LITMIR.BIZ

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true, I’ve a good life developing, for I’m indebted to many, and I gratefully acknowledge the support of my colleagues at Eastern University, the Templeton Honors College, the Agora Institute, and many students, friends, and colleagues, especially Drew Alexander, Kate Bresee, Phil Cary, Austin Detwiler, Jeff Dill, Nate Farris, Kelly Hanlon, Sarah Moon, Amy Richards, and Jonathan Yonan. Also, Brad Wilson, Robert George, and the James Madison Program kindly included me in several working groups that clarified my thought; Pat Byrne, Kerry Cronin, Fred Lawrence, Susan Legere, and others involved with the Lonergan Center at Boston College generously provided time and space for several months of research; the Earhart Foundation supported early aspects of the work; Ryan Miller, Gilles Mongeau, and Jeremy Wilkins introduced me to the work of Martin Rhonheimer at a Lonergan Workshop. Finally, but most importantly, if we cannot live without love, then that little outpost of the Church that is my family has given me life—especially, and always, Amy.

1. Budziszewski, Line Through the Heart, 2.

2. Ibid., 3.

3. Ibid.

4. Ibid.

5. Ibid.

6. Ibid., 4.

7. Ibid., 5.

      Natural Law, Modes of Meaning, and Contemporary Disputes

      A Brief Introduction

In March 2013, First Things published an essay by the noted theologian David Bentley Hart highly critical of natural law theory and its role in current moral and social disputes.1 A remarkably gifted writer and polemicist widely known for The Beauty of the Infinite: The Aesthetics of Christian Truth, his essay garnered much attention, revealing significant fault lines between and within various theological schools.

According to Hart, whatever its pedigree, and however much his own theology affirms similar conceptions of the cosmos, he rejects a “style of thought whose proponents . . . believe that compelling moral truths can be deduced from a scrupulous contemplations of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world.”2 Such, declares Hart, “is a hopeless cause.”3 In attempting to converse with secular society in neutral terms, or at least terms acceptable to the secular mind, natural lawyers insist “that the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation,”4 an evidentness Hart believes not present or discernible, partly because of the knock-out delivered by David Hume’s claim that value statements—an ought—can never be derived from factual statements—an is—and partly because nature is interpreted from within a cultural tradition. Consequently, natural law is acceptable if and only if one “has prior supernatural convictions” grounding the law, so any attempt to use natural law as a purely secular and rational language “can never be much more than an exercise in suasive rhetoric (and perhaps something of a pia fraus).”5

Hart’s proponents were quick to run with the notion of pious fraud. Writing in support, Michael Potemra suggested that boosters of the natural law argue “in a form along the following lines: The moral desiderata of the American political Right are not an attempt to impose religious views in the public sphere, but a desire to make public morality conform to truths accessible to pure reason.”6 But, he continued, if these truths are so easily accessible, even self-evident, “why do so many people deny them” unless we appeal to the false, not to mention unfair, accusation that either “the deniers have their minds darkened by sin” or “that the deniers are just plain stupid.”7

Accounting for your position’s failure by calling your opponents wicked or stupid lacks credibility, and others in the broader conservative milieu were quick to express similar reservations. Noah Millman doubted our grasp of human nature: “it’s supposed to be an instance of deriving social ‘oughts’ from a natural ‘is’ . . . [but] there’s another step to the argument: what is the epistemology that is necessarily prior to the determination of what this natural law is? In other words, how do we know what our essential natures are?”8 Making a similar point, Rod Dreher suggested that natural law persuades only those already committed to the “metaphysical dream” undergirding the position, and that “you have to believe so that you may understand.”9 Alan Jacobs made a similar point: “Is it really the best we can do to say ‘You fail to meet my standards of rationality; therefore I refuse to debate with you further’?”10

Not at all deterred by the criticisms, Edward Feser responded to Hart on both the form and substance of the argument, claiming that Hart “equivocates insofar as he fails to distinguish two very different theories that go under the ‘natural law’ label,” and that the ambiguity is “essential to his case” for if clarified “it becomes clear that with respect to both versions of natural law theory, Hart is attacking straw men and simply begging the question against them.”11 Distinguishing between classical and new natural law, Feser, who sides with the classical account, articulates just how diverse contemporary natural law happens to be, and how undifferentiated and un-nuanced the critics are with respect to the theory:

Where the two approaches differ is in their view of which philosophical claims, specifically, the natural law theorist must defend in order to develop a system of natural law ethics. The “old” natural law theorist would hold that a broadly classical, and specifically Aristotelian, metaphysical picture of the world must be part of a complete defense of natural law. The “new” natural law theorist would hold that natural law theory can be developed with a much more modest set of metaphysical claims—about the reality of free will, say, and a certain theory of practical reason—without having to challenge modern post-Humean, post-Kantian philosophy in as radical and wholesale a way as the “old” natural law theorist would.12

      More particularly, while Hart’s objection rests on the force and persuasiveness of Hume’s is/ought distinction as negating Aristotelian final causality, commitment to which, Hart assumed, was a sine qua non for natural law, Feser explains that one major difference between the classical and new accounts is precisely the status of final causes:

if there were a version of natural law theory that both appealed to final causes in nature and at the same time could allow for Hume’s fact/value dichotomy, then Hart’s argument might at least get off the ground. But there is no such version of natural law theory, and it seems that Hart is conflating the “new” and the “old” versions, thereby directing his attack at a phantom position that no one actually holds. The “new natural lawyers” agree with Hume and Hart that one cannot derive an “ought” from an “is,” but precisely for that reason do not ground their position in a metaphysics of final causes. The “old” or classical

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