Jacques Maritain Center: Ethics Without God?

Natural Law Argument in a Post-Christian World

(Or, Why Catholic Moralists need the Agrarians, and Vice Versa)

Joshua P. Hochschild

[Response to Russell Hittinger,
The First Grace:
Rediscovering the Natural Law in a Post-Christian World

(ISI Books, 2003)]

Draft, July 7, 2003

Professor Hittinger's book touches on a cornucopia of issues surrounding natural law -- questions of moral and social theology, of history, of jurisprudence, of constitutional theory and practice. Its ability to encompass so many subjects is the book's great merit, however daunting it may be for someone charged to comment in response, especially someone who is not nearly as knowledgeable in any one of the subjects as Professor Hittinger is in all of them. Yet, for all the many subjects this book on natural law ranges over, and for all the insight and sophistication of its arguments on these subjects, it seems to me significant that the book does not really contain any natural law arguments. This is a slight exaggeration, but only a very slight one; in any case, the book does not take up natural law arguments as its primary concern. By a natural law argument, I mean a moral argument that appeals to natural law in defense of a particular moral position, the kind of argument that might move, say, from premises about the nature of man to conclusions about the evil of abortion or euthanasia, or the good of marriage; or from premises about marriage to a conclusion about the evil of divorce or contraception. Although it is clear where Professor Hittinger stands on the moral status of such things as abortion, euthanasia, and contraception, and one may be able to reconstruct from the book the outline of natural law arguments for these positions, the book is not concerned to make such arguments.

I make this observation first so that those who have not read the book may better understand its tone and purpose; this observation is certainly not a criticism of the book. Those familiar with scholarly books on natural law today will not be surprised; they tend to be weighted heavily toward meta-ethical concerns, and would not be good places to turn for presentation of particular natural law arguments. But Hittinger is not just following a scholarly trend of focusing on the meta-ethical; he has made a considered and deliberate choice to de-emphasize particular natural law arguments. The final paragraph of his "Introduction" summarizes his rationale. He says,

The problem of natural law cannot be understood adequately as an argumentative exercise pointing to, or issuing from, moral premises. Such an exercise is important, but it does not touch and therefore cannot resolve the deeper issue of the original situation of human practical reason. When the Pope's commission of moral theologians argued for the priority of a human dominion in which human practical reason supplies the concrete norms, or when the Supreme Court declared in Casey that the individual has natural immunity from positive law in the matter of abortion, it is important to understand that these are not moral arguments but claims about what is prior to arguments. The answer to this question is entirely relevant to morals, but nothing in the logic of moral argument per se can win the case. The question turns upon considerations of anthropology and theology. To attempt to rediscover the natural law in a post-Christian world we must pick up the discussion precisely at this point (xlv-xlvi).

In other words, the kinds of challenges faced by proponents of natural law today cannot be met on the level of the moral arguments, but must be met on prior ground; theological and anthropological questions thus take strategic precedence over moral questions. This is a position -- which I find entirely agreeable -- which makes it appropriate for Hittinger to address the issue of natural law in the context of such a wide range of questions -- questions of political theory, jurisprudence, constitutional theory and history, Catholic moral theology, etc., for in all of these contexts emerge the crucial anthropological and theological questions which must be raised in the project of "rediscovering" a proper sense of the natural law. Hittinger's focus on anthropology and theology might make it seem as if he views the project of "rediscovering natural law" as primarily a philosophical one, but in fact he is conscious that it is a cultural problem as well. The challenge is not just a matter of theory, but one which is at the heart of the "culture-forming mission of Christianity." This is another reason why it is appropriate that Hittinger touches on so many different issues in his book; it is not simply that he is trying to cover his bases philosophically, but that he is trying to show the practical relevance of these ideas "all the way down," not only in the debates of moral theologians but in the drama of political decisions and historical developments, in the daily lives of judges and citizens, in the details of how we perceive the world and our place in it. The project of rediscovering the natural law is not just a matter of theoretical argumentation, but of cultural evangelization.

But what could be the role for natural law arguments in this project? In the long passage quoted above, Hittinger agrees that the natural law argument, "moral argument," is "important." But how, and in what sense? While I agree that "nothing in the logic of moral argument per se can win the case" about the relevant theological and anthropological issues that are at stake, it seems to me that there is something in the exercise of such argument that can be of essential help in winning the case.

I raise the question of the role of natural law arguments, because there are those today who would argue that they have no place in public discourse. Hittinger is not one of them, although he has his warnings about the public use of natural law argument. He warns us not to depend on the moral arguments, neglecting the theological and anthropological questions. He also suggests that the use of the very term "natural law" "ought to be avoided whenever possible in the Christian address to the world about worldly things," (34) since for a variety of reasons the term is misleading (Hittinger suggests the alternative "higher law"). But of course neither of these are recommendations against the use of natural law arguments in public discourse; they are recommendation about dialectical and rhetorical strategy.

More importantly, Hittinger fears that too many people today have "the impression that talk about natural law is a rhetoric designed to achieve consensus about matters of public policy" (16). Natural law arguments are supposed to achieve this consensus by appealing to what is universally known, which, Hittinger fears, involves "trimming arguments to fit what is first in cognition" (17). Of course some people also have another impression, that natural law arguments are supposed to lead to "conclusions grounded in Church authority" (16). The result is a doubly misleading impression, with natural law "placed in the most unfortunate position of being organized around two extreme poles. On the one end, it represented the conclusions of church authority; on the other end, it represented what every agent is supposed to know according to what is first in cognition. We have [says Hittinger] Cartesian minds somehow under church discipline" (21).

But does any of this entail that natural law arguments have no place in public discourse? I don't think so, and I don't think Hittinger does either. Hittinger is reminding us that natural law arguments should not be expected to be persuasive in themselves, not only because they cannot satisfy the strict liberal standards of "public reason," but because even apart from those standards they just don't happen to be rhetorically effective for a "post-Christian" audience.

But why, we may ask, aren't they effective? In large part because such arguments must appeal to premises which themselves fail to achieve consensus -- the anthropological and theological premises to which Hittinger turns our attention. But why do the premises of natural law arguments fail to secure universal assent? There are those who would argue that the failure to secure universal assent is evidence that there is no such thing as natural law. Of course classical examples of universalistic morals always include accounts of why some people happen to fail to know what is in principle available to everyone; the grasp of moral truths in principle available to anyone may not be in fact available to those who are poorly educated (e.g. Plato's Republic) or especially disobedient to God (e.g. Romans 1). Indeed one could even say that it is a precondition of any good natural law theory that it include the resources for accounting for the conditions of its failure to achieve consensus; and I am inclined to agree with Alasdair MacIntyre who, in explicitly taking up this challenge, has argued that Thomistic natural law theory does account for the precise sort of failure to appreciate natural law exhibited by "the dominant cultures of advanced modernity."{1}

MacIntyre, much like Hittinger, blames the failure of natural law arguments today partly on bad theory, especially bad anthropology: a corrupted notion of "choice" and its role in moral agency. But the mistaken anthropology is, for most people, neither explicit nor the fruit of theorizing; it is implicit in corrupt practice. Thus MacIntyre points to sociological or cultural factors that contribute to the failure. We can summarize these factors roughly in terms of "the great transformation"{2} of economic life of which the "dominant culture of advanced modernity" is the fruit. Renowned as a critic of liberalism, we must remember that MacIntyre sometimes seems to regard liberal ideas as epiphenomena of technological, industrial society; whatever else has changed, MacIntyre is ever the critic of capitalism, the tone of this criticism simply evolving from Trotskyite{3} to agrarian.{4}

I perceive the agrarian spirit in Hittinger too, especially in the last two essays of the volume: first, in the context of his review of Christopher Dawson's criticism of technology (Ch. 10, "Technology and the Demise of Liberalism"), and second, in his discussion of the liberal instrumentalist view of civil society, especially as this tends to violate the principle of subsidiarity (Ch. 11, "Reasons for Civil Society"). In the former chapter, Hittinger describes Dawson's argument that secularism is to be blamed more on technologism than liberalism. "Real secularism, according to Dawson, could not emerge until technology made it possible for most people to live without the ideals and practices of the older Western order" (251). The point isn't just that technology is anti-traditional, helping people do new things and break from old ways; but rather that the things that technology claims to do for us were once done by other means, namely by particular kinds of common activities, and these activities were regarded, by those who participated in them, as not only instrumental goods, but as having goods intrinsic to them.

Secularism, thus understood, involves an instrumentalist view of culture; thus it is essentially linked to pervasive and powerful technology because it involves "the systematic application of tools to culture, especially to those areas of culture which had always been reproduced by humanistic activity, for example, sexual intercourse, family, religion, economic exchange. In short, [Hittinger continues] by technology, Dawson meant the practice(s) of treating culture in the same way that the tool treats the natural environment. And this is simply another way of saying that the tool is no longer an instrument but rather the measure of the human world" (251).

This critique -- Dawson's, and presumably Hittinger's -- is a cultural critique. The criticism, Hittinger explains, "is not aimed at the tool per se." It has "nothing to do with the older and, in our context, misleading notion of 'labor-saving' devices. Rather [Hittinger explains] it is aimed at a new cultural pattern in which tools are either deliberately designed to replace the human act or at least have the unintended effect of making the human act unnecessary or subordinate to the machine" (252). The problem then, is not technology itself, but technological culture, a culture in which the machine "promises an activity superior to the human act"(264).

I find the distinction between tool as labor-saving device and tool as replacement for the human act useful and important one, although I can anticipate an objection: that the distinction can be applied arbitrarily. A husband and wife who wanted to limit their number of children could engage in the work of NFP, or they could save themselves the trouble and contracept. Presumably Hittinger wants to say that the contraceptive pill, for instance, is not merely a labor-saving device, but a replacement of human activity which naturally belongs to marriage (and exercises such virtues as chastity, generosity, humility, to name a few). By contrast, say, most of us would probably think of a tractor or a car as just a labor-saving device. On the other hand, I imagine that the Amish position, for instance, is that the tractor and automobile are not just a labor-saving devices, but replacements for human acts, indeed whole networks of human acts (which exercise such virtues as patience, humility, peacefulness, frugality, health, not to mention what MacIntyre would call the "virtues of acknowledged dependence," which are so essential to "the politics of small-scale community"). On what basis could we disagree with the Amish about this? Perhaps this is why the critique of technological society always ends up sounding agrarian, in Heidegger{5} and MacIntyre as much as in Dawson and Hittinger. Hittinger says that in modern technological society "the machine reorganizes and to some extent supplants the world of human action, in the moral sense of the term." What prevents him from mentioning factories, tractors, and automobiles in his list of examples of virtue-supplanting technologies: "the policy of mutually assured destruction supplants diplomacy; the contraceptive pill supplants chastity; the cinema supplants recreation, especially prayer; managerial and propaganda techniques replace older practices of virtue and loyalty, and so on" (251-252). Throw out the radio and take down the fiddle from the wall, Andrew Lytle once said. So the line between labor-saving and act-replacing/virtue-supplanting is a line we should all want to draw, but how and where can we draw it? In any case, it does not seem to me satisfactory to say that whether a technology counts as labor-saving or act-replacing is culturally dependent, if the distinction was itself meant to help us determine the difference between a healthy culture and an unhealthy one.

But if this is an objection to the idea that the distinction can be easily applied in practice, it is not an objection to the distinction itself, which is, as I have said, at least theoretically very important. It is, for instance, important for making any sense of two key notions in Catholic social teaching, the complementary principles of solidarity and subsidiarity. Subsidiarity is a principle that has been articulated only after the ideal it expresses began to erode. The idea is that various social functions belong properly to certain levels or spheres of human activity, and that the usurpation of those functions by higher or less local levels of association is an injustice, a violation of the principle of subsidiarity. Although often invoked as a principle meant to limit government, of course market forces can also tend to violate the principle of subsidiarity, tempting individuals, families, and communities to, as Hittinger's says, "subcontract" or "outsource" their functions to other agents. Clearly the very sense of the principle of subsidiarity, then, depends on the notion that different social associations have proper functions, that certain kinds of activities naturally belong to those associations. The challenge in articulating the principle of subsidiarity is that the kinds of widespread, wholesale social transformations made possible by technology and markets make it harder and harder to maintain that certain forms of social association are in fact any more natural or proper than others.

It seems to me that Hittinger points to the helpful strategy here, which is to articulate the naturalness of associations and activities in terms of their intrinsic values. As he describes in his final chapter, "where collaboration is not an inherent, but a merely useful good, the grounds for subsidiarity are greatly weakened. Except on contingent grounds of efficiency, there is no good reason why the state should do everything, or by the same token, do nothing. Therefore, it seems that a truly useful concept of subsidiarity depends upon a concept of solidarity that preserves the intrinsic value of collaborative activity" (279, emphasis added). Thus, "It is only when we identify goods of common activities that we can discover a principled limit to the power of the state as well as to the subcontracting (or "outsourcing") mentality characteristic of markets." (280)

So while the usefulness of the principle of subsidiarity clearly depends on the notion that some forms of social arrangment are "natural," this naturalness must be expressed in terms of value, in particular, of the intrinsic value of certain common activities. I think this language could help to clarify certain natural law arguments. For example: One might mistakenly think that the Church's position on contraception is based on an instrumental view of the marriage relationship, and that only the contracepting couple is enjoying and valuing the consummation of marriage "for its own sake" and not as a means for the end of procreation. The best response on the Church's part is probably not to reinforce this impression and merely insist that the "nature" of marriage is such that its purpose is procreation. Rather, the Church must go further and argue that there is something inherently valuable, and not merely instrumental, in the marital act's is procreative aspect. It seems to me that this is in fact the strategy of those encyclicals which argue for the essential link between the unitive and procreative dimensions of the marital act (Humanae Vitae and Evangelium Vitae; cf. Casti Connubii). These encyclicals argue that this link is not merely instrumental (it is not just something useful for heterosexual couples, so that they have an easier time acquiring children when they want to), but it is valuable in its own sake; and indeed we can go further and argue that the collaborative activities of husband and wife in response to that link are not merely instrumental, but are intrinsically valuable, as conditions of some of the virtues proper to marriage.

But now, to step back from this example and review where we have been: why do natural law arguments tend to be unpersuasive to a Post-Christian audience? Because such an audience does not view certain forms of association as "natural." Why do they not view them as natural? Because they do not appreciate their intrinsic value but regard them as having at best only instrumental value, value that can, in principle, be accomplished by some other instrument. So, how can we persuade people that certain activities or practices are inherently valuable? As I see it, the two basic strategies are narrative and argument.

The first strategy appeals to imagination and memory, through history, fiction, even poetry. For those who may have experienced healthy forms of association and their intrinsic values, it is important to keep the memory of these experiences alive; for those, increasingly, who do not, the artist must work to bring before the imagination an alternative vision of social arrangement with its own intrinsic values. It is not surprising to me that the importance of memory and imagination has long been recognized in agrarian tradition; and I think it is the ability to conjure an alternative vision of life in poetry, fiction, and artful non-fiction that accounts for the significance, and the widespread appeal, of the most important living agrarian figure, appreciated by MacIntyre{6}, namely Wendell Berry.

The other strategy is argument. Now much of the appropriate argument must be, as Hittinger insists, not so much moral as anthropological and theological; and so much of the argument must also take place where anthropology and theology are relevant but would otherwise remain only implicit: in political theory, jurisprudence, law, constitutional interpretation. But I think there is also a place for moral argument in recovering the sense of the intrinsic value of certain activities and practices. Moral argument can play this role precisely because the anthropological and theological questions are implicit in them. But then for natural law arguments to play an effective role in evangelizing culture, we must think of them in their dialectical, rather than apodictic, function. We must remember that in making an argument we may not intend simply to use concepts; we may intend rather to elicit concepts. We may offer an argument not just to achieve assent to a conclusion, by appealing to pre-existing concepts; but to illuminate new conceptual possibilities, by displaying new concepts at work in unfamiliar arguments. If natural law arguments alone cannot be expected to secure moral consensus by their intrinsic logic, they can exemplify the kind of reasoning that would be required for moral certainty.

To put this another way, in making arguments to a corrupt culture, we should be aware of what will be, for that culture, "first in cognition" -- where I am using that phrase not to indicate Cartesian rationalist ambition, but Aristotelian dialectical pedagogy. Natural law arguments can play an important public role today, not in defending particular moral conclusions, but in exhibiting genuine practical reason at work, and proposing the possibility of forgotten values. In short, in a post-Christian world our intention for the public use of a natural law argument must be, not to end a debate, but to start a conversation. That kind of conversation can head down many paths; happily, we can see much farther down those paths thanks to the illumination of The First Grace.

{1} MacIntyre, "Theories of Natural Law in the Culture of Advanced Modernity," in Common Truths: New Perspectives in Natural Law, ed. Edward B. McLean (ISI Books, 2000) 91-115.

{2} Karl Polanyi's phrase; MacIntyre calls Polanyi's The Great Transoformation (1944) "still the single most illuminating account of the inception of institutionalized modernity." Whose Justice? Which Rationality? (Notre Dame, 1988), 211. Cf. After Virtue, 239.

{3} Cf. After Virtue, ch. 18, where the ingredients of MacIntyre's position are "Aristotle, Trotsky, and St. Benedict."

{4} Cf. "Politics, Philosophy and the Common Good," in The MacIntyre Reader (Notre Dame, 1998) 235-252, where MacIntyre suggests that Aristotle needs to be corrected in light of the agrarian tradition (250-251). And already MacIntyre was taking cues from Cobbett's Rural Rides in After Virtue, 238-239.

{5} "The earth now reveals itself as a coal mining district, the soil as a mineral deposit. The field that the peasant formerly cultivated and set in order appears different from how it did when to set in order still meant to take care of and maintain. The work of the peasant does not challenge the soil of the field. In sowing grain it places seed in the keeping of the forces of growth and watches over its increase. But meanwhile even the cultivation of the field has come under the grip of another kind of setting-in-order, which sets upon nature. It sets upon it in the sense of challenging it. Agriculture is now the mechanized food industry." Martin Heidegger, "The Question Concerning Technology," trans. William Lovitt, in Basic Writings (Harper and Row, 1977), 296.

{6} Cf. "Politics, Philosophy and the Common Good," 237.