The question posed by the overall topic of our symposium -- "ethics without God?" -- very much tempts me to the answer H. L. Mencken once gave to a similarly theological question. He was asked whether he believed in infant baptism. "Yes," he said, "I definitely do. I've seen it done many times." And I suppose the same can be said about ethics.
But to give Mencken's easy answer in this context would be to beg the question, or a number of the questions raised by Russell Hittinger's new and provocative collection of essays. For one thing, his book raises a somewhat more precise question: "Natural Law without God?" Natural law, we might say, is a subset of the broader category "ethics," and the Menckenian answer to the broader question may not apply to the narrower one. As I understand Hittinger's position, in fact, he does wish to answer, no, to the question of whether one can have natural law without God.
Moreover, while he grants the Menckenean answer to the broader question in a sense, it appears to me that he would not, in the final analysis, accept that either. In his volume's lead essay he affirms the possibility of moral discourse separate from "sermonics and catechetics" (35), presumably moral discourse in its terms independent of God. Such discourse appears to be independent of natural law as he understands it, but, speaking of Catholics, he states the belief that "it is the natural law that renders the gentiles amenable to the rudiments of moral discourse. . . . [We] believe that what the gentiles know is an effect of divine pedagogy, whether the gentiles know it or not" (35). (Consider also: "theologically considered, there is not morality, and then law" (41).) Hittinger then sees the existence of natural law as the (perhaps, unacknowledged) ground for the possibility of all moral discourse, and since natural law cannot be without God, he would answer our larger question quite differently from my Menckeneanizing response. That Aristotle, say, could do ethics (as a science) and live ethically (as a human person) was possible because of the divinely ordained natural law.
Hittinger gives little explicit defense of his answer to the broader question -- it is striking that he leaves it entirely in the realm of belief -- and I will follow him in focusing my attention on the natural law. Of course, there is something a bit both rash and foolish in my joining issue with him on natural law in this company. Being neither a Catholic nor a Thomist, nor nearly so knowledgeable about those matters as everyone else on this panel, my bringing forward my thoughts on these topics is rather like offering to show Michael Jordan my jump shot. So, at the risk of appearing either pretentious, or foolish -- or most likely both -- let me proceed.
Hittinger's sub-title is "Rediscovering Natural Law in a Post-Christian Era," but that can be misleading as to the character of his argument. His point is actually that we cannot get by with a "post-Christian" view of natural law; we need to recapture Christian, more precisely Thomistic natural law in this post-Christian era. Indeed, his account of natural law is nestled within a broader story of the history of natural law thinking; the Greeks were not really natural law thinkers; although there were a handful of references to natural law in pre-Christian days, the dominant Greek view was captured in the opposition they regularly saw between nature (physis) and law (nomos). "Natural law" was, for the Greeks, nearly an oxymoron (xix). The reflection of this Greek attitude can be seen in the work of the great twentieth century restorer of Greek thought, Leo Strauss, who insisted that the Greek thinkers had a doctrine of natural right, not a doctrine of natural law (Natural Right and History, 120-164).
Natural law thinking arose when "the Greek logos-metaphysics was appropriated by the biblical theology of a creating and lawgiving God" (xix). In that original natural law thinking the divine law-giver was central. This version of natural law stands in need of "rediscovery," not only because natural law of any sort plays a lesser role in modern moral discourse than it once did, but perhaps more significantly, when it does play a role it does so in a drastically modified -- Hittinger might say, distorted -- form. He quotes the twentieth century legal philosopher H. L. A. Hart identifying "the continued reassertion of some form of Natural Law doctrine" as "due in part to the fact that its appeal is independent of both divine and human authority" (xii). The declaration of independence from authority, divine and human, began with the Enlightenment philosophers, according to whom "natural law came to mean the position of the human mind just insofar as it is left to itself, prior to authority and law" (xii). The cause of this embrace of "the opposite" of the traditional view was "the theologico-political problem" (xxv, 13, 14). Hittinger does not explain what he has in mind by "the theologico-political problem," but I take him to mean the set of problems initiated by the Reformation, as a result of which not only intense theological-theoretical conflicts arose, but serious political, even violent conflict broke out over the human ordering that should accord with the divine ordering(s) affirmed in the various theologies of the day. Thus Catholics not only fought Protestants (as in France) but different kinds of Protestants fought each other as well (as in England or Holland). (See my Natural Rights and the New Republicanism, Pt. I).
My own researches agree to a large degree with this part of Hittinger's story -- though I think it was a bit more complex than he gives it. The second great hey-day of natural law theories in politics occurred in the seventeenth and eighteenth centuries in the wake of the religious wars. Especially significant and conformable to Hittinger's narrative is the rise of Grotian natural law theory to prominence all over Europe in the seventeenth century. Grotius is famous or notorious for his "etiamsi" -- even if God did not exist, the natural law he describes would exist (see Natural Rights and New Republicanism, Pt. II). This affirmation is clearly an attempt by Grotius to find universal and binding norms for moral and political life independent of the various contending partisan theologico-political commitments of the parties to the wars. The story is more complicated than Hittinger tells it, however, for many Enlightenment thinkers rejected the Grotian solution, and most especially his effort to find a natural law independent of God. Locke, for example, directly countered Grotius on that very point. Nonetheless I do not mean to follow out this part of Hittinger's story, for on the whole it is accurate enough.
The Enlightenment thinkers, he maintains, used natural law to establish "an authority-free zone" (xi, xv, xvii, xxv, xxxvii, 14, 31-32). They were not, for all that, relativists -- the point of natural law was still to find natural norms. But the long-run effect was much more pernicious. By 1992, the U.S. Supreme Court had pronounced its (in)famous decision in the case of Planned Parenthood v. Casey, a case that took the notion of an "authority-free zone" to its extreme (il)logical conclusion. Natural law has became a way to "subvert . . . an order of obligation prior to the positive law." The natural law (or some vaguely recognizable descendant of it) became a way of affirming the individual to be "a law unto himself," or more precisely, "the absence of legislative power is established by the right of the individual to be self-norming" (xxxii, 22-24, 36, 37, 47, 50). Casey represents the introduction of a new "paideia" (formative education) into the American regime: "the honoring of unbounded individual liberty" (200).
This broader story is relevant for understanding Hittinger's project of a "rediscovery" of Christian natural law in a post-Christian era, for it is the crisis of modern natural law that makes the project of recovery so urgent. As I need not tell those who have read the book, it is filled with astute analyses, pungent criticisms of modern doctrines, marvelous expositions of Thomistic natural law theory, and much wisdom both theoretic and practical. Despite that, I wish to take issue with his implicit claim that his rediscovered natural law is the answer to our present ills. Had I more time I would even question his analysis of Casey and the nature of our contemporary crisis. (On the latter, see my forthcoming "Casey at the Bat: Taking Another Swing at Planned Parenthood v. Casey" in C. Wolfe, ed.)
The First Grace argues strongly for the position that natural law without God will not do. It presents two main lines of argument to arrive at that conclusion. In the first place, the Catholic tradition, all the way back to the Church fathers, has understood natural law as part of theology, i.e., as dependent on God. It was only with the aforementioned Enlightenment natural lawyers that the natural law drifted away (or was cut loose from) its theological grounding. Secondly, and even more insistently, Hittinger argues that without God the natural law cannot be a genuine law. It can only be a metaphorical law, an analogical law, or no law at all. Thus he resists mightily (as he did in his earlier book, A Critique of the New Natural Law Theory) the view held by "some contemporary theologians . . . that natural law denotes the human practical reason." If one sees it that way, "its specifically legal character . . . is muted, if not abandoned" (46).
On the contrary, Hittinger maintains, natural law is properly law. He is not entirely clear on what turns on so holding it, but the main thing seems to be the affirmation that human beings always find themselves under a law, that is, having given to them a guide to conduct that is obligatory and to which they are responsible (xv). As he says, "moral norms are laws" (50). He hardly mentions the issue of sanctions, but no doubt that is lurking somewhere. (See 53: "Of course, in the order of being, it is true that there is a legislative command backed by sanctions.")
Hittinger provides very little by way of an independent argument for his theses about the lawful character of natural law. In most of the key places in his exposition he has recourse to Thomas Aquinas' presentation. Since much of the contemporary debate about natural law turns into a debate about Thomistic doctrine, this precedure is perhaps not too surprising. (However, one should compare his somewhat contrasting procedure in A Critique, 8-9). Accordingly, Hittinger cites Thomas' "well known . . . definition of law."
Law is a binding ordinance of reason for the public good, actually promulgated by a competent authority. Thus, there are four principles:  ordinance of reason rather than force, [material cause]  for the common good, [final cause]  made by a competent authority [efficient cause], and  promulgated [formal cause]; each is a necessary but not a sufficient condition for something to be a law." (95)
If natural law is genuinely law, then it must have all four of these law-making qualities, (which correspond to Aristotle's four causes), including the third, a competent authority as efficient cause. Aquinas goes to lengths to demonstrate that the natural law has all four causes, and therefore is a genuine law. The "competent authority" who is the efficient cause of the natural law is God, as Hittinger points out when he repeatedly insists that Aquinas treats the natural law as a mode of the eternal law, which is, in turn, the law by which God governs the whole. Natural law is not a different law from the eternal law (as many interpreters of Aquinas seem to believe) (see esp. 8-12) but the special way in which human beings, the rational creatures, participate in the eternal law (8, 9, 16, 39, 44, 50).
As a genuine law, however, the natural law must also possess the formal cause of law, promulgation. As a rule for the action of rational beings the law must be available, that is, known or knowable, by those who are to use it to regulate their conduct. Although Hittinger is clear and unambiguous in his treatment of the efficient cause of the law, he is wavering and ambivalent in his (much less thematic) treatment of the formal cause, promulgation.
His most extended consideration occurs in the context of a critique of Francisco Suarez's treatment of the promulgation issue. As Hittinger puts it, Suarez, "of all the modern scholastic theologians . . . was perhaps the most alert to the problem of the legality of natural law" (51). This means for Suarez that "the obligatory norm [must] be known in reference to its point of legislative origin" (51). The norms and the source of the norms must both be known (promulgated) for natural law to qualify as genuine law. Suarez concluded there must be a "sign that bespeaks a divine lawgiver . . . in the concept of a moral precept" (52). Suarez holds that "the naturally known moral norms also -- and in some sense simultaneously -- require knowledge of the deed of the legislator in order to be grasped as norms of conduct" (52). One must know the norm, as, say, Aristotle mostly did, but one must also know that the norm has its source in the legislative act of God, and therefore one must know of a legislating God, as Aristotle did not. Suarez, as Hittinger reads him,
held that there are two conditions for natural law being "law": (1) in the order of being, a God who legislates by instilling knowledge of the moral measures of action; (2) in the order of knowledge, a recognition that God so legislates and binds the creature to act according to his will (53).
Although Suarez claims to be in agreement with Aquinas, Hittinger insists he is not. "Suarez did not accurately represent the tradition 'held by St. Thomas and common to the theologians'" (55). Hittinger takes issue with Suarez by maintaining the distinction between the order of being and the order of knowledge. Where Suarez runs them together, Hittinger's Aquinas kept them apart. The legislating God is necessary in the order of being, but not in the order of knowledge. "When St. Thomas said that proper authority and promulgation are two essential traits of law, he did not stipulate that the recipient of the law necessarily has to know the legislative point of origin" (53). Aquinas "emphasizes the legislated deed regardless of what the recipient of the law knows about the legislative point of origin. Hence natural law is real law because basic moral norms are actually made-to-be-known (promulgated) to the rational creature who grasps the divine law 'naturally' (naturaliter)" (52). To support his reading of the Thomist position he rightly cites the following passage: "The natural law is promulgated by the very fact that God instilled (inseruit) it into man's mind so as to be known by him naturally" (S.T. I.-II Q9, A4 ad. obj. 1).
Thus as Hittinger reconstructs the Thomistic position, knowledge of the content of the natural law is (and must be) promulgated, but not knowledge of the lawgiver, or the source of the natural norms in God. "The quid of which they are conscious is moral good and evil, not necessarily the legislator" (54). This reading, Hittinger asserts, is also in accord with Paul's famous claim about the Gentiles' knowledge of natural law in Rom. 2:14 (54).
Hittinger believes the view he attributes is not only the authentic Thomist view, but it is also the philosophically superior view. Aquinas and the older tradition "distinguished more sharply than did Suarez between what is first in the order of cognition and what is first in the order of being"; the natural law "is much weakened when it is forced to defend the intelligiblity of natural 'law' on the basis of immediate cognitive evidence of the lawgiver." Suarez "transposed the terms of the older tradition in a way that made it less credible." He also "appears to make the natural law look like a positive law" (57). Unfortunately Hittinger never gives a very clear account of these particular shortcomings of the Suarezean position. That it makes the natural law look more like positive law is the easiest part to understand and relates as well to Suarez's well-known attempts to bring together Thomistic rationalism and Ockhamist voluntarism. The Suarezean natural law, so far as it traces back so directly to the act of will of the divine legislator looks much less like a law immanent in the order of nature per se, and therefore looks more positive and less natural.
But the more significant of Hittinger's objections is the other. The chief problem seems to be that Suarez puts a demand on the natural law that it cannot satisfy, the demand that the divine legislator and his act of legislation be as evident ("immediately" available in "the order of knowledge") as the precepts of the law itself (51). This demand, which Hittinger considers unfulfillable, opens the way for the Enlightenment thinkers, who attempt to pursue natural law by collapsing the important distinction between the order of being and the order of knowledge. Hittinger's account of Aquinas on these matters is quite puzzling, however.
As we have seen, he insist that Suarez is mistaken to think that Aquinas believes the recipient of the natural law necessarily knows or even needs to know the divine legislator. "The promulgation" can be "effective even if the creature has only the foggiest idea of law's origin in the divine mind" (52). Yet, on the other hand, and in a more Suarezean vein, Hittinger also affirms the following: "St. Thomas thinks that a human agent ought to know, not just by argument, but by simple inference, that moral norms bind by virtue of something other than our own mind. . . . The movement of the mind from the effect (moral truth) to the cause (God) is something that in principle falls to the human reason" (54). Indeed, Hittinger quotes Aquinas to the effect that a person lacking this knowledge of God (as the cause and therefore legislator of the moral law?) is "very blameworthy" (293 nn. 49, 50). Of this inference, Hittinger says in a statement of masterly precision, "Thomas does not insist that it depends in principle on religious faith" (xx). Of course, if he did so insist it is not clear we would be justified in speaking of natural law any longer. But it is noteworthy that Hittinger does not make the more straightforward affirmation: that this inference does not depend on religious faith. Hittinger concludes this part of his discussion with the revealing claim that "Thomas shows no interest in making this inference depend on a formal demonstration. . . . He never argued that knowledge of a superior cause is exclusively the work of demonstration" (xxi). All of this is interestingly ambiguous. The upshot seems to be that many people, for non-philosophic or non-rational reasons, infer from the moral order a higher cause ("philosophically untutored inferences from the things that are, from tradition, and also, for Christians, from infused faith") (xxi).
It is not easy to put together all the pieces Hittinger serves up here, for they seem to ill cohere and at times contradict each other. His main point, not so baldly stated as this, however, seems to be that Aquinas does not take the Suarezean line because in point of fact a rational "proof" (demonstration) of the legislating divinity does not follow from the facts of moral consciousness. Perhaps the situation is this: the Thomistic-Hittingerean view is that God's existence (as legislative actor?) is inferable (demonstrable) in other ways and from other data, but not from moral data per se, but that many do (irrationally?) infer all that from moral data anyway. That position would distinguish Aquinas from Suarez, who affirms evidence of the divine legislator in the moral data themselves.
Yet Hittinger and Aquinas consider it morally blameworthy if the inference to the divine legislator is not made. To the degree that is true, they would appear to be drawing back toward the Suarezean position. The more considered Thomistic-Hittinger doctrine seems to be, however, that promulgation of the natural law does not require promulgation of the law-giver (in the order of knowledge), but merely the existence of the law-giver (in the order of being).
But Hittinger gives us remarkably little aid in understanding Aquinas' actual view about promulgation. Aquinas, we have seen, claims that the natural law is promulgated through being "instilled" in the human mind. This claim sounds much like the claim about innate ideas that Locke made such hash of in Book I of his Essay Concerning Human Understanding. One cannot help but suspect that Aquinas had something more subtle in mind than the relatively crude position Locke refuted.
Hittinger does not push this question very hard, but he concedes that the character of natural law as law depends on a satisfactory account of the law's promulgation, so let me briefly try my hand at it. In one of the two articles devoted to promulgation in the Question on natural law (Q. 94, A2, 4), Aquinas raises the question of "whether the Natural Law Contains Several Precepts, or One Only?" (A2). As he develops his answer, it becomes clear that the question of the substantive content of the natural law is inseparable from the question of its promulgation: what is known is inseparable from how it is known. The "precepts" of the natural law are several, and include the "first principle of the practical reason" (pace, Hittinger). Just as "being" is that which is self-evidently apprehended by the speculative, so "good" is the first principle self evidently apprehended by the practical reason. The practical reason grasps "good as that which all things seek after," or, as a proposition properly of the practical (acting) reason: "good is to be done . . . and evil is to be avoided." Although there are other precepts of the natural law, this first principle of the practical reason has a certain privileged status, for "all other precepts of the natural law are based on this, so that whatever the practical reason naturally apprehends as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided" (A2, Resp.).
The other precepts of the natural law are given by the natural inclinations, of which Aquinas gives us a brief but sophisticated account in the immediate sequel. The inclinations point to natural human goods. They are, in that sense, teleological, and remind, for example, of ancient philosophic accounts of human good. What is less than clear to this point, however, is why Aquinas says "all other precepts of the natural law are based on" the first precept. The answer seems to lie both in the particular relationship between the first and other precepts, and in the form of the first precept, notably different from the natural inclinations themselves. The latter point is particularly significant, for in form the first precept is a command: seek the good, avoid the evil. This is admittedly empty in itself, but the natural inclinations identify what the goods (and evils) are. The first precept thus enters into each of the others by transforming it from a proposition of the form "x is a naturally known good" into the form "seek (do) x." The first precept is the element that promulgates the natural goods in the form of commands, or, to put it otherwise, as laws. The combination of the first precept and the others (all naturally known and in a sense, but not a crude sense, infused) allows Aquinas to conclude that the natural law is sufficiently promulgated to qualify as a law, despite that fact that knowledge of God the legislator is not (as Hittinger says) also promulgated in this way.
If this, or some other account captures Aquinas' views on promulgation, we can readily see Hittinger's point that Suarez has departed from the original Thomist position. This construct leaves Hittinger in an awkward position, however. If it is correct that the legal character of the natural law can in fact be adequately established by this argument, then the central claim he wishes to make in this book does not follow: it is simply not the case that there is no natural law without God, for Aquinas has arguably established the legal character without God. Now at this point, Hittinger will no doubt appeal to the distinction between the order of being and the order of knowledge. Aquinas knows that God is the legislator and the natural law is the mode of human participation in the eternal law. But many (most?) can know they are legally bound by natural law who do not know of its source in God. Their knowledge of the law and their obligation to it is apparently more evident than their knowledge of the legislator.
I believe it is not sufficient to appeal to the distinction between the order of being and the order of knowledge as Hittinger (and perhaps Aquinas) wish to do at this junction. This, I believe, is the point of Suarez's revision of inherited Thomist doctrine. The natural law is not a law like the law of gravity; it is law addressed to rational beings and appeals to their capacity for rational and voluntary action. The natural law binds them not because they can do no other, but because they understand the normativity and obligatoriness of it as a law. But Aquinas had insisted that the legality of law depended on the existence of a law-giver. Here the distinction between the order of being and the order of knowledge must collapse: the natural law cannot be a law for those addressed by it unless all the elements that make it a law are promulgated, i.e., present in the order of knowledge. Either the general definition of law must be adjusted so that the legislator is not universally necessary to impart legal status to norms, i.e., to capture the adequacy of the argument about promulgation prescribed above, or one must accept the Suarezean emendation of the Thomist position, or one must concede that the case for natural law has not been successfully made. What one cannot do is stand where Hittinger does. There, Michael Jordan, is my jump shot!