Why Natural Law Is ‘Hopeless’
A couple of weeks ago, David Bentley Hart published a critique of natural law theory in First Things. Hart argued, in summary, that arguments based on natural law are coherent, but not very useful for persuading members of a pluralistic modern society. The reason is that they rest on metaphysical (or “supernatural”) presuppositions that many people find implausible or explicitly reject.
…Hart is attacking straw men and simply begging the question against them. It also becomes evident that his conclusion—that it is ‘hopeless’ to bring forth natural law arguments in the public square—doesn’t follow from his premises, and that even if it did, if he were consistent he would have to apply it to his own position no less than to natural law theory.
Part of Feser’s response consists in somewhat pedantic (dare I say “scholastic”?) fallacy hunting. The real issue emerges about halfway through the long essay:
…if all Hart means to assert is that natural law theorists suppose that the metaphysical commitments crucial to their position are uncontroversial, then he is attacking a straw man. No natural law theorist claims any such thing. What they claim is merely that, however controversial, their position can be defended via purely philosophical arguments and without resort to divine revelation. And if its being controversial makes it ‘hopeless’ as a contribution to the public square, then every controversial position is hopeless.
This statement raises two important questions, neither of which Feser addresses explicitly.
First, what does it mean to say that a controversial position can be “defended by purely philosophical arguments”? Is Feser claiming that natural law cannot be conclusively refuted? If so, he’s probably right. But this means only that natural law is logically possible. Other and very different moral theories can boast the same.
Or is Feser making a stronger claim: that the metaphysical foundations of natural law theory can be demonstrated such that any rational and sufficiently attentive person would be compelled to accept them? Perhaps so: in The Last Superstition, Feser’s defends Aquinas’s fifth proof of the existence of God as “airtight.” Yet the history of philosophy since Kant indicates that metaphysical demonstrations simply do not have this compulsory authority. Provided, that is, that we don’t define rationality and attentiveness tautologically as acceptance of such arguments.
Which brings us to the second question. Does the conclusion that natural law, like other moral theories, rests on controversial and perhaps indemonstrable metaphysical commitments render it “‘hopeless'” as a contribution to the public square”? That depends what we hope to achieve in public debate on moral questions.
If the answer is consensus, then lasciate ogni speranza, voi ch’entrate. Anyone who expects to convince all people who meet a reasonably inclusive standard of rationality that abortion is wrong, for example, is deluding himself. The same goes for anyone who might wish to establish consensus that abortion is morally permissible. In Political Liberalism, John Rawls describes the inevitability of moral disagreement among equally thoughtful, well-informed people as the “burdens of judgement.” Although there’s much I disagree with in Rawls’ swork, the placement of the burdens of judgement at the center of public discourse is among his strongest moves.
Fortunately, consensus is not the only good produced by public discussion. Participants can also clarify the premises and implications of their own intuitions, learn where others see things differently, and seek unexpected areas of agreement. In short, they can learn to muddle through: agreeing where they can and tolerating when they must. And we have a procedure for mediating disputes on issues that require public action: voting. In a democracy, you don’t have to convince everyone that you’re right—only a majority.
Muddling through moral controversies by means of tentative discussion, instrumental alliances, temporary compromises, and democratic procedures is not as inspiring as the aspiration to achieve thick normative consensus. In the real world, however, it’s probably the best that we can do. Although I am unconvinced by natural law arguments, I am glad that people make them. Yet I’m pretty sure that my skepticism has other causes than stupidity or ignorance.