Long on Porter: Natural Law as Capacity

THE THEORY OF NATURAL LAW ADVANCED by Professor Jean Porter* in her book Nature as Reason is given significant approbation by Professor Steven A. Long. He lists in a sort of litany the many things that in his view she has got right in her extensive treatment on the subject:

• the importance of "pre-rational nature" within moral theology and philosophy;
• a non-dualist account of human nature;
• a posteriori (realist) reasoning which relies and abstracts from sensory experience;
• acceptance of the priority of the speculative to the practical, with an understanding that the speculative extends into the practical;
• an appreciation of how there is a hierarchy of natural ends that are objective, that is, that do not depend upon and are prior to choice, that are ethically significant;
• nature, prescinded from grace, has a certain relative integrity and autonomy.
  

These are solid, expectable features of a classically-based natural law theory. Indeed, her book is heartily recommended, as its merits, which are legion, fully outweigh any deficiencies:

[I]n this book Dr. Porter has achieved a penetrating and profound treatment of the natural law, one that does great justice to its speculative and metaphysical character as well as to its practical importance and unfolding. With respect to her skepticism regarding the "naturalistic fallacy" or dichotomy of nature and good; her diagnosis of the errors of dualism; her account of the essentially speculative component of natural moral knowledge; her treatment of the nature of the object of the human act; her distinction of natural and supernatural; and her sense of the essentially theological foundation of the belief in a minimum quotient of human dignity and the claim for equal regard of each human person, Dr. Porter is again and again not only correct, but eloquently and rigorously so.

Porter, 158.

Dr. Jean Porter

And yet there are parts of Dr. Porter's theory that are geared to sympathize with pluralism and with the modern notion of subjective rights that Long finds troubling or at least worthy of particular exploration and criticism. Dr. Porter actually moves beyond the mere idea of minimal practical consensus espoused by Maritain** to "an overt admission of 'plural' socially embedded natural law perspectives open to one another in dialogue." Long, 156. She also embraces the notion of subjective rights, but tries to tether them to an objective notion of the subject. To Long, it seems like a sort of Maritain redivivus. In fact, he states that "not since Maritain has a mind so rich in scholastic preoccupation attempt to marry Thomism with subjective right and modernity (and now, postmodernity)." Long, 158.

Long finds five areas of in Porter's work that merit further exploration in the context of whether the concept of natura pura, pure nature, implies a secularist minimalism.

1. Porter's view of natural law as a "capacity" for moral judgment, instead of an actual ordering to judgment;
2. Porter's discomfort with "close-in" teleologies as being morally significant which is tied to a fear of "biologism";
3. Porter's overemphasis of "the social embeddedness of our knowledge of the natural law."
4. Porter's account of subjective right; and
5. Porter's view of the role that earthly happiness apart from supernatural beatitude has in the area of achieving social and political consensus.

Our next postings shall focus on Long's analysis of these five areas. We shall focus on the presentation by Porter of the natural law as a capacity rather than an actual inclinational ordering, a distinction that Long thinks is important when the natural law interacts with society and with what Long calls "close-in" teleologies.

Long addresses Porter's tendency to view natural law merely as a sort of mere power or capacity rather than an "actual motion or teleological ordering with respect to judgment." Long, 158. The natural law must not be seen as a sort of static ability to make a judgment. It should more properly be seen as "actual inclinational ordering," an "actual impress of the divine ordering passively received, whereby every creature receives it being, nature, powers, ordering to acts, objects and the hierarchy of ends, from God, and on the basis of which he have genuinely natural reason to do or not to do." Long, 159. The problem with seeing the natural law as a mere capacity or power is that it makes the natural law into something that is in potency only, and not something that is already in act. It makes natural law into a pond concept, rather than a stream concept. It is as if Porter would put man on a summit without any dynamic predisposition or inclination, neutral with respect to gravity, rather on some sort of incline where we have the inclination already to go a certain way, where gravity is already tugging down upon us.

The emphasis upon capacity or power seems to place in a status of pure potency what is an actual ordering, articulated in the inclinations of human nature toward the connatural good for man. . . . [T]he stress upon power and capacity can be misleading, as it may seem to subtract from the actual teleological ordering of nature any genuine act that is at root inexpungeable.

Long, 160. The difference is subtle, nuanced, perhaps, but important. The difference between seeing natural law as a power or capacity only on the one hand, and not as an inclination or actual inclinational ordering shows itself when addressing issues arising out of "pre-moral" natural orderings (particularly in the "close-in" teleologies), and the effect and role of social mediatory structures in the formulation or formation of natural law.

These are the topics we will handle in our next two blog postings.

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*Dr. Jean Porter is the John A. O'Brien Professor of Theology at the University of Notre Dame.
**In the public realm, Jacques Maritain's advocated an accommodation by religious believers to modernity's concept of "human rights," a project, which in Long's view, was ill-conceived since "rights" are derivative concepts and without a hierarchical order of ends and a basis for the exercise of prudence (which are external to rights) the only result is endless bickering. See Avoiding Secularist Minimalism: Jacques Maritain, Part 1 and Avoiding Secularist Minimalism: Jacques Maritain, Part 2.