Still, it bothers me that natural law theory is so religious.  You talk about God "ordaining" the natural law.

Funny that you should say that.  All too often natural law thinkers are accused of not being religious enough.

Why?

Some Christians -- a minority, but a majority in some circles -- say that the only place to find moral truth is in the word of God, and that natural law tradition denies this.  They argue that the natural law tradition puts much too much confidence in the capacity of fallen man to know the moral truth.  They worry that the first people to use the expression "natural law" were the Stoics, who were pagans.  Finally, they suspect that the God of natural law is not the God of the Bible, but the God of Deism -- a distant Creator who designed the universe, wound it up, set it running, then went away.

If I were a Christian, I might find those arguments plausible myself.  How do you answer them?

Where do you want me to start?

With the first one.  Since you're a Christian, why not just rely on the Bible?

For several reasons, but the best one is that the Bible itself testifies to the reality of the natural law.

Does it actually mention natural law?

It doesn't use the term "natural law," but it alludes to all the ways the law is inscribed on human nature.  For example, St. Paul mentions the witness of deep conscience when he writes, "When Gentiles who have not the law [of Moses] do by nature what the law requires, ... [t]hey show that what the law requires is written on their hearts, while their conscience also bears witness and their conflicting thoughts accuse or perhaps excuse them" (Romans 2:14-15).  He captures the discipline of natural consequences in the formula, "Do not be deceived; God is not mocked, for whatever a man sows, that he will also reap" (Galatians 6:7).  The Bible is big on the witness of design -- design in general, design in us.  And it's remarkable that when the apostles are speaking to pagans, they don't begin with scripture, but with what the pagans know already -- for instance their longing for an "unknown god," which implies knowledge that none of their deities are adequate (Acts 17:22-23).

Comment on the second criticism -- how did you put it? -- that natural law thinkers put too much confidence in the capacity of fallen man to know moral truth.

In his letter to the Christians in Rome, St. Paul doesn't blame the pagans for not having the truth about God and His moral requirements, but for suppressing and neglecting it (Romans 1:18-19).  In the Proverbs, the complaint made about "fools" is not primarily that they lack knowledge but that they despise it (for example Proverbs 1:7, 1:32, 15:14.).  In other words, atheism and moral obtuseness are not primarily an intellectual flaw; their most important ingredient is obstinacy.  The natural law tradition does not deny these things.  It recognizes error, it recognizes obstinacy, and it recognizes self-deception.

What about the third criticism, that natural law is just a baptized pagan theory?

It's true that the first philosophers to use the term "natural law" were pagans, but the biblical testimony to its reality came earlier still.  Besides, if God has made some things plain through to the natural mind, wouldn't you expect the pagan philosophers to notice them?  Of course their theories needed correction at many points, but that has been done.

If they were talking about the things we "can't not know," then why would they need correction?

The moral basics are one thing; the best way to describe them is another.  It's only the former that we can't not know.  Getting the latter right has taken centuries.  The work is far from done, and our stubborn wills resist its completion.

The fourth criticism, then -- that the God of natural law is different from the God of Scripture.

No, it's an incomplete picture of the same one.  Nature proclaims its Creator; Scripture tells you who He is.  Nature shows you the results of His deeds in creation; Scripture tells you the results of His deeds in history.  Nature manifests to you His moral requirements; Scripture tells you what to do about the fact that you don't measure up to them.  Scripture is more important because it tells you the plan of salvation, but not even Scripture makes nature superfluous.  It presupposes that you already have natural knowledge.

A Dialogue on Natural Law, Part 10

Maybe natural law doesn't spell the end of democracy, but surely it spells the end of tolerance.

What do you mean?

Just what I said.  If there really is a natural moral law, then tolerance goes out the window.

You think everyone ought to be tolerant, is that it?

Yes.  And so do you -- or you ought to.  And you know it.

I do.  But consider.  You've just said that the duty of tolerance is both right for all, and known, or at least knowable, to all.  But to say that is to call it a natural law.

Trivially, yes.  But for all I know, it's the only one.

It can't be the only one.  Consider again.  You don't think we should tolerate everything, do you?

No, I suppose not.

But without the rest of morality, how do you know what should be tolerated and what shouldn't be?

But if we should only tolerate what is morally right, then the virtue of tolerance is redundant.

I didn't say we should tolerate only what's morally right.

Pardon me, but you did.  You said that the measure of what should be tolerated is the moral law.

That doesn't mean we should tolerate only what's morally right.  Some moral wrongs must be tolerated because suppressing them would require further moral wrongs.  Wrong does not become right just because it is committed to prevent a wrong.

Give me an example.

Here is an old, old example from the days when the Christian faith was supported by the state.  No parents, it was argued, should refuse to let their children be baptized.  The question arose whether the children of obstinate parents should be baptized against their parents' wills.  But the answer was no.  Doing so would violate the natural authority of parents to teach their children, which is itself ordained by God in the natural law.  The wrong of parental obstinacy was tolerated because suppressing it would require moral wrong on the part of official busybodies.

You're insufferable.  Even your tolerance is moralistic.

In a sense, certainly.  But you are a moralist, too.  You became one the moment you said that one ought to practice tolerance.

But the other party may disagree with your morality. 

Of course, but I can't help that.  Any way of deciding what to tolerate is some way of deciding what to tolerate.  The other party may disagree with yours.

No.  Tolerance requires being fair to both moral views.

What if the two sides have different views of fairness?  To be fair to different views of fairness you have to implement some view of fairness.

No.  Fairness requires moral neutrality.

What do you mean by moral neutrality?

I mean suspending moral judgment.

If you really suspended moral judgment, you couldn't judge what to tolerate.  You couldn't even judge whether to tolerate.  Tolerance requires practicing moral judgment, not suspending it.

I don't mean suspending moral judgment.  I mean giving equal standing to every moral point of view.

That merely gives higher standing to the opinion that morals are relative to point of view.

I don't mean giving equal standing to every moral point of view.  I mean seeking moral common ground.

I believe in the moral common ground too, but there is only one moral common ground, and that is the natural law itself -- common by virtue of our shared human nature.  What you mean by common ground is something different.  You want a way of making a decision without taking sides.  That's impossible.

Of course it's possible to suspend judgment.  The tolerant solution to the abortion controversy, for example, is that the state should refuse to take sides, letting people make up their own minds.

What you call letting people make up their own minds about the issue is taking sides on the issue.  You are siding with those who want the killing to be permitted, against those who want it to be forbidden.

But I'm neither pro-abortion nor anti-abortion.  I'm pro-choice.

The cause of legalized abortion is no more "pro-choice" than the cause of legalized slavery.  Although it facilitates certain choices, it makes others impossible.  To "choose" to abort the child is to deny him the choice to live, and to "choose" to legalize killing him is to deny his defenders the choice to protect him by law.  The issue is not whether to allow a choice, but which choices to allow.

I still think your approach is authoritarian.

The only thing authoritarian in these debates is your so-called neutrality.

How could neutrality be authoritarian?

It is authoritarian because it is a facade.  Neutralism is a method of ramming a particular moral judgment into law by pretending that it is not a moral judgment.

A Dialogue on Natural Law, Part 9

Passed on by a friend, and used by permission of the writer, with my thanks.  Here's the book.

Tomorrow:  A Dialogue on Natural Law, Part 8 of 10

I don't like the sound of this.  If there really is a natural moral law, then democracy is over with.

Why?

Because there would be no decisions left for legislators to make.  If they did try to make any, judges would just say "The natural law says" and overrule them.

That's doubly mistaken.  In the first place, there would be plenty of decisions left for legislators to make.

Why?

Because only the foundational principles of the natural law are known to all -- only the moral basics.  The remote implications remain to be worked out and fashioned into rules.

But if judges thought the legislators had worked out those remote implications badly, they would invoke natural law to overrule them.

Some might try.  But I suggest that there is only one situation in which it would be allowable for courts to refuse to recognize a legislative act on grounds of natural law -- if the legislature had violated one of the moral basics, for example by punishing the innocent, or by authorizing some people to murder others.  The reason judges could invoke the natural law against legislators in that sort of case is that they know the moral basics every bit as well as legislators do.  But here's the rub:  Judges are not just as good at working out the remote implications of the natural law.  They have no call to refuse to recognize a legislative act in that sort of matter -- much less make law on their own.

Why aren't they just as good at working out the remote implications of the natural law?

Because of the difference in their jobs.  Legislative procedures are adapted to developing general rules; judicial procedures are adapted to applying these general rules to the facts of particular cases.  Courts do not anticipate cases not actually before them; legislatures must anticipate cases not actually before them.  That is what we have them for.

So you're saying that nothing in the natural law forbids the separation of functions.

That's right.  It's perfectly all right for the framers of a constitution to give one job to legislatures and a different job to courts.  I think they should, myself.

So it's okay for legislatures to consider the natural law, but not okay for courts to do so.

That not how I'd put it.

Sorry; I should have said, so it's okay for both courts and legislatures to consider the moral basics -- but only legislatures should consider their remote implications.

That's not quite how I'd put it either.

How would you put it, then?

It's okay for both courts and legislatures to consider the moral basics -- but as to their remote implications, courts should defer to legislatures.

Isn't that what I said?

No.  There is a difference between not considering the remote implications at all, and deferring to the legislature about them.

I don't see why.

How about an example?  Here's how one codification of law explains when contracts are binding and when they aren't – I’ve borrowed it from Charles Rice, who is quoting the Restatement of Contracts, 1932, Section 90:  "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."  Put more simply --

Never mind, I get it.  Put more simply, if breaking the promise would cause injustice, then the contract is binding.

Correct.  Now suppose that the legislature has enacted that wording into law, and a court has to interpret it.  Do you see a problem?

No.

The legislature hasn't told the court what injustice is.  It expects the court to know that already.

Oh, yes.  But so what?

So even though the court defers to the legislature by accepting the general rule which the legislature has given to it, it may be forced to work out some of the remote implications of the natural law, just to figure out what the legislature means.  But it still accepts legislative intent as the rule.

I see now.

Then you see that nothing about the natural law encourages judges to lose their heads.

Perhaps not.

I would even say that the strongest encouragement to runaway judicial activism is denying the natural law.

A Dialogue on Natural Law, Part 8

Mondays are reserved for student letters.  This student writes from Latin America.

Question:

In the past year, in Peru, has come forward the debate about gay marriage. It has produced a lot of talking and writing on both sides. My teachers have given their opinions too. They think that the idea of family can change.  I think they’re wrong.   There is a difference between calling a thing family and a thing being a family.

What I’d like to ask is whether you think the family can change. If it can’t change, why do many people seem to think otherwise?  But if it can change, then is there any reason to not allow same-sex couple to marry or to adopt children?

Reply:

Certainly people in different times and places may hold different ideas about the family; even in our own time people hold different ideas about it.  But not all of these ideas are equally correspondent with the requirements of our nature.  So if the question “Can the idea of the family change?” is taken to mean “Can people hold different opinions about the family?” then the answer is “yes,” but if it is taken to mean “Can the natural laws of family life change?” then the answer is “no.”

On the other hand, the natural laws of family life do not require that all families do everything in exactly the same way.  There are a thousand possibilities of melody, but the principles of harmony that make melody different from noise are the same for all of them.  There are a many kinds of individual personality, but the principles of virtue that make a good person different from a bad one are the same for all of them.  And there are many kinds of happy family, but the underlying principles of sound family order are the same for all of them.

The thing we overlook is that one of these principles is faithful, heterosexual monogamy.

To illustrate, let’s first compare monogamy with polygamy.  Unlike monogamy, polygamy undermines what natural law thinkers call the unitive and procreative goods – the very goods that marriage is all about.  The unitive good is weakened because if the man does not give himself to his wife exclusively, then neither can he give himself to her totally.  It is further weakened because it tends to put women in the position of servants or chattel and breeds jealousy among a man’s various wives.  The procreative good is weakened because the relation between the children and their father is attenuated, and because the children of different wives are likely to be in competition for the affection of their father.  I might add that polygamy is also socially unjust and undermines solidarity among the classes.  If rich men have multiple wives, many poor men will be unable to marry at all.

Now let’s compare polygamy with heterosexual promiscuity.  Although polygamy undermines the unitive and procreative goods, at least it does not utterly destroy them.  Promiscuity does.  It destroys the unitive good because the man and woman have no commitment to each other, and it destroys the procreative good because children grow up without fathers -- or with a succession of temporary “fathers” who are not interested in them.

To return to your question, so-called gay marriage also destroys the unitive and procreative good.  That is why it is not really marriage, whatever the law may call it.  The relationship is both intrinsically non-procreative and intrinsically non-complementary.  In other words, by nature two persons of the same sex cannot produce children, and by nature they cannot balance each other.  It may be objected that two persons of the same sex can adopt, but this distorts the order of the family because the child needs both a mother and a father, and the two are not interchangeable.

By the way, when I say that faithful, heterosexual monogamy is a principle of good family life, I don’t mean that every monogamous arrangement of family life works equally well.  For example, children need not only their mothers and fathers, but also their grandmothers and grandfathers; the “nuclear” arrangements of the industrialized countries are not ideal.

You also ask why people disagree about the principles of family life.  There are two reasons.  One is innocent mistakes.  It may be especially difficult to arrive at a sound understanding of happy family life if one has never experienced it, a circumstance which is unfortunately more and more common.  But another reason is self-justification, because unrepented sexual selfishness and other bad motives drive people to make excuses for practices which are really indefensible.  Sometimes people even defend bad practices in which they do not participate, just to make sure that their own lives are not criticized either.

Tomorrow:  A Dialogue on Natural Law, Part 7 of 10