Objections to Natural Law Theory PDF

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Lecture on objections to natural law theory...

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LECTURE 2 – OBJECTIONS TO NATURAL CLASSICAL LAW Overview:       

Common Objections Disputed Theology Naturalistic Fallacy Moral Nihilism Moral Relativism Useless Conclusion

OBJECTION 1: Foundations in Disputed Theology In particular that of the Catholic Church. Important as Aquinas was a Saint, Member and Minister in the Catholic Church. Historic (St Aquinas) and continuing links between natural law theories and the Catholic Church: ‘Law is a rule of conduct enacted by competent authority for the sake of the common good ... All law finds its first and ultimate truth in the eternal law. Law is declared and established by reason as a participation in the providence of the living God, Creator and Redeemer of all’. If NLT is basically just Christian theology, most of us will not find this persuasive as not everyone is religious in this way. So can we divorce NLT from Catholicism and (Catechism of the Catholic Church, 2000, 1951). Can Natural Law be divorced from Catholicism? Yes: →

Likewise, I refer occasionally to the Roman Catholic Church’s pronouncements on natural law… But, while there is place for appeal to, and deference to, authority, that place is not philosophical argument about the merits of theories or the right response to practical problem, and so not in this book. My arguments then, stand or fall by their own reasonableness or otherwise (John Finnis, Natural Law and Natural Rights, Preface of 2 nd edition)  Finnis is one of the most renowned contemporary theorists/authors in this area.

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At a practical level…proponents of natural law argue in favour of unilateral nuclear disarmament and against contraception, and any sexual activity outside of the heterosexual marriage, abortion (and many common practices within it) – including all lesbian and gay sexual activity (Introduction, Patriarchal Religion, Sexuality and Gender, A Critique of New Natural Law, Nicolas Banforth and David Richards)

No:

Contemporary theorists still apply in a way in line with Catholic doctrine (example above) – so in theory maybe its possible, but in practice it almost never happens (at least this is the critique made by some people) It shouldn’t: Adrian Vermeule: subscriber to NLT and Catholic but thinks that because oft his that we should not divorce natural law theory from Catholicism, that one follows the other and they are not just linked,

but wants the whole state to be Catholic  idea of ‘common good constitutionalism’; under this vision he thinks the state should enforce all doctrines related to Catholicism (‘legislate morality’). NL theorists ask whether and how law can give genuine reasons to act  the partial answer is that law should reflect universal moral values  Catholic doctrine is not the only, or even the most important, doctrine of wat moral values are (so it is possible to divorce and we should do so). OBJECTION 2: Natural Law Theories commit the naturalistic fallacy 1. ‘If it is natural it must be good (appeal to nature fallacy)’  natural law theories assume that nature is good, that natural law is good: but this is a fallacy because many ‘natural’ things which are not ‘good’. This can be extended to Aquinas, Aristotle, Plato. 2. Hume’s Law ‘The is/ought’ problem: there is a confusion between what the law is and what the law ought to be. So we agree that the law should not distinguish between races for example, but this is what the law ought to be – ‘To ask the evaluative question of what law ought to be is to ask about its legitimacy, the nature of its ‘binding force’ (why one has a duty to obey) … such an exercise, valuable though it may be, is inherently faulty. It confuses description (law’s actual existence) with prescription (the evaluation of law as good or bad, legitimate or illegitimate…) … This principal criticism … is that [natural law theories] stray between the logically unconnected fields of meaning of ‘is’ (fact) and ‘ought’ (value), often called ‘the naturalistic fallacy’. (pg. 25-36 textbook Penner) ‘Nature’ is really good: -

Natural law is established by God (at least in Christian theology), and God is summum bonum (the highest good) especially in St Aquinas and St Augustine. In Aristotle, the real state of humanity is eudaimonia or ‘flourishing’, the perfect person who achieves the final end is a virtuous person, and our true nature is virtue.

So for both, they conceptualise nature as good – this is exactly their point and so objecting on these grounds may not be interpreted to work. Is/Ought fallacy: -

Legal statements are ‘ought’ statements: they tell you what you ought or ought not to do; The fact that a judge or legislator tells you what to do or not do is not an inherent/sufficient reason not to do or not do so, Natural law theorists take the legal ‘ought’ seriously By contrast legal positivists reduce the legal ‘ought’ to ‘is’  this is what you do according to the what this or that official tells you to do. They say the law is whatever XYZ says it is.

OBJECTION 3: Morality does not exist (METAETHICS) Moral Nihilism: moral beliefs are not objectively verifiable -

No God out there to say what is right or wrong No world of forms (Plato) to stack reality up against Natural law is just ‘nonsense upon stilts’ (Bentham) Morality is not scientific Morality is just learned and socially constructed Morality is just an evolutionary process

Against Moral Nihilism: Denial of morality can be reformulated as a moral position itself  assertion of freedom from blameworthiness  ‘It is neither wrong nor right to drown a cat’ = I should not be blamed if I do drown a cat  However, the presence or absence of blameworthiness is the paradigmatic moral question. Therefore MN is inconsistent within itself. OBJECTION 4: Moral Relativism Different people think that certain things are right/wrong: different cultures for example. The content of morality depends on where you live, your religion, etc. Moral Relativists believe there is no universal moral standard, just relative ones. This means that this claim by NLT (Aquinas) was making for natural law is wrong  there are different natural laws depending on factors like cultural convention. The good in moral relativism:   

Cultural humility Anti-colonial mentality Cultural introspection

However against moral relativism: societies are not homogenous. People within cultural systems have moral values which differ – it is not possible to group entire societies together in this way. The fact that different people in the same society think that one action can be both right and wrong, means that if moral relativism was true, then the same action would be both right and wrong in the same society  this is conceptually incoherent: the same thing cannot be both right and wrong in the same society. We need something we can use as a cross-cultural moral standard used to judge societal action and individual action. OBJECTION 5: Natural law is useless “Much of modern law … takes the form of detailed regulations whose content and form bears no obvious relation to any particular legal theory … ethical legitimacy hardly seems to arise, and if it does at all, only on the basis of some unproven claim that these regulations further the ‘common good’, or by reference to the legitimacy of their source (democratic, constitutional etc).” (textbook Penner pp 37-38) The law interferes with personal and institutional freedom, even through mundane regulations  so what justifies this interference? In the end, this interference with freedom that the law always presents, is where natural law theories and theories about what is right/just/the limit of law come in – these are the kinds of questions that NLT and oral theory can help us to answer. IF we have a theory which can help us assess the scope of this freedom then NLT is not useless as it helps u to do this. Saying it’s useless ignores the fact that many people have used the arguments of Aquinas and such to change things in our society (e.g. MLK jr.): “One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a manmade code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.” (Letter from Birmingham Jail)...