Natural Law and Public Policy

I recently came across an article in a politically conservative publication, challenging the usefulness of natural law argumentation in the public policy arena in contemporary secular society (David Bentley Hart, “Is, Ought, and Nature’s Laws,” First Things, March 2013).  As the title of Hart’s article (referencing David Hume’s famous challenge to natural law reasoning) reveals, the issue the author raises is hardly new. Its salience certainly seems to be increasing, however, with the progressive breakdown of anything resembling a consensus on the moral meaning or even the intellectual validity of a concept such as human nature.

 

Classically oriented moral theorists, of course, continue to propose public policy arguments which in themselves may make perfect sense, but only if one accepts certain presuppositions about the nature of things.

Broadly speaking, natural law thinking interprets the criterion “nature” as self-evidently knowable, objectively discoverable somehow in the universe.” The strength of natural law theory is its confidence that an honest examination of nature will corroborate it and so be convincing apart from any religious presuppositions. Thus, for example, Otto A. Pieper wrote - in 1946 (“What Is Natural Law?” Theology Today) - that the Geneva and Hague Conventions “were based upon ‘natural law’, i.e. on the very nature of international life.” His point was that, whereas one would not expect secular governments to adhere to explicitly sectarian standards (“explicitly Christian ideas of conduct”), on the other hand, “they can all acknowledge natural law.” Clearly, claiming to derive public policies from some sectarian source (scripture, divine revelation), however plausibly convincing that might within the confines of the Church community, would be to deprive those proposed precepts of the broadly universal communicability which would be needed to be convincing in a modern/postmodern pluralistic society. It is this very universality which, of course, is supposed to be the strength of natural law theory, the reason to employ it in a pluralistic society. (Jacques Maritain famously evidenced similar optimism about natural law in relation to the UN's 1948 Universal Declaration of Human Rights.)

What happens, however, in a cultural context in which the applicability of the terms “natural” and “unnatural” no longer seems self-evident to many?  What happens in a modern/postmodern world in which - as many now increasingly believe - there are (in Alan Wolfe's words)  “so many ways of being human” with the resulting claim “that one cannot assume the automatic moral superiority of one over another”? (cf. Moral Freedom: The Search for Virtue in a World of Choice, 2001).

Of course, as I can recall trying to argue back in the 1970s, one can continue to affirm the objective naturalness of principles and consider them as being universally applicable, even while recognizing that they are far from universally communicable.  At that time I wrote that, if the universal knowability of the natural law were the essence of natural law, then it would appear seriously compromised by the reality we experience in our world. As I saw it then, the issue of the empirical knowability of the natural law had to be secondary to the ontological claim of natural law to express the essence of human nature in relation to human beings' true destiny

The obvious policy problem, however, is that it is extremely difficult to see how a universal applicability can successfully be proposed for particular moral precepts in a cultural context in which the principles and premises on which those precepts are based increasingly lack communicability and hence increasingly appear implausible to more and more people.

And so, belief in natural law, argues Hart, “is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good.” This, however (Hart adds suggestively), “cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary expectations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural.”

This has certain evident implications for public policy as debated in our pluralistic secular society, in which what was once plausibly communicable as” natural” (whether that language was overtly used or not) can only come across today as at best purely sectarian.