Natural Law – 2parse

Noted Catholic and right winger Scalia was recently asked – in his rephrasing of the question:

Why shouldn’t we follow the unamininty of the world [regarding] assisted suicide…homosexual sodomy…abortion…[&tc]?

His response was rather odd. He argues that judges don’t have any special expertise to decide these issues, therefore they should be decided by the people. (This part isn’t odd. It makes sense to me, though with some caveats.) But then he goes on to incorporate this with his belief in natural law:

I believe in natural law, but I believe that in democratic political instituions, it’s up to the people to decide what they think natural law demands…Because we all disagree on natural law. Why say whatever a bunch of judges think is the answer? That makes no sense in a democracy. There are no clear judicial answers to these questions. And since there aren’t it seems to be it’s the kind of a thing that in a democracy we debate with one another and we ask the people what do you think natural law requires.

Here’s where he’s lost me. Because the primary precepts of natural law should be evident to every rational human being* – regardless of religion. Hell, it should be evident to animals – so evident that they act in accordance with it naturally. Thus we all shouldn’t “disagree on natural law.” We should tend to agree – and we should actually agree if we act according to our natures. Thus, the opinions of other people in the world actually does provide evidence of natural law – though it could be attempted to be explained away as some mass perversion.

I don’t disagree with the position Scalia is defending – that these contentious social issues should when possible be decided by the more democratic political institutions rather than the judiciary (although the judiciary has tended to follow public opinions) – but I find his argument itself puzzling. I think these issues should be decided by the more social institutions because I believe they are social decisions primarily. Scalia seems to be arguing that these are governed by natural law – which, given the role we have given judges to extrapolate from current law and apply it to specific situations, is exactly what they would need to be doing with natural law. “Joe Sixpack” – to use that derogatory phrase Scalia and Palin like so much – may know natural law as he knows the rules of the road. But we entrust judges with applying the rules of the road with rationality tempered by wisdom. They don’t always – but that’s their job. Their experience taking a set of rules that are knowable and applying them to specific situations is exactly the type of experience that “Joe Sixpack” doesn’t have – and would make judges more expect.

But – and here I speculate – it doesn’t seem Scalia believes in natural law as the term was created by Thomas Aquinas. (N.B. I haven’t kept up-to-date on modern day natural law theory, so if any informed readers could inform me if modern day Thomists have entirely eviscerated Aquinas’s definition with some work-around, let me know.) Instead he believes that issues like “assisted suicide…homosexual sodomy…abortion” &tc are inherently political. Thus, they should be decided by the political institutions rather than judicial ones. This undermines the case made by Robert P. George (along with many members of the Catholic Church hierarchy) regarding why the church must take political stands on issues involving natural law (where it happens to agree with the Republican Party.)

* As Aquinas wrote in the Summa Theologica: “[W]e must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge.”

[digg-reddit-me]I just hope I am right. If they are going to buy my arguments, I don’t want to mislead the whole church.

Robert P. George, perhaps prophetically, in the New York Times.

There’s a lot to excavate from this piece. And, in fact, if you are interested in Catholicism or politics, you should read the whole thing. I’ve heard of Robert P. George in passing, but in David D. Kirkpatrick’s telling, he has become the center of the Catholic-Evangelical-Republican coalition since the passing of Richard John Neuhaus.

Kirkpatrick brings out very clearly how George’s (and other Catholic conservatives’) theology happens to have evolved to perfectly suit the Republican Party – almost as if these people began with ideology and then picked and choose what to accept from Catholicism. But unlike most Catholic conservatives, George has an elaborate rationale for why this is so. It begins with Thomism and St. Thomas Aquinas’ theory of natural law. Aquinas applied Aristotlian logic to Christianity, creating a vibrant and comprehensive philosophy that explained everything with precision: from what was, to what should be, to what had been, and what would be. All that was left was to determine – as some mockingly pointed out – was how many angels could dance on the head of a pin. Since Aquinas’ time, humanity’s understanding of the world has undergone enormous changes: Gravity was discovered. Then the relativity of gravity. Genetics was discovered by an Augustinian abbot. The double helix by two Americans. Evolution postulated and then subsequently supported by discovered facts. The foundations of democracy and the rule of law had not been laid yet, let alone America’s two-party system. When Thomas Aquinas alive, it was still thought that the sun revolved around the earth!

Today, in many ways, science has evolved past common sense, and change and uncertainty are as constant as was constancy during the historical lull of Thomas Aquinas’ Europe. Which perhaps provides an emotional justification for the popularity of Aquinas today: He offers all the answers – almost literally in his magnum opus, the Summa Theologica. And in a world with so much uncertainty, such certainty can be a salve. It seems consistent with the retreats to the certain and firm grounds of ideology and dogmatism that have characterized so much of the world’s response to today’s change – from Orthodox Judaism to islamist fundamentalism, from Nazism to Communism, from evangelical fervor to hippie free love, from Randian libertarianism to right-wing Catholicism. I do not mean to tar all of these movements as terroristic or totalitarian, as some certain are. Rather, they are all radical rejections of the world as it is, and of the direction it is heading. All these movements have these elements in common: rigid answers to life’s question, a rejection of some “Establishment” that is pushing the world to be as it is, and a promotion of purity as the answer to rapid change.

George sees such purity in the application of reason through natural law.

Thus for George, God’s will is most evident, even to those who do not believe in Him, within natural processes, while it is obscured in more sophisticated human interactions. In this understanding, the social justice issues that the New Testament revolve around: helping the poor, healing the sick, loving one’s neighbor, turning the other cheek, &tc. are secondary. Reasonable people can disagree because the answers to these questions are complex and not obvious to reason. On the other hand, George believes that the answers to what we call Culture War issues are self-evident to any person capable of reason. Thus, George believes reasonable people can disagree on capital punishment, but not on abortion. Reasonable people can disagree on health care, but not on gay marriage. Reasonable people can disagree on the mechanisms by which the state collects taxes, but not on the mechanisms by which a married couple has sex. I always find this focus on sex to be puzzling. I don’t accept the slanderous views of some on the left that it is all about making war on women. Yet, if one can apply reason and ascertain there is only one way for two individuals to “get jiggy,” why can’t one use reason to figure out the one way to tax people? Both involve the interactions of human beings within a fallen-redeemed world; both involve emotional responses and complex social constructs.

Another small thing: I’m sure George would have some answer to this, but according to Kirkpatrick, one of the basic distinctions that animates George’s writing is the conflict between Hume and Aristotle:

Against Aristotle, Hume argued that the universe includes facts but not values. You cannot derive moral conclusions from studying the world, an “ought” from an “is.” There is no built-in objective reason for me to choose one goal over another – the goals of Mother Teresa over the goals of Adolf Hitler, in George’s hypothetical. Reason, then, is merely a tool of whatever desire strikes my fancy.

Yet, does it seem as if George has studied the world and derived his “oughts” from the “is” of the way things are? Aquinas certainly extrapolated universal moral principles about the essence of sex and the natural order from observing barnyard animals. For all the faults and biases of this approach, it seemed to be a genuine attempt to understand the world. From my limited perspective, it does not seem as if George similarly started with observation; rather, he seems to have begun with his conclusions based on the ideology of right wing Catholicism and worked his way backwards. Specifically, his views of sex seem derived – not from observation or lived experience – but from sterile intellectualization divorced from reality (which my study of history has shown is capable of the truest perversion of what God created.) One can see how such a limited view of sex does seem likely to appeal to a group of celibate men though. I know of myself that reading George’s view of sex, I felt a deep unease in my stomach – similar to when I saw the movie Quills about the Marqis de Sade, as George had intellectualized sex and perverted it from its natural form so much that it was deeply unsettling. Take this for example:

Their bodies become one (they are biologically united, and do not merely rub together) in coitus (and only in coitus), similarly to the way in which one’s heart, lungs and other organs form a unity by coordinating for the biological good of the whole.

In another’s hands, this idea could be beautiful – a beautiful rationale for why sex can be wonderful. But by limiting sexuality so, by postulating that sexuality ought only be channeled into only this particular type of ritualistic purity, by declaring unclean an enormous swath of human and animal experience, by maintaining that only this sterile intellectualization can justify desire, George is truly separating man from his own nature, and woman from hers. This is the most fundamental perversion of all, the most grievous sin against natural law.

(Andrew Sullivan also has some good comments on the piece here.)

[Image by Fenchurch! licensed under Creative Commons.]