, a behavior, even of religion, art, and architecture which seem to express the common sense understandings of how “we” or “they” organize and control our judgments.
Natural Law as Proverb
Common sense interprets data relative to us, and it was that aspect I stressed in natural law as inclination, but already by the conclusion of that section emerged the intersubjective or communal aspect of common sense. We don’t have inclinations as individuals solely since inclinations are formed, educated, and interpreted within communities of meaning. Every parent, every tribe, every nation, and every tradition hands on certain tested and verified judgments about inclinations and desires in the hope of shaping both the behavior and inclinations of the other members. A parent wants not only to form their children’s actions, but wants them to love certain things in certain ways.
Plato provides multiple examples of this as well. For instance, the opening exchange between Socrates and Cephalus in the Republic brilliantly reveals how accumulated insights pass into the habitual texture of community life, and how philosophy (theory) disrupts such meaning. Socrates has accompanied a group of young men to Cephalus’s home where they find him dressed in the regalia of ritual religious observance, as befitting a man of social position and wealth. Very rudely, and in some violation of the rules of hospitality, the polite conversation between the two elders is forced into elenchus by Socrates who asks of Cephalus how his money was obtained and whether Cephalus’ own account of the justice with which he acted was sufficient. Entirely unperturbed, Cephalus draws upon the poetry of Pindar—“a fine saying and admirable”—in explaining justice as a kind of honesty and fairness in one’s business with men and gods.
In doing so, Cephalus relies upon the customs and education of his generation, for whom Pindar adequately states the laws and customs of the city and its form of life, its common sense. The appeal to Pindar is an appeal to authority, but not the authority of someone who explains, but the authority of someone who represents “our” way of doing things. Cephalus has no interest in explaining the reason behind the custom and has no sense of law’s principles, for he is one of those kept lawful by the “force of tradition and habit . . . but they are not righteous by ‘love of wisdom.’” So long as no crisis threatens the community’s ability to hand on its ways and mores, custom governs, and proverbs rather than explanations form the young; but such a community cannot explain or justify itself except by appeal to its venerable authorities, and they cannot justify themselves except by being accepted as venerable, and so in moments of crisis the old ways are exposed as nothing other than convention. Upon being challenged by Socrates, Cephalus departs, returning to the prayers and sacrifices mandated by his office in the polis, leaving the argument to his son, heir both of property and proverb, who begins with proverbs of his own before acknowledging his ignorance, the inadequacy of the poets, and the status of Socrates as superior and guide. Socrates, the symbol of theory, threatens the established order of custom, for theory and proverb attend to the same world in different ways.
In the Oresteia trilogy by Aeschylus, the hold and force of common sense is powerfully presented.30 Duty-bound to avenge the murder of his father, Agamemnon, Orestes confronts the horrible reality that doing so entails the slaughter of Cassandra, his mother. Of course, one could read Cassandra as having justly restored the balance in her killing of Agamemnon, for not only did Agamemnon sacrifice their daughter, Iphigenia, for favorable winds to Troy, but Agamemnon’s family bore guilt for the murder of his cousins, the brothers of Aegisthus, and violation of hospitality to his uncle. On almost every level, some customary duty is denied and requires a righting of the scales.
In the matricide, Orestes demonstrates filial piety, earning for him the favor and protection of Apollo but also the hate of the loathsome Furies, chthonic and ancient spirits of revenge. Older than the Olympians, and protesting that their venerable rights have been ignored by the younger deities, the Furies demand Orestes’ death, for he has killed his mother. He’s also defended his father, and much of the play concerns the conflicts within common sense—for there are, recall, many common senses, and since they are little concerned for the universal they easily contradict each other: age versus youth, mothers and fathers, men and women, ground and sky, body and mind, blood and contract.
The dispute is resolved through the procedures of law in the court established by Athene on Mars Hill. The Aereopagus overcomes mere custom, for each side presents its case before the discretion of the jury, even though Athene arrives dressed for war in order to persuade the Furies to accept the court, and even though the deadlocked jury is resolved by Athene who admits her (arbitrary) preference for the male. Enraged, the Furies seek to reassert their rights, and Athene first threatens them with the force of Zeus before seducing them with the promise of enthronement in the soil below Mars Hill, from which their spirit will seep into the soil, water, plant life, and air of Athens. Revenge will be domesticated, but the law will be revenge shrouded with the robes of justice. Aeschylus reveal to us that the law of a city is nothing more than “common love” and “common hate” by which the city unites in its self-regard against all foreign and alien encroachments. What is one’s own is obviously good, while the foreign is obviously bad. Such is the natural law of common sense made sacrosanct by time.
Natural Law as Nature
In distinguishing the first two varieties of common sense natural law, I’ve emphasized various aspects of common sense as a mode of meaning. For instance, common sense tends to (1) describe the world relative to us, and (2) tends to codify its insights in concrete and practical terms which while not concerned with universalizability are nonetheless handed on intersubjectively. Common sense also (3) tends to consider the real under the description of “bodies,” and develops a version of objectivity in keeping with a world so described.
Unlike common sense, theory relates data to data and things to things, as, for instance, velocity is determined by the relation of distance to time or temperature is determined in terms of degrees Celsius in relation to water’s freezing point. For theory, the world we sense is not so much described as it is explained, with explanations taking us into the realm of the intelligible more than the sensible; common sense, on the other hand, has no interest in leaving the sensible, and expresses its grasp of intelligibility with constant eye to sense and concrete action. Thus, not velocity but the fastness or slowness of the car relative to my safely crossing the street, or the hotness of the water relative to boiling an egg or scalding my hand. To distinguish the object of concern, or the way reality is grasped by the modes, Lonergan distinguishes things from bodies. For the world of theory, the object of our conscious intention is understandable rather than necessarily imaginable, whereas common sense intends and thinks the real as imaginable. For the chemist qua chemist, water is a formula of intelligible relations, for the chemist qua person of common sense, water is something to drink. Water as thing is understood, but not imagined or touched, while water as body is always imagined as touchable. In the world of theory, God is three persons in one being united in a dynamic relationship of periochoresis; God for the child of common sense is an old man who sits on a throne up in heaven. In a way, both intend the same reality, but with different patterns of interest, with common sense intending bodies.
As such, “nature” for common sense 3 will be understood as body. This seems slightly counterintuitive, but as an example consider the way that the Platonic and Aristotelian version of “Form” is usually taught, with Plato’s “Form” expressed visually as “up there,” but Aristotle’s as “down here and in things.” Both express Form as invisible body, a common sense articulation, for body is understood by common sense as something which exists “already out there now real.” As “already,” a real body exists prior to and independent of our perception; as “out there,” not an idea but as possessing its own independent existence; as “now real,” possessing temporal distinctness as part of its independence.