He told them with typical bluntness that they should stop talking so much about the many policy issues they have taken up in the name of social justice. They should concentrate their authority on “the moral social” issues like abortion, embryonic stem-cell research and same-sex marriage, where, he argued, the natural law and Gospel principles were clear. To be sure, he said, he had no objections to bishops' “making utter nuisances of themselves” about poverty and injustice, like the Old Testament prophets, as long as they did not advocate specific remedies. They should stop lobbying for detailed economic policies like progressive tax rates, higher minimum wage and, presumably, the expansion of health care — “matters of public policy upon which Gospel principles by themselves do not resolve differences of opinion among reasonable and well-informed people of good will,” as George put it.Or in other words, fulminate, enact moral standards into law, but on poverty and justice issues--just empathize. This is utterly opposed to what a good friend of mine, a Deacon in the Episcopal Church calls "trench theology." And he has pretty good warrant for it, too. The Daily Office reading for Saturday, the same day I get the NYT Magazine? Matthew 25: 31-46:
31 'When the Son of Man comes in his glory, and all the angels with him, then he will sit on the throne of his glory. 32All the nations will be gathered before him, and he will separate people one from another as a shepherd separates the sheep from the goats, 33and he will put the sheep at his right hand and the goats at the left. 34Then the king will say to those at his right hand, "Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world; 35for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, 36I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me." 37Then the righteous will answer him, "Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink? 38And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing? 39And when was it that we saw you sick or in prison and visited you?" 40And the king will answer them, "Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me."a 41Then he will say to those at his left hand, "You that are accursed, depart from me into the eternal fire prepared for the devil and his angels; 42for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink, 43I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me." 44Then they also will answer, "Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?" 45Then he will answer them, "Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me." 46And these will go away into eternal punishment, but the righteous into eternal life.'The moral disjunction here seems pretty straightforward to me. George seems all too eager to focus attention that matters onto policing the morals not just of his co-religionists, but of his fellow citizens.
And George, who is a follower in his Natural Law beliefs of Aristotle and Aquinas, surely knows that Aristotle believed abortion to be permissible in the first three months of pregnancy and that Aquinas did not believe abortion was homicide until "ensoulment," post-conception, and that indeed the Roman Catholic Church itself did not hold his position until the early 19th Century. Thus, George is in the somewhat odd position of arguing that his position is the universal objective truth to be obtained by reason, despite the fact that neither of his two leading lights of Natural Law reasoning held the same position. Thus, we should adopt Aristotle and Aquinas's philosophical framework, but their specific failure to reach objective truth as George would have it does not undermine its universal quality. Yep. All clear and self evident. Meanwhile, on the actual Gospel imperatives? Nothing. Or rather, sound and fury, signifying nothing.
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ReplyDeleteThere are few things so artificial as "natural law."
ReplyDeleteWell said, Tobias--and a Merry Christmas to you and yours!
ReplyDeleteStill, I think you need to distinguish between one particular exponent of natural law and the idea itself.
ReplyDeleteThough the concept is much misunderstood, and its content subject to reasoned debate, the notion of a law written on the human heart, consonant with the revealed law, but universal in scope, undergirds all notions of civil and human rights. Without it we have an ethic depending strictly on adherance to a particular faith, or some utilitarian calculus, or an identification of right with whatever sovereign can make its will supreme through law.
This suggests to me that the better response is not to say, "so much the worse for natural law," but to point out the inconsistencies in, say, treating life cheaply in one context and dearly in another.
Sorry, Rick, but while the notion of natural law as you describe it has much to commend it, it does not in fact undergird ALL notions of civil and human rights. And to opine that you don't like the alternatives (at least the ones you offer) is hardly a commendation or reason to accept the "natural law" concept. The circular reason that says "individuals have a right to life because all people have such a concept written on their hearts" is ultimately a tautology, not any necessarily any more compelling than the notion of a positive divine law: "individuals have a right to life because they are so endowed by their creator." Ultimately, in the enforcement of natural law, as in the example of Dr. George, is to assert certain notions as "natural" that are not in fact written on all human hearts, and moreover, to establish a hierarchy of "rights" that is inverted from those in the gospel -- which has its own ethical foundation.
ReplyDeleteTo address your "Better response" and the inconsistencies: The issue in abortion, for example, is not about treating life cheaply in that context, but about the essentially unanswerable question of whether a zygote or fetus is a "life" that has rights. (Personally, I would err on the side of prudence and potentiality, but that's a discussion for another time.) "Natural Law" doesn't answer the question, and different practitioners of Natural Law have come up with variable answers on their own -- surely enough to demonstrate that there is no easy heart-written answer to the question of when life begins. So "Natural Law" does not really answer the question, it begs it.
"Natural Law" is simply one theory among many, and rests on premises no more evidently probable than the ancient Jewish concept of Divine Law (which also may be written on the heart as well as tablets of stone) but which is, by that very act, an artifice as well.
As you know, I prefer an ethic based on the teaching of Jesus; and I think it true not simply (or even primarily) on his authority. Some will say it is "situational" (as if that were bad or avoidable!) There are only situation, actors and acts. Natural lawyers seem too often to strive for an absolute that simply doesn't exist beyond their assertions -- and can end up, like George, in something that the law written on MY heart finds almost unrecognizable!
OK, this is what comes of amusing paradoxes. My endorsement of Tobias's good one-liner is in the context of Robert George's version of natural law, and at the appropriation of an honorable school of thought by the conservative movement, as if no other facets of natural law exist.
ReplyDeleteThe principal difficulty of applying natural law theory is, of course, determining what the content of natural law is--often one is forced into an unsustainable "universiality" requirement, which allows only for a sharply limited quantum of content, or a "right reason" approach like that of George, which falls into the trap described in the main post.
At the risk of revealing a small "c" conservative side to my thought, there is a third approach, that which I (gingerly and with a volume's worth of qualifications) favor: common law reasoning within an established tradition. As John Jay Osborn points out in his novel "The Associates" (what? How do I know how much legal background anyone reading this has?), a rule of law can either become generative, and, over time, grow, evolve and become an integral part of jusrisprudence (Ronald Dworkin calls this "fit") or it can be eroded over time, and become an isolated aberration in the law. The former can be thought of as candidates for "natural law" status--they work. The second class? Not so much.
Additionally, there is (if you'll allow me) a body of natural law that is grandfathered into the Constitution--the established rights and privileges vis-a-vis the State which were part of the given legal landscape at the time of the adoption of the Constitution, and their progeny. See, e.g., Terry Brennan, "Natural Rights and the Constitution: The Original 'Original Intent,'" 15 Harv.J.Law & Pub.Pol. 965 (1992), or my old teacher Charles L. Black's "On Reading and Using the Ninth Amendment," in The Humane Imagination (1987). Black also persuasively argued that the Declaration of Independence was a potential source for rights, as a solemn juridical enactment of the Continental Congress.
These analyses avoid many of the theological questions posed by natural law by pointing out that the natural law tradition is very much a part of the positive law tradition--that is, in the US, we crafted our institutions with natural law as an unspoken presumption, which even has a textual way in, through the 9th Amendment. As the main post suggests, that doesn't get us out of the problem of what content, and what law gets in this way--which might be worthy of a follow up post instead of this brief precis, but, yes, I meant to tease George's assumption that natural law = his political wish list, and not ridicule the ancient approach to such issues dating back at least as far as Aristotle and Sophocles, if not further back.
Oh, sorry, as to Tobias's follow up, one of the reasons I favor a common law approach is that slow discernment over time is better than decisions wrought at speed in legal matters, which are, after all, enforced by the State's power. In other words, right reason is that which over time--a long time--is accepted and which stands up to criticism. Brown v. Board as opposed to Plessy v. Ferguson.
ReplyDeleteThe question of abortion is an incredible messy one, on this analysis because the natural law tradition doesn't make it self evident when legal protection of a fetus (as opposed to protection of the woman carrying that fetus) properly begins. The traditional legal rule was birth, which has shaded into "viability," but we haven't reached a social consenus, which means that the discernment isn't done.
Thanks, Anglocat. I resonate with the "epistemic humility" inherent in the notion of an evolved common law -- how every Anglican to allow for changes in direction and admission of mistakes or wrong turns!
ReplyDeleteIt is the almost clinical purity of natural law proponents that troubles me most -- and perhaps that tendency towards absolutism and certainty made it a good fit for the Roman Catholic Church, while common law found a more commodious home in the Anglo-American tradition? I'm also very leery of anything that purports a "universal" human recognition of almost anything!
In addition, reflecting on rights rather than law (realizing this is all bound up) I have found the concept that a right in one involves a reciprocal duty in another to be a helpful tool in discussion -- which also helps to jibe it with the ethical theory I favor, based on the Golden Rule.
(And apologies for the typoes in my earlier comment!)
Tobias,
ReplyDeleteThe epitstemic humility (love the phrase!) of the common law has always been one of the reasons I find it to be a valuable approach--and it allows for correction of errors, as well as instilling an incremental approach to major changes. And yes, I think that the Anglo-American rejection of code systems in favor of the common law has something to do with that distrust of abolutist reasoning.
Rights and law relate in an imperfect, but very real way. Sometimes the duty is a norm an d not a law; other times a legal component can be inferred.
(No apologies necessary for any typos! I'm the King of them!)
"At the risk of revealing a small "c" conservative side to my thought, there is a third approach, that which I (gingerly and with a volume's worth of qualifications) favor: common law reasoning within an established tradition."
ReplyDeleteI understand that, too, as a respectable approach, traceable to Burke, the notion that, rather than relying on some Universal Declaration of the Rights of Man, as the French did, one looks more to develop the Rights of Englishmen as concretely found in a people's legal tradition.
Ultimately, to me, though, such an approach suffers from a flaw similar to "evolutionary" accounts of ethics; just as I wouldn't say that what is wrong at one time somehow "evolves" into what is right at a later time, so I'm doubtful about a scheme whereby something that is wrong in America may be right in, say, Uganda, just because it's Uganda.
In any case, there's of course a broader point that Christianity is about much more than knowing right from wrong, much less turning it all into law. We presume the law, but have to deal with our failure to keep it, and the answer ultimately comes from repentance, mercy, and forgiveness, not legislation.
Thanks, ACoP. Rick, I had a similar thought this early morning -- that the "evolutionary" approach in common law is one way of looking at things, and the opposite, which you appear to favor on the basis of concerns for lack of objective universality, corresponds to a form of Creationism.
ReplyDeleteFrom my perspective, the evolutionary theory is descriptive, and accurately so, of how law happens. The natural law approach seems more aspirational, and I certainly understand its appeal. But to take your example, there are in fact laws in the US that are at odds with laws in Uganda -- these are two very different places with different histories and cultures, in which these various laws have come to be in tension with many local and outside influences. That doesn't mean that both, or either, are accurate reflections of any natural law substrate, or divine will, or anything else. I think they are best understood and addressed in terms of their historical reality. Time as well as space is a factor -- in many ways current law in Africa reflects English law from some centuries ago.
I can understand the appeal for an objective and absolute framework applicable to all times and places -- and natural law is one such theory. However, as a theory it does not seem to me to have the virtue of meeting the evidence. As a philosophy of law, I suppose anyone is free to adopt it who wishes so to do, but when one persons adoption of this theory interferes with the rights of those who do not accept it (as in the marriage debates) I think it evident that as a theory it will not, in itself, settle matters.
Just to be clear, Rick, I believe there *is* objective (and indeed, universal, though "circumstances alter cases/longer pants need shorter braces") truth; it's our ability as sinful mortals to discern and apply the same which I question. As St Paul wrote, we see now through a glass, darkly," and I believe that the evolution I described represents an ongoing quest for a truth that was always there, and always shall be, even though we never perceive it perfectly.
ReplyDeleteYour last point, though, is one we all three agree on.