One can neither deny nor question the
natural law’s persuasiveness except by asking questions, conducting
inquiries, achieving understandings, reaching judgments, and making
choices—all of which are the natural law at work.
In conversation with two prominent public
intellectuals, both having significant influence within evangelical
Protestant circles (and beyond), I was asked if natural law theory ever
persuaded anyone not already on board. Both are sophisticated thinkers,
little prone to the knee-jerk hostility against natural law occasionally
found in
certain evangelical sub-communities, and I took their query to indicate
two reasonable concerns. First, the observable fact that debate doesn’t
always persuade committed opponents, and second, the natural law’s
unfashionable reliance on reason and nature, commitments beating hasty
retreat in the face of postmodern suspicion.
Is the natural law persuasive?
The question posed is not whether the natural law works as a
theoretically coherent account, but whether it can convince anyone,
especially now, in our current cultural climate. Not, “is the natural
law true?” but, “will anyone buy this theory?”
Can natural law persuade?
The first concern is hardly unique to natural law, for any theory
suffers its opponents and detractors, and debate is always slow and
partial in winning over skeptics. The natural law doesn’t suffer any
unique flaw in this respect. But while the concern would seem to apply
to any and all ethical theories, natural lawyers ought to embrace the
potential objection, allowing it full weight, and for two initial
reasons. First, we claim that the natural law is not a theory. Certainly there are various accounts and theoretical articulations about
the natural law, but natural law is itself always operative, always
forming the way(s) human subjects operate, query, reason, judge, and
choose. Hadley Arkes recounts the mistake of those who ask about his theory, forgetting that the grounds of reasoning and judging are
the principles of natural law; when people asked about his theory,
“they suggested a detached onlooker standing by, watching the theories
whizzing past. And somehow they manage to make judgments on just which
theories or fragments they find plausible or implausible, true or
false.” But persons are able to make judgments of truth or falsity only
because the natural law is already operative—it is the light of reason
itself. Of course, if that is true, then failure to persuade would be
noteworthy. Second, we claim that our principles are self-evident, and
so it’s fair to press the failure to persuade.
An adequate grasp of the natural law requires a first-person
perspective. Natural law is not an “it” or a “force” or a “theory”
existing out-there or in-here or up-there, but rather is the operator of
our own subjectivity. As Germain Grisez articulates
in an early essay, “law is not a constraint upon actions which
originate elsewhere . . . rather, is a source of actions. Law makes
human life possible. Animals behave without law, for they live by
instinct without thought and without freedom. Man cannot begin to act as
man without law.” That is, natural law is the dynamic source of our
actions—including the action of reflexive theorizing about the source of
our actions—and the source by which we reason or judge. “It” is not
distinct from our own subjectivity, which is why Arkes responds
incredulously to the query about his theory. Asking about his theory is
tantamount to asking if humans have subjectivity. Well, who wants to know, and by what power do they want to know? It’s not a theory, it’s him.
The first-person aspect of natural law explains also the appeals to the self-evident. As John Finnis articulates in Fundamentals of Ethics,
“ethics is not deduced or inferred from metaphysics or anthropology,”
and principles are self-evident precisely in that they are not deduced
from previous principles, but in no way is ethics merely intuited or
asserted or mystically known. Rather, by adverting to the object(ive)s
of human action—the for-the-sake-of-which rendering action
intelligible—we can attend “to precisely those aspects of our experience
. . . in which human good(s) became or can now become intelligible to
us.” In other words, we can understand human goods rather than deduce
human goods, but while understanding is not an inference it nonetheless
involves insight into our experience, and without the experience and
insight we would not understand. Basic goods are not deduced or derived,
for they are self-evident, but there are conditions for our
understanding of the goods.
The condition of coming to understand basic human goods, which serve
as grounds for reasonable action, is a first-person understanding of our
own reasons for acting. That is, we have to understand why we act and what we
seek when we act. If an action is intelligible, that action will have
some grounds which are understood as worth seeking in themselves, not
requiring justification or demonstration on the basis of some other
good(s). Understanding this entails self-understanding, adverting to the
reasons for acting always operative in our knowing and choosing. Such
self-understanding, Finnis explains, is not simply “opening one’s eyes”
to take a look at oneself, nor is it an “intuition”; it is an “insight”
gained by “reflecting on one’s own wanting, deciding and acting,” which
occurs not by “peer[ing] inside oneself” but by noticing and
understanding one’s own reasons for acting.
Space does not allow me to flesh out the entire account of natural
law, obviously, but the first-personal element responds to both concerns
of my two interlocutors. First, natural lawyers needn’t convince or
persuade anyone, for in an important way natural law cannot be
proven—law is the condition of intelligible action. Instead, our task is to have our interlocutors pay attention, not to us and our arguments, but to themselves.
My failure to persuade someone of the natural law happens only if they
(a) will not pay attention to themselves, or (b) if they do not
understand themselves. Of course, I have neither power nor
responsibility over another’s capacity to know themselves, so I’ll
politely decline any such obligations for my ethics. In fact, since
natural law is pre-theoretical, depending not on a system of concepts
but rather on self-understanding, the more I grant that a theory must be
able to persuade, the more that alternative theories such as deontology
or utility fall while natural law survives, for they actually must
provide a proof whereas I make no such claim, asking only for my
interlocutor to advert to his performance.
Second, while I cannot prove the natural law—it not being that sort
of thing—I can defeat objections to it through the method of retorsion
or performative contradiction. The natural law is not a theory but
rather the principles constituting our subjectivity, or as Grisez put
it, there is no man without the law. The natural law thus constitutes my
first-personal subjectivity, and, moreover, I come to understand the
law through first-personal reflection on my reasons for acting and
judging. While grasping subjectivity qua subjectivity cannot be
granted by another, neither can subjectivity be denied without
incoherence. Here I mean something more than logical contradiction, for
as absurd as the statement “I lack subjectivity” is, the bizarreness
occurs when I argue or judge that “I lack
subjectivity” or “There is no natural law.” The natural law is both the
power by which subjects judge (Arkes) and the understanding of
intelligible reasons (Finnis), so the performance of judging or offering intelligible reasons thereby confirms the natural law. As Finnis claims in Natural Law and Natural Rights,
“one who makes such an assertion, intending it as a serious
contribution to rational discussion, is implicitly committed to the
proposition that he believes his assertion is worth making, and worth
making qua true. . . .”
One can neither deny nor question the natural law’s persuasiveness
except by asking questions, conducting inquiries, achieving
understandings, reaching judgments, and making choices—all of which, if
understood as the operations of our own subjectivity, are the
natural law at work. And if one denies that one inquires, or
understands, or judges, or chooses, one either contradicts what one is
doing or one really does not inquire, understand, judge, or choose, in which case persuasion is not available to that sort of creature.
With respect to postmodern suspicion, this articulation of the
natural law grounds itself in no big claims about Reason or Nature or
Metaphysics. Although every account intertwines itself with big
theories, natural law is not grounded in them, for it claims no
foundations from which it is derived, pointing only to the easily
observable (even by postmodernists) data of their own questions and
judgments and the fact that the more someone suspects and argues against
my account the more they refute themselves.
The natural law is persuasive because it requires nothing more than a
willingness to advert to one’s own self, although, to be sure, even
Socrates knew the difficulties in getting people to meet themselves for
the first time.
R.J. Snell is associate professor of philosophy at Eastern University and a research director of the Agora Institute for Civic Virtue and the Common Good.
