Natural law theorists conceive that the legislative law should reflect the moral law woven into the patterns of nature. For them, God gave us reason to figure out what was most natural to human life, and our reason in tandem with religious wisdom (at least following Locke), should guide our lives. The natural law view of morality holds that even God is bound by its content. In a political United States, this can mean identifying natural law with Biblical principles, and perhaps, there are some naïve jurists who would do the same in Catholicism. In Catholicism, however, the living authority of the Church and tradition are one in the same, and given this authority to be the body of Christ on Earth, social teachings of the Church are built around and justified through natural law. If you pull natural law out from under the heels of morality, then you are (A) a skeptic of the metaphysics of morality completely (and this is often how Catholic ministry professionals, clergy, and lay enthusiasts view philosophical challenges to natural law), (B) you accept an entirely new grounding for morality that may or may not include God, or (C) you adopt an ethics without an ontology.
My thesis in this post is to endorse an existential account of (B) and remain neutral with respect to whether one should be a theist, Catholic, etc. or not.
In Kalb’s legal imagination there is either the Catholic natural law way or the highway, a false dilemma since one could very well propose a new metaphysics of for morality and God, but in doing so, one would very well challenge the overwhelming sacredness of tradition in Catholicism, which for most (unfortunately) may very well be undermining Catholicism itself (though a good thing, in truth). The inflexibility of tradition is, thus, always weighed against a venomous and hyperbolic “secular culture” that Catholics fetishize as a dire opponent much like conservatives fetishize the ever-present liberal in political discourse. In Kalb’s case, he calls any non-Catholic viewpoint an “ideological fantasy.” This ghost of secularism and the many “ideological fantasies” have been more present than usual since it was only last year that the Supreme Court upheld the constitutionality of gay marriage in Obergefell v. Kasich. Catholics of the natural law perspective cannot disentangle the constitutionality of gay marriage from the social teachings of the Church. For them, natural law grounds constitutionality, or at the very least, the natural law ought to ground the law. As Kalb put it,
Man is a rational and social animal, so the ideas available in his environment have a powerful cumulative effect on how he lives. The entire absence of natural law conceptions from public life has led, for example, to the Supreme Court’s insistence that everyone treat “gay marriage” as marriage, on the grounds that the only possible reason for doing otherwise is to injure people.
We must change that state of affairs. One way to start is by pointing to the consensus gentium, or the universality of natural law conceptions. If there’s something everyone always approved of until very recently, such as sex roles or a sense of greater obligation to people to whom we are more closely connected, how does it suddenly become a dreadful abuse that must be eradicated instantly? Has everyone always been crazy, or have we become crazy ourselves? The question shouldn’t be ignored.
In the above text, Kalb thinks that widespread common agreement until this century might prove the “universality of natural law conceptions.” Since there has never been marriage to include anything but a man and a woman, there could never, according to this illusory appeal, be a marriage between same-sex partners. The fact remains, however, that appealing to the “consensus of the people” is nothing more than securing one’s morality by appeals to what most have done prior to us before, which is just stupid. It would not work for arguments against slavery anymore than it would work for judging political arguments for single-payer health care based on the tradition of Western apothecaries. This type of thinking denies that new moral situations arise. Ask any Bioethicist, however, and they will tell you—new situations arise often because new technologies arise, new historical situations arise because of new cultural problems faced now are not what the cultural resources of previous generations could encounter. A post-Industrial Revolution United States is different than the Founding Father’s newly birthed United States (a point lost on many who reify tradition).
So when Kalb claims, “The best we can do humanly is rely on experience, good judgment, and general principles derived from long reflection on man’s nature and good—in other words, tradition, practical wisdom, and natural law.” I would put to you that we should rely on experience and good judgment. We should not think in terms of general principles because being a moral particularist has better consequences for moral thinking in general. It forces us to note that the over-reliance on general principles might rationalize our biases, which may be something we want to prevent as good moral reasoners. In addition, we should practice those capacities that look for the salient features of the context right before us rather than uncritically assume all moral situations are the same, which . Furthermore, tradition and natural law can be disentangled from the capacities that give rise to practical wisdom (phronesis) since practical wisdom is less rooted in blind adherence to tradition than the freedom to decide if one will be traditional or not by self-directed practice. Therefore, the capacity that makes all other capacities possible is the freedom to determine our own being, the deep unsettling and indeterminate freedom unearthed and articulated by none other than both Jean-Paul Sartre and Simone de Beauvoir that lies at the heart of our being and what makes Christians squeal “free-will” any time causal determinism rears its ugly head.
In her Ethics of Ambiguity, Beauvoir reveals the absolute freedom weighed against the imposition of various essentialisms that often justify various circumstances. Catholicism, as it was at that time for her and still is today, largely held under the dogma of these essentialisms that get passed off as what’s “natural.” These dogmas tell people what they are in order to get them to act a certain way. Kalb is doing the same. When he laments how certain patterns and social relationships are construed other than how the natural law dictates, his language is drawn from “technocratic” and “engineering” metaphors. These metaphors of building reflect the unnerving truth of how free we truly are, yet for him they are deviations against what is “natural.” In truth, these are metaphors of controlled experimentation and artifice. They should be embraced, not seen as something weighted against the artificial/natural dichotomy pregnant in Catholic and natural law thinking. Sadly, it’s safer (and likewise more inauthentic in existentialism) to assume there is a human nature, inductively generalized from tradition than to encounter the awesome responsibility of our freedom and the finitude that accompanies it. So the embrace of existential freedom and pragmatic experience yields a greater and more powerful worldview—one that captures the freedom we have and live.
Of course, an appeal to an existential interpretation of freedom cannot be the only resource that existentialism offers us when confronting the illusions of a Catholic natural law theorist and dogmatist. Existentialism also, like phenomenology, gives us a thinly-veiled metaphysics of experience, and the emphasis is on how we can truly create ourselves apart from those value-systems of the past that prefigured the potential of human beings. Value-systems, on the contrary, have their origin and being in the acting person. Persons realize values into being because they are the type of being that is free to do so; this is the most important existential insight. In being not bound to tradition, human beings (or persons) are liberated from the idiocies and illusions that restrain their freedom. If there is an ideological fantasy to be had, then the ideological fantasy of natural law is one such delusion that needs to be shed.
Human beings can create the circumstances under which their values manifest and they can also choose to change themselves over time by introducing newer habits. I’ve often thought that if there were a principle of democracy found in William James’s thought, as many people have looked for an ethics in his thought disappointed only to find his one essay “The Moral Philosopher and the Moral Life,” it would be (1) an embrace of James’s pluralism and (2) the concept of habit. We could generalize like Plato did with the soul-to-city analogy. We can experiment with what types of systems, habits, and institutions are needed for the problems we face. When we decisively promote one type of top-down metaphysics that restricts the happiness of others, as natural law does with both monogamous gay couples and transgendered persons, we should be concerned with such an infantile perspective.
This existential focus on freedom also does not strictly oppose being a theist either, (let alone a Catholic as Mounier and Marcel were both Catholic existential thinkers barely read today). We are free to choose a world of tolerance where others can choose faith or not existentially, but this form of world cannot be one where the preconditions of such freedom are prefigured to privilege some over others. A world that honors everyone’s freedom makes possible my freedom, and it’s much better than a world in which God’s purpose is woven into the fabric of nature itself. When we view the world filled with such design as natural law defends, we are constantly disappointed to not find a more intelligible design, a reason for the very way things are, and this is why doubly the answer to the problem of evil of the same type fails. When we answer that it is God’s purpose and that we don’t know that purpose, we confront again the freedom inherent in our very being is to assign purpose to action, and since we subsist in this freedom, we cannot understand why God, being the type of being He is – like us in some way, would choose a world with little to no evident purpose. Moreover, I cannot understand how readily lost the spirit of the Gospels is on people when I see people using elements of the Catholic faith to not love, but hate through rules—justifying their own lack of extending the freedoms of democracy to others and lovingkindness of agape we ought to have for others.
The denial of natural law does not mean that all is permitted. Kalb half gets it. The result of embracing freedom “that family becomes a private arrangement we each define for ourselves.” Yes. Families can be an arrangement that defies the nuclear family and society can reasonably be open to what that means. Next, we know this if we are students of anthropology. Human pair bonding is not restricted to the nuclear family alone. Though it is the one we have chosen for centuries in the West, we cannot uncritically elevate one form of life above another and use that as an excuse to delegitimize gay couples who’ve ironically chosen to emulate monogamy itself. Yet that’s what the natural law theorist does. He uncritically generalizes that God’s law should be everyone’s law with such zeal that any other choice other than what the natural law dictates is “play-acting.” For him, this play-acting has repercussion that cut all the way down to the de-personalization of the body and life,
the human body and even human life become resources without intrinsic value, to be used for whatever purposes people want.
Not entirely. Forgetting for a moment of the problematic impossible certainty of knowing what God wants and other epistemic difficulties, the fact remains that since human beings are the origin of value in the universe, like Kant, we can think of this value-origination and freedom as a reason why persons cannot be objectified and worthy of dignity and respect. More than that, our capacity to choose differently than what came before is more adaptable to a dynamic world rather than the dogmatic and blind insistence that we have adequate knowledge of patterns and purposes in nature that we should choose tradition every time. This is why natural law explanations should be jettisoned in our moral and political thinking completely. It denies the power of existential choice that makes choosing tradition possible and Kalb’s inability to fathom it is but one reason why Sartre and Beauvoir fought so adamantly against it in their lifetimes. The fact is that natural law excludes; it passes off essentialisms as being “grounded in nature,” that’s oppressive as fuck as Levinas warned, and why existentialism’s resistance against absolute essentialisms formed the first initial philosophical bedrock for Black and feminist resistance. Du Bois’s double-consciousness is often viewed as steeped in existential thought, and even the very project of feminism could not get off the ground without Simone de Beauvoir being an existentialist and putting to question what it means to be Other.