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If Natural Law Isn't Natural, Then How Is It Law?
The Darwinian challenge is both deep and broad
I’m going to use Ross Douthat’s fascinating post at Reactions about the paternal role in pregnancy (and I do mean in it: much of the post is an excerpt from his wife’s book, Mom Genes, about how the placenta operates as an aggressive parasite working for the father’s genes against the mother’s interests) as a jumping off point for a bugaboo of mine: the absurdity of the phrase “natural law” as used in ethics and theology.
The Catholic-inflected language of “natural law,” in particular, while not actually an invocation of biological instincts and imperatives, could not help but evoke them in a society so shaped by Darwinian science. And to the extent those arguments were translated into popular forms of debate they mostly made it seem like conservatives were saying that the traditional family was “natural” in the sense of being dictated by our genes or hormones, which produced several obvious rejoinders: That all kinds of sexual behavior, including rape and promiscuity, are rooted in our biology, so why should we take “nature” as any kind of moral guide — that if we did take nature as a guide then there’s no reason to privilege bourgeois norms over all the other desires that people have instinctively — and that if lifelong heterosexual monogamy is really so natural then surely it’s also resilient, and why are conservatives so worried that it might somehow go away?
A better argument for conservatives (not a winning one, but a better one), I think, would have been to acknowledge that norms of lifelong monogamy are, in some important senses, un-natural — that they work with biological realities, including the realities described above, but that their aspirations and expectations are a civilizational artifice, a cultural superstructure that isn’t exactly necessitated by the substructures underneath.
I think Douthat is right about this, but I think he’s gliding a bit too swiftly by the serious way in which the Darwinian of our nature has eroded the foundations of natural law philosophy and theology. And I don’t think it’s so simple to say “this way of being is deeply un-natural, but also good” without a much fuller account of what that might mean, and how one might know it to be good.
The problem, as I see it, lies deep in the premises of natural law thinking. Natural law is basically a way of thinking about ethics that is essentially teleological. We are constituted in a certain way (from a theistic perspective: we are made a certain way, as part of a lager providential plan) such that certain ways of being in the world (not just our behavior but more structured relations between individuals that only make sense in the context of a society) are right and good for us, and others aren’t (or are less so). Moreover, this understanding, and therefore this law, is naturally knowable by us, because we are naturally able to know our own natures (from a theistic perspective: we were made so as to be able to know our own natures). So rationally we can think about our own natures, think about our place in the universe, and deduce the natural moral rules and proper social organization according to which we should live.
This is clearly a line of thinking that runs into trouble if you don’t have a generally-agreed-upon concept of divine providence, of our natures as having been given as opposed to simply being a given. And it runs into further trouble once you have a modern scientific (and therefore Darwinian) account of our natures that is not static but genealogical, with a history that provides much of the explanation for why it is as it is (and how it might change further). Our actual knowledge of that history is far sketchier than the most confident exponents of evolutionary psychology and its kindred disciplines would like to suggest, but the Darwinian framework implies a history even if we don’t know what that history is in any detail, so that ignorance is a practical problem but not a theoretical one.
I suspect that quite a bit can be salvaged if you go back before Aquinas to Aristotle and try to rebuild his own teleological thinking on grounds more in accord with that Darwinian account of our natures. But if you do that, I think you can wind up in some very uncomfortable places. You don’t wind up arguing that anything that feels natural must necessarily be good, but you do run the risk of recapitulating Social Darwinist arguments from the 19th century but with 21st century science to back them up, or worse. I certainly don’t want to go there, and I don’t think Douthat does either.
Mind you, I don’t think it’s inevitable that you wind up there either; I think there are good and strong pragmatic ways of grounding liberalism. But that’s what you’d need: a pragmatic grounding. And I’m not sure any grounding of that nature gets Douthat quite where he wants to go, which is (if I understand correctly) to a place where you say this way of being is good even though it isn’t particularly natural because it calls us to a higher nature. Because if the cultural superstructure really is a civilizational artifice, then its aims are, quite plausibly, just as artificial. They have to be defended on some basis, and I’m not sure what that basis is going to be.
Anyway, this deserves a longer post than I have time to write now. Suffice it to say that I think this is a very important problem that smart theists and New Atheists alike tend to argue isn’t really a problem at all in ways that I find deeply unconvincing. I’d like to see it tackled frontally, with the aim of a productive synthesis rather than a soothing repetition of old verities.