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.

Contra Consequentialismum: Contractual Conundrum

ODERBERG OBSERVES HOW HIS THEORY OF RIGHTS departs starkly from that notion of rights that was advanced by the social contract thinkers. His criticism is levied against those who believed that the social contract which took us out of the "state of nature" was historically real such as Hobbes, Locke, and Rousseau. But it equally applies to the likes of Kant or Rawls, who did not think that the social contract was a historical fact, but simply a convenient way of thinking of things, a heuristic device, as it were.

Falling Through the Conventionalist Trap Door

If one believes that rights originate with the social contract--whether it is real or hypothetical--one has fallen through a conventionalist trap door into a cellar of relativist morality. All morality will be a matter of convention, and there is virtually no limit to the conventions that men can make among themselves, and all morality becomes a matter of convenience. The conventions that may be imagined can easily turn out to be very repugnant, depending on the bias of the one making the contract, and the social contract theorists have come up with devices (such as the Rawlsian "veil of ignorance" and "difference principle") whose aims are to remedy the fundamental defect in the theory. A lot of these devices begin to smell like pre-existing ethical principles which are suggestive of a system of right and wrong that is given.

One of the biggest hurdles confronting a social contract theories is the issue of bindingness of the contract. Why should any person be bound by the supposed convention? If the contract is hypothetical, as distinguished from historical, the problem becomes even more apparent. It is bad enough for me to be bound by some compact made long in the past, and about which I had no say. But to be bound by a contract that is not even real, but hypothetical, seems to be an absurd limitation on freedom of action.

Some social contract theorists suggest that the social contract, whether real or hypothetical, binds because of its rationality. But that simply begs the question by placing it a bit further back and transforming it to the question: Why is the social contract rational?

To avoid the conventionalist trap, some conventionalist suggest that there is an underlying reality, "an unchanging, prior notion of individual benefit and harm from which follow the foundational and subsidiary principles governing the contractualist decision procedure." Oderberg, 65. But, if so, then it would appear that the greater reality is not the social contract, but this reality behind it.

So the social contract theorists finds himself perpetually in a dilemma. Either he takes the position that the social contract is good because it is binding or he takes the position that it is binding because it is good. If he takes the first route, he falls into the pit of conventionalism in ethics, and all is relative. If, to avoid this result, he takes the second fork, the social contract theory itself becomes of secondary importance because the greater reality is the "good" that is presupposed and enforced by the social contract. In the latter case, the social contract is "theoretically dispensable."

By "theoretically dispensable" I mean that it does no work in accounting for the origin of morality in general and rights in particular. The work is being done by a prior notion of the good and of the rights and duties flowing from that notion properly analyzed. . . . Any social arrangement, to be just and desirable, must be ordered according to the true system of morality.

Oderberg, MT, 65. Which is, of course, another way of saying that any social arrangement cannot violate the natural moral law, since that is the theory that insists that morality is not conventional, but based upon the nature of things.

C'mon guys. Isn't it time to admit the social contract theory is a failure?

"Law Like Love"--6th Myth--Law Merely Convention

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

In the next stanzas, Auden refers to the apologists of the legal positivism or legal realism as practiced by the judge mentioned in the stanzas immediately before. The judge’s view of law is not a common one, that is, it does not find support in the hearts of men. It must rely on the sophistry of the scholars, on a hyper-intellectuality that ignores the reasons of the heart. These sections of “Law, Like Love” are a clear reference to positivism in its classic sense, an almost direct reference to John Austin (1790-1859), the father of legal positivism, who sought to separate law and morals. “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

Austin and his successors such as Holmes and his ilk were able to revolutionize the public philosophy behind our law beginning in the 1860s. Austin's positivism was viewed as unsophisticated, and was given great polish by H. L. A. Hart. Everything is convention, a matter of style, a matter of no greater moment or lastingness than the latest fashion—whether to wear a medieval doublet or a Greek chiton. Or as Holmes put it one's notion of natural right is equally as significant as to whether one happened to enjoy beer, granite rocks, or barberry bushes.[i] The notion of Natural Law is just a brooding omnipresence, a philosophy to be ridiculed, Holmes caricatured. Nonsense on stilts, as Bentham scoffed. Whorish baggery, knavery is what Giordano Bruno thought of it.

Law is as superficial as the convention of saying “Good morning,” or “Good night,” veneer salutations that have nothing to do with the worship of God that drives the prayers of Matins and Compline. It must be far removed from penitent’s pounding of the breast and his deep-felt cry of Mea culpa, mea culpa, mea maxima culpa. Have these modern day sophists, in refusing to grapple with the mystery of law and caricaturing it as nonsense, replaced alleged nonsense with greater nonsense, a whore for an inflatable sex doll? Apparently, Auden thought so, for he does not linger any longer with this myth that all law is convention, and it cannot serve as the basis of his poetic gaze. He spurns it, and so he turns, with but briefest of glances, to those who posit Law based upon a historical or other determinism.

[i] Holmes, “Natural Law,” Collected Legal Papers, 311.