By Nature Equal: How Are Men Created Equal? Uniformity of the Host Property, Part 3

THE NATURAL LAW IS NOT A LAW OF STRICT OR ABSOLUTE LIABILITY. This follows from the fact that the natural moral law, though objective and sure and unchanging, is applied through the internal workings of individual men, and the subjective component of it, most singularly the voice of certain conscience, is a fundamental part of it. The natural law is not writ on stone, extrinsic, positively imposed without regard to man's nature. Nor is it easy to read and interpret. The natural law is writ in the heart of man; it is intrinsic, imposed upon man in conjunction with the very act of his having been created, and having a design and an end. His nature is his law. It is, as St. Augustine and St. Paul called it, a law in man's mind, a lex mentis, a law in man's heart, a lex cordibus inscripta. How can we disregard the mind and the heart in assessing a law of the mind and of the heart?

A law of strict or absolute liability does not regard the mental state of the actor or any extenuating circumstances that are found entirely within the actor's heart. Mens rea or bona fides is immaterial to the issue of the law's breach. The strict liability law regards only externals. Manifestly, then, the natural moral law is not a law of this kind. It is intensely preoccupied with the inner life of man, just as much as it is with the outer life of man and his external behaviors. It is both an internal and external law. And this internal aspect of it is what gives rise to human equality, since all fall under its jurisdiction without exception. The objective and subjective combination is itself suggestive of the existence of a divine Law and Lawgiver and Judge.

Since the natural moral law has an internal, subjective component, it follows us wherever we go; we are always under the jurisdiction, of this hound of heaven, and under the compulsion of making a choice sub lege, under law. Daily we are confronted with choices to be made sub lege, and these choices help determine who we are.

There is thus some truth to the existentialist's credo that we define who we are by our choices, and such a notion is found among the Stoics and Christian moral teachers who believed that one's choices defined who one was, and in fact were the fodder by which one was judged. But to the Stoic and to the Christian, these choices were willy nilly sub lege, under law. We either chose to act in conformity with the natural law, or to flout it. In the traditional view, the choices confronting man were not choices sine lege, without law. They were not choices that made law. Man was not a self-legislator. He had no authority to promulgate selflaw; an absolute αὐτό νομος was an oxymoron. Any autonomy was bounded by the pre-existing order imposed upon man by the design of his Creator. And man's choices, and whether they did or they did not conform to the rule that appeared to him to be demanded by the natural law through the judgments of certain conscience, were important, indeed central, to his moral development. These choices were those of everyman.

Traditional moral teaching, therefore, advances the notion that there is no rational human being who is outside the pale of the necessity to chose or who is hampered by lack of capacity and so unable to chose to do right as he sees it. "Circumstances do not alter our capacity to make choices that determine our individual moral state." (p. 71) It is a central, absolutely non-delegable aspect of our humanity to chose to follow (or disobey) judgments of conscience, and to inform that conscience with the content of the objective law. In so doing we determine who we are or what we want to become. This feature of the law Coons and Brennan denominate "intentionalism." (p. 72)

Since the Enlightenment, intentionalism has taken two markedly different paths. One interpretation has remained moored to the tradition and insists that there is a moral order outside self, unaffected by choice. The other interpretation, grounded on an extreme notion of moral autonomy and individualism, strayed and very soon rejected any notion of a moral order independent of an individual's choice. The Enlightenment "did not invent intentionalism," but it "radically redefined and expanded the moral autonomy of the individual, thereby giving intention a wholly new significance." (p. 72)

[S]ince the beginning of the eighteenth century, the idea of exercising moral autonomy through subjective action of the self has borne two contradictory interpretations. The pre-Enlightenment outlook . . . holds that every individual is free to embrace (or reject) a preinstitutional moral regime that is objective and authoritative . . . . [I]t understands autonomy as the capacity of the person to flout the authority of this authentic canon of good behaviors and to accept the consequences of that choice for his or her own moral identity. . . .

In contrast with tradition stands a certain version of the Enlightenment . . . that flourishes among our secular elites. Broadly speaking, it too makes each person autonomous, but now in the very different and radical sense of appointing him creator of his own moral order. The individual is born unburdened by obligation; any duties he might choose either to honor or to flout could never arise at all exception by his own consent. His subject choices create the only law to which he is answerable.

(p. 73) Coons and Brennan stand by the traditional view. While they do so, they also point to a tendency among advocates of the traditional view to use intentionality in a unilateral or a sort of diodic way in that it generally has been applied in one direction. It is regularly invoked as a necessary requirement to make an act good: it requires that the actor's intent also be good. However, the intentionality is not generally applied equally to justify an actor with good intent. Thus, intent is used to impeach a good act, and though it may be used to justify a bad act and excuse the actor from sin, it is not typically used to justify the actor who has performed an objectively bad act but with a good will.

This is not entirely consistent, and Coons and Brennan suggest that this imbalance arises from the conflation of the two meanings of the term "good." Specifically, there is a tendency to conflate the notion of good with reference to an act or behavior and the notion of good with reference to the actor or agent. The term "good" therefore is sometimes confusedly objective and subjective, when distinctions should be made between subjective good and objective good. One can have a good act performed by a good actor, a good act performed by a bad actor, a bad act performed by a bad actor, and a bad act performed by a good actor. The last placed actor (objectively bad act performed by a good actor) is in a decidedly different position from the middle two actors. If the term good is not conflated to include both act and actor, both subjective and objective components, one can see that "[i]f intention cannot transfer an evil act into a good one, it might, nevertheless, convert the actor into a good person." (p. 74) What Coons and Brennan are suggesting is that a human who follows a certain though invincibly erroneous conscience is, from a subjective perspective, a good actor, irrespective of whether the act is objectively good. "It is, then, plainly plausible that while humans have a primary obligation to seek [objectively] correct treatment of others (and self), their honest pursuit of that ideal effects whatever moral perfection is possible to the individual." (p. 75). They call this a "good intention/diligence model of moral self-perfection." (p. 76) Here is the capacity that Coons and Brenna believe to be the host property of human equality.

[I]f we judge a person's moral state by his or her commitment to seek and honor the lateral good and not by success in finding or achieving it, we have found a host property that satisfies the final criterion of the relation of human equality. The host emerges as the individual's capacity to giver internal assent (or dissent) to whatever picture of the correctness of behavior he or she is able in good faith to recognize. This means that every rational person could be fully capable of the only act that produces moral self-perfection; all could in theory, enjoy in the same degree the capacity diligently to seek this real good. . . . Here is the essence of the convention. . . .

Again, assent to this proposition does not dispense with the need for correct answers . . . A good intention requires a truth for which the actor can aspire, even when its terms elude him. The reality of a lateral order of correct behaviors is the very condition of free morality, providing the will its crucial opportunity to reject or embrace the good. . . .

(p. 75-76) The view that there exists an objective order, and that a person's subjective efforts in trying to learn of that order and to follow it as he, in the exercise of diligence and good faith, has been able to see it with his best lights, is suggestive of both a lawgiver (and a judge) as well as a law. The view of objective and subjective orders in moral matters does not sit well with a materialist, evolutionary view of the world, or in a world of pure fate. Coons and Brennan concede that belief in God may be an practical, if not necessary, adjunct or corollary to an objective/subjective view of morality which is necessary for a belief in human equality. "Belief in a cosmic rewarder of good intention may be necessary to make belief in human equality coherent." Without a belief in God, "human equality may be hard to swallow." (p. 76)

Put into simple terms, Coons and Brennan state that human equality is impossible if choice is not guided by an objective standard of wrong and right. Human equality is impossible without the existence of a natural moral law. That is why those who have rejected a natural law find themselves ultimately unable to justify a belief in human equality. Relativistic liberalism finds itself in a philosophical quandary. It cannot justify its basis for believing in human equality, and to believe in human equality it would have to jettison its relativism.

Coons and Brennan are sensitive to the misapprehension that may exist as a result of their emphasis of intention. They understand the concern against advocating a form of morality where one is "morally perfected simply by his warm heart." They ought not to be understood in advancing such a notion. They do not advocate a merely subjective intention, and insist that an actor, to be subjectively good though in error, must accept the existence of an objective moral order. "To commit diligently to the independent lateral order of correct behaviors is our definition of a good intention." (p. 88) To erase any confusion, they sponsor the use of a word that incorporates the intentionalism they advocate, one that fits within a general scheme of an objective moral order, yet recognizes the subjective component of the moral decision. They offer the word "obtension."

There should, in short, be an English verb "to obtend," which would encompass both the subjective (tend) and the objective (ob). It would identify a specific subjective act--namely, the choice to seek practical outcomes that are good according to a standard not controlled by human consent. To obtend would mean to commit to the search for the content of the real order of the behavioral good and to its realization. This mental act of the individual would be labeled an "obtension," which would make the adjective "obtensional" or "obtensive." "Obtensionalism" would be the formal term for this conception of the moral life.

(p. 88) Obtension is therefore a dual intention, an intention of two valances, a bivalent intention. Obtension is an intention both to follow the subjective promptings of a certain conscience, coupled with an intention to diligently learn the requirements of an objective moral order.