JEAN PORTER'S VIEW OF THE NATURAL LAW as a "capacity" instead of an actual motion or teleological ordering affects her "nuanced elision" over the "close-in" teleologies or "metaphysical biology" as we discussed in our last posting. Long, 164. However, Steven A. Long points to another effect of Porter's view of the natural law as mere "capacity," and this relates to her notion of the social mediation or social embededness of the natural law. Porter, for example, talks of things such as "a variety of adequate expressions of our nature," "socially particular expressions of the natural law," "natural moralities," and so forth. Porter, in Long's view, tends to deemphasize the content of the natural law (especially in the area of the determinations*) and overemphasize the role of social mediation or social expression of the natural law, so much so that Porter comes close to talking about "natural laws" and not a natural law.
Long, 166 (quoting Porter) (emphasis added).
It is unquestionable, in fact "manifestly true," Long, 170, that, with respect to its more remote determinations (though not necessarily in its more proximate determinations), the natural law does not come down from heaven ready-made. There is no heavenly rule that requires us in the United States to drive on the right side of the road, and yet such a rule coincides with the natural law that we ought to structure or manner of living so as to minimize the loss of life and increase social order. In the concrete, both historical and social, the natural law "underdetermines the more remote precepts closer to the concrete circumstances of the person," and is therefore affected by "contingent social conventions and custom." Long, 166. We must, moreover, have a grasp of the social circumstance and setting and indeed other sciences (which themselves may be conditional and contingent) in order to apply natural law moral principles. With respect to the natural law and its application in all manner of contingencies, there is a lot of play in the joints in the area of remote determinations.
But there is a huge difference between advocating "plural moralities" versus "plural social embodiments of one morality." When is it that our accommodation to the realities of the contingent aspect of the natural law in its remote determinations turns from a theory of concretization of objective law to a theory of sheer relativism? When is it that we lose the ability to discern the accidental determinations which rely on contingent circumstances from the essential kernel of natural law? If we overemphasize the social mediation and social embededness of natural moral norms sufficiently, it may be that we end up with the view that we never have access to the natural morality since it always comes with its social and contingent cover. We may end having unwittingly traveled into the realms of relativism and moral agnosticism. It is as if we can never really know nature because it always comes dressed in the relative dress of contingent social circumstances, and since we ourselves suffer from contingent social circumstances we do not have the tools to peer under the contingent cover and see the natural law naked. Unlike the Prime Minister of Spain during Francisco Goya's time, Manuel de Godoy, we will never see La maja desnunda, but only see La maja vestida.
La maja desnuda and La maja vestida
by Francisco Goya
So to be true to a natural law theory, must have a method by which we may separate out the contingent from the essential:
Long, 168. But if we find ourselves unable to ferret out the natural from the conventional, if we say that we will never see the naked Maja of the natural law, but that we are condemned always to see the clothed Maja of the law always covered up in contingencies, then we have lost our moorings from the objective and are doomed to travel, to change metaphors from painting to sailing, in the waters of relativism in a philosophical Flying Dutchman.
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*The distinction between the various "levels" of the natural law from fundamental precepts to conclusions to determinations is treated in various places in prior postings, but one may conveniently refer to The Gordian Knot of Natural Law as a start. As Long observes regarding the nature of these determinations (and this is an important point): "[N]ot all such determinations are equally remote from the form they particularize. That some given determination is not derived from the natural law as a principle does not make it utterly contingent, for the nature of the matter varies from instance to instance." Long, 169. There are "degrees of necessitation" in determinations. Moreover, one must not forget that there are certain conclusions that are much closer to the heart of the natural law than the more or less remote determinations. "[T]he reality of determinationes, which are prudential extensions and applications of natural law principle with respect to diverse social matter, should not obscure the truth that there remain also conclusions from the natural law." Long, 170.
The intelligibilities of human nature inform social norms, and for that reason we can analyze and evaluate particular moralities in terms of their natural origins. In that sense, the Thomistic theory of the natural law is a realistic theory, and implies a version of moral cognitivism. Yet the intelligiblities of human nature underdetermine their forms of expression, and that is why this theory does not yield a comprehensive set of determinate moral norms, compelling to all rational persons.
Long, 166 (quoting Porter) (emphasis added).
It is unquestionable, in fact "manifestly true," Long, 170, that, with respect to its more remote determinations (though not necessarily in its more proximate determinations), the natural law does not come down from heaven ready-made. There is no heavenly rule that requires us in the United States to drive on the right side of the road, and yet such a rule coincides with the natural law that we ought to structure or manner of living so as to minimize the loss of life and increase social order. In the concrete, both historical and social, the natural law "underdetermines the more remote precepts closer to the concrete circumstances of the person," and is therefore affected by "contingent social conventions and custom." Long, 166. We must, moreover, have a grasp of the social circumstance and setting and indeed other sciences (which themselves may be conditional and contingent) in order to apply natural law moral principles. With respect to the natural law and its application in all manner of contingencies, there is a lot of play in the joints in the area of remote determinations.
But there is a huge difference between advocating "plural moralities" versus "plural social embodiments of one morality." When is it that our accommodation to the realities of the contingent aspect of the natural law in its remote determinations turns from a theory of concretization of objective law to a theory of sheer relativism? When is it that we lose the ability to discern the accidental determinations which rely on contingent circumstances from the essential kernel of natural law? If we overemphasize the social mediation and social embededness of natural moral norms sufficiently, it may be that we end up with the view that we never have access to the natural morality since it always comes with its social and contingent cover. We may end having unwittingly traveled into the realms of relativism and moral agnosticism. It is as if we can never really know nature because it always comes dressed in the relative dress of contingent social circumstances, and since we ourselves suffer from contingent social circumstances we do not have the tools to peer under the contingent cover and see the natural law naked. Unlike the Prime Minister of Spain during Francisco Goya's time, Manuel de Godoy, we will never see La maja desnunda, but only see La maja vestida.
La maja desnuda and La maja vestida
by Francisco Goya
So to be true to a natural law theory, must have a method by which we may separate out the contingent from the essential:
[S]ocial mediation of natural law judgment by convention and custom, while permeating, is nonetheless in principle reducible to circumstance (one implication of this is, for example, that there are per se mala acts, acts that by their natures are evil irrespective the particular conventions of any society). Once it is clear that diverse circumstances may be governed by the same principles, it seems to be the case that there is an intelligibly unifying body of precepts, and that the extension of these within diverse social matter may indeed evoke and require creativity and connatural awareness without for all that yielding plural moralities as distinct from plural social embodiments of one morality.Long, 167. We have to be able to say that "there is only one natural order," and "so only one possible 'morality,'" albeit "embodied in diverse customs and conventions." Long, 168. It is in this area that Porter's notion of natural law as "capacity," coupled with her distrust of "in-close" teleologies, hamstrings Porter. In Long's view:
[B]oth the construal of the natural law as at root a "capacity," and the reluctance to draw any limited ethical implications whatsoever from the knowledge of close-in teleology, seem likely to affect one's view of the degree to which natural law judgment is at the mercy of contingent social fact. Surely it is, to some degree, at the mercy of contingent social fact, but this may nonetheless be understood as a function of the embodiment or instantiability of moral truth within social matter. Nature abstracted as a whole is both formal and yet includes the common matter of the definition.
Long, 168. But if we find ourselves unable to ferret out the natural from the conventional, if we say that we will never see the naked Maja of the natural law, but that we are condemned always to see the clothed Maja of the law always covered up in contingencies, then we have lost our moorings from the objective and are doomed to travel, to change metaphors from painting to sailing, in the waters of relativism in a philosophical Flying Dutchman.
[I]f social contingencies render natural law an indeterminate guide; if we cannot move from natural teleology to any howsoever limited initial ethical conclusions; and if the natural law is more properly seen as a remote potency than as at root an actual impressed ordering of human nature in its rational unity toward the Good, then how, for Dr. Porter, will natural law be able to serve as a basis for social, political, and legal order--either within one society, or, more pressingly, among different societies?Long, 171.
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*The distinction between the various "levels" of the natural law from fundamental precepts to conclusions to determinations is treated in various places in prior postings, but one may conveniently refer to The Gordian Knot of Natural Law as a start. As Long observes regarding the nature of these determinations (and this is an important point): "[N]ot all such determinations are equally remote from the form they particularize. That some given determination is not derived from the natural law as a principle does not make it utterly contingent, for the nature of the matter varies from instance to instance." Long, 169. There are "degrees of necessitation" in determinations. Moreover, one must not forget that there are certain conclusions that are much closer to the heart of the natural law than the more or less remote determinations. "[T]he reality of determinationes, which are prudential extensions and applications of natural law principle with respect to diverse social matter, should not obscure the truth that there remain also conclusions from the natural law." Long, 170.
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