Natural Law and the Possibility of a Global Ethics

NATURAL LAW AND THE POSSIBILITY OF A GLOBAL ETHICS

Philosophical Studies in Contemporary Culture VOLUME 11

Series Editor H. Tristram Engelhardt, Jr., Department of Philosophy, Rice University, and Baylor College of Medicine, Houston, Texas Associate Editor Kevin Wm. Wildes, S.J., Department of Philosophy and Kennedy Institute of Ethics, Georgetown University, Washington, D.C. Assistant Editor Lisa Rasmussen, Instructor, University of Alabama, Birmingham Editorial Board Stanley Hauerwas, Duke University, Durham, N.C. Maureen Kelley, University of Alabama, Birmingham Terry Pinkard, Northwestern University, Evanston, Illinois Griffin Trotter, Saint Louis University, Missouri

The titles published in this series are listed at the end of this volume.

NATURAL LAW AND THE POSSIBILITY OF A GLOBAL ETHICS Edited by

MARK J. CHERRY Saint Edward’s University, Austin, Texas, U.S.A.

KLUWER ACADEMIC PUBLISHERS NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

eBook ISBN: Print ISBN:

1-4020-2224-7 1-4020-2223-9

©2004 Springer Science + Business Media, Inc. Print ©2004 Kluwer Academic Publishers Dordrecht All rights reserved No part of this eBook may be reproduced or transmitted in any form or by any means, electronic, mechanical, recording, or otherwise, without written consent from the Publisher Created in the United States of America

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TABLE OF CONTENTS

Acknowledgements GEORGE E. MARTIN / Foreword MARK J. CHERRY / Natural Law and the Possibility of a Global Ethics: An Introduction to a Culture in Crisis

SECTION I CONFRONTING MORAL PLURALISM: ASSESSING UNIVERSAL APPLICABILITY Chapter 1 JOSEPH BOYLE / Natural Law and Global Ethics

vii ix-x

xi-xix

xxi

1-15

Chapter 2 MARK J. CHERRY / Natural Law and Moral Pluralism: Epistemological and Metaphysical Challenges

17-38

Chapter 3 CHRISTOPHER TOLLEFSEN / Natural Law and Modern Meta-Ethics: A Guided Tour

39-56

Chapter 4 FABRICE JOTTERAND / Moral Identity and the Natural Law Theory: A Response to Tollefsen’s “Natural Law and Modern Meta-Ethics: A Guided Tour”

57-67

SECTION II ENGAGING THE LIMITS OF HUMAN NATURE Chapter 5 NICHOLAS CAPALDI / Global Ethics and Natural Law Chapter 6 DANIEL MCINERNY / Natural Law and Conflict Chapter 7 WILLIAM J. ZANARDI / Natural Law and Historical Mindedness

69

71-88

89-100

101-113

Chapter 8 ANA ILTIS / An Assessment of the Requirements of the Study of Natural 115-122 Law

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TABLE OF CONTENTS SECTION III BEYOND RATIONALISTIC PHILOSOPHY: ASSESSING UNIVERSAL ACCESSIBILITY

Chapter 9 B. ANDREW LUSTIG / Natural Law and Global Ethics

123

125-140

Chapter 10 THOMAS J. BOLE, III / The Perversity of Thomistic Natural Law 141-147 Theory: Reflections on Lustig’s Criticisms Chapter 11 ROBERT B. KRUSCHWITZ / Natural Law and the Free Church Tradition 149-162 Chapter 12 RICHARD J. BAUTCH / Natural Law and the Free Church Tradition: A Biblicist Responds

SECTION IV THE NATURAL LAW TRADITION AND A CULTURE IN CRISIS

163-168

169

Chapter 13 PHILLIP M. THOMPSON and KEVIN P. LEE / Insights and Hindsights 171-188 from Seeking a Global Ethic NOTES ON CONTRIBUTORS INDEX

189 191-200

ACKNOWLEDGEMENTS

The development of this volume benefited through the kind efforts of many. Its origin was a series of conferences funded largely through two generous grants from the Matchette Foundation with additional assistance from Saint Edward’s University and the Center for Ethics and Leadership. I would like to thank the contributors, who recast their essays several times over the course of three years, long after the final conference, to craft the final versions which appear in this volume. A special debt is owed to H. Tristram Engelhardt Jr., Ana Iltis, Fabrice Jotterand, Lisa Rasmussen, and Corinna Delkeskamp-Hayes, who, in addition to being excellent colleagues, tirelessly supported the development of this project. Mollie E. Cherry thoroughly edited early versions of many of the manuscripts, detailing appropriate editorial corrections. This volume would not exist without her kindness and love. I also wish to recognize the on-going generosity of Saint Edward’s University, the School of Humanities, the Department of Philosophy, and the Center for Ethics and Leadership, especially Donna Jurick, SND, Louis T. Brusatti, William J. Zanardi, and Phillip M. Thompson. Each has been instrumental, though in different capacities, to the success of this project. The final editing of the volume benefited from the careful labors and critical insights of Heather Lewis.

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GEORGE E. MARTIN

FOREWORD Saint Edward’s University, Natural Law Theory, and the Catholic Intellectual Tradition

The University is … “the place to which a thousand schools make contributions; in which the intellect may safely range and speculate, sure to find its equal in some antagonist activity, and its judge in the tribunal of truth. It is a place where inquiry is pushed forward, and discoveries verified and perfected, and rashness rendered innocuous, and error exposed, by the collision of mind with mind, and knowledge with knowledge. It is the place where the professor becomes eloquent, and is a missionary and a preacher, displaying his science in its most complete and most winning form, pouring it forth with the zeal of enthusiasm, and lighting up his own love of it in the breasts of his hearers” (John Henry Cardinal Newman, The Idea of a University, 1854).

This volume is a contribution to the literature of natural law theory: a philosophical tradition which seeks principles and precepts for morality, law, and other forms of social authority, whose prescriptive force is not dependent for validity on human decision, social influence, or cultural convention. Natural law moral principles and precepts are held to be generally accessible as a function of the rationality that all persons share in virtue of their common humanity. The ancestry of this philosophical project is deeply embedded in Western philosophical history and the Catholic intellectual tradition with roots in Plato (427-347 B.C.), Aristotle (384-322 B.C.), the Stoics, St. Augustine (A.D. 354-430), St. Anselm (A.D. 1033-1109) and the founding of the University of Paris (A.D. 1208). Natural law moral philosophy and theology enjoyed broad audience and considerable influence among philosophers and theologians from the high middle ages through the eighteenth and nineteenth centuries due in large measure to the scholarship of such figures as Thomas Aquinas (A.D. 1225-1274), Francisco de Vitoria (A.D. 1480-1546), Francisco Suarez (A.D. 1548-1617) and the scholastics. The principles of natural law were at the core of discussions of such diverse fields as civil and ecclesiastical authority, international relations and dietary laws, human rights and social obligations, as well as colonialism and just war theory. In recent years, there has been a remarkable resurgence of interest in natural law theory among moral, political, and legal scholars. Much ink has been consumed seeking to identify basic principles of practical reasoning and to derive from such principles moral norms to guide individual and legal decision-making. According to Aquinas, law is, “…nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (Aquinas, ST I-II, Q 90, A4). The aim of natural law theory, as Aquinas notes, is to produce and ix Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, ix—x. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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preserve human happiness, social justice, and the common good. This volume’s historical conception resulted from a core set of papers written for the 2000 and 2001 annual Natural Law Philosophy Colloquiums held at Saint Edward’s University in Austin, Texas. Funded primarily through two generous grants from the Matchette Foundation and supported by the School of Humanities, the Department of Philosophy, and the Center for Ethics and Leadership at Saint Edward’s, these colloquiums critically engaged the foundational challenges to securing natural law moral precepts and principles as well as to grounding legitimate authority for the purpose of incorporating such moral content in institutional and public policy. The authors of the papers continued to dialogue long after the colloquiums and made alterations and additions to the original papers. Their work resulted in the papers that compose this volume and addresses several issues: epistemological questions regarding the accessibility of principles of practical reasoning, discursive rational analysis and the challenges of post-modern moral pluralism, metaphysical concerns regarding human nature and the character of a flourishing human life, the ethical underpinnings of just social policy and the limits of moral political authority. Such issues have been central to Western moral philosophical analysis since the time of the Ancient philosophers. They continue to be vital to the exploration of the humanities, sciences and professions in the Catholic intellectual tradition at Saint Edward’s University. As the University’s mission statement affirms, we take seriously the obligation to produce graduates who are “prepared, through training in critical and creative thinking as well as moral reasoning, to analyze problems, propose solutions, and make responsible decisions.” Throughout their education our students “… develop an understanding of the human person which is derived from reason and open to faith.” They are encouraged to confront the critical issues of society, to clarify their personal values, and to recognize their responsibility to the world community. Educating oneself and providing service to others, after all, must be life-long commitments. The papers gathered here will help clarify the issues at stake in personal moral choice and the development of just public policy. They will also encourage further dialogue and, in keeping with the Saint Edward’s University’s mission, help to communicate the dignity of the human person and the obligation of all people to pursue a more just world, beyond the confines of the academy to the national and international community. It is a great pleasure to present this discussion as a part of the Philosophical Studies and Contemporary Culture book series. President, Saint Edward’s University Austin, Texas

MARK J. CHERRY

NATURAL LAW AND THE POSSIBILITY OF A GLOBAL ETHICS An Introduction to a Culture in Crisis

1. THE NATURAL LAW TRADITION AND A CULTURE IN CRISIS The recent history of moral philosophy and theology discloses a profound shift in moral commitments within the dominant intellectual culture. These changes have been especially prominent in medicine. Where once abortion had been forbidden, it is now widely practiced. Where once physician-assisted suicide and euthanasia were rare, they are now emerging as accepted practices in Belgium, the Netherlands, Oregon, and Switzerland. In the terminology of John Paul II, a culture of life has been replaced by a culture of death. Two recent encyclical letters of the Pope of Rome signal recognition of these significant changes. In Veritatis Splendor the Roman Pontiff characterizes the anti-traditional character of much of contemporary moral reflection as marked by “...an overall and systematic calling into question of traditional moral doctrine, on the basis of certain anthropological and ethical presuppositions” (1993, 8). In Evangelium Vitae, John Paul II places this difficulty within a major cultural crisis and a shift in the presuppositions of moral theory. “In the background there is the profound crisis of culture, which generates skepticism in relation to the very foundations of knowledge and ethics, and which makes it increasingly difficult to grasp clearly the meaning of what man is, the meaning of his rights and his duties” (1995, 21). The result is, as the Roman Pontiff recognizes, a transformation and fragmentation of culture, a fragmentation that sets the stage for the emergence of fundamental moral differences that divide morality into not merely different, but mutually antagonistic accounts of proper moral conduct. How can one reform a culture so that it supports the cardinal elements of human flourishing? Answers to this fundamental and pressing question depend on one’s background anthropology; in particular, on the relationship among human goods and the demands of the cardinal elements of human flourishing. Whereas social policy must be created to span a diverse set of individuals, cultures, and communities, such policy is never neutral. It inevitably promotes the social and moral acceptance of certain practices, endorsing particular moral values and metaphysical understandings over others. Political struggles thus regard both the form and content of what will become the prevailing moral and cultural ethos. As this volume makes clear, morality, moral epistemology, and social political reform must be set within the xi Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, xi—xviii. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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broader context of an appropriately philosophically and theologically anchored anthropology. Here conflicts among often taken-for-granted background anthropologies can be appreciated as especially salient. As the authors in this volume explore, the ways in which foundational concerns regarding understandings of the meaning and significance of birth, reproduction, and death, expressed in debates regarding the character of human dignity, the sacredness of human life, the centrality of the family, and the nature of the good life, in turn frame the justifications of particular practices. For example, in contrast to traditional Christian morality, much of contemporary western biomedical ethics affirms (1) a vision of “responsible” procreation involving embryo experimentation, third-party assisted reproduction, and elective abortion; (2) the dignity of physician-assisted suicide and euthanasia; as well as (3) sexual experimentation for the pursuit of individual gratification. Aspiring to become a full fledged cultural ethos, this ethic lays claim to a universal account of proper moral deportment, including the foundations of law and public policy, fully divorced from traditional religious or cultural commitments Those who see these transformations of morality and biomedical ethics as wrongly directed and in need of remedy thus face three principal challenges. The first is to define the proper moral understanding and ordering of human goods; the second is to determine how that proper understanding and ordering is known; and finally, to assess how one reshapes a culture gone wrong. As traditionally construed, accounts of natural law moral philosophy and theology sought to address such challenges through the provision of a universal morality, whose prescriptive force was understood as a function of the rationality which all persons share in virtue of their common humanity. Natural law moral philosophy thus sought principles and precepts for morality, law, and other forms of social authority, whose prescriptive force was not dependent for validity on human decision, social influence, past tradition, or cultural convention, but through natural reason itself. As Thomas Aquinas notes, the natural law is a function of reason, “... promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally” (ST I-II, Q90, A4). Developed as an intellectual and moral enterprise within Western Christianity, natural law theory is rooted in the ethical and political writings of Aquinas, although it is indebted as well to ancient Greek philosophy, especially Aristotle, and Western Christian morality as expressed in Scripture and tradition. It provides an account of the appropriate functioning of moral reasoning, in terms of sound moral norms and permissible individual choices, as well as of its consequences for social and political moral judgments. If established, such norms would then form the foundations of justifiable national and international policy seeking to produce and preserve human happiness, social justice, and the common good. It is this cluster of moral, epistemological, anthropological, and social political claims to which this volume is addressed.

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2. CONFRONTING MORAL PLURALISM: ASSESSING UNIVERSAL APPLICABILITY When Western Christianity explicitly articulated its notions of proper moral deportment, it had already articulated its own beliefs and culture. Especially among Western Christianity of the high middle-ages, as exemplified by Thomas Aquinas, these moral understandings were incorporated into Christian theological doctrine. Such doctrine defended the ability of persons generally to understand the natural law: that there is an objective good for human beings (ST, I-II, Q94, A2), which reason can articulate, thus justifying the general canons of moral behavior. Despite significant secularization following the Reformation, Western Christian reflection continued to have considerable influence. There remained in the West the attempt to fashion rational justification for the general lineaments of Christian culture and moral intuitions as well as for its fundamental social structures. Given the character of contemporary pluralistic societies, the moral theological views of Western Christianity appear as but one perspective among many. A central area of inquiry for natural law theory, then, must be whether its universal moral vision can be sustained. Aquinas’ arguments regarding the natural law, human good, and moral political authority, reflect a commitment to the coincidence between faith and natural theology. He provides arguments which he takes to be binding on all persons as such. His moral reflections, together with those of later Thomists, are typically posited in terms of general discursive rationality; their conclusions are argued to be justifiable through reason itself. The natural law is thus held to be both universally accessible and universally applicable. As Joseph Boyle states, at its core, the natural law as a “...thesis about morality, law and other forms of social authority is that some action-guiding thoughts and statements, that is, some precepts or practical principles, are natural in the sense that they are not dependent for their validity on human decision, authority or convention. Because of the independence of these factors, natural precepts and principles must be generally accessible to human reason” (2004, 2). Moreover, “...the universality of its principles and some of its norms, that is, the universality of moral statements are addressed to anyone at all facing a choice upon which the principles and norms bear” (2004, 2). In fine, its principles of action are held to be normative and directive to anyone who understands the principles. Boyle argues that thinkers as different as the 16th century scholastics and Henry Sidgwick believed that there was a body of widely held moral conviction with practical moral significance. They referred to this as the jus gentium, the law of the peoples, which they understood as reflective of the natural law. It held, they thought, widely around the world and across time. Sidgwick, he notes, argued for a common sense morality as a set of widely accepted moral convictions with practical implications, even though there was “...no plausible theoretical way to organize and justify common sense morality on its own terms” (11). In so far as such a body of moral doctrine exists, Boyle concludes, this helps to justify the natural law claim regarding peoples’ common moral awareness, even though they may not share

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theoretical or communal presuppositions. Extending this analysis, Christopher Tollefsen, develops and defends the moral epistemology of natural law theory. At stake is both the normativity and knowability of our underlying human nature. Distinguishing between theoretical and practical reason, Tollefsen argues that fundamental human goods, such as “... life and health, knowledge and aesthetic experience, work and play, friendship and social harmony, personal integrity in its various aspects, and harmony with whatever source of transcendent meaning there may or may not be,” are not inferred from theoretical reason as good, but rather, are apprehended by practical reason (2004, 40). This latter contrast may be understood by reflecting on two different sorts of questions. The first, questions about how the world is, are theoretical. One wants to know the answer to a question, and the rightness of one’s answer will be determined by how things actually are. By contrast, in a second form of question, one wants to know what to do, how to act. To the extent that reason provides an answer to these questions, it cannot be based on what is in fact the case, for what reason prescribes is not yet the case. Reason offers us possibilities for us to make true, make the case, by acting (40).

Natural law practical reasoning details a theory of basic human goods. Such goods are held to be objectively true and action guiding. “What we see here, I think, is that practical truth’s constraints come from the objectivity of reason. This objectivity is on display both in the recognition of goods as impersonally fulfilling of all human agents, and in the idealized systematization that reason introduces into its thought about how reasonably to pursue the goods” (53). Morality demands that one pursue the basic human goods. Illicit actions are those which are incompatible with the realizations of such goods. Reason, he argues, reminds us not to be blinded by selfishness, partiality or emotions when determining our course of action. Thus, pursuit of the basic goods must be accomplished in inclusive rather than exclusive ways. An central challenge to natural law, as Cherry argues, is that it appears to assume a very particular, rather than universal, account of moral rationality. To establish a particular moral choice as preferable requires determining preferable to whom and with respect to what set of criteria. Even to separate information from noise one must specify standards of evidence and inference. Articulating a moral answer requires an actual determination of facts as well as specification of the moral criteria and standards of rational choice employed. Therefore, securing a particular ethic or a particular account of basic human goods, requires specification of premises and content, standards of moral evidence and inference, and so forth, which will not be acknowledged as intersubjectively morally authoritative among those who do not already share a common moral understanding. Consequently, a foundational challenge to natural law theory, which Boyle and Tollefsen seek to resolve, is that there apparently exists a plurality of standards for rationally debating the merits of different formulations of moral rationality. Fabrice Jotterand argues, for example, that adequate moral reasoning depends on the structure of one’s moral self or on the framework that constitutes the values of the agent. Despite superficial similarities, such structures may differ quite significantly among divergent religions and secular accounts of morality. Similarly, Cherry raises the concern that appeal to “basic human goods” will not resolve the

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difficulty, because there is no in principle means of comparing the various merits and deficiencies of different formulations of basic human goods, without having already presupposed a particular background moral understanding and account of human nature. Thus, where natural law theory offers the hope of a communality binding all persons and the resolution of moral controversies through universal moral norms, unless such norms can be fully grounded in an objective and morally normative human nature, its ordering of human goods and the cardinal element of human flourishing will, at best, represent one among many possible accounts, or, at worst, beg the question. 3. MORAL ANTHROPOLOGY: ENGAGING THE LIMITS OF HUMAN NATURE How should one understand man’s relationship to nature, especially to human nature? Is it morally permissible for human beings to use their rational capacities to overcome and master natural limitations? Or, does nature itself delineate morally normative limits to human action and investigation? The next brace of essays assesses and explores the ability of natural law theory to specify and sustain a particular and universally normative account of nature. For example, according to Nicholas Capaldi, modern man no longer sees nature as an organic process to which individuals should conform, but as a object to be controlled and changed for human benefit. While he affirms the existence of a natural law, in the sense that “...the political and legal realms are always subordinate to the moral realm; ... the moral realm is defined by universal truths about human nature; [and] ... the moral realm is itself grounded in a divine conception of the cosmic order” (2004, 75), the universal normative truths of human nature, he argues, must be understood within the context of what he terms the “technological project”. Capaldi defines the technological project as “...the view expressed by Rene Descartes in the Discourse on Method, when he proclaimed that what we seek is to make ourselves the ‘masters of nature’”(71). Nature, including human nature, should not necessarily be perceived as setting a limiting condition for moral action. While this presents a much thinner account of the natural law, Capaldi argues that traditional defenders of the natural law did not appreciate the divine presence in the technological project of overcoming the limitations of nature for human benefit. The natural law sustains a global ethics, he argues; however, it is a starkly limited account of morality. Its most fundamental value is personal autonomy, as nourished and protected by a free-market economy and limited democratic government. For the natural law to provide moral and political guidance, however, as Daniel McInerny notes, its precepts and norms must be sufficiently content-full to direct choice. As already noted, though, divergent cultural norms, accounts of human flourishing, and taken-for-granted moral practices, challenge the rational availability of sufficiently thick precepts to offer adequate guidance. Unless the first order precepts of natural law are fully rationally nongainsayable, such that one could be held to be irrational to fail to follow the precepts, they will not provide sufficient reason to overcome such cross-cultural conflict. Here, McInerny turns to an analysis

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of the ways in which Aristotle and Aquinas resolved such conflicts. Aquinas, for example, argues that whatever else human fulfillment may consist in, certain common notions and conditions of happiness are obvious to nearly everyone. In this vein, William Zanardi urges that the search for the cardinal elements of human fulfillment, and thus for morally permissible action, ought not to be perceived as fully complete. “Our practices develop and also regress over long periods of time, sometimes in accord with our best available understanding and sometimes in rebellion against or forgetfulness of it” (2004, 111). This historical learning process is long and, he notes, often painful. Zanardi direct our attention to the operational principles of moral reasoning, where the very challenges of working through the various cases at hand will, he argues, over time lead to fewer incommensurable rival claims. Even when nature appears to set real limits on action, humans do not follow nature blindly; we seek to discover, articulate, explore, and perhaps overcome, the principles of chemistry and physics, for example. Similarly, moral laws and the search for human happiness, should not be appreciated as a blind operation. Human reason, he argues, leads to the discovery and development of moral understandings in individuals and cultures. As Ana Iltis recognizes, however, the central challenge remains. Divergent background philosophical and theologically grounded anthropologies, may lead to the historical development of quite different moral understandings, of the morally appropriate resolution of particular cases, and of the very nature and scope of human flourishing. Similarly, Iltis notes, in her assessment of the requirements for the study of nature law moral theory that even if we grant the assumption that human beings share one universal and normative nature, whose ends are knowable and morally good, there are at least four philosophical and theological natures that might play such a normative role: “(1) human nature before the fall; (2) human nature after the fall; (3) redeemed human nature; and (4) restored human nature” (2004, 115). Which human nature should guide the pursuit of morality, appreciation of basic human goods, and human fulfillment? Perhaps the historical result of the natural law inquiry which McInerny and Zanardi propose, may be, as Capaldi concludes, thin indeed. 4. BEYOND RATIONALISTIC PHILOSOPHY: ASSESSING UNIVERSAL ACCESIBILITY Critically assessing the limits of rational philosophical analysis, B. Andrew Lustig, Robert Kruschwitz, Thomas J. Bole and Richard Bautch, each develops a more theologically grounded understanding of human nature and of one’s duties and obligations. A central aspect of this theoretical debate is that natural law moral theology and philosophy, places its Christian moral commitments within the same intellectual and social context as rationalistic philosophy. Its understanding of human anthropology and moral truths is held to be knowable without final reference to or belief in God. As Lustig notes, however, the challenge is not to throw out one’s content-full Christian commitments in the name of seeking common ground or forging a political consensus. Consider, for example, Roman Catholicism’s

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traditional moral objection to artificial birth control. Lustig argues: “Yet if one abstracts from specific Church interpretations and notions of normal marital sexual expression or ‘fittingness,’ it is unclear that traditional proscriptions of artificial contraception can be drawn as obvious conclusions by an exclusive focus on the process of practical reasoning itself” (2004, 113). Framing moral issues in common rational terms requires evacuating arguments of any content not justifiable in general secular terms. One’s claims must either be evacuated of all particular religious content, or be affirmed as merely one possible perspective among many. General secular reason, therefore, inevitably adopts a fully secular language. It thereby fails adequately to capture the central concerns of traditional Christians. This marginalizes Catholic voices, he argues, in debates regarding such diverse concerns as abortion, stem cell research, and social justice. Can natural law theory adequately span the gap among moral traditions? Another aspect of this challenge is that some moral traditions explicitly affirm that moral deliberation, the pursuit of phronesis, must be communal and tradition embedded. Kruschwitz argues, for example, that the Free Church moral perspective [of his own roots] endorses the natural law viewpoint that practical reasoning is grounded in a pre-rational capacity to distinguish good from evil, and that persons are naturally disposed to choose the good. Such a disposition, he urges, is part of God’s creation. The salient point, as Richard Bautch notes, is that according to Kruschwitz, the proper lens for interpreting human experience not the natural law, but rather the Free Church’s traditional understandings garnered through its narrative reading of Scripture. This is an hermeneutic, however, which is not fully open to general secular reason, precisely because it depends on a particular understanding of Christian tradition, account of history, selection and interpretation of sacred scripture, and standards of moral evidence and inference. Such circumstances suggests a core theological criticism of natural law theory; namely, as Bole argues, that it diverts attention from the sort of religious faith that opens up one’s heart to God’s grace. That is, it presumes an anthropology centered around the human ability to reason. Thus the dilemma: as Boyle argues, natural law theory’s moral epistemology cannot affirm the idea that moral deliberations must be rooted in the ethical experiences of persons who share a common religion, moral culture, or way of life. Moral thinking, cannot be limited to ethical discussions within moral traditions. Yet, as Bole explores, in affirming the role of reason in moral epistemology, independent of religious revelation or worship, natural law may thereby deprive itself of the very content it wishes to establish. 5. THE NATURAL LAW AND A GLOBAL ETHICS Together, the essays in this volume raise the following dilemma for natural law moral theory: How can one affirm a particular morality, specific norms and precepts, without thereby losing universal accessibility and applicability? To affirm particular choices as morally permissible requires specifying a moral content and account of full human flourishing, together with a particular understanding of moral epistemology; however, as the essays by Cherry, Iltis, Jotterand, and Bole argue,

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moral content appears to be purchased at the price of universality. Facing this dilemma, Phillip Thompson and Kevin Lee seek a more circumscribed project, grounding a specifically Christian morality in the particularities of an Augustinian moral anthropology. Unification through a grand global content-full ethics is dubious, they conclude, precisely because a universal ethics must free itself from any anthropological presuppositions (2004). But, as others in this volume argue, freeing moral theory from such presuppositions may not be possible. Thompson and Lee thereby implicitly return the volume to its fundamental concern; namely, assessing the possibility for securing a global ethics through the natural law. With roots in Plato, Aristotle, Augustine of Hippo, Anselm of Canterbury, Aquinas, and the Catholic intellectual tradition, the philosophical project of natural law is deeply embedded in Western philosophical and theological reflections. As the essays in this volume illustrate, attention to this significant literature discloses the rich counter-balancing interests, epistemological, metaphysical, and social political considerations, which when gauged against one another permit better appreciation of the complexities facing natural law theory and the search for a global ethics that would provide the foundation for social and political policy. Department of Philosophy Saint Edward’s University Austin, Texas BIBLIOGRAPHY Bautch, R. (2004). “Natural law and the free church tradition.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Bole, T. (2004). “The perversity of Thomistic natural law theory.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Boyle, J. (2004). “Natural law and global Ethics.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Capaldi, N. (2004). “Global ethics and natural law.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Cherry, M. (2004). “Natural law and moral pluralism: epistemological and metaphysical challenges.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Iltis, A. (2004). “An assessment of the requirements of the study of natural law.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. John Paul II. (1993). Veritatis Splendor. Vatican City: Libreria Editrice Vaticana. John Paul II. (1995). Evangelim Vitae. Vatican City: Libreria Editrice Vaticana. Jotterand, F. (2004). “Natural law and the possibility of a common moral discourse.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Kruschwitz, R. B. (2004). “Natural law and the free church tradition.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Lustig, B.A. (2004). “Natural law and global ethics.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. McInerny, D. (2004). “Natural law and conflict.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Thompson, P. and Lee, K. (2004). “Insights and hindsights from seeking a global ethic.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

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Tollefsen, C. (2004). “Natural law and modern meta-ethics: A guided tour.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Zanardi, W. (2004). “Natural law and historical mindedness.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

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SECTION I

CONFRONTING MORAL PLURALISM: ASSESSING UNIVERSAL APPLICABILITY

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CHAPTER 1

JOSEPH BOYLE

NATURAL LAW AND GLOBAL ETHICS

1. INTRODUCTION The purpose of this paper is to address the challenges raised by global ethics from the perspective of natural law. Global ethics is a complex and ill-defined set of ideological and philosophical claims about the de facto and ideal norms which guide the interactions of people and communities around the world. The focus on global ethics points to prospects for morally based agreement, based upon the common interests and concerns humans share as the inhabitants of the world. But because of the complex relationships between a community’s morality and its distinctive way of life, the given reality of global ethics includes diversity and disagreement along with whatever prospects for global moral agreement may exist. I will address both of these aspects of global ethics from a natural law perspective. The consensus to which global ethics aspires is of the kind natural law theories, by their emphasis on the commonalities of human nature and on universally understandable and applicable precepts, seek to underwrite and explain. Similarly, the diversity and disagreement which seeking to understand ethics from a global perspective brings to the fore requires amplifying the natural law accounts of moral consensus and diversity. To begin I will provide a very brief account of what I understand by global ethics and by natural law. As I understand it, global ethics is not simply the sum of the ethical practices and beliefs of all the peoples and communities inhabiting the earth. Global ethics aspires to a kind of unity lacking in a complete listing of the forms of moral life now existing around the world. That unity arises from globalization – the fact that human beings around the world now communicate and interact economically and politically in ways impossible until fairly recently, even for those within the same community or region. The effect of this new level of international interaction is that institutions and systems of institutions can make decisions affecting many, if not all, of the morally differentiated groupings of people around the world. Common moral 1 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 1—15. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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standards to guide such decisions appear desirable. Similarly, the prospect of common global standards, for services like health care and sanitation, for the treatment of the poor, for respect for women’s and minority rights and so on, appears now to have become a real possibility. Consequently, political and other decision makers have reason to conceptualize human problems and their solutions on a global level. These new possibilities have caused global ethics to become a serious topic for moral reflection. The possibility of actions by agents having authority and reach across the planet, undertaken for everybody’s benefit, surely demands moral attention. Even more so does the possibility of actions undertaken on behalf of the entire human race, understood as acting together as a community for a unified common good. I turn now to the notion of natural law: its core idea, as a thesis about morality, law and other forms of social authority is that some action-guiding thoughts and statements, that is, some precepts or practical principles, are natural in the sense that they are not dependent for their validity on human decision, authority or convention. Because of the independence of these factors, natural precepts and principles must be generally accessible to human reason; the critical reflection that is not dependent upon but potentially critical of any particular social enactment or practice is the work of common human reason. I will take this immediate implication concerning the accessibility of moral truth to human beings generally to be part of the core idea of natural law. This universal accessibility of moral knowledge is in turn closely connected to another characteristic of natural law, namely, the universality of its principles and some of its norms, that is, the universality of moral statements addressed to anyone at all facing a choice upon which the principles and norms bear. For example, the natural law principle requiring acting in accord with reason is addressed to everyone making choices, and the natural law norm prohibiting intentionally killing innocent persons is addressed to all who might consider intentionally killing the innocent, and so on. In short, since all humans are capable of knowing moral principle in virtue of their common capacity to reason, the moral principle they thus know will be a product of reason and, consequently, directive of the actions of anyone who understands the principle. 2. THE CHALLENGE OF GLOBAL ETHICS TO NATURAL LAW The universal accessibility of moral principle and the universal application of moral principles and precepts may seem to render natural law – in virtue of these elements of its core concepts – a most unpromising candidate for throwing light on the ethical diversity that characterizes global ethics. For any natural law conception implies that people commonly do know – or should know, or readily can know – moral principles capable of overcoming this diversity and leading to universally applicable moral understandings and judgments. And that, of course, appears to be at odds with both the facts of moral existence as seen through the prism of the moral pluralism of modern global ethics and the widely accepted social norms which give to that pluralism a kind of normative status.

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It might appear that if natural law provided the correct view of morality, then the ethical diversity and disagreement which now characterize the ethical condition of the world would not exist and, therefore, that the very state of global ethics refutes a core thesis in the natural law conception of morality. It is necessary at the start, therefore, to explore the ways natural law understands and accounts for the phenomenon of the ethical pluralism characteristic of our world. Natural law theorists from ancient times to now have recognized and plausibly explained a number of the facts about moral diversity. First, they accept as factual many differences in moral outlook between societies separated by time and/or geography and explain them within the basic categories of natural law. For many differences in custom and law among different societies are compatible with a common recognition of moral principle. The different circumstances of societies in different geographical or historical conditions can lead to different social choices, which are completely reasonable in the circumstances, although they implement moral principle in very different and even apparently contrary ways. For example, the property regulations in a simple society of huntergatherers are reasonably quite different from those of an agricultural, and those from comparable regulations in highly industrialized and post industrialized societies.1 In short, it is no part of natural law conviction that all reasonable and morally binding customs, laws and practices are “natural.” Human creativity reasonably applies moral principle by way of appropriate choices that give determination and shape to moral principle. Second, differences in moral judgment in difficult cases calling for careful casuistry to assess a host of conflicting moral considerations are also not taken by natural law theorists to be problematic, but to be expected given the complexity of these cases.2 Natural law theorists do not underestimate the difficulty of competent moral reasoning; they are not scandalized by disagreements about complex cases, but fully expect perplexity and disagreement. Third, natural law is not embarrassed by the diversity of humanly good ways of life, but indeed provides a theoretical framework that allows their full recognition. The diverse excellences which comprise a good human life are such that the complete set of them cannot fully exist in a single life; for example, the particular excellences of the life of a religious celibate and of that of a father or a mother are both components in the aggregate of human perfection, yet they cannot exist in a single life. Many other forms of human fulfillment are similarly exclusionary of others in practice, if perhaps not so starkly as a matter of simple logic. The virtues of the judge are not logically or otherwise necessarily opposed to those of the general, but often enough a person must choose to cultivate one or the other. The natural law grounding for the recognition of the legitimate plurality of human excellences and of the practical incompatibility in a single life of some of these excellences has not always been as clear in its theory as in practical recognition. But there certainly is a stream of natural law theory that emphasizes precisely the incomparable goodness of the elements in a full human life. These standard natural law responses to aspects of the phenomenon of ethical pluralism are certainly important parts of its attempts to recognize its reality and explain its possibility. But the contemporary moral pluralism of global ethics seems

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to include stronger claims than those the tradition can so easily accommodate. So, a closer look at the challenge and response is needed. First, moral diversity and conflict do not exist only in far-distant societies. For the pluralism under discussion nowadays surely exists within the same societies and polities, and within the world as an interacting community of cooperating people. Differences among individuals and groups, some holding and some rejecting the first order moral views of traditional natural law are not only cross cultural, but also occur within virtually every modern city, state, province or nation and often within the same multi-national corporations, families, professions, ethnic groups and religions. Second, differences in moral judgment characteristic of the pluralism of ethics globally understood are not differences simply about hard cases but apparently also about general norms, basic principles and moral perspectives. For example, however much public debate about abortion may focus on the hard case of abortion to deal with rape or incest, or on the hard case of partial birth abortion, the underlying judgments of people in disagreement about the hard cases usually reflect a substantial disagreement of moral principle. Third, at least some of what are now thought of as incompatible but equally or incommensurably good ways of living do not easily fit into a common moral framework, as diverse property regimes can be, or as the plural excellences of diverse, but not morally opposed ways of life can be. For example, there is moral opposition, not simply difference, between the political views of those who oppose and those who support legal and social permission for physician assisted-suicide. Similarly, the defenders of marriage as traditionally understood in the western societies influenced by the Bible and St. Augustine can hardly accommodate samesex marriage as socially and morally acceptable. In short, the challenge to natural law from modern ethical pluralism is more radical than that posed by the forms of moral diversity and disagreement that have been recognized widely and for many centuries. My response is that defenders of natural law need not accept at face value the common formulation of ethical pluralism as involving moral disagreement at the most basic level. Of course, there are some facts here and natural law acknowledges them. It is a fact that people who interact within the institutions made possible by modern polities differ and disagree about moral matters in ways such people likely have not done before. Whatever the difficulties of historical comparisons, this diversity and disagreement appears to be more pervasive and deeper than in other ages and in other social arrangements. For now, at least within polities and within the wider societies of the economically developed world – that is, within the network that defines the globe as an economically and increasingly politically unified whole – diverse groups of people interact, mostly peacefully, and cooperate with others with whom they have profound moral and cultural disagreements. However, it is not an incontrovertible fact that this diversity and disagreement goes all the way to the foundations of people’s moral perspectives. The peaceful and cooperative interactions of diverse peoples surely suggests some common moral understandings and some agreements about common concerns. I will return to this theme in sections 3 and 4 below, but will address one specifically philosophical

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issue here. Some philosophers’ formulations of basic moral principles plainly contradict those of other philosophers. However, the merits of these different formulations can be, and often are, rationally debated. One purpose of that debate is to determine whether philosophers have introduced false assumptions into otherwise agreeable formulations of moral principle (Boyle, 1992, 23-25; Boyle, 1984, 391-408). Consequently, the existence of such philosophical disagreements does not in itself refute natural law claims about universal awareness and applicability of common moral principles. For those claims are not about the adequacy of the various articulations of common basic moral awareness but about its reality. And the very fact that such disagreements lead to further discussion suggests that philosophers think they can reach common understandings. 3. A NATURAL LAW CRITIQUE OF “LOCAL” ETHICS ONLY The universalist claims of natural law and other universalist normative theories have been under sustained philosophical assault for much of the last thirty years. The nonuniversalist alternatives, however, are not without their own difficulties. I will not undertake to survey all such theories, but will consider three that are influential and representative: one that is anti-rationalist and contractarian in spirit, and two that are more rationalist and Aristotelian or perhaps Hegelian in spirit. H. Tristram Engelhardt, Jr. accepts the authority of local moral traditions over the members of communities defined by acceptance of the ways of life that include such traditions. But he argues that outside of such communities, among members of different communities and among those lacking membership in a moral community, there is no moral authority, no canonical moral standard that can command common assent (Engelhardt, 1991, 105-110). His solution to the moral impasse created by this state of affairs appears to be that people should look to the authorities their communities recognize for guidance in their personal lives and interactions with those who share their values, but should deal with moral strangers only in accord with what is agreed upon by rational negotiation. Engelhardt denies that the mutual respect underlying the recommendation that people negotiate peaceably is a value presented by reason. Rather it is recommended and chosen as a way of avoiding moral nihilism: such agreements can ground a common moral world for the interactions of moral strangers without anyone endorsing what from the perspective of that common world is an arbitrary ranking of values (Engelhardt, 1991, 119). The difficulty with Engelhardt’s version of contractarianism is that peoples’ agreements cannot by themselves achieve public authority. Of course, if two people agree on something, then, as long as they continue to agree, there is no need for authority: these two are so far of one mind. But if others are affected by the agreement or if the parties change their minds, then the agreement must have binding force. On Engelhardt’s account, however, there is no value with the prescriptive power to overturn the interests which move one or more of the parties or others to dispense with the agreement; and no preexistent norm saying, in effect, that

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one should keep one’s promises. Of course, if the local sources of moral authority of each of the agreeing parties tells each of them that promises should be kept, then the needed prescription is at hand. But this is not the case Engelhardt is considering; for here local moralities themselves can reach beyond their communities and begin to cover the public moral domain in which moral strangers interact. More importantly, if the local moral authorities which a person respects prescribe differently than the public authority, there is no basis for accepting the authority of the public authority. Avoiding nihilism may be widely valued, but it has no established weight in relation to the various values in differing peoples’ local authorities (Boyle, 1994, 189-192). In a word, both agreements meant to replace the breakdown of morality as such by constraints acceptable to all because of their service to self interest, as advocated by traditional Hobbesian contractarians, and deals meant to avoid the moral nihilism of interactions among those not sharing values by creating a moral world based on negotiation, as favored by Engelhardt, are incapable of explaining how certain, apparently universal norms, such as the requirement of promise keeping, are morally justified. More theoretically: what we pledge, choose, commit ourselves to, agree to, and so on are all essential elements in moral life, but these volitional states and acts cannot create moral obligation in the first instance. What one agrees to may settle what one actually does, by itself it has no tendency to settle what one ought to do. But plainly not all dissatisfaction with traditional moral universalism finds a contractarian expression. Alasdair MacIntyre’s historically based metaethics suggests what some of the relativistic arguments against universalism might be. Although the historical fit is not precise, MacIntyre holds that the moral universalism of the great moral philosophers is a project of the Enlightenment, an outlook which downplayed the importance of tradition in the making of moral thought. He argues that there is no conception of human reason or human nature transcending the particular understandings of philosophers like Kant or Hume on which might be founded a universalist ethics. Their failure is registered by the triumph of emotivism as the prevailing explanation of moral statements (MacIntyre, 1984, 1-78). For those thinking and living within the particular traditions of inquiry and particular ways of life which give meaning to moral conceptions, however formulated philosophically, the norms founded upon these traditions can be strongly prescriptive, but the universality claimed by philosophers is pretension (MacIntyre, 1988, 350-403).

The conclusion that moral judgments are inherently local, founded on local tradition or practice goes beyond the evidence presented in MacIntyre’s historical argument. His analytical account of practices and their relation to virtue and the human good could be understood as providing what is lacking in the historical argument. A practice is a complex human activity, for example, farming, scholarly inquiry or artistic endeavor. Practices involve complex relations with various people, and successful participation requires respect for the established, but not immutable, terms of the practice and exercise of various virtues like fortitude and justice. Successful participation in a practice promises goods that are internal to the practice, in particular,

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excellence in the practice. Success in practices can also be instrumental to getting external goods such as money and fame, but social life and personal well-being are significantly structured by practices and motivated by the goods internal to them (MacIntyre, 1984, 181-203).

This account shows how explicit moral considerations arise within complex forms of traditionally organized social life. Thus, a practice such as modern medicine will have goods internal to it, standards which must be respected and virtues cultivated if these goods are to be realized. In short, MacIntyre’s story about practices suggests an argument that no moral universal norms are needed to understand or participate in a practice. What does the work of such norms – of fairness for example, or courage – emerges within the practice as a requirement of pursuing its internal goods. MacIntryre’s argument shows a sense in which practices such as medicine, academic inquiry and so on are inherently moral undertakings, and not simply sets of techniques for realizing certain independently defined goals. But a human undertaking that is inherently moral, that cannot specify its aims and its procedures without reference to moral norms, is not so far forth tradition dependent in the strong sense MacIntyre’s story would require if taken as a refutation of ethical universalism. For the moral norms which structure a practice need not and do not appear to be simply local: the fortitude needed to be a good scholar may have a special feel, different from that of a soldier or of an artist, but the underlying, moral concern is the same and seems quite general: that danger and discouragement should not be allowed to prevent the arduous action often needed to achieve something really good. That many do not see this point in general terms or act on it except in striving to succeed within a practice does not compromise its general force. Similarly, the concerns for fairness and for respect of appropriate authority which are part of most practices appear to be formal in respect to any one of them: practices involve cooperation over time with various people; and their pay-offs include decent relationships with them. Fair-minded treatment of these people seems an aspect of the general point of practices. So MacIntryre’s account of practices does not exclude a universalist account of moral principle, unless it accepts a very strong conception of tradition dependence not required by the analysis. The advantage, of course, of a universalist account of the virtues which shape practices is that part at least of their human meaning can be communicated to those who do not share the traditions which constitute the practice. A practice structured by universal moral standards can be explained, defended and criticized, both from within and without. That dialogue seems essential to the integrity of practices like scholarly inquiry, medicine and law.3 For to the extent that the moral judgments of those involved in a practice cannot be communicated to others not involved in it in the same way, these judgments are bound to appear authoritarian and dogmatic. This is hardly a basis for the mutual cooperation between, for example, a physician and patient, which ideally characterizes a key human relationship embedded in the practice of medicine. This difficulty is acerbated in intuitionist versions of virtue ethics in which the virtuous person is capable of seeing clearly the moral terrain and its features which others lacking in the relevant virtue can perceive only

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indeterminately or not at all (McDowell, 1989, 87-92). It seems to me, therefore, that MacIntyre’s valuable discussion of practices and their relationships to human goods and virtues does not provide a sound refutation of moral universalism. Other accounts of social life and good may, of course, provide the anti-universalist argument which MacIntyre account does not contain. Joseph Raz’s conception of the human good as essentially, though not completely, determined by what he calls “social forms” seems to provide such an argument. Raz maintains that reasons for action are not simply desires since desires are themselves reason dependent (Raz, 1986, 140-143). Some reasons for action are closely connected to a person’s biological self interest, but successful action on such reasons hardly constitutes the human well-being in which people are interested once survival issues are settled (Raz, 1986, 294-300). The more significant goal of wellbeing is achieved only by a person’s succeeding in realizing comprehensive goals in his or her life. Such goals are not biologically but socially defined. Thus these goals presuppose social forms which are necessary to make the goals available to members of a group. A goal must be one a person can have, and the only way people can have non-biologically defined goals is for society to make them available. Raz provides two lines of reasoning to support this connection between goals and social forms. The first seeks to show that individual behavior would not have the significance it has except for social forms. And the second that individuals would not have been able to acquire and maintain goals except through continuous familiarity with social forms (Raz, 1986, 310). Raz develops the first line of reasoning by noting that some comprehensive goals presuppose social institutions. For example, one cannot practice medicine in a society which has no established medical practice or be a lawyer without legal institutions. Raz concludes: The point is that engaging in the same activities will play a different role, have a different significance in the life of the individual depending on social practices and attitudes to such activities. Much of the interest people have in goals of these kinds is available to them because of the existence of suitable social forms (Raz, 1986, 311).

His second line of argumentation is based on the fact that one cannot acquire a goal by explicit deliberation but only by habituation which develops by one’s becoming attuned to the requirements of the relevant social forms in a myriad ways too complex to be the subject of deliberation. Raz’s examples are from complex human relationships like those between married couples. There is more in learning to participate and to succeed in such relationships than can be rationally articulated, except perhaps in fiction (Raz, 1986, 311-312). Raz is surely correct in thinking that the reasons for action underlying the main pursuits in which people find life meaningful are intertwined with what he calls social forms. If morality is, as Raz supposes, essentially connected with reasons for action, then the case against universalist ethics is strong – as strong as the intertwining of reasons for action and social forms. But I do not think that the connection is as tight as Raz believes. I agree that people beginning to deliberate about the non-biological goals that will shape their lives will consider possibilities made available by existing social forms. But this allows that what is appealing about

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the goals thus made available is not the particularities of the goal but the promise of a benefit which can be described independently of the particulars the social form presents. The fact that social forms are not immutable but can be changed by deliberate decision suggests there is something more at stake than what the goal, specified by the social form, promises. Similarly, in a society in which there was, for example, no medical practice, a person could not choose precisely a medical career but could choose to use such knowledge of human physiology and so on as she possessed to help someone who was ill or injured. Surely, such a choice could become the basis for a comprehensive goal. And an articulate and fair minded person could seek informally to mediate conflicts among neighbors, thus creating the beginnings of a legal system. With respect to Raz’s second line of reasoning, I agree that successfully achieving comprehensive goals involves a set of sensitivities and achievements which significantly escape people’s explicit deliberation. But this seems to me a general aspect of achieving any goal, comprehensive or otherwise, that involves know-how or skill. So whenever a person chooses to pursue a goal whose realization involves skill, he or she recognizes that succeeding will involve more than can be rationalized beforehand. But that does not show that the reasons supporting the goal cannot be understood independently of the skills. In short, I have been seeking to show by considering some particularist positions that universalist ethics is not easily dismissed by the array of particularist and relativist perspectives that have been developed recently. The appeal of universalist ethics remains: it provides a basis for criticizing one’s own social forms, practices and conception of the good life; and it provides a ground for a non-imperialistic conversation with those whose social practices and commitments are different than one’s own. 4. NATURAL LAW AND REASONING ACROSS MORAL BOUNDARIES The possibility of overcoming moral diversity and especially disagreement by means other than manipulation, force or compromise is underwritten by natural law claims of the universal accessibility of moral principle. Aspirations to agreement about moral principle and norms are hardly rational if all possibility of rational moral agreement among people in moral conflict is excluded. And such aspirations are as much a part of human life as the disagreements that provoke them. Moreover, these aspirations seem sometimes to have been fulfilled. As noted above, people in ethically pluralistic societies do have enough in common to exist together in peace and to cooperate, sometimes in rather robust ways. Those common interests seem to include some norms for existing together in peace and some norms for fair cooperation. A non-instrumental conception of these norms as commonly agreed upon moral principles is surely possible. Natural law theorists will defend such a conception against a more Hobbesian conception of the grounds for social cooperation and tolerance. Still, as noted above, in section 2 of this paper, the natural law claim that all human beings capable of practical thought and choice have some awareness of moral

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principle does not appear to be verified in actual widespread agreements about moral principles, let alone more specific norms. This lack of consensus suggests that natural law may provide little more than comfort for peoples’ aspirations towards moral consensus, and certainly not normative guidance that somehow escapes the scepticism caused by modern ethical controversy. For it seems that natural law is simply one more ethical theory whose basic normative claims are as obscurely grounded and essentially controversial as those of other moral theories. This suggests that natural law, as an ethical theory, is one of the things in moral life that divides people (including members of communities acknowledging the status of natural law), and something that leading people to agreement. Rationally grounded moral agreement seems necessary if morality to be of practical service in dealing with the moral puzzles and controversies of the morally divided but interactive world in which we live. That is what natural law, or any other ethical theory, appears incapable of providing. There is a response to this challenge. It is essentially that there are some moral convictions that are widely accepted across communities and across other barriers to moral agreement. In other words, there are agreements that are not explicable within any local practice or moral allegiance, and better accounted for by natural law than by other universalist moral theories. These shared convictions are, to be sure, accepted by different people for various reasons, including purely local ones, and are commonly accepted without explicit reliance on moral theory. Among these moral convictions are some precepts addressed to anyone, for example, to respect the rights and liberties of other people. This universality cannot be dismissed as mere pretension, since such precepts have more than merely local standing, and this standing does not rely essentially on derivation from a controversial ethical theory. Thinkers as different as the 16th century scholastics and Henry Sidgwick thought there was such a body of moral conviction and that it had practical moral significance. The Spanish scholastics of the 16th century, in addition to their idea of natural law, thought that there was a body of customary moral opinion held widely around the world and across time and cultures. This they called the jus gentium, the law of the peoples, which they took to be distinct from the natural law but reflective of it (Midgley, 1976, 62-94). The widespread agreement needed for norms to be part of the jus gentium suggested that these norms reflect or at least track the moral truth, which is more properly revealed by reasoning from natural law principles. This way of viewing moral custom does not deal with the radical position that we might all turn out to be completely mistaken about what is right, but it does have the merit of focusing on a body of moral doctrine in which some of the factors ordinarily skewing moral judgement are filtered out. Factors such as passion, local partisanship, greed, and so on are effectively limited by the impersonality which the consensus reflects. So, the difference between strict natural law reasoning and the appeal to the jus gentium is that the derivation from the natural law is not necessary to recognize a norm as part of the jus gentium. That has disadvantages: norms recognized as of the jus gentium might not be strictly true but could require further refinement to be such. But it also has practical advantages: controversial derivation is not needed and such norms have a positive existence in a social world that is not completely local.

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Similarly, Sidgwick’s common sense morality is not an assemblage of individuals’ diverging moral intuitions but a set of widely accepted moral convictions, which he plainly regarded as playing an important role in moral analysis in spite of the fact that there is no plausible theoretical way to organize and justify common sense morality on its own terms (Sidgwick, 1966, 96-104, 3124 319). If there is such a body of moral doctrine, then the objection to the natural law claim about peoples’ common moral awareness is answered. For these common convictions, however differently different people would explain them, can be understood as reflecting a common moral foundation. And if this body of moral doctrine is not altogether static but capable of extension and refinement by moral analysis and debate, then the objection that natural law (or at least a set of universalist prescriptions which fits nicely within a natural law framework) is practically irrelevant is answered. For a body of agreed-upon moral doctrine capable of rational extension can be practical in ways that neither ethical theories nor local moral conviction can be to those not sharing their theoretical or communal presuppositions. Of course, this common moral doctrine will remain second-best, since its claims cannot be vindicated by a single compelling argument. Moreover, it lacks the resources to stand up to the strong prescriptions of a robust moral outlook when they conflict with the consensus. But its foundation in significant consensus should give those who reject it pause and those who accept it a starting point for further inquiry. A strong case for the existence of such an agreed upon body of moral doctrine has been made by Michael Walzer in Just and Unjust Wars. Walzer shows that at least with respect to questions surrounding the moral issues in warfare there exists what he calls “the moral world.” This world has a kind of social reality and objectivity since it is something a person confronts and has to deal with; it is not simply a part of oneself in the way the private dictates of conscience can be. Although some political realists seek to deny the existence of this world, Walzer argues that it is a part of the social fabric of human life which simply cannot be explained away. It is the presupposition not only of the agreements people sometimes reach, but of the rationalizations and hypocrisies which citizens, soldiers and statesmen use to justify their excesses (Walzer, 1977, XV, 12, 44). This moral world, of course, is no merely local universe of discourse. It is what belligerents of various historical periods agree as the norms that should structure their belligerency. It is an ingredient in the global ethics of our world. Walzer might agree with Sidgwick’s claims about the indeterminacy and lack of systematic unity within this world; but he argues that it has a logical structure which can be explored to practical effect. Walzer explains his project by way of a useful analogy. He notes that moralists are often concerned to explain the substructure of morality – the way its judgments rest on the foundations. But there is another more practical and less controversial way to explore morality. He says: Meanwhile, however, we are living in the superstructure. The building is large and its structure confusing. But here I can offer some guidance: a tour of the rooms so to speak, a discussion of architectural principles. This is a book of practical morality. The study of judgments and justifications in the real world moves us closer perhaps to the most

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Walzer’s tour of the rooms is meant to be practical. Its method is casuistical. The idea seems to be that there is a body of moral doctrine relevant to the conduct of hostilities about which there is considerable agreement. Casuistical inquiry which begins with the agreed upon moral judgments and seeks logically to expand that agreement to more controversial areas thus promises wider agreement based on reasoning. An example is his explanation of the rules of warfare by analogy to the norms which govern police work and judicial process within a polity. Such things as the justification of using force to stop, capture and punish criminals are noted and then the respects in which international society is similar and different from a polity are taken into account. This reasoning reveals reasonable norms for dealing with the crime of aggression (Walzer, 1977, 58-63). I believe that the limits of the kind of casuistry Walzer proposes are reached much more quickly than he seems to think. Indeed, many of the distinctive claims of his book are not the results of his casuistry of the common moral world but of his own apparently consequentialist analysis (Boyle, 1997, 83-98). But the limits of reasoning from what is widely agreed upon towards an expanding consensus do not imply that that kind of reasoning is not useful whenever it can be successfully carried out. Is there a common moral world shared by the various institutions, polities and other participants in the economic and communications network that now embraces the world? Are there norms which are widely accepted and can be the basis for further agreement? Is there, in other words, anything like a common sense morality or a jus gentium shared by those who participate in modern global interaction? I think the answer to this question is “yes,” although I am not at all sure about how far what is widely accepted can take us towards rational solutions to moral conflicts and differing standards around the world. One important reason for thinking that there are elements of a shared morality across the world is that the phenomenon of moral disagreement does not preclude but seems to presuppose some agreement about values and some common norms. People from different backgrounds or with differing philosophical allegiances come into conflict within the institutions of the global economy because they each have some reason to become involved in it: the values of increased wealth and economic opportunity are not intrinsic goods for most people, but they are widely valued and useful for most people. In other words, the moral disagreements which characterize international moral debate do not appear to be debates among people holding radically incommensurate moral schemes, but to represent conflicts among those who share enough, morally speaking, to think that analysis and argumentation would change some minds – usually the other persons’, but in principle anyone’s. Another reason is suggested by the circumctance that the kind of experience described by Jonsen and Toulmin as formative of their approach to casuistry is not

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unique. People coming from different backgrounds address moral questions such as those faced by the National Commission on Human Subjects in the 1970s. But instead of the conflict, disagreement and need for a vote or compromise, there is often an agreement on the relevant practical norms. Disagreement begins when people seek to explain and justify norms (Jonsen and Toulmin, 1988, 16-19). So, to stay with the bioethical context of Toulmin and Jonsen’s anecdote, it is surely sensible to seek those areas, such as the right to refuse treatment, where there appears to be widespread and significant agreement, and to see what careful reasoning from that basis will achieve in other, more controversial areas. It seems to me that at least part of the argument for loosening up the prohibitions against physician assisted-suicide and voluntary euthanasia proceeds in this way. I think the arguments do not succeed because they presuppose a conception of autonomy that may succeed as an interpretation of the accepted right, but is not itself part of any widespread consensus. But the idea that arguing this way is appropriate seems to me correct. Indeed, I suspect that the casuistry of truth-telling to patients would be considerably transformed by bringing fully to bear on it the significant consensus concerning the right to refuse treatment and the related duty to assure informed consent. Still, what are we to do when the consensus does not exist or cannot be extended by the compelling logic of careful casuistry? Surely, that point comes soon enough in a moral world characterized by radical moral disagreement. Here’s where compromise and negotiation are the best we can do. But, for those who take their particular moral perspectives seriously, these compromises and accommodations will often be limited by their moral allegiances. At the same time, human interaction is hardly ideal when it is comprised wholly of deals, compromises, toleration, and sometimes even by morally required intolerance. That suggests that the practical effort to come to a single mind about moral issues continues to be worthwhile. We should look for the unnoticed parts of the jus gentium and explore ways to expand it. If natural law theory is correct, we can find areas for greater rational agreement. In summary, I have been arguing that the modern recognition of moral pluralism, which comes to the fore when we seek to understand moral life in a global context, does not provide evidence that contradicts those widely recognized aspects of moral life and practice that are non-local and not plausibly understood as arising from the particular choices, history and values of some communities. These aspects of moral life are as much an element in the phenomenon of global ethics as are more local elements of moral practice and belief. These certainly seem to point towards some common acceptance of moral principle. And natural law has a plausible account of this aspect of moral life. Of course, natural law is not the only form of ethical universalism. Hobbesian social philosophy has universalist elements as do the various forms of consequentialism. But differences among universalist approaches to morality do not obscure their common rejection of morality as purely local and community-based. Moreover, the casuistry of the common moral world developed out of a natural law theoretical framework and fits this moral outlook much more comfortably than it fits within consequentialism or Hobbesian contractarianism. Finally, I have focused in this paper on the metaethical issues raised by the reality

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of global ethics. I have said virtually nothing about the specific norms natural law thinking would generate to guide the actions of individuals and authorities as they interact with people beyond the boundaries of their particular, local moral communities. Natural law has had much to say about this subject, perhaps most famously in the just war theory it grounds. Natural law’s theory of toleration, its defense of religious liberty and other human rights, its modern insistence on the moral reality of welfare rights based on entitlements grounded in human dignity, all these themes suggest that natural law does have a normative contribution to make to the effort to think globally about ethics. Here, I hope to have made a start, by taking the measure of the challenges global ethics creates. And that start is to recognize not only the challenge of moral diversity to universalist ethical theory, but also the challenge of global cooperation to purely local views of moral life. Department of Philosophy St. Michael’s College Toronto, Ontario Canada NOTES 1

2

3

4

The classic text of Aquinas’s dealing with the natural law account of moral diversity and disagreement is Summa Theologiae, 1-2 (first part of the second part), q. (question) 94, a. (article) 4. The question Aquinas addresses here is whether the natural law is the same for all. It is formulated against the background of his claims that fundamental principles are self-evident to all. He addresses two questions: whether the moral truth is variable and whether people’s moral awareness is variable. To both questions he gives a qualifiedly affirmative response, but one consistent with universal awareness of moral principle. Aquinas’s position on variations in moral awareness attributes it to “bad custom.” Aquinas’s position on property is that it is not a matter of natural law but human decision; see 2-2 (second part of the second part), q. 66, a. 2. I take this to mean not that there are no natural moral principles underlying property, but that the details of property arrangements include reasonable discretion for social choice. See Aquinas, Summa Theologiae 1-2, q. 100, a. 2: “Certain judgments are such as to require a great consideration of diverse circumstances, the consideration of which is not for everybody but only for the wise; just as the consideration of the detailed conclusions of science does not belong to everybody but only to scientists (philosophos). Alan Donagan’s refutation of Hegel’s objection that universally formulated moral norms are abstract and need embodiment in the life of a community to have any serious action guiding force is relevant here. He argues from the example of the conscientious objector, Fanz Jaggerstatter, who was killed by the Nazis for refusing conscription into the Wehrmacht, that it was Jaggerstatter’s grasp of the abstract principles of the just war “on the books” and not their assimilation into Austrian culture, which rendered them a dead letter by emphasizing the limits of soldiers’ and citizens’ knowledge of the justice of a war, that was concrete in the relevant way. See The Theory of Morality (1977, 13-17). Henry Sidgwick, The Methods of Ethics, seventh edition, (1966, 96-104); for his use of common sense morality see, for example, his discussion of truth telling, 312-319.

BIBLIOGRAPHY Boyle, J. (1984). ‘Aquinas, Kant, and Donagan on moral principles,’ The New Scholasticis 58 (4), 391408. Boyle, J. (1992). “Natural law and the ethics of traditions.” In: R. George (Ed.), Natural Law Theory:

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Contemporary Essay. Oxford: Oxford University Press. Boyle, J. (1994). ‘Radical moral disagreement in contemporary health care: A Roman Catholic perspective,’ The Journal of Medicine and Philosophy 19, 189-192. Boyle, J. (1997). ‘Just and unjust wars: Casuistry and the boundaries of the moral world,’ Ethics and International Affair 11, 83-98. Donagan, A. (1977). The Theory of Morality. Chicago: University of Chicago Press. Engelhardt Jr., H. T. (1991). Bioethics and Secular Humanism: The Search for a Common Morality. Philadelphia: Trinity Press International. Jonsen, A. R. and Toulmin, S. (1988). The Abuse of Casuistry: A History of Moral Reasoning. Berkley: University of California Press. MacIntyre, A. (1984). Whose Justice? Which Rationality? Notre Dame: University of Notre Dame Press. McDowell, J. (1989). “Virtue and reason.” In: S.G. Clarke and E. Simpson (Eds.), Anti-theory in Ethics and Moral Conservatism. Albany: SUNY Press. Midgley, E.B.F. (1976). The Natural Law Tradition and the Theory of International Relations. New York: Harper and Row. Raz, J. (1986). The Morality of Freedom. Oxford: Oxford University Press. Sidgwick, H. (1966). The Methods of Ethics, 7th edition. New York: Dover. Walzer, M. (1977). Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books.

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CHAPTER 2

MARK J. CHERRY

NATURAL LAW AND MORAL PLURALISM Epistemological and Metaphysical Challenges

1. A VISION OF HUMAN REASON; THE CHALLENGES OF MORAL PLURALISM For someone who has learned a great deal over the years from Joseph Boyle, it is an honor to comment on his contribution to this volume. More importantly, the opportunity to grapple with his arguments is always rewarding. His defense of a natural law theory of morality is inevitably forceful and often convincing. As Boyle has noted, natural law theory provides a sophisticated interpretation of what Alan Donagan termed “common morality”: that part of the Judeo-Christian moral tradition that is non-religious. It is comprised of moral precepts guiding action which are secular, rather than religious, in character; that is, “its subject matter is actions affecting oneself and other human beings, not God” (Boyle, 1999, 111). Moreover, “these precepts are held to be knowable by human reason without religious revelation or theistic conviction” (Boyle, 1999, 111; Donagan, 1977). That is, natural law theory espouses universal moral principles and precepts or norms, but not in a way that invokes God, religion, or immortality, to direct and motivate moral action. As Boyle encapsulates the position: I turn now to the notion of natural law: its core idea, as a thesis about morality, law and other forms of social authority is that some action-guiding thoughts and statements, that is, some precepts or practical principles, are natural in the sense that they are not dependent for their validity on human decision, authority or convention. Because of the independence of these factors, natural precepts and principles must be generally accessible to human reason; the critical reflection that is not dependent upon but potentially critical of any particular social enactment or practice is the work of common human reason (Boyle, 2004, 2).

Natural law theory holds that true moral content is not the product of cultural practice, social convention, or individual choice, or even of religious conviction per se. Rather, objectively true moral content is held to be both universally applicable – i.e., its moral content is validly addressed to anyone facing a choice upon which the principles and norms bear – as well as universally accessible – i.e., that canonical 17 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 17—38. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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moral content is accessible to human beings generally (2004, 2).1 All persons are assumed to be in principle capable of knowing moral principles and norms of action in virtue of their common capacity to reason.2 Natural law theory assumes a moral epistemology in which one comes to know truly through discursive practical reason. As Boyle is aware, foundational moral pluralism presents a fundamental challenge to traditional natural law theory. Western culture is increasingly marked by widely divergent religious viewpoints, moral narratives and principles, as well as secular and religious accounts of human flourishing. He notes: “Differences among individuals and groups, some holding and some rejecting the first order moral views of traditional natural law are not only cross cultural, but also occur within virtually every modern city, state, province or nation and often within the same multi-national corporation, families, professions, ethnic groups and religions” (2004, 4). Significant moral diversity exists not only between societies separated by time and geography, or otherwise isolated from each other, but also within the same societies, polities, and communities. Evermore there is an apparently systematic calling into question, if not outright failure, of the traditional values and institutions that had previously ground takenfor-granted understandings of moral truth and human flourishing. Whereas moral understandings, accepted social roles, including appreciation of gender and sexuality, expressed in often taken-for-granted norms of human form, behavior, and grace, mark the conceptual frameworks which underlie moral decision-making, traditional Christian accounts of the truly flourishing human life, are ever more marginalized, criticized, and called into question. The result has been a transformation and fragmentation of the religious and cultural assumptions that have traditionally framed Western moral assessments. Such fragmentation, as Boyle is aware, has set the stage for the emergence of deep-seated moral differences that divide morality and accounts of human flourishing into not merely different, but mutually antagonistic accounts of proper moral conduct. For example, there is moral opposition, not simply difference, between the political views of those who oppose and those who support legal and social permission for physician assisted suicide. Similarly, the defenders of marriage as traditionally understood in the Western societies influenced by the Bible and St. Augustine can hardly accommodate same-sex marriage as socially and morally acceptable (Boyle, 2004, 4).

Western societies and cultures have been marked by the rapid upheaval and destabilization of traditional understandings of the meaning and significance of life as well as a systematic rejection of traditional morality and religion.3 Indeed, as a field of inquiry addressed to patient care as well as to institutional and social policy, Western bioethics routinely rejects natural law’s traditional prohibitions on abortion, sterilization, in vitro fertilization, embryo experimentation, and assisted suicide.4 Prime among the issues at stake are understandings of the meaning and significance of copulation, reproduction, suffering, and death, the character of human dignity and the value of human life. In short, as I will explore, there does not appear to exist a single authoritative account of the characteristics of the appropriately flourishing human life, i.e., of the basic human goods or of true integral human fulfillment. As this paper will argue, such substantial moral pluralism raises significant challenges

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to the possibility of a viable natural law theory of morality. 2. THE CHARACTERISTICS OF HUMAN FULFILLMENT According to traditional natural law, morality facilitates the attainment of the human telos or the goal of full human flourishing. Moral norms are not simplistic external constraints on choice and action, but the requirements of practical reason. Such norms are thereby embodied in the lives of virtuous individuals “…in such a way that what they want and what is morally required come to be the same. Virtuous living requires not only the acceptance of responsibility but considerable personal discretion about how to integrate and carry out responsibilities” (Boyle, 1999, 112). Various absolute constraints on action – such as, never intentionally killing the innocent – are incorporated with an account of basic human goods which, given human nature, are understood as playing a central role in the attainment of human flourishing (Boyle, 2004). As articulated in Nuclear Deterrence, Morality, and Realism, the first principle of morality is: “In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with integral human fulfillment” (Finnis, Boyle, and Grisez, 1987, 283). One’s obligation is to will and act only in ways that are compatible with creating and integrating the basic human goods into one’s life and the lives of others: families, communities, and societies. Such goods are plural and non-commensurate, and thus non-reducible to each other.5 Germain Grisez’s explication is helpful: Many intelligible goods are only instrumental: One diets to reduce cholesterol, looks both ways to avoid getting hit, brushes one’s own teeth to remove plaque. Lowering cholesterol, not getting hit, and removing plaque are indeed reasons for acting, but are intelligibly good only because they contribute to staying alive, intact, and healthy. Thus, free choices to diet, look both ways, and brush presuppose insight into the truth that life, including bodily integrity and health, is a good to be protected and promoted. That truth is a principle of practical reason, and the human good to which it directs action is basic. In other words, the prospect of benefits in respect to survival, bodily integrity, or health can be one’s ultimate reason for choosing. Of course, one also can regard basic goods as means to other goods (Grisez, 2001, 4-5).

While the basic goods need to be integrated into and placed within a fuller understanding of one’s life, they provide the basis for practical reasoning regarding virtuous choices; that is, attainment of the basic human goods provides the immediate reasons for action. The goal is not a maximization of such goods, but the making of rational choices in the pursuit of a virtuous, flourishing life.6 Natural law theory is thus teleological without being consequentialist. While compatible with many types of lives, careers, and goals, each of which can be rationally and morally pursued, choices that conflict with the basic goods are definitively ruled out. Consider, for example, health: …there is the further question of how these goods [health and related bodily goods], even rationally pursued, fit into the larger framework of a person’s life. This more architectonic relationship is rationally structured by the virtues of prudence and justice. Here again the demands of the relevant virtues are relative to a number of personal and circumstantial factors. Since people reasonably have different commitments, life plans

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MARK J. CHERRY and opportunities for action, there are many patterns, compatible with virtuous living, for integrating health with the other goods of life (Boyle, 1999, 124).

Instantiation of the various basic human goods within a particular life may thus vary in diverse and incompatible, but not morally opposed, ways of life (e.g., the celibate priest and the husband and father, the physician and the college professor). 3. A NATURAL LAW RESPONSE TO MORAL PLURALISM While Boyle acknowledges the empirical fact of moral pluralism, he argues that such divergent moral viewpoints do not necessarily reflect diverse moral foundations. My response is that defenders of natural law need not accept at face value the common formulation of ethical pluralism as involving moral disagreement at the most basic level. ... For now, at least within polities and within the wider societies of the economically developed world – that is, within the network that defines the globe as an economically and increasingly politically unified whole – diverse groups of people interact, mostly peacefully, and cooperate with others with whom they have profound moral and cultural disagreements. However, it is not an incontrovertible fact that this diversity and disagreement goes all the way to the foundations of people’s moral perspectives. The unity and interactions of diverse peoples surely suggests some common moral understandings … (2004, 4).

That formulations of basic moral categories are contradictory, he argues, does not in itself imply that each is of equal merit. Although philosophers’ formulations of basic moral principles plainly are contradictory, the merits of these different formulations can be and are rationally debated (2004, 5). Moreover, the possibility that philosophers introduce false assumptions into these formulations is real (2004, 5). Consequently, the existence of philosophical moral disagreement, Boyle argues, in itself does not warrant the conclusion that natural law claims regarding universal accessibility and applicability of its moral content are false. The difficulty, however, is that to establish a particular formulation as rationally preferable requires determining preferable to whom and with respect to what set of criteria. Even to separate information from noise one must specify standards of evidence and inference. Articulating an answer requires an actual determination of facts as well as specification of the moral criteria and standards of rational choice employed. Securing a particular ethic requires specification of premises and content, standards of moral evidence and inference, and so forth, that will not be acknowledged as intersubjectively morally authoritative among those who do not already share a particular moral perspective. Consequently, the foundational challenge to natural law theory, which Boyle hopes to avoid, repeats itself: there exists a plurality of standards for rationally debating the merits of different formulations. Which standard should be utilized for judging amongst the merits of the various moral theories, principles, narratives, and accounts of the good life? By what standard should one judge the merits of the various standards, the standards of the standards, so forth, ad infinitum. Appeal to the “basic human goods” will not resolve the difficulty, because, there is no in principle means of comparing the

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various merits and deficiencies of different formulations of basic human goods without having already presupposed a particular background moral understanding. One thereby either engages in an infinite regress or merely begs the question by assuming the truth or adequacy of a specific standard. Adequately to compare different formulations one must already possess a content-full moral understanding, which is precisely what is at issue. Even if one could establish particular natural circumstances as “normal” – such as, procreation through heterosexual marital intercourse, conception and pregnancy – and other circumstances as abnormal – such as, in vitro fertilization with embryo wastage, embryo research, and abortion – one would still need to demonstrate why natural circumstances should be accepted as morally normative and in what fashion. To know whether the general structures of nature are morally instructive of the limits of permissible behavior or as challenges to be overcome requires a criterion for judging which states of affairs ought to be accepted as those to which one is obligated to submit. For example, natural law theorists praise the goods of modern medicine, provided it is not idolatrous; yet, susceptibility to disease, suffering, and death is part of nature.7 Medicine postpones death; it ameliorates base human suffering, but does not cure death. When is it morally appropriate to attempt to overcome such natural tendencies? To make such judgments, one must possess a moral understanding so as to assess what is normatively natural and morally good from nature (see Engelhardt, 1996, 56). Here, consider controversy regarding human embryo research. While an obviously artificial use of the human embryo, whether such research ought to be morally condemned because it is unnatural depends on how one understands man’s relationship to nature. The National Institute of Health’s Human Embryo Research Panel issued a report concluding that research on pre-implantation human embryos was morally permissible, as was the creation of embryos for such research utilizing in vitro fertilization techniques (NIH, 1994).8 The panel argued that the human embryo “warranted serious moral consideration as a developing form of human life” (1994, 932), but that it does not have the same moral status as a person. On the one hand, such research has been denounced as gravely immoral by many Christians: After carefully studying the Report on the Human Embryo Research Panel, we conclude that this recommendation is morally repugnant, entails grave injustice to innocent human beings, and constitutes an assault upon the foundational ideas of human dignity and rights essential to a free and decent society (The Ramsey Colloquium, 1995, p. 17). To use human embryos or fetuses as the object or instrument of experimentation constitutes a crime against their dignity as human beings having a right to the same respect that is due to the child already born and to every human person (Donum Vitae, 1987).9 What is morally unsustainable is the harvesting of stem cells by either of two currently proposed methods: 1) the creation and destruction of human embryos at the blastocyst stage by removal of the inner cell mass or 2) the harvesting of primordial germ cells from aborted fetuses. Both cases involve complicity in the direct interruption of a human life, which Roman Catholics believe has a moral claim to protection from the first moments of conception. In both cases, a living member of the human species is

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MARK J. CHERRY intentionally terminated (Pellegrino, 2000, F3).

On the other hand, Orthodox Jewish scholars have expressed the view that human beings are commanded to use their rational capacities to overcome and master natural limitations. In the context of embryo stem cell research, for example, Rabbi Moshe Tendler argued: The commendable effort of the Catholic citizens of our country to influence legislation that will assist in preventing the further fraying of the moral fabric of our society must not impinge on the religious rights and obligations of others. Separation of church and state is the safeguard of minority rights in our magnificent democracy. Life-saving abortion is a categorical imperative in Jewish biblical law. Mastery of nature for the benefit of those suffering from vital organ failure is an obligation. Human embryonic stem cell research holds that promise. The recently announced joint effort between Geron Corporation and Roslyn Labs of Scotland (of Dolly fame) has its focus on the use of human embryonic stem cells to bolster a failing heart or liver, without need for immunosuppressive drugs or dependency on organ donors (Tendler, 2000, H4).

Jewish scholars have thus been wary of public policy prohibiting all human embryo research because it would violate the command of mastery, contravene the separation of church and state, and interfere with potentially valuable scientific research.10 From a general secular perspective, embryo research, whether for improved reproduction or scientific research, is generally sanctioned and endorsed by the international bioethical community. Human embryo research has been heralded as very likely leading to significant new treatments for diabetes and Parkinson’s disease, immunodeficiences, cancer, metabolic and genetic disorders, and a wide variety of birth defects, as well as being useful in generating new organs or tissues.11 As the NIH anticipated, the necessary embryos are typically generated through in vitro fertilization in the laboratory strictly for research purposes or are leftovers from in vitro fertilization fertility treatments. Since such basic science will likely save lives, reduce suffering, and help to cure disease, from a general secular perspective, it appears decidedly immoral to fail to engage in such research. From a fully secular perspective, embryos and fetuses, even late term fetuses, cannot be experienced as persons, and thus their interests are placed within and understood as instrumental to the interests of persons.12 Consider also, Boyle’s example of physician-assisted suicide. Within the Western international bioethics community, there is growing endorsement of physicianassisted suicide and euthanasia as reducing human suffering and preserving human dignity. This call ranges from assisted-suicide for the terminally ill, to promotion of its availability for anyone who competently requests such treatment, to both voluntary and non-voluntary euthanasia for patients in a permanently vegetative state. Even optimal curative and palliative care cannot resolve all loss of personal control and all perceived loss of human dignity. As Gunderson and Mayo note, as a discipline bioethics generally holds that competent individuals have the right to determine their own fates. “The autonomy-based argument for physician-assisted death is straightforward: as illness begins to seriously compromise the quality of a person’s life, few issues could be more profound and personal for that person than determining the point at which his or her life is no longer worth living” (2000, 18).

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Analogous sentiments were expressed by the United States Ninth Circuit Court with respect to Oregon’s Death with Dignity Act: “Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free to force their views, their religious convictions, or their philosophies on all other members of a democratic society, and to compel those whose values differ from theirs to die painful, protracted, and agonizing deaths” (Compassion in Dying v. State of Washington 79 F 3d790 (9th cir 1996): 810-839 at 839). Compassion and love are emphasized as justifying physician-assisted killing in the face of irremediable and severe suffering. Such deaths are presented as alleviating the physical pain and mental anguish of those beyond effective therapy. Adversity can drain a person’s life of meaning, and from this perspective the individual appears to have a right to determine when to end his own life. Death with dignity is likened to putting an animal out of its misery. Since we would surely aid an animal in pain, the argument concludes, we should extend the same compassion to human beings.13 Disengaged from a particular religious perspective, it is difficult to appreciate why rationally chosen suicide would be impermissible. Foundational metaphysical assumptions regarding human nature, the character of basic human goods and full human flourishing, the personhood of the embryo, and thereby its moral status, as well as when general moral prohibitions may be overridden in the pursuit of other important goods, ground such controversies. Each considers natural states of affairs, but from the perspective of a different framework of metaphysical, epistemological, and axiological presuppositions. As a result, opposing moral positions and political objectives appear as both morally permissible and socially obligatory. 4. APPARENT MORAL AGREEMENT AND REASONING ACROSS MORAL BOUNDARIES How then does one explain the phenomenon that persons from quite different cultures and religions are able to collaborate in the pursuit of wide-ranging goods and objectives? Boyle illustrates: “As noted above, people in ethically pluralistic societies do have enough in common to exist together in peace and to cooperate, sometimes in rather robust ways. Those common interests seem to include some norms for existing together in peace and some norms for fair cooperation” (2004, 9). The natural law claim is that a non-instrumental conception of such norms is possible where the concern is to overcome moral diversity and ethical disagreement in ways other than coercion or compromise. Moreover, he argues that there are at least some widely accepted moral convictions that are accepted across moral communities, “... in other words, agreements that are not explicable within any local practice or moral allegiance, and better accounted for by natural law than by other universalist moral theories. ... Among these moral convictions are some precepts addressed to anyone, for example, to respect the rights and liberties of other people” (2004, 10). The appeal, in part, is to a jus gentium, the law of the peoples, in which widely shared moral convictions are given voice, while perhaps accepted by different people for divergent reasons and without explicit reliance on moral theory.

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MARK J. CHERRY If there is such a body of moral doctrine, then the objection to the natural law claim about people’s common moral awareness is answered. For these common convictions, however differently different people would explain them, can be understood as reflecting a common moral foundation. And if this body of moral doctrine is not altogether static but capable of extension and refinement by moral analysis and debate, then the objection that natural law (or at least a set of universalist prescriptions which fits nicely within a natural law framework) is practically irrelevant is answered. For a body of agreed upon moral doctrine capable of rational extension can be practical in ways that neither ethical theories nor local moral conviction can be to those not sharing their theoretical or communal prescriptions (2004, 11).

Boyle is raising two closely related concerns: (1) the apparent agreement of people from divergent cultures and religions to similar moral norms and principles and (2) the phenomenon that individuals from divergent moral communities apparently exist together in peace. I will consider each in turn. 4.1 Apparent Agreement: Respecting Rights and Liberties With regard to respecting individual rights and liberties, we confront the problem not only of defining basic human goods and human fulfillment, but also of determining how such goods ought to be realized. Consider, for example, the moral principles of equality and autonomy, central to Western accounts of morality and bioethics. The dominant accounts of Western bioethics regard moral decisionmaking within the framework of a “liberal cosmopolitan polity,” to use H.T. Engelhardt’s terminology, in which citizens are understood as moral agents who compromise with each other in the realization of individual liberty, understood in terms of the economic and institutional conditions and social structures which sustain fair equality of opportunity and personal autonomy (Engelhardt, 2000). Traditional familial, religious, and community oriented understandings of human flourishing are marginalized, criticized, and called into question. Western bioethics generally judges the decision to live and make medical choices within a traditional family structure that does not value autonomous authenticity as morally deficient. Western bioethicists appeal, for example, to a general moral consensus that individual-oriented informed consent is important for respecting the rights of persons: insofar as the patient is competent, he is the best judge of his own best interests and his decision should in the end trump, as long as there are no significant interests of others at stake.14 Governmental and institutional biomedical policy, such as individual-oriented informed consent and ideologically directed education, is structured so as progressively to discourage the choice to remain in a traditional religious or cultural community (Engelhardt, 2002, 25). It is assumed that human flourishing and general well-being ought to be appreciated in terms of an individual-oriented, rather than family- or communityoriented, conception of liberty and autonomy. Access to adequate health care without market- or income-based barriers is essential for eliminating natural and social disadvantages so that each individual may equally enjoy the liberty to fulfill his own potential, however individualistically defined. Preserving personal capacities for forming, revising, and achieving one’s own goals and objectives, for defining individual meaning and self-satisfaction, requires removing, as much as

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possible, the physical, mental, and social, handicaps of illness, disease, and disability. Health care as a basic human right is thus viewed as foundational to respecting individual rights as well as preserving equal worth of individual liberty and fair equality of opportunity. Concern to enhance the conditions for positive expression of individual liberty, espouses a universal vision of autonomy as freedom from constraints on the pursuit of self-satisfaction and individual meaning. It is liberty understood as freedom to pursue one’s own understanding of the good life unhampered by the fortunes of nature and social choice. There are, however, significant difficulties with using this approach to ground particular universal moral norms. First, one must determine who is party to the consensus as well as how and why it should bind those who do not concur with it. How in particular should one respond to conscientious objectors? Is there moral authority to utilize coercion to force autonomous others, who do not consent, into compliance with the general consensus or should they be allowed peaceably to ignore the community’s consensus? Such an account of patient autonomy collides, for example, with an obligation of forbearance in the sense that the patient is in authority over his own person and should not be touched or interfered with without permission. Forbearance rights understood as part of the necessary grammar of morality (Engelhardt, 1996, 102 ff.), or as necessary side-constraints (Nozick, 1974, 26-35), do not have any particular content and do not depend on a moral consensus. Rather, forbearance rights are advanced as constitutive parts of the very practice of morality. They are meant to support a set of rights to be left alone that strictly limit the moral authority of physicians, health care workers, and society to interfere with a patient except in those instances in which the patient consents to the treatment. By an appeal to such rights patients are able to refuse medical treatment that they find burdensome or inappropriate. While often captured under the rubric of autonomy, forbearance rights limit the moral authority of others to force non-consenting others to act in conformity with general consensus. Insofar as objectors to the consensus act peaceably with consenting collaborators, the moral authority for others, including the state, to interfere is limited. Such universalistic claims embody thick understandings of the values of liberty and fair equality of opportunity which are incompatible with the taken-for-granted assumptions of traditional religions and cultures. They simply assume that the focal point of the moral life is autonomous self-determination, where liberty, as the celebration of free individualistic choice, is integral to the good life for persons. Traditional religions and cultures, whether Orthodox Christian (e.g., Engelhardt, 2000; 2002) or Confucian (Tao, 2002a; 2002b), draw on quite different metaphysical and axiological assumptions, forming moral conclusions that are often at odds with the conclusions that Western bioethicists endorse. Julia Tao notes, for example, that Western obsessions with equality and autonomy are set aside within traditional Confucian ethics: Confucian care ethics rejects universal love. Instead, Confucius himself also urges that a person ... should start from one’s parents and siblings and then extend to other people. ...There is no requirement to treat everyone equally with the same impartial treatment.

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MARK J. CHERRY ... Our obligations are defined by our relationships (2002, 54-55).

As Qui Ren-Zong elaborates, for Confucianism “[k]eeping familial integrity and orderly familial relations may be even more important than keeping bodily integrity...” (2002, 77). Similarly, the Western principle of individual autonomy is fundamentally incompatible with traditional Confucian understandings of essential moral relationships. Values seem to be shared by different moral communities or cultures, but their meanings differ among them. Autonomy in Western culture means decisions made by an independent person, but in Confucian culture it means decisions made by a family incorporating the person (Qui, 2002, 84).

Ruiping Fan has similarly argued that within traditional cultures and religions moral decisions are lived realities, instantiating a particular understanding of human flourishing. They embody a taken-for-granted moral perspective, rather than a philosophical or rationally discursive framework. Again, a moral perspective is the image of a real moral life lived by a group of people. It is concrete, canonical and content-full; it cannot be entirely discursive. On the other hand, a moral theory is both general and systematic. It is composed of abstract statements that are inevitably vague, ambiguous, and underdetermined without further interpretations. Finally, a bioethical account cannot be substantiated by a moral theory. It is rather a conceptual restructuring of a moral perspective along a formal framework provided by a moral theory. In other words, what a moral theory contributes to a bioethical account is only a thin structure in which concrete moral substance is arranged. The content-full moral substance of a bioethical account can only be offered by full-bodied moral perspectives (Fan, 2002, 370).15

The robust, content-full visions of human flourishing available within traditional religions and cultures cannot be adequately captured or recreated within the secular vision of cosmopolitan liberal moral theory. Traditional Confucians and Christians understand the pursuit of a fully flourishing human life as situated within the thick expectations of family structures rather than in disinterested commitments to the pursuit of social justice, civic duty or generalized solidarity. From such living moral perspectives, however otherwise different from one another, Western liberal cosmopolitan bioethics is appreciated as stark and impoverished. On a very fundamental level there does not appear to be a canonical account of human nature from which to draw content-full understandings of licit and illicit conduct. As Qui Ren-Zong argues, Bioethical paradigms in different moral communities or cultures are incommensurable. This means that there is no meta-criterion or meta-criteria with which to judge or evaluate the relative merits of different bioethical paradigms. It also means that there is no common moral authority, no common moral norm, and no common vision with which to evaluate an action taken by a person or an institution from different moral communities. ... Confucius was right when he said: ‘Human nature is similar, but practice makes them far apart’ (Confucius’ Analects) (2002, 84-85).

Human nature cannot be reduced to the human genome, nor would appeal to a particular account of human nature by itself provide universal concrete moral guidance. Here we once again confront the question of knowing whether the general structures of nature are to be understood as morally instructive of the limits of moral

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behavior or as challenges to overcome and master. The very meaning of respecting rights and liberties thus depends on the moral perspective adopted. To take an additional example, libertarians and egalitarian liberals can each agree that equality represents a morally important practical norm; but for the libertarian equality refers only to equal forbearance rights, were for the egalitarian liberal it compasses wide-ranging welfare rights sufficient to guarantee a robust understanding of “fair-equality of opportunity” (see Rawls, 1993; 1999). In itself, the existence of a consensus among a group of physicians, philosophers, theologians, politicians, and so forth, does not establish the existence of anything other than that particular agreement. It does not necessarily offer evidence of any fundamental moral reality, cross-cultural moral norm or “true” universal moral principles. Insofar as “... disagreement begins when people seek to explain and justify norms” (Boyle, 2004, 13), that is good evidence that one ought to look more critically at the practical norms on which there was presumed to be consensus. Given such circumstances, there does not appear to exist convincing evidence of significant cross-cultural moral norms. Real disparity of belief threatens the possibility of reaching substantive consensus regarding liberty, autonomy, and basic human rights. When traditional constraints collide with the post-traditional individualistic search for self-understanding one engenders political controversy rather than moral resolution. True believers, i.e., those who denounce others as wrong, attempt to convert, or refuse to see central religious or moral beliefs as the appropriate subject of political compromise, are perceived as dangerous and threatening. One can imagine the discussions of the National Commission for the Protection of Human Subjects in Biomedical and Behavioral Research, to which Boyle refers (13), had the Commission when discussing fetal research included the pope of Rome, an atheist feminist, a fundamentalist Baptist, a Maoist communist, a libertarian, and an advocate of unhindered choice in the matter of abortion (see also Engelhardt, 2000, 30). Acknowledging substantive moral diversity requires recognizing the existence of real moral opposition, thereby exposing the aspirations of forging a global moral consensus to the significant likelihood of failure. 4.2 Social Cooperation and Moral Diversity Moral foundations and particular content forged through a purported consensus will likely only form a stable structure for public policy if it is coercively enforced upon dissenters, thus failing to respect the fundamental differences among persons and moral communities, as well as failing Boyle’s hope to overcome moral diversity and ethical disagreement in ways other that coercion or compromise. For example, some argue that general beneficence together with respecting basic human rights and liberties requires everyone to participate in universal single-tier governmentally regulated health care, with tax-payer financed abortions for the impecunious. Those who disagree are to be coerced into participation through mandatory employer pay-roll tax deductions. Others argue that sustaining basic human rights and liberties requires understanding persons as free to refuse to be

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complicit in what one views as evil, with beneficence, including basic welfare needs, limited to acts of private charity. How should one respond to those who suffer with long term illness and disability: assisted-suicide or baptism? Which account should guide public policy? Should all be coerced into participating in abortion, embryo experimentation and assisted-suicide through general taxation? Sustaining welfare entitlements to education, housing, health care and so forth, requires significant taxation and redistribution of the time, talent, goods, and resources of all members of society. The burden of proof is removed from governmental and other authorities, who would continually interfere with personal and community holdings, placing it on those who would utilize private property with consenting others to sustain religiously or culturally based goods. The earnings and services of all are simply the means through which to create and finance a universal system of welfare rights. Such taxation impoverishes traditional moral communities, who thereby possess fewer resources to purchase religiously or culturally based health care, education and so forth.16 To paraphrase John C. Calhoun, it enriches and strengthens those hostile to traditional cultures, practices, and religions, while impoverishing and weakening those who wish to pursue such ways of life (1992, 19). 17 Taxation to support state-based health care is neither compatible with respecting real moral difference nor correctly described as peaceable social cooperation. Those who morally object to the provision of particular services (e.g., Roman Catholics who consider financing abortion as being complicit with evil) are coercively compelled into participating in the purchase of such services. Since the right to abortion is widely endorsed in contemporary bioethics and bio-politics as central to the autonomy of women over their own bodies, respect for such expression of individual liberty is given priority over the autonomy and liberty of those individuals and communities who morally object. While Catholic teaching forbids not merely obtaining or performing abortions, but also cooperating with or enabling others to obtain abortions (McHugh, 1994, 496),18 such religious concerns are set aside in pursuit of the greater liberty for those whose life plans and personal values affirm abortion as liberating women from the evils of patriarchy and enforced pregnancy. Taxation to support what one understands to be deviant moral visions impoverishes one’s own liberty. It is a powerful weapon for suppressing moral disagreement and for privileging a particular moral viewpoint. Here the state plays a significant role, through powerful legislation, coercive taxation, and institutional regulation, for the instantiating and enforcing of a particular account of morality. Within such political debate, widely variant moral communities compete to have their own particular health care values publicly enforced. Thus, rights not to participate in the propagation of services which one conscientiously opposes, to utilize one’s body for the creation of profit in pursuit of alternate visions of the good, to utilize private property only in ways which one believes to be morally acceptable are at best insecure and limited. In sum, the burden of proof is weighed heavily against traditional families, religions, cultures, and ways of life. As Engelhardt argues: ...[C]onsider the contrast between those who favor autonomous individualism and those

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who would give moral priority to family life. Those who regard autonomous individualism as the presumptively appropriate relation among persons would require any deviations to be established by explicit statement and agreement. For example, patients would be presumptively treated as autonomous individuals willing and committed to choosing on their own, unless they explicitly demanded to be regarded and treated within a traditional family structure. ... On the other hand, if one considers life within a traditional family structure as the presumptively appropriate relation among persons, the burden of proof shifts. Persons are approached as nested within the thick expectations of traditional family structures, unless they explicitly state that they wish to be regarded and treated as isolated individuals (2002, 24-25).

To premise governmental and institutional policy on individualistic understandings of autonomy, or concerns for social justice and individual equality, simply begs the question, substituting this particular set of ethical constructs for traditional familyoriented moral concerns. Those who choose to live within thick moral communities confront a governmental and institutional environment that is hostile to traditional understandings of moral goods and important family relationships. Whereas it may appear that “… people in ethically pluralistic societies do have enough in common to exist together in peace” (Boyle, 2004, 9), that experience may be only prima facie. Indeed, individuals and families who live within traditional religions and cultures are often coerced into compliance through law and public policy to comply with moral positions that they do not judge to be in either their own best interests or the best interests of others. That such individuals, families, or communities do not choose openly to rebel against the overwhelming force of the state – for example, that one pays one’s income taxes honestly – does not thereby imply agreement or peaceable social cooperation. It may simply indicate prudent calculation of potential costs and benefits. How then can one explain Boyle’s observation that people from widely variant cultures and religions often do seem to get along with each other: People from different backgrounds or with differing philosophical allegiances come into conflict within the institutions of the global economy because they each have some reason to become involved in it: the values of increased wealth and economic opportunity are not intrinsic goods for most people, but they are widely valued and useful for most people. In other words, the moral disagreements which characterize international moral debate do not appear to be debates among people holding radically incommensurate moral schemes .... (2004, 12).

Here Hegel’s analysis of the centrality of market interactions for morally pluralistic societies is helpful. Hegel acknowledged that all accounts of responsibility, duty, and liberty, are expressed in the context of cultures, communities, religions, and history. This insight led Hegel to give special place to private property at the core of ethics and to the procedural force of the market. As Hegel recognized, to make choices regarding duty one must possess a particular account of morality. The formal idea of duty is sufficient to understand that one must fulfill one’s contracts and that one ought to strive after the good; but it provides no guidance regarding the contracts into which one should enter, what content-full account of the good one should adopt, or whose good one should seek. Within an ethical community, i.e., from within a particular moral perspective, “...it is easy to say what someone must do and what the duties are which he has to fulfill in order to be virtuous. He simply

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must do what is prescribed, expressly stated, and known to him within his situation” (Philosophy of Right, § 150). It is for this reason that Hegel moves from Moralität, the level of subjective good and individual willing, to Sittlichkeit, in which the good and one’s willing take on a particular content within a particular ethical community. Given this circumstance, Hegelian civil society is marked not only by the interaction of atomistic individuals, but also by the interaction of a plurality of economic and religious groups.19 Hegel’s insight demonstrates, perhaps inadvertently, the centrality of the free market and its institutions for creating morally authoritative agreements within morally pluralistic society. While the market provides for the efficient satisfaction of needs and produces wealth, it also secures the means for morally authoritative social interaction among those who do not belong to the same moral community. Persons can freely pursue diverse views of human flourishing. The market creates social space for cooperative endeavors in the production of the accoutrements of life without requiring that any person or group necessarily support any other person or group absent the actual consent of actual persons. Those groups or individuals who wish to withdraw from modern life, or just from particular transactions, absent prior commitments, need not engage with others in the market. In economic cooperation, persons who do not share a common background morality, whether secular or religious, freely agree to the structures and institutions of the market and, through their consent, authorize their enforcement. Each party in pursuit of his own separate aims binds the society together as a whole. Finally, incommensurability represents a concern that the values at stake cannot be relevantly summed and compared (Radin, 1996, 10). By itself, though, simple incommensurability, even deep moral incommensurability, will not eliminate the possibility of consensual interaction in the market. For example, the permissibility of market transactions does not require that the goods exchanged be commensurable, but rather that the parties transact voluntarily, that deception, or other forms of coercion are not employed, and that each is satisfied with the value to be received. This means that what is received in return is worth as least as much to the party as that which was given. While market transactions may frequently utilize money as a continuous variable of value, as Locke points out, money is only a placeholder for other goods and values (1980 [1690], §47).20 As others have noted, one can buy or sell “priceless” Monêts without claiming that the aesthetic or historic value of the painting is “commensurate” with the money that is paid (Wertheimer, 1992, 218). Provided they are consensual, market transactions are thus fully compatible with incommensurate moral schemes. 21 Note, the market is not being endorsed as a good in itself, nor are free choice and moral diversity celebrated in themselves as special goods. Rather, the market defines social space for peaceable consensual human interaction in all aspects of life. To injure, steal from, defraud, tax, or otherwise coerce non-consenting others, even through state sponsored coercive taxation, is simply an appeal to de facto power; i.e., to force. In contrast, the market is able to bind together disparate secular and religious communities without the need for a shared moral vision beyond the content of the agreements they themselves forge with consenting others.

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5. CONCLUSION Acrimonious bioethical debates regarding abortion, embryo experimentation, assisted-suicide and so forth, illustrate that there exists foundationally different accounts of the moral life. Thus, political struggles concern not merely which policies will best achieve the desired objectives (such as, the basic human goods), but which objectives are themselves desirable; that is, which moral understanding should be established (e.g., pro-life or pro-choice, protecting embryos or pursuing scientific advancement, and so forth). How then should public policy be crafted? Should one simply acquiesce to the personal preferences or deep moral intuitions of academic ethicists, current biomedical convention, or claims to global moral consensus? Or should one seek moral content to guide public policy through appeal to intuitions, consequences, casuistry, the notion of unbiased choice, game theory, or middle-level principles? All such attempts, as Engelhardt has argued, confront insurmountable obstacles: one must already presuppose a particular morality so as to choose among intuitions, rank consequences, evaluate exemplary cases, or mediate among various principles, otherwise one will be unable to make any rational choice at all. As he points out, even if one merely ranks cardinal moral concerns, such as liberty, equality, justice, and security differently, one affirms different moral visions, divergent understandings of the good life, varying senses of what it is to act appropriately (Engelhardt, 1996; 2000). In general secular terms, it is impossible to break through the seemingly interminable moral debates to truth. Claims to “global moral consensus” or to rationally discoverable moral truths are, therefore, implausible. To draw the various threads of the discussion together, Boyle is correct that the empirical existence of moral heterogeneity does not, in itself, defeat natural law theory. There is a significant distinction between accepting moral and cultural pluralism as an empirical circumstance, even underscoring its importance for understanding current biomedical, ethical, and political debates, and embracing moral relativism. What is not warranted is to conclude from an empirical relativism (e.g., “as a matter of empirical fact there does not exist a single canonical contentfull moral perspective”) to metaphysical relativism (e.g., “moral pluralism and moral relativism are true; i.e., the deep nature of moral reality is that there does not exist a canonical content-full moral perspective”). An argument to establish empirical moral relativism requires only that one show that there exists a variety of contentfull moral communities, each of which disagrees on some, one or more, fundamental moral matters, such as the nature of the good, and the existence or ranking of middle-level principles, intuitions, rights, values, or ranking of consequences. Proof of metaphysical relativism, however, requires a positive in principle argument that there does not exist a moral fact of the matter – a positive argument that morality is a chimerical fiction. The deep moral controversies surrounding such cases as the permissibility of embryo research and assisted suicide, autonomy, equality and informed consent, however, turn on fully opposed foundational moralities. Such cases are heuristic for understanding the significant epistemological hurdles for establishing natural law’s universal accessibility, validity, and applicability. Outside of an appeal to an all-

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encompassing moral and metaphysical viewpoint, outside of a particular moral context, moral truth appears deeply ambiguous. Without the presupposition of particular content, morality cannot distinguish among different accounts of the nature of the good life, much less provide definitive guidance on how to proceed when the right and the good conflict. Thus, while persons are free to attempt peaceably to convert others to their own point of view, the imposition of any particular moral content as the foundation of public policy begs the question; as argued previously, it simply appeals to force. The inevitably post-modern character of contemporary ethics, and thus bioethics, is simply the recognition of the foundationally irresolvable character of such moral pluralism in general secular terms. Department of Philosophy Saint Edward’s University Austin, Texas NOTES 1

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As McFadden makes the point: “It is in this way that the intellect of man can build up a body of moral ideals. This moral code is commonly called the Natural Law and has been defined as ‘the participation in the eternal law (Divine Wisdom guiding all creatures to their proper ends) by a rational creature inclining the rational creature toward the end and actions proper to its nature. The Natural Law is universal because, being based on human nature, it binds all men. It is immutable, because it is not subject to change, abrogation, or dispensation. It is absolute because man must observe it at all costs” (1955, 18). Here Boyle’s conclusions are those of Aquinas: law, including natural law, pertains to reason. “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for lex (law) is derived from ligare (to bind), because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (Q. 1, A1, ad3); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason” (ST I-II, Q90, A1). As a rule or measure of human activity, the purpose of law is to direct persons to their appropriate ends, their telos, to true human fulfillment. Appropriate laws, including natural laws, command in accordance with what conforms or fails to conform with that telos. The first Vatican Council (A.D. 1869-1870) held that faith and right reason could not conflict: “The perpetual agreement of the catholic church has maintained and maintains this too: that there is a twofold order of knowledge, distinct not only as regards its source, but also as regards its object. With regard to the source, we know at the one level by natural reason, at the other level by divine faith. With regard to the object, besides those things to which natural reason can attain, there are proposed for our belief mysteries hidden in God which, unless they are divinely revealed, are incapable of being known. …Now reason, does indeed when it seeks persistently, piously and soberly, achieve by God’s gift some understanding, and that most profitable, of the mysteries, whether by analogy from what it knows naturally, or from the connexion of these mysteries with one another and with the final end of humanity … Even though faith is above reason, there can never be any real disagreement between faith and reason, since it is the same God Who reveals the mysteries and infuses faith, and Who has endowed the human mind with the light of reason” (Chapter 4, On Faith and Reason). As John Paul II reflected in Veritatis Splendor: “… it seems necessary to reflect on the whole of the Church’s moral teaching, with the precise goal of recalling certain fundamental truths of Catholic doctrine which, in the present circumstances, risk being distorted or denied. In fact, a new situation has come about within the Christian community itself, which has experienced the spread of numerous

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doubts and objections of a human and psychological, social and cultural, religious and even properly theological nature, with regard to the Church’s moral teachings. It is no longer a matter of limited and occasional dissent, but of an overall and systematic calling into question of traditional moral doctrine, on the basis of certain anthropological and ethical presuppositions. At the root of these presuppositions is the more or less obvious influence of currents of thought which end by detaching human freedom from its essential and constitutive relationship to truth. Thus the traditional doctrine regarding the natural law, and the universality and the permanent validity of its precepts, is rejected; certain of the Church’s moral teachings are found simply unacceptable; and the Magisterium itself is considered capable of intervening in matters of morality only in order to ‘exhort consciences’ and to ‘propose values’, in the light of which each individual will independently make his or her decisions and life choices” (1993, 8). In Evangelium Vitae, John Paul II placed this difficulty within a major cultural crisis and a shift in the presuppositions of moral theory: “How did such a situation come about? Many different factors have to be taken into account. In the background there is the profound crisis of culture, which generates scepticism in relation to the very foundations of knowledge and ethics, and which makes it increasingly difficult to grasp clearly the meaning of what man is, the meaning of his rights and his duties. Then there are all kinds of existential and interpersonal difficulties, made worse by the complexity of a society in which individuals, couples and families are often left alone with their problems. There are situations of acute poverty, anxiety or frustration in which the struggle to make ends meet, the presence of unbearable pain, or instances of violence, especially against women, make the choice to defend and promote life so demanding as sometimes to reach the point of heroism” (1995, 21). The result is, as the Roman Pontiff recognizes, a transformation and fragmentation of culture. For example, McFadden refers to abortion as a crime and as an “evil of long standing among mankind” (1955, 161). “Direct and voluntary abortion is a moral offense of the gravest nature, since it is the deliberate destruction of an innocent life ... Such an action is essentially murder” (emphasis in the original, 1955, 164). Traditionally, natural law condemned direct sterilization unless it was necessary to resolve a pathological condition and preserve the patient’s life: “The general principle is that any one of these procedures [removal of the uterus or ovaries, or tubal ligation], is licit if a pathological condition of the organ renders it necessary for the preservation of the patient’s life or health, but that it is illicit if the purpose of the operation or treatment is to prevent the inconveniences or dangers of childbearing” (Healy, 1956, 171). With regard to in vitro fertilization, Healy argues that “...the fertilized ovum is intended by God to become a human being if it not already one, and its destruction would therefore be at least the killing of a potential human being. It would in addition be a very grave frustration of nature. ... if the fetus is probably a human being, any direct attack on it would be prohibited by the law of nature” (1956, 273). Similarly, assisted-suicide and euthanasia, even at the request of a gravely ill patient is “...a grave crime against the law of nature and should be called by its proper name: mercy murder. It is to be condemned....” (Healy, 1956, 266-267). For traditional natural law accounts of medical ethics see generally Healy, 1956; McFadden, 1955; Niedermeyer, 1961; Kelly, 1960; Finney and O’Brien, 1956. “Are we saying that the basic reasons for acting simply are persons – individually and in communion? Yes and no. Yes, in the sense that in acting one primarily loves persons. ... In action for the basic goods, one’s hope simply is to foster them in and for persons. ... But no, because the already existing reality of persons simply does not depend upon human action. So, the reasons for acting are more limited – the basic goods. These are not the whole reality of any individual or community, but those intelligible aspects of the fulfillment of persons (as individuals and in communion) to which human actions can contribute” (Grisez, Boyle, and Finnis, 1987, 115). According to Finnis, Boyle, and Grisez, the basic human goods include : “As animate, human persons are living organic substances. Life itself – its maintenance and transmission – health, and safety are one form of basic human good. … As rational, human beings can know reality and appreciate beauty and whatever intensely engages their capacities to know and feel, and to integrate the two. Knowledge and aesthetic experience are another category of basic good. As simultaneously rational and animal, human persons can transform the natural world by using realities, beginning with their own bodily selves, to express meanings and/or serve purposes within

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MARK J. CHERRY human cultures. Such bestowing of meaning and value can be realized in diverse degrees; its fullness is another category of basic good: excellence in work and play” (1987, 279). The basic human goods transcend any particular state of affairs, are never fully attainable, require no further or prior reasons (i.e., they are intrinsically valuable), provide reasons for other objectives, are non-contingent, components for full human flourishing, and non-competitive, i.e., one person’s pursuing the good does not thereby preclude others from pursuing the same good (Finnis, Boyle, and Grisez, 1987, 277-278). As Boyle makes the point: “Health is good bodily functioning and is the perfection of our being alive just as animals. Being alive is not only a necessary condition for pursuing other goods but is part of the personal reality of a human being. This means that life and health are intrinsically good; that is, whenever an action in view promotes or protects life or health, that action is so far forth choiceworthy; that it protects or enhances life or health provides a reason sufficient for doing it, though not necessarily a reason that morally justifies doing it” (Boyle, 2002, 79). The NIH anticipated that gametes and embryos could be obtained from the following sources: Women/couples in IVF programs, women undergoing scheduled pelvic surgery, women undergoing pelvic surgery for research that involves transfer of the resulting embryo for the purpose of establishing a pregnancy, women who are deceased provided that the particular woman had not expressly objected to such use of her oocytes and that the next of kin has consented (NIH, 1995). Donum Vitae spoke to IVF and cloning as well: “Techniques of fertilization in vitro can open the way to other forms of biological and genetic manipulation of human embryos, such as attempts or plans for fertilization between human and animal gametes and the gestation of human embryos in the uterus of animals, or the hypothesis or project of constructing artificial uteruses for the human embryos. These procedures are contrary to the human dignity proper to the embryo, and at the same time they are contrary to the right of every person to be conceived and to be born within marriage and from marriage. Also, attempts or hypotheses for obtaining a human being without any connection with sexuality through ‘twin fission,’ cloning or parthenogenesis are to be considered contrary to the moral law, since they are in opposition to the dignity both of human procreation and of the conjugal union” (Donum Vitae, 1987). As Courtney Campbell documents this Jewish position: “Human beings have a command and challenge from God to use their rational, imaginative, and exploratory capacities for the benefit and health of humanity. Judaism affirms that human beings have inherent worth as creatures created in the image of God, and the Talmud understands human beings as partners with God in the ongoing act of creation. In their unique role, persons receive a divine mandate for stewardship and mastery, which encompasses a very strong emphasis on use of medical knowledge and skills to promote health, cure, and heal” (Campbell, 1997, D29). According to the British Medical Journal, the United Kingdom has begun granting embryo research licenses. As Mayor documents, human embryonic stem cells are useful because they are very primitive – they have the potential to develop into any type of cell in the body. Stem cell therapy is believed to be effective in treating diseases such as diabetes and Parkinson's, but it has been difficult to produce enough cells to treat even one patient (Mayor, 2002). The American Academy of Pediatrics Committee on Pediatric Research and Committee on Bioethics has also recently endorsed human embryo research: “Recently, several investigators have successfully isolated and cultured pluripotent stem cells from frozen human embryos donated by couples who had previously undergone in vitro fertilization and whose additional embryos were no longer clinically needed. Concrete benefits for children resulting from pluripotent stem cell research with human embryos are anticipated, including treatments for spinal cord and bone injuries, diabetes, primary or acquired immunodeficiencies, cancer, metabolic and genetic disorders, and a variety of birth defects. Research with human embryos that involves drug or toxin testing could benefit children suffering from toxicities of drug treatment and environmental pollutants as well as prenatal drug use disorders, such as fetal alcohol syndrome. Research using material derived from embryos also could be used in the study of normal and abnormal differentiation and development, which could benefit children with birth defects, genetically derived malignancies, and certain genetic disorders. An important long-term benefit of research using human embryos can be found in the field of teratology. Experiments that involve exposing pregnant mice to a teratogen at specific times after mating and observing the resulting defects have demonstrated that early exposure can result in very specific developmental defects. Other research on mouse embryos has advanced the ability to evaluate

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gene function in the early embryo. In the future, it may be possible to combine these approaches to obtain important insights into teratogenesis in humans. Specifically, there is the future prospect of studying the expression of specific genes in embryonic cell lines exposed in vitro to teratogens. Such research could potentially provide insights into the approximately 40% of anatomic defects in infants for which there are currently no explanations” (2001, 814). On the strict secular sense of being a person see Engelhardt, 1996, 135ff. While traditionally Christianity always condemned suicide and assisted-suicide, as with abortion many contemporary Christians have begun following secular bioethics in adopting this non-traditional stance. In one survey of Protestant pastors 17% supported laws in favor of assisted-suicide, with over 33% of those surveyed who were also associated with the National Council of Churches in favor (Christian Century, 2000, 948-949). According to Frasen and Walters, if quality of life is sufficiently minimal, assisted-suicide may be permissible since “…the traditional concept of life after death would seem to question the value of eking out every moment of life when the whole of existence goes far beyond temporal death. The Bible portrays a God who values quality of life” (2000). Or as Karen Lebacqz argues: “And yet I am also a Christian. I know that death is not the last word, not the greatest evil. Failure to live, to care, to enact justice, to be in proper relationship – those are greater evils. Death can serve evil or it can serve the values of life. As a way of bringing about death, active euthanasia can serve evil or it can serve the values of life. When it serves the values of life, it can be morally justified” (1998, 667). Episcopal Bishop John S. Spong also favorably regards assisted suicide: “My conclusions are based on the conviction that the sacredness of my life is not ultimately found in my biological extension. It is found rather in the touch, the smile, and the love of those to whom I can knowingly respond. When that ability to respond disappears permanently, so, I believe, does the meaning and the value of my biological life. Even my hope of life beyond biological death is vested in a living relationship with the God who, my faith tradition teaches me, calls me by name. I believe that the image of God is formed in me by my ability to respond to that calling Deity. If that is so, then the image of God has moved beyond my mortal body when my ability to respond consciously to that Divine Presence disappears. So nothing sacred is compromised by assisting my death in those circumstances” (1996, 3-4). The Presbyterian Church (USA) has stepped back from absolute condemnation of euthanasia: “‘Active Euthanasia’ is extremely difficulty to defend morally. There are, however, extreme circumstances in which we may have to at least raise the question of a fundamental conflict of obligations. There is an analogy between such cases of ‘active euthanasia’ and abortions, questions that are based on the circumstances of the fetus. There is an accompanying prejudice against the taking of life in both cases, since the conflict between doing no harm and protecting from harm has reference to one and the same individual. The ambiguity of this situation serves to reinforce what has already been said about cautious and consultative decision making” (1981, 41). In response to two cases, one involving a woman who committed suicide, the other a woman with seemingly suicidal intent who sought to end all medical care so that she would die, though with treatment she would likely live another fifteen to twenty years, a Presbyterian Minister stated: “But should we not also respond compassionately to a Diane or an Elizabeth, not condemning, but valuing a different kind of courage and faithfulness?” (Bay, 1995, 35). As Robert Veatch makes the point: “Increasingly, a consensus is emerging over the underlying moral and legal principles for resolving these cases. When there is agreement that the patient is competent to make his or her own medical decisions and the treatment is proposed for the patient’s own good, the autonomous choice of the individual patient to refuse medical treatment has in every single case been found to take precedence over the desire to prolong the patient’s life” (Veatch, 1996, 120). Father Thomas Joseph’s reflections on the cosmopolitan liberal’s hostility to the traditional family are also helpful: “One of the difficulties in attempting to reinvigorate the family is one of its very strengths: families bring within them concrete substantive moral commitments. Substantive commitments divide a society. They ingrain a moral pluralism. In addition, some critics are especially concerned about the family’s connection with religious faith because of their commitments to rendering society ever more secular” (Joseph, 2002, 61). As Lord Acton (1834-1902) noted: property is the basis of liberty. It protects one’s liberty of conscience regarding the use of oneself, one’s talents and abilities. While defense of conscience may

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MARK J. CHERRY not always arise, property is always exposed to interference as it is the constant object of public policy (Acton, 1988, 572). Taxation is a powerful weapon for suppressing moral disagreement and for privileging a particular moral viewpoint. Taxing pro-life Roman Catholics for support of publicly financed abortions, for example, enhances the liberty of those who wish access to abortion, at the expense of the former. John C. Calhoun noted that “The effect, then, of every increase is, to enrich and strengthen the one and impoverish and weaken the other. This, indeed, may be carried to such an extent, that one class or portion of the community may be elevated to wealth and power, and the other depressed to abject poverty and dependence, simply by the fiscal action of the government; and this too, through disbursements only – even under a system of equal taxes imposed for revenue only. If such may be the effect of taxes and disbursements, when confined to their legitimate objects – that of raising revenue for the public service – some conception may be formed, how one portion of the community may be crushed, and another elevated on its ruins, by systematically perverting the power of taxation and disbursement, for the purpose of aggrandizing and building up one portion of the community at the expense of the other” (1992, 19). Taxing traditional Christians for support of abortion rights, civic education to support political liberalism, toleration for alternate lifestyles, and so forth, enhances the liberty of those who oppose traditional Christianity at the expense of the Christian community. The Roman Catholic Church considers abortion morally wrong both for the woman who obtains an abortion and for those who provide the service, especially doctors and health care institutions. Universal single-tier health care posses a particular difficulty because “…if the position of proabortion advocates prevails in the formulation of a national health care plan, then all Catholic hospitals will be required to provide abortions, Catholic physicians and health care workers will be required to perform or assist in abortions, and Catholic citizens and others conscientiously opposed to abortion will be required to subsidize abortion with their taxes or their contributions to a health care alliance” (McHugh, 1994, 496). As Allen Wood’s reinterpretation of Hegelian estates in terms of modern pluralistic societies illustrates: “Even within modern society, Hegel thinks there are a plurality of different social estates or positions, each with its own characteristic ethical disposition. This is part of the ‘articulation’ of modern society, which goes hand in hand with its emphasis on the principle of subjective freedom. People with different social roles and dispositions may have different conceptions of the good, and they may be equally right. What is objectively good for one social type may not be the same as what is objectively good for another type” (Wood, 1991, 375). As Locke claims, “And thus came into the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life” (1980 [1690], §47). Bernard Mandeville’s (1670-1733) “The Fable of the Bees” illustrates this ability of the market to bind together disparate secular and religious groups without the need for a shared moral viewpoint beyond the content of the agreements they themselves forge with free and consenting others: “... Millions endeavouring to supply Each other's Lust and Vanity; While other Millions were employ'd, ... Justice her self, famed for fair Dealing, By Blindness had not lost her Feeling; Her Left Hand, which the Scales should hold, Had often dropt 'em, bribed with Gold; ... And Virtue, who from Politicks Had learn'd a Thousand Cunning Tricks, ...Thus every Part was full of Vice, Yet the whole Mass a Paradise; Flatter'd in Peace, and fear'd in Wars, ...Thus Vice nursed Ingenuity, Which join'd with Time; and Industry Had carry'd Life's Conveniencies, It's real Pleasures, Comforts, Ease, To such a Height, the very Poor

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Lived better than the Rich before; And nothing could be added more” (1705).

BIBLIOGRAPHY ___. (2000). ‘Protestant pastors support death penalty,’ Christian Century, September 27-October 4, 948949. 121st General Assembly of the Presbyterian Church in the United States. (1981). “The nature and value of human life.” In: In Life and Death We Belong to God, Christian Faith and Life Area, Congregational Ministries Division, PC (USA), Louisville: Presbyterian Distributions Services. Acton, J. (1988). Ethics in Religion, Politics, and Morality. J. R. Fears (Ed.). Indianapolis: Liberty Classics. Anderson, J. K. (1982). Genetic Engineering. Grand Rapids: Zondervan Publishing House. Aquinas, T. (1947). Summa Theologiae, New York: Benziger Brothers. Bay, E. (1995). “The Christian faith and euthanasia.” In In Life and Death We Belong to God. Louisville: Christian Faith and Life Area, Congregational Ministries Division, PC (USA), Presbyterian Distribution Services. Boyle, J. (1999). “Personal responsibility and freedom in health care: A contemporary natural law perspective.” In: M.J. Cherry (Ed.), Persons and Their Bodies: Rights, Responsibilities Relationships. Dordrecht: Kluwer Academic Publishers. Boyle, J. (2002). “Limiting access to health care: A traditional Roman Catholic analysis.” In H.T. Engelhardt, Jr. and M.J. Cherry (Eds.), Allocating Scarce Medical Resources: Roman Catholic Perspectives. Washington, D.C.: Georgetown University Press. Boyle, J. (2004). “Natural law and global ethics.” In M.J. Cherry (Ed.), Natural Law and the Possibility of Global Ethics. Dordrecht: Kluwer Academic Publishers. Calhoun, J. C. (1999). “A disquisition on government.” In R. Lence (Ed.), Union and Liberty: The Political Philosophy of John C. Calhoun. Indianapolis: Liberty Fund. Campbell, C. (1997). “Cloning human beings: Religious perspectives on human cloning.” National Bioethics Advisory Committee. Congregation for the Doctrine of the Faith (1987). Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation, February 22, 1987, Vatican City. Donagan, A. (1977). The Theory of Morality. Chicago: University of Chicago Press. Engelhardt, H.T. (1996). The Foundations of Bioethics, second edition. New York: Oxford University Press. Engelhardt, H.T. (2000). The Foundations of Christian Bioethics, Lisse: Swets and Zeitlinger. Engelhardt, H.T., Jr. (2002). “Morality, universality, and particularity: Rethinking the role of community in the foundations of bioethics.” In: J. Tao (Ed.), Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Fan, R. (2002). “Moral theories vs. moral perspectives: The need for a new strategy for bioethical exploration.” In: J. Tao (Ed.). Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Finney, P. and O’Brien, P. (1956). Moral Problems in Hospital Practice. St. Louis: B. Herder Book Company. Finnis, J., Boyle, J., and Grisez, G. (1987). Nuclear Deterrence, Morality, and Realism. Oxford: Oxford University Press. Frasen, S. and Walters, J. (2000). ‘Death – Whose decision? Euthanasia and the terminally ill,’ Journal of Medical Ethics 26, 2, 121-126. Grisez, G., Boyle, J. and Finnis, J. (1987). ‘Practical principles, moral truth, and ultimate ends,’ The American Journal of Jurisprudence 32, 99-151. Grisez, G. (2001). ‘Natural law, God, religion, and human fulfillment,’ The American Journal of Jurisprudence 46, 3-36. Gunderson, M. and Mayo, D. (2000). ‘Restricting physician-assisted death to the terminally ill,’ Hastings Center Report 30, 6, 17-23. Healy, E. (1956). Medical Ethics. Chicago: Loyola University Press. Hegel, G.W.F. (1952). Philosophy of Right, T.M. Knox (trans.). New York: Oxford University Press.

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John Paul II (1993). Veritatis Splendor. Vatican City: Libreria Editrice Vaticana. John Paul II (1995). Evangelium Vitae. Vatican City: Libreria Editrice Vaticana. Joseph, T. (2002). “Living and dying in a post-traditional world.” In: J. Tao (Ed.), Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Kelly, G. (1960). Medico-Moral Problems. Dublin: Clonmore & Reynolds LTD. Locke, J. (1980) [1690]. Second Treatise of Government. Indianapolis: Hackett Publishing Company. Lebacqz, K. (1991). “Reflection.” In: R. Hamel (Ed.), Active Euthanasia, Religion and the Public Debate. Philadelphia: Trinity Press International; reprinted in S. Lammers and A. Verhey (Eds.), On Moral Medicine, second edition. Grand Rapids: Eerdsmans. Mandeville, B. (1988)[1705]. Fable of the Bees, or Private Vices, Publik Benefits. Indianapolis: Liberty Fund. Mayor, S. (2002). ‘United Kingdom grants first embryo research licenses,’ British Medical Journal 324, 7337, 562. McCormick, R.A., S.J. (1981). How Brave a New World: Dilemmas in Bioethics. Garden City: Doubleday & Company, Inc. McFadden, C. (1955). Medical Ethics. Philadelphia: F.A. Davis Company, Publishers. McHugh, J. (1994). ‘Health care reform and abortion: A Catholic moral perspective,’ The Journal of Medicine and Philosophy 19, 491-500. National Institutes of Health Embryo Research Panel (1994). “Report of the National Institutes of Health Research Panel.” Reprinted in S. Lammers and A. Verhey (Eds.), On Moral Medicine, second edition. Grand Rapids: Eerdmans. Niedermeyer, A. (1961). Compendium of Pastoral Medicine, F. Buonanno (trans.). New York: Joseph Wagner, Inc. Nozick, R. (1974). Anarchy, State and Utopia. New York: Basic Books. O’Donovan, O. (1984). Begotten or Made? Oxford: Clarendon Press. Pellegrino, E. (2000). “Testimony provided to the National Bioethics Advisory Commission.” Stem Cell Research, volume III, Religious Perspectives. Rockville, M.D.: National Bioethics Advisory Commission. Qui, R.-Z. (2002). “The tension between biomedical technology and Confucian values.” In: J. Tao (Ed.). Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Radin, M.J. (1996) Contested Commodities. Cambridge: Harvard University Press. Rawls, J. (1993). Political Liberalism. New York: Columbia University Press. Rawls, J. (1999). A Theory of Justice, revised edition. Cambridge: Harvard University Press. Spong, J. (1996). ‘In defense of assisted suicide,’ The Voice of the Diocese of Newark, January/February, 3-4. Tao, J. (2002a). “Global bioethics, global dialogue: Introduction.” In: J. Tao (Ed.). Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Tao, J. (2002b). “Is just caring possible? Challenge to bioethics in the new century.” In: J. Tao (Ed.). Cross-Cultural Perspectives on the (Im)Possibility of Global Bioethics. Dordrecht: Kluwer Academic Publishers. Tendler, R.M. (2000). “Testimony provided to the National Bioethics Advisory Commission.” Stem Cell Research, volume III. Religious Perspectives. Rockville, M.D.: National Bioethics Advisory Commission. The Ramsey Colloquium (1995). ‘The inhuman use of human beings: A statement on embryo research by the Ramsey Colloquium,’ First Things 49, 17-21. Veatch, R. (1996). “Autonomy and communitarianism: The ethics of terminal care in cross-cultural perspective.” In: K. Hoshino (Ed.), Japanese and Western Bioethics. Dordrecht: Kluwer Academic Publishers. Wertheimer, A. (1992). ‘Two questions about surrogacy and exploitation,’ Philosophy and Public Affairs 21, 211-239. Wood, A. (1991). ‘Does Hegel have an ethics?’ The Monist 74, 358-385.

CHAPTER 3

CHRISTOPHER TOLLEFSEN

NATURAL LAW AND MODERN META-ETHICS A Guided Tour

1. INTRODUCTION It is no longer news that natural law theory has undergone a revival in the past three decades or so, largely, but not exclusively, in consequence of the work of Germain Grisez, John Finnis, and Joseph Boyle. Their work is often referred to as the “New Natural Law Theory,” for reasons I will shortly discuss. Despite much criticism, both within and without the natural law tradition, their work has made lasting contributions to contemporary moral philosophy.1 This is most clear in the areas of normative ethics and applied ethics. In the former area, the new natural lawyers have mounted sustained, and influential attacks on consequentialism, and have also deepened our understanding of Kant’s relationship to the classical tradition of moral philosophy extending back to Aquinas, Aristotle, and Plato (see Grisez, 1978, 21-72; Finnis, 1991; 1983a). More positively, the new natural lawyers have articulated, not just first principles, but intermediate principles, so-called modes of responsibility, from which more particular conclusions may be derived. This has greatly aided our understanding of the overall structure of practical rationality (Finnis, 1983a; 1983b). It has also paid obvious dividends in applied ethics, which has been a major focus of the new natural law. Grisez’s monumental work Difficult Moral Questions is one example of the success of the new theory in providing practical guidance on particular issues (1998). This is not to deny that many of the particular prescriptions and prohibitions derived within the new theory have been subject to criticism.2 But this has generally been good for the field of applied ethics, which has not always been known for rigorous philosophical argumentation and disputation. With one glaring exception, somewhat less attention has been paid to the contributions the new natural law theory has made, or is capable of making, to various issues of meta-ethics. The exception is, of course, precisely that issue which, to some, justifies to adjective “new” when discussing the work of Grisez et al., namely, the steadfast refusal of its proponents to derive normative claims from 39 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 39—56. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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theoretical claims about human nature. By contrast, a willingness to flout Hume’s injunction against deriving ‘ought’ from ‘is’ has been considered the “gold standard” for natural law theory by some. I think that the new natural law theory is on sound footing in its adherence to Hume’s injunction, but, although I shall briefly discuss the naturalistic fallacy, it is not the main focus of this paper. For I think that on many other meta-ethical questions discussed in the last thirty years, the new natural law theory has much to offer. In what follows, I shall first briefly sketch the contours of the new theory, and indicate why I think its Humeanism is beneficial. I shall then outline four further areas of meta-ethical inquiry and difficulty, and show how the new theory delivers plausible solutions, answers, and analyses in these areas, by contrast with other views. 2. GOODS BASED NATURAL LAW The new natural law theory is grounded in a view about basic human goods and our apprehension of them. All action is understood on this theory to be action for the sake of some good or goods, but not all goods may be said to be basic. Some, such as money, or medicine, are clearly instrumental to the achievement of other goods. But the chain of explanation or justification for action cannot proceed to infinity: some goods must be pursued not for the sake of some other good, but for their own sake. The new theory identifies these goods, more or less, as life and health, knowledge and aesthetic experience, work and play, friendship and social harmony, personal integrity in its various aspects, and harmony with whatever source of transcendent meaning there may or may not be. Recently, the new theorists have identified marriage as a basic good different from the rest (see especially Grisez, 1994, Chapter 9). All these goods are understood to be aspects of human well-being in a basic sense: human beings just are better off as knowing than as ignorant, as able to play creatively than as stuck in grinding routines, and so on. No one good comprises all aspects of human well-being, nor is there an objective hierarchy among them: they are incommensurable. Since intelligible human action must be aimed at some good, either instrumental or basic, these goods constitute the fundamental conditions for intelligible human action, even morally wrong action. So they are, in addition to being basic, pre-moral. Crucial, and controversial, to the new theory’s account of these basic goods is the theory’s moral epistemology. As basic, the fundamental goods are not inferred to be good from some other source of knowledge; but as good, and thus action guiding, they are not known by theoretical reason but by practical reason. This latter contrast may be understood by reflecting on two different sorts of questions. The first, questions about how the world is, are theoretical. One wants to know the answer to a question, and the rightness of one’s answer will be determined by how things actually are. By contrast, in a second form of question, one wants to know what to do, how to act. To the extent that reason provides an answer to these questions, it

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cannot be based on what is in fact the case, for what reason prescribes is not yet the case. Reason offers us possibilities for us to make true, make the case, by acting. The claim of the new theory is that reason, in its apprehension of the basic goods, is operating in a fundamentally practical mode, offering us possibilities for action. The basis of the new natural law theory is thus a practical reason which is significantly autonomous from theoretical reason and from, in particular, theoretical claims about human nature. The new theory is not naturalistic, nor does it derive ought from is; it is in this respect more Humean than even Hume was. Here, the basic goods framework may be seen to overlap, in ways which will be crucial for this paper, with a vexed issue of contemporary meta-ethics, the question of the nature of reasons for action. The moral agent, seeking for an answer to a practical question seeks reasons: considerations on which he may choose to act. Goods offer precisely the sorts of considerations that can be reasons for action: by promising some benefit, some aspect of human well-being, they provide a consideration in light of which some action or actions may be intelligibly chosen. So, one might say, on the one hand, that the foundation of the new theory is in basic goods, or that it is in practical reasons. What of the transition from pre-moral goods or reasons to moral reasons for action, i.e., reasons which are in some way defeating of other possibilities? Unlike consequentialism, the new theory is not maximizing: it does not tell us to bring about the most, or the highest, or the greatest amount of good. Rather, the new theory recognizes, in the multiplicity of goods, aspects of human fulfillment, a problem for reason: how can a plurality of goods be pursued, if maximization is impossible, in a way that is reasonable?3 I have suggested elsewhere that a guiding norm of reason in answering this question is a norm of completeness and unity (Tollefsen, 1999, 57-70). But completeness and unity may not here be gained by spelling out some concrete whole to be achieved in action. Rather, the unity envisaged is that of an ideal, an ideal identified by the new theorists as “the ideal of integral human fulfillment” (Grisez, Boyle and Finnis, 1987, 128). The first moral principle, then, directs us to act in ways consistent with this ideal. This consistency will be attained only by actions that do not violate any of the goods, in oneself or in others, and by actions that are rationally ordered so as to bring some systematicity in the pursuit of goods into one’s own life, and into one’s life in community with others. So, for instance, on the one hand, destructive acts, such as murder, are ruled out; but on the other, wanton, dilettantish, selfish, or lazy acts are likewise ruled out as insufficiently open to the ideal unity of human fulfillment. This account, sketchy as it is, touches on only some of the most basic aspects of the new theory, but it should set the stage for a general discussion of that theory’s relation to the various problems of late twentieth century metaethics. 3. THE IS-OUGHT ISSUE The first to be addressed is that over which the most ink has been spilled.4 On the new theory, basic goods, basic reasons for action, are known non-inferentially by

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practical reason; they are not inferred from an understanding of human nature, human function, natural human desires, and so on. In this the theory seems uniquely modern, a vice for those interested in returning to some pre-modern view of ethics. In a standard picture, on such a pre-modern view, it is possible to identify by a theoretical study of the human being what is natural for the human being, and thus fulfilling. ‘Ought’ is, on this view, already embedded in the ‘is’ of human nature.5 I do not wish to spend too much time over this. I will simply raise two difficulties which, it seems to me, opponents of the new theory have never sufficiently addressed. First, on any account of human nature as it is, there will be any number of tendencies, dispositions, and so on, of conflicting natures, even in one individual. Moreover, there are clearly tendencies and dispositions towards actions traditionally condemned by natural law theorists. Opponents of the new theory must, therefore, have some way of identifying those dispositions which are normative for us, i.e., give us genuine, as opposed to spurious, reasons for action. But it is precisely by our theoretical study that we arrive at this problem: the problem is in human nature. It cannot, it seems, be simply by closer attention to that nature that the normative question gets resolved. Rather, one must reflect on the objects of the various dispositions and inclinations and ask oneself whether those objects are genuinely fulfilling or not. But this is to ask a practical question, and to give an answer that intends to guide human nature, not to reflect it. It seems thus to confirm the truth of the new theory’s view of practical reason. Second, it is a condition of genuine basic reasons for action, that they be reasons for all agents. For if some reason is a reason only for one agent, or some subset of agents, then it will be impossible for agents to recognize other agent’s reasons as reasons, and hence to recognize other agents as agents. Such recognition, however, is clearly a necessary condition for cooperative action, and for genuine community. So the requirement that reasons be general seems, as Thomas Nagel argued some time ago, to be essential (1978). It is, again, unclear how any theoretical study of the human being can honor this requirement. For what seems to be most real in the world which theoretical reason addresses, are particulars, concrete substances. True, we desire, and indeed need to know such concrete particulars under universal concepts. And these universal concepts are not simply collections of similarities, but rather constitute genuine understandings of the natures of things. But human nature exists only in the particular. If reasons for action are already embedded in human nature, then, while our understanding of the reasons might, through abstraction, attain a level of generality, the reasons themselves will be, in their reality, particulars, particular with the natures of which they are aspects. Thus the generality requirement will seem insufficiently met. The new natural law theory avoids these difficulties. Goods as reasons are directly apprehended by practical reason as good for all, as reasons for all agents. They do not, as Grisez, Finnis, and Boyle put it, have any “proper names attached to them” (1987, 114). They may thus serve both to offer genuine guidance as against the spurious guidance of some natural inclinations, and to offer the same guidance to all practical agents. All agents share the basic goods as reasons in common. In

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practical reason’s awareness of these goods, therefore, is also a ground for a common recognition of all human beings as existing in a form of natural community with the potential for genuinely cooperative action. We should note what is, I think, the most important ground of the new theory’s success here: its focus on basic goods as basic reasons for action. Precisely as goods, practical reason is able to identify the objects of some inclinations as giving normative practical guidance. But, precisely as providing general reasons for action for all agents such goods constitute a common framework for the practical reason of all agents. This close connection of goods and reasons will be important in what follows. 4. REALISM AND ANTI-REALISM A second cluster of issues revolve around questions imported from more general considerations about realism and anti-realism. As the landscape of recent work on realism and anti-realism has been laid out by Crispin Wright and John Haldane, three taxonomic paradigms dominate the discussion (1993, 3-12). Realism and antirealism can be characterized by their relation to questions of (A) warranttranscending truth conditions, (B) expressivism or anti-expressivism, or (C) J.L. Mackie’s error theory. Considered as taxonomies, these groups simply indicate positions one might take on a variety of issues in metaphysics or meta-ethics. But each anti-realist position, in the realm of moral philosophy, actually is driven by a meta-ethical difficulty which realism is supposed to face. So the focus in what follows is on the meta-ethics, and the realist position will follow. 4.1 Semantic Anti-Realism Michael Dummett has characterized the difference between realism and anti-realism generally as a difference over what constitutes the meaning of an assertion (1978, 145-165). The realist, on Dummett’s view, must be committed to the claim that the truth conditions of any assertion are potentially evidence transcendent. That is, it is nothing about our verification procedure of a sentence that gives it is meaning, but some state of affairs, which, being entirely independent of our evidence procedure, might in fact escape any such procedure’s net. By contrast, Dummett, taking a cue from the Wittgensteinian view that meaning is use, has the antirealist committed to a view of the meaning of an assertion as determined by the conditions under which the assertion would be warranted. It is a consequence of this view that where warrant would be impossible, there might be no truth of the matter. It is thus not the case that every assertion is either determinately true or determinately false. Now, it seems to me that if Dummett’s evidence transcendence is necessary for realism in ethics, then one would certainly not want to be a realist in that area. Ethics, we might think, simply is for us, in a way that perhaps not all aspects of the world are. What use would there be in ethical truths that were destined always to lie beyond our ken? Moreover, moral facts that were entirely independent of our

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cognitive capacities would also seem to be radically beyond our motivational domain as well: if that independent of us, why should we care about them? How could they motivationally get a grip on us? Happily, the new natural law theory is not realist in a Dummettian sense. For indeed, the basic goods are precisely reasons for us, and our most basic reasons at that. As they constitute the fundamental conditions for intelligible human action, it literally makes no sense to suppose that we could pursue an understanding of these reasons and fail entirely in that pursuit. The pursuit itself is shaped by basic reasons for action, including the good of knowledge. In what way then is the theory anti-realist? In no way that could matter, I suggest. The new natural law theory is tied in appropriate ways to the realm of the human by being rooted in reasons for human action. This evidences no deficiency as regards objectivity, however. The goods are not based on subjective preferences or desires, but neither are they potentially transcendent of human inquiry. The new theory is realist in an un-Dummettian sense. 4.2 Internalism and Externalism (I) Contemporary meta-ethical discussions of motivation have been dominated by two related but different issues, both, confusingly, given the same name, the problem of internalism and externalism. The first of these issues will bring us to the second, and to the expressivist-descriptivist characterization of the realism-anti-realism debate. It is, as Michael Smith suggests, a truism that motivation follows moral judgment (1994, Chapter One). If we judge that it is obligatory to ), then, other things being equal, we are motivated to ). Meta-ethical positions which share this view are called internalist. By contrast, if one held that it was possible to assent to a moral judgment and be in no way motivated, one would be considered an externalist about motivation. Within internalism, however, there is a great deal of variation. For one popular argument for moral anti-realism depends precisely on the internalist constraint. How, the argument goes, can a factual or descriptive statement, ever motivate us? But, if it cannot, then no moral statement can be strictly factual; it must instead be an expression of our motivational springs – the passions, for example. It is thus that the second realism-antirealism paradigm has been generated: in order to remain an internalist, must one be an expressivist? Or can one be a descriptivist? The new theory’s answer to this, of course, brings us right back to the is-ought problem, so I do not wish to dwell on it. Suffice it to say that the theory’s answer is: neither. It is not expressivist – reasons for action are cognitively accessible. But the theory acknowledges that reasons are accessible to practical, not theoretical reason. So the theory dissolves the second of the realist – anti-realist paradigms. Still there is an interesting question remaining in the internalism-externalism debate. Of late, that debate has been concerned with an analysis of the nature and status of agents who seem able to assert some moral truth, but to also remain unmoved by that reason. Does the amoralist, such as, for example, Thrasymachus is sometimes thought to be, not truly make moral assertions? Or is some form of

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externalism true after all? As David Brink puts it, “The problem for internalism is that it does not take the amoralist’s challenge seriously enough” (Brink, 1989, 47). I think this problem is indeed interesting, because it tells us something about the nature of practical thought. As prolegomena to discussing this, however, I would first point out that much of the discussion of internalism has been marred by confusion over the word motivation, and the claim that someone who assents to a moral claim must be motivated in a certain way. For what some take this to mean is that the agent does, therefore, act in accordance with the claim, absent weakness of will. But we should not accept anything so strong. What I mean is that anyone who accepts a moral claim has a reason, available to them, for acting in accordance with the claim. They may have, and act on, other reasons as well. But anyone who genuinely assents has, I claim, a reason cognitively available to them for action. The second prolegomenon actually amends part of what was just said. For I think we need something somewhat more robust than “assent to a moral claim.” Suppose that someone simply assents – says “yes” to the claim that P, but for no good reasons. If “assent” is like that, then we will not be surprised to find that it compels neither belief nor motivation. But this would make it too easy to defeat by an externalist. The issue must rather involve the motivation of one who assents to P not simply as a matter of convention, or because he feels like it, but for some reason related to the reason for P’s being true. If amoralism were to require externalism, then, it would have to be possible to assert a moral claim for some reason related to the reason for the claim’s being true, and yet have no reason for action cognitively available and able to play a motivational role. This seems genuinely to be a possibility on some moral theories: for instance, theories in which some action is immediately intuited to be required by duty. Surely it is possible for an agent to fail to see why this property, “required by duty,” though true of an action, gives the agent a reason to perform the action. But any such view would be radically implausible in the following way: there would be no relation between what made a moral claim, P, true, and what gave the agent a reason to obey P. On the other hand, we do not want an account of genuine assertion of a moral claim so strong that it makes it impossible for someone to be amoral in some sense. What we need from a theory of morality is a way of understanding the nature of amoralism which does not put the amoralist completely out of the moral motivational field, so as to generate externalism, but does not render amoralism unintelligible, or simply stupid. But it seems that the structure of morality as articulated by the new theory can accommodate both requirements. For anyone who genuinely assents to a moral claim with reason, i.e., not just blindly, or because it is what is conventionally asserted, must recognize, in however dim a way, some relationship between the proscribed or prescribed action and some human good or goods. And to recognize a good as good just is to have it available to play a motivational role. How, then, is it possible for someone to assent to a moral claim in the sense I have distinguished and at the same time be recognizably amoral? I want to suggest that amoralism can admit of depth, the measurement of which can correspond to different degrees of insight into the point of morality.

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A shallow amoralist is someone who is quite frankly more concerned with goods as they pertain to him, than as they pertain others. Shallow amoralism is a form of egoism, resulting from an exclusively one-sided focus of attention on the goods. The amoralist can willingly assent to moral norms, but privileges the motivational force of the goods which ground moral norms insofar as those goods bear upon his or her own life. Such amoralism is certainly possible, but it is no problem for the new theory. According to the new natural law theory, goods are goods for all, but precisely for this reason they are goods for me as well. Amoralistic choices are still made from within the framework of human goods, although they are narrowly pursued. Still, precisely because the source of less narrow, more “moral” action resides in the very same goods pursued by the amoralist selfishly, the shallow amoralist always has cognitively available to him or her a reason for acting on behalf of those goods in others and, through a change of focus, could certainly come to be motivated by the goods insofar as they bear upon the lives of others. Internalism in the shallows is preserved. But one could also be amoralist in deeper and more systematic ways. A deep amoralist, for example, could be skeptical about the whole edifice of morality, worrying, for example, that in the end there is no overall point to a fair, rather than a biased pursuit of goods. Such a question should be allowed to an agent even if that agent recognizes the source of individual moral oughts in a relation between particular goods and particular actions. Granted that individual moral actions serve to preserve goods with no particular agent’s name attached to them, still, what is the point of the whole institution of morality? Why should morality matter to me? Questions about the point, and further point, of morality, can only be solved within the sort of tiered eudaimonistic framework that the new theory provides. For what all such degrees of amoralism require, to be compatible with internalism, is that an agent be able to recognize some point to moral action, but not necessarily the whole point. It remains a stumbling block for Kantianism and Utilitarianism that there seems no ultimate answer to the “Why be moral?” question. With its initial grounding in the notion of the ideal of integral human fulfillment, however, and its further grounding in a possible relationship to the divine source of meaning, the new theory of natural law provides a series of answers to “Why” and “So what” questions that are not available to theories of less depth. It is important to see just how the tiered framework works and how that framework may be misunderstood. If the eudaimonistic framework is one which understands human flourishing in terms of having and having more, then there is in principle no possible answer to the amoralist: it is clear that morality requires, at times, having less, giving up on one’s pursuit of some substantive good in favor of some other’s good. But the new natural law understands human flourishing as primarily an existential notion: one must will in accordance with an ideal of harmony not simply within oneself, but harmony with others, including God. Moral wrongdoing ruptures these forms of harmony and is thus essentially disruptive of one’s own good. This is likely to be missed by one who sees his relationship to human goods primarily in terms of having. Such an agent can see the relationship between intelligible goods and moral demands – he can thus assent to moral norms. But he

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thinks of these norms as taking away from one and giving to another, and thus as standing in no genuine relationship, ultimately, to his own good. So, he asks, what is the point of morality. The new theory does not attempt to answer this by giving the point in terms of having more or less of some goods, but in terms of a series of forms of harmony which are essentially constituted by acts of will. Amoralism is thus admitted as a genuine phenomenon, without its leading to externalism. But how does amoralism differ from simple immorality? I believe it differs primarily by setting an agent’s immoral choices within a particular theoretical framework. Ordinary immorality surely occurs as a result of straightforward temptation – the pull of desire inclines us to what we know is wrong, and we knowingly choose this, rather than some more fulfilling good. Immoral agents, like amoral agents, recognize that what they want would be excluded by moral choice, and that moral choice is thus in one sense limiting. But the amoralist refuses to acknowledge the ways in which moral choices are also nonlimiting, liberating. Amoralism reflects the influence of false theory in the domain of practical reasoning. It should, therefore, come as no surprise that many of the amoralists chosen to populate philosophical examples are themselves philosophers of some sort or other: Thrasymachus and Nietzsche, for example. 4.3 Internalism and Externalism (II) Happily, this account gives us entry into the second internalism/externalism debate, which can be dealt with briefly. Bernard Williams has, in a broad defense of a Humean account of motivation, argued that there can be no reasons for an agent which are not already a part of the agent’s subjective motivational set (1981a, 101113). It is thus, on Williams’s account quite possible that, if a moral reason is not linked to some de facto desire of an agent, then there might be no sense in saying that that reason is a reason for the agent. We should again, as in the Dummett case, accept Williams’s claim, but not his explanation. It is true: if a moral reason bears no relation to the structure of an agent’s motivation, then it is idle; but on the new theory, all moral reasons bear a relationship to each genuine agent’s motivational set. What must be noted, as above in the discussion of amoralism, is that in many cases, the full nature of that relationship will be opaque – a possibility Williams also recognizes. Thus, the phenomenology of the experience of coming to understand that there is a moral reason against )-ing, or the experience of coming to understand that the moral reason against )-ing fits into a form of life that makes sense as humanly fulfilling, can seem to support the form of externalism Williams argues against. The new theory’s grounding in basic goods as reasons allows us to circumvent Williams’ Humeanism, while the complexity of its account of full practical reasonableness explains the appearance of Williams-style externalism, that is, of objective reasons not immediately motivating for an agent, without accepting that such reasons really are outside an agent’s motivational sphere.

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4.4 The Error Theory This brings us to the final construal of the realism/anti-realism debate, Mackie’s error theory (Mackie, 1977, Chapter One). According to Mackie, moral discourse is not expressivist, as, e.g., Stevenson argued. It genuinely asserts moral claims. Unfortunately, all these claims are false, because the moral properties which are thought to be truth makers for these claims do not exist. Such properties are shown not to exist by reflecting on their “queerness.” For such properties, on Mackie’s view, would have the strange characteristics of being both action guiding and necessitating. It is unnecessary, at this point, to go over again how the new natural law’s account of morality avoids Mackie’s criticism. What it is important to note is that all three construals of realism and anti-realism, and the meta-ethical problems which generate them, arise from an inability of contemporary moral theory to conceive of a plausible account of reasons for actions and of the structure of practical reasoning based on those reasons. Reasons for action must be either desires, or moral properties, or warrant transcending properties, or what have you. But desires are contingent, properties admit of no depth, and warrant transcending moral truths are idle for a human morality. By contrast, on the new natural law theory, reasons are cognitively apprehended by all genuine agents, and some moral truths are thereby easily seen, as Aquinas wrote, with little difficulty. But the basic reasons for action can be more or less reasonably pursued, and “more or less reasonably” admits of great degrees of depth. Only by penetrating further into the eudaimonistic structure of morality do agents come to a fuller appreciation of why moral demands bind, and why it is reasonable to act morally. Still, if the moral judgments are not made true by queer properties, then there remains a question concerning the nature of moral truth. I postpone addressing this question until later, however. For the moment, it suffices to point out that the new theory seems robustly realist without running into the various implausibilities that realism is routinely accused of, and without failing to have explanatory power with regard to various issues of moral motivation. 5. ONE OUGHT TOO MANY The emphasis on depth has helped us to account for the phenomenon of amoralism, and of Williams-style “external reasons” – moral reasons whose legitimacy is not immediately obvious to an agent. But depth can seem threatening from another direction. For if it is in the deep structure that agents discover the full reasonableness of moral action, then we seem to distance an agent’s motivation from more immediate concerns than we sometimes think should be foremost in mind. We give the agent, in deciding what to do, one thought too many. This concern was originally articulated in a slightly different context by Bernard Williams. Suppose, when a ship is going down, a man can save his wife, or someone else, and he saves his wife. There is a tendency, Williams writes, to seek a moral principle that

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can legitimate his preference, yielding the conclusion that in situations of this kind it is at least morally all right (morally permissible) to save one’s wife…But this construction provides the agent with one thought too many: it might have been hoped by some (for instance, by his wife) that his motivating thought, fully spelled out, would be the thought that it was his wife, not that it was his wife and that in situations of this kind it is permissible to save one’s wife (Williams, 1981b, 18).

This objection could be raised against the new theory: the new natural law certainly holds that if, e.g., it were unfair, in some circumstance, for an agent to save his wife (perhaps he could save his two small children instead), then he should not save her. So if it is permissible to save, then it cannot simply be because she is his wife. Moreover, variations of this objection can seem even more appropriate to the new theory. For even if it is permissible, or even perhaps obligatory, to save the wife, this will, given the account of moral depth outlined above, be something thought worth doing within a wider motivational structure that makes reference to, inter alia, integral human fulfillment, participating in God’s divine plan, or building up the kingdom of heaven. Do these give moral agents one, or more, thought too many? Finally, does the emphasis on goods, rather than persons suggest that the agent cannot even be motivated by the thought that it is his wife, but must rather be motivated by the thought that by saving his wife he protects the goods of marriage and life? Alan Donagan, for example, suggests that it is a virtue of Kant’s ethics that its fundamental principle of respect for persons as ends in themselves refers to persons, rather than to goods of persons (Donagan, 1977, 65). These objections give us opportunity to clear up several misunderstandings. One concerns the relationship between goods and persons; another concerns the nature of certain means-ends beliefs and motivations; and one concerns the nature of the requirement of impartiality in moral theory. Let us begin with the third charge, that in its focus on human goods, the new theory ignores persons, or, at any rate, introduces one thought too many in the motivational structure of an agent who wishes to save some person. The first move to make in defense is to explain what relationship the theory posits between goods and persons, the second to show how this relationship is the only plausible option. Basic goods have a dual nature on the new theory. As Grisez, Finnis and Boyle put it: Each of the basic human goods is both a principle of practical reasoning and an element of integral human fulfillment. As a principle of practical reasoning, a basic human good can provide for choices a reason requiring no further reasons. As an element of the fullbeing of persons, its instantiations are intrinsic to persons and fulfill an essential aspect of human nature (i.e., part of the field of possibilities characteristic of human beings) (Finnis, Boyle, and Grisez, 1987, 304).

In their dual nature, then, basic goods serve not simply as reasons for action; they further indicate ways in which human beings can be made better off, and perfected. This, indeed, is the source of their ability to serve as reasons for action – the interest we can take in them is an interest in the perfection and well-being that they promise. It follows that attention to human goods is not thereby a failure of attention to human beings, as Donagan suggests. Moreover, the basic goods suggest an answer to a question inevitably raised by the Kantian notion of respect: just what is the

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content of the notion of respect for human persons? Basic goods give us an avenue into an answer to this question: human beings can be respected or disrespected only insofar as their good is promoted or violated. Thus basic goods are our source of understanding of the notion of respect. A stronger defense can be mustered, however, against Donagan and all Kantian critics. For it is not the case that the basic goods framework is an alternative to a more direct requirement of respect for persons. There can be no meaningful account of respect for persons which is not significantly goods based. The reason for this is that persons as they exist are actual; and no action for, towards, or by persons, affects them in the actuality that they have at the time of action. Nor, clearly, can any such action affect the past of a person. Action can only have a bearing on a person as that person is considered in some way “not yet.” If the person’s life can be taken, it is only the life that the person has not yet lived; lies deprive a person of a truth he does not yet have; and so on. The notion of respecting a person directly at the time of action is not just a notion with insufficient content; it is a notion that makes no sense. Nor is there some other framework of what the person is not yet that can make sense of respect: human beings can be benefited and harmed only in respects in which they have some potentiality; but benefits not yet actualized are goods to be pursued, and harms are their opposite. A goods framework, and only a goods framework, is necessary to make sense of the notion of respect for persons. If there is one thought too many, it is not here.6 What of the further depth that is present in the theory? If a broader eudaimonism is necessary to answer the “Why be moral?” question, has aid for one’s wife, or any other morally required assistance or forbearance been subordinated to the broader framework of morality? To answer this question, I want to make a suggestion about the structure of motivation by drawing a parallel to the structure of belief. Consider the belief that the cup is on the table, a belief whose immediate justification is obtained by looking. Cartesian skeptics remind us that there are many ways in which this belief could turn out to be false, and under some circumstances, we might take some of those ways into account, checking to see that we were not presented with a very realistic painting, rubbing our eyes, recalling that indeed, we have not just been on a drinking binge. Under such circumstances, we might then use the absence of these defeaters as further reasons to believe that the cup is on the table. They might enter into our reason giving process, perhaps even as premises. Still, it is obvious that a great many of the things that have to be believed true in order for our belief that the cup is on the table to be justified do not enter as explicit premises into the reason giving process at all. We believe that our senses are generally accurate, and crucially, we believe in the existence of an external world available to us in our knowing capacity. But these beliefs are clearly not premises justifying our belief about the cup. Rather, these truths operate in the background of all our beliefs, providing a framework within which individual beliefs are rational. But it is not a framework that has to be checked, nor articulated with any regularity. It would, therefore, be a mistake to make the following sort of objection to relying upon such a framework in believing that the cup is on the table:

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We might seek some overarching ontological or epistemological principles that could legitimate this belief, yielding the conclusion that in situations of this kind it is at least doxastically all right to believe the cup is on the table. But this construction provides the believer with one thought too many. It might have been hoped that his justifying thought, fully spelled out, would be the thought that this cup is on the table – he sees that it is, not that he sees that it is, and in situations of this kind it is acceptable to believe the evidence of our senses.

Given the way in which background doxastic frameworks operate, the scenario is a straw man, and so, I claim, is the one thought too many argument in the context of moral eudaimonism. The depth of morality is not a depth invoked as a premise to each and every particular conclusion, but as a framework within which moral claims can be made, make sense, motivate. Practical reason does not, in every given instance, say: if I do this, this will promote integral human fulfillment, a creative relationship with God, the building up of the kingdom of heaven. Rather, within a framework that takes those further points of morality as underlying the rationality of morality, we typically see that an action is right or wrong because of some sort of relationship to one or more human goods – and this, as I showed above, is itself a direct way of respecting persons. This answer might seem to suffice with regard to at least some types of moral judgments, for example, those asserting the impermissibility of any direct action against a good. But some moral judgments concern relations of actions to goods that seem, as it were, more distant from goods and persons – judgments about fairness, for example, which necessarily take into account agents other than those with whom an agent is directly dealing. And this seems partly the source of Williams’ specific complaint. Is there one thought too many in taking into account what fairness requires? It is difficult to see how this thought can be sufficiently articulated without making it either a repugnantly selfish demand on the wife’s part, or a moral complaint. On the one hand, if the wife is simply demanding that no moral considerations ever enter her husband’s head, but that he should simply be motivated by direct concern for her in all cases, then the example is weak: the selfishness of someone who has abandoned morality is no objection to morality itself. On the other hand, why should the wife hope that x, rather than y, was her husband’s motivating thought without that hope being simply selfish and unreasonable? Perhaps she feels that she is owed the consideration, and that too much consideration has, or may have, been given to someone else (another passenger) or something else (morality). But this seems itself to be an objection grounded in a concern for fairness. If the wife is owed, as against others, certain forms of consideration, then fairness to the wife, and not just the wife’s welfare, is expected to play a role in the husband’s motivation. It is important to point out, so as to avoid any red herrings, that of course the new natural law theory does allow for one’s concerns to be focused on various individuals and projects to the exclusion of other individuals and projects. Commitments to a spouse and children, to a career, to a church, mark out a sphere within which preference may and must be shown. Fairness, on this theory, is not

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simply an impersonal impartiality, in which all are nameless and faceless. Rather, what is fair in a context is determined in part precisely by the commitments one has made: who would not think that, other things being equal, it was fair for anyone, not just this individual, to save his spouse rather than a stranger, when only one could be saved? Must, then, the practical reasoning of the husband be represented in the conjunctive way specified by Williams – she is my wife and it is fair to rescue her? Possibly sometimes, but I suspect not nearly always. Fairness, or justice may surely be possessed as a virtue which allows one to see, straight off as it were, that a certain course of action is not ruled out as unfair. There need be no positive thought on the matter of fairness, any more than there is a positive thought that no other mode of responsibility is hereby violated. It may, in some cases, simply be obvious to the virtuous agent that these modes of responsibility are not in play. It is not always so obvious, however, and in these cases, where there is also time for reflection, there can, I think, be no objection to the iteration: she is my wife, and indeed, it is fair. As shown above, no genuine objection to this can get off the ground, without manifesting either a grossly selfish perspective, or the moral point of view itself. I conclude, then, that the new natural law permits and requires precisely as many thoughts as is appropriate; it does not have, as the Emperor is reported to have said to Mozart, “too many notes.” 6. MORAL TRUTH The final issue that I wish to address, somewhat briefly, is the issue of moral truth. Contemporary moral philosophy and meta-ethics has had a terribly difficult time with this; not surprisingly, this will be seen to stem from various other difficulties discussed already. The obvious problem generating discussions of the nature of moral truth goes back to the is-ought difficulty. If it is implausible to suppose that moral judgments are about facts, then a correspondence theory of truth will be ruled out. But it is difficult to see what other possibility is available that will not leave moral judgment too unconstrained. For the first move, in a discussion of the difference between practical and theoretical truth, is to say that in the latter, the mind conforms to the world, but in the former, the world conforms to the mind. Practical truth is thus to be found in action, when the world is made to conform to the mind. To make this idea more intelligible as an account of practical truth, rather than simply “success,” we can consider what successfully completed action is successful at. I suggest that, in a way analogous to theoretical truth, successfully completed action is a successful resolution of a question. In theoretical matters, we ask ourselves some question: what is that, how did it come to be that way, what is its purpose? The question makes a demand, and the demand, in turn, is satisfied when we receive an answer – the answer satisfies with respect to the inquiry generating question. In practical matters, however, the demand is not simply for an answer, for the question is: how shall I act, what shall I do? The question already makes a demand

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for action, and is not satisfied until the action has been completed. So just as the truth in theoretical matters is the successful satisfaction of a question’s demand, so in practical matters. Action satisfies a practical question’s demand and thus seems legitimately to be called practical truth. While this account of practical truth is helpful at one level, however, it can seem unsatisfactory on it own. For if this were all we had in the way of an account of practical truth, we might seem left with insufficient constraints on the true. Theoretical truth, after all, is constrained by the way the world is – not just any answer suffices. But how can practical truth be constrained on the account given? The answer, of course, is that practical truth is contrained by reason – not every answer will satisfy, but this is not because of the way the world is, but because of reason’s demands. The structure of those demands has been, in part, articulated in this paper: the demand to pursue human goods, and the subsequent demands to pursue these goods in inclusive, rather than exclusive, fulfilling, rather than stinting, ways. What we see here, I think, is that practical truth’s constraints come from the objectivity of reason. This objectivity is on display both in the recognition of goods as impersonally fulfilling of all human agents, and in the idealized systematization that reason introduces into its thought about how reasonably to pursue the goods. Reason is objective in a fairly obvious way – not blinded by selfishness or partiality, or emotions proper to oneself as an individual. But objectivity is, in the end, the constraint on theoretical truth as well – the difference is that in theoretical truth it is the objectivity of objects that constrains. But practically, it is the objectivity of reason. Further, what reason projects is a kind of whole – the ideal of integral human fulfillment. So I suggest, following some remarks of Grisez, Finnis and Boyle, that truth also, in ethics and practical reasoning, has a semi-Hegelian sense: truth is the whole (1987, 126). And this conception, I think, is sufficient to remove qualms about the first articulated notion of practical truth. 7. THE ROLE OF META-ETHICS Rather than reiterate all that has gone before, I wish to conclude by addressing a very general possible objection to the way the paper has proceeded. The paper began with a brief account of the new natural law theory, a normative theory of ethics. From this, it proceeded to articulate ways in which, from the perspective of the new theory, various difficulties in meta-ethics could be negotiated: the is-ought problem, issues of realism and anti-realism, the “one thought too many” difficulty, and the question about the nature of practical truth. But classical meta-ethicists might object that this whole procedure puts the cart before the horse. Consider the following representative claim by Michael Smith: Though meta-ethical questions are no doubt more abstract than normative ethical questions, they are also in a sense more urgent. For how could we decide whether to affirm or deny the claim that, say, we should all be honest, without first being in a position to say what the claim really means (Smith, 1995, 1)?

Implicit in Smith’s question is a presupposition about meta-ethics that can be found

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through much recent work on the subject: the presupposition that questions about objectivity, normativity, motivation, and so on can be asked and answered in independence of, and indeed prior to a normative theory of ethics. And this is a view that I completely reject. To see why requires first that I say a bit about the nature of normative ethics. There has been a fair amount of criticism in recent years, from the camp of so-called anti-theorists, of normative theory (see Clarke and Simpson, 1989). Such theory, goes a standard objection, is an attempt to develop a moral decision procedure, which can then be applied to solve moral agents’ dilemmas. This view has been considered alarmingly impositional, as well as insufficiently fine grained. But this misstates the legitimate aims of moral theory. Normative theory is not about practical reason, nor independent of practical reason albeit to be made use of by practical reason. In a strong sense it just is practical reason, reflected upon, and articulated. Normative theory attempts to capture practical reason working well. So it is not an imposition on the moral life – it is the moral life articulated. Now meta-ethics attempts to gain clarity about the meaning of moral terms, about the objective status of moral notions, about the nature of moral truth. To investigate, it must have some data. Should the data simply be “morality” as it mayhap be practiced in some local culture, or area? What good is this? Meta-ethics is not metasociology. On the other hand, in early twentieth century meta-ethics, there was altogether too much willingness on the part of logical positivists to impose a theoretical structure about meaning and verification on their meta-ethical account, rendering, in Ayer’s extreme case, moral language literally meaningless. Meta-ethics can thus, I think, be carried out neither in abstraction from the actual workings of practical reason, nor without any critical distance on the de facto practical reasoning of a local culture. The data for meta-ethics thus, I suggest, must include our best account and defense of the actual workings of practical reason – our best normative theory. Meta-ethics cannot be understood as a separate discipline, but as a working out of some of the conceptual implications of our best normative theory. Indeed, that the conceptual implications may be smoothly and productively worked out is itself an argument in favor of whatever theory enables this working out. Some normative theories leave intractable conceptual difficulties in their wake: utilitarianism, intuitionism, and even Kantianism. That the new natural law theory is meta-ethically enabling is one of its many virtues. Department of Philosophy University of South Carolina Columbia South Carolina NOTES 1

For the general theory, see John Finnis, Natural Law and Natural Rights (1980); also, the first two volumes of The Way of Our Lord Jesus Christ: Christian Moral Principles (1983) and Living a Christian Life (1993); and Germain Grisez, Joseph Boyle and John Finnis, ‘Practical principles, moral truth and ultimate ends,’ (1987, 99-151).

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There is continuing discussion of the new theory’s approach to, e.g., contraception, abortion, artificial hydration and nutrition, the principle of double effect, capital punishment, and so on, both among Catholic and non-Catholic, natural law and non-natural law theorists. This problem seems to be generic to normative theories which posit a plurality of incommensurable goods. See T.D.J. Chappell, Understanding Human Goods (1998). A (merely) representative sampling: Henry Veatch, ‘Natural law and the ‘is’- ‘ought’ question: Queries to Finnis and Grisez,’(1981); Ralph McInerny, ‘The principles of natural law,’ (1981, 1-15); Russell Hittinger, A Critique of the New Natural Law Theory (1987). For clarifications of just what the relationship between the natural law and human nature is, on the new theory, see Robert P. George, ‘Natural law and human nature,’ (1992, 31-41). For the claim that our choices primarily bear upon the future of those agents we affect, see Patrick Lee, Abortion and Unborn Human Life (1996, 61-62).

BIBLIOGRAPHY Brink, D. (1989). Moral Realism and the Foundations of Ethics. Cambridge: Cambridge University Press. Chappell, T.D.J. (1998). Understanding Human Goods. Edinburgh: University of Edinburgh Press. Clarke, S.G. and Simpson, E. (Eds.) (1989). Anti-theory in Ethics and Moral Conservatism. Albany: State University of New York Press. Donagan, A. (1977). The Theory of Morality. Chicago: University of Chicago Press. Dummett, M. (1978). Realism. In: Truth and Other Enigmas. Cambridge: Harvard University Press. Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. Finnis, J. (1983a). Fundamentals of Ethics. Washington, D.C.: Georgetown University Press. Finnis, J. (1983b). The Way of Our Lord Jesus Christ: Christian Moral Principles. Chicago: Franciscan Herald. Finnis, J., Boyle, J., and Grisez, G. (1987). Nuclear Deterrence, Morality and Realism. Oxford: Clarendon Press. Finnis, J. (1991). Moral Absolutes: Tradition, Revision, and Truth. Washington, D.C.: The Catholic University of America Press. Finnis, J. (1993). The Way of Our Lord Jesus Christ: Living a Christian Life. Quincy: Franciscan Herald. George, R.P. (1992). “Natural law and human nature.” In: R.P. George (Ed.), Natural Law Theory: Contemporary Essays. Oxford: Clarendon Press. Grisez, G. (1978). ‘Against consequentialism,’ American Journal of Jurisprudence 23, 21-72. Grisez, G., Boyle, J. and Finnis, J. (1987). ‘Practical principles, moral truth and ultimate ends,’ American Journal of Jurisprudence 32, 99-151. Grisez, G. (1993). Living a Christian Life. Quincy: Franciscan Herald. Grisez, G. (1998). Difficult Moral Questions. Quincy: Franciscan Herald. Haldane, J. and Wright, C. (1993). “Introduction.” In: J. Haldane and C. Wright (Eds.), Reality, Representation and Projection. Oxford: Oxford University Press. Hittinger, R. (1987). A Critique of the New Natural Law Theory. Notre Dame: University of Notre Dame Press. Lee, P. (1996). Abortion and Unborn Human Life. Washington, D.C.: Catholic University of America Press. Mackie, J.L. (1977). Ethics: Inventing Right and Wrong. England: Penguin Books. McInerny, R. (1981). ‘The principles of natural law,’ American Journal of Jurisprudence 26, 1-15. Nagel, T. (1978). The Possibility of Altruism. Princeton: Princeton University Press. Smith, M. (1994). The Moral Problem. Oxford: Blackwell Press. Smith, M. (1995). “Introduction.” In: M. Smith (Ed.), Meta-ethics. Aldershot: Dartmouth Press. Tollefsen, C. (1999). ‘Sidgwickian objectivity and ordinary morality,’ The Journal of Value Inquiry 33, 57-70. Veatch, H. (1981). “Natural law and the ‘is’- ‘ought’ question: Queries to Finnis and Grisez.” In: Swimming Against the Current in Contemporary Philosophy. Washington, D.C.: Catholic University of America Press. Williams, B. (1981a). “Internal and external reasons.” In: Moral Luck. Cambridge: Cambridge University Press.

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Williams, B. (1981b). “Persons, character and morality.” In: Moral Luck. Cambridge: Cambridge University Press.

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MORAL IDENTITY AND THE NATURAL LAW THEORY A Response to Tollefsen’s “Natural Law and Modern Meta-Ethics: A Guided Tour”

1. INTRODUCTION The desire to produce a set of normative moral standards for society has been a characteristic of the history of Western moral philosophy. This has been particularly marked since the 13th century but most especially since the Enlightenment whose culture has been characterized by an attempt to find a common ground for moral reasoning within the constraints of reason alone. In the last thirty years or so, some philosophers, notably John Rawls in The United States and Jürgen Habermas in Europe, have attempted on the political level to provide a framework within which ongoing debates concerning social and moral issues can be addressed in consensual terms.1 In moral philosophy and moral theology the attempt to create a rational and consensual environment for the resolution of moral conflicts emerges under different forms. One of them, which I intend to examine critically in this paper, is natural law theory2 which has, according to some commentators, undergone a revival in interest over the last thirty years.3 This essay is a critical response to Tollefsen’ richly provocative paper in which he claims that the new natural law theory constitutes a way to negotiate various difficulties encountered in late 20th century meta-ethics and moral theory. In what follows, I challenge this assertion and argue that Tollefsen’s analysis of the geography of moral discourse fails on three counts: first, Tollefsen does not take seriously into account the socio-political context of contemporary culture (i.e., the postmodern context); he assumes that a minor role is played by the social context and/or the community (meta community – country, states, for instance – or micro community – religious community or philosophical tradition, for instance) in shaping moral values. Second, he is not able to provide any universal content for his moral philosophy – which is precisely the purpose of natural law theory. What I mean by that is that the list of the basic goods identified by Tollefsen constitutes an 57 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 57—67. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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arbitrary list that is construed within a particular understanding of rationality influenced by specific philosophical and religious assumptions – in particular by the Roman Catholic tradition. Hence, contra Tollefsen, it exemplifies how sociopolitical aspects are intrinsic to moral values. Third, and finally, it is not clear what moral agency means in Tollefsen’s account. In his understanding of moral reasoning the emphasis is mostly on doing (i.e., on act analysis) which leaves out of consideration the cause of any moral action: the agent. As I will point out, moral reasoning depends on the structure of one’s moral self or on the framework that constitutes the values of the agent. To assume a uniformity in moral reasoning common to all “genuine agents” (which leads allegedly to the recognition of basic goods) is problematic for reasons I develop in section 2 of the paper. But first let us turn to the contemporary socio-political context, that is, to the challenge of postmodernity. 2. CONTEMPORARY CULTURE AND MORAL DELIBERATION: TAKING THE CONTEXT OF MORAL DELIBERATION SERIOUSLY Tollefsen is eager to stress that meta-ethics (which he defines as an attempt “to gain clarity about the meaning of moral terms, about the objective status of moral notions, about the nature of moral truth” [2004, 54]) is not meta-sociology, and consequently one ought not to take into consideration particular socio-political aspects in the attempts to clarify the nature of moral truth. But he also recognizes that meta-ethics implies the combination of “the actual workings of practical reason” (i.e., how reason applies moral truth in practical matters defined by a specific context) and the “critical distance on the de facto practical reasoning of a local culture” (54). In his analysis of the new natural law theory, Tollefsen seems to operate under the assumption that the socio-political context of contemporary culture is subsidiary to moral reality. As I will show later on, however, not only does culture inform moral reasoning but it is also an essential component of how one understands his or her own ethical beliefs. In short, the claim is one in moral epistemology. It is wrong, then, to assume, as Tollefsen does, that goods are “reasons apprehended by practical reason” which are “goods for all” or “reasons for all agents” (46). In what follows, I demonstrate that a unique or universal version of moral rationality and basic goods (i.e., apprehension of basic human goods) does not reflect the complexity of our post-modern context.4 2.1 The Post-Modern Context Current scholarship has increasingly recognized that contemporary culture is constituted by various irreconcilable ideologies, whether in politics under the terminology of “mutually exclusive visions of the public good” (Hunter, 1994, 15), in moral philosophy, using the language of “interminable arguments” (MacIntyre, 1984, 6, 59), or in bioethics, referring to “moral strangers” (Engelhardt, 1994, 70). As MacIntyre points out, there seems to be no easy way to justify moral agreement

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in our culture (1984, 6)5 though he suggests a way out of the impasse through an abandonment of the Enlightenment Project. This response, however, falls beyond the scope of this paper. Without an appropriate acknowledgment of the fragmented character of the modern moral condition, we fail to see that a moral discourse is limited to a particular group of people already in agreement concerning moral issues. I will not per se develop this idea in this paper but rather examine the post-modern condition and see what it entails for moral reasoning and knowledge. I will do so particularly in reference to two philosophers: Jean-François Lyotard and Gianni Vattimo. 2.2 Loss of Faith in Meta-Narrative French philosopher, Jean-François Lyotard, in his volume The Postmodern Condition, argues that postmodernity reflects the transformation in science, literature and the arts that occurred since the end of the nineteenth century and resulted in a state of our culture that exhibits a crisis of narratives (Lyotard, 1984, xxiii). Postmodernity is an “incredulity toward metanarratives” that locates its roots in the progress of science and accordingly reflects the crisis of metaphysical philosophy and of the university institution (Lyotard, 1984, xxiv). Echoing Lyotard, Italian philosopher Gianni Vattimo notes that postmodernity is first and foremost a “dissolution of history”, that is, “the breaking down of its unity” which in turn has rendered the constructing of a universal history impossible (contra Hegel – The Dialectics of Spirit) (Vattimo, 1988, 8-9). The result of this condition is that competing ideologies challenge the legitimization of one particular tradition or narrative within what used to be called the meta-history of Western culture. The breaking down of history into microhistories and the lack of trust in one particular narrative, according to Vattimo, force the move from modernity to postmodernity (Vattimo, 1992, 2). On the one hand, modernity attempts to build a meta-narrative or a meta-discourse that should provide, through faith in reason and progress, a secular framework for the flourishing of human existence. Hence, this faith in progress replaces what Vattimo calls the “sacred vision of existence” and by the same token denies any “providential vision of history” (Vattimo, 1988, 101-102), reflecting the crisis in metaphysics as noted by Lyotard. History is conceived in terms of a rejection of past traditional elements of Western culture (social, metaphysical, political elements,). It focuses on the “here and now” and tends towards an ongoing actualization of the new, in which history is understood within contemporary events regardless of its genealogy. In short, the new comes to have cardinal value. On the other hand, postmodernity6 challenges some of the cardinal assumptions of modernity, particularly the idea of the possibility of a unified vision of the good life for human beings through advances in technology, science, and human reason. As Richard Bernstein suggests, postmodernity can be said to be “a rage against humanism and the Enlightenment legacy” (Bernstein, 1985, 25). Translated into the moral realm this involves a critical reassessment of the Enlightenment project and a recognition that this project has failed to provide the moral foundation for Western

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societies (see Engelhardt, 1996, 23; MacIntyre, 1984, 51-78). Rather than having a morality pertaining to all individuals according to the canon of reason, the project has mutated morality into conflicting and competing ideologies in which rational agreement is limited and difficult to attain. A case in point is the conclusion reached following a meeting of President Bush’s Council on Bioethics on human cloning. After a two-day meeting, the members, remained “deeply divided over the moral status of a human embryo” and had “given up hope” that a consensus on the ethics of human cloning (Associated Press, 2002) was possible. According to Lyotard, the crisis of belief in a unified vision of the good life is located within the fabric of our capitalist society. The combination between contemporary capitalism and technology creates an alteration of the social bond, which in turn alienates people from what he calls “old poles of attraction.” He points out that [The] economic ‘redeployment’ in the current phase of capitalism, aided by a shift in techniques and technology, goes hand in hand with a change in the function of the State: the image of society…necessitates a serious revision of the alternate approaches considered. For brevity’s sake, suffice it to say that functions of regulation, and therefore of reproduction, are being and will be further withdrawn from administrators and entrusted to machines…What is new in all of this is that the old poles of attraction represented by nation-states, parties, professions, institutions, and historical traditions are losing their attraction…Identifying with the great names, the heroes of contemporary history, is becoming more and more difficult (Lyotard, 1984, 14).

Lyotard does not imply that the breaking up of the “grand Narratives” necessarily results in the dissolution of the social bond into an anonymous mass of individuals. To the contrary, he asserts, individuals exist within a “fabric of relations” that is regulated by language games – games of inquiry – rather than by a theory of communication (Lyotard, 1984, 15-16). Since people do not refer to the past as a reference for their own identity, Lyotard insists, the structure of the postmodern social fabric requires novelty and self-adjustment (Lyotard, 1984, 15). If Lyotard’s account of the postmodern context for the current social fabric is correct, one important aspect ought to be closely considered. The endless demand for novelty alienates the present condition from the past – the old poles of attraction. A narrative construed in such terms projects the past into the present in such a way that the transition from the “then” to the “now” is obliterated on behalf of this craving for novelty. In other words, history becomes an ever-present actuality that denies its genealogy and development so that postmodernity is an attempt to break with the meta-narrative provided by modernity. This produces a particular crisis within modernity (Harvey, 1990, 116). Modernity is characterized by a rationalistic trend of thought, promulgating an intellectual emancipation from the Judeo-Christian heritage, whereas post-modernity is an attempt to break with this agenda. Modernity has failed to provide a common morality and moral rationality that can be shown to govern all.7 Postmodernity is an acknowledgment of this fact, which is precisely not taken into account by Tollefsen. His claim of basic goods recognized by all genuine agents and able to guide moral conduct indicates that he operates under the assumption that these basic goods can be identified within a structure of moral rationality and then given an ordering which

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can be shown to be unique and normative. In the next section, I demonstrate that this cannot be the case. 3. MORAL DELIBERATION, CHARACTER, AND MORAL AGENCY We turn now to Tollefsen’s concept of basic goods as an “ideal of integral human fulfillment.” When assessing the claim that certain basic goods are essential to human fulfillment one must confront the following questions: What is the content of these basic goods? Can we see human fulfillment as reflecting a single understanding of the good life – which embraces and uniquely orders these basic goods? Is reason able to provide a particular content without referring to a specific tradition or community that will sustain a set of moral values and in a particular order tied to particular practices? Contrary to Tollefsen’s claim regarding the new natural law theory, it is not clear how reason can provide a unique normative content uniformly to all moral agents independently to particular assumptions (social, political, cultural, religious, or philosophical) concerning the good life. The events of September 11, 2001 have shown that the good life has different meanings for different people of diverse cultures and traditions. This not to say that ethics is a sociology of mores or that I am arguing for moral relativism. Rather my point is to stress that ethics necessarily demands a set of presuppositions that reflect a tradition, a culture or a community of people sharing identical ends. It cannot, as often assumed, be the unique product of abstract reasoning independently of such a context. How the new natural law theory is able to account for differences in moral judgments between moral communities is not clear. The lack of clarity is on two levels: first, there is an insufficient appreciation of the contextual character of moral agency, and second, there is a failure to appreciate the challenge in establishing a unique account of the human good. 3.1 Moral Deliberation In his section on realism and anti-realism, Tollefsen claims that the new theory is not realist in a Dummettian sense (the meaning of an assertion is evidence transcendent, that is, some state of affairs are independent of our evidence procedure). This is the case, the argument goes, because Tollefsen’s natural law is concerned with the realm of human affairs and, therefore, an ethic that lies beyond human grasp is useless. His account holds that basic goods create strong motives that compel us to act morally in accordance with these goods. Thus, the new theory does not reflect a realist approach to ethics per se – although Tollefsen states that the new theory “seems robustly realist without running into the various implausibilities that realism is routinely accused of” (48) – but is rather an ethic that assumes a direct connection between the understanding of these reasons and corollary actions. This understanding of ethics is open to at least one major difficulty: it does not recognize the structure of moral agency or the determination of the moral self as the primordial element in moral reasoning. It is one thing to recognize the necessity to

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act according to some basic goods. But a concrete action does not necessarily follow without the presence of a strong motive (or motives) that compels someone to act. It is not obvious that “reasons to act” alone can motivate a person to take action, even though strong grounds for acting are present to the moral agent (i.e., understanding the reasons why it is necessary to act in a particular way). If one considers X to be an obligatory action (based on specific reasons) it does not follow that that person will or wants to act accordingly. Tollefsen thinks otherwise. He argues that the basic goods are reasons for actions in that “they constitute the fundamental conditions for intelligible human action, it literally makes no sense to suppose that we could pursue an understanding of these reasons and fail entirely in that pursuit” (44). If this were the case, it would completely obliterate the idea of self-determination or free will and how choices take place in moral deliberation. Human beings would simply respond to a set of moral propositions without an assessment of what is at stake – much less a will to act in accord with this assessment. It is in this process of ordering goods that the uniqueness of any particular moral account is brought into question. Tollefsen’s account of actions suffers from the one-sidedness and incompleteness of Aristotelian/Thomistic accounts of action which presuppose that knowing the good entails willing the good. What is necessary, then, is to view the nature of the self’s agency as a primary condition in the determination of an act. To put it differently, an action is ultimately interconnected with the agent who caused it because as a self-moving agent, man can impose his will (his reasons) on his actions through his intentions. In contrast with animals, for instance, an individual is characterized by the capacity to intend what he does, to use his will to power in order to determine his goals and orientations. Here a distinction between purposive action and intentional action may help to clarify how self-determination is essential in moral reasoning. Purposive action is an action that denies, or at least diminishes, the idea of self-determination because it relegates the causality of the action to the sphere of the observable whereas an action becomes intentional when the agent generates the action according to his or her own reasons and description of the situation (Anscombe, 1957, 13). The action is said to be intentional because it can only be described and understood in relation to the intention formulated by the agent. Thus, agency, in the sense of one’s capacity to act and choose freely, is an intrinsic component of moral actions and their practical manifestations. 3.2 Having Character in Moral Deliberation In order to understand the complexity of moral reasoning we must look closely at what it means to be a moral agent, in particular we must examine the idea of character or “having character”. The reason is that the moral self must be recognized as an entity that can be shaped by external elements (socio-political context, for instance) and/or determined by particular assumptions that will ultimately decide the content of one’s “basic goods”. The concept of character is precisely what defines the moral self and hence is crucial to how the process of moral deliberation occurs.

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Stanley Hauerwas makes a distinction between “character traits” and “having character.” On the one hand, “character traits” are a distinctive way of carrying out certain activities. Such traits constitute a body of terms describing many forms of behavior that do not necessarily have a moral significance (Hauerwas, 1975, 12). For instance, a person might demonstrate meticulousness in work but in some contexts this may be as much of a burden or a resource for responsible moral actions. On the other hand, “having character” involves a more basic qualification of the moral self. In this sense, “having character” means having the moral strength that enables a person to determine in advance the kind of behavior considered appropriate in an anticipated situation. Thus, one’s apprehension of reality is not just the aggregate of events that happen to him or her but it implies the capacity of selfdetermination or free will. It entails a dynamic process in which one’s “capacity for self-determination is dependent on this ability to envision and fix his attention on certain descriptions and to form his actions (and thus the self) in accordance with them. A man’s character is largely the result of such sustained action” (Hauerwas, 1974, 58). It follows that our character is a “qualification of our agency” that depicts how we envisage, describe, and intend our actions and how we initiate change in ourselves and around us in such a way that our agency may be considered the source of the transformation (Hauerwas, 1975, 88). The specificity of one’s character results from the actual exercising of such agency. Indeed, the very idea of character implies the assumption that the self can be morally determined (Hauerwas, 1975, 21). In sum, moral agency (which involves notions such as reasons, motives, intentions, and so forth) and action constitute the two elements integral to character: Our character is that aspect of our self by which we deliberately determine our action in the light of our chosen pattern of descriptions. The limits of our character are in effect the limits of our possible intentions. As our agency is so determined, our character is in effect the cause of our actions, for it is our character that determines the range of descriptions that we have available to us (Hauerwas, 1975, 113).

In insisting upon the necessity of considering the idea of character in moral philosophy, the goal is to broaden the “phenomenology of moral experience.” Moral philosophy should move beyond the contemporary discourse that depicts moral life in terms of quandaries and decision-making processes in determining the “basic goods”. Moral agency and moral character should be reintroduced to the center of the ethical discussion because moral reasoning is shaped by external elements that ultimately give content to the good life in conjunction with basic goods inherent to one’s moral identity and a will to act in accord with one’s view of the good life and the goods of life. 4. MORAL GOODS, GENUINE ASSENT, AND MORAL NOTIONS Tollefsen’s new natural law theory attempts to avoid the question of a deeper understanding of moral agency and how it is shaped into what we call character. He takes this position because he asserts that moral reasons are apprehended by all genuine agents and thus implies that each genuine individual is able to apprehend these basic goods which motivate actions. As Tollefsen puts it “[g]oods offer

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precisely the sorts of considerations that can be reasons for action: by promising some benefit, some aspect of human well-being, they provide a consideration in light of which some action or actions may be intelligibly chosen” (41). But it seems very difficult, if not impossible, to determine the exact content of these benefits. Even if similar benefits are identified, they will be assigned various priorities (due to contrasting “reasons” and “values”) and will therefore guide action differently. Consider “life” as a basic good. Would a utilitarian, such as Peter Singer, regard the life of a severely handicapped infant, as would a conservative Christian? Needless to say there is a deep contrast. Each individual will offer certain “irrefutable reasons” that represent the core of his or her moral understanding. What reason offers – potential benefits – will depend on a particular understanding of what constitutes the good life and on one’s personal moral intuitions which will establish a particular ordering of these goods. To refer to the idea of genuine assent or genuine agency (see, e.g., 44-45) seems illegitimate simply because the idea of being genuine is “plural”, i.e., it depends on the specific rational framework within which one operates. As MacIntyre has convincingly demonstrated, we cannot assume that each individual gains access to moral knowledge within the boundaries of the same moral rationality (MacIntyre, 1988, 1990).8 Reasons will always be assessed by other intuitions (good or bad) or other considerations (such as selfishness, will to power, altruism, for instance). Therefore, the goods one considers as part of his or her moral framework necessitates more than a recognition of some basics goods: it requires what Julius Kovesi calls “moral notions” (1967, 111) or moral concepts. In other words, morality ought not to be conceived as being primarily related to quandaries or decision-making processes in relation to basic goods. Preceding the act of deciding, there must be “moral notions,” for, as Kovesi points out, without “our moral notions there would nothing to make decisions about; there would not even be a need to make decisions” (Kovesi, 1967, 111). The decision-making process takes place within a framework delineated and determined by the moral self and informed by the moral notions. This account of “moral notions” is important because it shows how our cognitive functions inherit knowledge about the reality of moral inquiry and how these affect the formation of our character. The differentiation between moral and non-moral notions lies in the motives our reason provides in the decision-making process. Our reason determines the gathering or separation of these features based on our notions: “the function of our notions cannot be limited to the need to identify, but includes our need to avoid or promote, to excuse, blame, praise, or to judge and command” (Hauerwas, 1974, 16). Consequently, virtue and vice (i.e., moral notions) are objects of our reason, in contrast to non-moral notions that are objects of our senses. The vice of lying is the object of our reason because the human mind, in its aptitude to use moral notions, has the ability to identify when circumstances should be understood as instances of lying. Tollefsen’s natural law makes a conceptual mistake by asserting that the fundamental goods are inferred from practical reason alone: “As basic, the fundamental goods are not inferred to be good from some other source of knowledge; but as good, and thus action guiding, they are not known by theoretical

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reason but by practical reason” (40). As a result, the crucial question in moral reasoning becomes: What should I do? or How should I act? The problem with such a perspective is twofold: first the content of the reasons for one’s actions is a precondition for moral action. One cannot act without already having some moral notions created by a particular ideology, tradition, community, and so forth. Second, the dichotomy between the practical and the theoretical is problematic because the content of basic goods is not derived by practice but rather by the conceptual and theoretical structure of one’s self. The new natural law approach to moral reasoning does not recognize the fullness of moral life. It limits moral enquiry to the doing rather than the being/agent/character. The question ought not to be “How should I act?” but rather “What kind of person should I be in order to act morally?” Moral life is intrinsically related to the idea of character. In sum, a crucial problem for the new natural law theory is that the motivational ground for an action lies in the reasons (as an irresistible incentive, it is argued) rather than in the agent through his or her will. In the former, it is an objective good that presumably motivates one to act whereas in the latter it is the agent that interprets what constitutes the good according to particular moral notions and then wills to act in this way. This does not imply that the individual is the ultimate judge or that objective goods are irrelevant in moral life. I am arguing that the recognition of basic goods is insufficient for an account of moral actions for these goods must be interpreted in the light of a set of learned and affirmed moral notions, which can be wrong or false. Thus, to claim, as Tollefsen does, that “goods are goods for all” collides with the circumstance that each individual or community of individuals has different definitions and views of the good (or moral notions) and diverse intuitions about the reasons for moral actions. This perspective signifies that such an account of moral life displays a certain relativism that is intended to underline the fact that morality is not the outcome of social consensus through rational argumentation. Rather, morality encompasses deep assumptions about the telos of human life and the goods that it entails. These are developed and learned within a particular socio-political context. 5. CONCLUDING REMARKS An in-depth criticism of the new natural law theory would require more than the space allotted to this paper. Nonetheless, these reflections show that the new theory faces major challenges that can be situated on three levels: first, on the sociopolitical level, the new theory does not acknowledge the context of postmodernity and its consequences for ethics. The contemporary socio-political context, marked by moral fragmentation is an impediment to a common ground for moral reasoning or agreeing regarding the basic goods. Second, on the practical level, it is a mistake to assume that the “basic goods” will necessarily specify right action for an agent confronted with a moral dilemma. Self-determination is an important aspect of moral deliberation, which must include the possibility of refusing or denying the intrinsic good of certain allegedly shared values (i.e., basic goods) and their ordering. The third and last problem is on the conceptual level. The complexity of

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moral life cannot be adequately apprehended with reference to “basic goods” without considering the crucial role of agency in the determination of moral action. The prime determinant of a moral action is the agent’s character and the values he or she defines as essential in moral reasoning. Moral agency and action are a reflection of one’s character formed within a particular context. For these reasons, the new natural law theory, despite the rich tradition on which it builds, can offer only a limited perspective on moral theory because it assumes too much about our ability to agree fully upon moral issues in our current context. Rice University Houston, Texas NOTES 1

2 3

4 5

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See particularly Rawls, A Theory of Justice (1971); Political Liberalism (1993); “The Idea of Public Reason Revisited” (1997); and Habermas Moral Consciousness and Communicative Action (1990). In Rawls’s perspective, a modern democracy requires “a pluralism of comprehensive religious, philosophical, and moral doctrines” and a “pluralism of incompatible yet reasonable comprehensive doctrines” (1993, xvi; 1997, 766). The former type insofar as they do not articulate their claims in terms available within the constraints and in terms of the interests of the social democratic polities cannot be part of public debates due to their contentious nature. Thus the only possible arguments – or doctrines, in Rawls’s terms – that should be used in public arena are those “incompatible and reasonable doctrines” which form the basis of the “essentials of public reason and a democratic polity” (1997, 766). Moral and social issues are negotiated within that particular framework of public discourse. Habermas introduces his concept of “communicative action” in order to restore a consensus that has been disrupted (1990, 67) through a process of moral argumentation in which each participant “seeks rationally to motivate another by relying on the illocutionary binding/bonding effect…of the offer contained in his speech act” (1990, 58, italics in original). Habermas’ position allows more room for “contention doctrines” but the idea of consensus in moral argumentation still remains problematic, especially in the postmodern context. See particularly Finnis’ Natural Law and Natural Rights (1980). In this paper, I do not intend to criticize natural law theory as such. I rather respond to Tollefsen’s article as developed in this book. For critical accounts see Hittinger (1987); Veatch (1981) and McInerny (1981). For an analysis of postmodernity and complexity see Cilliers (1998). MacIntyre advances three principal characteristics of moral disagreements. First, he points out the conceptual incommensurability of rival arguments. This means that each argument is valid and that there is no rational way to dismiss or disprove other claims. Second, these moral disagreements are said to be impersonal rational arguments. What this suggests is that there exists standards of justice, of duty, that are independent of the moral agent’s own circumstances. Finally, MacIntyre notes a third characteristic, that is, the variety of the historical origins of rival arguments. Concepts such as virtue, piety, duty have gone through a variety of shifts that changed their original meaning. For more details, see Whose Justice? Which Rationality? (8-11). Obviously postmodernity is more multifaceted than the description I give in this paper. The Cambridge Dictionary of Philosophy defines postmodern philosophy within a more complex framework: “ Postmodern philosophy is therefore usefully regarded as a complex cluster concept that includes the following elements: an anti-(or post-) epistemological standpoint; anti-essentialism; antirealism; anti-foundationalism; opposition to transcendental arguments and transcendental standpoints; rejection of the picture of knowledge as accurate representation; rejection of truth as correspondence to reality; rejection of the very idea of canonical descriptions; rejection of final vocabularies, i.e., rejection of principles, distinctions, and descriptions that are thought to be unconditionally binding for all times, persons, and places; and a suspicion of grand narratives, metanarratives of the sort perhaps best illustrated by dialectical materialism.”

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See in particular MacIntyre in Whose Justice? Which Rationality? See for instance 1-11 in Whose Justice? Which Rationality? in which MacIntyre states that, despite the attempt to justify a common rationality pertaining to all (and therefore a rationality that should bring a common ground for debating social issues), “we…inhabit a culture in which an inability to arrive to agreed rationally justifiable conclusions on the nature of justice and practical rationality coexists with appeals by contending social groups to sets to rival and conflicting convictions unsupported by rational justification. Neither the voices of academic philosophy, nor for that matter of any other academic discipline, nor those of the partisan subcultures, have been able to provide for ordinary citizens a way of uniting conviction on such matters with rational justification. Disputed questions concerning justice and practical rationality are thus treated in the public realm, not as matter for rational enquiry, but rather for the assertion and counterassertion of alternative and incompatible sets of premises” (5-6). In his view, rationality is thus always related to historical context: “So rationality itself, whether theoretical or practical, is a concept with a history: indeed, since there are a diversity of traditions of enquiry, with histories, there are, so it will turn out, rationalities rather than rationality…” (8).

BIBLIOGRAPHY Anscomb, G.E.M. (1957). Intention. Oxford: Blackwell. Associated Press, Reuters Health (2002). “Council on bioethics gives up on forging cloning consensus,” February 14, 2002. Bernstein, R. (Ed.) (1985). Habermas and Modernity. Oxford: Oxford University Press. Cilliers, P. (1998). Complexity and Postmodernism. New York: Routledge. Engelhardt, H. T., Jr. (1996). The Foundations of Bioethics. Oxford: Oxford University Press. Engelhardt, H. T., Jr., & Lisa M. Rasmussen (2002). Bioethics and Moral Content: National Traditions of Health Care Morality. Dordrecht: Kluwer Academic Publishers. Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. Habermas, J. (1990). Moral Consciousness and Communicative Action. Cambridge: The MIT Press. Harvey, D. (1990). The Condition of Postmodernity. Cambridge, MA: Blackwell. Hauerwas, S. (1974) Vision and Virtue. Notre Dame: University of Notre Dame Press. Hauerwas, S. (1975). Character and the Christian Life. Notre Dame: University of Notre Dame Press. Hittinger, R. (1987). A Critique of the New Natural Law Theory. Notre Dame: University of Notre Dame Press. Hunter, J. D. (1994). Before the Shooting Begins. Searching for Democracy in America’s Culture War. New York: The Free Press. Kovesi, J. (1967). Moral Notions. New York: Humanities Press. Lyotard, J.-F. (1984). The Postmodern Condition: A Report on Knowledge. G. Bennington and B. Massumi (trans.). Minneapolis: University of Minnesota Press. MacIntyre, A. (1984). After Virtue, 2nd edition. Notre Dame: University of Notre Dame Press. MacIntyre, A. (1988). Whose Justice? Which Rationality? Notre Dame: University of Notre Dame Press. MacIntyre, A. (1990). Three Rival Versions of Moral Enquiry. Notre Dame: University of Notre Dame Press. McInerny, R. (1981). ‘The principles of natural law,’ American Journal of Jurisprudence 26, 1-15. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press. Rawls, J. (1993). Political Liberalism. New York: Columbia University Press. Rawls, J. (1997). ‘The idea of public reason revisited,’ The University of Chicago Law Review 64, 3, 765807. Tollefsen, C. (2004). “Natural law and modern meta-ethics: A guided tour.” In: M. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordercht: Kluwer Academic Publishers. Vattimo, G. (1988). The End of Modernity, Jon R. Snyder (trans.). Cambridge, UK: Polity Press. Vattimo, G. (1992). The Transparent Society, David Webb (trans.). Baltimore: The Johns Hopkins University Press. Veatch, H. (1990). “Natural law and the ‘is’ – ‘ought’ question: Queries to Finnis and Grisez.” In: Swimming Against the Current in Contemporary Philosophy. Washington, D.C.: Catholic University of America Press.

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SECTION II

ENGAGING THE LIMITS OF HUMAN NATURE

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CHAPTER 5

NICHOLAS CAPALDI

GLOBAL ETHICS AND NATURAL LAW

This essay has three parts. In the first part, I shall sketch what I believe to be an emerging global ethics, emerging as a matter of contingent historical circumstances. In the second part, I shall indicate in what special sense one might consider this to be a reflection of natural law. In the third part, I shall explain why traditional forms of natural law theory are inadequate to explain even this contingent form of global ethics. 1. THE EMERGENCE OF GLOBAL ETHICS Can there be a global ethics? There are two kinds of affirmative answers to this question. The first kind of affirmative answer is normative, that is, it maintains that there is a compelling and objective moral epistemology that will support a universal or global ethics even if many refuse to recognize or accept it. I doubt that this is the case, and I shall argue in part three for why this is so. The second kind of affirmative answer is descriptive (or perhaps speculative). It maintains that as a matter of fact, not argument, a global ethics might be in the making. My speculative empirical and historical case for an emerging global ethics is as follows. Since the Renaissance, the modern western world has endorsed the technological project. By the technological project I mean the view expressed by Rene Descartes in the Discourse on Method when he proclaimed that what we seek is to make ourselves the “masters and possessors of nature.” Instead of seeing nature as an organic process to which we as individuals conform, Descartes proclaimed the modern vision of controlling nature for human benefit. It is the same project that Bacon had in mind when he observed that knowledge is power. The technological project has so far been described in simple fashion. A detailed account would have to take seriously questions and criticisms about the viability of the project and some of the serious ethical questions embedded within it. For the moment I beg the reader’s indulgence that we can temporarily bracket off those concerns. The technological project has been a success in two senses: first remarkable 71 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 71—88. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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technological advantages have been achieved; second, those advantages have enabled subscribers to the project (mostly Western European and American) to “impose” this project on the entire globe. The imposition has not been a simple matter of the powerful imposing on the weak; the weak have come to embrace the project on their own. As a second matter of fact, it has been discovered that a free market economy is the most effective means of carrying out the technological project. Markets have been around for a long time, but the concept of the free market did not become an important theoretical construct until the modern period and the rise of the technological project. The crucial theoretical argument for the centrality of a free market was made by Adam Smith in the Wealth of Nations. His example of the manufacturing of pins explains how an assembly line of narrowly focused specialists is far more productive. Specifically, forced to focus on one part of a process leads creative individuals to invent labor saving devices. Another way of putting this point is that the market economy provides the context and the incentives for maximizing creative activity in the technological project. The practical or empirical argument for the advantages of a free market economy is 1989, the collapse of the Soviet Empire. Everywhere it is now conceded that a free market economy is the most efficient method for conducting the technological project. Economists might give more complex arguments of a purely technical kind, but the fact remains that the market is what works vis-à-vis the technological project. Again, the idea of a free market economy is a complex one that needs qualification. However, for our purposes a free market means that there is no central allocation of resources and tasks, that resources remain largely in private hands (i.e., private property), and that the government’s role with regard to the economy is carefully circumscribed. Rather than employ ideological slogans like the night watchman state or the minimal state, it is more advantageous to recognize that state action (e.g., legal system to enforce contracts and resolve disputes, as well as a legislative system) is always to be justified in terms of whether it serves the interests of the technological project. So, for example, the imposed break-up of monopolies is allegedly advantageous to both business and technology. This leads us to our third important discovery. A free market economy flourished best under limited government;1 where limited means: restricted to actions that enhance the technological project. The most successful instantiations of limited government have come about because of the rule of law and the promotion of individual “rights”,2 where rights are understood to be restrictions upon government action. The rule of law, which is not to be confused with the rule of laws, usually means that there is a constitution which embodies the fundamental values of a polity, that the role of the higher courts or some other body is to review new legislation and lower court decisions to ascertain their consistency with those fundamental values, that the norms of due process are not violated. Specifically, in the most successful examples of limited government (Great Britain, the United States, and so forth), the constitution embodies the notion of individual rights. In its original Lockean context, these rights (e.g., life, liberty, property, and so forth) are qualified as ‘natural’ or ‘human’. Rights, so understood, are absolute, do not conflict, and are possessed only by individual human beings. Rights are morally

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absolute or fundamental because they are derived from human nature and God (or later the categorical imperative), and as such cannot be overridden; the role of these rights is to protect the human capacity to choose. Finally, such rights impose only duties of non-interference. So understood, these individual rights limit the government, especially with regard to a market economy. Pure democracy is looked upon as a potential threat, for it harbors within it the formal notion that what is right is what the majority decides. The majority can clearly redefine the fundamental values. Two ways are available for preventing the misuse of democratic procedure: one is the political doctrine of checks and balances and the other is a larger cultural context in which the fundamental values are somehow safeguarded or maintained even in the process of change and reform. Political machinery ultimately depends for its proper use on the larger cultural context. We are, therefore, brought back to the need for a public ethic that preserves something like the doctrine of individual rights. The notion of individual rights has historically and logically depended upon a larger cultural context in which a substantive ethical consensus has operated. The substantive ethical consensus contains a commitment to personal autonomy. By autonomy is meant self-rule.3 An individual is free to the extent that the he/she imposes order upon himself/herself. Personal autonomy is lacking in cases of heteronomy, including the exploitation of others. Although the concept of autonomy is classical in origin, its Christian roots are most relevant for the modern period. It is the culmination of the Christian doctrine of free will and responsibility transposed to the civil sphere and as guaranteeing the coincidence of individual good and the common good. Precisely because my autonomy requires recognition (Hegel), I am obligated to promote yours as well. Autonomy is not involved in a zero-sum game. The basic ethical concept that emerges is the concept of personal autonomy. The concept of autonomy presupposes that human beings are in some non-trivial sense possessed of free will; the possession of free will is not an obvious fact but something we come to discover about ourselves. This discovery is only possible for those who learn to control their impulses and who reject the idea that standards are external. Autonomy is the key moral concept.4 It is clearly not the only moral concept to form part of a global ethics. It is beyond the compass of this essay to do anything but identify the centrality of autonomy. I might suggest, however, that whatever else emerges in subsequent analysis it will not take the form of a rigid deductive system of ethics. Two important features of autonomy are worth noting. First, to govern oneself is not to be confused with defining oneself. Autonomy is often misrepresented by its critics (usually advocates of teleology) as a form of selfindulgence. Although it is true that advocates of autonomy deny an intrinsic teleology and recognize an enormous number of ways in which we pursue fulfillment, all of these ways avoid heteronomy and, therefore, any notion of imposing on others.5 The usual litany of counter-examples always turn out to be forms of heteronomy. Second, recognizing, pursuing, and sustaining autonomy are the spiritual quests of modernity and the technological project. The ultimate rationale for the technological project is not material comfort or consumer satisfaction but the production of the means of accomplishment. To discover that

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our greatest sense of fulfillment comes from freely imposing order on ourselves in order to impose a creative order on the world is perhaps the closest way of coming to know God. It is obvious why modern Christians would be among the first to discover their capacity for personal autonomy. Can personal autonomy be sustained in a nonChristian or non-religious context? I maintain that this is not possible. First, the modern secular culture that has emerged from the Enlightenment adopts a scientistic stance. Part of that stance is the denial of the existence of anything like free will. Moreover, in its contemporary liberal forms, modern secular culture does not recognize the need to control impulses since it maintains that humans in their original state are fundamentally good. Although I do not have time to argue the case here, I would maintain that the kind of personal autonomy that is capable of sustaining the technological enterprise requires a God “Who is personal, Who commands, Who works miracles, and Who is radically other” (Engelhardt, 2000, 129).6 There are independent arguments I can offer for the intellectual inadequacy of modern secular culture. But what is at issue here is whether personal autonomy as I have identified it can survive in that context. It is clear that it cannot. Second, I maintain that to the best of my knowledge personal autonomy is not to be found in non-western religions. I do not mean to make this an a priori truth; rather I am making a factual claim that may only reflect my own ignorance. Neither Hinduism nor Buddhism can discern any purpose or meaning. The Tao sees a universe with no personal or meaningful relation to human beings. Neither Taoism, Confucianism, or Shinto has a meaningful eschatology that can help us to realize the destiny of human beings in the world. At the risk of offending many, I do not see the resources outside of the western Abrahamic inheritance for dealing with global culture. I should hasten to add that the western intellectual inheritance is self-critical, characterized by its striving for universality and the avoidance of parochialism; that it has as its great strength the power of assimilation, and it is a fertile source of adaptation of what has been and still can be absorbed from other historical cultures. Let us be clear about what is being affirmed and what is being denied. I am not denying the presence of the recognition of the divine in other non-Abrahamic cultures. I think the opposite is true. Nor am I denying that we have much to learn from them. What I am denying is that the non-Abrahamic cultures presently possess the resources for articulating the notion of personal autonomy. Of course, once exposed to it, they are certainly capable of acquiring it. But what will lead to the acquisition is not an argument or a theory but the engagement in certain practices, specifically those originating in the technological project. Interesting questions can also be raised about whether personal autonomy can survive in modern secular culture. Theoretically, it cannot. The more challenging practical and empirical question is whether secularism will prevail and in its present forms. In another context, I would argue that secularism will give way to a religious cultural context that can sustain the ethics of personal autonomy. My argument from the technological project to personal autonomy is meant to be an example of that. Of course, it is possible for personal autonomy to be undermined and then what we would see is the collapse of the whole edifice leading back to the technological

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project and the rise of a new barbarism. There would then be no global ethics possible. Otherwise, the global ethics would have to emerge from a totally different set of historical circumstances and practices that none of us is able to visualize at this time.7 To sum up the argument so far: There is a global ethics; it has arisen out of the technological project in a largely Christian culture; its most fundamental value is personal autonomy. It is the Christian origin of the concept of personal autonomy that elevates and dignifies social practices like the technological project by placing them within a narrative that exhibits a spiritual quest.8 Finally, to the extent that the entire world has embraced the technological project it will soon find that it is embedded in a context of practices that presuppose a particular ethics. Hence we arrive at global ethics. This global ethics can be viewed as compatible with a particular conception of natural law. The Natural Law Tradition encompasses three presuppositions: First, the political and legal realms are always subordinate to the moral realm; Second, the moral realm is defined by universal truths about human nature; Third, the moral realm is itself grounded in a divine conception of the cosmic order. Vigorous defenders of traditional natural law doctrine will no doubt find this conception too thin. 2. IN WHAT SENSE IS THIS NATURAL LAW What I mean by ‘natural law’ can be explained by reference to the notion of explication. Explication9 is a mode of understanding social practices. It presupposes that all social practices function with implicit norms and that to explicate a practice is to make explicit the inherent norms. In explication we try to clarify that which is routinely taken for granted, namely our ordinary understanding of our practices, in the hope of extracting from our previous practice a set of norms that can be used reflectively to guide future practice. Explication attempts to specify the sense we have of ourselves when we act and to clarify that which serves to guide us. We do not change our ordinary understanding but rather come to know it in a new and better way. Explication is a way of arriving at a kind of practical knowledge that takes human agency as primary. It seeks to mediate practice from within practice itself. Explication is a form of practical knowledge and presupposes that practical knowledge is more fundamental than theoretical knowledge. It is not Aristotelian phronesis,10 for Aristotle presumes that practical knowledge ultimately presupposes theoretical knowledge. Explication presupposes that efficient practice precedes the theory of it. All reflection is ultimately reflection on primordial practices that existed prior to our theorizing about them. Language is a good example. Natural languages were and are spoken prior to the explication of their grammar. Intellectuals in general and philosophers in particular have trouble with this idea because they are part of an institution that is meant to be almost exclusively reflective. It is easy to lose sight of the fact that reflection is, ultimately, a reflection not on other reflections but on actions in which human beings engaged prior to

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theorizing about them. (1) How we understand ourselves is fundamental and how we understand the non-human world is derivative.11 (2) Negatively, this amounts to the claim that we cannot, ultimately, understand ourselves by reference to physical structures.12 How we understand the nonhuman world is derivative from how we understand ourselves, but it is a continuing mistake to seek for the hidden structure behind our structuring.13 (3) Positively, we understand ourselves by examining “our” practices. A practice is an action informed by an implicit cultural norm. (4) To say that the norm is cultural is to say that it is social and historical. To say that it is social is to say that the existence and nature of the norm cannot be established epistemologically by an individual without reference to a larger community. (5) To say that the norm is historical is to assert that later practice evolves out of earlier practice and can be revelatory of a better understanding of the norm.14 (6) To say that the norm is implicit is to assert, epistemologically, that it is discovered internally in action rather than as an external structure. (7) No practice can be judged by norms external to the practice except when those norms are themselves recognized as part of a more encompassing practice. Metaphysically, such a norm reflects a universal insofar as persistent or enduring norms reveal something universally true about ourselves.15 The denial that norms reflect external non-human structures or the denial that there is a foreseeable closure to norm articulation is to deny two particular versions of universality not the existence of all universality. It is the recognition of some universality that saves explication from the threat of nihilism or the charge of historicist relativism. Explication, then, presupposes the existence of a cosmic order. Here, then, is a sense in which we can have and maintain the concept of natural law. It would be a mistake to try to understand this process of norm articulation from either a natural scientific or social scientific perspective. The objection to viewing this process as, say, simply organic is that it fails to do justice to the historical or temporal dimension. We might be mistakenly tempted to think in terms of adaptation to the environment, but such adaptation will be restricted to individuals or, when viewed socially, mistakenly construed as a form of progressive social development. Real historical development is much more precarious and in no sense unilinear. Explication is an intrinsically historical activity precisely because a practice is an on-going historical event. To explicate is to explain what we have been doing, specifically what we have been trying to do or aiming to do. Explication, then, sees the present as a development out of the past; explication does not see the present as an imperfect vision of the future and the past as an imperfect vision of the present. Another way of putting this is to say that explication sees the evolution of practices not the progress of practices; or, alternatively, it is a progress “from” not a progress “to”. To believe in “progress to” is to be concerned with the alleged existence of how the world “really” is independent of us whereas to believe in “progress from” is to be concerned with how the world is relative to ourselves. How the world is

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relative to us cannot be understood independent of our interaction with the world and how we have acquired along the way our way of thinking and acting. If a practice evolves, and if the norm that informs the practice is implicit, then we should be able to distinguish among and identify: (a) some originating practice, (b) the understandings of that original practice, only one of which is authoritative, (c) the circumstances that prompt or demand the evolution of the practice, (d) the process by which we extend our understanding of the practice, and (e) the understandings of the process of (d), only one of which is authoritative. 2.1 An Originating Practice Let us begin with (a) the notion of an originating practice. The originating practice or set of practices is communal life. The practice is fundamental; the explication of a practice that appears in a text is derivative. Practices are not texts. Texts or interpretations of texts do not overrule practices but try to help us to understand the practice. The accuracy or legitimacy of a text or written interpretation of a practice is by reference to how the practitioners understand themselves. 2.2 Understanding the Originating Practice Explication presumes that at least some of the time we can recapture the original or earlier senses of a practice. This is what makes possible the understanding of some historical texts. Sometimes the texts even help us to identify the practices. The originating practice is to be understood by reference to the explication that the original practitioners gave to their practice. Any critique of an originating explication can only be by reference to another originating explication. The originating explication that serves as the critique of all other explications or interpretations is the authoritative explication. For convenience sake we shall refer to the scholarly attempt to recapture the explication that the originating practitioners gave to their practice as antiquarianism. The claim that we can never recapture the original sense of a practice would, from the point of view of explication, annihilate all subsequent understanding, i.e., lead to nihilism. If this claim is that there was an original sense but we cannot get it, then the claim is self-contradictory for it presupposes that we know in some sense what we cannot know in another sense. If this claim is that there was no authoritative understanding of an originating practice then it is either (empirically) pointing to the existence of conflicting understandings or (logically) denying the existence of standards or norms internal to a practice or set of practices. The empirical claim that there are or have been conflicting understandings can never by itself establish that there is no authoritative explication. It is always open to say that some of the participants have missed the point of the practice. In real life we do this all of the time. The logical claim that there are no standards or norms internal to a given practice cannot itself be understood or taken to be an intelligible remark unless there is

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another more authoritative context of practices from which a subordinate practice is being explained or condemned. The claim that all practice lacks an internal standard is unintelligible or self-contradictory. Hence, there is always some authoritative context. Understanding this last remark is the first step toward understanding what philosophy is all about. It is important to stress that, from the point of view of explication, it is a mistake to explain a practice or the interpretation of a practice by reference to an alleged substructure. The appeal to substructure (which is an exploration) misses the original point of what it means to understand ourselves. There are several kinds of criticism that can be made from within the antiquarian enterprise. First, some practitioners can be criticized for failing to see or to follow the implicit norms of a practice. Second, any practice can be criticized by reference to a more fundamental practice with which it might be in conflict. Third, the antiquarian who really understands the norms internal to a set of practices might expose the existence of conflicting practices, each of which is internally consistent, but which conflict with each other in a way that cannot be resolved by appeal to a higher level practice. There is a fourth kind of “criticism” in which we reveal a “conflict” between the norms internal to an originating practice or set of practices and a later set of practices within the same culture. This is an important and meaningful kind of critique but it still presupposes that there is an authoritative explication both of the originating practices and the subsequent development of a set of practices in the light of new circumstances. We shall address this shortly. There is a fifth kind of “criticism” in which we reveal a “conflict” between the norms internal to a set of practices and another set of practices in a different culture. Again this presupposes that there can be an authoritative explication of both cultures! 2.3 Understanding the Circumstances that Prompt an Evolution in a Practice or Set of Practices Every set of practices can confront novel circumstances (economic, political, aesthetic, religious, legal, moral, and so forth), including but not limited to data or information that challenges pre-existing beliefs. We are reminded that practice always precedes the understanding of the practice, and that even artificially construed practices are parasitic upon a background of practices that preceded the understanding or articulation of those practices. The circumstances are novel in that the originating practice always reflects or is always a practice within a particular historical context. Agents within an originating practice are always reflecting upon what they as practitioners in a specific set of circumstances have been doing. The demand for a more universal articulation of the implicit norms or for a final and definitive articulation of the norms can now be understood as part of the recognition that the explication of the originating practice is never sufficient to address changing circumstances.

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2.4 Understanding the Process by which We Extend Our Understanding of the Practice The norms that inform our practice cannot be applied in a deductive way to the novel circumstances. The relationship between the originating practices and the novel circumstances is not logical but analogical. To extend the norm or to come to understand it in a better way as a result of applying it to novel circumstances is an act of moral insight that cannot explained by reference to anything else. This is what is meant by saying that the pre-conceptual cannot be conceptualized; this is what is meant by saying that no exploration can explain an explication. The pre-conceptual cannot be conceptualized because thought is a reflection upon practice; to believe that it is possible to conceptualize the pre-conceptual is to see practice as the reflection of some thought, where thought is understood to be a picture of some structure, i.e., to see practice as informed by a sub-structure. The application of a norm to novel circumstances requires a consensus among the practitioners, and the cultural activity by which we work toward achieving this consensus among practitioners is itself a practice informed by norms of the highest order.16 Perhaps a helpful analogy would be with the common law. The law certainly has to be rethought and deepened for its applicability to new contexts. From the point of view of explication, it is bizarre to say that there is no norm and that all judges merely fabricate the law all the time (we have already addressed this possibility above in discussing those who deny that there are norms); it would be equally bizarre to say that earlier decisions are hypotheses about later and completely unanticipated cases (thus making law a form of exploration); and it would also be bizarre to say that there is a cunning in the law such that the changes in the law are progressively moving toward a final closure (Hegelian). 2.5 Accounting for the Evolving Meaning of Our Practices The account of the evolution of the explication of the norms inherent in a practice or a set of practices is an historical account of the meaning of those norms. This is what constitutes the history of a practice. It comprises (i) an antiquarian account of each stage of the process, (ii) an account of the novel historical circumstances which routinely might have nothing to do directly with that practice, and (iii) an account of the qualitative transformations of the norm as it is applied to the novel historical circumstances. At each stage it requires the capacity to discern the authoritative explications. Everything that we have said above applies to this process of writing the history of a practice. It is not possible to transcend the past; we can move beyond it but only by first comprehending it. When such an account is used to justify or to buttress the further extension of a norm to novel circumstances then we are engaged in philosophy per se. This is what constitutes philosophy. If the extension is limited to a specific domain then we are engaged in the philosophy of (e.g., mathematics, law, and so forth). If the extension requires consideration of the coherence of our entire common life or our most fundamental norms then we are engaged in metaphysics proper.

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It is possible and useful to distinguish among (1) the activity of providing the historical background, (2) the activity of making the extension, and (3) the activity of using the historical background to justify the extension. Although it is possible to teach the standards of scholarship with regard to history, i.e., (1), it is not possible to construe the extension of the past into the present, i.e., (2), as a specifiable decision procedure. This is the element of truth in the distinction between knowing the history of a practice and engaging in a practice. It is nevertheless clear that the history, i.e., (1), is integral to philosophy, i.e., (3). One cannot do the latter without doing the former. In order to engage in an extension (2) it is necessary to know the norms implicit in a practice, and this will require some historical knowledge of the practice or accepting some authoritative account of a practice. If one were engaged in extending a norm in the law or in mathematics then one would need to know the history of the law or the history of mathematics or accept some authoritative account of those practices. It follows that if one were to engage in the extension of a norm in the practice of philosophy then one would need some historical knowledge of philosophy or some authoritative account of philosophy. Is it possible to provide an authoritative account of any practice without implicitly appealing to the history of that practice? We think not. Norms do not form a deductive system but are embedded in practice. That is why they can never be definitively articulated. As Wittgenstein put it, we can never definitively circumscribe the concepts we use. This does not reflect ignorance on our part but rather that there is no “real” definition of those concepts. This is, ironically, a repetition of Frege’s point that we must distinguish between a rule and the principle of application. In addition, norms can conflict. However, the conflict can only be discovered retrospectively. Even the resolution of the conflict can only be by reference to other implicit norms, not by appeal to anything outside of prior practice. The logic of explication is inherently conservative, for the explication of practice is parasitic upon practice itself. There are two important points to be made about the explication of the original practices of Christianity. First, the earliest Christian communities did not articulate themselves in Greek philosophical terms. Those communities were characterized by their faith in Jesus Christ and in their hope of His return. They did not have or require a formal philosophical rationale. It took two centuries before the force of circumstance, the need to defend themselves and to engage in proselytizing, required them to adopt the habits of an alien intellectual world. Second, whereas the discovery of the psyche by the classical Greeks led them to seek attunement with an invisible and impersonal order beyond the visible order, Christians went beyond that in opening themselves to the revelation of God’s grace. From the beginning then, it can be said that Christianity distanced itself from Greek philosophy. 3. WHY TRADITIONAL NATURAL LAW HAS FAILED AND WILL FAIL TO SUSTAIN A GLOBAL ETHIC What I mean by traditional natural law are those theories that are based upon

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Aristotle’s metaphysics and epistemology.17 (1) Crucial to this position is the view that how we understand the world is primary and how we understand ourselves is derivative. (2) In order for this position to work there must be a single set of categories explaining both the human and physical worlds. (3) As a classical view, Aristotelianism also adheres to the position that all standards (epistemic, moral, and aesthetic) are structures that exist external to the subject. Our epistemological objective is to discover those external standards and then to conform to them. Human practice is understood to be based upon a preexisting theory where the theory refers to standards that exist external to the practice. (4) In order to adapt this view to Christianity, as in the case of Aquinas, it is necessary to have a natural theology in which we can move epistemically from certain kinds of knowledge about the world to knowledge of God. I challenge all four of these assertions. To begin with, the first assumption that how we understand the world is fundamental was challenged long ago by Plato who made clear that the world is not intelligible on its own, rather it is we who bring intelligibility to the world. It is claimed that how we understand ourselves is different from how we understand the world and that how we understand ourselves is fundamental whereas how we understand the world is derivative. Hence, the world of everyday experience cannot be understood on its own terms. Although science can account for the world of appearance, science cannot account either for itself or for ultimate reality. Hence, metaphysics is a kind of non-empirical pre-science. The Copernican Revolution in modern philosophy, originating with the work of Hume and Kant, has only reinforced the fact that science cannot account for itself but requires reference to the subject. It is the subject that is primary. The Thomistic – Aristotelian conception of metaphysics obfuscates the very nature of metaphysical discourse. In a kind of authoritarian and imperialistic way it declares itself the hegemonic proprietor of the very term ‘metaphysics’ so that not to be a Thomist is not to have a metaphysics at all. Much of value in the AugustinianPlatonic and neo-Platonic tradition has been neglected. Revived Thomism, especially in the works of Maritain18 and Gilson blocked serious consideration of the Copernican turn so prominent in nineteenth and twentieth century German Catholic thought. Because of Thomistic-Aristotelianism’s intransigent objection to the Copernican Revolution in Philosophy, many important contributions of post-Kantian German Catholic philosophy, especially phenomenology, have been marginalized. It has thereby blocked adequate consideration of interiority or the inner domain. Further, Aristotelianism is guilty of a kind of intellectual hubris. It refuses to recognize that there is a pre-conceptual domain on which conceptualization relies. More importantly, the pre-conceptual domain cannot be conceptualized. There is a mystery at the heart of the universe that Aristotelianism refuses to countenance. Moreover, this hubris has ethical implications. If the pre-conceptual can be conceptualized, as Aristotelians maintain and I deny, then the relationship between theory and practice can itself be conceptualized or explained in theoretical terms. If one could give a theoretical account of the relationship between theory and practice,

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then such an account would dictate what practice should be. At the heart of traditional natural law doctrine is the epistemological claim that once the correct theory is in place then the practical consequences or the ethical implications are entailed. Whatever qualifications are introduced, the adherent of traditional natural law believes that rules can be understood to apply themselves. What I would maintain is, as both Frege and Wittgenstein have both argued in very different contexts, that there are no rules for the application of rules. The application of rules involves the appeal to the explication (intuitions) about previous practice. With regard to the second assumption, namely that there is a set of categories that applies to both humans and the non-human world, this was something that Aristotle could believe because he subscribed to a metaphysical teleological biology. No one any longer takes that teleological biology seriously. Moreover, a static metaphysics that denies the possibility of new forms becomes in practice a defense of the status quo. In the case of the Catholic use of this principle, Ptolemaic astronomy, feudalism, agrarianism, and the mindless opposition to market economies suddenly become features of Christianity rather than historical accidents. We soon forget that Christianity does not entail a particular economic or political system. The Aristotelian classical notion that theory is primary and practice is derivative has had a devastating effect on ethical practice. A serious defect of the ThomisticAristotelian metaphysical system is that it transforms morality into an intellectual exercise, the application of theory to practice or morality as the reflective observance of rules or ideals. Emphasis is put upon having a correct and defensible theory rather than on how to act. The ideals too quickly turn into obsessions. Inevitably moral sensibility is inhibited or even eroded in favor of an elaborate casuistry. The object seems to be to observe a rule instead of behaving in a certain concrete manner. It achieves the appearance of stability at the price of imperviousness to change. When change can no longer be resisted it occurs as a revolution rather than as an evolution. Obsession with rigid deductive structures, a preoccupation with logical systematicity, has been destructive of both historical understanding and rational criticism.19 None of this is meant to deny that we can articulate our practice. But such articulation amounts to an abridgement or a set of rules of thumb, not timeless and contextless principles. There is never a final and definitive articulation. Finally, it will be said that Thomistic versions of natural law avoid these difficulties by postulating a transcendent supersensible realm beyond the natural realm. I doubt that it does. Aristotle’s metaphysics is an improper vehicle for Christianity. The purely naturalistic reading of Aristotle was a problem even within medieval Christendom. Averroes of Cordoba, for example, an Arab commentator on Aristotle, exercised enormous influence on the early introduction and understanding of Aristotle in the West. Averroes maintained that (1) God is so self-contained that individual human actions are not guided by divine providence, (2) the material world is eternal and not created, (3) the material world is further governed by an internal necessity under the influence of celestial bodies, (4) there was no first human being, (5) the individual soul dies with the body, and (6) the human will acts within material necessity. The trouble with this approach is that it is ultimately rooted in the same

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Aristotelian metaphysical tradition that is at the root of scientism. The commitment to the Aristotelian model of metaphysics effectively reinforces the scientificnaturalistic paradigm. What I mean by this is the following. It presumes first that there is an order or structure in nature independent of cognition; it presumes that human beings can grasp or abstract that structure in a purely naturalistic way since human beings are themselves a part of the natural order and to be understood largely in the same manner; finally, it presumes that a study of the natural order leads naturally to an understanding of the supernatural behind that order. The common philosophical assumption is that we first start with the intelligibility of nature and then move progressively to the understanding of ourselves and then of God. It assumes that how we understand the world is primary and how we understand ourselves is secondary. It assumes that an understanding of God is gained through an understanding of the natural world. Christianity is reduced to the status of an ingenious hypothesis within the scientific game. The modern secular misrepresentation of morality that we identified earlier is nothing more than Aristotelianism in secular garb. The Aristotelianizing of Christianity has unwittingly contributed to the misguided growth of secularism. 4. NATURAL RIGHTS & HUMAN RIGHTS Sometime during the seventeenth century it was recognized that modern science had undermined the classical notion of the physical world as a telos. It was now to be maintained that teleology existed only in the human world. The same principles that were previously defended in terms of a more robust metaphysical natural law were now defended as natural rights. This had a disastrous effect on ethical thinking. If one asserts that there is a teleological process, then one has to identify and distinguish what is truly natural or teleological from what is not. Empirically this turns out to be impossible in practice. It was not a difficulty for Aristotle because he could embed humanity in a larger teleology encompassing the whole universe. But when the larger teleological envelope disappears, there is no way to distinguish a genuine and natural teleological process from some fabrication. What happens in practice is that natural rights thinking becomes an exercise in which one pretends to find one’s favorite practices to be natural. Rival natural rights theories become thinly disguised private political agendas. Rawls, Nozick, Dworkin, and analytical philosophical political theory still play this game. The final debacle of Aristotelian naturalism comes about when it is completely modernized. In a completely modern form there is no teleological biology but physical determinism. The human being is seen as a completely natural creature with a variety of basic desires. Rights are no longer the ends themselves but means for the satisfaction of basic desires. As such, rights are only prima facie, may be overridden, and may be possessed by any entity, not just individual human beings. Such rights can be welfare rights, i.e., they may be such that others have a positive obligation to provide such goods, benefits or means. What distinguishes one ‘liberal’ social philosopher from another is (a) whether rights are understood to be absolute

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or prima facie, (b) the content of the rights, and (c) the lexical ordering of those rights. In the modern secular context, what are our choices? Either we have advocates of natural rights for whom the language of rights is mere rhetoric to mask private agendas or we have advocates of ‘human rights’ who under the pretense that there are basic truths about human beings, truths of which they are in possession, such that an international super agency such as the United Nations should be given unlimited power to impose these views on everyone. In order to make this work, they have to add a few questionable assumptions: (1) human beings are, basically, good, not sinful, and the ultimate goal of human existence is happiness in this life (secularization); (2) human beings are to be understood mechanistically, hence evil behavior is exclusively the result of external20 forces (scientization); (3) social technology can create a utopia21 by the control of external forces (scientization); (4) society is a hierarchical structure best served by a powerful and authoritarian state supervised by the new clerisy (usually law school graduates). None of this can be avoided by turning back to traditional natural law since the latter makes no sense in a modern scientific universe. It was the grounding in Aristotelian naturalism that got us into the problem in the first place. To sum up, traditional natural law, dependent as it is on Aristotelianism as I have defined it, is not capable of generating a global ethics. On the contrary, in its corrupt forms it becomes a basis for a new barbarism. 5. WHO IS RESPONSIBLE FOR MORAL RELATIVISM? The Aristotelian realist gives the following self-serving account of the contemporary moral crisis. Ethics is a matter of having the right theory and then applying that theory to practice. If there are conflicting theories, then there will be different or conflicting practices. The current nihilistic crisis results from the perception of conflicting theories and the belief that no theory can be independently validated. The only solution is to find the right theory or at the very least assert its existence. There is, however, an alternative account of the crisis. What history shows is that this insistence on the final, definitive theory led to endless theological controversy and to religious wars. The Enlightenment Project could only trump Aristotelian realism by adopting its insistence on finding the final, definitive theory and maintaining that science would lead us to it. When science failed to do it, postmodernism came into being. The root of the problem is the insistence that ethics is a matter of having the right theory first and then conforming practice to it. It is Aristotelian realism that is the intellectual source of the contemporary moral crisis. It is only when we divest ourselves of its misguided conception of the relationship between theory and practice that we can even begin to respond to the crisis.

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6. CONVERGENCE TOWARD GLOBAL ETHICS It is ironic that precisely as the world becomes more homogenized the academy focuses on multiculturalism, diversity, and relativism. This merely shows the extent to which the intellectual world is out of sync with the real world, exactly what one would expect of people who put theory before practice. For Catholics this is especially tragic. At the very time when the dominant Protestant culture no longer believes in itself and it has become possible for Catholics to play a leadership role in modern liberal culture, Catholic intellectuals cling to the old model. Earlier I mentioned that a static metaphysics that denies the possibility of new forms becomes in practice a defense of the status quo. Traditional defenders of natural law are unable to see the divine presence in the technological project. Nor are they able to see that a substantive belief in Christianity is necessary to sustain it. Rather than becoming responsible Socratic critics of its occasional failure to cohere with the divine, they become adversaries and condemn the entire project. Presented with the golden opportunity to elicit and foster the responsible development of personal autonomy in Catholics in Latin America and Africa, all too many Catholic intellectuals advocate the modern counterpart of feudalism, namely socialism. A global ethics is in the making. It will either thrive under Christian (and Abrahamic) auspices or it will decline into the kind of barbarism I have previously described. Defenders of traditional natural law, who insist upon anchoring practice in theory, an unfeasible intellectual exercise in any case, may gloat over the collapse. If they do, it will be in ignorance and with “dirty hands.” Clarence A. and Mildred Legendre Soule Distinguished Scholar Chair in Business Ethics College of Business Administration Loyola University New Orleans NOTES 1

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‘Liberty’ is the absence of arbitrary external constraint. To have political liberty is to be able to restrain or limit the government. ‘Freedom’ (hereafter, autonomy) is an inner condition, the condition of imposing order on oneself. Liberty is a means to freedom. Liberty degenerates into license only when it is not in the service of freedom. For reasons that will become progressively clear, I would like to avoid or do away with “rights” talk altogether. It appears as if this can be best done by absorbing what I want to say about “rights” into the discussion of the rule of law, especially as formulated by Hayek. Locke’s formulation of a doctrine of “rights” is an example of the kind of theorizing that seeks to transcend practice, something I criticize in the latter part of the essay. That what Locke wanted to say about “rights” takes on the exact opposite meaning in contemporary contexts is the inevitable fate of such abstractions. Hume, Burke, Bentham, and Hegel all criticized Locke’s doctrine. One of the reasons I insist upon using this concept is that it is an example of how the evolution of a concept deepens our understanding of its meaning. The ancients found the locus of autonomy in the Polis. It was the Polis that was to be free by governing itself. It is part of the glory of Christianity that it transferred the locus of freedom from the Polis to the individual. It is not an accident that Christianity is a significant contributor in the history of liberty. We must distinguish between ‘ethics’ and ‘morals.’ Ethics applies, strictly speaking, only to teleological systems; moral philosophy (deontology) denies the existence of teleology. From Kant

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NICHOLAS CAPALDI onward, however, a number of theorists including Hegel and Mill combine both by making autonomy our ultimate ‘end.’ I believe there is a serious misunderstanding of ‘autonomy’ in Maritain in Man and the State (1951, 83-84), that reflects a failure to understand fully both Kant and Hegel. Three considerations lead me to maintain that personal autonomy requires theological support. First, personal autonomy as I understand it presupposes free will (Kant). This amounts to saying that there is no naturalistic (and scientific) explanation of the ultimate truths about who we are. Second, in order to render intelligible our notion that and our narrative about how evolving meaning preserves continuity and coherence requires theological support. Finally, in order to sustain our autonomy under trying circumstances requires a spiritual stamina. Since I have argued elsewhere (The Enlightenment Project in the Analytic Conversation) that naturalism and scientism fail, theology in some sense emerges as the only discipline that can provide ultimate comprehension. This essay is not written in the spirit of triumphalism. Such an attitude would be incompatible with a deep commitment to Christianity. I provide the narrative account that I do not only because it strikes me as true but as a way of finding the divine element in the modern world. Sometimes the quest and its accompanying narrative function to sustain us during difficult times. My narrative is an explication (to be defined below) and not a theoretical account. E.g., Michael Novak, The Catholic Ethic and the Spirit of Capitalism (1993), provides a narrative in which social justice is not incompatible with free market economies. Explication is to be contrasted with both elimination and exploration. Elimination: When we theorize from an elimination point of view there is an explicit substitution of new ideas for old ideas. Elimination is a form of radical replacement through innovation. All forms of reductionism are forms of elimination. Elimination is most characteristic of physical science and technological thinking. Some examples would be the elimination of Ptolemy’s geocentric view of the universe and its replacement by Copernicus’ heliocentric view of the universe. Another example would be the elimination of traditional theories of disease by the discovery of microbes. Elimination is a form of technological thinking which seems to make sense if there is some prior agreed upon framework in terms of which we can judge that one new theory is better than an old theory. Early Positivism subscribed to the view that all correct thinking is eliminative thinking. Certainly in the early Russell and in the positivism of the Vienna Circle one sees an optimism about how science is the successful elimination of superstition and nonsense and how philosophy is the overseer of the transition period to a totally scientific world view. The major difficulty with elimination is that there must be some independent criterion in terms of which we can judge an elimination to be successful. Positivists believed, originally, that science bore the empirical mark of its own validity. Therefore, in order to decide when one theory has successfully eliminated another we can look to science itself. Within physical science we would, presumably, find examples of “successful” reductions of one theory to another or eliminations of one theory in favor of another. So it would seem to be the case that it is a simple matter to extract the criteria for such success. Unfortunately this turned out not to be the case. Instead of being a minor technical problem of specifying when reduction-elimination was successful, it turned out that there was no consensus on when elimination was successful. In logic, in mathematics, and in science there are a priori elements (semantic notions, conventions, appeals to common sense or to intuitions, and so forth) which cannot be eliminated in a straightforward and unambiguous fashion. Turning to the larger question of how science “progresses” from one theory to another we find an even greater mystery. Exploration: In exploration we begin with our ordinary understanding of how things work and then go on to speculate on what might be behind those workings. In time, we come to change our ordinary understanding. The new understanding does not evolve from or elaborate the old understanding, rather it replaces it by appeal to underlying structures. The underlying structures are discovered by following out the implications of some hypothetical model about those structures. Exploration is a mode of thinking found in the physical sciences and is exemplified, for example, in the use of the atomic theory to explain chemical behavior or the behavior of gases. But exploration is also preeminently the mode of thought of academic social science. By alleged analogy with physical science, the social sciences have persistently sought to discover the hidden structure behind the everyday understanding of social activities. From Durkheim to Marx, Freud, the functionalists, Chomsky, and so forth, social scientists have persistently sought to reveal a structural level of which we are not immediately aware. Exploration, then, stresses the search for structure rather than for

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meaning; the search for the formal elements underlying the everyday world rather than believing that the everyday world can constitute its own level of understanding. The problem with exploration is the same as the problem with elimination, namely, there is no way to confirm or disconfirm an exploration. We are unable to choose among competing explorations. Denied formal criteria or extra-systematic criteria for evaluating their own hypotheses, theorists can only fall back upon aesthetic and/or informal criteria. As a consequence immense prestige is accorded to those individuals skillful in formulating clever, ingenious, and sometimes bizarre hypotheses. Ingenuity becomes the benchmark of success, and like present day movements in the arts leads to sudden shifts in fashion. Another dead-end is the appeal to intuition so that rival explorers claim that their hidden structure hypothesis “better” captures some intuition about our ordinary understanding. There is, of course, no independent way of establishing this. The failure of foundationalism in science and epistemology leads writers like Richard Rorty to a kind of despair and to the speculation that perhaps philosophy is an interminable conversation of incommensurable voices (i.e., in our terms, unconfirmable explorations about other explorations). My understanding of the Finnis-Boyle-Grisez version of natural law (see Lustig in this volume) is that it attempts to articulate itself by reference to phronesis. The notion that self-understanding is primary was articulated by Plato as early as the Phaedo. The qualification “ultimately” should be taken seriously. Explicators do not deny that we can use physical science to “understand” the world and to “understand” the human body. But “understand” has to be understood relative to a larger and more fundamental framework which can only be explicated. We can treat parts of our body as if they are mechanisms as long as we do not forget that “we” are not mechanisms and that it is the “we” who are employing the model of a mechanism. The search for structure is defective only if it is a search for something reductive. As Zanardi has pointed out to me, Voegelin, Girard, and Lonergan all are practitioners of “non-reductive structural analysis.” Plato’s notion that our practice imperfectly copies the “Good”, the Judeo-Christian notion that God cannot be fully conceptualized, Heidegger’s notion of retrieval, and Wittgenstein’s assertion that we can never circumscribe a concept are all alternative ways of making this point. The assertion of a pre-conceptual domain is treated by advocates of scientism as a form of mysticism. I believe this is consistent with the historical understanding of natural law to which Maritian subscribes in Man and the State (1951, chapter IV), but it differs from Maritain in not being tied to an Aristotelian naturalism. The recognition that (a) we cannot deduce future applications but must rely upon a kind of intuition and (b) we cannot conceptualize this act of intuition, have led some to argue or to suggest that the process is simply a power struggle (e.g., Foucault). What is missed in the latter claim is that such a claim amounts to an exploration of the pre-conceptual. Hence, the claim amounts to a denial of (b). If there is a denial of (b) then there must be some way of choosing among rival explorations. If, as we have maintained, there is no way to make such a choice without appeal to another explication then the denial of (b) either reflects misunderstanding, failure to carry the point far enough, or the disingenuous attempt to impose an elimination disguised as an exploration or as an explication. The everyday world is self-explanatory. Metaphysics is thus no more than the most comprehensive and most general characterization of existent things. As a form of knowledge, Aristotelian metaphysics is arrived at by abstraction from the specialized sciences. Hence, metaphysics is a kind of empirical super-science, the philosophy of physical science. One consequence of this naturalism is that modern secular Aristotelians do not speak so much of metaphysics but prefer to speak about ontology. The question of ontology, namely what constitutes the most general features of reality, is tied in Aristotelianism to epistemology, understood as the study of the basic categories or concepts used for describing and explaining the everyday world. Reality is said to consist of individual or particular things or substances. A substance (thing) is something more than its properties, and it is ultimately, though problematically, identified grammatically as the subject matter of discourse. In Aristotelian metaphysics there is a tendency to reduce meaning to reference. It is in this sense that Aristotelians approach their metaphysics through epistemology. Jacques Maritain, The Degrees of Knowledge (1932). Gilson has been defended against this charge by Emerich Coreth, Metaphysics (1968). This defense along with the renaming of the New Scholasticism to The American Catholic Philosophical Quarterly marks the beginning of the decline of Thomism and the reclamation of the Copernican turn.

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NICHOLAS CAPALDI This criticism is a brief summary of a larger argument to be found in Michael Oakeshott, ‘The tower of Babel,’ (1991, 465-487). ‘External’ may be taken either narrowly to mean outside the body or widely to include the body as long as it denotes something not capable of direct control by the will. The classic discussion of gnosticism is to be found in Voegelin (1952). Voegelin provides (in Chapter IV) an historical progression that begins with medieval immanentism, then progresses to humanism, and then to the Enlightenment to progressivism to liberalism to positivism and finally to Marxism.

BIBLIOGRAPHY Capaldi, N. (1998). The Enlightenment Project in the Analytic Conversation. Dordrecht: Kluwer Academic Publishers. Coreth, E. (1968). Metaphysics. New York: Herder and Herder. Engelhardt, H.T. (2000). The Foundations of Christian Bioethics. Lisse: Swets & Zeitlinger. Maritain, J. (1932). The Degrees of Knowledge. New York: Scribner. Maritain, J. (1951). Man and the State. Chicago: University of Chicago Press. Novak, M. (1993). The Catholic Ethic and the Spirit of Capitalism. New York: Free Press. Oakeshott, M. (1991). “The tower of Babel.” In: T. Fuller (Ed.), Rationalism in Politics and Other Essays. Indianapolis: Liberty Press. Voegelin, E. (1952). The New Science of Politics. Chicago: University of Chicago Press.

CHAPTER 6

DANIEL MCINERNY

NATURAL LAW AND CONFLICT

Though it appears that St. Augustine never did say, as has been so often attributed to him, that pagan virtues are at best splendid vices,1 the claim itself is compelling, inviting us to inquire whether the differences between Christian and various pagan or secular ethics, are or are not irreducible in character. While not at all denying, for example, certain general similarities between Christ and Socrates, we may nonetheless be tempted, after all comparative work is finished, to declare with the political theorist Harry Jaffa that “Jesus standing silent before his judges and Socrates demanding a state pension as “retribution for his offense” present an irreducible difference in human types” (Jaffa, 1979, 28). So it may well seem that the conflict between Socratic magnanimity and Christian humility is one dramatic instance of the more general phenomenon of incommensurability between rival moral and political cultures. The kind of inquiry I am proposing might then see itself as trying to discover whether or not there is some impartial standpoint, independent of two or more conflicting ethical viewpoints, from which one might adjudicate the conflicts between them. For it would seem that without an appeal to such an impartial standpoint, one is not capable of doing anything more than asserting his favored viewpoint over others.2 For Catholics in particular this kind of inquiry has often been directed toward the theory and tradition of natural law, especially as embodied in the thought of St. Thomas Aquinas. For it is the natural law which, presumably, affords an impartial perspective on conflicting viewpoints precisely because it is the nongainsayable foundation upon which all moral and political cultures are built. The natural law thus holds out the promise of what Bernard Williams has called an Archimedean point for the “leveraging” of moral and political truth, one which is both available to our natural lights and serves as the first orientation to our supernatural destiny. When it comes to the conflict between magnanimity and humility, Aquinas’s own solution evinces an explicitly theological reconciliation (ST II-II, Q 129, a 3, ad 4). The virtuous Christian recognizes the qualities of his greatness which he possesses by God’s gift, while at the same time he recognizes his defects due to his fallen nature. But Aquinas’s theory of natural law would also seem to affirm that inquiry into the 89 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 89—100. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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basis of this virtuous Christian’s character will yield a natural core which can be philosophically defended against its secular rivals as the measure of human action always and everywhere. How is such an inquiry to be conducted? 1. NATURAL LAW: PROSPECTS AND LIMITATIONS Once again, the point of my turning to the Thomistic theory of natural law is to see if this theory provides a set of nongainsayable precepts that are first in the order of human practical cognition, and from which we will be able to find some rational “leverage” as we look to adjudicate between conflicting cultural outlooks. The nongainsayability of the precepts is crucial, for if the natural law precepts themselves were able to be coherently denied — that is, if they were not so absolutely first in the order of practical cognition that every other practical consideration presupposed them — then the natural law precepts would be just as much in need of some prior rational justification as the virtues (or goods or rules) which are the subject of the ethical conflict we are trying to resolve. However, the fact that the natural law precepts are first in the order of practical cognition and therefore are nongainsayable is not the first thing that should be said about the Thomistic theory of natural law I am considering.3 When Aquinas defines the natural law in question 90 of the Prima secundae of his Summa Theologiae, the emphasis is decidedly upon the natural law as a theological doctrine. Aquinas makes clear that the natural law is nothing other than the eternal law, which is none other than God’s providence, as it is participated by human nature (ST, I-II, Q 91, a 1). Only in its aspect as an effect in the creature is the natural law, in question 94 of the Prima secundae, considered by Aquinas as something which is first in the order of human practical cognition. In its nature, the natural law is a rule of reason formed in the very mind of God. This distinction is important because without a clear emphasis upon the natural law as a theological doctrine it is all too tempting to construe the natural law as a set of precepts which the human mind in some way generates. As Russell Hittinger has written, “The fact that we first perceive ourselves discovering or grasping a rule of action does not mean that the human mind is first in the causal order, or in the ultimate order of being” (1999, 102). When it comes to natural law, God is first in the causal order, in the order of being, while our nongainsayable knowledge of the natural law precepts is first in the order of our discovery, of human practical cognition. Yet this emphasis upon the theological underpinnings of natural law would seem to dampen our hope that natural law could serve as an impartial standard by which rationally to resolve ethical conflict. The notions of a providential God who promulgates His rules of reason through the inclinations of human nature presuppose much knowledge of God that is contestable — not the least of which being the very notion of God’s existence. But here we must underscore that quoadnos, from the point of view of human practical cognition, it is not necessary to grasp the existence of a providential God who promulgates His rules of reason through the inclinations of human nature in order to grasp the nongainsayable first precepts of practical reason. I can grasp the reasonableness of some practical rule without understanding

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the cause of that rule. This being said, even our most rudimentary grasp of the natural law precepts is a grasp of something which is an extrinsic cause of human acts, which in some sense orders the powers of our nature to pursue some good.4 By this I mean, following Aquinas, that for me to judge that it is best for me to nourish myself now in order to maintain my existence, as well as perhaps to enjoy social goods with family and friends, is the same as to acknowledge that my human powers are ruled by something extrinsic to them and binding them. Alasdair MacIntyre has argued, against Scotus’s understanding of the relationships between natural law, obligation, and divine command, that to know that God commands those precepts of the natural law, in obedience to which one’s good is to be realized, gives one no further, additional reason for obedience to those precepts, except insofar as our knowledge of God’s unqualified goodness and omniscience gives us reasons — as it does — for holding his judgments of our good, as promulgated in the Old and New Laws, to be superior to our own (1990, 154).5

Thus even in the order of human practical cognition our first grasp of the good is of something which extrinsically binds us, whether we recognize ourselves as being bound by a providential divine lawgiver or not. Two further features of our grasp of the natural law precepts are important to note. First, the picture of human fulfillment toward which the natural law precepts direct us is grasped by us as a fundamental unity. As Aquinas argues, Aristotle’s proof at Physics VIII for the unmoved mover has important implications for human action (ST I-II, Q 1, a 4). This is due to the fact that ends or goods are movers, moving human desire. According to Aquinas, the movers in the kosmos, which include the ends which human agents pursue, form a network of necessary relations, a per se order, governed by a first unmoved mover. Without an ultimate term of motion, an ultimate end, the motion of the other parts of the order cannot ever be fully explained. This is the reason why Aquinas can say that our first understanding of the good is of a unity: because our first understanding of the good is always most fundamentally of something that is the ultimate term of our desire. This also explains what Aquinas means by the ratio boni. The “notion of goodness” is principally found in the ultimate end, but also in those things which “tend to” the ultimate end, because the beginning of something is always ordered to its completion.6 Something is called good, falls under the ratio boni, either because it is the ultimate end or is ordered to the ultimate end. This point is important because it entails that any description of the human good as a mere assortment of heterogeneous and incommensurable values fundamentally misconstrues the very notion of “goodness.” The “good” by definition indicates order, not incommensurability. This is not to say that there is just one value — not even for Aquinas the love of God — which practical reason “sums” whenever it has to decide between two or more competing considerations. Aquinas would agree that the human good is made up of many different items of intrinsic value that are irreducible to one another in terms of their character as goods. But Aquinas would go yet further by saying that items of intrinsic value can still be ordered one to another, just as we find him doing when he first lays down the precepts of the natural law at Q 94, a 2 of the Prima secundae. There Aquinas writes that “all things to which man has a natural inclination, reason naturally apprehends as good, and consequently as things to be pursued, and their contraries as evil and things to be

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avoided. Therefore,” he concludes, “according to the order of natural inclinations, is the order of the precepts of the natural law” (ST I-II, Q 94, a 2). Hence the second important feature to note of our grasp of the first natural law precepts is that even this fundamental grasp manifests an order, a hierarchy of goods culminating in one, best good that is absolutely first. The situation of an intrinsically valuable good in such a hierarchy, moreover, subordinated to higher goods, does not mean that its intrinsic value is compromised. It is rather to say, along with Aristotle, that its value is twofold: both for itself and for the sake of something else (Nicomachean Ethics I. 7 1097a26ff.). With this account of our grasp of the natural law precepts, has Aquinas’s natural law theory provided us with sufficient resources to overcome the problem raised at the outset, and thus to find in the natural law the kind of impartial standard we need in order to resolve cross-cultural ethical conflict? By way of approaching this question, consider the precept governing the appropriate assessment of our selfworth, a precept ordered, for Aquinas, to the development of both the virtues of magnanimity and humility. Presumably, this precept belongs to that third level of natural inclination which is appropriate to human beings as rational animals. Presumably, too, it is a precept nested within the hierarchy of precepts which govern all the inclinations of human nature, culminating in our natural desire to know the truth, especially about God. Prescinding from education, habituation, and other forms of moral development which endeavor to heed the precept and instill virtue, the precept’s guidance is exceedingly general. At this level, all one can really say about the genuinely appropriate assessment of self-worth is that it must have something to do with obedience to the rest of the precepts of the natural law — pursuing what they enjoin us to pursue, avoiding what they enjoin us to avoid. This very general guidance, however, is the basis for our correctly founding our sense of self-worth upon our development in virtue (rather than, say, some good of fortune like honor). Nonetheless, this general guidance provided by the precept does not seem sufficient to help us adjudicate between different, even incommensurable, conceptions of virtue. We return with Harry Jaffa to the problem of the pride of Socrates seeming to conflict with the humility of Christ. Accordingly, a possible conclusion we have to consider, at this stage of the argument, is that the first precepts of the natural law simply do not provide sufficient resources to overcome cross-cultural ethical conflict. 2. ANALOGY AND CULTURAL CONFLICT In a comparative study of the moral theories of Aquinas and Mencius, an early Confucian of the fourth-century B.C., Lee Yearley has offered an interpretation of how resolution of conflict between cultures might work, one which, importantly, does not appeal to Aquinas’s theory of natural law (1990). Yearley, in fact, proposes that resolution of cross-cultural ethical conflict only becomes possible once we eschew such robust theoretical entities as Thomistic natural law theory. So, while my account of Thomistic natural law theory seems to point us toward the conclusion that the guidance of the first precepts is too “thin” to help resolve ethical conflict,

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Yearley challenges my project with the claim that the first precepts of the natural law are too “thick” to do so, that is, they carry with them theoretical commitments which are incommensurable with the theoretical commitments of a variety of other ethical viewpoints. For Yearley, in order to do what he calls the comparative philosophy of religions, one must strike a media via between, on the one hand, the “idolatry” of univocity — i.e., seeing rival moral and political conceptions only in terms taken from one’s own ethical tradition — and, on the other hand, the despair of equivocity, seeing the differences between rival cultures so starkly that one gives up hope of trying to compare them. One strikes this middle way by avoiding both the level of primary ethical theory and that of secondary ethical theory. One wants to avoid the level of primary ethical theory simply because on this level there is already a fair degree of universality. Theory on this level reflects “people’s ability to cope with the normal problems the world presents,” and the explanations it provides allows people “to predict, plan, and thereby often control important aspects of life” (1990, 176). Thus the ability to predict and adapt to, say, changes in the weather, is “obviously truthful” and will appeal cross-culturally without much controversy (1990, 176). Agreement on the level of primary theory, in short, is readily available but not much help in assessing differing conceptions of far more substantial notions, such as virtues. Secondary theories come into play, according to Yearley, when some distinctive, peculiar, or distressing occurrence or set of occurrences disrupts our ability to employ our primary theories. Secondary theories, for example, “develop ideas about a realm of powers or class of beings, like benevolent spirits, that clearly differ from evident phenomena to explain or interpret those extraordinary, or even normal, matters that primary theories cannot deal with adequately” (1990, 176). It is because secondary theories vary so substantially from culture to culture that Yearley does not look for the success of his comparative project at this level. He thus distinguishes a new level between primary and secondary theory: practical theory. When Aquinas discusses the fear of life-threatening situations, for example, he does not simply see it, in Yearley’s phrase, as an “implacable, unrefinable part of human character” (1990, 177). He understands this fear in the light of a practical theory involving complex interrelationships between reason, passion, and habit, which lead him to defend a response to fearful situations very different from that held by most people in their primary theory. What is so beneficial about this level of Aquinas’s analysis of courage, according to Yearley, is that it is so neatly detachable from troublesome notions in his secondary theory, such as natural law and grace. And it is here, when the practical theory of a thinker has been distinguished and detached from his primary and secondary theory, that what Yearley terms the analogical imagination goes to work. Yearley finds a guide for such analogical imagining in Aquinas himself, as in Aquinas’s plotting of the analogical relation between pagan and Christian notions of self-worth. No doubt, Yearley avers, there are “strains between Aristotle’s magnanimity and St. Paul’s humility that Aquinas either fails to highlight or slides over too easily” (1990, 186). But Yearley favorably cites Aquinas’s analogical use of terms like “magnanimity” and “humility” when comparing Aristotle and St. Paul. Through this use we see “how some notion of a

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higher good must be revered by the magnanimous man and recognize how selfconfidence and a sense of personal nobility may not only fit with humility but even be a necessary part of it” (1990, 187). Yearley’s assessment here is surely more attractive to the Thomist than that of Harry Jaffa, who takes Aquinas’s comment on the chapter on magnanimity at IV.3 of the Nicomachean Ethics as hardly more than a scholastic soft-shoe around the incommensurability between Christianity and this pagan virtue (Jaffa, 1979, Chapter 6). But still, one desires greater clarity on what Yearley is appreciating in commenting favorably on Aquinas’s analogical imagination. For any analogy or comparison ultimately takes its meaning from the kind of proportion existing among quantities. Analogy implies measurement. So what, we may ask, is the “scale” that Yearley is using when he recognizes that self-confidence and a sense of personal nobility can fit with humility? The metaphor of the scale is meant to indicate a standard by which we are to ascertain the relevant similarities and differences between competing viewpoints. If I examine Amish and Spartan conceptions of courage, for example, hoping to plot analogies between them, then I need to know on what basis I will or will not exclude Amish pacifism or Spartan militarism from my consideration. If I decide to consign these notions to their respective secondary theories, what am I left with? It would seem I am left with an analogical conception of courage too thin to be helpful, at least when it comes to resolving cross-cultural ethical conflict. “Fight for what you believe in and be prepared to suffer for it” is a conception of courage at home in any number of conflicting ethical viewpoints. On the question of how to discern the relevant similarities and differences between competing conceptions of a virtue or any other value, Yearley is at his most elusive and unsatisfying. While claiming he is searching for the true account of courage, he also says that the locus of that comparison “must exist in the scholar’s mind and not in the objects studied” (1990, 198). The comparison is thus “an imaginative construction”; the theorist manipulates the different and the common, choosing “which to highlight and which to neglect” and when to relate them (1990, 199). The ordering power of the analogical imagination is for Yearley akin to the literary imagination; for here too one needs to suspend normal ways of conceiving of human action and learn how to inhabit a wholly different world of one’s own creation (1990, 202). In describing the person of the requisite analogical imagination Yearley invokes a version of the “good person” criterion of Aristotle’s Ethics, though he insists that such a person’s sensibilities and judgments will be closer to the aesthetic than the ethical (1990, 202). I can agree with Yearley that some understanding of analogical reasoning is required for the evaluation of virtues from rival ethical systems; and, moreover, that a significant role in such evaluation must be played by the imagination’s ability to inhabit the ethos of rival systems (though it may be that, like Aquinas, one is already living in one of the contending systems; see MacIntyre, 1990, Chapter 5). But it seems that just what is required to make such sympathy fruitful in discerning relevant similarities and differences between rival viewpoints is the recognition that secondary theory permeates every level of an ethical view. It is simply not possible to think accurately about Amish resolve without understanding how it is a function of a pacifist theory drawn from a certain understanding of Christianity. Something similar can be said for Spartan courage, which reposes upon

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a particular understanding of the political dimension of the human person. Yearley’s attempt to separate secondary from practical theory is nothing less than a sundering of the integral bond between the theoretical and practical orders in human action. This is not to say that the influence of what Yearley calls secondary theory on practical theory and even primary theory is in the form of fully-articulated theory. Our cognition of the first precepts of the natural law is not the expression of a theory in this sense, though it is important to note that this cognition is a speculation upon the good, however rudimentary, and in fact is continuous with the more rigorous articulation of that cognition such as we find at Summa Theologiae, I-II Q 94, a 2. To give Yearley his due, he pronounces himself on guard against the temptation to flatten the account of a thinker by prescinding from his secondary theory (1990, 179). His antidote, however, is simply for the theorist to remain vigilant. But what it means to remain vigilant in not flattening an account of a thinker when the very point of Yearley’s analogical exercise is to prescind from secondary theory is not clear. It has something to do with remaining attentive to what is analogical between conflicting theories, which presumably is to remain attentive enough to the secondary levels of the theories in question (179). But at the same time, how can it be, as I suggested above, that what Yearley calls secondary theory is the key to assessing the relevant similarities and differences between rival ethical viewpoints? Doesn’t the appeal to secondary theory simply send us back to the problem of incommensurability? Once again, on my own account of Thomistic natural law theory, the first precepts do not seem of themselves to have the resources to resolve such conflict. So how can it be that the natural law, or any other aspect of Aquinas’s secondary moral and political theory, can help us with our problem? Perhaps all we have left is recourse to something at least like what Yearley calls practical theory? 3. DIALECTIC AND THE NATURAL LAW At this stage of the argument it is necessary to take a closer look at how Aristotle and Aquinas address a specific problem of conflict between ethical viewpoints, an example of which is found in Aristotle’s dialectical inquiry into the nature of eudaimonia, human happiness, in Book I, Chapters 4-8, of the Nicomachean Ethics, coupled with Aquinas’s comment upon it. The example is instructive because it concerns the theoretical origins of moral inquiry and, therefore, serves as an illustration of how resolution of conflict between entire ethical viewpoints gets started. But why do I call Aristotle’s inquiry into eudaimonia an inquiry into conflicting ethical viewpoints, and how can an Aristotelian inquiry pertain to a discussion of Aquinas’s natural law theory? In answer to the first question, though I grant that Aristotle casts the argument more in terms of individual desires for happiness, the inquiry can also be applied to the problem of conflict across entire ethical theories or cultures. Aquinas says that “Because man is most strongly influenced by the last end, it is necessary that types of life be distinguished according to the diversity of the ultimate end” (In I

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Ethicorum, lectio 5, no. 58). And if types of life, then also types of culture. In the dialectical examination of the candidacies of virtue, honor, pleasure and wealth for the ultimate end, we can see entire ethical viewpoints, ancient, medieval, modern and contemporary, as being represented insofar as entire viewpoints are ordered to these ends. In regard to the second question, while I in no way want to impute to Aristotle Aquinas’s natural law theory, I do want to argue that there is significant overlap in their respective discussions of to agathon and lex to justify the claim that they are mapping the same theoretical terrain. This goes back to the idea that our understanding that something is best for us and should be pursued is in no need of the further information that God commands us to pursue it, except in the ways earlier specified. For Aristotle and Aquinas, then, dialectical inquiry begins with the collection of endoxa, the reputable opinions about a given topic, and through a critical examination of these attempts to discover a first principle which is not simply opined or supposed — in Plato’s idiom, is unhypothetical — and which saves what is best in the endoxa while leaving aside all that hitherto had barred them from reconciliation. Properly speaking, however, dialectical inquiry remains probable in character, all the way down to its conclusions. Thus, in order to manifest an unhypothetical first principle, something more than a dialectical argument is required. What is needed is a grasp of self-evident principle which, along with the probable results of dialectical inquiry, enables us to articulate the nature of the topic in question, a nature which then serves as the standard by which we determine what is genuinely salvageable in the endoxa initially examined. In the inquiry into human happiness, I contend, this grasp of self-evident principle is the same as our grasp of the first precepts of the natural law. In Book I of the Nicomachean Ethics, the dialectical inquiry into human happiness begins with hardly more than a name, eudaimonia, for that which human beings take to be their ultimate end. To transpose this into a Thomistic idiom, every human being grasps the ratio boni, the notion that there is something which totally satisfies his or her desire for good. Yet there is a variety of different understandings of what the ultimate end consists in. In Chapter 5 of Nicomachean Ethics I, Aristotle pursues dialectical arguments by which he eliminates virtue, honor, pleasure and wealth as candidates for human happiness. That is, he uses other reputable opinions about happiness to undermine the candidacies of these goods. Honor, for example, depends upon the actions of those who confer it rather than in the person honored. But we think happiness is something that more than anything else is proper to human agents and not easily taken away. Thus happiness does not consist in honor (Nicomachean Ethics I.5 1095b22-26; and In I Ethicorum, lectio 5, nos. 62-64). Although this dialectical conclusion points the way toward the articulation of the true nature of happiness, it nevertheless remains probable in character, due to the probable character of the premises of the argument. What is needed is a grasp of self-evident principle by which we will able to “leverage” an argument about the true nature of happiness and resolve the apparently irreducible differences between the candidates for happiness. And this is just what we find Aristotle discussing at Nicomachean Ethics I.7, right after he finishes the dialectical examination of

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opinions. As Aquinas puts it, Aristotle begins Nicomachean Ethics I.7 by proposing “certain common notions and conditions of happiness that are obvious to nearly everyone.”7 The first is the fact already mentioned, that whatever else the ultimate end may turn out to be, it is something absolutely ultimate (this is Aristotle’s teleiotaton good). Though thin in its substance, this criterion is substantial enough definitively to rule out certain candidates for happiness, such as wealth, from the running. Wealth is always pursued for the sake of something else, and so it fails, on its own terms, to satisfy the most basic criterion of human fulfillment. A second important criterion is the notion of self-sufficiency (autarkeia), which also belongs to the very notion of ultimate end. Whatever else human fulfillment may turn out to be, we know that it will contain within itself everything necessary for the sake of fulfillment, thus making us sufficient to ourselves in regard to our happiness. Although Aquinas never refers to the natural law in his comment on this text of Aristotle, my claim is that these two criteria, finality and self-sufficiency, are from Aquinas’s point of view part and parcel of our cognition of the first precepts of the natural law. As I discussed earlier, the notion of an absolutely ultimate end is embedded within our fundamental grasp of the hierarchical order of the first precepts. The criterion of self-sufficiency, too, is embedded within our grasp of these precepts. For at each level of natural inclination our rational nature directs us toward goods which render us more and more sufficient unto ourselves. At the level of inclination which we share with all substances, we are directed to preserve ourselves in existence — the sine qua non of any possibility of self-sufficiency. At the level of inclination which we share with other animals, we are inclined to family and other social goods, which provide us with the nurturing, education and companionship by which we are able to mature into ever greater degrees of selfsufficient activity. Finally, at the level of inclination which we possess as rational animals, we are directed ultimately to those intellectual activities by which we are most of all able to contain within ourselves the resources of our happiness. It is interesting to reflect upon the fact that self-sufficiency is not understood by either Aristotle or Aquinas as a mode of isolation from community. Community, in fact, is what makes self-sufficiency possible and allows it to be exercised. The natural law always directs our inclinations to common goods, and in so doing it enables us to achieve, through the various aspects of common life with others, the self-sufficiency so necessary to virtuous action.8 A complete discussion of Nicomachean Ethics I.7 would reveal how the criteria of finality and self-sufficiency help Aristotle, through his famous ergon or “function” argument, assess the nature of happiness as an activity of soul in accord with virtue. The criteria enable Aristotle to move beyond the merely probable conclusions of dialectical inquiry and articulate a nature, what I called earlier an unhypothetical first principle, which provides him with a standard of truth by which to judge what is genuinely salvageable in the reputable opinions about happiness. Accordingly, we find Aristotle at Nicomachean Ethics I.8 confirming his definition of happiness, as Aquinas describes it, by returning to the reputable opinions and showing how his definition saves what is best in them.9 With the definition of happiness in hand, as Aristotle and Aquinas go on to show

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us, inquiry proceeds toward the natures of the individual virtues. Knowing that happiness must be an activity of soul in accord with virtue, and with the endoxa pertaining to the individual virtues at hand, we are in position to decide the truth about varying conceptions of courage or magnanimity or humility, and thus attain the measure against which relevant similarities and differences between these varying conceptions are to be assessed. 4. CONCLUSION How does this appeal to the natural law differ, however, from the seemingly unsuccessful appeal I considered at an earlier stage of the argument, where it seemed the content of the first precepts of the natural law was too thin to be helpful? Well, as I have just argued, certain criteria embedded in our natural inclination toward an ultimate end do in fact, even in their “thinness,” play a substantially directive role in determining the nature of human happiness. At this most general level of inquiry into the human good, because we are dealing with an absolutely first principle which cannot be coherently gainsaid, the natural law precepts do real work. But it does not take long for the diversity of human opinions about happiness, and about the various goods, rules and virtues which constitute that happiness, to come to the fore. So does the natural law become very quickly useless? On the one hand, while in the face of rival opinions and the conflicts which they generate a direct appeal to natural law precepts is usually not enough to resolve the problems, on the other hand the natural law precepts, insofar as inquiry successfully builds upon their foundation in both its dialectical and non-dialectical modes, do play a role in resolving cross-cultural ethical conflict. In light of this conclusion, we can further understand Aristotle and Aquinas as rejecting any claim for the absolutely irreducible difference between ethical viewpoints. Aristotle’s definition of eudaimonia, for example, resolves conflicts between seeming incommensurables by serving as a standard which is both impartial between conflicting opinions and partial to them all. It is impartial insofar as the self-evident principles which inform it enable the definition to transcend the opinions in conflict. But the definition is also dependent upon the reputable opinions in conflict insofar as resources for the construction of the definition, and most importantly the criteria of finality and self-sufficiency, are bound up with each one of the conflicting opinions as nongainsayable characteristics of the meaning of human fulfillment. It is crucial to underscore, however, that the definition does not commensurate the opinions in the hard sense of reducing all value to a single standard. The plurality and heterogeneity of the human good is preserved, even as the “parts” become ordered to each other and to the ultimate end.10 Finally, we can note that Aristotle’s and Aquinas’s contributions to the problem of resolving cross-cultural conflict avoid the weaknesses indicated in Yearley’s analogical method. Of foremost importance, Aristotle and Aquinas affirm the need for articulating, both through dialectical and non-dialectical modes of inquiry, an unhypothetical principle which serves as the criterion of assessment of competing opinions. Without such a principle, we are simply lacking reasons for plotting the

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analogies we do. Secondly, we have seen how in the inquiry into happiness, knowledge of the first precepts of the natural law, part of what Yearley calls Aquinas’s secondary theory, is in fact integrated into the search from the very beginning. Knowledge of the natural law, in other words, is at play all the way down to the ground of our practical thinking, even down to what Yearley calls primary theory. Now, if Yearley’s claim is that Aquinas’s secondary theory vis-à-vis the natural law does not enter the inquiry as fully-articulated theory, then his point is taken. But natural law theory is bound up with the inquiry into happiness, quoadnos, as the self-evident criteria for the determination of the happiness we human beings seek. Senior Research Associate Notre Dame Center for Ethics and Culture Notre Dame, Indiana NOTES 1

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4 5

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I depend here upon T.H. Irwin, “Splendid vices? Augustine for and against pagan virtues” (1999, 106, note 2). For more on this point see Alasdair MacIntyre’s essay, “Relativism, power and philosophy” (1987, especially 396-397): “I am claiming that it is only in those forms of human relationship in which it is possible to appeal to impersonal standards of judgment, neutral between competing claims and affording the best type of rational justification both relevant and available, that the possibility opens up of unmasking and dethroning arbitrary exercises of power, tyrannical power within communities and imperialist power between communities.” At this stage of the argument I am especially indebted to Russell Hittinger’s essay, ‘Veritatis Splendor and the theology of natural law’ (1999, 97-128). Law for Aquinas is by definition an extrinsic cause of human acts. See ST I–II, Q 90, prologus. MacIntyre continues: “The ‘ought’ of ‘One ought to obey God’ is the same ‘ought’ as the ‘ought’ of ‘To do so and so is the good such a one; so such a one ought to do so and so’—the same ‘ought,’ that is, as the ‘ought’ of practical reasoning” (1990, 154). (ST I-II, Q 1, a 6): “semper inchoatio alicuius ordinatur ad consummationem ipsius.” On this point, I have learned from Ralph McInerny’s essay, “Grisez and Thomism” (2000). Nicomachean Ethics I.7 1097a23-1097b21; and In I Ethicorum, lectio 9, no. 103: “Primo proponit quasdam rationes communes et conditiones felicitates, quae quasi omnibus sunt manifestae.” Aquinas’s definition of law includes the orientation to the common good. ST I-II Q 90, a 2. I am grateful to Russell Hittinger for reminding me of the natural law’s direction to the common good at every level of our natural inclination. See, for example, (Hittinger, 1999, 103). In I Ethicorum, lectiones 12-13. On the question of order see In I Ethicorum, lectio 1, no. 1.

BIBLIOGRAPHY Hittinger, R. (1999). “Veritatis Splendor and the theology of natural law.” In: J.A. DiNoia, O.P. and Romanus Cessario, O.P. (Eds.), Veritatis Splendor and the Renewal of Moral Theology. Chicago: Scepter Publishers, Our Sunday Visitor, Inc., and Midwest Theological Forum. Irwin, T.H. (1999). ‘Splendid vices? Augustine for and against pagan virtues,’ Medieval Philosophy and Theology 8, 105-128. Jaffa, H. V. (1979). Thomism and Aristotelianism. Westport: Greenwood Press Publishers. MacIntyre, A. (1987). “Relativism, power and philosophy.” In: K. Baynes, J. Bohman and T. McCarthy (Eds.), After Philosophy: End or Transformation? Cambridge: MIT University Press.

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MacIntyre, A. (1990). Three Rival Versions of Moral Enquiry. Notre Dame: University of Notre Dame Press. McInerny, R. (2000). “Grisez and Thomism.” In: N. Biggar and R. Black (Eds.), The Revival of Natural Law: Philosophical, Theological and Ethical Responses to the Finnis-Grisez School. Burlington: Ashgate. Yearley, L. (1990). Mencius and Aquinas: Theories of Virtue and Conceptions of Courage. Albany: State University of New York Press.

CHAPTER 7

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NATURAL LAW AND HISTORICAL MINDEDNESS1

1. KEY QUESTIONS Universities do a fairly good job of exposing students to the diversity of meanings flooding in upon all of us through the various media. Henry Adams gave the name “multiplicity” to this modern experience of education. But there is an educational task that universities often perform poorly: Does higher education effectively teach students how to sort out, evaluate, judge multiplicity? How well do we really teach students to judge among the rival theories, diverse interpretations, and competing truth-claims they encounter? Contemporary natural law theorists have written about a much debated part of this experience of multiplicity. Their focus is often on the irreducible differences between rival moral and political cultures (McInerney, 2004, 93). Their question is whether traditional natural law theory provides an impartial basis for sorting out rival claims about human goods. Their answer is usually at odds with the increasingly popular belief that conflicts among incommensurable2 goods are not rationally resolvable (McInerney, 93). This belief may seem unassailable, but it does have a troubling implication. While some rival versions of human well being may be compatible with social order, others are likely to be incompatible. But if rational discourse is irrelevant to conflicts of the latter type, will raw political power be the only remaining means for settling such disputes? So an initial question is important: Does natural law theory have the resources to offer an alternative to irreducible multiplicity among rival moral and political notions of human well being? An affirmative answer apparently depends on how one responds to at least two other questions. First, does the theory offer any justifiable measure by which to evaluate diverse, competing goods? Second, are the basic precepts of natural law too general to be of much help in settling specific conflicts? One way of sidestepping the first problem is to accept that multiple goods are irreducible to any single good but to understand them as ordered or ranked in 101 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 101—113. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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relation to one another. For example, the desire to survive is a precondition to the pursuit of higher ends but is not itself an ultimate good against which to measure all other goods. Similarly the pursuit of wealth is not rationally chosen as an ultimate end but ideally serves higher goods. But, if there is a ranking of some goods, do all goods fit into a clear hierarchy such that rival claims about goods could be sorted out by reference to their standing in the hierarchy? While many will agree with Aristotle’s view that practical reason does not choose an endless series of means but must pursue some ultimate end (McInerney, 98), they are not likely to agree on a single human good that exhausts all the ways in which human beings may flourish. In the absence of a single ultimate measure of rival goods, the usefulness of natural law in sorting out multiple truth-claims about human ends may be in doubt. There was a second question about the usefulness of natural law in adjudicating so-called culture wars. Are natural law precepts so general as to be of little help in resolving specific cross-cultural conflicts (McInerney, 98)? As an example of this problem of specificity, consider Aristotle’s principle of formal equality: “Treat equals equally and unequals unequally in proportion to their differences.” The precept is uncontroversial since it amounts to a prescription of consistency in one’s thinking and doing and a proscription of contradiction and absurdity in the same. But what if one culture measures equality in terms of economic status and another culture determines standing by tribal or national identity? Aristotle’s precept is compatible with both cultural practices, so it is too general to resolve some rivalries among cultural beliefs and practices. Does the usefulness of natural law end where the specifics begin, where the heterogeneity of human goods reflects what Herodotus called “the wonderous diversity of humankind”? Perhaps it does. However, there may be a way of bridging the gap between general precepts and specific cross-cultural conflicts. Exploring this possibility is the focus of the rest of this essay. 2. THE APPEAL TO PERFORMANCE Some natural law theorists make a distinction between the first principles of moral reasoning and the principles of moral knowledge3 (Kruschwitz, 2004, 153-155). Aristotle’s principle of formal equality is an example of the latter; however, it is secondary to a basic imperative of moral reasoning: “When there are no relevant differences in how cases are understood, then understand and treat them similarly.” Put more simply: “Understand and treat similars similarly.” But, as noted above, such generalities by themselves are not sufficient to decide between rival notions of equality. So principles of moral knowledge seem to require more guidance than what principles of moral reasoning supply. Is natural law theory limited to discussions of such general precepts? An affirmative reply need not be grounds for dismissing the usefulness of the theory. The principles of moral reasoning are worth attention. They are the “operational” principles presupposed by all culture-building. Understanding them may be a crucial step in evaluating rival claims about human goods. However, such evaluating will

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require more than understanding general principles. To move beyond formal precepts and to make determinant judgments about specific rules requires insights into those concrete cases. These insights occur, however, as outcomes of inquiries conducted by different individuals at different times and places. Crossing the gap between the general and the specific requires the slow, sometimes advancing and sometimes regressing historical search for an understanding of persons, their relationships and capacity for moral and intellectual growth. This admittedly very general observation leads to an equally broad suggestion that we take seriously some of the insights of developmental psychology and historical research in order to understand natural law as historically emergent moral knowledge guided by basic operational precepts or imperatives but only slowly accumulating a better understanding of what genuine human flourishing means.4 This line of inquiry promises to bridge the gap between natural law precepts and the multiple contending voices about the human good. Making the promise is one thing; carrying it out is another. What steps are needed to begin delivering on the promise? In what the medievals called the ordo cognoscendi, what comes first is human inquiry. Prior to theories about natural law, prior to rival cultural narratives about the human good, concrete persons have complex experiences of competing desires, troubling questions, reflective choices and accumulating habits. These ordinary experiences occur as a matter of fact, but some individuals question and try to articulate the interplay of these experiences. The product of their reflections is sometimes a theory about human nature and its ends. But their questions preceded their answers, their operations in understanding preceded theoretical formulations of what they understood. So what? Perhaps a misstep occurs if natural law is identified with the later articulated formulations and overlooks the prior performance of the questioners. It is not uncommon for philosophers to operate primarily on the basis of formulations or texts. Piaget would place this mental life in the middle of his hierarchy of operations. We first learn to operate on things (so the infant manipulates toys); we then learn to operate on symbols or verbal formulations (so the earnest college student struggles to interpret Melville’s white whale or a philosopher puzzles about Marx’s five meanings of “alienation”); but eventually we may learn to operate on operations (then some may develop research methods for disciplines; others may study cognitive performance; still others may puzzle about relations among different geometries and logics). Will shifting talk of natural law from formulated precepts to prior operations make any difference? Recall the opening remarks about the problem of multiplicity and the possible remedy offered by natural law theory. Diverse and often incompatible truth-claims are part of the babble of voices flooding in upon contemporary audiences through the various media. How can anyone sort out these rival claims? To appeal to revelation or to one’s own tradition may be personally satisfying but hardly persuasive to those from other traditions. Does natural law theory offer an impartial basis for adjudicating rival claims? A first impression is that the answer must be no. The problem of multiplicity includes rival theories, and an appeal to natural law theory would seem to add just one more voice to the list of contentious claimants. But a second possibility is that natural law theory may avoid

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this status as one voice among many. If it formulates insights into the operations that all culture-building and theorizing presuppose, it may be in a unique position (McInerney, 95). But what are those operations, how do they develop historically and how are they evidence that cultures are not closed boxes confining their inhabitants to inherited and incommensurable views of human well being? Answers to these questions require more than a single paper. Still, a beginning can be made by limning the steps involved in pursuing the answers. For example, the inquiry begins by focusing on human performance and not by assuming that the products, e.g. formulations of such performance, are universally given. For example, some may assert that cultural traditions are incommensurable frameworks “boxing in” their inhabitants and allowing them no objective basis for judging either their own or another tradition’s beliefs and practices. The suggestion is that we test this position against performance. The test is likely to yield the following. As a matter of fact, we do raise questions about our own inherited views, and sometimes we alter them. Anthropologists commonly examine and arrive at well founded judgments about their understanding of worldviews quite remote from their own. Historians “time travel” and enter into the common sense of different times and tribes. The record of human performance is at odds with the earlier assertion about confinement to inherited views. Contradictions between common performance and subsequent theorizing may sometimes be obvious, but the hard questions remain: Who is the operator able to move among varied cultural contexts? How does the operator develop over time? Is development in the operator compatible with claims about a universal natural law? Is the multiplicity of ethical theories compatible with the same claims? These more difficult questions outline the next steps in clarifying how natural law theory may contribute to solving the puzzle about multiplicity. 3. DIVERSITY IN THE OPERATOR Multiplicity seems to be ingredient in discussions of ethics. For example, a standard ethics text presents multiple ethical theories with their embedded principles and rules. At least students may ask why there is so little consensus on which theories and principles to adopt. Unfortunately the textbook responses usually take the form of a debate between camps popularly labelled relativists and absolutists. Their arguments usually arrive all too quickly at an intellectual impasse. Rather than take that debate as in any way a basic analysis of human performance in moral decision-making, suppose one focused on what parties to this debate often assume about ethics. In particular, do both camps assume that ethics is a matter of deducing justifiable courses of action from previously accepted moral principles (principles which absolutists usually ground on basic moral intuitions but which relativists argue have non-moral and variable grounds)? What if one made a different set of assumptions about ethical theories, their embedded principles and the performance that precedes their formulation? Presumably ethical theories are explicit attempts to defend their embedded principles and rules. A principle of moral knowledge formulates a

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generalized understanding originating in prior insights into and judgments about specific cases. Contrary to textbook presentations of already formulated theories and principles, original inquirers begin with puzzles about specific cases and only later formulate their normative insights as generalities applicable to similar cases. In the hands of someone intent on systematic understanding, these generalities later become parts of a theoretical and unified viewpoint. These assumptions about the genesis of principles are compatible with the fact of diversity among principles of moral knowledge. Still, they do not answer the original question about why there is so little consensus on which ethical principles to adopt. To this question a provisional response cites three sources of diversity among ethical principles (Lonergan, Method, 326). First, the multiplicity of ethical norms may be due to differences in cultural and historical environments; i.e., as “matters of fact,” moral norms are relative to place and time. A critic may quickly reply that mere matters of fact are unexplainable and that cultural relativity does not entail ethical relativity. Both criticisms are legitimate but miss the basic point. Differences in actual conditions at different times may be the basis for different moral insights that are subsequently generalized as principles. For example, norms for the care of the elderly may vary with the survival conditions of a group. A nomadic people in a routinely harsh environment may operate with a rule that prescribes abandoning the aged member who is no longer able to make the annual trek to winter feeding grounds. In another instance, usury may be condemnable or acceptable depending on the economic development of the group and the purposes of usury within a given setting. In yet another instance, religious tolerance may become a principle only after political and cultural diversity arises to present the limited options of either tolerance of diversity or coercion of conscience with its resulting social evils. Prior to that time a principle of tolerance may be of no concern to anyone within the culture or, in the transition from cultural homogeneity to heterogeneity, may be thought to be a dangerous and unnecessary innovation. A second source of differences among ethical norms may be due to the presence or absence of certain differentiations of consciousness. For example, concern for the outsider and group extension to non-members of rules protecting members may become normative only after compact consciousness has become capable of abstract generalizations that ignore some empirical differences as mere matters of fact. The general historical case is when tribal identity, while important, is no longer thought definitive of what it means to be human. Then a principle that persons are deserving of respect and protection from harm may encompass more than tribal members because the notion of “person” has expanded beyond a previous understanding. Developments in both religious and scientific understanding may contribute to this shift from a tribal toward a more universal notion of persons as having worth independently of tribal identity. But prior to that shift, rules applying to insiders may not apply to outsiders. The relativity of these rules need not be controversial. Just as differences in understanding ground differences in moral culpability, so, absent the negligent conscience, rules binding in one culture may be at odds with those binding elsewhere without the differences being due to moral fault.5 A third origin of diversity among ethical principles lies in the presence or absence of various “conversions.” This is the most controversial of the claims about the

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sources of diverse ethical principles, but there is no avoiding the basic issue. Persons carrying out inquiries have the insights that are later the basis for generalized principles. But persons may be more or less open to changing inherited views, more or less willing to be moral, more or less at home in a world that contains manipulable resources as well as transcendent mystery. The degrees of intellectual, moral or spiritual development in the inquirer presumably will affect the inquirer’s understanding and evaluation of specific cases. The medievals were more succinct: Quidquid recipitur ad modum recipientis recipitur. Since understanding and evaluation are acts of specific persons and are the basis for the subsequent generalizing of normative judgments into principles of moral knowledge, we should expect disagreements about such principles. Are types of conversion preconditions to a person’s more adequate understanding and judging? Consider performative differences familiar to many persons. Most accept that intellectual development occurs when, for example, the child no longer evaluates the moral seriousness of an act solely in terms of the quantity of harm done but begins to count intention as a relevant measure of moral responsibility. Many will also accept that a type of intellectual breakthrough occurs when adults are able to think about what is good in the nonpalpable terms of social order and bonds of trust. Instead of confinement in one’s thinking to immediate and tangible goods, one affirms goods that are due to the mediating but invisible operations of promising and trusting without which social order collapses. Absent this intellectual advance, one’s moral judgments about economic policies and political programs are likely to remain focused solely on personal consequences. How does something like moral conversion make a difference in moral viewpoint? Political realism (Realpolitik) and moral resignation to the evils that “must be done” in order to survive are a response many reluctantly adopt. In contrast, moral conversion may broaden the horizon of one’s concern beyond the interests of one’s tribe. What secures the latter’s good is at best a relative good that may be trumped by the good of the alien within one’s borders or the good of some population beyond them. Have we met or heard of persons resisting political realism and the mantra of “My country right or wrong”? Did we find their actions admirable? Just what was Oscar Schindler’s change of heart about? How does something like religious conversion make a difference in moral viewpoint? Many persons have wondered about the pacifism of Quakers or have puzzled over the Truth and Reconciliation Commission in South Africa. Perhaps they have read something by Sister Helen Prejean on the death penalty. In all these cases they probably noticed a willingness to forgive the oppressor. Why forego justice and extend mercy? Moral viewpoints that appeal to a calculus of utility or reciprocal justice or some balance of rights and duties do not provide adequate answers. Their viewpoints do not capture the meaning of such cases because they are missing the prior insights and judgments of those who have experienced some type of spiritual transformation. So there are variables in actual historical contexts, in differentiations of consciousness and in conversions. These variations are sources of multiplicity in views about moral principles and human flourishing. More fundamentally these are variations among moral operators, among moral subjects, who to varying degrees

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are open to further moral insights and so to more developed principles of moral knowledge.6 4. DIVERSITY AMONG ETHICAL PRINCIPLES Does the fact of diversity or multiplicity among moral operators and principles eliminate any claim to there being a universally valid natural law? A negative reply may seem more plausible if note is taken of some parallels to the same three sources of diversity in scientific understanding. For example, physics has a history; its development occurs across variable historical contexts. All the same, physicists are aiming at what is invariant. For example, they assume that, while hydrogen atoms themselves differ in regard to place and time, they can be understood to behave in regular patterns. No one tries to develop a physics that differs with each place and time or to invent a new theory of hydrogen atoms for the residents of the next town (Lonergan, Insight, 52-53). In addition, a physicist’s understanding of generalized and invariant relationships is not accessible to undifferentiated, pre-theoretical consciousness. If pre-theoretical minds find incomprehensible scientific talk of what is unimaginable, this is hardly evidence of deficiency in the latter. In the history of the natural sciences, one finds examples of how scientists themselves have taken centuries to break with the assumptions of pre-theoretical consciousness; e.g., the assumption that space was an imaginable property of being.7 Finally, when intellectual conversion has occurred in the scientist, the visible data of hydrogen atoms are not identified with what is real. Instead, one’s scientific understanding of the data is what one’s talk of hydrogen atoms refers to, and, to the extent the data support that understanding, the scientist may claim to know something about hydrogen atoms. In the absence of intellectual conversion, the speaker or listener will likely consider the visible data to be real and the physicist’s talk of unimaginable but intelligible patterns of relations among the data to be abstract and fictive entities. The inference here is that the understanding of both scientific principles and ethical principles varies with actual historical context without entailing a strong relativistic conclusion or talk of irreducible differences. An understanding of both varies with the presence or absence of differentiations of consciousness. At least one type of conversion makes a difference in whether talk of laws and principles will seem to be talk about reality or just about “our constructs.” What else is there to say about the multiplicity of ethical principles? Besides the three preceding sources of diversity, there is a fourth source. Ethical principles are predictably multiple because they are abstract generalizations. This characterization of ethical principles may be clarified by referring to the function of classical laws in the natural sciences. What Galileo or Newton sought were patterns of relations among things or events. The patterns were to be invariant and formulable as laws governing how variable things interacted or variable events occurred. These classical laws have two important limitations. First, they are abstract, i.e., they capture a limited number of

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variables and ignore others as irrelevant. Second, as abstract formulations they refer to an understanding of ideal cases, i.e., to what is true when the significant variables and only these variables interact. The qualifier ceteris paribus appended to such formulations is an acknowledgement of the abstractness of the laws. In classical science this phrase warned against assuming a strict isomorphism between a generalized pattern and any particular case. Whether a generality applies to a specific case requires further insights into that case because the idealized formulation captures relations among only a limited number of variables. Each new specific case presents the possibility of unanticipated and even interfering variables. Now suppose that ethical principles are similar to classical laws in that they too are abstract and so formulate an understanding of ideal cases. This position may be compatible with the “absolutistic form” of many ethical principles. Despite their form, ethical norms that prescribe or proscribe actions without qualification may be abstract formulations about idealized or limited cases and so not universally applicable to all possible cases. But are there no universally applicable principles? Three kinds come to mind. Some principles may be true by definition (“Murder is wrong”); others may be so general as to resist easy identification of exceptions (“Never do avoidable harm to another”). Still others, as noted above, may formulate the basic imperatives of moral reasoning and so be assumed by the operations of all culture-building. Insofar as ethicists assume the first two types of universal norms are what all genuine ethical principles are or they assume that absolutistic principles are not idealized or abstract formulations, they are likely to get bogged down in the old debates over moral relativism. As an alternative to such debates, consider what ethics would be like if most deontological principles were held to be abstract formulations analogous to classical laws. Then they would be seen as abbreviated versions of more complex statements either (1) because they leave implicit the qualifier ceteris paribus or (2) because they formulate only one part of an implicit comparative judgment; e.g., “Whenever you must choose between a and b, prefer a over b.” These suggestions are not likely to win a favorable hearing among many deontologists and natural law theorists with a classicist mindset. Still, the usual objections will have difficulty with two common experiences in making moral decisions: (1) the comparison of options in simple choices; (2) the diagnosis problem. Suggesting that principles of moral knowledge have a hidden comparative form takes into account that any choice presupposes options. Any choice is at least the rejection of its contrary, so the comparative form of a rule makes explicit the performance that precedes its formulation. The comparison of options in simple choices is often overlooked because the right choice is so obvious.8 Of course a deontologist may find this point uncontroversial since the question is whether some absolute rule proscribes all possible options besides the one identified in the rule. But then the question is: How does one know this rule is exceptionless? Have all possible options been surveyed and found inferior to the prescribed one? Lest this line of inquiry detour into the induction problem in the sciences, let’s connect the question of whether deontological formulations are usually incomplete statements to

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the second common experience, i.e., the diagnosis problem. No matter how absolute the principle, it will remain a generality. To apply it in any particular case will require that a person understand the principle, understand the conditions present in the case and understand the relevance of the principle to such conditions. The last two steps are not themselves generalities but specific sets of insights. An analysis of decision-making in medical treatments may clarify this remark. The physician operates with a background knowledge of generalized patterns of symptoms and therapies. To apply this generalized understanding to a specific patient requires insights into the patient’s condition and a grasp of what patterns of symptoms and therapies are relevant to understanding and to treating this case. Absent the specific diagnosis, the physician has a series of generalities valid in some cases but not in every. By themselves these generalities will be valid for any number of cases, but, if the diagnosis problem is mishandled, the patient may die. The obvious point that the “concept without experience is blind” has a less obvious implication. Suppose that there is a third term between the concept (principle) and the experience (specific case); let this third term be an act of understanding. Then, contrary to the standard treatment of ideal cases favored in ethics textbooks, the diagnosis problem blocks any strict deduction from concept or principle to what should be done in the specific case. Understanding of the concrete case and of the relevance of determinate principles cannot be deduced. Instead, moral decision-making inescapably rests on the mental operations of persons as distinct from some logic, method or technique that could automatically generate the needed insights.9 But persons exhibit the first three sources of moral diversity already cited, and so the question of the universal validity of natural law becomes more complex. It is not enough to attribute diversity among operators and principles to variables in historical context or inherited and incommensurable traditions. There are also the variables included under the categories of differentiation of consciousness and conversion. Given this added complexity in the origins of ethical diversity, natural law theorists should expect consensus on principles of moral knowledge to remain elusive. 5. IMPLICATIONS The absence of consensus about principles of moral knowledge leads some to observe that contemporary ethics is more accurately labelled a field of inquiry rather than a discipline. Any instance of the latter should exhibit methodical procedures, common vocabulary and agreement on the identity of basic problems. Contemporary ethics often seems to lack these characteristics. Is there no hope then that ethics will ever be a discipline as opposed to a field of inquiry? A modest improvement may occur if more serious attention is given: (1) to the fourth source of diversity among ethical principles, and (2) to the first principles of moral reasoning as reflected in the performance of moral decision-makers. If deontological principles (with two types of exceptions) are abbreviated comparative statements or abstract formulations that include only a limited number

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of variables, then they apply only in ideal cases, i.e., when the limited number of variables alone are present as significant issues. But in real cases exceptions are to be expected. In addition, the diagnosis problem is resolvable only by attention to significant variables in particular cases that cannot be anticipated in every instance by a generalized pattern or ethical principle. This is the significance of the analogy between a classical law and an ethical principle. The same qualifier “all other things being equal” applies to both. What cannot be ruled out in advance is the possibility either of exceptional circumstances requiring revisions in a principle of moral knowledge or of judgments about the non-relevance of the principle. If objections occur to a deontologist, the question is whether one can cite a principle that has not already been cited as an exception. Nevertheless, absolutistic formulations do have limited uses. As noted above, some will be true by definition (“Murder is wrong”); some will be formal norms (“Never do avoidable harm to another”); still others will be basic imperatives of moral reasoning (“Treat similar cases similarly”). What are the implications of the preceding remarks for understanding natural law precepts and their usefulness in sorting out rival claims? Grant the abstractness of most of the principles of moral knowledge. Grant as well that all possible competing options cannot be anticipated, so most of these principles will, for pragmatic reasons, not be formulated as comparative statements. Grant that the gap between the ideal case and the particular case, which sets up the diagnosis problem, requires the implicit appending of ceteris paribus to such principles. Still, puzzling out just what possibly relevant conditions (“other things”) may be present (thus determining what principle is used as a guide to decision-making) takes time and takes the efforts of a moral operator. But to realize this much is to recognize (1) how fundamental the first principles of moral reasoning are to any reasoned defense of decisions by a moral operator, and (2) how questions of personal and cultural development are relevant to understanding what decisions an operator makes. But, again, who is the operator? The ideal answer is the person of good judgment. But who qualifies for that title? If the second and third sources of moral diversity, i.e., differentiations of consciousness and three types of conversion, are inescapable variables in moral decision-making, then the answer is approximative. A person of good judgment is a moral operator exhibiting the cited forms of intellectual differentiation and conversion. Such a person is not born to the title but may develop sufficiently to approximate what it means. A further implication, then, is that a study of the sources of diversity among ethical principles introduces a sense of the historical development of moral understanding both in individuals and in cultures.10 Even further, since principles of moral knowledge follow upon moral insights into specific cases, natural law should be understood as historically emergent moral knowledge.11 What is universal (in the ordo cognoscendi) are the first principles of moral reasoning. Hence, in understanding natural law, one does not need to oppose a human order of meaning and an external objective order.12 It is possible to understand natural law in terms of human operators making sense of their moral experiences according to universal principles of moral reasoning and, at the same time, affirm that the generalized norms that historical operators formulate are sometimes reflective of what is

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objectively good, even if not universally accepted to be so. This understanding of natural law theory directs attention to the operational principles of moral reasoning, to the performance of the moral subject. More concretely, this version of natural law theory invites moral subjects to attend to themselves as specimens of developing understanding and good will. In time, if enough persons take up the challenge to shift their attention back and forth between the cases at hand and how they are going about making moral decisions, perhaps fewer rival claims will seem incommensurable. 6. SUMMATION Some general reflections can restate and summarize the preceding pages. While nonhuman entities function blindly in following laws, human beings must discover their moral laws. Our practices develop and also regress over long periods of time, sometimes in accord with our best available understanding and sometimes in rebellion against or forgetfulness of it. Our historical learning process is long and painful; we haven’t come near to finishing the process. We are safe in saying only that we know what we have left behind but not in asserting self-confidently what we are moving toward. That is, some practices of the remote and of the recent past we know to be indefensible. To engage in such practices now is to act unintelligently and irresponsibly and, in the extreme, to invite our own extinction. In short, an understanding of natural law is not given all at once but acquired slowly, perhaps reluctantly; and the limited insights gained remain a precarious achievement liable to the each new generation’s commitment or indifference to understanding correctly and to choosing responsibly. Department of Philosophy Saint Edward’s University Austin, Texas NOTES 1

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The title of this paper indicates the author’s indebtedness to an earlier study: Bernard Lonergan’s “The Transition from a Classicist World-View to Historical-Mindedness” in A Second Collection (1974, 1-9). This paper expands beyond the scope of the earlier article in locating sources of diversity among cultural meanings and in clarifying how these sources challenge some views of natural law and of ethics. The central puzzle is well known: If there is a natural law, why are there so many differences among human beliefs and practices? What this paper explores is how one may solve this puzzle by identifying natural law in the first place with operational principles of moral reasoning and only secondarily with historically emergent understanding of concrete moral goods and the later formulations of principles of moral knowledge. As used in the literature “incommensurable” is often ambiguous. Sometimes it refers to differences that are irreducible but compatible (e.g., choices between living in a rural area or in an urban area); other times it refers to differences that are both irreducible and incompatible (e.g., choices between policies promoting formal equality among persons and policies preserving inequitable distributions of

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advantages and disadvantages). The second, stronger meaning of the term “incommensurable” is the one that deserves attention. I assume the distinction between types of principles reflects the more basic distinction between the mental operations occurring in moral inquiry and the formulated products of such inquiries. A theory of natural law that takes history seriously will contain both commonality and diversity. I am assuming here that operational precepts or imperatives are the commonalities of moral reasoning while diversity appears in the historically emergent understanding of the implications of those precepts acquired through both pretheoretical practice and theoretical inquiries. The first two sources of diversity do not provide evidence for ethical relativism since the variable in both instances occurs at the level of understanding. Current understanding is something capable of further development but still is normative in deciding what to do despite its incompleteness. I see no way around the issue here: a precondition to affirming moral truths is a prior development in the moral subject. Perhaps Professor Tollefsen is circling around the same issue. Note his repeated use of the word “genuine” in his study of natural law theories, especially pages 44 and 52. A not uncommon puzzle captures the basic issue here: “If the universe is expanding, what is it expanding into?” Undifferentiated common sense is likely to find no problem with “space” as the response. The contrast between pretheoretical and theoretical consciousness is an instance of irreducible and incommensurable viewpoints, but “incommensurable” here is used in the weak sense. (See note 1.) We can hope that little deliberation occurs when the alternatives have obviously unequal weight; e.g. choosing between rescuing a younger sibling from imminent danger and watching the end of one’s favorite tv show. All the same, “hope” may be an appropriate term here. Insofar as the debate between so-called relativists and absolutists assumes ethics is a matter of deducing courses of action from prior principles, both sides to the debate are mistaken in what they overlook in arriving at moral choices. My reading of the debate is that the opposed positions share the assumption about deduction from principle but part ways on the question of whether the principles themselves can be justified on moral grounds. This second issue of grounds is beyond the scope of this paper, but I suggest that it too may be rephrased if more attention is given to how principles of moral knowledge are formulations of developing and corrigible understanding. While this paper has been written from the perspective of the ordo cognoscendi and so has stressed the moral operator as the foundation of moral understanding, the ordo essendi is an alternative perspective. Taken together both perspectives allow one to understand how principles of moral knowledge, emergent in historical practice and inquiry, are both constructed and discovered by moral subjects. To clarify the point – without Newton’s creative guessing, the law of gravity he first surmised would not have been discovered by him. The same distinction is relevant to efforts to ground natural law theory on basic goods such as survival, safety and aesthetic enjoyment. A misstep occurs if such pre-moral goods are taken to be “givens” somehow antecedent to developments in human understanding. A more promising approach is to identify a range of basic desires that may become affectively attached to a flexible range of images and sensitive presentations. Which attachments are initially made is largely a matter of the cultural context of an individual – the so-called “accidents of birth.” However, as intelligent and moral consciousness develops, earlier attachments may be judged deficient and, with effort, broken. In the ordo essendi, later judgments affirm that some goods are good in themselves, even if they were not the first affect-laden objects of one’s basic desires. Lonergan’s statement, “Concepts are functions of time,” says this much more succinctly (Collection 46). If I read him correctly, Professor Capaldi (2004, 81) argues that traditional natural law theories, indebted to Aristotle, are based on this opposition between historical practices and a non-human external order. If so, they may be responsible for the intellectual impasse between defenders of ahistorical theories of natural law and ethical theorists who begin by referring to empirical studies of developing moral understanding.

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BIBLIOGRAPHY Capaldi, N. (2004). “Global ethics and natural law.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordercht: Kluwer Academic Publishers. Kruschwitz, R. B. (2004). “Natural law and the free church tradition.” In M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Lonergan, B. (1974). “The transition from a classicist world-view to historical-mindedness.” In: A Second Collection (pp. 1-9). Philadelphia: Westminster Press. Longergan, B. (1992). Insight: A Study of Human Understanding. Volume 3 in Collected Works. Toronto: University of Toronto Press. Lonergan, B. (1972). Method in Theology. New York: Herder and Herder. Lonergan, B. (1996). “Method in Catholic theology.” In Philosophical and Theological Papers 19581964, Volume 6 in Collected Works (pp. 29-53). Toronto: University of Toronto. McInerny, D. (2004). “Natural law and conflict.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Tollefsen, C. (2004). “Natural law and modern meta-ethics: A guided tour.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

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CHAPTER 8

ANA ILTIS

AN ASSESSMENT OF THE REQUIREMENTS OF THE STUDY OF NATURAL LAW

The study of natural law is grounded in a series of epistemological and metaphysical assumptions that must be understood and elucidated to appreciate the implications and requirements of natural law morality. The essays in this volume bring to the fore the importance of identifying the foundations of natural law theory, and a critical reading of this volume makes clear the need to explore the content of the foundational assumptions grounding natural law accounts of morality. Natural law morality has three primary assumptions: (1) nature has particular goals or ends, (2) the ends of nature are knowable, and (3) nature’s ends are morally good and are normative. An examination of natural law theory, first and foremost requires an understanding of what is meant by ‘natural law’ and which nature is normative. To assert only that human nature is normative falls short of the mark for it fails to identify which human nature is normative and what about this nature is normative. Humans may generally be said to have four natures: (1) human nature before the Fall; (2) human nature after the Fall; (3) redeemed human nature; and (4) restored human nature.1 Thus even if we grant the assumption natural law morality makes, namely that humans share one normative nature whose ends are knowable and morally good, we must recognize that there are four natures that might be normative. Natural law theory requires, first, that we clarify what we mean by ‘natural law’ and determine which human nature is normative. Second, it requires that true or accurate knowledge of nature be accessible, something which may be difficult for fallen humans to acquire. The Roman Catholic natural law tradition has held that knowledge of the natural law is universally accessible through reason, which complicates the requirement that we have valid knowledge of nature. Third, a study of natural law requires a defense of the claim that nature itself is in fact morally good and normative. Fourth, defenders of natural law must show the moral content of the natural law and the implications the natural law has for moral decisions. Without knowledge of what the natural law requires in particular situations or of how we are to determine what the natural law requires in particular situations, the moral system available to us is underdetermined or ambiguous. A fifth issue a study 115 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 115—122. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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of natural law must examine, and one to which this volume pays special attention, is the empirical fact of moral pluralism. A study of natural law should also address what implications it would have for the possibility of a universal or global ethic in light of moral diversity. Natural law defenders must be prepared to address the extent to which the natural law and its moral requirements are universally accessible and therefore binding. Must the natural law be universally accessible to be universally binding? To what extent is the natural law universally accessible? Natural law theory contends that all rational agents can come to know the natural law. Of course, many do not recognize a single human nature with a particular set of obligations deriving from it. Given this circumstance, natural law theory must face the question of why it is that so many do not recognize one universal, normative human nature. Are they irrational? Are they acting in bad faith? The question of actual agreement is irrelevant. Some might think that lack of universal agreement is evidence that there is no natural law. However, that is not necessarily the case, for some may simply not be situated at a given moment to see it. The more difficult issue for natural law proponents to address is why it is the case that we have not all accessed knowledge of nature and recognized it as normative and morally good. 1. WHAT DOES ‘NATURAL LAW’ REFER TO AND WHICH HUMAN NATURE IS NORMATIVE? To argue that human nature is normative, one must determine what is meant by ‘natural law’ and which human nature is morally binding. Many moral theories can be construed as natural law theories. Yet not all of them are compatible. Four possibilities for what ‘natural law’ refers to are discussed here. First, ‘natural law’ could refer to the design of humans. Natural law proponents, then, would hold that this design is morally good and normative. It might be held that the design is morally good and normative because it is the design of God. Without an appeal to God, it is not clear where the normativity or goodness of human design could originate. However, the appeal to God and the need to appeal to God make the claims of natural law ones that are not universally accessible, as all do not recognize appeals to God as valid or justifiable. The accessibility of the claim that nature is normative is discussed further below. A second difficulty that arises is that humanity as we know it may not reflect the original design of humans. Thus the claim may be more carefully articulated as follows: ‘natural law’ refers to the original design of humans reflected fully only in humans before the Fall. Serious consideration must be given to how fallen humans may access knowledge of our pre-fallen nature. The accessibility of knowledge of our nature is discussed further below. To hold that humans have a particular design that is morally good and normative raises a number of difficulties. Second, ‘natural law’ might refer to the goals or ends to which humans generally tend. The claim of natural law, then, would be that these ends are morally good and normative, or that they are normative independently of whether they are morally good. The distinction between ends that are both good and normative and those that are only normative might seem strange. It is, however, an important one. Hobbes

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can be seen, for example, as holding a view that the ends to which humans naturally tend are normative for us. Yet, he is not concerned with the moral goodness of those goals. He holds that self-preservation – the desire to survive – is what, by nature, guides and drives us. It is, therefore, the basis for cooperation and governs our association with others. This type of account is a psychological and a descriptive one. What humans want is not necessarily morally good, yet this account cannot accommodate such a distinction. A further difficulty with this account is that it gives no guidance with regard to which methods of pursuing our goals or desires are morally permissible or legitimate. Moreover, it is unclear why human desires, inclinations, impulses, or even reasoned goals after the Fall are or could be considered necessarily morally good and normative. Third, ‘natural law’ could refer to an appreciation for how we should act implanted in all of us by God. The fact of moral pluralism suggests that we have not all accessed this appreciation, which raises an important issue: How are we to access this allegedly universal understanding? Perhaps we must pray in a particular way, or we must accept the assessment of others whom we recognize as having special access to this understanding of how we should act. It is difficult to image how this might result in universal access to the natural law, a requirement for the Roman Catholic natural law tradition. Fourth, ‘natural law’ could refer to reason. This view, of which the Kantian tradition is a part, holds that rational humans can use reason to discover their moral obligations; reason discloses the moral law and its normativity. One limitation of such a view is that it might restrict the moral domain in a way that most proponents of natural law in the Roman Catholic tradition find problematic. This view suggests that only those who have reason can and do know morality and, it would seem, only they could all be moral agents and be subject to the moral law. This would leave out of the moral realm a series of moral patients Roman Catholic natural law theorists would wish to include, such as young children. It would also seem to release from the constraints of the moral law individuals who are not fully rational but whom we might hold are bound by the moral law. Essentially, such a view might limit natural law such that it would not be universally knowable and universally binding in the way proponents of natural law in the Roman Catholic tradition might like to require. A second principle issue in natural law that requires further study is the question of which human nature is normative and why. As noted earlier, humans have not one but four natures. These are: (1) human nature before the Fall; (2) human nature after the Fall; (3) redeemed human nature; and (4) restored human nature. The distinction among the four human natures is not clear in the natural law literature.2 It is plausible that any of the four could be the nature that underlies natural law theory, yet each would yield a different moral account. If human nature before the Fall is the source of normative moral laws, then natural law theory will face significant epistemological problems insofar as it is unclear how any one of us, given our fallen state, could have access to our pre-fallen nature. To rely on human nature after the Fall as the source of morality is to accept as normative human design distorted by the Fall. If one holds that the natural law is morally binding and is of divine origin, something which Roman Catholic defenders of natural law hold, then why would one accept that fallen human nature, which has turned away from the commands of

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God, serve as the source of morality? The fourth option, restored human nature, is burdened by an epistemological problem similar to the one associated with relying on human nature before the Fall: it is unclear how those who are fallen and redeemed but not yet restored can know what their restored nature will entail. Thus it appears that the third human nature, redeemed human nature, is the best candidate for serving as the source of natural law. However, that this human nature is the focus of natural law morality is unclear. The study of natural law requires further discussion of this important issue. 2. HOW IS KNOWLEDGE OF NATURE ACCESSIBLE? Even with a satisfactory exposition of the human nature that is the source of natural law, a study of natural law will bring to the fore epistemological questions regarding our ability to access knowledge of nature. How is knowledge of nature possible and accessible? How do we come to know what nature requires? Defenders of natural law often hold, as McInerny does in this volume, that natural law “affords an impartial perspective on conflicting viewpoints” (2004, 89). The question that requires response, of course, is how one is to come to occupy such an impartial point of view. Given what others, e.g., Kant, have articulated about the impurity of our knowledge and the sense in which all knowledge is mediated, one must ask natural law theory to describe who or what may or ought to mediate our knowledge of the natural law. The goal of many natural law proponents seems to be to demonstrate that the knowledge comes to us undistorted through reason. Lustig’s account of the epistemological assumptions grounding natural law is that contemporary natural law theory as developed by Grisez, Finnis, and Boyle avoids problems associated with Aquinas’ reliance on theology. Lustig argues that by focusing on practical reason and the “self-evidentiary” nature of the claims of natural law, the new natural law avoids the dependence Aquinas had on God. Contemporary natural law does not require that we have knowledge of or faith in God to have knowledge of the moral law or to recognize the moral law as normative. Knowledge of the precepts of natural law is self-evident to the rational person regardless of his beliefs (or lack thereof) concerning God (2004, 138). McInenry concurs with Lustig: “even in the order of human practical cognition our first grasp of the good is of something which binds us, whether we recognize ourselves as being bound by a providential diving lawgiver or not” (2004, 91). According to Tollefsen, knowledge comes to us precisely through practical reason. Reason apprehends the basic human goods and directs action (2004, 40). This, however, leaves open the question of how reason can come to apprehend the basic goods and recognize them as normative. The accessibility of nature through reason presupposes a level of purity and a forcefulness with which reason is endowed that is difficult to accept for those who have not already presupposed it. It is not clear that reason is or can be impartial in the way natural law requires. Even if reason itself could afford such impartial knowledge, the question of how one is to approach the world through pure reason and occupy the standpoint of reason is valid. Moreover, the fact of moral disagreement among persons who appear to be fully rational suggests that

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reason alone may by insufficient to ground a universal account of moral obligation. If more is necessary, then natural law theories would have to focus on more than reason alone. For example, if faith in God is a necessary element, or if acceptance of the teachings of the Magisterium is necessary, then the universality of natural law is brought into question. 3. THE NORMATIVITY OF NATURE A third set of issues which the study of natural law raises concerns the normativity of nature. It is not immediately obvious to an outside observer, one who has not already accepted the claim that the ends of nature are normative, that nature is universally morally binding. Defenders of natural law generally hold that precepts of nature are self evident and undeniable to rational observers (see, e.g., McInerny, 2004, 94). The claim is that the normativity of such precepts is immediately evident for to deny it would be to excuse oneself from the rational pursuit of the morally good life. This claim, of course, stands against those of others who have offered alternative sources of normativity, such as overall happiness or pleasure. Thus an adequate analysis of natural law must address the question of how we are to know not only which human nature is normative and how we are to access knowledge of it, but how and why such a nature actually is morally normative, for it is not a foregone conclusion to those who do not already presuppose this claim that this is the case. It will be especially difficult to support the normativity of human nature without an appeal to God or to a metaphysical order to which we ought to adhere. Yet this must be done if natural law is to be universally accessible to all through reason alone. Reason would have to disclose the normativity of nature. One response to the question of why nature is normative is that nature is created by God and thus the mandates of nature are of God. This reliance on theology undermines one of the central claims of natural law theory, namely that natural law is universal and universally accessible to all who are rational and that to see the natural law is to see it as normative, because natural law would not be obviously normative to those who did not believe in God. Such claims leave us asking why nature is normative and how we are to know that it is normative. If nature is not normative because of God, then why? To return to the claim that reason provides us with such insight involves an element of circularity unlikely to convince the non-believer. 4. THE MORAL CONTENT OF THE NATURAL LAW Once satisfactory answers or solutions are offered to establish the general normativity of nature, we will still ask of natural law theory that it provide us with moral content. Mere laws of nature, without specification of content, do little to provide moral guidance. In fact, Tollefsen emphasizes the importance of the new natural law offering “not just first principles, but intermediate principles, so-called modes of responsibility, from which more particular conclusions may be derived” (2004, 39). To have force, a theory of natural law would have to be able to give

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some universal moral content that may be unavailable from the intermediate principles to which Tollefsen refers. This is not to say that natural law morality would have to provide a formula for determining what is morally required in every possible situation. To say that morality is grounded in the natural law and that its precepts are universally accessible and binding is meaningful only if the result is some actual universal moral content. For example, to say that it is universally wrong to kill the innocent is meaningful only if we can identify the innocent. If, instead, we have radically different conceptions of innocence, then the claim that it is a universal law of nature that we should not kill the innocent is vacuous. Natural law morality would, in that case, be nothing more than a set of words that apply to all but that give little if any guidance as to what is morally required. It would be as if we were speaking one moral language but in fact were using different dictionaries. We would be steeped in self-deception. The source of the specific moral content for the precepts of natural law is unclear. There are multiple plausible definitions that could be offered and accepted by rational persons for different terms relevant to morality. For example, some might hold that the insights of holy men and women render the moral content we seek, while others could defend a view that the intuitions of all rational persons would suffice. Yet others could argue that the results of rational discourse or the application of moral principles to specific cases by persons of good will yield the specific content of the moral law. Such differences, however, would result in radically different approaches to morality. Without further clarification of the source of that content and without elucidating that content itself, natural law leaves us thirsty for specification. The need to specify moral content is particularly important in light of the issue of global ethics. To say that there is a global ethics or that we ought to seek a global ethic has different meanings depending on how we address the fourth issue raised here. We may in fact be able to say that it is a universal law of human nature that we ought to keep promises, for example, or not kill the innocent. All rational persons might in fact agree to such assertions. However, unless we know which promises are considered valid and which persons are considered innocent, our global ethic will mean very little. Suppose further that we all agreed that we ought to follow the Golden Rule and treat others as we would wish to be treated. Persons have different accounts of how they would wish to be treated, so it would be difficult to have shared moral content even where we shared basic principles. In short, the goal of establishing a global ethic must be greater than establishing broad moral concepts which all rational persons can come to understand and accept but to which we may attribute radically different content. Natural law theory must specify the content of those broad claims to give moral guidance. 5. MORAL PLURALISM A fifth issue which any study of natural law must address is the circumstance of moral pluralism among reasonable persons, an area to which this volume gives special attention. The observation that rational persons engage in seemingly

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interminable moral debates (see MacIntyre, 1984), suggests an immediate set of questions defenders of natural law must be prepared to answer. The reality of moral disagreement prompts discussion of the universality of nature, the normativity of nature, the extent to which knowledge of the precepts of nature is accessible, and to the reason for which not all concur regarding natural law morality despite their appearance as rational. In large part, these issues are the ones discussed above. Here they are framed in a different context. One approach natural law defenders may make to the challenges raised by moral pluralism is one of acknowledging the facts, denying that they challenge natural law theory, and emphasizing the importance of a particular form of moral pluralism. Natural law theory not only is compatible with but itself recognizes that there is a plurality of human goods to be pursued. Boyle, for example, recognizes that it is not possible to pursue all human goods in a single life (2004, 3; see also Tollefsen and McInerny). Part of what distinguishes natural law theory from others that recognize the multiplicity of goods is that natural law defenders hold that reason, and specifically practical reason, can order the goods. The plurality of human goods are not, according to natural law, incommensurable; reason orders the goods. McInerny’s discussion of this issue brings clarity to this distinction. Boyle also offers a natural law explanation for why there is ethical diversity and “differences in moral outlook”. He implies that this is the case because not all moral principles, customs or laws are natural (3) and only those that are natural are universal. Moreover, according to Boyle, disagreement is to be expected, especially with regard to complex cases (3-4). Despite these claims about the reasons for and the recognition of the multiplicity of goods, natural law still faces challenges grounded in what appear to be radical moral disagreements. Boyle addresses these further and suggests that “defenders of natural law need not accept at face value the common formulation of ethical pluralism as involving moral disagreement at the most basic level” (4). That is, Boyle thinks, there is a core set of moral beliefs on which there is not disagreement; moral disagreement is a fact at further stages of moral discussion but not at the foundation of morality. Capaldi also suggests that global agreement exists, or that we are at least moving toward it (75). To claim that there is such agreement or that such agreement is possible is at best controversial. Beyond that, however, one must ask whether agreement evidenced by cooperation among persons is moral agreement or is grounded in moral fact, is pragmatic, or is a result of historical circumstances, as Capaldi suggests. Perhaps such consensus, insofar as it exists, is grounded in self interest (as Hobbes might suggest). Shallow moral agreement is a modus vivendi aimed at cooperating to pursue mutually beneficial ends is different in character and meaning from deep moral agreement grounded in universal precepts of nature whose content and normativity is accessible to all through reason. To suggest that the former is evidence of the latter is unjustified. What defenders of natural law take to be explanations for the moral disagreement that exists and what they offer as evidence for the existence of a global ethic leaves room for disagreement on the part of those who do not already find natural law compelling. Natural law defenders must provide a more vigorous discussion of moral pluralism to account for the possibility of the global ethic they see as possible or, in some cases, as already existing.

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The circumstance of moral pluralism makes more poignant the need to address questions raised here. The existence of what appear to be rational persons who do not immediately (or even after serious reflection) perceive the content of the natural law and who do not recognize the precepts of the natural law as normative suggests that the ease with which defenders articulate the universality of their theory may be unjustified. Such moral pluralism makes it difficult to see how we might achieve a global ethics and this circumstance makes it especially difficult to recognize the existence of a global ethic. An adequate account of natural law that proposes a view that knowledge of morality is universally accessible and that moral precepts are universally binding will have to assess and respond to the reality of moral pluralism among rational persons. Moreover, it will have to distinguish the human nature it treats as normative, defend the normativity of that nature, and address the epistemological problems any attempt to know our nature and its requirements generates. Finally, like any adequate account of morality, such a theory must be able to give moral guidance and deliver specific moral content. Saint Louis University Center for Health Care Ethics Saint Louis, Missouri NOTES 1

2

I owe this categorization of human nature to H. Tristram Engelhardt, Jr. (2002). The Fall refers to Genesis 3: 1-23 in which the serpent successfully tempts Eve to eat of the forbidden fruit and Eve shares the fruit with Adam. Some central works in the natural law tradition under consideration include Aquinas’ Summa Theologica, Finnis (1980 and 1983), Finnis, Grisez, and Boyle (1988), and Hittinger (1988).

BIBLIOGRAPHY Boyle, J. (2004). “Natural law and global ethics.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Capaldi, N. (2004). “Global ethics and natural law.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Engelhardt, H. T. (2002). Personal communication. Finnis, J. (1980). Natural Law and Natural Rights. London: Clarendon Press. Finnis, J., J. Boyle, and G. Grisez (1988). Nuclear Deterrence, Morality and Realism. New York: Oxford University Press. Finnis, J. (1983). Fundamentals of Ethics. Washington, D.C.: Georgetown University Press. Hittinger, Russell (1988). A Critique of the New Natural Law. Notre Dame, IN: University of Notre Dame Press. Lustig, B. A. (2004). “Natural law and global ethics.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. MacIntyre, A. (1984). After Virtue. Notre Dame: University of Notre Dame Press. McInerny, D. (2004). “Natural law and conflict.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Tollefsen, C. (2004). “Natural law and modern meta-ethics: A guided tour.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

SECTION III

BEYOND RATIONALISTIC PHILOSOPHY: ASSESSING UNIVERSAL ACCESSIBILITY

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CHAPTER 9

B. ANDREW LUSTIG

NATURAL LAW AND GLOBAL ETHICS

The title of this volume introduces a problematic with a number of interrelated elements. First is the large and complex topic of natural law itself – its source, i.e., its ontological grounding in nature and human nature; and its scope, i.e., its range of variability, and the degrees of bindingness and certitude associated with its various precepts as constituents of moral reasoning. The epistemic status of natural law, in turn, raises a crucial question, at least as natural law is deployed in Roman Catholic moral theology; viz., what relations obtain between reason and revelation in the formulation and defense of natural law as the lynchpin of moral reasoning – at the levels of individual, interpersonal, and societal ethics?1 The second component in the volume’s title – global ethics – implicates both of the foregoing concerns. Is natural law, in its many variants, an appropriate and compelling basis for crosscultural and historically unconditioned moral claims? In light of the strong currents of post-modernism at work in recent academic and policy discussions, how are we to make the case for the continuing relevance of earlier understandings of natural law, in its fundamentals, as available to all men and women in their capacities as rational beings?2 Moreover, as a further set of issues implicated in the discussion of global ethics, what are the relations between natural law and natural rights, and what are the problems that arise, again in the context of Roman Catholic human rights discussions of recent decades, in linking those vocabularies? 1. TRADITIONAL FORMULATIONS The long pedigree of natural law thought obviously precedes its central place in Roman Catholic moral theology. Even the most cursory overview of classical formulations reveals that different interpretations of natural law depend on the views of nature and human nature that underlie its function as a moral appeal. Thus, early on, the Stoic tradition affirmed a principle of natural order in both the cosmos and human affairs; our rationality as human beings is the appropriate expression of the cosmic logos as it functions for rational creatures. The acceptance and appropriation of Stoic teaching on the moral life – as one lived in accordance with reason, 125 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 125—140. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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understood as divinely ordained – then emerged as a major theme among the early Fathers. The writings of Athenagoras, Justin Martyr, Tertullian, and others provide, in effect, the Christian baptism of that Stoic principle. Justin Martyr, for example, says that “in the beginning, God made the human race with the power of thought and of choosing the truth and of doing right, so that all men are without excuse before God [cf. Romans. 1:20]; for they have been born rational and contemplative.” In his Dialogue with Trypho the Jew, Justin observes, with utter confidence, that God sets before every race of mankind that which is always and universally just, as well as all righteousness; and every race knows that adultery, and fornication, and homicide, and such like, are sinful; and though they all commit such practices, yet they do not escape from the knowledge that they act unrighteously when they do so, with the exception of those who are possessed with an unclean spirit, and who have been debased by education, by wicked customs, and by sinful institutions, and who have lost, or rather, quenched and put under, their natural ideas (Justin, in The Anti-Nicene Fathers, Volume One, 246, quoted in Mahoney, 1987, 74).

One finds similar evidence of Stoic influences in Augustine, who systematically develops as a major theme the order that lies at the heart of all God’s creation. Underlying creation is the eternal law of God, “the divine reason or the will of God commanding the natural order to be respected and forbidding its disruption” (Augustine, Contra Faustum 22, 27, quoted in Mahoney, 75). The order of the world is reflected in the proper ordering of human choice and action, and is expressed in Augustine’s famous passage from The City of God: For if we were beasts, we should love the fleshly and sensual life, and this would be our sufficient good; and when it was well with us in respect of it, we should seek nothing beyond. In like manner, if we were trees, we could not, indeed, in the strict sense of the word, love anything; nevertheless, we should seem, as it were, to long for that by which we might become more abundantly and luxuriously fruitful. If we were stones, or waves, or wind, or flame, or anything of that kind, we should want, indeed, both sensation and life, yet should possess a kind of attraction towards our own proper position and natural order ... But we are men, created in the image of our Creator, whose eternity is true, and whose truth is eternal … in ourselves beholding his image, let us, like that younger son of the gospel, come to ourselves, and arise and return to Him from whom by our sin we had departed (Augustine, in Schaff, 221).

Throughout his writings, Augustine elaborates this natural ordering brought about by love, as set forth in the two great commandments. Within the context established by the dynamics of loving God and one’s neighbor, Augustine also discusses the internal ordering, or life of virtue, as cultivated by the virtues of prudence, justice, temperance, and fortitude – all of which, again, are appropriated from the Stoic tradition. In addition to these Stoic ideas, one also finds in the writings of key figures before Aquinas major ideas from Roman law and jurisprudence, especially that of the ius naturale, or that which is “just by nature.” For Roman jurists, ius naturale provided the ontological and epistemological grounding of the ius gentium, the law of peoples, in contrast to positive law, or ius civile. Isidore of Seville, for example, in the seventh century, sets out certain basic precepts of the ius naturale familiar to the later tradition of Thomism. The ius naturale, according to Isidore, is the law “observed everywhere by the prompting of nature, such as that ordaining the

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marriage of man and woman, the procreation and rearing of children, common ownership and freedom, self-defense, and the like” (Isidore, Etymology, quoted in Mahoney, 77). It is in Aquinas, of course, that one finds the clearest and most systematic exposition of natural law. For Thomas, law is a “rule and measure of acts” (ST I-II , 90, 1) for both individuals and the community. Indeed, for Thomas, the requirements of practical reason promote human flourishing, i.e., the life of individual virtue in the necessary context of political community for its full expression. Thomas therefore draws the following analogy between speculative and practical reason: Just as nothing stands firm with regard to the speculative reason except that which is traced back to the first indemonstrable principles, so nothing stands firm with regard to the practical reason, unless it be directed to the last end which is the common good. Now whatever stands to reason in this sense has the nature of a law (ST, I-II, 90, 2).

Thomas’s subsequent exposition of the substantive directives of natural law is wellknown, but worth repeating here: There is therefore an order of precepts of natural law corresponding to the order of natural inclinations, First, there is an inclination in man towards the good corresponding to what he has in common with all individual beings, the desire to continue in existence in accordance with their nature. In accordance with this inclination those matters which conserve man’s life or are contrary to it are governed by natural law. Secondly, there is in man an inclination to some more specific objects in accordance with the nature which he has in common with the other animals. According to this, those matters are said to be of natural law ‘which nature has taught all animals,’ such as the union of male and female, the bringing up of children, and the like. Thirdly, there is in man an inclination to good according to the nature of reason which is peculiar to him, he has a natural inclination to know the truth about God, and to live in society. Accordingly, those matters which concern this inclination are matter for natural law, such as that a man avoid ignorance, that he not offend others with whom he should have converse, and other matters relating to this (ST I-II, 94, 2).

For Thomas, the clarity of natural law directives lessens as one moved from the most general or primary precepts, such as the three just listed, to their application and specification in particular circumstances. In the same discussion, Thomas notes the difference between theoretical and practical reason, when he says, In speculative matters, there is for everyone the same truth in principles as there is in conclusions, although the truth is not known by everyone in the conclusions but only in the principles which are called [by Boethius] ‘the general concepts.’ In matters of action, however, there is the not the same truth or practical rightness for everyone with regard to particulars as there is with regard to what is general (ST I-II, 94, 4).

Unfortunately, much of the later tradition, especially 19th and pre-Vatican II seminary texts in the so-called “manualist” tradition, neglected to observe this important Thomistic caution. As John Mahoney observes, “it has been the fate of Aquinas’s natural law teaching in moral theology that the logical appeal and coherence of his system has been stressed, while the provisionality and contingency of conclusions as they come closer to individual situations, features which he himself carefully built into his theory, have been either neglected or ignored” (Mahoney, 80). For Aquinas, and for later neo-Thomism, natural law means, in fact and function,

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the rational participation of human beings in the Eternal Law, the Divine Ordering of God. Yet at this point, a central question arises. By what warrants, or on what grounds, is Thomas’s account of the putative obviousness of the first principles of natural law properly justified? As a matter, apparently, of philosophical method, Thomas appeals to probable evidence on the basis of which natural reason can, and should, arrive at “proofs” for the existence of God as Creator and Divine Lawgiver. Thomas does not defend the notion that knowledge of God is naturally innate, as did, for example, Saint John Damascene (Copleston, 1985, 336). Nor does Thomas credit Anselm’s ontological or a priori proof of God’s existence (Copleston, 1985, 336). For Aquinas, rather, further reflection beyond a natural desire for happiness is required for a man or woman to understand God as the ultimate source of happiness or beatitudo. Granted, such natural knowledge, absent the clarification of Revelation, will be necessarily imperfect and inadequate; nevertheless, in its basic form, Thomas’s account is similar to other versions of natural theology. Something of the nature of God as Creator, as First Cause, is available to natural reason a posteriori, in proper Aristotelian fashion, from a consideration of various effects, which are known through the senses. Thus proceed Thomas’s famous five proofs for the existence of God, the proof from motion, understood in the wide Aristotelian sense of the reduction of potency to act; the proof from efficient causes; the proof from contingent and necessary being; the argument from degrees of perfection; and finally, the so-called teleological argument (ST I, 2,3). In none of these arguments does Aquinas develop what we would call a full-blown proof, in any thoroughgoing or systematic way, at least by standards that modern or post-modern philosophers, after Immanuel Kant’s thoroughgoing critique, would find, in strictly philosophical terms, fully persuasive. There are, to be sure, recent defenses of certain forms of argument, especially Charles Hartshorne’s reformulation and strong defense of Anselm’s ontological argument, that might be seen as more philosophically compelling, but that form of argument is, as I noted, not one that Thomas himself accepted (Hartshorne, 1991). The point here is not to be anachronistic, since Thomas would claim such “proofs” as, at most, preambles to faith, in keeping with his primary allegiance to theology rather than philosophy. Nevertheless, because Thomas does appeal to a “natural inclination” to know God, the fact that his philosophical reflections about that natural inclination toward God, which aim to illuminate and enrich that putatively natural desire, are, for many apparently reasonable persons unpersuasive would seem to bear on the assumed obviousness of other inclinations that he finds equally natural, and upon which reason is called to reflect in order to generate moral action guides. To say that such philosophical preambles will help to clarify a natural desire for God in rational beings, when such “proofs” are deemed unpersuasive, leaves in question the ostensible underlying desire that their invocation is meant to clarify. The same essentially Thomistic understanding is captured anew in Section 341 in the recent Catechism of the Catholic Church: The order and harmony of the created world results from the diversity of beings and from the relationships which exist among them. Man discovers them progressively as the laws of nature. They call forth the admiration of scholars. The beauty of creation reflects the infinite beauty of the Creator and ought to inspire the respect and

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submission of man’s intellect and will (Catechism, 99).

With reference to natural moral law, Section 1951 of the Catechism echoes Thomas’s traditional reading: Law is a rule of conduct enacted by competent authority for the sake of the common good. The moral law presupposes the rational order established among creatures for their food and to serve their final end, and, by the power, wisdom, and goodness of the Creator. All law finds its first and ultimate truth in the eternal law. Law is declared and established by reason as participation in the providence of the living God, Creator, and Redeemer of all. Such an ordinance of reason is what one calls law (Catechism, 526).

The natural moral law, then, is a participation in the Wisdom and goodness of the Creator, “who gives [human beings] mastery over their acts and the ability to govern [themselves] with a view to the true and the good” (Catechism, Section 1954, 527). The natural law expresses the moral sense that enables humans to discern by reason the good and the evil, the truth and the lie. As set forth in the Catechism, drawing on a discussion in Gaudium et Spes, the “divine and natural law” reveals “first and essential precepts which govern the moral life” (Catechism, Section 1955, 527). Quite crucially, however, and somewhat at odds with the spirit of Thomas’s own presentation, the Catechism suggests that natural law indicatives cannot become moral imperatives, independent of the premises of faith. The natural law states the first and essential precepts which govern the moral life. It hinges upon the desire for God and submission to Him who is the source and judge of all that is good, as well as upon the sense that the other is one’s equal (ibid.).

The basic moral sense, however, as found in both Thomas and in the Catechism, is the participation of humanity in God’s good purposes. The Catechism, citing Aquinas, ratifies the traditional understanding of natural law as our human existential participation in God’s eternal law: The natural law is nothing other than the light of understanding placed in us by God. Through it, we know what we must do and what we must avoid. God has given this light or law at the creation (ibid.).

From the first, then, the relations between reason and revelation are complex. God is “naturally” known as Creator; in light of that awareness, we are able to appreciate human nature and its purposes, as reflected upon according to recta ratio. Basic to this understanding, I would argue, is an implicit linkage between Thomas’s philosophical defense of natural theology – whereby natural reason can conclude that God has created the world and human nature, with specific purposes inherent in both – and the moral conclusions of natural law itself. Human rational reflection on the proper functioning of various human capacities generates moral duties. There is much to say about recent correctives in the tradition, in the wake of Vatican II, to which I shall return in a moment. But what is important to consider here are matters more troubling than the intramural debates of those who would call themselves natural law theorists in the Catholic tradition. What I wish to note here is, instead, are questions of fundamental relevance to the question about natural law methodology as a project evaluated on its own terms. I pose the issues here as a series of interrelated concerns.

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First, what are the relations that obtain between reason and revelation? On what basis is natural law proposed as available to reason in Thomas’s thought? If natural law is indeed the basis, in principle, for all humans to be able to know the most general directives of right and wrong, and if, on that imputed basis, all are culpable when they fail to heed such directives, precisely how are those claims traditionally justified? Are they to be justified according to accessible reasons that are primarily philosophical, primarily theological, or some combination of both? If the latter, then how do those distinctive warrants interact or overlap? That is to say, how are epistemologically privileged claims – those of special or particular Revelation – brought to bear on warrants putatively available to all men and women of good will, based simply on their “natural” capacities as reflective beings? Second, what is the status of any axiological account, including natural law reasoning, in a post-Darwinian context, with the dramatic shift in the latter from the underlying biology to which Aquinas appeals to make his case for certain core natural law precepts? On the one hand, one might simply deny the relevance of such concerns to a Roman Catholic account. Indeed, in some respects, the recent encyclicals of John Paul II, especially Veritatis Splendor, appear to adopt such a strategy (John Paul II in Donders, 1997). While a pluralism of beliefs and practices may be acknowledged, a certain account of human nature, with the axiological conclusions that flow morally from that account, remain normative. Yet what is far less clear is how the range of variability common to species expression and function – a common feature of post-Darwinian and synthetic evolutionary accounts – may be relevant to moral reflection (Pope, 1994). Consider, as an example, the moral evaluation of homosexual status and expression. If such sexual expression, as a matter of genetic variation, is now included within a range of genetically normal behaviors for many, if not most, mammalian species, how does that revised description of animal behavior affect moral reflection on the moral licitness of choices and actions based on a wider range of normal variation than that understood by an Aristotelian-Thomistic biology? More pointedly, what would an expanded range of normal behavior among animal species do to the second of Aquinas’s primary precepts, viz., there is in man an inclination to some more specific objects in accordance with the nature which he has in common with the other animals. According to this, those matters are said to be of natural law ‘which nature has taught all animals,’ such as the union of male and female, the bringing up of children, and the like (ST I-II, 94,2).

If the “expansion” of what falls within the range of biologically normal behavior were in no way to affect natural law reflections, then the point of axiology as a theoretical commitment seems itself undercut, leaving one to wonder about the general point of natural law as a source of moral insight, compared with other moral approaches. 2. A REVISED NATURAL LAW APPROACH There is, of course, a quite separate strategy for deploying natural law, which is to revise traditional Thomistic categories by stripping them of their underlying biology

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and metaphysics. I am, in large measure, sympathetic to this methodological turn. Let us consider, albeit briefly, the way that one such recent influential account proceeds, before considering its merits relative to more traditional Thomistic understandings, and the problems it may pose in turn. The theoretical contributions of John Finnis are paramount expressions of what has been called a revised natural-law approach. His writings are complex and highly nuanced, and for our purposes, I will highlight only a few of the features of his discussion. Of central importance to his account are the identification of two fundamental sets: (1) the conditions and principles of practical right-mindedness, and (2) what he sees as principles of “good and proper ordering among men and in individual contact” (Finnis, 1983, 12). In his Fundamentals of Ethics, Finnis sets forth the core principles of natural law as being of two sorts. First, there emerge a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized and which are in one way or another used by everyone who considers what to do, however unsound his conclusions (Finnis, 1983, 12). Second, there is a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that ... are reasonable-all-things-considered ... and acts that are unreasonable-all-things considered, i.e., between ways of acting that are morally right or morally wrong (Finnis, 1983, 12).

Finnis is fully aware of the traditional logical difficulties that plague naturalism in ethics, including the sort of philosophical preambles to faith one finds in Aquinas’s accounts of biology and metaphysics. As a result, Finnis enumerates a list of basic forms of human flourishing without a specific account of how such goods are “fitting” or “proper” forms of natural good (with all the “is/ought” problems which that invocation of “nature” entails). Rather, Finnis is concerned with the “practical reasonableness” of certain values – life, knowledge, aesthetic experience, play, sociability, practical reasonableness itself, and religion – subsequent to reflection.3 Thus, in ways analogous to the first principles of theoretical reason, Finnis finds that such basic goods become general and transparent values, rather than merely hypothetical means to preference satisfaction, through the deliberations of practical reason. There are two especially attractive features to Finnis’s approach to natural law. First, it is not encumbered by any particular allegiance to biology or metaphysics. Rather, it focuses upon the nature of practical reasoning itself, and draws important and illuminating analogies between theoretical and practical reason. In the latter sense, Finnis remains in the classical “realist” mode that is recognizably Aristotelian and Thomistic. His discussion avoids Mister’s Hume’s illicit inference from facts to values at two junctures (Hume, in Aiken, 1968, 43). First, the analogies drawn between the first principles of theoretical and practical reason make suspect those versions of rationality that impute to theoretical rationality some non-Godelian status of analytic necessity. Both theoretical and practical reason rest upon underived yet self-evident first principles. Hence the inability of practical reason fully to “justify” its first principles no more precludes an adequate account of its function

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than does the logical gap that characterizes the fundamental principles of theoretical reason. This first feature is especially important as a rejoinder to those accounts of moral reasoning that still seem bothered by the tenets of a widely discredited positivism. As a second important feature, Finnis does not argue from inclinations per se. That move, of course, would leave him still vulnerable to Mister Hume’s charge. Thus, in stating “knowledge is a good” as a self-evident practical principle, Finnis is not affirming an empirical consensus in support of that conclusion. Nor does he deny that there are “preconditions” for recognizing that value; for example, Finnis rejects simplistic recourse to innate or inscribed ideas. Rather, he argues for the “self-evident” features of the basic values as analogous to the “self-evidentiary” features of theoretical rationality. This second feature is captured in a passage worth quoting in its entirety: ... principles of theoretical rationality [e.g., the forms of deductive inference are to be adhered to in all one’s thinking] are not demonstrable, for they are presupposed or deployed in anything that we would count as a demonstration ... They are objective; their validity is not a matter of convention, not is it relative to anybody’s individual purposes. They can be meaningfully denied, for they are not principles of logic, conformity to which is essential if one is to mean anything. But to defy them is to disqualify oneself from the pursuit of knowledge, and to deny them is as straightforwardly unreasonable as anything can be. In all these respects, the principles of theoretical rationality are self-evident. And it is in these respects that we are asserting that the basic practical principle that knowledge is a good to be pursued is self-evident (Finnis, 1980, 69).

Whether or not Finnis’s account of natural law is “Thomistic” or should be seen as a significant revision of Aquinas’s approach remains a matter of dispute. However, in one important respect, his approach avoids certain problems that, in my opinion, plague Thomas’s own approach. Insofar as Aquinas’s account of practical reasoning is closely interwoven with specific commitments to metaphysics and biology, criticisms of the latter call the former into question. By contrast, Finnis takes his leave from Thomas at the logical space between the first principles of practical reason and expressly moral norms. According to Finnis, Aquinas failed to fill that gap because of the fundamentally theological nature of his ethics. By contrast, Finnis focuses on the requirements of practical reasonableness itself, as a process, in order to move from reflection about non-moral or pre-moral goods to the moral imperatives for choice and action that flow from them. As I said, I am quite sympathetic to this methodological shift in natural law theory – to an explicitly philosophical focus on the process of practical reasoning itself, without recourse to mixed theological/philosophical warrants. At the same time, this revised approach raises two sorts of questions. First, it does not appear to be the case – absent the explicit linkage one finds in Thomas between biological inclinations and rational reflection on them – that specific natural law precepts follow with the same stringency in the revised approach. Take, for example, the moral judgment regarding artificial birth control. Paul VI, affirming the Church’s traditional rejection of artificial contraception and sterilization in Humanae Vitae, appealed to what he called the “principles of the moral teaching concerning marriage, a teaching that is rooted in natural law, illuminated and made richer by

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divine revelation” (Paul VI, in Smith, 274). Yet if one abstracts from specific Church interpretations and notions of normal marital sexual expression or “fittingness,” it is unclear that traditional proscriptions of artificial contraception can be drawn as obvious conclusions by an exclusive focus on the process of practical reasoning itself. To say that the principle that one “never directly chooses against a basic good” unites both Thomas’s and Finnis’s judgments about such a matter is, I think, too sanguine. While Thomas’s rendering of natural law may be criticized for its linkage to an increasingly questionable biology, Finnis’s form of revisionism seems too far removed from a reflection upon natural inclinations to specify unambiguously what moral conclusions should be derived in particular cases where the moral implications of pursuing basic goods – including the goods of marital unity – are in dispute. I will suggest here that a plausible redescription of Finnis’s sort of revised natural law is as a form of rational intuitionism. If I am correct in this, however, a second sort of problem arises. As a form of intuitionism, the revised account is immediately subject to the usual criticisms that can be directed against intuitionism more generally, perhaps best articulated by Henry Sidgwick.4 And even if the standard criticisms can be addressed, it remains unclear how and why Finnis’s version of practical reason – wherein one can never choose directly against an intuited basic good – is preferable to other forms of intuitionism. For example, other forms of intuitionism deem any and all intuitions as in principle corrigible, i.e., subject to change and revision in the process of moral reasoning. Even more pointedly, on what basis does Finnis conclude that all the goods that he lists are equally basic, and thus never properly the subject of direct choices against them? Other forms of moral theory entail the necessity of occasional tradeoffs, i.e., direct choices against basic goods in service to others deemed more basic, in circumstances of genuine moral dilemma. Indeed, other intuitionist approaches, including principlism, and various versions of casuistry, all employ the language of weighing and balancing, suggesting that all goods are not equally basic and that moral judgment may require hard, even morally tragic choices, for one good and against another. A great deal more sustained comparison of the advantages, disadvantages, and relative plausibility of these different types of intuitionism is necessary before such issues can be resolved. 3. A FUNDAMENTAL SHIFT Let me turn briefly, in this final section, to a consideration of a fundamental shift that has occurred in recent decades of Catholic social teaching. Since the papacy of John XXIII, social teaching has increasingly been couched in the language of individual rights rooted in human dignity. Rights include both negative rights, which protect person’s basic liberties, and positive rights, i.e., basic welfare entitlements to the fulfillment of basic human needs. The connection between rights and human dignity is fundamental in recent social teaching; one assumes, in moving from the earlier language of natural law and natural duty to that of rights that the translation is relatively seamless. As stated in the 1986 U.S. Bishops’ pastoral letter, Economic Justice For All, “these fundamental

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personal rights – civil and political as well as social and economic – state the minimum conditions for social institutions that respect dignity, social solidarity, and justice” (O’Brien and Shannon, 1992, 598, quoted in McCann, 2000, 235). That passage would suggest, as a matter of practical reasoning, without specific theological warrants, that a translation of natural law-based duties to natural-right based entitlements can be specified in straightforward fashion. I am quite sympathetic to that attempt; the work of Brian Tierney (Tierney, 1997), James Tully (Tully, 1980), and others suggests a clear development of moral logic in the Catholic tradition, from the medieval to modern era, which supports an extension of the social vision of Catholicism, in matters of property and justice, from a first-person duty-based perspective – what I owe other – to the perspective of another – what he or she can claim from me as a justice-based entitlement. In many respects, the correlations can be properly sketched between and among the vocabularies of natural law, natural duty, and natural right, especially if they are all rooted in our human dignity as rational and inevitably social beings. However, a number of uncertainties persist, in a manner that makes the assumption of an easy or obvious translation from duty to rights problematic. Indeed, some critics, such as David Denz, question whether Roman Catholic social teaching, in its current form, can provide a useful framework for serious ethical reflection, especially in the context of pluralism. According to Denz, key issues remain unresolved in Catholic social teaching, in ways that make that tradition less than fully coherent on its own terms, and therefore of doubtful applicability to broader questions of social justice or practice, especially in the context of modern (or post-modern) pluralism (Denz, 2000). The first is the question of how various moral appeals are to be coherently integrated. For example, one can assume that the various appeals in social teaching – to natural law, to natural duties, to natural rights – can be integrated under the rubric of dignity. Yet there are clear tensions that emerge among them. Natural law is properly subject to criticism, both within and without Catholicism, for its failure to provide an unambiguous basis for insight or action on particular practices and policies, beyond the most general level of moral agreement. Even on matters of life and death – abortion, assisted suicide, and euthanasia, for example – the putative obviousness of such natural law appeals is not persuasive to many fellow Christians nor to those of self-consciously secular allegiance. Unless one is prepared to impute bad faith to all who fail to draw “obvious” conclusions in such instances, or to admit that natural law reasoning must be illuminated by theological sources of insight, natural law, then, may remain a questionable basis for general appeals to either broad-based social duties or to individual rights. (Of course, to adopt the second strategy, i.e., to admit the need for either implicitly or explicitly functioning theological commitments, is to win a Pyrrhic victory, since the putative obviousness of natural law, given that interpretation, is again undercut.) There are also issues of how particular warrants are to function in different contexts of moral appeal and discourse. Here one may usefull recall the recent analysis of moral discourse set out by James Gustafson (Gustafson, 1990). Gustafson analyzes four such modes – what he calls ethical discourse, prophetic discourse, narrative discourse, and policy discourse. Each of these modes, Gustafson

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suggests, is at some level necessary to the moral deliberations of particular communities and society at large, but none is, of itself, sufficient. In assessing various ethical arguments, one must attend to the warrants at work in each mode of discourse, and to appreciate the varying degrees of authoritativeness associated with each. In this light, one may properly criticize Roman Catholic social teaching for its imprecision, its tendency to conflate quite distinct moral and theological appeals. Narrative ethics, directed to the Christian community, often functions side-by-side with recommendations for general social policy, with little acknowledgment of the theoretical (and practical) tensions between those modes of discourse. For many critics, then, the central task of Catholic social teaching, is to be more specific about the warrants and underpinning of its own positions. Roman Catholic social teaching looks to the publication of Rerum Novarum by Pope Leo XIII as the starting point of a now 110-year-old ongoing discussion. Leo and his successors, as well as pastoral and policy statements on particular issues by various national bodies of bishops, have dramatically moved the church toward sustained engagement with questions of economics, politics, peace, and world order. At its best, Roman Catholic social teaching has affirmed the primacy of human dignity and human solidarity as correctives to mere technocratic understandings of the economy and politics. Nevertheless, social teaching, in adopting the language of rights, has been troubling imprecise, or at least incomplete, in its discussion of how such rights are tied – directly and immediately – to considerations of human dignity. That imprecision is especially troubling in the specification of positive entitlements. As Denz trenchantly observes, “we need to know how dignity generates rights, both for the sake of determining the extent of those rights and for the light this may shed on how those rights constrain or balance one another” (Denz, 2000, 225). Otherwise, when positive rights are presented as a “laundry list,” all construed as necessary concomitants of human dignity, they may emerge as the Roman Catholic version of “manifesto rights,” prescinding “so far from actual institutional life that [they cease] to suggest a plausible institutional embodiment” (Denz, 2000, 258). That same imprecision plagues the recent emphasis in Catholic social teaching on “the preferential option for the poor.” Consider, as a single example, recent attempts by the U.S. Bishops to apply that option to issues of health care reform. The Bishops’ Resolution on Health Care Reform emphasizes, as one of its practical criteria by which to judge the moral adequacy of proposals for health care reform, a “priority concern for the poor.” Any reform proposal, according to the Resolution, should be judged as to “whether it gives special priority to meeting the most pressing health care needs of the poor and underserved, ensuring that they receive quality health services” (United States Bishops, 1993, 98). However, the choice of whether to assign the preferential option an independent moral weight or to interpret it as a functional requirement of the common good may significantly affect how one assesses a particular reform proposal. While working correlations between overall indices of poverty and poorer health can be drawn, it is not the case, for any particular indigent individual, that health outcomes are necessarily linked to access to health care. Indeed, there may be strong arguments, doubtless of a more prophetic sort, that reforming health care delivery as a discrete sector may be one of the least effective ways of improving the general health outcomes of the poor as a class.

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Overall poverty, not simply limited access to medical care, may be a far more relevant determinant of health than the bishops’ criterion suggests. With regard to medical care, then, the preferential option for the poor will require greater attention to defining “the poor” for whom preference is to be shown – those who are “generally poor,” according to most indices, or those who are “medically indigent.” By contrast, if the preferential option for the poor does not carry independent weight but instead is viewed as one concrete implication of the common good, then determinations of medical indigence or medical need should proceed apace with difficult judgments about basic social goods other than medical care. On this second reading of the preferential option, the common good might be invoked as a systematic consideration to limit the availability of resources for particular individuals as the result of prior social choices, independent of individual circumstances of need. In this scenario, one might then be able to distinguish circumstances that are admittedly unfortunate from those that are unfair. In light of the unclarities at work in that single example from one nation’s ongoing debate, how, then, shall we proceed to assess claims for a “global ethic” (especially vis-à-vis positive entitlements) to be based either on natural-law based duties or on affirmations of universal human rights? I again admit that I am quite sympathetic to the rhetorical force of such a vision: the Universal Declaration of Human Rights, for all its excesses, expresses something powerful about a commonality of human interests and needs that are, in crucial respects, the seedbed of morality, at least a morality that engages the reality of vulnerable and embodied beings. But ours is an age of post-modernism, with all the difficulties that theoretical relativism poses. In reading Catholic social teaching, I am struck, finally, by its mixture of philosophical and theological warrants. Mixed modes of discourse characterize Catholic social teaching: some appeals rely on expressly theological understanding, others on the claims of a natural reason concerning the necessary conditions of human dignity. However, the problem with the latter – the claims of natural reason accessible to all – are analogous to those posed by Aquinas’s own reliance on natural reason, especially in today’s context of moral and cultural pluralism. Thus, absent expressly theological warrants, how can claims for a global ethic – of either duty or rights – be made obvious? Yet, if such claims require theological grounding, how does one avoid offering merely parochial conclusions under the guise of a putative universalism? These are matters of deep conceptual and practical moment. They involve a number of fundamental tensions, which to date have not been satisfactorily resolved. By way of closing, let me rehearse four tensions that continue to plague the Catholic tradition of both moral theology and the fundamental principles enunciated in Catholic social teaching. First, there are continuing difficulties with the attempts to marry classical natural law approaches to other fundamental emphases in recent Catholic moral theology and social teaching. Thinkers as different in their respective approaches as Charles Curran and Germain Grisez nonetheless agree that “appeals to the eternal essence of the human person are no longer possible in today’s intellectual climate” (Porter, 1999, 33) Accounts that rely on traditional language of a fixed essence to human nature, especially if that language includes practical reasoning about unvarying

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natural inclinations, fixed will be subject to the criticisms already noted. In a postDarwinian context, such assertions emerge as improperly attentive to the range of normal species variability in human behavior and therefore insufficient as the basis for univocal moral imperatives. Second, any teaching that relies on a static understanding of human nature will fail to incorporate two central features of Catholic moral theology since the time of Vatican II: first, an increasing attention to historicism and contextualism as necessary features of moral method; and second, an increasing acknowledgement of the realities of human sin and finitude and their effects on the certainty that attaches to moral judgments based on “natural reason.” Interestingly, both emphases, especially the latter focus on the effects of sinfulness, move Catholic moral theology in a “Protestant” direction, thereby generating fruitful opportunities for ecumenical dialogue.) Third, Catholic social ethics, especially in the United States, should be more willing to foster sustained dialogue with secular perspectives that may comport, at the level of policy discourse and formation, with central emphases in its own theologically informed analysis. The need for such dialogue is both a criticism of past isolation and a positive call to future engagement. Charles Curran correctly observes that “Catholic social teaching has [had] little or no visibility in the wider philosophical or political science discussions and writings in the United States” (Curran, 2002, 250). That marginalization of Catholic voices is perhaps historically understandable. Yet in light of the emphasis on historicism and contextualism, greater interaction should be fostered, precisely because, in the words of one Protestant commentator, Catholic social teaching uniquely exemplifies “the tradition of reason as applied to complex matters of collective life (William Lee Miller, quoted in Curran, 2002, 251). Finally, in the interest of fostering that greater dialogue, Catholic social teaching, as the contribution of a very public church, must concern itself with greater attention to systematicity and internal cohesion in its arguments. Secular debates are undergirded by sophisticated and deeply engaged systematic efforts to contribute to the meaning of public philosophy. The Catholic tradition of social teaching, with its pronouncements offered at various levels of ethical, narrative, prophetic, and policy discourse, claims a significant place in that public conversation. Yet too often the tradition of social teaching assumes, rather than argues, the in-depth requirements of its own case. That tendency is, by my lights, quite unfortunate. If the insights of that tradition are to be relevant to collective issues of social justice and policy, there is obvious need for Catholic social teaching to move beyond its “occasional” and often hortatory character to develop a systematic alternative to secular accounts of moral agency and committed citizenship. 4. CONCLUSION I conclude these brief reflections left with far more questions than answers. In my own work to date (e.g., Lustig, 1990) and in my own moral commitments, I desire to formulate a “global ethic” on the basis of some intuitively obviously appeal to the

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language of natural duty or natural rights. But I am struck by the daunting amount of work yet to be done, both theoretically and practically. If certain goods are basic, and certain needs – as deprivations of those basic goods – generate moral imperatives in the transparency of practical reasoning, much more may be morally expected of us than conventional wisdom suggests. If remediable needs generate basic rights claims, there may be a narrower range of “discretion” in pursuit of personal projects than we generally believe. Writ large, as Bryan Hehir suggests in recent writings (Hehir, 1992; Hehir, 2000), the moral relevance of merely national borders may emerge as the most pressing issue of social and political ethics in the 21st century. The globalizing impulse at work in Catholic social teaching certainly suggests as much. These are large and complex musings with which to end this discussion. But those of us who wish to argue for the continuing relevance of natural law – earlier against a thoroughgoing positivism in jurisprudence and now in support of universal human rights claims – will need to attend far more carefully, and more urgently, to the basic questions at the heart of the ongoing debate. What are the relations between natural law and natural duty, and on what grounds? What are the relations between natural law and natural dignity, between natural dignity and human rights? Finally, what are the specific derivations – philosophical, theological, or some hybrid appeal – of the various political and social rights emphasized in recent Catholic social teaching? Director, Program on Biotechnology, Religion, and Ethics Rice University and Baylor College of Medicine Houston, Texas NOTES 1

James Gustafson provides an excellent introduction to the characteristic uses of natural law in traditional Catholic moral theology (Gustafson, 1978). He summarizes the central thrust of the Catholic approach in this way: “Roman Catholic ethics has been grounded in the philosophy of natural law. This has made the Bible less central to moral theology but has given that tradition a basis from which to address ‘all men of good will’ and to argue for the rightness of particular acts without recourse to religious motives, insights, and norms, that is, without recourse to ‘revelation.’ The form that natural law ethics took, however, led to a very static view of the moral order, to claims for absolute moral certitude in what to others were situations in which ambiguity was intrinsic and irresolvable. It also led to a ‘physicalist’ bias (in contrast to a ‘personalist’ one) in the interpretation both of the agent and the human good. The problems of moral theology, as a result of the way its philosophical foundations have been developed and used, are how to take into account historic changes in morality that appear to be justifiable and how to establish a view of human nature that accounts for its more personal aspects” (Gustafson, 61-62). Since the time of Gustafson’s survey, there have been significant and self-conscious efforts by Catholic moral theologians to set out more explicit methodological connections between theological claims and natural law conclusions. See, for example, Charles Curran (Curran, 2002), who criticizes traditional natural law for its failure to incorporate into its theory a commitment to historicism and an acknowledgment of human fallibility and sinfulness in interpreting and applying moral norms. And see especially Jean Porter’s important recent work (Porter, 1999), in which she argues that medieval understandings of natural law, unlike early modern accounts, were firmly rooted in a theological context of reflection.

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According to Anthony Battaglia (1981), “[M]ore than anything else .. natural law theory is a framework for understanding morality rather than a [definitive] method for making moral judgments. The chief reason why natural law should be reexamined today is its usefulness as an explanatory paradigm of what morality is and how moral judgments are made. In spite of important theoretical attempts to free morality from models or explanations which claim for it either too little or too much, we are still lacking a general theory which intelligibly roots morals in the ordinary experience of ordinary human beings. The first reason why natural law is worth looking at today is the promise that it can produce such a general theory for morality” (Battaglia, 1981, 2). Finnis argues that his list of the basic forms of human flourishing is not arbitrary, but that he places no undue weight on the unarguable status of his list of seven: “There is no magic in that number seven, and others who have reflected on these matters have produced slightly different lists, usually slightly longer. There is no need for the reader to accept the present list just as it stands, still less its nomenclature (which simply gestures towards categories of human purpose that are each, though unified, nevertheless multifaceted” (Finnis, 1980, 92). Jean Porter summarizes Sidgwick’s critique of intuitionism as follows: “He argues that in order to be valid, a supposed axiom grounded in intuition must meet four criteria: It must be formulated in clear and precise terms, it must be really self-evident, it must not be in conflict with anything that we know otherwise to be true, and it must be supported by an adequate consensus of experts” (Porter, 1996 and Whitmore, 1996, 36).

BIBLIOGRAPHY Augustine (1979). The City of God, Book 11. In: P. Schaff (Ed.), A Select Library of the Nicene and PostNicene Fathers, Volume Two. Grand Rapids: William B. Eerdmans. Battaglia, A. (1981). Toward a Reformulation of Natural Law. New York: Seabury. Copleston, F. (1985). A History of Philosophy, Volume II. New York: Image Books. Curran, C. (2002). Catholic Social Teaching 1891 – Present: A Historical, Theological, and Ethical Analysis. Washington, D.C.: Georgetown University Press. Denz, D. (2000). ‘Catholic social teaching and healthcare: Some reservations,’ Christian Bioethics 6 (3), 251-266. Donders, J. (Ed.) (1997). John Paul II: The Encyclicals. Maryknoll, New York: Orbis Books. Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. Finnis, J. (1983). The Fundamentals of Ethics, Clarendon Press, Oxford. Gustafson, J. (1978). Protestant and Roman Catholic Ethics. Chicago: University of Chicago Press. Gustafson, J. (1990). ‘Moral discourse about medicine: A variety of forms,’ Journal of Medicine and Philosophy 15 (2), 125-142. Hehir, J.B. (1992). ‘Just war theory in a post-cold war world,’ Journal of Religious Ethics, Fall, 237-257. Hehir, J.B. (2000). ‘Morality and contemporary warfare,’ Commonweal 127 (5), 32-33. Hartshorne, C. (1991). Anselm’s Discovery: A Reexamination of the Ontology. Chicago: Open Court Publishing. Hume, D. (1968). A Treatise on Human Nature, Book III, Part One, Section One. In: H. Aiken (Ed.), Hume’s Moral and Political Philosophy. New York: Hafner. Interdicasterial Commission (1995). The Catechism of the Catholic Church. New York: Image Books. Justin Martyr (1979). “Dialogue with Trypho.” In: A. Roberts and J. Donaldson (Eds.), The Ante-Nicene Fathers, Volume One. Grand Rapids: William B. Eerdmans. Lustig, A. (1990). ‘Property and justice in the modern encyclical literature,’ Harvard Theological Review 83, 415-446. Mahoney, J. (1987). The Making of Moral Theology: A Study of the Roman Catholic Tradition. Oxford: Clarendon Press. McCann, D. (2000). ‘Catholic social teaching and the economics of health care management,’ Christian Bioethics 6 (3), 231-250. O’Brien, D. and Shannon, T. (Eds.), (1992). Catholic Social Thought: The Documentary Heritage. Maryknoll, New York: Orbis Books. Pope, S. (1994). The Evolution of Altruism and the Ordering of Love. Washington, D.C., Georgetown University Press.

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Porter, J. (1996). “In the wake of a doctrine: A reassessment of the doctrine of natural law as developed. In We Hold These Truths.” In: J.L. Hooper and T. Whitmore (Eds), John Courtney Murray and the Growth of Tradition. Kansas City: Sheed and Ward, 24-40. Porter, J. (1999). Natural and Divine Law. Grand Rapids: William B. Eerdmans. Smith, J.(1991). Humanae Vitae: A Generation Later. Washington, D.C.: Catholic University of America Press. Tierney, B. (1997). The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law. Atlanta: Scholar Press. Tully, J. (1980). A Discourse on Property: John Locke and His Adversaries. Cambridge: Cambridge University Press. United States Bishops (1993). ‘Resolution on health care reform,’ Origins (23), 98-102.

CHAPTER 10

THOMAS J. BOLE, III

THE PERVERSITY OF THOMISTIC NATURAL LAW THEORY Reflections on Lustig’s Criticisms

What sort of ethical theory can provide a theoretical basis for the ethos accompanying, and implicit in, the emerging global (free-)market economy? One of the most plausible candidates for such a theory, if not the most plausible, is the Thomist theory of natural law. It has two distinct strands. One was first theorized by the Stoics, and taken up into legal theory by Gaius and Justinian, that there are eternal and immutable laws of good and evil, laws of divine reason, that govern all morally responsible humans, and are accessible to all by means of their reason. The second is the notion that the Abahamic God’s moral law, the Decalogue, is, as St. Paul says, a law metaphorically inscribed in the hearts of men (Rom. 2.15). Thomas Aquinas and those heavily influenced by him, e.g., the late scholastic Francisco Vitoria, the Roman Catholic Church in various encyclicals such as Aeterni Patris and in its current official Catechism, and, of concern here, Aquinas’s contemporary disciples John Finnis, Germaine Grisez and Joseph Boyle, construe these two strands as fundamentally harmonious. Lustig (2004) has given the litany of cogent objections against the metaphysical assumptions in traditional Thomistic natural-law speculation. He has pointed out the relative attraction of the Finnis-Grisez-Boyle version, viz., that it does not make these assumptions, but proceeds simply by an analytic explication of the notion of practical reason. And he has aptly characterized as moral “intuitionism” the procedure by which it reaches particular conclusions, e.g., about the sanctity of human life, are no more persuasive on its face than other sorts of moral intuitioinism, such as Baruch Brody’s pluralistic casuistry, that are quite incompatible with it. Not thematically discussed, however, is what I take to be the central nerve, and crucial defect, of Thomistic natural-law speculation. This is that it sunders the connection being moral and loving God. It treats natural law as that which is accessible to man’s conscience in virtue of being a mature moral agent rather than insofar as he is sincerely trying to be holy. In what follows, I want to show that once this connection has been severed, natural-law theory leads by an immanent logic to a 141 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 141—147. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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Kantianism,1 but that the resulting content, as Hegel sees,2 cannot avoid depending upon a socially and historically conditioned, contingent, notion of rationality, which can be reasonably questioned and dissented from. The only remnant defensible in terms of impartial reason, accessible in principle to anyone, i.e., the only moral content defensible as natural to man qua rational, is procedural, not substantive, Kant and Donagan to the contrary notwithstanding. It is simply a framework for the ethical interaction of individuals who disagree about the basic premises of their morality. So I shall argue. 1. THE CRUX OF THOMISTIC NATURAL-LAW THEORY A salient feature about the Thomist tradition of natural law is that it construes the moral law accessible to men in virtue of their rational nature as identical with the law that St. Paul says (Rom. 2.15) is written into the hearts and conscience of good pagans even though they have no knowledge of God’s revealed law. St. Paul is referring to the Decalogue.3 With respect to the first half of this identity, Aquinas, consonant with Stoic and Roman legal tradition of natural law, observes that “the moral precepts derive their efficacy from the very dictate of natural reason, even if they were never included in the Law” (1947, qu. 100, art. 11, resp. ). This dictate, which is “the first precept of the [natural] law”, [is] that ‘good is to be done and pursued, and evil is to be avoided’” (1947, qu. 94, art. 2, resp.), insofar as these goods concern what one is obliged or forbidden to do. With respect to the second half, Aquinas asserts that all moral precepts are contained in the Law and, more importantly, that the Law, and therefore all moral principles, are implicit in the two principles of the Law, viz., (Mt. 22.37,39) ‘Thou shalt love the Lord, thy God’, and ‘Thou shalt love thy neighbor as thyself’ (Aquinas, qu. 100, art. 3, ad 1): Those two principles are the first general principles of the natural law, and are selfevident to human reason, either through nature or through faith. Wherefore all the precepts of the decalogue are referred to these, as conclusions to general principles.

I want to argue against this identification directly, and indirectly, by examining what happens when this identification is made. Consider the direct argument first. It is impossible to understand why one should love everyone, or what this love should consist of, save insofar as the second commandment is “like unto the first” (Mt. 22.39), i.e., understood within the context of orthodox Christianity. Apart from this context, why should one categorically strive to love, and do good to, others that are not “one’s own”, e.g., kith or kin? This is not to say that one should not show appropriate respect for them as morally responsible; nor is it to deny that there may be sound prudential reasons to treat others respectfully, and to do them good. But one cannot say why one should in principle never be governed in one’s attitude towards others by estrangement or hostility. Love of everyone as one’s neighbor is not implicit in the notion of practical reason, nor of the rational agent concerned with what he ought to do and not do. Rather, if we are to take Christ’s words in Mt. 22.39 seriously, it is a consequence of loving, or at least of searching reverentially for, the true Christian God.

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Thomistic natural-law theory has, at least in its traditional claim to articulate that which is in principle accessible to everyman, separated its claims about natural law from this orientation to God. It has wanted to understand the morality that is supposed to be accessible to any mature (human) moral agent as that to which he can have access apart from seeking to love God. It implies that morality can be understood and justified apart from the context of seeking to be holy. My indirect argument is that this implication leads to a moral reductio ad absurdum. I want to make this point by examining the present-day version of Thomistic natural-law theory articulated and defended by Finnis, Grisez and Boyle.4 The virtues of this version are two. First, it is articulated simply in terms of an analytic explication of practical reason. Consequently, it is separated from the controversial metaphysical assumptions about teleology human nature that, as Lustig (2004) has pointed out, traditional Thomistic natural-law theory depends upon in order to derive its particular moral content. Second, Finnis, Grisez and Boyle, in contrast to Aquinas, at least suggest how the natural law is supposed to follow from the first principles of love of neighbor and love of God, insofar as these are natural virtues, viz., dispositions to act as natural law requires.5 The argument for this second point can be explicated as follows. Love is concerned with willing and effecting the good of the beloved. Finnis, Grisez and Boyle suggest that there are certain fundamental goods of persons and that a moral person conducts his life so as to promote them in the course of pursuing his own plan of life. This suggestion is contained in their contention that there are certain fundamental human goods that are integral to human flourishing, to a full human life as a rational being. For them the first principle of morality is to act so that these fundamental human goods, whether in one’s own person or other persons, are promoted as may be possible, and are under no circumstances violated, in the course of pursuing the ideal of integral human fulfillment, and of integrating such of them as are appropriate for one’s own plan of life (Finnis et al., 1987, 283). In fine, one should act so as to promote where possible, and never to violate, the basic goods, in others as well as in oneself.6 The difficulty with the argument is that natural-law theory cannot justify the content of which it claims the morally good to consist in sheerly rational terms. This is a problem not simply for Thomistic natural-law theory but for any moral theory that argues in terms of reason: it cannot justify its content without relying upon first premises that cannot be justified over and against logically incompatible, but no less reasonable – within their contexts – alternative premises; and their contexts are historically and/or socially contingent contexts. Thomistic natural-law’s appeal to reason not only makes too strong a claim in behalf of its findings. More importantly, it diverts attention from the sort of faith – one based in repentance and ascesis – that opens one’s heart to God’s grace. So I shall now argue. The basic goods Finnis, Grisez and Boyle take to be human life in both its maintenance and transmission; knowledge and aesthetic experience, i.e., human reason’s appreciation of truth and beauty; social harmony among persons, e.g., friendship, community, and peace; practical reasoning and excellence in work and play; and religion. Religion is characterised as wondering about whether human reason and freedom have any significance beyond their this-worldly transience,

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“even if the answers [scil. one reaches be] agnostic or negative” (Finnis, 1980, 89). Unfortunately, we are given no cogent argumentation in favor of understanding the content and character of the unconditioned morally good as constituted by the abovementioned goods, each equally basic and inviolable. It is implausible on its face to show why one should not sacrifice one, or several, of these to obtain what he thinks to be a more perfect manifestation of (an)other(s). Quod gratis asseritur, gratis negatur. With respect to one’s self, and perhaps in concert with others who agree, why not act directly against some of these goods to enhance others, e.g., to sacrifice one’s life in a scientific experiment? Why can it not be rationally appropriate to take one’s own life in certain circumstances, such as those articulated by Seneca? The difficulty is more basic than the indefensibility implicit in any “rational intuitionism”, as Lustig aptly describes the Finnis-Grisez-Boyle version of naturallaw theory (2004). Rather, as Engelhardt has pointed out (2000, 29-40), no definitive moral content can be justified. Why should suicide not be appropriate in certain circumstances, and if so, why shouldn’t assisting it? One cannot argue against it without appealing to a standard, e.g., a particular notion of the good, that begs the question at issue or itself requires justification. The Domincan friar and the Samurai warrior have foundationally different ideas about how one may appropriately terminate one’s life. One cannot, therefore, provide justification that Finnis, Grisez and Boyle’s articulation of the good is definitive without appealing to premises that themselves can be questioned and require justification. And one cannot provide justification without begging the question or becoming engaged in an infinite regress. In fine, one cannot establish a definite content for the unconditioned good to be realized in moral action, because one cannot provide justification of that content without appealing to premises from which one can reasonably dissent. However, if no articulation of the unconditionally morally good can be justified to those who contest its assumptions, it is more reasonable to retreat to the notion that willing and doing persons the good must be construed in light of the fact that we cannot definitively determine what that good is in sheerly rational terms, i.e., apart from some particular context disputable by others who do not share it. If the unconditionally morally good cannot be articulated in ways that any person should find rationally compelling, the proper inference is that one can only do good to others that are agreeable both to the doer and the recipient.7 The defensible remnant of Thomas’s first principles of the basis of natural law, of moral sense accessible to any moral agent, is, as Alan Donagan has pointed out (1977, 65-66), more properly captured by the second formulation of Kant’s categorical imperative, that one should “[a]ct so that [one] treat[s] humanity, whether in [one’s] own person or that of another, always as an end, and never as means only” (1968, 429). That is, we ought to act so as to respect any rational entity, any person, as one capable of setting, and executing, his own rationale, or ends, for himself, and therefore as one who – if innocent and not threatening – ought not to be subordinated to another’s end without his consent. Such a view more properly captures the two principles of the natural law, viz., to love God and to love one’s neighbor, than does Finnis, Grisez and Boyle’s view of

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the good, because it is concerned with persons, rather than with the goods persons are supposed to embrace. It enjoins respect of persons because they are agents with practical reason, moral agents. They have unconditioned worth because they can justify, and can be held morally responsible for, the values they set. 2. THE REDUCTION OF DEFENSIBLE NATURAL-LAW THEORY TO PROPER PROCEDURE We must respect the agents’ integrity in choosing those values, even though we know them to be wrong, if they do not injure unconsenting others, because we have no authority – rational, or ex hypothesi social, or legal, that can be justified morally – to impose our will upon them. We can try to persuade them peacefully, and we may – often, must – make clear our moral misgivings about those choices. But we have no moral authority to coerce them into changing those choices. Given the inability of justifying particular moral content, mutual respect insofar as one has dealings with another is the only sort of good one can show. Indeed, showing respect to others cannot even be enjoined as a general principle of beneficence, because one cannot show that one must have dealings with others beyond one’s own community and those with whom it is in one’s long-term interest to deal. It can only be enjoined upon one insofar as one enters into dealings with others.8 This last point can be most expeditiously made against claims by both Kant and Donagan that particular moral content, i.e., a substantive moral theory, can be justified on the basis of the categorical imperative, in the above-cited formulation, as the basic principle. Kant thinks that one is categorically enjoined against suicide and against lying. But with respect to suicide, presuming it is done by a competent moral agent, and not under compulsion, it is voluntarily chosen, hence cannot be a violation of this basic principle. (Similarly, it would not violate this principle to assist someone to end his life.) With respect to lying, it is difficult to see how this is categorically wrong, if the person to whom one is lying has no right to the information, and indeed would use it to do wrong, e.g., to kill innocents, and one has no other way to divert the would-be killer. (Such is the case in favor of lying in Kant’s own example, from his lectures on ethics, about the person asked by a pursuer bent on murder, whether he has seen the pursuer’s quarry. Cases of possible victims being hunted down by government authorities bent on genocide suggest themselves by the events of the twentieth century.) Donagan’s more nuanced arguments reflect the fact that in the two centuries since Kant’s death we have come to realize how diverse are the notions of moral rationality, and how much more nuanced arguments must be against moral relativity. Yet, at the end of the day one realizes that his morality, too, is colored by a traditional, distinctively Western Christianity. For instance, he contends that slavery is unqualifiedly forbidden because it is irreconcilable with the slave’s status as a rational creature (1977, 83). Though such an argument may count in principle against hereditary slavery, it surely does not count against laws of war in which the defeated has the choice of either slavery or death. (Nor, one should note, is their any

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hint of disapproval of slavery in the Bible. The occasion of St. Paul’s Epistle to Philemon is his returning Philemon’s runaway slave Onesimus to him. Moreover, Rom. 17-18 remarks that we escape being “slaves of sin” by becoming “slaves of righteousness.” (The King James translation, using “servants” instead of “slaves” for the Greek douloi, may mislead.) Donagan’s “principle of beneficence”, that one ought to promote others’ well-being by permissible actions that do not disproportionately inconvenience (1977, 85), is implausible on its face. Since reason is the basis of persons’ worth, it is unclear why one should promote that worth in others rather than oneself or one’s own, if there is any inconvenience. Indeed, given the inability to establish canonically authoritative moral content to the good, the recipient of the good must agree that it is good; otherwise he is being coerced into receiving it. In fine, the only good enjoined by the categorical imperative of mutual respect is that of non-maleficence, not to coerce unconsenting innocent others, or embrace them in collective goals, without their consent. The principle of mutual respect says simply that we cannot use others as mere means, i.e., without their permission. It is not a positive principle of beneficence. Not to injure or assault others is grounded not in some ascription of positive rights, but in our prima facie lack of authority to do so – unless authorized by a shared moral framework. The rational nisus of Thomistic natural-law theory’s sundering of the connection between being moral and being holy, doing the right thing and loving God, is the merely procedural framework of mutual respect. NOTES 1 2

3

4

5

In doing this, I follow Donagan (1977, 57-66). These points are made in (1965), parts 2 (‘Morality’), esp. para, 134-135, and 3 (‘The Ethical Life’), esp. para. 148, 150, of his Philosophy of Right, trans. T.M. Knox (Oxford: Clarendon Press, 1965). Cf. Summa Theologica I-2, qu. 94, art. 6, sed con and resp: “On the contrary, Augustine says (Confess. ii): ‘Thy law is written in the hearts of men, which iniquity itself effaces not.’ ‘But the law which is written in men’s hearts is the natural law. Therefore the natural law cannot be blotted out. I answer that, as stated above (art. 4, 5), there belong to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men’s hearts. But it is blotted out in the case of a particular action, in so far as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (qu. 77, art. 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rom. i) were not esteemed sinful”. I use the concise presentation of their philosophical reworking of Aquinas’s moral theology in Finnis et al. (1987), ch. X. Grisez first showed the connection between the basic principle of practical reasoning and the principles of morality, the moral goods, in (1965, esp. 184-190). For the naming of the basic goods I draw not upon the list presented in Finnis et al. (1987, 279-280), but upon the clearer, and slightly different, listing in Finnis (1980, 86-90). Cf. , qu. 63, art. 1: all natural virtues are in us by nature as an aptitude, though undeveloped and not in their completeness [“secundam aptitudinem et inchoationem,, non secundum perfectionem”]. Their innateness is contrasted with the theological virtues. Aquinas asserts that the natural law is derived

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from what he calls the “first principle in practical reason”, that good is to be done and pursued, and evil to be shunned [I-2, 94, 2]. He thereafter proceeds to treat the moral virtues that presumably articulate the good to be pursued. But this first principle is a principle not of morality but of practical reason generally; even wrong actions are done in pursuit of something the agent considers good. He allows that love of God and of neighbor are the “first and common precepts of the natural law”, selfevident, per se nota [Aquinas (1947), 100, 3 ad 1]. But he does not say how the moral virtues follow from them. That this principle does not express philosophically the Law is evident in the comment by Finnis et al. that it “captures much, if not all, the moral content” of the Law’s commandments to love God and neighbor (1987, 284). The assumption here is that one’s actions do not involve unjustifiable force. Joseph Boyle has argued against Engelhardt, cogently in my opinion, that mutual respect is a positive moral value necessary for people to negotiate peaceably with others, even though these others are “moral strangers”, i.e., do not share the same views about the good and the right (2004). Engelhardt argues that outside moral communities there is no moral standard that can be justified as canonical, and that people have to negotiate peaceably in order to avoid moral nihilism. Boyle points out that the avoidance of moral nihilism is not a motive of sufficient strength to explain why a moral stranger should feel himself bound by moral agreements (of sufficient seriousness) if he changes his mind and reckons that breaking them is in his self-interest, and if his particular moral code were not to enjoin being bound by them. And then moral nihilism could not be avoided. Rather, Boyle infers from this reductio, mutual respect must be a positive value accessible to anyone with reason, as necessary for peaceable coexistence because necessary for the agreements to be morally binding. However, such a basis permits no extrapolation of something more substantive; it is purely procedural.

BIBLIOGRAPHY Aquinas, T. (1947). The Summa Theologica. Fathers of the English Dominican Province (trans.). New York: Benziger Brothers; reproduced at http://www.ccel.org/ a/ Aquinas /summa /FS /FS094. html #FSQ94OUTP1. Boyle, J. (2004). “Natural law and global ethics.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Donagan, A. (1977). The Theory of Morality. Chicago: University of Chicago Press. Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. Finnis, J., G. Grisez, J. Boyle (1987). Nuclear Deterrence, Morality and Realism. Oxford: Clarendon Press. Grisez, G. (1965). ‘The first principle of practical reason: A commentary on the summa theologiae, I-2, Question 94, Article 2’, Natural Law Forum 10, 168-201. Hegel, G.W.F. (1965). The Philosophy of Right. T.M. Knox (trans.). New York: Oxford University Press. Kant, I. (1969). Metaphysische Anfangsgründe der Naturwissenschaften, in Kants Werke. Akademie Textausgabe, vol. 4. pp. 385-464. Berlin: Walter de Gruyter. Lustig, B. A. (2004). “Natural law and global ethics.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

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CHAPTER 11

ROBERT B. KRUSCHWITZ

NATURAL LAW AND THE FREE CHURCH TRADITION

What catches the eye is not the title of Jean Porter’s recent book on scholastic natural law theory, but her subtitle: Reclaiming the Tradition for Christian Ethics (1999). We might think that if any scholars today were congenial to the meta-ethical theory that says moral principles are objectively true and derive from God’s creative activity, it would be Christian ethicists — the scholars who articulate the practical implications of the Gospel, both for the church’s self-understanding and for its proclamation to the world. But Porter’s interesting thesis is that their support cannot be taken for granted. We can see why this might be so if we look at an outline of the current debates about the theory. Stephen J. Pope says that natural law theorists must defend themselves on three fronts: (1) from “anti-naturalist” philosophers who worry too much about the naturalistic fallacy, which expresses G. E. Moore’s view that we cannot logically derive moral values from facts about human nature; (2) from “antirealist” philosophers who think that there is no such thing as human nature at all; and (3) from Christian ethicists who offer a number of theological objections, principally that natural law theory does not take the fall of humanity seriously enough and ignores “Jesus, the Kingdom of God and the community of disciples embracing a distinctive way of life” (Pope, 2001, 77-95).1 So here is a ready explanation of Porter’s point: contemporary natural law theorists understandably have been so busy answering philosophical objections of the anti-naturalist and antirealist sort that they have neglected to address these theological doubts. This essay examines just one of the nagging theological doubts about natural law that continue to surface in my own roots, the Free Church movement.2 In a nutshell the doubt is this: natural law theory, as it is often expressed, says that an extensive body of moral knowledge is available to human beings as rational individuals and regardless of their traditions; yet the Free Church perspective deems moral knowledge to be communal and tradition-embedded. Can natural law theory, when it is carefully and sensitively amplified, allay this doubt and be reclaimed for Free Church Christian ethics? Before putting that question to two contemporary 149 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 149—162. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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articulations of natural law — the “new natural law theory” proposed by Germain Grisez and developed by Grisez, John Finnis, Joseph Boyle, and others,3 and what I will call the “narrative natural law theory” of Pamela M. Hall (1994) and Jean Porter (1999) — I will survey the Free Church tradition and its account of moral knowledge. 1. THE FREE CHURCH PERSPECTIVE It would be more accurate to speak of claiming, rather than reclaiming, natural law theory for the Free Church perspective, because the language of natural law has never been the language of Zion within that tradition. If you ask, “What role should the theory of natural law shoulder in articulating Christian ethics?” a Free Church theologian would answer, “Not much, or not any role at all.” This is very much in contrast to the favoring of natural law in a long heritage of Roman Catholic moral theology, starting from early scholasticism in the twelfth and thirteenth centuries and continuing through the revival of natural law in the major papal encyclicals in the nineteenth and twentieth centuries.4 This divergence between the Roman Catholic and Free Church traditions on the role for natural law often is explained by the different historical contexts in which their moral theologies developed (see Sedgwick, 1999, 1-24). In the thirteenth century Catholics were required to make a weekly confession of sin to a priest. Even though its deeper purpose was reconciliation and the development of Christian virtues and moral judgment, the confessional practice, because of the sheer workload of hearing great numbers of confessions, often reduced to merely naming and weighing of sins and then assigning penance. These priestly assessments varied widely across Europe because the local laws were rather chaotic and there was no common church law. This context shaped the new moral theology, being written in the Christian universities, toward an emphasis on assessing specific human actions by appeal to a divine law that is natural and universal, rather than conventional and varying, and thus can provide the criteria needed for regularizing the differing local laws (1999, 34-41). The context for Free Church moral thought in the sixteenth and seventeenth centuries was very different. Nation-states had begun to form and the new Protestant churches were aligning with these states. Free Church congregations, struggling to be intentionally Christian and autonomous of the nation-states, emphasized adult baptism into their new communities, which were radically remodeled (they hoped) upon Biblical patterns, and then sanctification by disciplined living. Members were bound to God and to one another by a covenant. Their moral thought, therefore, turned to describing the grace that invites persons into the community and to developing the discernment practices the community requires in order to forgive and restore any members who violate the covenant.5 Talk about natural law seemed ill fitted to describing the work of grace, the formation of covenants, and the congregational discernment for dealing with covenant violations. This common explanation, if it is broadly correct, gives hope that this divergence of Catholic and Free Church traditions might be overcome, for in the contemporary pluralist context of Christian moral thought we hear echoes of both of their defining

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historical periods. Echoes of the thirteenth century are heard today when evangelical and Catholic, mainstream and holiness, western and non-western Christians seek theological hospitality toward one another and an end to the unnecessary exaggeration of differences among their traditions.6 Natural law theorists advance their theoretical framework as an aid to enhance understanding across Christian traditions.7 On the other hand, the sixteenth century echoes through the growing tendency to distinguish the practice of Christian discipleship from the life patterns of any single culture. This is coming about as its theological center follows the Christian population center away from Europe and North America into Africa and Asia, and as missionary activity focuses on “unreached people groups,” which are those ethnic populations that are very isolated or distributed through nations which historically have limited missions. When Christian communities are seen as separate from their host cultures, theologians of all traditions have something to learn from the Free Church covenantal theology. 8 However, this historical explanation also points toward the key difference that, at the end of the day, might remain between natural law theory and the Free Church tradition: natural law, as it is usually understood, seeks to provide to reasonable individuals the criteria they need to adjudicate moral disagreements across all human communities; yet in the Free Church tradition, proper moral deliberation, or phronesis, must be communal and embedded within a particular tradition. This Free Church perspective emerges from its reading of the New Testament as possessing an inherent unity, not the unity of a theological and ethical system, but: the looser unity of a collection of documents that, in various ways, retell and comment upon a single fundamental story. That story may be summarized roughly as follows: The God of Israel, the creator of the world, has acted (astoundingly) to rescue a lost and broken world through the death and resurrection of Jesus; the full scope of that rescue is not yet apparent, but God has created a community of witnesses to this good news, the church. While awaiting the grand conclusion of the story, the church, empowered by the Holy Spirit, is called to reenact the loving obedience of Jesus Christ and thus to serve as a sign of God’s redemptive purposes for the world (Hays, 1996, 193).9

The Free Church interprets its own congregations, but not only those groups, as fallible attempts faithfully to enter this story and to be the “community of witnesses” in particular historical places and times. It realizes that not everyone will interpret the New Testament in this way, discover this particular story, or any story at all, and feel called by the Holy Spirit to participate through community in its unfolding episodes. These writings can be read rightly only in communities that employ the appropriate interpretive lenses: guiding “images” or “root metaphors” which “encapsulate the crucial elements of the narrative and serve to focus our attention on the common ground shared by the various witnesses” (Hays, 1996, 194). It is precisely the task of Christian ethics to analyze and to test rival images to determine which are “most appropriate to orchestrate the Christian life in accordance with the central conviction that the world has been redeemed by the work of Jesus Christ” (Hauerwas, 1984, 69). To illustrate, consider the proposal by Richard Hays that three images — community, cross, and new creation — should “focus and guide our reading of the New Testament texts with respect to ethical issues” (Hays, 1996, 198). The first

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image, community, points to the church as “a countercultural community of discipleship, and this community as the primary addressee of God’s imperatives. The Biblical story focuses on God’s design for forming a covenant people. Thus, the primary sphere of moral concern is not the character of the individual but the corporate obedience of the church” and “we seek God’s will not by asking first, ‘What should I do?’ but ‘What should we do?” (Hays, 1996, 196-197). Cross, as a root metaphor or image, signals, “Jesus’ death on a cross is the paradigm for faithfulness to God in this world” and reminds, “that the community as a whole is called to follow in the way of Jesus’ suffering” (197). The final image, new creation, says, “The church embodies the power of the resurrection in the midst of a not-yetredeemed world” (198). Not the least of the implications of this “not-yet” feature of Christian experience, is that the community’s phronesis is always provisional, potentially distorted, and in need of constant correction by return of its source story. Thus the Free Church grounds its understanding of the community’s phronesis on New Testament descriptions of church life, especially 1 Corinthians 14 and Matthew 18. Phronesis requires the right sort of community: one in which (1) each member is free to speak, (2) each grants to others the privilege of weighing his or her contribution, and (3) each member is committed to reaching an opinion that is consensual, reconciles each member to the others, and is compatible with God’s judgment (Yoder, 1984, 118). John Howard Yoder fleshes out the process by describing key functions that members of the community may perform at various times: prophecy, scribal memory, teaching, and shepherding (Yoder, 1984, 28-34).10 The first function is “prophecy.” A prophet does not announce specific moral guidance, but “states and reinforces a vision of the place of the believing community in history.” This leading by God prevents the process from being arbitrary, or the mere following of tradition; yet it also makes the process situational, for God’s revealed role for the church may adjust to historical circumstances. The second function is “communal memory” or “scribal memory.” “The scribe as practical moral reasoner does not judge or decide anything, but he (or she) remembers expertly, charismatically the store of memorable, identity-confirming acts of faithfulness praised and of failure repented.” The scribe draws on resources in Scripture, communal history, and worship to keep the deliberation true to the community’s character. The “teacher” as guardian of the “tongue” or language (James 3:18) performs a third function as “agent of linguistic self-consciousness.” Rhetorical skills can misguide debate and be deployed in order to avoid decision and action; unanalyzed conceptual schemes can steer thinking into confusion or superficial closure. The teacher guards the community’s discourse from the careless misuses of language. “Shepherd” refers to a single group (the word normally is plural in the New Testament) whose role is to ensure order and due process in deliberation. They are moderators or facilitators, not monarchs, guaranteeing that everyone is heard and that conclusions are genuinely consensual. Free Church phronesis, then, is exemplified by “the right sort of community” that aims at the ideal of consensus on moral decisions, guided by a sense of shared purpose, by communal memory of past deliberations, by a healthy concern for action over debate and for correctness over agreement, and by fairness through due process. It overcomes the individual’s limited perspective not by subtraction of his or her

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historical embeddedness, but by addition through association with others’ insight, encouragement, and need for reconciliation.  2. NEW NATURAL LAW THEORY In this section I will sketch the new natural law theorists’ account of the content of the natural law, how it is known, and its role in moral deliberation. Then I will examine the communal and tradition-dependent features of that moral deliberation. The question will be put, “Can this articulation of natural law theory be claimed and incorporated within the Free Church account of phronesis?” The natural law, on this theory, is composed, not of specific moral prescriptions or prohibitions, but of the most fundamental practical and moral principles. The natural law includes the first principle of practical reasoning, “Good is to be done and pursued.” Since this is a formal principle that does not specify the content of the good, it never serves as a premise in practical reasoning. Its role is to stay in the background as a reminder that practical thought should be oriented toward achieving some good (or, at least, toward achieving something the reasoner happens to think is good). Just as the principle of non-contradiction is not a premise in theoretical reasoning, but keeps it oriented toward truth by reminding thinkers to avoid accepting contradictory statements, in an analogous way the first principle of practical reasoning reminds thinkers that pointlessness, or non-good-oriented labor, should be avoided in their practical reasoning (Grisez, Boyle, and Finnis, 1987, 119120). If the natural law contained no more principles than this one, it would guide only how to think, but not what to think about the way human beings should live. So, in addition it contains first principles of practical knowledge that, in a most general way, display the content of the human good. These principles — “Life is to be pursued as a good,” and so on — serve as the basic premises of all practical reasoning. They say that there are basic substantive goods that human beings enjoy regardless of whether they choose to pursue them: life, health, and safety (as living organisms); knowledge and aesthetic experience (as rational beings); and some excellence in work and play (as rational and embodied beings). Other basic reflexive goods can be enjoyed only if human beings choose to foster and protect them: personal harmony in various forms, such as inner peace and consistency; and interpersonal harmony, as in friendship and living at peace with others (Grisez et al., 1987, 107-108). New natural law theorists propose that these fundamental practical principles are self-evident to rational human beings. This proposal, fleshed out in several ways, becomes a linchpin holding together key aspects of their theory. It means that the first practical principles are not “mere linguistic clarifications,” but are truths about objective human goods (Grisez et al., 1987, 106). Neither are they mere “intuitions” or “insights unrelated to data;” rather they are grounded in human nature in a certain way. Since, as human beings, we are naturally disposed to enjoy life, knowledge, interpersonal harmony, and so on, whenever we attend to one of these substantive or reflexive goods, we immediately judge that it is good in itself and should be pursued (Grisez et al., 1987, 106, 108-109).11 Because the first principles of practical

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knowledge, which are “values,” are knowable immediately and not deduced from any “facts” about the human good, the new theorists famously claim that they avoid the naturalistic fallacy; in their own words, the first principles are “not conclusions from theoretical knowledge about human nature” (111). From the self-evidence of the first principles of practical knowledge it follows that the basic goods themselves must be incommensurable (110). And, of course, it follows that all rational human beings who understand the terms involved, can know the natural law. 12 Now moral deliberation is practical reasoning with “unfettered reason.” Put another way, “to be morally good is precisely to be completely reasonable” (121). Practical reason can become fettered in two ways. It is fettered by emotion if it evaluates possible courses of action more by their emotional appeal than by their likelihood of fulfilling the human good, broadly conceived.13 Thus one formulation of the (self-evident) first principle of morality says: Insofar as it is in your power, allow nothing but the principles corresponding to the basic goods to shape your practical thinking as you find, develop, and use your opportunities to pursue human fulfillment through your chosen actions (121).

Practical reason is blinkered in another way, by the complexity and incommensurability of the basic human goods, if it evaluates possibilities by their fulfilling only a few of those goods, or by their fulfilling human goods for only some people. A second formulation of the first principle of morality says: In voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment (128).

In this principle, “integral human fulfillment” refers to an ideal community in which there is “the realization, so far as possible, of all the basic goods in all persons, living together in complete harmony” (131). So, deliberation is moral when emotions are properly controlled, all of the basic human goods are appropriately considered, and no (relevant) persons are ignored. In new natural law theory, to what extent is moral deliberation communal and tradition-dependent? Joseph Boyle grants that it can be tradition-dependent in the weak sense that “all intellectual efforts … appear to depend in a variety of ways upon cultural contingencies and particularities.” For example, he believes that moralists from differing traditions will reach the same self-evident first principles of the natural law, though these may “be expressed in different languages or arrived at by enquiries with very different starting-points and presuppositions” (Boyle, 1992, 5-7). Also, new natural law theorizing will be a developing intellectual tradition, he says, “which prior thinkers have originated and developed but left incomplete, at least as far as its application to the problems and challenges, both internal and external, which the theory must deal with at any given time” (Boyle, 1992, 7). So, it is likely that traditions of interpretation will develop as theorists gradually discover the complexity of each basic human good and deliberate about specific moral issues such as abortion or redistribution of wealth. Yet “there is no inconsistency in holding that the formulation of moral norms emerges within a tradition of enquiry and that these norms … can be, and even are actually, known by everybody” ( 9). What new natural law theory cannot allow, Boyle says, is that moral deliberation

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“must be rooted in the lived ethical experience of people who share a common way of life.” That is, though it may be dependent, in the ways described above, upon “a group who willy-nilly shares a language or other cultural assumptions” or “a tradition of enquiry,” moral thinking cannot depend upon “a moral tradition” constituted by “people who share a common view of human life and its goods and live them out within a community which embodies these shared values” (9-10). This is so, he claims, because natural law must be available at several levels to “all mature human beings.” Its first principles must be self-evident. Some specific moral norms, like the precepts of the Decalogue, must “follow from these principles in such a way that it is easy for people to see their truth, even though it is possible, because of cultural distortion or personal immorality, that people be ignorant of them.” And, though the application of its norms to difficult cases requires casuistic skill “beyond the reach of most people,” this skill is “largely analytical” and “as such the tradition it presupposes is the tradition of intellectual enquiry, not a community of shared values” (11-12).14 “In short, with respect to the third and strongest sense of tradition dependence,” Boyle concludes, “natural law theory is committed to the significant tradition independence of moral knowledge” (15).15 The articulation of natural law within the new theory, then, appears to rule out the Free Church account of phronesis, for not only the first principles of practical and moral reasoning, but extensive practical knowledge — including first principles, specific norms, and some important applications of the norms — must be available to all mature persons as individuals. Though the new theory allows that cultural distortion and personal immorality might hide fundamental moral norms and applications from a person’s view for a period of time, the corrective it prescribes is only that intellectual inquiry be pursued more carefully, not submission to a specific story and its living interpretative tradition. It is difficult to find the new natural law theorists’ argument here. Boyle says, “The basic principles and norms of natural law, as natural, … are held to be accessible to all who are capable of forming the concepts which comprise them” (1992, 4). Perhaps the point is this: since these three levels of knowledge, from principles to norms to important applications, are all part of the natural law, they must be available to all rational human beings regardless of their “communities of shared values.” But what meaning of “natural” is in play here? Does “nature” refer to whatever is not constructed by human conventions? Or to that which is grounded in tendencies to action that are like, or at least continuous with, those found in all animals? Or to that which is orderly and grounded in reason? Apparently it is none of these meanings, because these do not entail that natural law must be knowable in a manner that is independent of community and tradition. Perhaps “natural” here means that which is knowable with an individual’s natural capacities; but, if this is so, it merely begs the question to conclude that knowledge of the natural law is available to people regardless of their community and tradition. 3. NARRATIVE NATURAL LAW THEORY This is a good moment to examine the Narrative Natural Law Theory developed by Jean Porter and Pamela M. Hall. Porter and Hall develop the line of objection

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suggested in the last paragraph in order to rebuke the new natural law theory as a significant departure from the scholastic accounts of natural law and to present their own theory as a more faithful heir to that tradition (Porter, 1999, 92-93; Hall, 1994, 16-19). Rather than exploring their historical claim, I simply will sketch their own theory in order to judge whether it is a more promising articulation of natural law to be claimed and incorporated within the Free Church account of phronesis. The natural law, in their account, is primarily the pattern of natural inclinations that directs human beings toward what is good for their kind (Hall, 1994, 23-44).16 Some of these, like the inclinations to preserve one’s life and sexually to reproduce, are continuous with inclinations in other animals; others, such as inclinations to know the truth about God and to live in a society, are at least discontinuous with those in other animals and may be unique to humans. All are natural in the sense of being not created by human conventions, though they may be specified or distorted by those conventions, and most are natural in being more or less continuous with those in other creatures. This pattern of inclinations is called “law” even though it is not a set of rules or prescriptions, because it is orderly and an especially transparent expression of the reason that may be found underlying all of God’s creative activity. A further constituent of the natural law is the pre-rational habit, called synderesis, which orients human beings toward the good, or whatever they think is the good. Pamela Hall summarizes: Indeed synderesis, together with the inclinationes that are the primary constituents of the natural law, guides deliberation about the human good. The habit of synderesis alone is by no means sufficient for ethical guidance. The forms of directedness give practical content to the conceptual apprehensions of good and evil provided by synderesis; they specify what is meant by good in terms of human flourishing. Thus there are … activities and states which are naturally desired by men and women as goods. This much can be counted on no matter to what sort of human community one belongs. Such seems to be Thomas’s claim when he says that the natural law, in its most general (communissima) principles, is known to all and cannot be erased from the human heart (1994, 43).

On the narrative view, basic moral precepts are then discerned and formulated as a second level of the natural law, as human beings reflect upon their inclinations: Our discovery of the natural law occurs by way of reflection upon our natures and then by discovery of the necessary means for achieving or constituting the goods of our natures. These means include the formation of rules to help secure and constitute the good for us. We both give the law to ourselves and discover it…. In attention to what makes up one’s experience and in the making of choices, both good and bad, a human being augments understanding of his or her own nature and of what most promotes the flourishing of that nature. This process of inquiry is, then, one of practical reasoning, practical reasoning which must be carried on individually and communally (37).

This process of discerning the natural law, Hall remarks, is “rough and ready” and “far more historical” than the new natural law theorists’ model of “largely analytical” inquiry, according to which reason guides all mature human beings to identical principles and norms though they start from “very different starting-points and presuppositions.” In working through this process of inquiry, each tradition develops a distinctive narrative of its search for the good. Hall identifies in this passage two moments in the process of discovering the

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natural law: (a) reflecting on human nature and (b) discovering what promotes the flourishing of that nature. In these moments, respectively, the goal and means of human flourishing are further specified. Her claim that the first moment, the discovery of the basic goods of human nature, unfolds within the contingent history of a community, is what most distinguishes the narrative theory from the new natural law view. “We are dependent upon community and [positive] law to articulate better the natural law for individuals,” Hall writes, and “with this contingency comes the possibility of failure in discovery.” Indeed, she admits that an entire society might fail to discover “some portion of the natural law” (111). How is this possible? How could human beings be mistaken about the basic human goods, even in their most general form? Because human beings’ natural inclinations are complex and varied, they require attentive, value-laden interpretation: some particular aspects of human nature must be given moral priority over others. Humans have basic tendencies to care, reciprocity, and nonmaleficence, but also to aggression, pride, and self-reverence. From what perspective shall these be interpreted? If it seems obvious to many people today which of these or other basic tendencies should be given ethical priority, this surely reflects some influence upon us of the tradition of Christian scholastic interpretation of natural law. It was not obvious to the scholastics, and they self-consciously grounded their interpretation of the natural law in a particular theology and reading of Scripture that supplied to them interpretive images (Porter, 1999, 123). The natural law theorists’ need for some interpretative perspective may be illustrated, perhaps rather dramatically, by the work of contemporary political theorist Larry Arnhart. His natural law theory is very different from the scholastic theory because he draws interpretative images from evolutionary psychology. “The human good is universal insofar as there are universal human desires rooted in human nature,” writes Arnhart. “There are at least twenty human desires that are universal because they are part of the biological nature of human beings as manifested in all societies throughout human history. The universality of these natural desires supports universal standards of moral judgment, so that we can judge societies as better or worse depending upon how well they satisfy those natural desires” (1998, 17). The (at least) twenty natural desires, says Arnhart, are the desires to live, care for children, have sexual identity, sexually mate, live in families, enjoy friendship, be ranked above others, have reciprocity in social relations, have political organization, go to war (when it seems to advance one’s group), live a healthy life, be beautiful, have sufficient wealth (for flourishing and display of status), speak, manage appetites by habituation and deliberation, produce products of craftsmanship, enjoy aesthetic pleasure, and make sense of reality both by religious revelation and by natural reason (1998, 31-36). Is it obvious that, as Arnhart claims, “the good is the desirable”? Hardly. One problem is that the perspective of human evolution, being less discriminating than scriptural tradition as an interpretive guide, has yielded up a long list of obviously incompatible desires. Another problem is the morally controversial nature of some desires on that list: peacemakers, the meek, and the poor in spirit, not to mention just-war theorists and signers of the Humanist Manifesto, are out of the evolutionary loop, so to speak. Obviously human nature looks very different when observed through the lens of

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evolutionary psychology rather than Christian Scripture. So, does the discovery of natural law require communal phronesis within a community of shared values? Porter observes that the scholastics do not address this question directly, because though they “see themselves as working within a particular framework of thought that is not shared by all rational people,” they do not interpret this fact as we might. “Precisely because they consider Scripture to be the definitive revelation of God’s wisdom and providential intentions, they expect to find a fundamental harmony between Scripture and other sources of knowledge and insight, and generally do. Where these seem to conflict, they typically attempt to harmonize them in a way that allows independent (although not finally decisive) weight to non-scriptural sources” (Porter, 1999, 145). Surely we can admire and emulate the scholastics’ toleration and willingness to learn from those who occupy perspectives other than their own.17 However, we stand on the other side of Marx, Nietzsche, and Freud, those masters of suspicion; we should be more wary of the epistemological distortions of class, culture, and individual psychology, and therefore much less sanguine about the possibility of harmonizing all perspectives.  4. CONCLUSION Here is the sum of the argument. The Free Church perspective says that proper moral deliberation or phronesis must be communal and tradition-embedded. The new natural law theory rejects this understanding of phronesis, but its position is not required by the fact that natural law is natural. Indeed, when the narrative theory articulates the natural law tradition, the character of reflection upon the natural law turns out to be much closer to the Free Church model of moral deliberation. Should natural law theory, as amplified in these two contemporary articulations, be claimed for Free Church Christian ethics? First, Free Church ethicists generally have endorsed the natural law view that practical reasoning is grounded in a prerational capacity, synderesis, by which human beings distinguish the good from evil and are naturally drawn toward what they perceive to be the good. This capacity, usually called “conscience” by Free Church writers, is part of God’s good creation.18 They even have acknowledged the self-evidence of a corresponding first principle of moral reasoning, as in the new natural law theory; however, they would stop at calling moral knowledge self-evident, and would prefer to describe it as grounded in properly interpreted experience or “perception.”19 The proper lens for interpreting human moral experience, according to the Free Church, is not the natural law, even a Scripture-shaped version of it; the proper lens is the church’s narrative reading of Scripture.20 Of course, Scripture itself is hardly self-interpreting, a point made clearly by natural law theorists.21 “The scholastics ground their concept of the natural law in a particular reading of Scripture,” Porter notes, “while at the same time interpreting specific scriptural texts in terms of that concept” (my emphasis) (Porter, 1999, 123). But this move from natural law to interpretation of Scripture would seem to Free Church ethicists to be ‘too quick.’ They would agree that Scripture must be interpreted. “Indeed, the diversity of Scripture is at the heart of the Christian life insofar as it requires that we be a

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community, a church, capable of allowing these differing [New Testament] texts be read amongst us with authority,” Stanley Hauerwas writes. However the interpretation “of Scripture is mediated through the lives of the saints identified by our community as most nearly representing what we are about. Put more strongly, to know what Scripture means, finally, we must look to those who have most nearly learned to exemplify its demands through their lives.” Is all of this a Free Church hermeneutical shell game, shifting the problem from interpreting human moral experience to Scripture and finally to the lives of exemplary disciples? Does the community not need natural law to determine which members’ lives are exemplary? Are they not the ones who live fulfilling lives, those lives being delineated by the natural law? “There is some truth to this: we do need to try to say why some exemplify God’s story better than others,” Hauerwas admits. “However, the ‘reason’ required is not ‘extra-theological.’ It comes from the very community formed by the memory of God’s promises to us. Thus the ‘criterion’ is not so much like a principle as it is like a story that the saints’ lives exhibit. Through the lives of the saints we begin to understand how the images of Scripture are best balanced so that we might tell and live the ongoing story of God’s unceasing purpose to bring the world to the peace of the kingdom” (1984, 70-71) Yet within this much larger hermeneutical circle, can there also be a role for the community’s interpretation of natural inclinations? The lives of exemplary disciples help shape the church’s understanding of Scripture, and hence its interpretative guides to evaluating inclinations; their example leads the church to value peacemaking, meekness, and poverty of spirit, over inclinations to status-seeking, self-reverence, and aggression. But the interpretation also moves in the reverse direction: their lives recommend the fitness of the Gospel to the human condition, its healing of humanity’s real wounds and satisfaction of its undistorted inclinations. Some space remains, then, within the Free Church hermeneutic to explore the integration of natural law when it is interpreted communally and scripturally. Though moral deliberation is tradition-dependent in this robust way within the Free Church, this is not inconsistent with any of the central commitments of natural law theorizing: (1) the moral law is discovered, and not created by human communities; (2) basic moral norms are the same for everyone; (3) human beings have a fundamental orientation toward the good and, for this reason, we may reasonably expect people in differing traditions to have significant insight to the goods of human life; and (4) Christians may gain moral truth from these other traditions, not only in a manner that adds to, but even in a way that corrects their own morality when it has been distorted by sinfulness, personal and corporate. In all these ways the Free Church might claim natural law theory. Yet it should be obvious that even as the Free Church tradition claims the language of moral law, it will reshape the natural law tradition in the directions of community and tradition described in this essay. This reshaping is part of what it means to be incorporated into the church’s story. Director The Center for Christian Ethics, Baylor University, Waco, Texas

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I am grateful to my colleagues in the Baylor University philosophy department colloquium for their helpful criticism of this essay. NOTES 1 2

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Stephen J. Pope surveys the contemporary scene (2001, 90-91). By “Free Church” I mean the Anabaptists in the sixteenth century, Quakers and English Baptists in the seventeenth century, their later descendants in America that retain their Trinitarian theology, as well as the radical Pietists, groups called “Brethren”, and the Disciples movement. These Christians, despite their many theological differences, share a vision of the church’s relation to society and to its own history: they believe that the Church must be independent of government and requires reformation by the criterion of Scripture. Methodism, holiness groups, and other Christian groups have some affinity to the Free Church movement. Germain Grisez proposed the theory in ‘The first principle of practical reason: A commentary on the Summa Theologiae, 1-2, question 94, article 2,’ (1965, 168-201). For a careful restatement of the theory and extensive bibliography see Germain Grisez, Joseph Boyle, and John Finnis (1987, 99-152). Porter, Natural and Divine Law (1999, chapters 1-3), offers an overview of early scholastic natural law theory. The revival of Thomistic natural law in Catholic social teaching began with Pope Leo XIII’s encyclicals Aeterni patris (1879) and Rerum novarum (1891). Pope John Paul II applies natural law ethics to the problems of workers in a capitalist economy in Cestesimus Annus (1991), to the criticism of basic moral theory in Veritatis Splendor (1993), and to abortion, care for the dying, and other biomedical issues in Evangelium Vitae (1995). “Historically, the ritual of covenant taking was both the means of gathering a newly formed congregation at its inception and also a rite of passage into the fellowship for new members. Church discipline, in accordance with the procedures of admonition, censure, and excommunication as outlined in Matthew 18:15-18, was regarded as an essential mark of a true, visible church. The practice of discipline served a twofold function in Baptist life: it aimed at restoring the lapsed brother or sister to full fellowship if possible, and it marked off clearly the boundaries between the church and its environing culture” (George, 1990, 23.) Marlin Jeschke recommends a model for church discipline based on Matthew 18 in Discipling in the Church: Recovering a Ministry of the Gospel (1972). Richard Mouw (2001) warns that when Christian scholars exaggerate the differences among Christian traditions, they “bear false witness” against one another. Jean Porter, for instance, says that natural law theory might provide grounds for reversing the World Council of Churches’ decision in 1998 to deny inclusion of the Celestial Church of Christ, a Nigerian church that no longer sanctions plural marriage but allows its clergy to remain married to more than one wife (Porter, 1999, 312-314). Martin Marty (1983, 33-36) discusses the spread of forms of Christianity that stress initiation, identity, boundaries, and assertiveness. In this paragraph I am using the research of Hays and Stanley Hauerwas, two Methodist scholars who were much influenced by the writings of Mennonite theologian John Howard Yoder. Hays summarizes Yoder’s scriptural hermeneutic in 1996, 239-253. Of course, this hermeneutic is not the sole possession of Free Church Christians; my point is that it forms the background of the Free Church perspective on phronesis. I follow John Howard Yoder’s account of “apostolic moral reasoning” in ‘The hermeneutics of peoplehood,’ (1984, 28-34). I borrow the term “grounded” to describe this relation from Robert P. George (1992, 31-41). “The basic principles and norms of natural law, as natural, are addressed to all human beings, and they are held to be accessible to all who are capable of forming the concepts which comprise them” (Boyle, 1992, 4). “Since what is emotionally satisfying is not identical with but, at best, only part of what fulfills persons as such, feeling can and often does tend to motivate actions to goals more limited than the benefits for persons which practical knowledge proposes to be sought through action” (Grisez et al., 1987, 122).

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Of course, any “tradition of intellectual inquiry” requires shared values such as commitments to honesty, fairness, and diligence. I take Boyle’s contrast to be that only a minimal set of shared values would be required by the “tradition of intellectual inquiry,” and these would be far fewer than those embodied in any “moral tradition.” At first glance this strong conclusion appears to be inconsistent with Boyle’s view that a communal theistic religious commitment is required in the moral life. With Grisez and Finnis he writes, “A virtuous person should be unified in view of a single purpose…. [that] can be established by a religious commitment and cannot be established without it.” However, religion’s role is primarily motivational rather than epistemological for the new natural law theorists. (Theistic) religion “points to [morality’s] transcendent source … that can only be thought of as if it were a person anticipating human fulfillment and leading human persons toward it.” Moral persons desire to live in harmony with this source and “realize that they cannot do so as isolated individuals but only in their various communities…. [Therefore,] morally good people make a communal religious commitment” (Grisez, Boyle, and Finnis, 1987, 142). Following the summary in Hall (1994, 23-44). A. J. Conyers (2001), argues provocatively for a return to the authentic toleration found in preReformation Christianity. Most North American colleges in the nineteenth century taught Elements of Moral Science (1835) by Francis Wayland, a Baptist pastor and President of Brown University. His discussion of “conscience” follows Bishop Joseph Butler’s position generally, but Wayland is not fussy about the account of conscience: “But, after all, this question [of the nature of conscience] is, to the moral philosopher, of but comparatively little importance. All that’s necessary to his investigations is, that it be admitted that there is such a quality [i.e., a moral quality of actions], and that men are so constituted as to perceive it, and to be susceptible of certain affections, in consequence of that perception. Whether these facts are accounted for, on the supposition of the existence of a single faculty, or of a combination of faculties, will not affect the question of moral obligation. All that is necessary to the prosecution of the science is, that it be admitted that there is such a quality in actions, and that man is endowed with a constitution capable of bringing him into relation to it” (Book I, Chapter 2, section 1). For instance, see Wayland, “Of the manner in which we may learn our duty by the light of nature,” Elements of Moral Science (Book 1, chapter 7, section 1). For brevity, I discuss only how the church’s narrative reading of Scripture guides the first moment in moral deliberation, the reflection on the goods of human nature. Much more could be said regarding the second moment, the reflection on the proper means in specific cases for achieving those goods. This lesson bears repeating often in the Free Church, which is tempted by the Scylla of adopting a literalist reading of Scripture (masquerading as no interpretation at all) and the Charybdis of encouraging each member to interpret Scripture as he or she prefers. The narrative natural law tradition reminds Christians that between these extremes there are communal, tradition-embedded methods through which the Spirit of God may work to guide the interpretation of Scripture.

BIBLIOGRAPHY Arnhart. L. (1998). Darwinian Natural Right: The Biological Ethics of Human Nature. Albany: State University of New York Press. Boyle, J. (1992). “Natural law and the ethics of tradition.” In: R.P. George (Ed.), Natural Law Theory: Contemporary Essays, Oxford University Press, Oxford. Conyers, A.J. (2001). The Long Truce: How Toleration Made the World Safe for Power and Profit. Dallas: Spence Publishing Company. George, R.P. (1992). “Natural law and human nature.” In: R.P. George (Ed.), Natural Law Theory: Contemporary Essays. Oxford: Oxford University Press. George, T. (1990). “The renewal of Baptist theology.” In: T. George and D.S. Dockery (Eds.), Baptist Theologians. Nashville: Broadman Press. Grisez, G. (1965). ‘The first principle of practical reason: A commentary on the Summa Theologiae, 1-2, Question 94, Article 2,’ Natural Law Forum 10, 168-201. Grisez, G., Boyle, J., & Finnis, J. (1987). ‘Practical principles, moral truth, and ultimate ends,’ The American Journal of Jurisprudence 32, 99-152.

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Hall, P. (1994). Narrative and the Natural Law: An Interpretation of Thomistic Ethics. Notre Dame: University of Notre Dame Press. Hauerwas, S. (1984). The Peaceable Kingdom: A Primer in Christian Ethics. Notre Dame: University of Notre Dame Press. Hays, R.B. (1996). The Moral Vision of the New Testament. New York: Harper Collins. Jeschke, M. (1972). Discipling in the Church: Recovering a Ministry of the Gospel. Scottdale: Herald Press. Marty, M. (1983). ‘Baptistification takes over,’ Christianity Today 27, 33-36. Mouw, R. (2001). “Assessing Christian scholarship: Where we’ve been and where we’re going, presentation at the Christian Scholarship ... for What?” Conference at Calvin College, Grand Rapids, MI, September 21, 2001. Pope, S. (2001). “Natural law and Christian ethics.” In: R. Gill (Ed.), The Cambridge Companion to Christian Ethics. Cambridge: Cambridge University Press, 77-95. Porter, J. (1999). Natural and Divine Law: Reclaiming the Tradition for Christian Ethics. Grand Rapids: Wm. B. Eerdmans. Sedgwick, T. (1999). The Christian Moral Life, Practices of Piety. Grand Rapids: Wm. B. Eerdmans. Wayland, F. (1835). Elements of Moral Science. Cambridge: Harvard University Press. Yoder, J.H. (1984). The Priestly Kingdom: Social Ethics as Gospel. Notre Dame: University of Notre Dame Press.

CHAPTER 12

RICHARD J. BAUTCH

NATURAL LAW AND THE FREE CHURCH TRADITION: A BIBLICIST RESPONDS

A Roman Catholic observer is surprised to hear American Protestant theologians attacking private interpretation of Scripture, supporting ecclesial authority in doctrine and morals, calling for the witness of saints as exemplars of Christian holiness, and stressing the Eucharistic celebration as the central act of the Church’s identity (Spohn, 1995, 84).1

It is surprising indeed to hear Robert Kruschwitz representing the Free Church tradition of interpreting the narratives of the New Testament “only in communities that employ the appropriate interpretive lenses” (2004, 151) It is surprising and intriguing to hear Kruschwitz maintain – with Stanley Hauerwas – that the community’s hermeneutic is “a story that the saints’ lives exhibit. Through the lives of the saints we begin to understand how the images of Scripture are best balanced so that we might tell and live the ongoing story of God’s unceasing purpose to bring the world to the peace of the kingdom” (2004, 159).2 The final reference, bringing “the world to the peace of the kingdom,” accentuates Kruschwitz’s debt to Hauerwas.3 On the heels of that reference, Kruschwitz poses the question that stands at the heart of his paper: “Within this … hermeneutical circle, can there also be a role for the community’s interpretation of natural inclinations?” That is, once narrative is recognized as essential to the discipline of Christian ethics, may it be considered the only resource necessary to the task? Or is it the case, as Paul Nelson has written, that “narrative is necessary but insufficient for Christian ethics.” Nelson adds, “To describe the moral realm as an interweaving of narrative-dependent and narrative-independent features does not nullify the distinctive contribution of narrative to the texture of the Christian moral life” (Nelson, 1989, 149). Kruschwitz’s paper concerns the narrative-independent features of the moral realm as these features are specified in terms of natural inclinations. In concert, these natural inclinations may be viewed as evidence of a natural law incumbent upon 163 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 163—168. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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humankind. Toward this end, Kruschwitz enters into dialogue with two groups that represent distinctive articulations of natural law in Roman Catholicism. He engages the New Classical Natural Law Theory propounded by Germain Grisez, Joseph Boyle and John Finnis. He engages Narrative Natural Law Theory as it has been developed by Jean Porter and Pamela M. Hall. Before commenting on Kruschwitz’s analysis of these two approaches to natural law, we shall first review his account of the Free Church perspective. Kruschwitz identifies continuity between the historical contexts that gave rise to the Roman Catholic and Free Church traditions on natural law. By the beginning of the seventh century, Irish penitential manuals began to proliferate, and they ultimately influenced the approach to moral theology that prevailed in universities. As Kruschwitz rightly notes, this development resulted in Catholicism’s “emphasis on assessing specific human actions by appeal to a divine law that is natural and universal rather than conventional and varying” (2004, 150). It is noteworthy that the catalyst to this development, the penitential manuals, originated in the Celtic lands, Wales and Ireland. The manuals were reflective of Christian culture in those lands at that time.4 Paradoxically, this impetus toward universality and natural law was rooted in one particular culture. In the 16th and 17th centuries, the Free Church congregations sought universality and non-particularity so that they were not aligned with any of the emerging nation states. The Free Churches came to be over and against statism. This impulse to establish religion unfettered by civic forms is not original to the Free Church tradition; it is attested biblically. In the deutero-canonical books of the Old Testament, the Maccabees struggle to practice Judaism free of Seleucid interference (1Macc 1:11-15; 2:7-12). Yet just as the Maccabees’ leadership evolved into the Hasmonean Dynasty that enjoyed Seleucid support, it is difficult to conceive of religious communities that can remain wholly separate from “their host cultures” without taking leave of history. A case in point is the apocalyptic community reflected in the Dead Sea Scrolls and formed at Qumran to maintain a higher degree of fidelity to the revealed law than that exhibited by the Maccabees. Resistant to many forms of contemporary culture, this community did not survive antiquity. One would like to see Kruschwitz introduce a distinction between antipathy to culture, on the one hand, and anti-statism on the other. It is principally anti-statism, it would appear, that becomes part of the Free Church tradition leading to a universality consistent with that found in the Catholic tradition as an end result of the Irish penitentials. The universality operative in both cases is propitious for designating precepts of a natural law that could foster moral deliberation in either Roman Catholicism or the Free Church tradition. Paradoxically, the universality keeps the traditions mindful of their interdependence with culture and cultural particularity. This paradox strengthens Kruschwitz’s case that the communal and tradition-dependent features of the Free Church tradition are essential rather than accidental and must be involved in its appropriation of natural law, even when the latter may appear to rule out such interpretive components.5 Toward this end, Kruschwitz engages two groups that represent distinct articulations of natural law in Roman Catholicism. In the course of these conversations, one gains the impression that Kruschwitz is not seeking a component

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of natural-law theory to integrate into the Free Church tradition. He does not seek to recast his tradition so that it may include natural law theory. Rather, he appears to be seeking conversation with natural law theory in the hope that said conversation will be salutary for refining the moral self-understanding of the Free Church tradition. Specifically, he seeks insights that have emerged within Catholic deliberations on natural law and that may be applied to issues in the Free Church tradition. His engagement with the first of these parties, the New Classical Natural Law Theory, is not extensive, and for good reason. There is an insuperable obstacle to common ground, namely the rejection by New Classical Natural Law Theory of moral deliberation that is “rooted in the lived ethical experience of people who share a common way of life” (Boyle, 1992, 9-10). This stance is irreconcilable with Kruschwitz’s claim that moral deliberation in the Free Church tradition must be communal and tradition-dependent. Kruschwitz wisely moves to his second dialogue partner, Narrative Natural Law Theory as it has been developed by Jean Porter and Pamela M. Hall. Kruschwitz’s initial partner in dialogue is Hall, whom Kruschwitz cites in terms of her claim that the discovery of the basic goods of human nature, and so an understanding of natural law, is revealed through a society’s customs, beliefs and laws.6 Kruschwitz echoes Hall’s position that knowledge of the natural law is dependent upon community and its positive law, but he is wary about one implication of the position as Hall articulates it. Specifically, Kruschwitz cites the modern potential for communities to be mistaken about basic human goods because they attempt to interpret natural law absent of scriptural images that have been derived from a normative reading of the New Testament (2004, 159-160). To dramatize his point, Kruschwitz introduces the work of political theorist Larry Arnhart, whose natural-law theory involves interpretive images from evolutionary psychology. It seems that Kruschwitz here jumps to a worst case scenario of naturallaw claims that fail to harmonize with interpretive images central to the New Testament, such as the cross. While Kruschwitz makes his point, it is not clear that he has advanced his dialogue with Hall, who does not refer to Arnhart or other political theorists but instead asks how a community can be assisted in the task of identifying basic human goods. Hall explains that factors such as family, teachers and friends may help to clarify flawed moral deliberation before concluding that fatally flawed deliberation is indeed “tragic” (Hall, 1994, 111). She adds, moreover, that the tragedy, the privation of natural goods such as life itself, parallels the dynamics of martyrdom, understood as “the intentional sacrifice of a lesser good [life] for a greater good” (1994, 112). Admittedly, there is nothing self evident about Hall’s linking ignorance of natural goods and the “epistemic tension” that saints and martyrs experience in opting against a natural good for a more perfect, unseen good. Her presentation of the connection is somewhat oblique. Nonetheless, her clear intention to rectify the potentially problematic consequences of community-based discernment of natural goods leaves her position more tenable than it appears to be in the estimation of Kruschwitz. Kruschwitz also dialogues with Jean Porter and assesses her work critically. He is largely sympathetic to her book Natural and Divine Law: Reclaiming the Tradition for Christian Ethics, which he quotes often. Indeed, an important contribution that

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this book makes is its in-depth study of the scholastics’ use of Scripture as a source, alongside nature and reason, for moral norms (Porter, 1999, 121-124). Porter demonstrates that Aquinas and others worked with Scripture far beyond prooftexting; they undertook and sustained a hermeneutical approach to the Bible that provided access to scriptural divine law and illumined its relationship to natural law. This aspect of the scholastics’ legacy is most serviceable to Kruschwitz. It is, however, the place and priority of Scripture in the moral deliberation of the scholastics that raises red flags for Kruschwitz. Porter reports that in the exceptional cases when the scholastics did not find “harmony between Scripture and other sources of knowledge and insight,” they assigned priority or “independent weight” to non-scriptural sources, ostensibly the writings of Aristotle as analyzed in the works of Maimonides and Avicenna (1999, 145). This move, Kruschwitz reports, is toleration of the sort that places natural law on a slippery slope, falling away from the revealed truth of Scripture and into “the epistemological distortions of class, culture, and individual psychology” (2004, 158). This is a leap. Aquinas was discerning in his uses of Maimonides and Avicenna, whose respective cultures were hardly identical to his own.7 Again, Kruschwitz has dramatized potential consequences for the sake of critique, but in this case he has clearly done so to support a point. The salient point with which Kruschwitz concludes is that according to the Free Church, “the proper lens for interpreting human moral experience is not the natural law, even a Scripture-shaped version of it; the proper lens is the church’s narrative reading of Scripture” (2004, 158). He specifies that the interpretation of Scripture is “mediated through the lives of the saints identified by our community as most nearly representing what we are about” (159). His definition of saint, drawn from Hauerwas, is vague, and Kruschwitz himself asks if the Free Church approach has become a “hermeneutical shell game, shifting the problem of interpreting human moral experience to Scripture and finally to the lives of exemplary disciples” (159). For the saints to be the linchpin in Free Church’s interpretation of human moral experience, there is required an understanding of saint that is theologically adequate. Kruschwitz provides this understanding, at least in outline, by going beyond Hauerwas to state that the saints’ lives can illustrate how God’s unceasing purpose might be distilled from the images of Scripture, and can do so at the level of natural inclinations. That is to say, the saints’ lives “recommend the fitness of the Gospel to the human condition and … its satisfaction of undistorted inclinations” (159). Kruschwitz’s focus on the saints is a promising initiative in the study of natural law. A notion of the saints as exemplars of human nature might be developed further through recourse to John Wesley and his ongoing concern with “Christian perfection.”8 There are significant continuities between Wesley’s thought and the notion of the saint in Kruschwitz’s work. First, the expression “Christian perfection” harks to Wesley’s view that total holiness is possible in the present life, and that saints may live a life devoid of sin (Wesley, 1986 [1872], volume 11, 376). The key to this perfection is conforming to the divine law or the Law of Christ as it is contained in the gospels (Wesley, 1986 [1872], volume 11, 372-373). One hears clear echoes of this view in Kruschwitz’s assertion that the saints’ lives “recommend the fitness of the gospel to the human condition and … its satisfaction of undistorted

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inclinations.” More particularly, a key to Wesley’s understanding of Christian perfection is Phil 3:12: “It is not that I have already taken hold of it [resurrection] or have already attained perfect maturity, but I continue my pursuit in hope that I may possess it, since I have indeed been taken possession of by Christ (Jesus)” (Wesley, 1986 [1872], volume 6, 1-19). In fact, all of Philippians 3 is a window on Paul’s temporally nuanced understanding of salvation in the lives of holy people, or his “realized eschatology.”9 There is an echo of this concept, saintliness presaging imminent salvation, in Krushwitz’s citation of Hauerwas: “Through the lives of the saints we begin to understand how the images of Scripture are best balanced so that we might tell and live the ongoing story of God’s unceasing purpose to bring the world to the peace of the kingdom” With these echoes, a theological trajectory begins to emerge, and it includes St. Paul, Wesley, Hauerwas and Kruschwitz. With a scripturally based understanding of saint that has historical and theological depth, the hermeneutical shell game is replaced by a hermeneutical circle. The poles of the circle are the community’s reading of Scripture and its experience of saints in its midst. The two activities point the community beyond itself to a sphere of ultimacy and normativity. The normativity may be accessed and explored via the traditions of natural law. In this regard, Wesley and his disciples may serve as a theological source to those who would further develop the notion of the saints as part of a theoretical framework that bridges the Free Church tradition and natural-law theory while allowing the insights of both to be mutually enriching. Department of Religious Studies Saint Edward’s University Austin, Texas NOTES 1

2

3 4

5

6

7

8

In this quotation, the Catholic moral theologian William Spohn is reacting to theological views associated with the ethician Stanley Hauerwas, a Southern Methodist. The quote appears originally in Stanley Hauerwas, The Peaceable Kingdom: A Primer in Christian Ethics (1983). See note 2. For an informed discussion of the Celtic penitential movement, see John Mahoney, The Making of Moral Theology: A Study of the Roman Catholic Tradition (1987, 5-17). On this genre of literature, see also Allen J. Frantzen, The Literature of Penance in Anglo-Saxon England (1983). Jean M. Aubert discusses how moral reflection might reconcile criteria grounded in universality with other criteria arising from cultural particularity. See his “Y a-t-il des normes morales universelles,” (1981, 170-188). See also Marcel Boivin, “Natural Law and Cultural Norms,” (1978, 230-235). See, e.g., Pamela M. Hall, Narrative and The Natural Law: An Intrepretation of Thomistic Ethics (1994, 95). See David B. Burrell’s “Aquinas and Islamic and Jewish Thinkers,” 60-84 in The Cambridge Companion to Aquinas (ed. N. Kretzmann and E. Stump; Cambridge/New York: Cambridge University Press, 1993). The evolution of Wesley’s thinking on Christian perfection is masterfully treated by V. A. Shepherd in a paper delivered to the Oxford Institute of Methodist Theological Studies, “‘Can You Find Anything More Amiable Than This? Anything More Desireable?’A Note On Wesley’s Challenge Concerning Perfection,” [cited 13 November 2001].

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See note 2.

BIBLIOGRAPHY Aubert, J.M. (1981). ‘Y a-t-il des normes morales universelles,’ Revue des Sciences Religieuse 55, 170188. Boivin, M. (1978). ‘Natural law and cultural norms,’ African Ecclesiastical Review 20, 230-235. Boyle, J. (1992). “Natural law and the ethics of tradition.” In: R.P. George (Ed.), Natural Law Theory. Oxford: Oxford University Press. Burrell, D.B. (1993). “Aquinas and Islamic and Jewish thinkers.” In: N. Kretzmann and E. Stump (Eds.), The Cambridge Companion to Aquinas. Cambridge: Cambridge University Press. Frantzen, A.J. (1983). The Literature of Penance in Anglo-Saxon England. New Brunswick: Rutgers University Press. Hall, P.M. (1994). Narrative and the Natural Law: An Interpretation of Thomistic Ethics. Notre Dame: University of Notre Dame Press. Hauerwas, S. (1983). The Peaceable Kingdom: A Primer in Christian Ethics. Notre Dame: University of Notre Dame Press. Kruschwitz, R. (2004). “Natural law and the free church tradition.” In: M.J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Mahoney, J. (1987). The Making of Moral Theology: A Study of the Roman Catholic Tradition. Oxford: Oxford University Press. Nelson, P. (1989). Narrative and Morality: A Theological Inquiry. University Park: Pennsylvania State Press. Porter, J. (1999). Natural and Divine Law: Reclaiming the Tradition for Christian Ethics. Grand Rapids: Eerdmans. Shepherd, V.A. (2001). “‘Can You Find Anything More Amiable Than This? Anything More Desireable?’ A Note On Wesley’s Challenge Concerning Perfection,” paper presented to the Oxford Institute of Methodist Theological Studies, November 13, 2001, available online: http://www.victorshepherd.on.ca/Wesley/newpage128.htm. Spohn, W. C. (1995). What are They Saying about Scripture and Ethics? New York: Paulist Press. Wesley, J. (1986)[1872]. “A plain account of Christian perfection.” In: T. Jackson (Ed.), The Works of John Wesley, volume 11. London: Wesleyan Methodist Book Room. Reprinted, Peabody MA: Hendrickson. Wesley, J. (1986)[1872]. “Sermon XL: Christian perfection.” In: T. Jackson (Ed.), The Works of John Wesley, volume 6. London: Wesleyan Methodist Book Room. Reprinted, Peabody, MA: Hendrickson.

SECTION IV

THE NATURAL LAW TRADITION AND A CULTURE IN CRISIS

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CHAPTER 13

PHILLIP M. THOMPSON AND KEVIN P. LEE

INSIGHTS AND HINDSIGHTS FROM SEEKING A GLOBAL ETHIC

1. MAPPING THE DISCUSSION In defiance of much of contemporary philosophy, the essays in this book generally assume the possibility of discovering true, objective, and universally applicable moral principles in the natural law. A subset of these philosophers is even willing to entertain the possibility of constructing a global ethic based on or at least consistent with the natural law. Several questions recur in the essays, including questions about the relevancy of empirical observation for practical reasoning, the role of natural theology, and the structure of meta-ethical reasoning. All of these questions point to the difficulty of thinking about ethics in a global context. The ambitious task of constructing a global ethic seems to be stymied, at least to some degree, by fundamentally different epistemological approaches for discerning foundational first principles that are so critical to the natural law. Daniel McInerny, adopting a traditional natural law position, asserts that first principles or basic goods are discovered by a dialectical process of comparing endoxa or reputable opinions on a subject in order to discover a first opinion which is not “opined or supposed” (McInerny, 96-97). Endoxa and dialectical reasoning remain only probable until they lead to a first principle that is grasped as self-evident and not merely probable. This dialectical ordering occurs through a process of analogy that assumes a hierarchy of goods that is not incommensurable because the “‘good’ by definition indicates order, not incommensurability” (McInerny, 91). Assuming the apprehension of such first principles, they are ordered by the ultimate principle of happiness that is an activity of the soul in accord with virtue. McInerny and traditional Catholic natural law theory draw fire from many of the other essayists for not responding to the epistemological challenges from modern philosophy and science. As a response to such challenges, the “new” or “revised” natural law theorists of the Finnis/Grisez/Boyle school insist that their fundamental goods are not derived from theoretical reason, scripture, metaphysics, the state of the 171 Mark J. Cherry (ed.), Natural Law and the Possibility of a Global Ethics, 171—188. © 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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natural world, rational demonstration, or transcendental argument. Instead, the fundamental goods are to be established by purely practical reason that provides reasons and considerations for moral actions and seeks “completeness” and “unity” in the “ideal of integral human fulfillment” (Tollefsen, 41f.; Lustig, 131f). According to its advocates, the epistemological turn from theology, biology, and theoretical reason to practical reason allows for better defenses against the naturalistic fallacy, the problem of realism and anti-realism, error theory, and a range of other philosophical challenges from the last few centuries (Tollefsen, 4248). Having sought firmer theoretical foundations, the new natural law theorists are more confident in searching for a global ethic that can operate across cultures. Joseph Boyle, referencing Michael Walzer, notes that there is observed in international relations a recognition of some of the fundamental goods in certain common moral judgments. These common judgments, through careful casuistry, can then be progressively expanded to more controversial areas. Boyle does concede, however, that consensus will not always be possible and in such cases “compromise and negotiation are the best we can do” (Boyle, 13). The hopes and aspirations of traditional and new natural law theorists have been subjected to critiques from the point of view of Transcendental Thomism, Henry Sidgwick’s analysis of moral intuitionism, historical traditions, and scriptural interpretation. Applying a Lonerganian analysis, William Zanardi questions the possibility of McInerny establishing a single good such as happiness that “exhausts all the ways in which human beings may flourish” (Zanardi, 102). Without a single measure by which to sort rival goods, McInerny, and for that matter the revised natural law theorists, may not be able to sort out multiple truth-claims about human ends (Zanardi, 103). Even if such goods could be established, they will probably be so general as to be of little assistance in resolving cross-cultural truth claims. The new natural law theory is also subject to criticism about the certainty of its fundamental principles. Andrew Lustig asserts that John Finnis, in his desire to be detached from Aquinas’s close connecting of metaphysical biology to human inclinations, has not offered an adequate rendering of how his moral conclusions on issues like artificial birth control flow from natural inclinations when “the moral implications of pursuing basic goods – including the goods of marital unity – are in dispute.” Furthermore, Lustig questions whether Finnis could survive Sidgwick’s criteria for moral intuition-precision, self-evident propositions, no conflicts with any true statements, and backing by a consensus of experts. If he survives Sidgwick’s hurdles, Finnis remains susceptible to the criticism that all moral intuitions must on occasion accept a tradeoff between goods. Moral judgment may require hard and even tragic choices between the goods. This act of moral weighing and balancing would also suggest that Finnis’s moral goods are not equal (Lustig, 133). In addition to Zanardi’s probing and Lustig’s caveats, Mark J. Cherry and Robert Kruschwitz raise cultural and theological criticisms about the prospect of using the new natural law theory for the creation of a global ethic. For Cherry, any claim to a global ethic on a secular basis must presume a particular morality in selecting first principles that are incompatible with other moralities (Cherry, 27). Fundamentally, Boyle and his new natural law partners must, therefore, demonstrate how they can

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compare “the various merits and deficiencies of different formulations of basic human goods without having already presupposed a particular background [of] moral understanding” (Cherry, 21). Cherry’s skepticism is shared by Kruschwitz, albeit for different reasons. Applying a Free Church theology, Kruschwitz notes how moral knowledge is “communal and tradition embedded.” If the aim of Christian life is to be open to God’s grace, form a covenant community, and employ the narrative of scripture to guide the moral life, then the Free Church views natural law as problematic because of its origins in the historical requirements of Roman Catholicism to establish universal laws for church governance (Kruschwitz, 149-150). The lively debate exhibited in these essays illustrates how difficult, if worthy, is the quest for a global ethic grounded in natural law. Although the ultimate goal may prove elusive, the exchanges in this book may have a very beneficial and perhaps unintended consequence in highlighting some of the fundamental epistemological issues raised by the diverse perspectives. In the hope of advancing such discussions, this essay will explore the relation between moral anthropology and the grounds for moral claims. Specifically, this essay challenges the view of the new natural law theory that moral claims are independent of comprehensive claims about human nature. It is our assertion that global moral theory awaits a reassessment and reassertion of moral anthropology. By way of suggesting avenues of possible critique of the new natural law theory, we explore three venues where a greater sensitivity to moral anthropology could sharpen the debate about the possibility of a global ethics. Initially, the paper will examine Hillary Putnam’s capacious critique of moral theories that pose a fact/value dichotomy, a version of which is asserted by the new natural law. Putnam’s work suggests that neither the view of logical positivism nor that of the new natural law take seriously the complex relationship between facts and moral sentiments, and thus is unable to deal with some of them most fundamental issues of human life which demand ordering among basic moral goods. Next, the essay suggests that the turn to a priori first principles of practical reason implies precisely the sort of metaphysical claims that the new natural law seeks to avoid. Next, the essay turns to an explicitly Augustinian moral anthropology to explicate the dimensions of an explicitly Christian morality. The goal here, then, is to suggest some ways in which a grand unification in a global ethic is dubious, to the extent that such a universal ethics depends on a theory that is free of anthropological presuppositions. But, we also want to suggest that there remains some hope for a more circumscribed project with more limited objectives that acknowledge its anthropological presuppositions, but makes claims that appeal broadly to widely recognized moral intuitions. 2. THE FACT/VALUE DICHOTOMY AND THE NEW NATURAL LAW The new natural law theory takes issue with moral theories that attempt to derive moral principles from a comprehensive conception of human nature. John Finnis, argues that any theory that claims to derive moral principles from beliefs about human nature commits the Humean naturalistic fallacy, which claims that

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descriptive and normative propositions are logically separated (1996). Finnis believes that Hume’s separation of fact and moral value is consistent with the philosophy of St. Thomas Aquinas, who on Finnis’s reading believed that the first principles of natural law are self-evident moral principles and thus not derived from factual propositions. And, so Finnis argues, the naturalistic fallacy is avoided. That is, since the first principles are immediately apprehended by the mind, they form a natural kind of knowledge, practical knowledge, which is entirely separate and distinct from the other natural kind of knowledge, theoretical knowledge. This strategy it is hoped will allow the new natural law theory to avoid what many regard as the most serious modern objection to the Thomistic tradition, its reliance on an outmoded Aristotelian metaphysical biology. It is worth noting, however, that the eminent philosopher, Hillary Putnam,1 has argued for many years against a strong dichotomy between fact and value. According to Putnam, the dichotomy, which achieved its apex in the early 1950s with the logical positivists, has today “collapsed” and is no longer philosophically respectable (1990, 135-141; 2002). This is a significant development for the new natural law thinkers. For in seeking to avoid the modern complaints about Thomism, they do not want to unwittingly stumble into a fresh batch of complaints by adopting a view from modern philosophy that has already lost credibility. A useful exercise, then, is to consider Putnam’s case against the fact/value dichotomy in order to assess its significance for the new natural law. 2.1 Hillary Putnam and the Collapse of the Fact/Value Dichotomy According to Putnam, Hume’s insight, which was to draw a legitimate distinction between facts and moral values, has been misread since the logical positivist movement of the early 1950s as an overly metaphysical dichotomy between factual and normative propositions (2002, 14-19). This trend, known as the “linguistic turn”, in analytic philosophy has tended to overlook the complex interaction between fact and moral sentiment which Hume recognized. And, also, Hume did not extend his naturalistic fallacy to all normative judgments, but only to moral sentiments. Epistemological norms, for example, are not included within the ambit of the fallacy. Putnam argues that the concept of “fact” does most of the philosophical work for Hume. And, a critical moment in Hume’s construction of the is/ought dichotomy is found in Hume’s conception of fact. As Putnam explains: Concepts, in Hume’s theory of mind, are a kind of idea, and ideas are themselves pictorial: the only way they can represent any “matter of fact” is by resembling it (not necessarily visually, however—ideas can also be tactile, olfactory, and so on). Ideas have, however, nonpictorial properties as well; they can involve or be associated with sentiments, in other words, emotions. Hume does not just tell us that one cannot infer an “ought” from an “is”: he claims more broadly that there is no “matter of fact” about right and no matter of fact about virtue. The reason is that if there were matters of fact about virtue and vice, then it would have to be the case (if we assume ‘pictorial semantics’) that the property of virtue would be picturable in the way that the property of being an apple is picturable. Hume was quite correct, given his semantics views, to conclude that there are no such matters of fact (2002, 15).

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Putnam explains that Hume viewed moral values as sentiments aroused in the mind by the “contemplation” of “relevant actions.” For Hume the distinction was between picturable facts and non-picturable moral sentiments. (He does not address other sorts of normative judgments). Moral values, while non-picturable are not metaphysically distinct from facts, but sentiments that are provoked by a compilation of facts. He writes, for example, “the crime of ingratitude is not any particular fact; but arises from a complication of circumstances which being presented to the spectator excites the sentiment of blame, by the particular structure of the fabric of the mind” (2002, 20). So, Hume’s distinction between “is and ought” does not validate the complete dichotomy that is suggested by new natural law. In fact, for Hume moral sentiments are reactions to factual settings. We have probably all experienced the sort of thing that Hume is describing. Leon Kass makes a great deal out of the sort of moral revulsion that one has to certain fact patterns – Hannibal Lecter’s cannibalism for example – that tend to indicate a genuine moral concern (2002). There are deeply rooted moral intuitions that shape our experience of the world in which we live. Hume’s point seems to have been that it is useful to distinguish the fact-patterns as causes and the moral intuitions as effects. The next step in Putnam’s history of the development of the dichotomy involves the thought of Immanuel Kant, who famously distinguished analytic and synthetic propositions (2002, 16-18). For Kant, an analytic proposition has the logical form of a tautology. A favorite example of which is the statement, “All unmarried men are bachelors.” Merely knowing the meanings of the terms provides sufficient justification for evaluating the truth or falsity of the proposition. In contrast, synthetic propositions are ones in which the subject and predicate differ and therefore are not tautologies. Putnam uses the example “Robins have red feathers.” Robins are not red feathers, although they may have them. Synthetic propositions are not verifiable through the meaning of their terms alone, but require empirical evidence for verification. For Kant, all statements are one or the other of these kinds of statements. And for this reason, Putnam views the categories of analytic and synthetic as forming a metaphysical dichotomy in Kant’s thought. This dichotomy has profound significance for Kant’s philosophy. One gets a glimpse of the significance by considering Kant’s assertion that the principles of mathematics are synthetic and a priori. That is to say, for Kant the principles of mathematics are not tautologies (or derivable through the operation of logical rules) and yet they can be known prior to experience. Mathematics for Kant proceeds as a science by the discovery of a priori synthetic propositions and the working out of their implications. It is not an empirical discipline for Kant since knowledge of the truths of mathematics is not dependent on experience but is logically necessary. Human beings for Kant are the kind of creatures who know mathematical truths without the need to first experience them. Empiricists naturally took issue with Kant on this point, and this disagreement would write chapters in the history of modern philosophy. Of particular importance here is the disagreement between Kant and the logical positivists which would have implications for the fact/value dichotomy. The logical positivists (and Putnam mentions Carnap in particular) took Kant’s analytic/synthetic dichotomy and applied it to Hume’s fact/value distinction (Putman, 2002, 9-17). Kant’s moral philosophy also played a role here, but for our

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present limited purposes, we can move on without pausing to give it consideration. The point that Putnam makes is that the positivists viewed Kant’s analytic/synthetic distinction as applying to objective truths alone. That is, they viewed propositions that are capable of being true or false as being either analytic or synthetic. In order to make this claim, they had to alter Kant’s conception slightly. They extended the concept of analytic to include all propositions that are capable of being shown to be valid or false by the rules of logic alone. They called this sort of claim a “convention”. And, all synthetic propositions they read as being empirically verifiable or falsifiable. Only propositions that are empirically verifiable are “facts” in their specialized usage. Normative judgments such as statements of moral value, however, are not facts or conventions. They are either cognitively meaningless statements (nonsense) or disguised commands (Do not lie). A metaphysical dualism exists for the positivists between objective truths in the form of convention and facts, and normative judgments (which are not true or false). The logical positivists agreed with Kant that the truths of mathematics are indeed cognitively meaningful and need not be derived from experience. Where they differed is that they believed that true mathematical propositions are analytic. Many problems would develop with this view, however they need not be of concern here. What is important to take away from this is that the logical positivists sought to separate values from facts by classifying moral judgments as cognitively meaningless. They either occur as mere sentiments unrelated in their genesis to the totality of facts of a situation, or they are disguised imperatives which cannot be rationally redeemed but merely state the endogenous “volitional” state of the one who gave utterance to it. It is this metaphysical dichotomy that Putnam argues has collapsed. Citing Quine’s famous 1950 essay, “The Two Dogmas of Empiricism” (1980, 20-46), Putnam first argues that the metaphysical distinction between analytic and synthetic is no longer philosophically respectable. In the essay, Quine shows that the definitions of analytic and synthetic are themselves not clearly distinct. What the positivists called a “convention” – a statement that is valid or invalid by the operation of the rules of logic alone – is actually a “trait of all scientific hypothesis generally.” And, even conventions are subjected to repeated empirical validation as facts. That is to say, Quine showed that rather than a metaphysical dichotomy, the difference between convention and fact is really quite muddled. Quine expressed this muddle with a splendid metaphor in the last paragraph of his essay, “Carnap and Logical Truth”: The lore of our fathers is a fabric of sentences. In our hands it develops and changes, through more or less arbitrary and deliberate revisions and additions of our own, more or less directly occasioned by the continuing stimulation of our sense organs. It is a pale gray lore, black with fact and white with convention. But I have found no substantial reasons for concluding that there are any quite black threads in it, or any white ones (qt. in Putnam, 2002, 12).

Putnam believes that Quine was right in thinking that there can be no metaphysical divide between convention and fact. But, Quine went too far in dissolving the distinction. It is not the case that convention and fact collapse entirely into one another (where black and white threads cannot be distinguished, in Quine’s metaphor), but that fact and convention cannot be viewed as natural kinds that are

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separate by their very metaphysical nature. Moreover, Putnam points out that the logical positivists extended Hume’s basic separation between facts and moral sentiments to all normative judgments, including epistemological ones. This claim is overly broad. Positivism itself is a philosophy of epistemic values – of normative judgments about what constitutes a good explanation. Here Putnam cites Vivian Walsh’s quip “if a theory may be black with fact and white with convention, it might well (as far as logical empiricism could tell) be red with values” (2002, 30). Putnam observes that moral values entangle with facts and facts with moral values, both adding to human understanding and meaning. As an example of entanglement, Putnam considers the word “cruel” which is used both descriptively and normatively. To describe Hannibal Lecter as “cruel” is to criticize him both as a doctor and as a human being. But, cruel can be used in purely descriptive ways as well, as when a literary critic might write that Thomas Harris has created a cruel character in Lecter. Or, that Draco, the Athenian politician, was cruel. In literature, such concepts are known as “thick ethical concepts.” And, Putnam’s point is that much of our language taken as a whole, and not in the narrow view constructed by the positivists, entangles fact and value in this way. Putnam argues, then, that the absolute dichotomy between fact and value must be dissolved. If facts and moral values are not separate natural kinds, then there is no wall of separation between them. Moral values entangle with facts and facts with moral values adding to human understanding and meaning. The separation that Hume had noticed is a useful and valid one, but the absolute metaphysical dichotomy of the positivists is not. A quote from Putnam helps to make this clear: If we narrow the fact/value chasm, what we get is this: there is a distinction to be drawn (one that is useful in some contexts) between ethical judgments and other sorts of judgments. This is undoubtedly the case, just as it is undoubtedly the case that there is a distinction to be drawn (and on that is useful in some contexts) between chemical judgments and judgments that do not belong to the field of chemistry. But nothing metaphysical follows from the existence of a fact/value distinction in this modest sense (2002, 19).

Putnam’s concern is that logical positivism tends toward over simplification of the complex interrelation of value and fact, and there is an appealing sense of unity in denying that moral judgments matter all that much. To summarize, then, Putnam tries to show that the belief that fact and value can be absolutely separated is a historically constructed one that has its roots in modern philosophy. It is legitimate to note that fact and value are separate sorts of knowledge, but it is overreaching to claim that facts and values are metaphysically distinct. Facts entangle with value and the two shape one another. Putnam’s argument implies that propositions are never quite purely fact or purely value, but sit somewhere on a spectrum between two never quite reached ideals. 2.2 Implications for the New Natural Law John Finnis and his followers argue that the first principles of the natural law are immediately apprehended by the mind without derivation from a comprehensive human anthropology. While some recent commentaries on Finnis’s work suggest

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that a deeply complex moral anthropology (a comprehensive conception of the human) underwrites the project, it is their steadfast assertion that the logical status of the first principles remains entirely underived from any such conception of human nature (Finnis, 1996). Robert George, for example argues that background knowledge about human beings is relevant to forming the conception of basic goods, but not a comprehensive account of human nature (1996, 31-41). It should be clear that Putnam’s reading of Hume’s distinction between is and ought is quite different from that of Grisez and Finnis. George, for example, attributes to Finnis and Grisez the view that “moral conclusions inasmuch as they state reasons for action can be derived only from premises that include still more fundamental reasons for action. They cannot be derived from premises (e.g., facts about human nature) that do not include reasons for action” (George, 1996, 31-41). Tollefsen outlines the gambit as follows: Crucial, and controversial, to the new theory’s account of these basic goods is the theory’s moral epistemology. As basic, the fundamental goods are not inferred to be good from some other source of knowledge; but as good, and thus action guiding, they are not known by theoretical reason but by practical reason…. The claim of the new theory is that reason in its apprehension of the basic goods, is operating in a fundamentally practical mode, offering us possibilities for action. The basis for the new natural law theory is thus a practical reason which is significantly autonomous from theoretical reason and from, in particular, theoretical claims about human nature. (Tollefsen, 39-40)

The moral agent in the new natural law theory thus seeks reasons for acting, which are alleged to be found in the first principles that allows a person fully to pursue his well being as a human. Tollefsen warns that this moral activity does not seek a kind of crude utilitarian maximization, but a “completeness” or “unity” (Tollefsen, 41). So, their view of the fact/value dichotomy should be distinguished from that of the logical positivists. But, Putnam’s critique of the fact/value dichotomy would still seem to apply because the new natural law is similar to the logical positivists in holding that fact and value are entirely separate kinds of knowledge. And we know this is so because they believe that metaphysics is excludible from pure reason. But, just as Carnap’s conception of a fact/value dichotomy collapses after Quine’s famous essay, so too the new natural law conception must give way. Following Putnam’s example, one might want to argue that human reasoning about moral acts is never independent of comprehensive views of the person. Here it is useful to consider an example that Charles Taylor uses (1996, 45-76): think of the experience of feeling shame. One feels shame because one has a set or sets of background assumptions about human existence that lead one to believe that one has a measure of dignity. But, not all feelings of shame are warranted or proper. Taylor uses the thought experiment of imagining oneself as a young African-American man who feels shame about being a member of his race. He comes to believe that this shame is misplaced. One ought not feel shame about one race, but pride. And, he evaluates his life differently after his deepened insight has become natural to him. Taylor calls the process of analysis that the thought experiment requires a matter of “strong evaluation” whereby we evaluate which of our desires to consider good or

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bad, desirable or despicable. This cannot be done in a vacuum. It requires that one have a conception of what it is to be a human being, what our deepest motivation ought to be. As Taylor puts it: It involves defining what we really are about, what is really important to us; it involves entering the problematic area of our self-understanding and self-interpretation. We can see from the above example how the strong evaluations which are woven into our emotional experience place us in this problematic domain, for they refer us to a map of our motivations which we have yet to draw clearly, and will never complete (1996, 68).

Moral sentiments, like the feeling of shame, must be reasonable. It is not enough that one has an intuition that a thing is a moral good or ill. It must also be rationally a “moral” good or ill by some standard that establishes a rational distinction between moral and immoral. The new natural law attempt to avoid this sort of strong evaluation by arguing that there is simply no way to order the basic goods. They are simply basic and cannot be ranked. But, the problem for them, as Taylor points out, is that ranking and ordering our basic goods is an essential part of what it is to live as a human being. The self-interpreting nature of the human being drives us back ceaselessly to question the world and our place in it. This inability to order the basic goods leads to the ambiguity that Lustig observes in his essay. In the writings of the Holy Father, one finds a similar insight, “It is metaphysics which makes it possible to ground the concept of the person’s dignity in virtue of the person’s spiritual nature. In a special way, the person constitutes a privileged locus for the encounter with being, and hence metaphysical enquiry” (Fides et Ratio ¶ 83). We have been arguing, then, that the new natural law faces a similar problem to logical positivism. Both share in assuming a fact/value dichotomy that is exaggerated. Much of what is distinctively human, however, turns out to be deeply involved with the way facts and values entangle. We get an intimation of this from the fact that much of our language does not admit the sort of strict division of fact and value that these theories accept. We are continually evaluating our moral selves against our beliefs about our own natures and place in the universe. As the Holy Father puts it in Fides et Ratio: The more human beings know reality and the world, the more they know themselves in their uniqueness, with the question of the meaning of things and of their very existence becoming ever more pressing. This is why all that is the object of our knowledge becomes a part of our life (Fides et Ratio, ¶1).

3. MIND AND BODY IN THE NEW NATURAL LAW Following the Holy Father’s advice, let us move from an analysis of moral epistemology to metaphysical anthropology. The new natural law theorists claim to have recovered the heart of Thomistic natural law theory in a way that escapes the standard criticism of Thomistic assumptions about hylomorphic metaphysics and the attendant Aristotelian metaphysical biology. Yet, we argue here that a substantial departure from Thomism seems evident in several of the essays included in this volume. It has to do with what is a significant, and not uncontroversial view of the relationship between mind and body that is implicated in the new natural law theory.

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And, it suggests metaphysical values that underlie the moral epistemology of the new natural law theorists, to the extent that they seek a dichotomy between practical and theoretical knowledge. These implicit variations within Thomism are important because they suggest metaphysical values that pose deep problems for thinking in natural law terms about the meta-ethical implications of the proposed global convergence of ethical norms. For Aquinas, the soul is an intellectual substance that is, in its very essence, the substantial form of the material body. Moreover, since the existence of the soul is ontologically entangled with the ontology of the physical body, the body is elevated to a spiritual existence and spiritual life. To be a fulfilled human being requires that the spiritual existence of the integral person be perfected through friendship with the Divine. Aquinas is unique in his view of the status of the human beings that is sometimes referred to as an “ontological amphibian” (Van Dyke, 2000), existing in two realms, corporeal and transcendent, much as a newt makes its life on land and in water. Anton Pegis has suggested that a sharper understanding of Aquinas can be gained by comparing his ontology of the human to both the psychological view that was prevalent among Augustinians with the conceptualization of the human being developed from Aristotelian metaphysical biology (1963). Augustinians rooted their view of the human in Neo-Platonic writing (particularly Cistercian and Victorine). Augustine had followed the Neo-Platonic writers in their view of the intellect as separate from and superior to the material world, including the material body. Pegis cites Augustine’s conclusion in De Trinitate that “Man is a rational substance composed of a soul and a body, and there is no doubt that man has a soul which is not his body, and a body which is not his soul” (qt. in Pegis, 1963, 16). Charles Taylor has described the resulting conception of the human as one marked by what he calls “radical reflexivity” (1989). Taylor means that, for Augustine, the presence of oneself to oneself, allows one to have a self-conscious awareness of the experience of experiencing (1989, 131). A dualism of soul and body grew out of this view of the human. In stressing the importance of the interior life, the Augustinians adopted a Platonic view of the human as a soul using or wearing a body.2 For Aristotle, on the other hand, the soul and the body are conceived of in terms of hylomorphic metaphysics, which was worked out in part as a response to the Platonic notion of ideas and participation. In the Metaphysics, one can see that Aristotle rejects the Platonic world because it lacks a clear principle of individuation (6), which meant for Aristotle that Plato could not explain the unity of individual substances. Pegis explains that “Platonic substances and essences were, in reality, a cluster of participations, intelligible and ordered, but constituting a hierarchical system of forms rather than a unity substance, a sum of separate intelligible parts” (1963, 20-21). Aristotle sought to resolve this problem in Platonic thought by arguing that individual substances are composites of form and matter. This was no less so for the individual substance that is a human being. For Aristotle, the soul is the form of the body and the human being in a unitary substance.3 To Aquinas, who had access to both Augustinian and Aristotelian anthropologies, the question was clear: Whether the human being is a “union of two whole or complete beings, namely, the soul and the body, or whether he is the union of two

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parts related to one to another, according to the principles of Aristotle, as form to matter in the constitution of a unitary substance called man” (11-12). His attempt to resolve the issue favored the Aristotelian view, but he could not accept the Philosopher tout court because Aristotle’s belief seemed to entail the corruptibility at death of the body and the soul, and Aquinas knew by faith that the soul is immortal. Moreover, the soul’s transcendence of the limits of material existence seems to also imply its transcendence of knowing sensible matter. And, since the soul can exist separately from the body, he was led to ask how the soul has knowledge while it is disembodied? Aquinas tried to solve these problems by advancing a fragile argument that held that the soul maintains its knowledge and identity by divine light.4 Whether or not this is a successful argument, one must be impressed with Aquinas’s desire to unify mind and body. It is a view that holds the person to warrant dignity not only by virtue of mental capacity, but also by the very substance of his or her existence.5 The thesis that we advance here is that the new natural law is underwritten by a comprehensive claim about human nature that denies the unity of mind and body. While metaphysical descriptions of human nature are precisely the sort of theoretical statements that the new theory seeks to avoid in deriving the distinction of moral choice, action or character, it seems that the theory accepts a modern mind/body dualism more than the unity of mind and body that Aquinas envisioned. Indeed, it is doubtful that the complete separation of fact and value that Finnis sees as essential to Thomistic ethics can be maintained without a commitment to a mind/body dualism. The reason for this is that Aquinas views the human intellect is able to grasp at least something about the true metaphysical essences of things in the world, and to accord moral value to them by virtue of this apprehension. This means that a human is capable of knowing the true nature of things (including human beings) through perception and reflection. For Aquinas, since the mind is in unity with the body, both intellect and corporeal sense organs work together to obtain moral knowledge. By accepting the Humean fact/value dichotomy, however, the new natural law theorists reject this aspect of Thomistic thought (Putnam, 2002). Instead, as was discussed above, Hume’s conception of a fact is described by Putnam as a sort of “pictorial semantics,” where picturing means having a mental representation of a bodily sensation (Putnam, 2002, 15). Even on Hume’s account, then, one could not have moral sentiments without having physical sense organs, which provide the complexes of ideas that are the occasions for moral sentiments. But, on the logical positivist’s account, which recall, views moral judgments as cognitively meaningless since they cannot be validated or falsified by the rules of logic or empirical data, one could have endogenous subjective moral sentiments without having a body or and organs of sense at all. Moral sentiments can be strictly mental because mind and body are metaphysically dichotomous. Similarly, in the new natural law theory, the basic goods are self-evident to the mind, and can be known to be true independent of the mind’s ability to discern the metaphysically grounded purpose of things, through the body, in sensual experience. This is implicit in the claim that the first principles are underived. Several authors have tried to ameliorate this conclusion by arguing that prior knowledge of possible human fulfillment

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allows for self-evident principles to be self-evident without derivation, and so the structures of practical reason itself are not relied on to yield the moral truth, as with Kant. But, this view ultimately fails the program of the new natural law, because prior knowledge must be nothing other than factual since the basic goods are the first principles of practical reason. And, thus the argument appears to be selfcontradictory since it draws moral values from facts while asserting the complete separation of fact and value. If fact and value are separate natural kinds, and as such pure practical reason is “pure” by virtue of its having been separated from the contaminant of bodily sense data about what exists in the world (i.e., fact statements), then the moral values cannot rely on background knowledge, which after all, is factual. That is, since the new natural law theorists hold that the basic goods cannot be verified by facts about the world – for that would violate the fact/value dichotomy – they also must view the mind that reasons purely practically to be separate (or separable) from the body. Thus it is that the new natural law theory implies that the intellect can describe the good from within a perspective of radical subjectivity. The basic goods, derived independent of factual statements, are known solely in the horizon of a mind independent of a body. It should be clear, however, that this view is not a ressourcement of Augustinianism. It bears more in common with that sometimes Augustinian – and forerunner of Hume, the so-called “father of modernity,” Rene Descartes.6 Like Descartes, the new natural law theory seems to radically divide the mind’s ability to know itself through an immediate intuition of itself, from cognition of an outer world – an epistemology that would have been abhorrent to Augustine who viewed the world as “a compressed pile of blessings.”7 His understanding of ontology as the loving gift of the Trinitarian God – the gift of the bare possibly of existence – intrinsically links all “is” statements to moral values.9 If, however, the new natural law theorists derive the first principles of the natural law exclusively through a subjective intuition and conceive of it in terms of a priori principles of practical reason, then they seem to reject the struggle to ground the self in something other than itself which John Paul II suggests in the encyclical Veritatus Splendor, is the meaning of Genesis 2:16-7, “The Lord God commanded the man, saying, “You may eat freely of every tree of the garden, but of the tree of knowledge of good and evil you shall not eat, for in the day that you eat of it you shall die.” The Holy Father reads this verse as meaning, “the power to decide what is good and what is evil does not belong to man, but to God alone” (¶ 35). Now, of course, the basic goods, are not metaphysical telƝ in the new theory, but that is precisely the problem, since metaphysics is typically concerned with how beings are related to first causes and ultimate ends. How do we know, we might ask, which of the basic goods are most good? We have been arguing in this section, then, that the new natural law is underwritten by a mind/body dualism that has significant implications for moral anthropology. Since this is precisely the sort of comprehensive claim about human nature that the new natural law seeks to avoid, the theory itself seems to be intrinsically self-refuting. Moreover, even if it is not, by lacking the means to rank and order among the basic goods, the theory seems to miss much of what we turn to moral theory for. The ability to know which good to seek when the goods are in

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conflict is an essential part of human existence. 4. SOME AUGUSTINIAN REFLECTIONS ON HUMAN NATURE By moving a radically interiorized practical reason to the center of ethics, the new natural law theory flirts with an ancient heresy. There are resonances here of the Pelagian fiction that there are no obstacles to leading the fully human life once reason had uncovered the good life. Augustine argued that due to the noetic effects of sin, reason has its limits. The fallenness of human beings and the penultimacy of the temporal before the eternal are traditionally viewed as seminal for Christian morality. Memory constricts the range of our thinking just as perception is limited because it is a function of the body (Augustine, 1991, 334-337). Excessive or distorted desires can also mislead us, but there is no escape from this complicating factor of the moral life. Traditionally, most Christians have recognized that human beings are bound by a number of limits that are inherent in their natures as creatures operating in the aftermath of the fall from grace. The role of these limitations is complex. For example, human beings are naturally propelled by desires that are essential to the moral life for they infuse human love with its physical and mental dynamism. This dynamism is present in Augustine’s prayer to God at the beginning of the Confessions that, “our hearts find no peace until they rest in you” (1961, 21). Our deepest longings are thus connected to our highest callings. Of course, human desires must be rightly oriented toward the love of God and neighbor by God’s standard and not our own. The desires and the resulting emotions exhibited by the moral agent are entirely praiseworthy if the will is thus guided to its charitable ends by a proper love. Hence, the passions, if properly ordered, are a key part in this moral life where the Christian must become a lover of the good and one who hates evil. After all, Jesus knew and exhibited such emotions, and joy and love will be a central feature of our union with God. Reason has its role in helping to steer a course to the proper loves, but it operates within a moral arena animated by desires (Augustine, 1984, 555-556, 563-565). Augustine’s explanation of the role of desires and emotions differs from many ancient and modern philosophers. The moral agent is not merely a dispassionate and reasoning creature who calculates the benefits from being aligned with a set of basic goods that are necessary for integral human fulfillment. Indeed, the desire for a complete emotional detachment that Augustine witnessed in the Stoics and seems to be present in the new natural law school is a form of “insensitivity” that is the “worst of all moral defects” (Augustine, 1984, 565). Desires and passions are an essential part of being human, but the existential problem for Augustine is that as fallen creatures we desire wrongly, usually out of self-love (cupiditas) rather than love of God (caritas). It is desire that orients us in the world, and desire, as previously noted, can be objectively proper or improper. C.S. Lewis expressed the idea many years ago, when he assumed that “certain attitudes are really true, and others really false, to the kind of thing the universe is and the kind of things we are” (Lewis, 18).

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Since the soteriology of Augustine is rooted in properly ordering desire, the quest for the moral life cannot be detached from desire for God. Our longing for God and his grace is critical in selecting proper moral actions. Reason cannot be separated from desire, and even if it could, it would not be a proper basis for human action. If human action is not motivated by love of God, then reason cannot correctly control our worst tendencies. For what kind of a “mistress over the body and the vices can the mind be that is ignorant of the true God and is not subjected to his rule…”? Further, Augustine warns that the virtues are not honorable when they are “related only to themselves and are sought for no other end” because all blessings flow from God (1984, 891). Thus, Augustine doubts the quest of philosophers who seek ethical principles and truth divorced from the spiritual life. Indeed, the bishop of Hippo insisted that our fallen natures should make us humble towards our ability to achieve moral perfection (Elshtain, 50-67). The continual reality of human imperfections, even in the face of educational efforts, has to be accounted for in an ethical system. In a Christian anthropology, reason is simply insufficient to overcome the power of distorted desires such as lust, greed, and power to control human life. Whoever thinks that in this mortal life a man may so disperse the mists of bodily and carnal imaginings as to possess the unclouded light of changeless truth, and cleave to it with the unswerving constancy of a spirit wholly estranged from the common ways of life-he understands neither what he seeks or who he is who seeks it (Augustine, 1961, 39).

Indeed, human will can select improper ends even if it is aware that such actions are destructive to family, friends, and even self-interest. Knowledge of the truth and the will to follow the truth are not the same thing. Who can forget Augustine’s prayer in the Confessions, “Give me chastity and continence, but not yet” (Augustine, 1961, 169). This awareness of our limits as moral creatures is not a counsel for passivity or insularity, but is instead a reminder of the need for God’s grace to compensate for our limitations. As Augustine learned in the garden in Milan, mere knowledge of what a moral agent should do was not enough to direct his or her will in the proper direction. Ultimately, he needed the assistance of God’s grace revealed in scripture. Indeed, the moral turn from sin must be assisted by the operation of grace in not only sacred books, but also a community of interlocutors, the sacraments of the church, and a searching dialogue with both our minds and heart. These sources of spiritual conversion and grace can anneal a turning of the will as desires and longings are not diminished, but reordered and directed to their proper end. Slowly and with much effort, grace can then begin to heal the wounds inspired by the excesses of misdirected passions. The Christian understanding of the role of desire, the limits of reason, the fallen nature of humanity, and the concomitant role of God’s commands and grace to direct our lives greatly complicates the search for a global ethic. As Kruschwitz’s essay reminds his fellow essayists, the ultimate concern for Christians is salvation and not popularity or global consensus. Once again, the requirements of the Christian faith are not a suggestion of withdrawal into isolation, but a reminder of the limits and difficulties of seeking moral consensus with other religions and an increasingly secular world (see, e.g., Kruschwitz). This analysis of Augustine’s

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ethics suggests that a global ethics will remain a suspect category for Christians who believe in the fall and the noetic effects of sin. Projects seeking global unity or totalizing ethical constructs must recognize the realities of hubris and self-love – while ponderously seeking a peace that Christ alone can bring. 5. FUTURE LINES OF INQUIRY The anthropological and metaphysical issues confronting natural law will inherently complicate the construction of a global ethic. Ethics, to the extent that it is concerned with matters of ultimate importance, cannot help but make claims of a metaphysically anthropological nature. There is no point of pure neutrality on such matters, because those staking claim to an allegedly neutral position are still operating from implicit metaphysical values. The problem for traditional natural law theorists is that the hylomophic metaphysics of Aquinas’s time is no longer philosophically respectable, and as Alistair MacIntyre forcefully argues in After Virtue, the collapse of that worldview undermined the foundations for Western ethics, leading to Enlightenment attempts to ground ethics apart from the natural world. But, these efforts have ultimately failed too. How we proceed at this juncture may depend, in no small measure, on the metaphysics we can accept and how much ethics can be done if divorced from certain metaphysical assumptions. In an associated issue, the adumbration of a human nature also complicates the task of this book. What is the basis of any common human nature and how do we then sketch out an ethical theory that accounts for and aligns with our anthropology? The issues of metaphysics and anthropology are among the most important questions of our times, particularly in light of the advance of a nascent world community and in the face of technological advances that may soon allow us to radically alter human nature itself. How then to proceed? As the earlier Augustinian analysis suggests, our manifold limitations suggests a strong dose of humility as the starting point of our journey toward a common moral regime that can attempt to cross cultural boundaries. Humility in the moral life does not suggest that we cannot pursue the truth or engage other cultures. After all, moral agents must act despite a clear knowledge of such limitations. Augustine recognized this tension when he counseled that “ignorance is unavoidable- yet the exigencies of human society make judgment also unavoidable” (Augustine, 1984, 860). Any path, however, will have to recognize some limitations. Joseph Boyle, following Michael Walzer, favors the finding of consensus points of moral judgments that can then carefully be extended (Boyle, 10-12). This seems like an appropriate and sufficiently cautious project as long as it incorporates a careful casuistry to recognize and accept the limits to the project. Extending of common moral intuitions too far might, unintentionally, distend the basis of agreement and ultimately lead to misunderstandings and a collapse of consensus. On the other hand, excessive caution might impede the development of norms that would prove essential to global peace and cooperation. Moreover, moral intuitions will sometimes not be compatible and will indeed be incommensurable (Boyle, 12). In

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some senses, the problem here is that the members of any given generation are, to use the phrase of Jose Ortega y Gasset, “shipwrecked” in their personal circumstances and their surrounding culture. Each generation in a culture inherits fundamental beliefs or “creencias” expressed as “a mass of circumambient convictions” that provide a “network of ready made solutions.” As a generation necessarily confronts a common repertory of problems, they are restrained by historical limitations. As with all generations, the contemporary age is also limited in challenging fundamental beliefs within a culture, much less engaging in cross cultural exchanges leading to a global moral consensus. Still, in an age of such rapid communication and transportation, the possibility for cross-cultural exchanges is at a very different level than in previous generations and would indicate some reason for optimism about such a project. As the Spanish philosopher concluded, there is inevitably room for some “movement and a variation, a process and a change” (Ortega Y Gasset, 1958). Nonetheless, cultural exchanges beyond Boyle’s project that are merely assertions of seemingly incommensurable values do not seem to offer much promise. Any progress in such instances will be difficult and any successes may be only tentative. Still, if there is to be positive movement towards any type of moral consensus, it seems that a fruitful line of inquiry must transcend incommensurable principles by returning to the fundamental sources of ethical development in human action or thought that produced the principles. This paper is not the locus for a full exposition of the possible avenues for exploring such a complex undertaking. Still, a few general directions seem to offer some promise. In addition to Boyle’s search for common moral intuitions, phenomenology, as previously noted, may offer a fruitful vantage point for studying human moral actions in order to discover some common ground. The common, inner experience of being a moral actor may offer some access to the process of ethical development. But, it cannot, in itself, provide valid grounds for distinguishing the moral from the immoral. Center for Ethics and Leadership Saint Edward’s University Austin, Texas And Ave Maria School of Law Ann Arbor, Michigan NOTES 1 2

Hillary Putnam is the Cogan University Professor, Emeritus, at Harvard University. Augustine himself was quite aware that desires are often of and for the body, and thus he never separated mind and body as radically as, say Descartes, would. “Platonism was for Augustine a vehicle for expressing the superiority of the soul over the body; it was not a vehicle for excluding the body from the unity of human nature” (Pegis, 16).

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4 5

6

7 8

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For a remarkably complex, subtle, and enervating discussion of substance, see Aristotle, Metaphysics, ch. 7. See ST I, q. 89, art. 1. Boethius described the person as “an individual substance with a rational nature.” Boethius, A Treatise Against Eutyches and Nestorius (1997, p. 85). Aquinas accepts this definition and defends it (ST I, q. 29, art. 1). He explains that a subsistent individual with a rational nature “signifies what is most perfect in all nature” (ST I, q. 29, art. 3, sed contra). And, in explaining why the term “person” has the grandeur to be a predicate of the triune God, Aquinas writes: Although this name person may not belong to God as regards the origin of the term [which refers to the masks worn by players in Greek dramas], nevertheless it most excellently belongs to God in its objective meaning. For as famous men were represented in comedies and tragedies, the name person was given to signify those who held high dignity. Hence, those who held high rank in the Church came to be called persons. Hence some define person as a hypostasis distinct by reason of dignity. And because subsistence in a rational nature is of high dignity, therefore every individual of a rational nature is called a person. Now the dignity of the divine nature excels every other dignity; and thus the name person pre-eminently belongs to God. ST I, q. 29, art. 3, reply 2. For a critical assessment of the dignity of the person in the thought of Aquinas and an argument for a contemporary recovery of the Thomistic approach, see Norris W. Clarke (1993). In the introduction to his Thomas Aquinas On Human Nature, Thomas Hibbs speculates on “How Aquinas might view the Cartesian preoccupation with skepticism?” He writes: From the perspective of Aristotle and Aquinas, the approach looks awfully contrived and artificial; instead of focusing on human beings actively engaged with things in the world. Aquinas would urge, moreover, that reasonable doubts are always local, never global; they are formulated against a set of background assumptions that could never all at once be successfully put in question. If doubt were to become truly global; it would be fatal (1999, xi). Augustine, City of God, Book XXII, ch.24. See Jean-Luc Marion, Being Given, Toward a Phenomenology of Giveness (2002). A brief discussion of the economy of divine gift is also contained in Paul J. Griffith, “The Gift and the Lie: Augustine on Lying”(1999, 4-30). See also ST I, q. 89, art. 1.

BIBLIOGRAPHY Augustine (1961). Confessions. New York: Penguin Books. Augustine (1984). City of God. New York: Penguin Books. Augustine (1991). The Trinity. New York: New City Press. Boethius (1997). A Treatise Against Eutyches and Nestorius. In: The Theological Tractates, H.F. Stewart, E.K. Rand, and S. J. Tester (Trans.). Cambridge: Harvard University Press. Boyle, J. (2004). “Natural law and global Ethics.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Capaldi, N. (2004). “Global ethics and natural law.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Cherry, M. (2004). “Natural law and moral pluralism: epistemological and metaphysical challenges.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Clarke, N.W. (1993). Person and Being. Milwaukee: Marquette University Press. Elshtain, J. B. (1996). Augustine and the Limits of Politics. Notre Dame: University of Notre Dame Press. Finnis, J.. (1996). Natural Law and Natural Rights. Oxford: Clarendon Press. George, R. P. (1992). “Natural law and human nature.” In: R. George (Ed.) Natural Law Theory: Contemporary Essays (pp. 31-41). Oxford: Oxford University Press. Griffith, P. J. (1999). ‘The gift and the lie: Augustine on lying,’ Communio 26, Spring, 4-30. Hibbs, T. (1990). Aquinas on Human Nature. Indianapolis: Hackett Publishing Company.

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Kass, L.R. (2002). Life, Liberty, and the Defense of Human Dignity. San Francisco: Encounter Books. Kruschwitz, R. B. (2004). “Natural law and the free church tradition.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Lewis, C.S. (2000). The Abolition of Man. New York: Harper Collins Publishers. Lustig, B.A. (2004). “Natural law and global ethics.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Marion, J.-L. (2002). Being Given: Toward a Phenomenology of Giveness. Stanford: Stanford University Press. McInerny, D. (2004). “Natural law and conflict.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Murphy, M. C. Natural Law and Practical Rationality. Cambridge: Cambridge University Press. Ortega Y Gasset, J. (1958). Man and Crisis. New York: W.W. Norton and Co. Pegis, A. C. (1963). At the Origins of the Thomistic Notion of Man. New York: MacMillan Company. Putnam, H. (1990). Beyond the Fact Value Dichotomy. Realism with a Human Face. Cambridge: Harvard University Press. Putnam, H. (2002). The Collapse of the Fact Value Dichotomy and Other Essays. Cambridge: Harvard University Press. Quine, W. V. O. (1980). “The two dogmas of empiricism.” In: From a Logical Point of View, second edition (pp. 20-46). Cambridge: Harvard University Press. Taylor, C. (1989). Sources of the Self: The Making of the Modern Identity. Cambridge: Harvard University Press. Taylor, C. (1996). “Self-interpreting animals.” In: Human Agency and Language: Philosophical Papers I (pp.45-76). Cambridge: Cambridge University Press. Tollefsen, C. (2004). “Natural law and modern meta-ethics: A guided tour.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers. Van Dyke, C. J. (2000). Metaphysical Amphibians: Aquinas on the Individuation and Identity of Human Beings. PhD. diss., Cornell University. Zanardi, W. (2004). “Natural law and historical mindedness.” In: M. J. Cherry (Ed.), Natural Law and the Possibility of a Global Ethics. Dordrecht: Kluwer Academic Publishers.

NOTES ON CONTRIBUTORS

Richard Bautch, Department of Religious Studies, Saint Edward’s University, Austin, Texas Thomas J. Bole, Houston, Texas. Joseph Boyle, Department of Philosophy, St. Michael’s College, Toronto, Ontario Nicholas Capaldi, College of Business Administration, Loyola University of New Orleans, Louisiana Mark J. Cherry, Department of Philosophy, Saint Edward’s University, Austin, Texas Ana Iltis, Center for Health Care Ethics, Saint Louis University, St. Louis, Missouri Fabrice Jotterand, Senior Managing Editor, The Journal of Medicine and Philosophy, Rice University, Houston, Texas Robert B. Kruschwitz, Director, Center for Christian Ethics, Baylor University, Waco, Texas Kevin P. Lee, Ave Maria Law School, Ann Arbor, Michigan B. Andrew Lustig, Director of the Rice University and Baylor College of Medicine Joint Program on Biotechnology, Religion, and Ethics, Rice University, Houston, Texas George E. Martin, President, Saint Edward’s University, Austin, Texas Daniel McInerny, Senior Research Associate, Center for Ethics and Culture, University of Notre Dame, Indiana Phillip M. Thompson, Director, Center for Ethics and Leadership, Saint Edward’s University, Austin, Texas Christopher Tollefsen, Department of Philosophy, University of South Carolina, Columbia, South Carolina William J. Zanardi, Department of Philosophy, Saint Edward’s University, Austin, Texas

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INDEX

abortion, xi-xii, xvii, 4, 18, 21-22, 27-28, 31, 33, 35-36, 38, 55, 134, 154, 160 absolutistism, 104, 108, 110, 112 absurdity, 102 Acton, Lord, 35-37 Adams, Henry, 101 aesthetic experience, xiv, 33, 40, 131, 143, 153 agency, 58, 61-64, 66, 75, 84, 137 Aiken, H., 131, 139 alienation, 103 America, 34, 37, 55, 67, 72, 161 Amish, 94 amoralism, 45-48 Anabaptists, 160 Anderson, J.K., 37 Anscombe, G.E.M., 67 Anselm of Canterbury, ix, xviii, 128, 139 anthropology, xi-xii, xvi-xviii, 173, 178179, 182, 184-185 anti-expressivism, 43 anti-realism, 43-44, 48, 53, 61, 172 Aquinas, Thomas, ix, xii-xviii, 14, 32, 37, 39, 48, 81, 89-100, 118, 122, 126132, 136, 141-143, 146-147, 166-168, 172, 174, 180-181, 185, 187-188 Aristotelian-Thomistic biology, 130 Aristotle, ix, xii, xvi, xviii, 39, 75, 81-83, 91-98, 102, 112, 166, 180-181, 187 Arnhart, Larry, 157, 161, 165 Athenagoras, 126 Aubert, J.M., 167-168 Augustine, Blessed, ix, xviii, 4, 81, 89, 99, 126, 139, 146, 173, 180, 182-185, 187 191

authority, ix-x, xiii, 2, 5-7, 17, 25-26, 129, 145-146, 159, 163 moral, 5-6, 25 political, x, 5 social, ix, xii, xiii, 2, 17 autonomy, xv, 13, 22, 24-29, 31, 38, 73-75, 85-86 Averroes of Cordoba, 82 Avicenna, 166 Bacon, F. 71 Battaglia, A., 139 Bautch, Richard, xvi, xvii, xviii Bay, E., 35, 37 Baylor University, 159, 160 Belgium, xi Bernstein, R., 59, 67 Bible, 4, 18, 35, 138, 146, 166 bioethics, 18, 22, 24-26, 28, 32, 35, 37-38, 58, 67 birth, xii, 34, 112 birth control, artificial, xvii, 132, 172 birth defects, 22 Boethius, 127, 187 Boivin, Marcel, 167-168 Bole, Thomas J., xvi-xviii Boyle, Joseph, xiii-xvii, 5-6, 12, 1415, 17-20, 22-24, 27, 29, 31-34, 37, 39, 41-42, 49, 53-55, 87, 118, 121-122, 141, 143-144, 147, 150, 153-155, 160-161, 164-165, 168, 171-173, 185-186 Brethren, 160 Brink, David, 45, 55 Brody, Baruch, 141

192

INDEX

Brown University, 161 Buddhism, 74 Burrell, David, 167-168 Bush, George W., 60 Butler, Bishop John, 161 Calhoun, John C., 28, 36, 37 Campbell, C., 34, 37 Capaldi, Nicholas, xv-xvi, xviii, 88, 112, 121-122 capital punishment, 55 caritas, 183 Carnap, R. 175-176, 178 casuistry, 3, 12-13, 31, 82, 133, 141, 172, 185 categorical imperative, 22, 73, 144-146 Catholic intellectual tradition, ix-x, xviii causal order, 90 Chappell, T.D.J., 55 character, x-xiii, 17-18, 23, 32, 56, 59, 61-66, 89, 93, 96, 121, 137, 144, 152, 158, 177, 181 Cherry, Mark J., ix, xi-xii, xiv, xvii-xviii, 17-18, 37, 39, 57, 67, 112-113, 122, 147, 168, 172-173 Chomsky, Noam, 86 Christ, 89, 92, 142, 160, 166-167, 185, see also Jesus Christianity, xii-xviii, 21, 26, 32, 35-37, 54, 55, 60, 64, 67, 73-75, 80-83, 8590, 93-94, 126, 134-135, 139, 142, 145, 149-152, 157-168, 173, 183-185 Orthodox, 25 Protestant, 35, 37, 85, 137, 139, 150, 163 Roman Catholic, ix-x, xvi-xviii, 15, 21-22, 28, 32, 36-38, 55, 58, 8182, 85-86, 89, 113, 115, 117, 125, 128-129, 130, 133-141, 150-151, 160, 163-165, 167-168, 171 Cilliers, P., 66, 67 Clarke, S.G., 15, 54-55, 187 cloning, 34, 37, 60, 67 cognition, 83, 90-91, 95, 97, 118, 182 colonialism, ix common good, ix-x, xii, 2, 73, 99, 127,

135-136 community, xi, 1, 5-6, 10, 13-14, 1819, 23, 26-31, 61, 80, 99, 135, 147, 150-151, 155, 159, 161-165 Compassion in Dying v. State of Washington, 23 Confucianism, 25-26, 38, 74, 92 Confucius, 26 Congregation for the Doctrine of the Faith, 37 conjugal union, 34 consensus, 79 consequentialism, 12-13, 19, 39, 41, 55 contraception, xvii, 55, 132-133 contractarianism, 5-6, 13 contradiction, 102, 153 Conyers, A.J., 161 Copernican Revolution, 81 Copleston, F., 128, 139 Coreth, Emerich, 87-88 courage, 7, 35, 93-94, 98 criminals, 12 cross-cultural ethical conflict, 92 cultural heterogeneity, 31, 98, 102, 105 cultural homogeneity, 105 culture, xi-xvii, 10, 14, 18, 23-26, 28-29, 33-34, 54, 57-59, 61, 67, 74-75, 78, 85, 89, 92-93, 95-96, 101-102, 104-105, 110, 151, 158, 160, 164, 166, 172, 185-186 secular, 74 western, 18 culture wars, 102 cupiditas, 183 Curran, Charles, 136-139 Dead Sea Scrolls, 164 death, xi-xii, 18, 21-23, 35, 37, 106, 134, 145, 151-152, 181 Death with Dignity Act, 23 Decalogue, 141-142, 155 deliberation, xvii, 8-9, 62, 65, 112, 151-154-159, 161, 164-166 democracy, 22, 66, 73

INDEX Denz, David, 134-135, 139 Descartes, Rene, xv, 71, 182, 187 desire, 8, 42, 44, 48, 83, 94, 95, 103, 112, 117, 157, 179, 183, 184, 187 dietary laws, ix dignity, x, xii, 21-23, 34, 134-135, 138, 178-179, 181, 187 human, xii, 14, 18, 21-22, 34, 133-136 disease, 21-22, 25, 86 Divine Wisdom, 32 Dolly, 22 Domincan friar, 144 Donagan, Alan, 14-15, 17, 37, 49, 50, 55, 142, 144-147 Donders, J., 130, 139 Draco, 177 Dummett, Michael, 43, 47, 55 Durkheim, Emile, 86 Dworkin, Ronald, 83 education, x, 24, 28, 36, 92, 97, 101, 126 egalitarianism, 27 embryo, xii, 18, 21-22, 28, 31, 34-35, 38, 60 moral status of, 23 embryo experimentation, xii, 18, 28, 31 embryo research, 21-22, 31, 34, 38 embryonic stem cells, 22, 34 endoxa, 96, 98, 171 Engelhardt, H. Tristram, Jr., 5-6, 15, 21, 24-25, 27-28, 31, 35, 37, 58, 60, 67, 74, 88, 122, 144, 147 Enlightenment, 6, 57, 59, 74, 86, 88, 185 Enlightenment Project, 84 epistemology, x-xii, xiv, xvii-xviii, 23, 31, 40, 51, 58, 66, 81-82, 87, 115, 117-118, 122, 126, 158, 161, 166, 171-173, 177-180, 182 equality, 24-25, 27, 29, 31, 102, 111 libertarian, 27 error theory, 43, 48, 172 eschatology, 74, 167 eternal law, 32, 90, 126, 128-129 ethical principles, 105-110, 184 see also: moral principles

193 eudaimonia, 95-96, 98 Europe, 72 euthanasia, xi, xii, 13, 22, 33, 35, 37, 134 evil, xvii, 28, 33, 35, 84, 91, 105106, 129, 141-142, 146-147, 156, 158, 182-183 explication, 75-77, 86 expressivism, 43-44, 48 externalism, 44-45, 47 fact/value dichotomy, 173-175, 178179, 181-182 fair equality of opportunity, 25, 27 fairness, 7, 51-52, 152, 161 faith, x, xiii, xvii, 32, 35, 37, 59, 80, 118-119, 128-129, 131, 134, 142143, 181, 184 family, xii, 4, 18-19, 24, 26, 28-29, 33, 35, 91, 97, 157, 165, 184 Fan, Ruiping, 26, 37 fertility treatments, 22 Finney, P., 33, 37 Finnis, John, 19, 33-34, 37, 39, 4142, 49, 53-55, 66-67, 87, 100, 118, 122, 131-133, 139, 141, 143144, 146-147, 150, 153, 160-161, 164, 171-174, 177-178, 181, 187 fortitude, 6-7, 126 Foucault, Michel, 87 Frantzen, A.J., 167-168 Frasen, S., 35, 37 free church movement, xvii-xviii, 113, 149-153, 155-156, 158-161, 163-168, 173 free will, 62-63, 73-74, 86 freedom, 25, 33, 36-37, 85, 127, 143 free-market, economy xv, 24, 29-30, 36, 72-73, 82, 141 Frege, F.L.G., 80, 82 Freud, Sigmund, 86, 158 friendship, xiv, 40, 143, 153, 157, 180 Gaius, 141 Galileo, 107

194

INDEX

gametes, 34 Gasset, Ortega Y., 186, 188 genetic disorders, 22, 34 George, Robert P., 14, 55, 160-161, 168, 178, 187 Geron Corporation, 22 global ethics, xv, xviii, 1-3, 13-14, 37, 71, 73, 75, 84-85, 112, 120, 122, 125, 147, 173, 185 globalization, 1 God, xii, xvi-xvii, 32-35, 37, 46, 49, 51, 73-74, 80-83, 87, 89-92, 96, 99, 116119, 126-129, 141-144, 146-147, 149152, 156, 158-159, 161, 163, 166-167, 173, 182-184, 187 good life, xii, 9, 20, 25, 31-32, 60-61, 6364, 183 grace, xvii, 18, 80, 93, 143, 150, 173, 183-184 Great Britain, 72 Griffith, Paul, 187 Grisez, Germain, 19, 33-34, 37, 39-42, 49, 53-55, 67, 87, 99-100, 118, 122, 136, 141, 143-144, 146-147, 150, 153, 160-161, 164, 171, 178 Gunderson, M., 22, 37 Gustafson, James, 134, 138-139 Habermas, Jürgen, 57 66-67 habit, 80, 103, 146 habituation, 8, 92, 157 Haldane, John, 43, 55 Hall, Pamela, 150, 155-157, 161-162, 164-165, 167-168 happiness, x, xii, xvi, 84, 95-99, 119, 128, 171-172 Harris, Thomas, 177 Hartshorne, Charles, 128, 139 Harvard University, 38, 55, 67, 162, 186188 Harvey, D., 60, 67 Hasmonean Dynasty, 164 Hauerwas, Stanley, 63-64, 67, 151, 159160, 162-163, 166-168 Hayek, Friedich, 85 Hays, Richard, 151-152, 160, 162

health, xiv, 2, 15, 19-20, 24-25, 2728, 33-34, 36-38, 40, 122, 135136, 139-140, 153 health care, 2, 15, 24-25, 27-28, 3637, 135, 139, 140 Healy, E., 33, 37 Hegel, G.W.F., 14, 29-30, 36-38, 59, 73, 85-86, 142, 147 Hehir, Bryan, 138-139 Heidegger, Martin, 87 Herodotus, 102 heteronomy, 73 Hibbs, T., 187 hierarchy of goods, 92, 171 Hinduism, 74 Hittinger, Russell, 55-67, 90, 99, 122 Hobbes, Thomas, 116, 121 homosexuality, 130 human beings, xiii, xv, xvi, 2, 9, 1718, 21, 23, 33-34, 37-38, 40, 43, 49-50, 59, 72-75, 83-84, 92, 99, 102, 111, 125, 128-129, 139, 149, 153, 155-160, 172, 178-181, 183, 187 human flourishing, xi, xv, xvii, 1819, 23-24, 26, 30, 34, 46, 103, 106, 127, 131, 139, 143, 156, 157 human fulfillment, xvi, 3, 18, 24, 32, 37, 41, 46, 49, 51, 53, 61, 91, 9798, 143, 154, 161, 172, 182-183 human goods, xi-xvi, 6, 8, 18-21, 2324, 31, 33, 34, 40, 45-46, 49, 51, 53, 58, 91, 98, 101-103, 118, 121, 138, 143, 153-154, 157, 165, 173 human life, sacredness of, xii human nature, x, xiv-xvi, 1, 6, 19, 23, 26, 32, 40-42, 49, 55, 73, 75, 90, 92, 103, 115-120, 122, 125, 129-130, 137-138, 143, 149, 153154, 157, 161, 165-166, 173-174, 178, 181, 185, 187 after the Fall, 115, 117 before the Fall, 115, 117-118 redeemed, 117 restored, 115, 117-118 human rights, ix, 14, 27-28, 84, 125,

INDEX 136, 138 Humanist Manifesto, 157 humanity, ix, xii, 32, 34, 83, 116, 129, 144, 149, 159, 184 Hume, David, 6, 40, 41, 81, 85, 131-132, 139, 174-178, 181, 182 Hunter, James, 58, 67 illness, 22, 25, 28 Iltis, Ana, xvi-xviii immunodeficiency, 22 immunosuppressive drugs, 22 in vitro fertilization, 18, 21-22, 33-34 incest, 4 incommensurability, xvi, 26, 30, 40, 55, 66, 87, 89, 91-95, 104, 109, 111-112, 121, 154, 171, 186 induction, 108 informed consent, 24, 31 internalism, 44-47 intrinsic goods, 12, 29 intuitionism, 54, 133, 139, 141, 144, 172 intuitions, 31, 64-65, 82, 86, 120, 133, 153 Ireland, 164 Irwin, T.H., 99 Isidore of Seville, 126 ius naturale, 126 Jaffa, Harry, 89, 92, 94, 99 Jaggerstatter, Fanz, 14 Jesus, 54-55, 80, 89, 149, 151-152, 167, 183, see also Christ Jewish, Orthodox, 22, 34, 167-168 John Damascene, St., 128 John Paul II, xi, xviii, 32, 33, 38, 130, 139, 160,182 John XXIII, 133 Jonsen, Albert, 12-13, 15 Joseph, Thomas, 35, 38 Jotterand, Fabrice, xiv Judeo-Christian moral tradition, 17 jurisprudence, 126, 138 jus gentium, xiii, 10, 12-13, 23, 126 justice, xii, 6, 14, 19, 31, 35, 52, 66-67, 76, 106, 126, 134, 139

195 social, x, xvii, 26, 29, 86, 134, 137 Justin Martyr, 126, 139 Justinian, 141 Kant, Immanuel, 6, 14, 39, 49, 81, 85-86, 118, 128, 142, 144-145, 147, 175, 176, 182 Kantianism, 46, 54, 142 Kelly, G., 33, 38 Kingdom of God, 149 knowledge, ix, xi, xiv, 2, 9, 14, 3234, 40, 44, 59, 64, 66, 71, 74-75, 80-81, 87, 90-91, 99, 102, 106, 109, 110, 112, 115-116, 118-119, 121-122, 126, 128, 131-132, 142143, 149, 153-155, 158, 160, 165166, 173-175, 177-182, 184-185 Kovesi, Julius, 64, 67 Kruschwitz, Robert, xvi-xviii, 102, 113, 163-168, 172-173, 184-185 Lebacqz, Karen, 35, 38 Lee, Kevin, xviii Lee, Patrick, 55 Lence, R., 37 Leo XIII, 135 Lewis, C.S., 183-184, 187 liberal cosmopolitan polity, 24 libertarian, 27 liberty, 10, 14, 23-25, 27-29, 31, 3536, 72, 85, 133 liberty of conscience, 35 Locke, John, 30, 36, 38, 85, 140 logical positivism, 54, 174-178 Lonergan, Bernard, 87, 105, 107, 111-113 love, ix, 23, 26, 35, 91, 126, 142144, 147, 183-185 Lustig, B. Andrew, xvi-xviii, 87, 118, 122, 137, 139, 141, 143-144, 147, 172, 179 Lyotard, Jean-Francois, 59, 60, 67 Maccabees, 164 MacIntyre, Alasdair, 6-8, 15, 58, 60,

196

INDEX

64, 66, 67, 91, 94, 99-100, 121-122, 185 Mackie, J.L., 43, 48, 55 Magisterium, 33, 119 Mahoney, John, 126-127, 139, 167, 168 Maimonides, 166 Mandeville, Bernard, 36, 38 Marion, Jean-Luc, 187-188 Maritain, J., 18, 81, 86-88 marriage, 4, 18, 34, 40, 49, 127, 132, 160 Martin, George, ix-x Marty, M., 160, 162 Marx, Karl, 86, 103, 158 mathematics, 79, 80, 86, 175-176 Mayo, D., 22, 37 Mayor, S., 34, 38 McCann, D., 134, 139 McCormick, Richard, 38 McDowell, J., 8, 15 McFadden, C., 32-33, 38 McHugh, James Bishop, 28, 36, 38 McInerny, Daniel, xv, xvi, xviii, 66, 99, 100, 101-102, 104, 113, 118-119, 121-122, 171-172 McInerny, Ralph, 55, 67 medicine, xi, 7-9, 21, 24-25, 33-35, 40, 109, 136, 139 Melville, B., 103 Mencius, 92, 100 metaethics, 6, 13, 39, 41, 43-44, 52-54, 57-58, 67, 113, 122 metanarrative, 59, 66 metaphysical relativism, 31 metaphysical teleological biology, 82 metaphysics, x, xi, xviii, 23, 25, 31, 43, 59, 79, 81-83, 85, 87, 115, 119, 131132, 141, 143, 171-182, 185 Methodism, 160 middle-level principles, 31 Midgley, Mary, 10, 15 militarism, 94 Miller, William Lee, 137 minority rights, 22 modernity, 59-60, 67, 73, 182 Moore, G.E. 149 Monêt, Claud, 30

monopoly, 72 moral agreement, 1, 10, 20, 58, 121 community, 5, 24, 30 conduct, xi, 18 conflicts, 12, 57 consensus, xvi, 1, 10-13, 24-25, 27, 31, 35, 60-67, 73, 86, 104105, 109, 121, 132, 139, 152, 172, 184-186 diversity, 1-4, 9, 14, 18, 23, 27, 30, 109-110, 121 epistemology, xvii, 71 evidence, xiv, xvii, 20 inference, xiv, xvii intuitions, xiii, 11, 31, 64, 104, 172-175, 185-186 judgment, xii, 3-4, 6-7, 12, 44, 48, 51-52, 61, 106, 132-133, 137, 139, 150, 157, 172, 176-177, 181 knowledge, 104-105, 107-111, 150 norms, ix, xii, xv, 7, 14, 24-25, 27, 46, 105, 132, 138, 154155, 159, 166 perspectives, 4, 13, 20, 26, 37 philosophy, ix, xi, xii, 39, 43, 52, 57-58, 85, 176 pluralism, x, xviii, 2-4, 13, 18, 20, 31- 32, 35, 116-117, 120-122 precepts, x, 17, 122, 142, 156 principles, ix, xiii, 2-5, 7, 9-10, 14, 17-18, 20, 41, 104, 106, 120, 142, 149, 153, 171, 173174 rationality, xiv reasons, 41, 47-48, 63 sentiments, 179, 181 statements, xiii, 2, 6 strangers, 5, 6, 58, 147 subjects, 106, 111 theology, 57, 125, 127, 137-138 theory, xi, xvi, xvii, xviii, 10, 24, 26, 33, 48-49, 54, 57, 66, 143, 145, 160, 173, 183

INDEX traditions, xvii, 5 truth, 2, 10, 14, 18, 32, 37, 44, 48, 52, 54-55, 58, 159, 161, 182 values, 175, 177 vision, xiii, 30 moralität, 30 morality, ix-xviii, 1-3, 6, 8, 10-14, 17-19, 24-25, 28-33, 45-48, 50-51, 54, 56, 60, 64-65, 82-83, 115, 117-118, 120122, 136, 138-39, 142-143, 145-147, 154, 159, 161, 168, 172-173, 183 common sense, xiii, 12, 17 hard cases, 3, 4, 155 Mouw, R., 160, 162 Mozart, W. 52 multi-national corporation, 4, 18 murder, 33, 41, 108, 110, 145 mutual respect, 5, 145-147 Nagel, Thomas, 42, 55 National Bioethics Advisory Committee, 37 National Commission for the Protection of Human Subjects in Biomedical and Behavioral Research, 27 National Commission on Human Subjects, 13 National Council of Churches, 35 National Institutes of Health, 21, 22, 34 natural kinds, 177, 182 natural precepts, xiii, 2, 17 natural science, 107 naturalistic fallacy, 40, 149, 154, 172, 174 Nazis, 14 negotiation, 5-6, 13, 172 Nelson, Paul, 163, 168 new natural law theory, 39-41, 44, 48, 53-54, 57, 61, 63, 150 Newman, John Henry Cardinal, ix Newton, Isaac, 107, 112 Niedermeyer, A., 33, 38 Nietzsche, Friedrich, 47, 158 nihilism, 5-6, 76-77, 147 normative judgment, 106, 174-177 normative theory, 53-54

197 normativity, xiv, 54, 116-117, 119, 121-122, 167 Novak, M., 86, 88 Nozick, Robert, 25, 38, 83 O’Brien, D., 134, 139 O’Brien, P., 33, 37 O’Donovan, O., 38 Oakeshott, Michael, 88 Onesimus, 146 ordo cognoscendi, 103, 110, 112 Oregon, xi, 23 organ donors, 22 failure, 22 ownership, 127 pacifism, 94, 106 parochialism, 74 parthenogenesis, 34 patriarchy, 28 Paul VI, 132-133 Paul, St., 93, 141-142, 146, 167 Pegis, Anton, 180, 187-188 Pellegrino, E., 22, 38 person, x, 3, 6-9, 11, 19, 21-23, 2526, 30, 34-35, 49-50, 62-63, 9496, 105-106, 109-110, 118, 133134, 136, 143-145, 155, 161, 178181, 187 personal integrity, xiv, 40 Philemon, 146 phronesis, xvii, 75, 87, 151-153, 155-156, 158, 160 physician-assisted suicide, xi, xii, 4, 13, 18, 22, 28, 31, 33, 35, 38, 134 Piaget, Jean 103 Pietists, 160 Plato, ix, xviii, 39, 81, 87, 96, 180 Polis, 85 poor, 2, 135-136, 157 Pope, Stephen, 139, 149, 160, 162 Porter, Jean, 136, 138-140, 149-150, 155-158, 160, 162, 164-166, 168 positivism, 86, 88, 132, 138, 173, 177, 179

198

INDEX

postmodernity, 58-60, 65-67 preferential option for the poor, 136 pregnancy, 21, 28, 34 Prejean, Helen, 106 Presbyterian Church (USA), 35 procreation, xii, 21, 34, 127 promise keeping, 6, 9, 12, 103, 120, 159 property, 3-4, 14, 28-29, 35-36, 45, 72, 107, 134, 174 prudence, 19, 126 Putnam, Hillary, 173, 174, 175, 176, 177, 178, 181, 186, 188 Quakers, 106, 160 Qui Ren-Zong, 26, 38 Quine, W.V.O., 176-178, 188 Qumran, 164 Radin, M., 30, 38 rape, 4 rational animal, 92 rationality, ix, xii-xiv, 51, 58, 60, 64, 67, 125, 131-132, 142, 145 Rawls, John, 27, 38, 57, 66-67, 83 Raz, Joseph, 8-9, 15 realism, 43-44, 48, 53, 61, 84, 106, 131, 172 reason, ix-xvii, 2, 5-6, 8, 12, 15, 17-19, 29-30, 32, 34, 40-42, 44-47, 49-50, 53-54, 57-61, 64, 66-67, 90-91, 93, 102, 115-119, 121, 125, 127-133, 136-137, 139, 141-143, 145-147, 154157, 159-161, 165-166, 171-175, 178, 181-184, 186-187 divine, 136, 141 general secular, xvii objectivity of, xiv, 53 practical reason, ix, x, xvii, 19, 40-43, 47-49, 51-52, 54, 58, 65, 91, 99, 131-132, 134, 136, 138, 143, 146, 153-154, 156, 158, 171-172, 178 theoretical, 40-41, 131 regulation, institutional, 28 relativism, 31, 61, 108 relativists, 104, 112 religion, xiv, 4, 18, 23-26, 28-29, 74, 93,

185 religious celibate, 3 Renaissance, 71 reproduction, xii, 18, 22, 60 third-party assisted, xii revelation, xvii, 80, 103, 125, 129130, 133, 138, 157-158 rights, ix, xi, 10, 14, 21-28, 31, 33, 36, 72-73, 83-85, 106, 133-136, 138, 146 forbearance, 25, 27, 50 minority, 2 natural, 125 welfare, 27-28, 83 women’s, 2 Romanus Cessario, 99 Rorty, Richard, 87 Roslyn Labs of Scotland, 22 rule of law, 72, 85 Saint Edward’s University, ix, x, xviii, 111, 167, 186 Samurai warrior, 144 sanitation, 2 scepticism, 10, 33 Schindler, Oscar, 106 scholasticism, 150 Scotus, 91 Scripture, xii, xvii, 152, 157-161, 163, 166-168 Sedgwick, T., 150, 162 Seleucid, 164 self-defense, 127 self-determination, 25, 62-63 self-interest, 6, 8, 121 self-satisfaction, 25 self-worth, 92-93 Seneca, 144 sexual experimentation, xii sexual expression, xvii, 130, 133 Shannon, T., 134, 139 Shepherd, V.A., 152, 167-168 Shinto, 74 Sidgwick, Henry, xiii, 10-11, 14-15, 133, 139, 172 Simpson, E., 15, 54-55

INDEX Singer, Peter, 64 Sittlichkeit, 30 skepticism, 50 slavery, 145-146 Smith, Adam, 72 Smith, Michael, 44, 53, 55 Smith, J., 133, 140 social harmony, xiv, 40, 143 Socrates, 89, 92 solidarity, 26, 134-135 South Africa, 106 Soviet Empire, 72 Spartan, 94 Spohn, W.C., 163, 167-168 Spong, John S., 35, 38 stem cell research, xvii, 22, 34 sterilization, 18, 33, 132 Stoic, ix, 125-126, 141-142, 183 Suarez, Francisco, ix suffering, 18, 21-23, 34, 152 suicide, 22-23, 35, 144, 145 Switzerland, xi synderesis, 156, 158 Talmud, 34 Tao, Julia, 25, 37, 38 Taoism, 74 taxation, 28, 30, 36 Taylor, Charles, 178-180, 188 technological project, xv, 71-75, 85 temperance, 126 Tendler, Moshe, 22, 38 Tertullian, 126 Texas, x, xviii, 32, 66, 111, 138, 159, 167, 186 theology, ix-xvi, 81, 86, 99, 113, 118119, 125, 128, 136-138, 146, 150-151, 157, 160-161, 164, 171-173 Thompson, Phillip, xviii Thrasymachus, 44, 47 Tierney, Brian, 134, 140 Tollefsen, Christopher, xiv, 41, 55, 5758, 60-67, 112-113, 118-122, 172, 178 Toulmin, Stephen, 12-13, 15 tradition, ix, xii, xvii, xviii, 4, 6-7, 35,

199 39, 58-59, 61, 65-66, 81, 83, 89, 93, 103-104, 113, 115, 117, 122, 125-127, 129, 134, 136-138, 142, 149-168, 173- 174 tribal identity, 105 Tully, James, 134, 140 United Nations, 84 United States, 23, 37, 57, 72, 137 United States Catholic Bishops Conference, 135, 140 United States Ninth Circuit Court, 23 Universal Declaration of Human Rights, 136 University of Paris, ix utilitarianism, 46, 54 values, ranking of, 5 Van Dyke, C.J., 180, 188 Vatican Council, First, 32 Vatican Council, Second, 127, 129, 137 Vattimo, Gianni, 59, 67 Veatch, Robert, 35, 38, 55, 66-67 virtue ethics, 7 Vitoria, Francisco de, ix, 141 Voegelin, E., 87-88 Wales, 164 Walters, J., 35, 37 Walzer, Michael, 11-12, 15, 172, 185 war just war theory, ix, 11-12, 14, 139, 145, 157 Wayland, F., 161-162 Wehrmacht, 14 welfare entitlements, 28, 133 Wertheimer, A., 30, 38 Wesley, John, 166-168 Williams, Bernard, 47-49, 51-52, 5556, 89 Wittgenstein, Ludwig, 80, 82, 87 Wood, Allen, 36, 38 Wright, Crispin, 43, 55 Yearley, Lee, 92-95, 98-100

200

INDEX

Yoder, John Howard, 152, 160, 162 Zanardi, William, xvi, xviii, 87, 172 Zion, 150

Philosophical Studies in Contemporary Culture H. Tristram Engelhardt, Jr., Series Editor Kevin William Wildes, S.J., Associate Editor 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

G. Motzkin: Time and Transcendence. Secular History, the Catholic Reaction and the Rediscovery of the Future. 1992 ISBN 0-7923-1773-4 H. Tristram Engelhardt, Jr. and T. Pinkard (eds.): Hegel Reconsidered. Beyond Metaphysics and the Authoritarian State. 1994 ISBN 0-7923-2629-6 L.B. McCullough: Leibniz on Individuals and Individuation. The Persistence of Premodern Ideas in Modern Philosophy. 1996 ISBN 0-7923-3864-2 N. Capaldi: The Enlightenment Project in the Analytic Conversation. 1998 ISBN 0-7923-5014-6 K. Bayertz (ed): Solidarity. 1999 ISBN 0-7923-5475-3 S.A. Erickson (ed.): The (Coming) Age of Thresholding. 1999 ISBN 0-7923-5938-0 D.T. Schwartz: Art, Education, and the Democratic Commitment. A Defense of State Support for the Arts. 2000 ISBN 0-7923-6292-6 M.F. Carr: Passionate Deliberation. Emotion, Temperance, and the Care Ethic in Clinical Moral Deliberation. 2001 ISBN 1-4020-0143-6 M.E. Meaney, Ph.D.: Capital as Organic Unity. The Role of Hegel’s Science of Logic in Marx’s Grundrisse. 2002 ISBN 1-4020-1037-0 T. Halper: Positive Rights in a Republic of Talk. A Survey and a Critique. 2003 ISBN 1-4020-1783-9 M.J. Cherry: Natural Law and the Possibility of a Global Ethics. 2004 ISBN 1-4020-2223-9

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