Natural Law Awe—Can We Just Break the Spell?

Catholic writers like to invoke the talismanic power of “natural law” to buttress their arguments—as if we still lived in ancient Greece or early Christendom, as if there were universal agreement about what the thing is or whether it really exists. Philosophers and theologians have disagreed about almost every aspect of it since it was first articulated, probably by Empedocles. They even disagree about when it began (Plato? St. Thomas?) and who best represents it. (Hobbes? Augustine?)

Empedocles believed natural law forbade the killing of animals. Augustine of Hippo believed it had only been possible in our prelapsarian state (So it’s too late to invoke it). Gratian thought that it was the same as divine law, while St. Thomas Aquinas believed the two were different. Neither Aquinas nor Augustine thought natural law forbade slavery. According to the definition offered by Anglican theologian Richard Hooker, natural law requires us to worship God and to reproduce, so Buddhists and Catholic priests would be in violation. Sir Edward Coke (early 17th cent.) and later, Thomas Hobbes, believed natural law required allegiance to the reigning sovereign. (In the U.S. that would be Obama, and in North Korea, Kim Jong-un.) Hobbes also thought natural law required that the first-born (son) should inherit things which cannot be held in common. Hugo Grotius (17th cent.) believed that even God was bound by natural law, but most natural law theorists have not agreed. Pierre Charron (1601) said that “the sign of a natural law must be the universal respect in which it is held.” (By “universal, I presume he meant the part of France where he lived.) Catholic theologian John Wijngaards does not believe natural law applies to specific points of sexual ethics (e.g., contraceptives and homosexual unions). St. Thomas summed up natural law as follows: “Good is to be sought, evil avoided.” This is about as circular—and as useful—as Mark Twain’s stock-picking advice: “When the price is low, buy the shares. Sell them when the price rises. If the price doesn’t rise, then don’t buy the shares.”

It appears that natural law can mean anything we want it to mean. For thousands of years, it barely acknowleged the existence of women, much less their right to choose their husbands, own property, hold jobs, or vote. Slavery and environmental destruction were not even regarded as infractions. Natural law had nothing to say about the subjugation of non-European peoples, the evils of monarchical power, or ecclesiastical overreach. In short, natural law has always been malleable in the service of contemporary and local social values, usually as expressed by the elites. It has always been used in the same manner that Catholic writers now invoke it: to create awe and respect for arbitrary arguments or fiats that might otherwise be indefensible.

Law-making, going back to Hammurabi and Moses, was a way of keeping order, controlling divergent desires, and settling conflicts. Its purpose was utilitarian; it kept everyone “on the same page” regarding codes of conduct, standards of fairness, and measures of justice. To be effective, it had to be putatively grounded in the transcendent—then understood as the Divine—which always has the last word. Calling the law “divine” made it super-resistant, impossible to refute. Inutile de protester! Flouting or challenging the law was hubristic, and a moral reckoning by the gods was sure to ensue.

Secular humanists recognize that the law derives its legitimacy from the transcendent, but the transcendent is no longer divine. It’s only what it always was, but now it knows itself for the first time. It is the polity itself, sometimes transcending narrow individual interests and sometimes co-opted by them. Secular law is not always fair, but it continues to be somewhat malleable. Its footing is more consequentialist than deontological, more concerned with pragmatic outcomes and the weighting of benefits and harms than with unquestioning adherence to sets of rules that were forged by monarchs, theologians, and popes centuries ago.

Natural law was the foundation of common law and of virtually all systems of law in the Western world, but we cannot return to it. Nor would we want to. We’ve evolved, and the way forward is not the way back.


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