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.

By Nature Equal: How Are Men Created Equal? Definitions

THE EQUALITY OF MAN IS A MODERN commonplace, a deep-seated, deeply-held convention among all of us in the Western world: indeed, perhaps it is something that extends universally, in various degrees, among men as a fundamental moral truth, one may almost say a self-evident one. "We hold these truths to be self-evident, that all men are created equal" rolls off our tongues as gingerly as the Twelve Tables rolled off Cicero's, or the adhān off the lips of an Arabic muezzin. Pace Jefferson and his mellifluous Declaration of Independence that continues to inspire with its rhetoric and its doctrine, that men are created equal is not, in a strict philosophical sense, self-evident, i.e., a fact that requires no proof. As the German jurist Arnold Brecht put it:

Sometimes the eighteenth-century argument that all men . . . are "born equal" is still heard today in the somewhat more precise form that . . . all men are by birth "in the same plight." . . . This [argument] needs proof in order to be scientifically acceptable. It is not self-evident. On the contrary, it obviously needs correction or modification, for it would prove much more than merely the equality of human beings: all animals are in the same plight from birth.

(p. 38, quoting Arnold Brecht, Political Theory (Princeton: Princeton University Press, 1959, 309-11)) Human equality would appear to be a moral truth; it does not appear to be an empirical truth at all, but a spiritual or philosophical or moral one, one beyond the pale of one-dimensional materialism. "Moral powers are nonempirical." (p. 38) Science shall never convince us of man's fundamental equality; its only suggestions are, as we shall see, constrained by their materialism, trivial, and so unable to answer the question in any satisfactory sense. Modernity's insistence on human autonomy, on existential self-definition, has made the problem of discovering what it is that makes us equal even worse. If we have the power to define who we are (existence over essence as these folks insist) do we share anything at all that may be said to be equal? Yet we insist, with a fervor and zeal akin to faith, and we maintain and declare, no less than the Jew his Shema Yisrael or the Muslim his Shahada, that men are fundamentally equal. And if one were to say in public that men are not equal, but by nature unequal, he would be treated as a pariah, right next to a Holocaust denier.

But the problem persists: How many of us, despite our mumbling of this credo, can state or express in what this fundamental equality consists? Is it reason? That is the most frequent candidate. But are we not unequal in the gifts of reason? How can something that is so manifestly variant be the source for equality? Why should an Einstein be treated equal to a man with a lobotomy? What is often even more inexplicable, is that those most insistent on equality of result (those who push for prescriptive or normative equality), such as the liberal egalitarians and relativists like John Rawls and Ronald Dworkin, have the least to say about what it is that makes men equal and the least justification for their leftist political agendas. What they say is either banal or is simply uncritically assumed. In some cases, they admit they are still looking for that elusive descriptive equality upon which their prescriptive political policies supposedly rely. (John Rawls famously wrote "we still need a natural basis for equality." Theory of Justice (Cambridge: Harvard University Press, 1971), 508 (p. 24))

And then there are the outright deconstructionists, modern sophists and cynics, who deconstruct, that is destroy, by prying, prying, and prying shared values until nobody believes anything anymore.

Guided by a fascinating book entitled By Nature Equal: The Anatomy of a Western Insight (Princeton: Princeton University Press, 1999) by Berkeley Professor John E. Coons and Villanova Law School Professor Patrick M. Brennan, we shall explore two men's answer to this important question. What is it that we mean when we say that all men and women are equal? They seek the answer, not in sociological, political, or empirical, or idealistic ways. They seek, and they offer, an ontological, philosophical and universal definition of what we mean by human equality.

Professor John E. Coons

We shall spend this first blog posting addressing some important distinctions and definitions.

First of all, we must come to terms with the notion of relation. Coon and Brennan insist: "Equality is, indeed, some kind of relation." (p. 8) What is a relation? It is something real (that is something more than just a word, something extra-mental) that arises only between two or more persons. If there is just one of us, there is no relation between us and another, and it is senseless to talk of equality. One cannot be equal with himself, he must be equal in reference to another. That is why equality, if it exists, must be a relation. Relations of all kinds exist. For example, if I become a father, then there is a relation between my daughter or son and me that did not exist before I became a father. If I become the owner of a house, a develop a relation with a thing that did not exist before. This relation of father-daughter, or of homeowner, is something real, something more than a concept in one's mind. Similarly, there is a relation between me and every other human being, a relation of equality. Though it is something different and other than the ontological persons between which it exists, a relation is nevertheless something real, a tertium quid, a third thing between two or more persons. One has to accept the existence of a relation, despite the fact that it eludes classification, resists analysis, and even (among the philosophical nominalists such as William of Ockham) belief as something real. And yet, Friar Bill, it moves, e pur si muove!

With respect to the term equality, we must first distinguish between two general types of equality: descriptive equality and prescriptive or normative equality. The difference between these two kinds of equality is perhaps the difference between is and ought. Descriptive equality is an equality that is among men. Coons and Brennan adopt a definition by Peter Westen for descriptive equality when they define it as the "comparitive relationship that obtains between two or more distinct persons or things by virtue of their having been jointly measured by a relevant standard of comparison and found to be undistinguishable by that standard." (p. 24) (citing Peter Westen, Speaking of Equality: An Analysis of the Rhetorical Force of "Equality" in Moral and Legal Discourse (Princeton: Princeton University Press, 1990), 39) On the other hand, prescriptive equality attempts to answer the question of how humans ought to be, not how humans are. Thus, when people talk of equal distribution (such as when then-Presidential candidate Barack Obama told "Joe the Plumber" "I think when you spread the wealth around, it's good for everybody") or affirmative action so as to equalize for past or alleged past injustices or grievances we are dealing with prescriptive or normative equality. The only equality we are interested in here is descriptive equality. What relation is it that exists that makes us equal? Not what can we do to make us equal (If such a thing is even desirable)? We are not interested at this time in going down the path of egalitarianism or its justification, its merits or its demerits.

When it comes to descriptive equality we must also distinguish between false, trivial, double, and human equalities.

Professor Patrick McKinley Brennan

A claimed equality is false when it is an attribution that is made to an individual, isolated self, a singleton, an autonomous individual outside of any relation. This follows from the view that equality is a relation. There must be two or more persons of which equality speaks for it to be true; otherwise, it is false. Thus, the statement: "Equality is the capacity of an individual for reasoned choice" (p. 10) This is a statement of false equality because it is not made in reference to another person.

A claimed equality is trivial when it refers to a property that is possessed (or that is not possessed) by, or is common to, two or more persons without reference to degree of such possession. We may say that two people possess reason, or wealth, or any other quality or thing. While these are statements of equality they end up being trivial because it turns out that, more important than the invariant quality of possession, is the variable degree of possession, and the degree of possession is almost always is unequal. It is the proverbial tail (equal possession) wagging the dog (unequal degree of possession). This means that the fact of possession is trivial in comparison to the degree of possession and so becomes trivial as an expression of equality. So when we say that the village idiot and Albert Einstein both possess reason and therefore are equal, it is manifest that the degree of reason varies wildly between them to the point where the difference in degree in reason between them pales the common possession of reason and so the shared or common relation is trivial. The equality between them is likewise trivial. To be adequate as a description of equality, the quality or capacity we reference must be one that is equal in both possession and degree. That is, it must be a double equality of possession and degree, and not a single equality of possession alone. Which brings us to our next definition. But before we go there, we need to pause and address a popular error among liberals in the issue of descriptive equality.

Liberals (or perhaps just good Kantians) such as John Wilson, or, more notoriously, Supreme Court Associate Justice Anthony Kennedy have often pointed to the asserted ability of man to be autonomous as the source for descriptive equality. Thus men are equal because, in the words of John Wilson, "every man has an equal ability to frame his own world view," a claim that is "a factual one." Or in the words of Associate Justice Kennedy in his opinion in Planned Parenthood v. Casey:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment ["equal protection"]. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Can such moral relativism, such extreme autonomy be the basis for human equality? The short answer (assuming such moral relativism even exists or makes sense) is "no" because the descriptive equality asserted is a false equality. It is a false equality because it relates to an individual equality, not a relational one. Moreover, even if somehow re-written so as to be relational (e.g., the common possession of all individuals to define the good for themselves), it is a trivial equality because it is a single equality and not double. It is an equality the degree of which varies among men:

If rational humans were free to invent the terms of morality, there would, indeed, be a form of equality existing among them. Unfortunately it would be a wholly trivial equality . . . . [Such an equality] among autonomous selves is one of possession only; it is a single, not a double equality. Indeed, if humans all have this crucial property--this capacity to justify a choice simply by making it--they will have it in wildly varying degrees. . . and these abilities are dramatically variant. If value is self-determined, those who by nature or circumstance are relatively more creative in devising alternatives will have a wider set of life options. Humans will not be equal, but unequal.

(p. 30) The homosexual libertine, who answers to no one but himself, will be invariably possess more of this autonomy than a mother who takes care of her household of five children. (Here one sees how perverse it is to build a notion of equality on an alleged autonomy to define one's morality. Such a notion rewards the vicious and the selfish and punishes the virtuous and the selfless.)

A double equality is an equality that is shared or possessed by two persons in the same degree. Thus we have a relation of equality both of possession and degree. Two Olympians who tie for first place in the 100 meter dash have a relation of double equality in the relation of swiftness, as they possess the property in equal degree. While such double equalities are common among limited persons or groups (for example humans with an IQ of 100), they are often inadequate when applied to the race as a whole (where there are humans with an IQ of below 100 and humans with an IQ of above 100). Often, a double equality can be adduced among all humans that is trivial (e.g., that all men have an X chromosome).

Human equality is a special form of double equality that Coons and Brennan seek to find, and claim that they do find in their book. Ultimately, they identify human equality as the "relation arising from the uniform capacity of rational persons to perfect themselves morally by committing to the search for the real lateral good."(p. 13)

This definition of equality will be the focus of our next few blog postings.