Natural Law

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NATURAL LAW

Central to natural law theories of morality is the idea that there are guiding principles for human conduct higher than those of personal self-interest, particular social custom, or positive governmental statute. Such a higher law is characteristically thought to be objectively true, accessible to reason, and universally obligatory. This law is natural in the sense that the goods it defines are logically related to the rational nature of human beings. Though many advocates are theists, typically from the Catholic tradition, who ground the content of natural law in divine will, the tradition includes non-theistic theorists as well.

The norms of natural law must be distinguished from laws of nature, which are purely descriptive propositions identifying causal relations between material entities, events, or phenomena. Yet because of its appeal to nature, the conceptualization and understanding of which has been deeply affected by modern natural science, and subject to major technological transformation, natural law has been both challenged by and sometimes taken as a challenge to science and technology.

Types of Natural Law Theories

There are two kinds of natural law theories: natural law theories of legality and natural law theories of morality. Natural law theories of legality argue there are necessary moral constraints on the content of law. Natural law theories of morality are concerned with the character, grounds, and principles of morality. Although many who subscribe to natural law ethics also subscribe to natural law jurisprudence, the two theories are logically independent. Someone who accepts the theory of law may not accept the theory of morality, and a natural law moral theorist could consistently hold that, unlike morality, law is essentially conventional in character.

Although ethicists disagree about how best to characterize natural law theories of morality, nearly every natural law ethicist accepts the following four theses: (a) moral principles are either objectively true or objectively false; (b) the truth value of a moral principle is determined, in part, by whether it accurately reflects the facts of human nature or can, in some sense, be derived from the facts of human nature; (c) at least one moral principle is objectively true; and (d) the principles of morality can be discerned by reason. Many, but not all (e.g., Moore 1996), natural law ethicists are theists who relate the content of natural law to God as the creator of human nature. All natural law theories of morality thus include meta-ethical claims (theses a, b, c), normatively ethical claims (thesis b), and epistemic claims (thesis d).

Substantive natural law theorists are generally concerned with identifying the natural goods and principles that should guide rational human behavior. At its highest level of abstraction, natural law simply requires persons to pursue what is good and avoid what is bad. But a full understanding of obligations requires identifying what is good and bad in relation to human nature. Such goods are typically argued to include the following: spirituality, life, health, inner peace, knowledge, friendship, the marital good, aesthetic experience, play, pleasure, intellectual creativity, and justice. Further, because human beings may respond in problematic ways to what is good, natural law ethicists also often distinguish between defective and non-defective responses; many theorists, for example, identify homosexual relations as a defective response to the marital good. Taken together, a catalogue of natural goods and a comprehensive account of what distinguishes defective from authentic responses to such goods will fully define the content of the natural law: Human beings are obligated to pursue such goods in non-defective ways. Natural law ethicists commonly believe that such pursuit will culminate in the development of virtuous character traits. As it relates to science and technology, natural law theory would evaluate science and technology according to whether they respond in an authentic way towards the basic natural goods.

Though early natural law moral theorists understood laws of nature and laws of morality as being related, modern theorists distinguish the two. Laws of nature are both descriptive and empirical in character, stating mechanistically causal regularities between various material entities or events. In contrast laws of morality are normative in character and seek to guide the behavior of persons who can freely choose to violate such laws. While natural law theorists are likely to accept that laws of nature and laws of morality ultimately both reflect the true nature of things, natural law theories are properly concerned only with explicating the norms, laws, principles, and rules that should constrain human behavior.

Some critics have argued that natural law theory cannot consistently posit a normative teleology for humans without positing a normative teleology for all other entities. On this line of reasoning, natural law theorists cannot without contradiction (a) derive both the laws of nature and the laws of morality from the natural law but (b) hold that the laws of nature are descriptive while the laws of morality are normative. If humans are subject to a normative teleology, then all entities must be.

The natural law theorist can respond in the following way. Whether or not any particular entity is subject to a normative teleology of some kind is determined by the kinds of property it instantiates. Human beings are governed by a normative teleology that posits moral standards they are obliged to satisfy because humans are moral agents in virtue of having the properties of rationality and free will. Other entities lack these properties and hence are not subject to such standards that prescribe behavior; it makes little sense to think that, in the literal normative sense, a quark ought to behave in this or that particular way.

Other living things are, of course, fairly characterized as having interests. For example, cows are sentient and hence have an interest in being free from suffering. These interests are not implausibly characterized as "goods" towards which the behavior of non-rational living beings is typically oriented. However, it is clear that goods of this kind do not define standards that prescribe behaviors for those other living things. Although humans, qua rational moral agents, might be obligated by a law that requires a respect of the interests of other living beings, those living beings could not be obligated to do anything.

By means of such reasoning, the natural law theorist attempts to reconcile the differences between rational agents, non-rational living beings, and other material beings while the claim that the movements and behaviors of all existing entities are defined and governed by the natural law. Moreover, such arguments allow natural law theory to highlight the importance of both scientific and ethical inquiry: Scientific inquiry allows humans to determine the interests of other living things, while ethical inquiry allows humans to determine the extent to which they are obligated to respect and promote those interests.

Historical Overview

Although Aristotle (384–322 b.c.e.) is frequently cited as the first natural law theorist because of his view that human behavior should be directed toward the natural function of living well or flourishing, the Stoics subscribed to a greater number of the distinguishing tenets of natural law theory. According to the Stoics, the cosmos alone is complete and hence ordered and good As rational creatures, human beings are obligated to partake of this good by deploying reason to grasp the order and goodness of the universe. Those who succeed in doing so and in living their lives in ways that cohere with these qualities of the universe cosmos will achieve happiness and fulfill their function of living well. Notable Stoics include Zeno (336–264 b.c.e.), Cleanthes (331–232 b.c.e.), Chrysippus (280–206 b.c.e.), Panetius (185–110 b.c.e.), Posidonius (135–51 b.c.e.), Epictetus (55–135 c.e.), and Marcus Aurelius (121–180 c.e.).

The most influential of Stoics was Marcus Tullius Cicero (106–43 b.c.e.), whose definition of law deeply influenced subsequent natural law thinkers. In Cicero's words, "Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite" (De Legibus, I. 18). Implicit in this definition are most of the core tenets of natural law: Law is defined by nature, has highest authority, is accessible to reason, and directs rational beings toward what ought to be done (what is good). Like Aristotle, Cicero believed that human beings have a function, built into human nature, and that achieving this function produces true happiness and virtue. Unlike Aristotle, Cicero explicitly attributes natural law to a divine influence in human affairs.

Historically the most influential of all natural law moral theorists is undoubtedly Thomas Aquinas (1225–1274). Like many twelfth- and thirteenth-century philosophers, Thomas worked to bridge the core elements of Christian theology and Aristotelian philosophy.

Thomas saw the universe as the created material embodiment of God's perfect rationality and distinguished four types of law: eternal, natural, divine, human. Determined by divine will, the eternal law consists of the set of timeless, objective truths that govern the movement of all things in the universe, including non-human things, and includes what science calls the laws of nature. Eternal law is thus similar to what science calls the laws of nature. Natural law is a subset of eternal law that applies to the behavior of human beings. Divine law consists of the subset of eternal law pertaining to the ultimate fate of human beings following divine judgment, and is found in revelation. Human law consists of those norms that have a human source and are consistent with natural law.

Because the first precept of natural law requires "that good is to be done and pursued, and evil is to be avoided" (Summa Theologica I–II, Q.94, a.2), Thomas must give an account of the relevant goods. Accordingly he distinguishes three kinds of good: (a) those goods that humans share with all other entities, such as the inclination to preserve their being in accordance with their nature (b) more specific goods that humans share with other animals, such as the desire to mate; and (c) goods that are valued because of the human capacity for rationality, such as a desire to live in society and to pursue knowledge. These latter goods, on Thomas's view, include moral goods, such as honesty, integrity, and more. The natural law, then, consists in principles that direct human beings toward the pursuit of those goods that are distinctly human and hence define standards of human virtue.

The distinctly modern period in natural law history began with Hugo Grotius (1583–1645) and his famous argument that, contra Thomas, the content of natural law does not depend on God's existence. A Christian, Grotius nonetheless took the position that natural law reflects goods that are valuable independent of God's will. As Plato might express the point, it is not the case that natural law is good because God chooses it; rather, God chooses natural law because it is good. Because it is the value of these goods that explain God's choosing them (and not the other way around), God could not have changed the content of the natural law

Grotius rejected the view that the binding force of natural law depends on God's existence or on the threat of a divine sanction. Because the content of natural law is grounded in timeless principles of reason rather than divine volition and because human beings have a rational nature, natural law binds humans because its content is rational and not because it is backed by a divine sanction. Grotius subsequently developed a social contract theory of state legitimacy that was grounded in his views about natural law. Though subsequent social contract theorists were influenced by Grotius, some rejected his views about the foundations of natural law. John Locke (1632–1704), for instance, grounded his social contract theory in the idea that natural law governs life in the state of nature, but argued that its content is grounded in divine will.

Contemporary Natural Law Theory

Natural law theorizing is currently enjoying a revival due primarily to the work of various Catholic thinkers, including Germaine Grisez, John Finnis, and Robert George. Finnis develops a comprehensive theory of natural law that begins with an analysis of the concept of law. Finnis conceives of natural law as explicating the basic principles of what he calls practical reasonableness. He grounds an identification of these basic principles, which express fundamental human goods, partly on empirical observations of what is universally valued. For example, he notes that all human societies show a concern for the protection of human life, restrict sexual activity, display a concern for truth, know friendship, have some conception of property, and value recreation (Finnis 1980). These goods are protected by principles.

Natural law theory should not, however, be equated with Catholicism. First, many other religious traditions incorporate ideas that figure prominently in natural law theory. C.S. Lewis, for example, has pointed to various elements in the Dao that are suggestive of natural-law commitments. Some Buddhists see a natural teleology in all existing beings and sometimes describe "dharma" as being like the natural law, which is discovered by means of introspective meditation. Second, while many of the most influential contemporary natural law theorists are catholic, not all are. For example, Leo Strauss (1937–1973) is famous for his disdain for modern philosophical and political theorizing, as well as for his views that (a) life should be led in accordance with the natural order of humanity's being and (b) theorizing of all kinds should be subordinate to theology.

Much late-twentieth century work in natural law theory applies the principles of natural law to issues of sexuality, such as abortion, contraception, and homosexuality. The intrinsic value of sexuality (the marital good) consists in its capacity to create "a two-in-one-flesh communion of persons" that constitutes two persons as "becoming ... one organism" (George 1999, p. 168). Because the unitive capacity of sexual activity is grounded in its reproductive function, sexual intercourse is legitimate only if performed by a man and a woman in a lawful marriage without contraceptives. As is readily evident, natural law theorizing on sexual morality tends to reflect the substantive Catholic doctrines to which its chief proponents subscribe.

Natural Law Assessments of Technology: General Considerations

It is sometimes thought that natural law theories imply that any technology is presumptively problematic. On this line of reasoning, natural law theories equate good with natural and bad with unnatural. Because, by definition, human technologies are artifactual and hence not natural (that is, unnatural), it follows that any human technology and its intended uses should be presumed morally problematic until an adequate moral justification for it can be given.

This reasoning misrepresents the natural law theory account of the good. While natural law theory holds that the good is defined by human nature, this does not imply—or even suggest—that artifacts are necessarily unnatural in any relevant sense. There is nothing in any plausible account of human nature that would justify believing that the development and use of artifacts is, as a matter of principle, contrary to human nature. This would imply, absurdly, that the use of food utensils is contrary to human nature.

Indeed, if anything, most mainstream natural law theories would suggest that the intended uses of technology should be presumed good until shown to be morally problematic. The moral evaluation of any particular technology will require a nuanced analysis of two issues: (a) whether the intended use of a technology promotes a fundamental moral good; and (b) whether the intended use of a technology responds in a non-defective way to some fundamental moral good. Just as natural law jurisprudence subjects positive law to assessment by a higher law, so natural law moral theory of technology would assess technology by a higher law. But just as natural law ethics evaluates positive law according to whether its content conforms to a higher law, so natural law ethics evaluates technology according to whether particular uses conform to a higher law. And just as natural law ethics begins with the rebuttable presumption that positive law is legitimate, so too it begins with the rebuttable presumption that technology is legitimate.

But most, if not all, technological advances satisfy. Serious technological research is generally focused on developing technologies designed for uses that further important human interests such as life, health, play, and other goods. In free economies, the market incentives are simply insufficient to support technological research that is not connected with basic human goods. It is true, of course, that any particular technology may respond defectively to one of the basic goods. Arguably, violent video games are a defective response to the basic human good of recreation. But in a market economy, private resources will typically be directed at producing technologies that respond in some direct (and marketable) way to the basic human goods. Accordingly in the absence of some obvious problem with a particular technology (or intended use), it may reasonably be characterized as presumptively good.

This, of course, is not to deny either that technologies can be misused or that the intended uses or functions of some technologies are themselves morally problematic. It is clear, for example, that any weapons technology can be used for wrongful purposes. Indeed one may plausibly argue that the very function of any weapons technology is morally problematic; while possession of a weapons technology may be used to deter violence, its characteristic function is to inflict injury on other living beings—a function that is presumptively problematic. Nuclear weapons and other weapons of mass destruction are especially problematic in this regard.

The point is that, as an empirical matter, most (as opposed to all) technologies are intended to be used—and are characteristically used—in ways that promote some important human interest. Thus a complete natural-law evaluation of any particular technology will usually turn on whether it satisfies (b) above (i.e., responds in a non-defective way to the relevant goods). If it responds defectively to the good, then it must be rejected as morally problematic. As the Pontifical Academy for Life explains, "[i]t is never licit to do evil intentionally in order to achieve ends that are good in themselves" (Pontifical Academy for Life, Art. 9).

In any interesting case, however, this issue will be far more difficult than the issue of whether a particular technology promotes some basic good. Consider the difficulties in giving a natural law analysis of intellectual property and digital file-sharing technologies. On the one hand, copyright protection promotes a variety of interests that are plausibly characterized as basic moral goods. Copyright protection promotes intellectual innovation and knowledge by providing a material incentive to create content. Further, by protecting inventors' material interests in their creations, copyright protection promotes physical health and well being; after all, property interests are valuable as a means to these more important ends. On the other hand, copyright protection restricts the free flow of useful information—which can be consumed by all persons at once without reducing its supply. As is readily evident, the issue of whether this feature of information warrants characterizing copyright protection as a defective response to the basic moral goods that it intends to promote is exceptionally difficult.

It is worth noting that such epistemic difficulties lead some proponents to believe that while natural law theory may guide behavior in most instances, it is indeterminate with respect to some moral issues. Natural law theory is not, on this view, intended to provide some sort of determinate decision procedure for resolving ethical issues. Rather it provides a catalogue of general considerations that point the way toward the good life.

Biotechnology

Although one would expect natural law theorists to devote considerable energy to assessing new technologies, they tend to focus on issues of sexual and reproductive morality. Because many natural law theorists belong to the Catholic Church, which has made propagation of its views on such matters a high priority, it is not surprising that so much energy is devoted to these issues. But given the importance of the various moral issues arising in connection with many new technologies, it is regrettable that natural law literature on these emerging technologies is so comparatively thin.

Most natural law research on technology has focused on biotechnology. As a general matter, natural law theorists are unanimous in affirming the need for biotechnological research to promote the vital natural goods of human health and human knowledge, but emphasize the need to focus on technologies that produce those goods in non-defective ways. Only research that responds nondefectively to the goods of knowledge and health is encouraged as morally legitimate under the natural law.

One important issue in determining whether a particular biotechnological inquiry or application responds nondefectively to some good is whether it respects the integrity of the human person. The use of human embryos in research or in a technology designed to treat a disease is condemned as failing to recognize the integrity of such lives. According to the Pontifical Academy for Life, "The attitude some adopt concerning the legitimacy of sacrificing the (physical and genetic) integrity of human beings at the embryonic stage in order to destroy them ... to benefit other human individuals is ... totally unacceptable" (Pontifical Academy for Life, Art. 9). Such research and applications are problematic because they treat intrinsically valuable human beings as mere receptacles of instrumental value, namely, as objects to be used to benefit other human beings.

Natural law theorists also converge in condemning technologies that assist a terminally ill person in committing suicide on the ground that such technologies fail to respect the moral integrity of the person. Although suicide itself should not be punished, the use of these technologies to assist a suicide should. As David Novak puts the point, "because suicide itself is prohibited, those assisting in a suicide, not being its victim, are to be punished on the grounds that there is no agency for sin" (Forte 1998, p. 20). Though a patient might consent to physician-assisted suicide, such consent is not morally effective because one cannot waive the integrity of one's person.

Natural law theorists criticize efforts to develop technologies that can be used to clone human beings or to select for various genetic characteristics in one's offspring for somewhat different reasons. Such technologies may be defective responses to natural goods because they fail to respect the integrity of human persons, but they are also defective for other reasons. For example, one theorist worries that "cloning and asexual reproduction may contribute to the erosion of our sense of the gift of procreation, of our role as parents, ... and of our understanding of sexual intercourse and love" (deBlois 1994, p. 213). While understanding the truth about the human genome, technologies that lend themselves to such applications are unacceptable: "Cloning with a view to the reproduction of human beings is a practice contrary to human dignity and should not be allowed" (Holy See).

Natural Law, Technology, and the Environment

Impact on the natural environment is another relevant issue in assessing a technology under natural law theory. Many technologies obviously affect the environment in deleterious ways that are potentially significant from an ethical point of view. The contribution of any particular technology to pollution, species extinction, and depletion of natural resources is important in evaluating the acceptability of that technology under natural law theories, at the very least, because all these effects may negatively impact the pursuit of basic human goods that are at least as important as the interests the technology seeks to advance.

Central to a natural-law evaluation of the environmental impacts of technology, however, is the issue of whether the theory posits a direct obligation on humanity's part to respect and promote the interests of other non-human natural beings that is grounded in the idea that such beings are deserving of respect for their own sakes. A natural law theory that posits a direct obligation to this effect assigns some measure of moral standing to non-human beings whose interests must then be taken into moral consideration. A natural law theory that does not posit such a direct obligation assigns no measure of moral standing to non-human beings. On this latter view, the only obligations to respect and promote nature are owed to other human beings and are grounded in nature's value in promoting human flourishing.

Natural law theories differ in their evaluation of a technology's effects on the environment depending on whether they assign moral standing to other beings. An anthropocentric theory that assigns moral standing to only human beings is, other things being equal, less likely to reject a technology on the strength of its environmental impacts than either an animocentric theory that assigns standing to sentient non-human animals or a biocentric theory that assigns standing to all living beings. The smaller the moral community, the fewer beings whose interests or goods count in evaluating any particular behavior. Still, it is important to note that more expansive versions of natural law theory have sufficient resources to ground a very strong ethical commitment to the environment.

KENNETH EINAR HIMMA

BIBLIOGRAPHY

deBlois, Jean; Patrick Norris; and Kevin O'Rourke. (1994). A Primer for Health Care Ethics: Essays for a Pluralistic Society. Washington, DC: Georgetown University Press.

Finnis, John. (1980). Natural Law and Natural Rights. Oxford: Oxford University Press.

Forte, David, ed. (1998). Natural Law and Contemporary Public Policy. Washington, DC: Georgetown University Press.

George, Robert. (1999). In Defense of Natural Law. Oxford: Clarendon Press.

Grisez, Germaine. (1983). The Way of the Lord Jesus, Vol. 1: Christian Moral Principles. Chicago: Franciscan Herald Press.

Grotius, Hugo. (1964). The Rights of War and Peace, trans. F. W. Kelley, et. al. New York: Oceana.

Haakonssen, Knud. (1996). Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, England: Cambridge University Press.

Moore, Michael. (1996). "Good without God." In Natural Law, Liberalism, and Morality, ed. Robert George. Oxford: Oxford University Press.