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Law, Naturally

by Edward Feser

Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism, by Robert P. George (ISI, 290 pp., $29.95)

Natural-law theory provides the principal philosophical justification of traditional sexual morality, opposition to abortion, and other paradigmatically conservative views in ethics. Princeton law professor Robert P. George is the most prominent American advocate of natural-law theory. He has made influential contributions both to the working out of the theory’s philosophical foundations and to its application to a critique of contemporary liberalism. The essays contained in Conscience and Its Enemies provide an engaging introduction to his work.

As a critic of liberalism, George is devastating. Generally attributing honest motives to his opponents, he nevertheless ruthlessly exposes the sophistries put forward by defenders of abortion, embryo-destructive research, “same-sex marriage,” and other “progressive” causes. For instance, George notes that “pro-choice” Catholics such as Mario Cuomo never explain why it would be wrong to “impose” on others their “personal” opposition to abortion, but not wrong to impose on others their personal opposition to slavery, the exploitation of workers, or capital punishment. Libertarian Ronald Bailey fallaciously ignores the distinction between something that is merely potentially a human being (a somatic cell from which a clone might be made) and something that is a human being but hasn’t yet actualized all its potentials (an embryo). Andrew Sullivan assures us at one moment that “same-sex marriage” will provide an antidote to male homosexual promiscuity — but at another, he notes approvingly that same-sex unions might lead to a more flexible attitude toward sexual exclusivity among married heterosexuals.

As the title of George’s book indicates, today it is in fact liberals themselves who are often keen to impose their personal moral views on those who disagree with them. Catholic foster-care and adoption agencies face the prospect of being forced either to place children in same-sex households or to go out of business. The Obama administration wants to require religious employers to pay for contraceptives, sterilizations, and abortion-inducing drugs. The Committee on Ethics of the American College of Obstetricians and Gynecologists has favored policies that would require doctors to refer patients for abortions and sometimes even to perform abortions themselves.

As George argues, the attack on the rights of conscience of those who endorse the traditional understanding of marriage was inevitable given existing antidiscrimination policy and the logic of the arguments for “same-sex marriage,” in which opposition to it could be rooted only in bigotry. The hope for a “grand bargain,” in which traditionalists would accept “same-sex marriage” in exchange for freedom to act in accordance with their religious convictions, was and remains an illusion. George also argues convincingly that the standard liberal view that the courts are the ultimate check on tyranny is in fact a recipe for judicial despotism — a despotism Jefferson and Lincoln warned us about.

The only effective antidotes to tyranny, George maintains, are the doctrine of enumerated powers, a sovereignty divided between the states and the federal government, and a citizenry that understands these institutions and is willing to uphold them. Yet a people given to license, and afflicted by the breakdown of the family that is its inevitable sequel, is not of a mind to see through the immediate benefits of big government to the dangers it poses to their freedom. On the contrary, where the family is weak, government is bound to become the great provider. In George’s estimation, the libertarian tendency to try to combine limited government with relaxed morals is delusional. The sexual libertinism that underlies most of the support for abortion and “same-sex marriage” is in fact the enemy of liberty, not its friend.

Though a powerful critic of liberal theory and policy, George is on less firm ground when engaged in the positive task of expounding and defending natural law. While the “natural law” label might seem to put him in the company of such thinkers as Aristotle and Aquinas, George is in fact a proponent of the “new natural-law theory” invented by theologian Germain Grisez in the 1960s and further developed by George’s teacher, Oxford legal theorist John Finnis. George downplays the differences between the approaches, but they are significant, and have made the work of the “new natural lawyers” highly controversial among natural-law theorists who stick more closely to the approach of Aristotle and Aquinas. I am one of these “old school” natural-law theorists, and one with whom George expresses polite disagreement in his book.

“Old” and “new” natural-law theorists occasionally come to different conclusions. (For instance, traditional natural-law theory holds that capital punishment is permissible in principle even if not always in practice, while Grisez, Finnis, and George maintain that it is always and in principle wrong.) But the differences in method are profound even where the theories agree in their conclusions, as they do on matters of sexual morality. In my view, the weakest parts of Conscience and Its Enemies — indeed, the parts least likely to convince readers who are neutral in the debate over “same-sex marriage” — are those in which George deploys “new natural law” arguments concerning sexuality.

For the “old” or traditional natural-law theorist, what is good for human beings, as for other living things, is defined in terms of the ends or goals they must realize in order to flourish as the kinds of creatures they are. A squirrel needs to gather seeds, nuts, and the like if it is to feed itself. This end or goal (what followers of Aristotle would call a “final cause”) is partially definitive of what is good for squirrels, and remains so even if the occasional squirrel has for whatever reason (genetic defect, say) no desire to gather seeds or nuts. Human beings too need to realize the ends or final causes of their natural capacities if they are to flourish, and this includes the ends of their sexual capacities. These ends are both procreative and unitive; that is to say, our sexual faculties are by nature “aimed” at getting us to mate, and to bond emotionally, with a person of the opposite sex. That some people’s sexual organs are damaged or worn out and some people’s sexual desires are distorted in various ways doesn’t change their natural end, any more than a squirrel that is missing a leg due to an accident or birth defect fails to be the sort of creature that by nature is four-legged.

These Aristotelian final causes are of course extremely controversial today, and the “new natural-law theory” is defined in part by its eschewal of such notions. It endorses David Hume’s famous thesis that “values” cannot be derived from “facts” (ironically enough, given that George allows that Hume’s influence on modern moral philosophy has been baneful). But if this makes the “new natural law” less philosophically old-fashioned, it also makes it more opaque. Rather than appealing to the natural ends of our sexual faculties, George rests his case for traditional sexual morality on a set of sometimes odd, and I think unconvincing, metaphors.

Hence George tells us that homosexual acts involve making the body an “instrument” rather than a part of the self. Yet homosexuals who claim their orientation is genetically based hardly seem to be treating their bodies as something external to them. George maintains that only heterosexual intercourse can realize a “one-flesh union.” But the partners’ fleshy bits can be as snugly fitted together in homosexual acts as in heterosexual ones, and with as much romantic passion. George maintains that a copulating heterosexual pair make up a “single organism,” since both are needed for procreation. This is like saying that people engaged in conversation or competitive games make up a single organism, since as individuals they cannot carry out these essentially social activities.

I would argue that such metaphors have whatever plausibility they do have only insofar as they are less direct ways of stating what traditional natural-law theorists would put in the language of Aristotelian final causes. The “new natural lawyers” would in my view be well advised to concede this.  Otherwise, in putting aside these final causes, they will have succeeded only in replacing highly controversial but clear arguments with highly controversial and obscure ones. And for all their concessions to modern philosophy, they are still widely regarded as reactionaries: They might as well go the whole hog. (Their real trouble, for us old-school natural-law types, is that they’re not reactionary.)

But that is not to say that the arguments of liberal sexual moralists are better than those of the “new natural law” theorists.  In deftly exposing the fallacies in liberal arguments, George has done an invaluable service to the conservative cause.

– Mr. Feser is the author of several books and, most recently, the editor of Aristotle on Method and Metaphysics.

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