Long on Porter: Turning Subjective

JEAN PORTER IS OF THE VIEW THAT human rights can only be defended on theological grounds. She is not convinced that human rights have any solid philosophical ground. It is not only that, in her view, rights came out of the theological tradition (largely through the work of canon lawyers resting on the work of the scholastics) and then were appropriated by Enlightenment thinkers and later secularists. But in her view there is no persuasive philosophical basis in either Enlightenment or secular thought that can support with universal approbation a concept of human rights. "I have yet to see a persuasive philosophical argument," she says, "developed on grounds that would be compelling to all, for a doctrine of human rights." Long, 173 (quoting Porter).

But despite Porter's belief that human rights lack philosophical basis, and despite its original theological basis which has largely been rejected, Porter acknowledges that we have inherited a reasonably hale notion of human rights as part of our "secular patrimony," one which has de facto become the lingua franca of international discourse. "The language of rights has become part of the shared patrimony of the race," Porter asserts. Long, 174 (quoting Porter). In her view, there is much good in this. And the pragmatic advantage of this state of affairs is justification enough to embrace, and even bed with, the notion of subjective rights. We need not care whether our rich fiancé got his money from a family of bootleggers or from the invention of the light bulb or even whether his family stole it from a bank: the important thing is that he's got the money and we can spend it if we marry him.

Long harbors doubts about Porter's attitude on human rights, and has doubts about her justification of them. Porter rejects the Rawlsian formula of "overlapping consensus" since she finds it "very strange" that different and even contradictory presuppositions on morality and religion can ever give birth to such a consensus. She is likewise not convinced that there is "foundationalist justification for a universal morality," "compelling to all persons of good will," that would give rise to sufficiently specific moral norms so as to be practically useful. She, however, sees the justification in "species-specific patterns of behavior, which provide an indispensable touchstone for evaluating moral theories." Long, 174-75 (quoting Porter).

Man is a Crossword Puzzle: How do we fill him in?
Porter's "species-specific patterns of behavior" do not provide a clue.

Despite his generally respectful regard for Porter's work, Long here unleashes on Porter. He sees Porter's reliance on "species-specific patterns of behavior" as essentially contentless, "lacking sufficient specificity to provide the foundation for genuine political or social solidarity." At most the "species-specific patterns of behavior" yield us "rhetorical meta-language of law," language which we beat our opponents over the head with in the catch-as-catch can of modern "rights talk," a "rights talk" which Mary Ann Glendon (one-time American ambassador to the Vatican and Harvard law professor) described in her book Rights Talk; A Nation Under Lawyers.

The "species-specific patterns of behavior" appears to be more a sociological, empirical construct than a jurisprudential, philosophical one. And for that reason yields no norms. Thus, "species-specif patterns of behavior" shows that parents often educate their young, but it tells us nothing about what sort of education the young ought to receive: are they to be taught theism, animism, communism, secularism? Of these latter questions "species-specific patterns of behavior" provide no guidance. Similarly, it is a "species-specific pattern of behavior" to live in "family units." Are these to be monogamous, lasting unions between a man and woman? Or are we to allow serial or simultaneous polygamy? Family unions between two men or two women? Or even more broadly life in common? Again, "species-specific patterns of behavior" do not give us answers to these important questions. It is this complete inability to specify right and wrong, good and bad which drives Long to label this Porterian construct "Maritain's argument on stilts." Long, 175.

Manifestly then, "rights" talk does not seem in itself a path toward civic peace, but toward endless disputation. . . . [A] right [to be] a just claim--and here it must be said that this is true even if the just claim in question if founded on something permanent in human nature-presupposes judgment from above regarding the hierarchy of ends, and from beneath regarding prudence (whereby one identifies the practical issue as subject to the claim in question). This is true regarding "right" of self-determination itself, which of course is only genuinely right when exercised in some ways and not others, and is only even socially tolerable if exercised within certain limits. And what sets these limits? To say "other rights" will be jejune, because each of these, too, is limited.

Long, 175. In short, "species-specific patterns of behavior" do not fill in the cross-word puzzle that is man, at best they give us some empty boxes, empty boxes which alone are meaningless . These empty boxes need to be filled in with letters that answer questions both across and and down in intelligible and right ways. The fact is that "species-specific patterns of behavior" do not allow us a vehicle by which to know what what is normative and what is not.

Focus on rights cannot get us to the issue of what is normative and what is not in political discourse or life in common. This is because the determination of just claims of right is something that is obtained by going "outside of the genus of rights," and this whether the right is objective or merely subjective. We must turn to a "contextualizing narrative provided by [a] unified teleology" of man. Long, 276. The good must be defined before the right. The right does not define the good. But Porter, largely because she seems to have despaired of a philosophical demonstrable basis of the natural moral law, seems to have despaired of finding a public basis of the good. She is, at root, fideistic, and, as such, falls into the trap that there is no version of the good, and accordingly no objective version of right, that can "compel acceptance by any rational person, whatever his or her beliefs or moral convictions." (Long, 176, quoting Porter). If reason (and a fortiori Faith) cannot be the basis for compulsion, then what can compel? Power? Whim? We are left in intellectual no-man's land. Our political discourse, then, will be abandoned of both religion and reason. Hence do we find it so famished.

What follows the loss of inscape of natural teleology and metaphysics, however, is as earlier argued the loss of an analogical point of reference for Christians and non-Christians, and the only one on which discourse and common action is feasible: namely, the truth, and the truth proportionate to human nature inclusive of the praeambula fidei.

Long, 177.

In other words, the natural law is what must be at the heart of political discourse. The natural law and nothing other. The natural law and nothing less. This means a natural law that considers "close-in" teleologies and an adequate and correct account of the hierarchy of natural ends and prudential judgment. One, moreover, that acknowledges natural theology, that recognizes God as a provident Creator. Finally, one that is open to the possibility of some order beyond the proportionate or proximate end of nature, to a final and supernatural beatific end. Reason is naturally ordered to God. Reason takes us to the praeambula fidei, the threshold, the jumping off place, of supernatural Faith in the Trinity. Law based upon reason, that is the natural law, ought to do likewise.

It is not Porter, and it is not Maritain that provide us the means of secular consensus by their fall into "rights" talk. Long's sets out what ought to be the Catholic view on political discourse:

What does this mean for secular consensus? It means first that the speculative truths implied by or contained within the natural law provide a point of analogous reference for believer and nonbeliever, and are naturally knowable; secondly it also implies that the Church is our tutor in the natural law, for the simple reason that, although the truths of the natural law are knowable apart from revelation, their full existential appropriation and applications require advertence to truths only accessible through revelation. There are truths prior to the promulgation of any secular order, both natural and revealed supernatural truths, and knowledge of these necessarily affects prudence, including political prudence. This does not mean that the Church has one univocal political program, but it does mean that the zone of charitable political discourse is a function of natural moral law and of the Gospel of Christ. It is for precisely this reason that the social and legal tolerance of political states toward the Church tends toward Christianization, and that the rejection of the Church tends toward persecution and suppression. The dynamic is no different now than it was in the early days of the Roman empire.

Long, 178.

There is, when it comes right down to it, no such thing as a "secular consensus," if by such we mean the exclusion of God as Provident Creator, and the exclusion of the possibility of God as Trinity. If we do not open up to the theonomic feature in the natural law, one that through reason sets us right up to the threshold of faith, we disembowel, or perhaps better inanimate, any hope for achieving political discourse:

The danger elsewise is that natural law becomes a juridic realm that, being construed as lacking any real publicly applicable ethical content beyond species-specific recurrent functions, is nonetheless used to ward off either the full doctrinal legacy of natural law--from close-in teleologies of bodily nature with their ethical implications, on to the praeambula fidei--or even to ward off the directive teachings of divine revelation itself. The affirmation of such a juridic realm seems, not an embrace of the full ontological density of natura as a theonomic principle, but rather a significant methodological evacuation of the ontological density of nature liable to leave the public square in the possession of a naturally minimalist and proceduralist theory.

Long, 180.

What is required? A philosophical conversion. An epistemological "re-turn." For there to be any hope of achieving the common good and of a participatory process that is just, we must abandon the philosophical darkness and hence political and jurisprudential darkness in which we find ourselves.

[T]his end requires setting aside the antirealist premises of modernity and postmodernity: We properly know not phenomenal objects, not merely linguistic tropes or usages, no mere concepts, nor even merely a concrete person in grace lacking any impress of natural order, but rather we know, even in the concrete, beings with natures.

Long, 182.

Long on Porter: Social Mediation and Embededness of Natural Law

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.

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.

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.