Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, May 29, 2010

By Nature Equal: Human Equality and the Natural Law, Last Possible Ally Fails

THERE WAS NO HOOK IN HEAVEN OR ON EARTH upon which moral philosophy could hang, nor any foundation in the world above or the world below upon which it could be built. So was Kant's view of things. The only source of morality for Kant was in the mind, pure reason, a reason distilled of most everything that man, at least while in his body, considers important in this life and, when dead, is sure to consider important in the next. Unguided by the natural desire for happiness (eudaemonism), or the lessons to be learned from a reality which was unknown and unknowable, or the yearnings of man toward heaven or lasting meaning, it was a morality of raw duty.

Kantian ethics took the world by storm, and, in a way, eventually even breached the redoubts of the natural law. Largely based on the work in moral theology of Catholic moral theologian Germain Grisez, the Oxonian (and Catholic) John Finnis promulgated a full and plenary theory of the natural law in his book Natural Law and Natural Rights. What is unusual about the theory of natural law that Finnis advances is that it is not based upon any teleological view of nature. Nor is it based upon a metaphysical realism. Yet despite these fundamental aspects of Thomistic theories of natural law that it lacks, it claims to be Thomistic in inspiration and heritage. (In an earlier posting, we discussed John Courtney Murray's view that a teleological view of nature and a realistic ontology are two fundamental requirements of a natural law theory. See The Four Requirements of a Classical Natural Law Theory.) Rather, it claims to advance a theory of objective morality without these ontological or epistemological suppositions. It accepts as a philosophical fait accompli the Humean critique that has come to be known as the "naturalistic fallacy." That supposed fallacy frequently heaved against the classic or traditional notion of natural law is that such theories are fallacious because one cannot argue from "is" to an "ought," from description to prescription, from fact to law.

John Finnis, Author of Natural Law and Natural Rights

Accepting as a given the Cartesian, Humean, Kantian philosophical presuppositions, these modern theories of natural law "locate[] the moral 'ought' somewhere between heaven and earth--in a reality at once familiar and obscure, the self-evident principles of practical reason." (p. 132) On the American side, the principal proponent of this new theory is the Princeton Professor, Robert P. George. The new natural law theory has been criticized as being Kantian in inspiration. One of the most articulate critics of it from the traditional side of things is Russell Hittinger. (See, e.g., his A Critique of the Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987). In any event, Coons and Brennan refer to these new theories of the natural law as "Integration" theories.

It is difficult to explain the Integration theory of natural law in a nutshell. But here it goes. Essentially, the new natural law theory eschews metaphysical or ontological suppositions. It starts with a list of self-evident pre-moral goods, usually numbered as seven: (1) life, (2) knowledge, (3), play, (4) aesthetic experience, (5) sociability (friendship), (6) practical reasonableness, and (7) religion (understood very broadly). These self-evident goods are incommensurable; that is, there is no way to prioritize them or hierarchize them in any normative sense. Practical reasonableness, itself a self-evident good, can only chose to emphasize some over others, but can never work against one in favor of another one. So the possible emphasis and combination of these goods in the effort at human flourishing is virtually infinite and so allows great freedom. These basic human goods are pre-moral. The "first principle of morality" is that in one's action regarding these goods, one must exercise practical reasonableness. (The use of practical reason is both a self-evident, pre-moral good, as well as the first principle of morality.) To act against practical reason in the selection of these self-evident goods is to step into immorality. In an effort to accommodate the proper mix among the fundamental goods, one should also strive for "integral human fulfillment." This assures that all the basis human goods receive at least some hearing. Coons and Brennan do not like this last requirement: they view it as "a theoretically unmotivated and unallowable ghost of moral theories past." They also believe it to "look surprisingly like the human nature of traditional natural law theories," or perhaps even like the "ideal Christian.") (p. 135) The reason Coons and Brennan distrust this last requirement is because it impinges upon their pet convention of human equality.
Integral human fulfillment may not lay down a detailed template of the perfecting human life, but its prescriptive patter of choices that is necessary to moral fulfillment raises doubts of the possibility of equality.
(p. 135). The proponents of the Integration natural law theories accept men as equal in dignity in the sense that they are subjects of human goods and as a result of the rational capacity for self-determination by the exercise of free choices. (p. 135) While Coons and Brennan would not disagree, they state, accurately enough, that this human dignity and so human equality is a single equality. A single equality is one that humans hold in possession and not in degree. The convention of human equality that Coon and Brennan, like a couple of Procrustean professors, seek to impose upon any theory of law, however, requires this fundamental human equality to be based upon a host property that involves a double equality, that is an equality of both possession and degree. (For more of this distinction between single and double equality, see By Nature Equal: How are Men Created Equal? Definitions.)
Persons are equal in dignity, George tells us, "as loci of human goods and of rational capacity for self-determination by free choices." Anyone with rationality enough to be self-determining and to realize the basic goods in his or her moral person is a locus of dignity. But as we have emphasized, rationality, and with it the knowledge necessary to appropriate the basic goods, varies among persons. All rational persons, then, are equal in possession of rationality, in their possession of the capacity to achieve human good, and their possession of human dignity; this, though, is merely a single equality, and George cannot plausibly claim that this meets the condition of a double relation founded on a uniform rational capacity to instantiate basic goods. If dignity hinges on the rational capacity to achieve basic goods, conventional human quality again fails.
(pp. 135-36) (quoting Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon, 1993), 39). So at the end of the day, Coons and Brennan do not find an ally in the Integral theories of natural law.

As Coons and Brennan ostracize themselves from Integration, Classic, and Common Sense theories of the natural law, their friends among the natural law school are getting smaller. Who are their friends? Lonerganians. Are Longerganians advocates of a natural law theory? That may be doubtful. These issues will be addressed in our next blog posting.

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