Natural law arguments today sometimes center around the question of gay penguins. Defenders of same-sex sex and marriage often look to the existence of “gay penguins” to support the argument that being gay is “natural.” Because same-sex affection (and sex) can be found in other animal species, human homosexuality should be deemed “natural.” Opponents of same-sex relationships (and sexuality) often retort, “That’s not what it means to make sense of ‘nature.’” For the opponents, “gay penguins” have nothing to do with whether same-sex desires are good for human persons. They have nothing to do with what falls under the purview of “natural law” or “nature.”
Advocates of homosexuality do often fail to understand the meaning of “natural,” at least as that term has been understood prior to the modern era. “Human nature,” as treated in natural law, is not just about what we can find various human persons or other animals doing. Rather, it’s about what human persons do when they’re at their best, and what helps them to get there.
On the other hand, the opponents of homosexuality above also fail to grasp the foundations of natural law. For reasons outlined below, gay penguins do matter when it comes to making sense of nature. Our observations of the world are our starting points for natural law. And even if we don’t end our understanding of natural law with these observations, we miss the significance of natural law when we argue that the inhabited world around us is irrelevant for making sense of nature.
When it comes to gay penguins, a holistic understanding of natural law does not allow for wholesale acceptance. Nor does it allow for wholesale rejection. The mistake on both sides of the “nature” debate is that they fail to really engage natural law. They take up its most recent, fragmented, substantiations, in contrast to the conceptions older and arising from the tradition rooting in and also growing out of Aristotle and Aquinas.
Errors in Natural Law
This series of posts will explore common errors in natural law today. It will explore how natural law is often used in ways that are confused and abusive. One controversial opinion at the center of these posts is: contemporary phenomenology may be closer to Aristotelian and Thomistic natural law than the forms of natural law put forward by many today. The more controversial statement, also at the center, is this: the “natural law” proposed today by many Christians isn’t really the natural law presented in either Aristotle or Aquinas. It is, rather, a Nietzschean exercise, oddly reliant upon empiricist and emotivist modes of inquiry and understanding.
Before exploring these claims, I should be careful to distinguish between three “versions” of natural law. First, we might consider “classical” natural law as that which comes largely out of Aristotle and is interpreted and developed most notably by Aquinas. Second, we might consider the philosophies of natural law which have developed over the last century, including the “new natural law” of John Finnis and Germain Grisez. Finally, we might consider the natural law which filters down into public discourse, including in magazines, blogs, and (most relevant to this series) popular culture. These various “versions” of natural law are overlapping, often disagreeing, and themselves umbrella terms for even further varied treatments of natural law. One version can be easily mistaken for another. Regardless, when talking about “natural law,” we ought to keep in mind that it can take on several forms, some more consistent with its ancient and medieval origins than others.
For the purposes of this series, I will attempt to focus on the first as a corrective to the third, while acknowledging that my own understanding of natural law is conditioned by the limits of my personal studies and the modern perspectives and inclinations which I unconsciously hold as a member of the modern world. I thus welcome the critiques and correctives of others. I will also focus on issues that arise from popular or public accounts of natural law’s implications, particularly with issues related to sexuality in general and homosexuality in particular. As a gay Catholic invested in natural law, I occupy a unique space from which to view natural law arguments related especially to homosexuality. I hope that this space can shed light on tensions that arise when I apply natural law rhetoric to the context of my own life.
I will also clarify my audience here. My critiques and concerns in this series of posts are directed primarily towards Catholic Christians explicitly committed to natural law, though it may be of interest to others. I might have written a very different series had I been focused on responding to those skeptical of objective moral claims. That latter audience may have elicited a series in defense of (or, at the least, in favor of) the natural law tradition. However, as I am considering persons already subscribing to the natural law tradition, I will focus on critiquing some of that tradition’s manifestations. Not all contemporary natural lawyers fall into the failures outlined below, but many do.
This series of posts will explore problems that could arise from popular rhetoric about natural law, with an eye towards identifying some ways in which the modern use of natural law can make the accounts of Aristotle and Aquinas malformed and abusive. Indeed, I will argue that this is the general tendency of natural law advocacy in the present culture. All of us who wish to draw upon and promote natural law would do well to keep in mind the ways in which we can misuse it (even unintentionally) to harm. Given the present culture, the only way to avoid such harm is through this awareness.
Error 1: Objectivizing Natural Law
First, classical natural law can be lost in the tendency of many today to treat natural law in an overly objective manner. Natural law, when drawn into popular discourse today, often means something along the lines of a list of rules accompanied by an objectivized conception of the human person, typically with reference to Aristotle and Aquinas. Carl F. H. Henry once defined natural law as “a body of ethical imperatives supposedly inherent in human beings and discovered by human reason.” This was largely my own understanding of natural law while an undergraduate studying Aristotle and Aquinas, and it has been the version of natural law presented to me by many of my Catholic peers.
For this version of natural law, action in accordance with man’s telos is largely determined and evaluated by compliance with that list of rules. If you follow those rules, you are acting in accordance with your telos. If you don’t, you are not. And due to their unreliability, human desires, affectivity, inclination, and what many today regard as “psychological well-being“ are largely irrelevant to the question of whether or not a human person is achieving their telos. Rather, the achievement of one’s telos is determined by submission to a sort of cold, quantifiable, and non-affective adherence to the list of norms put forward.
For example, one rule commonly put forward is that sex ought to be between a man and woman in marriage. If one only has sex under these circumstances, one is acting in accord with one’s telos. If one has sex under other circumstances (or, for many, does not have sex under those circumstances), one is failing to act in accord with one’s telos. Action in accord with or against one’s telos is unrelated to how one feels when acting or not acting thus. A resentful celibacy is preferable to a delightful promiscuity.
Aristotle and Phenomenology
This natural law–which we might call an objectivized natural law–and contemporary phenomenology may be seen almost as opposites. Phenomenology starts by simply observing the world, trying to see things as they are currently and what this might mean. It starts with perception and desire in understanding reality. In contrast, objectivized natural law begins with ”objective” claims and a list of conclusions, and the world is evaluated in light of that list. Indeed, Henry says that “natural law theory essentially opposes… the notion that moral law is subjective, evolutionary, pragmatic, or existential.” Natural law is said to begin with a list of “objective truths” to which we must subject ourselves, while phenomenology begins with the question of experience and what it might tell us about the world and how we should live in it.
When faced with these claims, the start of Aristotle’s Nicomachean Ethics should give us pause. The Ethics begins: “Every art and every inquiry, and similarly every action and pursuit, seems (δοκεῖ) to aim at some good.” Consider also the formula with which Aquinas grounds his inquiries. Aquinas’ inquiries are always grounded in something that seems true but which he will question using Scripture, experience, and the perspectives of others. Aquinas’ esse videtur is the Latin equivalent to Aristotle’s Greek δοκεῖ, “it seems.” Both Aristotle and Aquinas begin their inquiries on the level of appearance. Rather than starting with the claim that everything aims at some good, Aristotle starts by saying that it seems so.
Readers of Aristotle will often argue that all human persons seek happiness. But the Nicomachean Ethics does not begin with this objective assertion and then form a list of conclusions derived from the non-subjective (and non-relational) premise. Rather, book one says, “Verbally there is very general agreement; for both the general run of men and people of superior refinement say that it is happiness, and identify living well and doing well with being happy; but with regard to what happiness is they differ.” People agree on the general role of happiness in human life, and Aristotle pursues the meaning of this agreement, rather than starting with a non-personal truth and dictating the meaning of the human person in light of it.
Both Aristotle and Aquinas ground their inquiries with series of agreements. They start their arguments with a version of, “It seems [to people]…” or “people say…” or “this person says…” Shared perspectives with their readers begin their inquiries, even if they will end in a contrasting opinion. The praeterea of the Summa Theologica are taken seriously by Aquinas and usually qualified or clarified, rather than outright rejected. In contrast, natural law arguments today often take disagreements as their starting point. They focus on who is on the right side, rather than points of agreement and the need for clarity or qualification (in Aquinas, distinguo).
Further, the Thomistic distinguo is usually not an act whereby one is presented an opinion and must decide whether it is right or wrong. Often, it is the decision whether the opinion is relevant to the question at hand. In civil law, one might be presented with a case, given the decision and reasoning of a prior case, and asked whether that prior case applies to the current one. For the lawyer to distinguish the present case and the prior case is merely to say that, for whatever reason, the prior case isn’t relevant. Perhaps the present issue has special facts or should be examined in a different way. You might arrive at a different conclusion, not because the prior case is wrong, but simply because the context is different. The cases come to different conclusions, and yet they are both right. Differing facts and perceptions matter.
By now, it should be clear that I am suggesting “classical” natural law begins with a consideration of human experience and is evaluated largely in light of it, rather than the other way around. This isn’t to say that we can’t come to more “universal” and “objective” statements. I also do not want to argue that statements should not be made about what appears right and wrong, or that generalized claims have no value. However, as I will argue in my next post, our ability to articulate such statements is less sure than many suggest. And what results is a tradition where gay penguins do matter when making sense of human sexuality, though perhaps not in quite the way that they are used currently. Everything matters. And natural law becomes a tradition that is neither static nor dogmatic. Indeed, positions opposing natural law may turn out to be more dogmatic. And natural law might be dynamic.
In Wednesday’s post, I will explore the effects of empiricism on natural law today.
More posts in this series:
- Do gay penguins matter? (and objectivizing natural law)
- Empiricizing natural law
- Virtue is virtue, regardless of the signaling
- Nietzschean natural law
- Dehumanizing natural law (and questions of affectivity)
- Emotivist natural law
- Natural law in Catholicism
Chris Damian is a writer, speaker, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops.