A FREQUENT ARGUMENT LEVIED AGAINST the existence of a natural law is that it cannot be empirically supported. Patently, among societies and among men, from ancient history to the present and through the foreseeable future, there have been, are, and will be myriad opinions as to what is right and what is wrong. And, so the argument goes, there would not be such variety of opinions among men as to what is right and wrong were there, in fact, a natural law. If right or wrong were determined by nature, then the wrongness of abortion or of contraception, to chose two simple examples, should be obvious. And their wrongness is not recognized among all men. Hence, there is no such thing as natural law. In short, the existence of a natural law requires unanimity among men regarding morals, and since none exists, it follows there is no natural law.
The Straw Man Argument of the Sophist: Natural Law = Unanimity in Conventional Morals
"The opposition to [the natural law theory] is as old as the theory." Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections (New York: Fordham, 2000), 5. The Sophists were the first to raise this argument against the theory against the Greek advocates of it. But we find the same form of argument among moderns. Consider the following argument in Judge Richard A. Posner's The Problems of Jurisprudence:
We might expect the argument to be sophistry since it was advanced by the Sophists. And so it is. The argument is, in a word, a straw man. The theory of natural law does not imply unanimity among men as to right and wrong. No theory of natural law has required that there be such unanimity. The natural law has been advanced in the face of such lack of unanimity.
It is important to note that the theory of natural law is not an empirically-based theory. The theory of natural law did not emanate with some sort of social survey of all men and all cultures an an extrapolation or abstraction from those to the theory that all men share in one moral code. Natural law theory comes out of a different sort of thinking than empirical observation. Indeed, the theory of natural law was developed and held by men with full awareness of the great variety of convention among men, and the great disparity of opinion on what is considered evil or good. In other words, the natural law theory developed with an understanding that it was not empirically provable, because the conventions of men were (even frequently) against the natural law. And the theory was therefore not expected to be empirically provable based upon the diverse conventions of right and wrong. Thus science (in the narrow sense as used modernly) cannot prove or disprove the natural law. To the extent the theory is based upon reason, the theory of natural law is a philosophically-based or metaphysically-based understanding of reality. To the extent that it is based upon revelation, the theory would be theologically-based. In either event, whether through reason (natural faith) or through revelation (supernatural faith), belief in a natural law is not an empirically-based theory of morality. It is not subject to the experimental method, as if we were dealing with a law of physics. The natural moral law is not a law that relates to unthinking, unfree matter; it is a law that relates to the mind, to spirit, to a being with reason and free will. To a spiritual soul that is called to union with God.
That natural law exists does not mean that all men will recognize its existence; there are men that have denied, and there will always be men that will deny, its existence. That natural law is true does not mean that all men will recognize its truth. There are men that have denied, and there will always be men that will deny, its truth. That natural law exists does not mean that it is infallibly applied. There are men that have made, and there will always be men that will make, errors in applying the natural law. That the natural law binds all men does not mean that man will follow it inerrant. There are men that have not followed, and there will always be men that will not follow, the natural law. There are simply too many factors that run interference between the heart of man that contains the natural law, its voice in the human conscience, its application in human judgment; and then there is too much weakness of will to follow its precepts with full integrity. No advocate of the natural law has ever suggested that the existence of the natural law necessarily means that it will be followed or recognized everywhere.
Though it is not part of the onus of the advocate of a natural law theory, the fallacious argument against the natural law persists, probably because it is an easy argument for the Sophist to pull out of his quiver of ready arguments. As Yves Simon relates in his The Tradition of Natural Law:
So the argument goes as follows: If there were such a thing as the natural law, then it would follow that there would be uniformity in moral beliefs and behavior. However, since it is our experience that there is no such uniformity in moral beliefs and behavior, we can infer that there is no such thing as a natural law.
The argument is, from a logical point of view, unassailable. But it is unassailable if, and only if, p implies q, if the existence of a natural law implies that all men will universally recognize it and universally act in accord with it once recognized. This is not, however, a tenet of any theory of natural law.
The natural law is a moral law, not an ineluctable law of nature, such as a law of physics. It is a law that woos, not a law that compels. It is a law that tugs, not a law that yanks. It is a law that persuades and compels with reason, not one that compels by chain or binds by rope. It is a law, not of determinism, but of freedom. It is a law not writ in mathematical equations, with the mathematical exactitude that Kant required of his moral laws. It is a law that may be suppressed, denied, rejected, unfelt. It is a law writ in one of the most unreliable and weak of media, and yet also one of the most noble in created nature: the human heart, the fallen human heart, subject to disordered passion, and to an entire panoply of impediments: vice, lack of virtue, inadequate education, physical and mental impediments, lack of wisdom or practical experience, bad customs, erroneous religious training, one's time in history, etc. The music comes through, but with a lot of static. If we focus on the static, we will not hear the tune.
That proponents of the natural law, even from the beginning, recognized that its existence did not imply agreement among men as to right and wrong may be shown by reference to Aristotle's Nichomachean Ethics:
Vacate et videte quoniam ego sum Deus. "Be still, and know that I am God." (Psalm 46:11). It follows that the same is true for the Eternal Law. Vacate et videte quoniam ego sum Lex Aeterna. Since the natural law is nothing other than the participation of man in the eternal law, we might expect that we have to be still, to vacate our minds of convention and predispositions, of the cacophony of voices other than the natural law that would mislead us, to hear the eternal law writ by the finger of God in our heart. Like God, the Deus absconditus, the hidden God, the natural law is lex abscondita, hidden law. It is hidden, not absent. The Sophist takes advantage of the natural law's hiddenness to argue that it is absent.
The Straw Man Argument of the Sophist: Natural Law = Unanimity in Conventional Morals"The opposition to [the natural law theory] is as old as the theory." Yves Simon, The Tradition of Natural Law: A Philosopher's Reflections (New York: Fordham, 2000), 5. The Sophists were the first to raise this argument against the theory against the Greek advocates of it. But we find the same form of argument among moderns. Consider the following argument in Judge Richard A. Posner's The Problems of Jurisprudence:
The underlying problem of moral objectivity [i.e., the natural law, L.C.] is that there are neither facts to which moral principles correspond (as scientific principles, for example, appear to correspond to things in nature) nor a strong tendency for moral principles to converge. A tiny handful of moral principles--for example, the unrestricted killing of members of one's own society is bad--seem essential to social existence, but [note here the implicit conclusion from the lack of unanimity, L.C.] the rest are conventional and culture-bound to a far greater extent than scientific principles are.Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1993), 236.
We might expect the argument to be sophistry since it was advanced by the Sophists. And so it is. The argument is, in a word, a straw man. The theory of natural law does not imply unanimity among men as to right and wrong. No theory of natural law has required that there be such unanimity. The natural law has been advanced in the face of such lack of unanimity.
It is important to note that the theory of natural law is not an empirically-based theory. The theory of natural law did not emanate with some sort of social survey of all men and all cultures an an extrapolation or abstraction from those to the theory that all men share in one moral code. Natural law theory comes out of a different sort of thinking than empirical observation. Indeed, the theory of natural law was developed and held by men with full awareness of the great variety of convention among men, and the great disparity of opinion on what is considered evil or good. In other words, the natural law theory developed with an understanding that it was not empirically provable, because the conventions of men were (even frequently) against the natural law. And the theory was therefore not expected to be empirically provable based upon the diverse conventions of right and wrong. Thus science (in the narrow sense as used modernly) cannot prove or disprove the natural law. To the extent the theory is based upon reason, the theory of natural law is a philosophically-based or metaphysically-based understanding of reality. To the extent that it is based upon revelation, the theory would be theologically-based. In either event, whether through reason (natural faith) or through revelation (supernatural faith), belief in a natural law is not an empirically-based theory of morality. It is not subject to the experimental method, as if we were dealing with a law of physics. The natural moral law is not a law that relates to unthinking, unfree matter; it is a law that relates to the mind, to spirit, to a being with reason and free will. To a spiritual soul that is called to union with God.
That natural law exists does not mean that all men will recognize its existence; there are men that have denied, and there will always be men that will deny, its existence. That natural law is true does not mean that all men will recognize its truth. There are men that have denied, and there will always be men that will deny, its truth. That natural law exists does not mean that it is infallibly applied. There are men that have made, and there will always be men that will make, errors in applying the natural law. That the natural law binds all men does not mean that man will follow it inerrant. There are men that have not followed, and there will always be men that will not follow, the natural law. There are simply too many factors that run interference between the heart of man that contains the natural law, its voice in the human conscience, its application in human judgment; and then there is too much weakness of will to follow its precepts with full integrity. No advocate of the natural law has ever suggested that the existence of the natural law necessarily means that it will be followed or recognized everywhere.
Though it is not part of the onus of the advocate of a natural law theory, the fallacious argument against the natural law persists, probably because it is an easy argument for the Sophist to pull out of his quiver of ready arguments. As Yves Simon relates in his The Tradition of Natural Law:
The most common objection [to the theory of natural law], which is also psychologically the most powerful, can be summed up as follows: if there were a natural law, there would be more uniformity in ideas about the right and the wrong, and in the customs and institutions which embody these ideas.Simon, 3-4. Displayed symbolically, the logic of this psychologically powerful argument is:
| p = | the existence of such a thing as the natural law. |
| q = | uniformity in beliefs of right and wrong and in behavior concerning right and wrong |
| ˜q = | lack of uniformity in beliefs of right and wrong and in behavior concerning right and wrong |
| ˜p = | the non-existence of such a thing as the natural law |
So the argument goes as follows: If there were such a thing as the natural law, then it would follow that there would be uniformity in moral beliefs and behavior. However, since it is our experience that there is no such uniformity in moral beliefs and behavior, we can infer that there is no such thing as a natural law.
The argument is, from a logical point of view, unassailable. But it is unassailable if, and only if, p implies q, if the existence of a natural law implies that all men will universally recognize it and universally act in accord with it once recognized. This is not, however, a tenet of any theory of natural law.
The natural law is a moral law, not an ineluctable law of nature, such as a law of physics. It is a law that woos, not a law that compels. It is a law that tugs, not a law that yanks. It is a law that persuades and compels with reason, not one that compels by chain or binds by rope. It is a law, not of determinism, but of freedom. It is a law not writ in mathematical equations, with the mathematical exactitude that Kant required of his moral laws. It is a law that may be suppressed, denied, rejected, unfelt. It is a law writ in one of the most unreliable and weak of media, and yet also one of the most noble in created nature: the human heart, the fallen human heart, subject to disordered passion, and to an entire panoply of impediments: vice, lack of virtue, inadequate education, physical and mental impediments, lack of wisdom or practical experience, bad customs, erroneous religious training, one's time in history, etc. The music comes through, but with a lot of static. If we focus on the static, we will not hear the tune.
That proponents of the natural law, even from the beginning, recognized that its existence did not imply agreement among men as to right and wrong may be shown by reference to Aristotle's Nichomachean Ethics:
Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not. A rule is conventional that in the first instance may be settled in one way or the other indifferently, though having once been settled it is not indifferent: for example, that the ransom for a prisoner shall be a mina, that a sacrifice shall consist of a goat and not of two sheep; and any regulations enacted for particular cases, for instance the sacrifice in honor of Brasidas, and ordinances in the nature of special decrees. Some people think that all rules of justice are merely conventional, because whereas a law of nature is immutable and has the same validity everywhere, as fire burns both here and in Persia, rules of justice are seen to vary. That rules of justice vary is not absolutely true, but only with qualifications. Among the gods indeed it is perhaps not true at all; but in our world, although there is such a thing as Natural Justice, all rules of justice are variable. But nevertheless there is such a thing as Natural Justice as well as justice not ordained by nature; and it is easy to see which rules of justice, though not absolute, are natural, and which are not natural but legal and conventional, both sorts alike being variable.Arist., Nic. eth., 1134b. As Russell Hittinger observes in his introduction to Yves Simon's work quoted above:
It is sometimes asserted that if the natural law conviction were true we should expect all men everywhere to agree upon its content. Since we do not find this universal agreement there is no such thing as natural law or universal justice. Such critics point to the diversity of moral customs throughout the world as though this were a clinching argument. Such criticism is as old as the tradition itself and, though they are rarely identified by the same name, the Sophists are still with us . . . . Yet what clamors for explanation is not the diversity of moral custom throughout the world but the universal fact that men everywhere under very different circumstances impose some restrains on conduct and defend some customs as more appropriate than others. And it is certainly something more than subjective preference for out own standards of conduct that leads us to describe some moral customs as superior to others.Simon, viii-ix.
Vacate et videte quoniam ego sum Deus. "Be still, and know that I am God." (Psalm 46:11). It follows that the same is true for the Eternal Law. Vacate et videte quoniam ego sum Lex Aeterna. Since the natural law is nothing other than the participation of man in the eternal law, we might expect that we have to be still, to vacate our minds of convention and predispositions, of the cacophony of voices other than the natural law that would mislead us, to hear the eternal law writ by the finger of God in our heart. Like God, the Deus absconditus, the hidden God, the natural law is lex abscondita, hidden law. It is hidden, not absent. The Sophist takes advantage of the natural law's hiddenness to argue that it is absent.
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