NATURAL LAW AND VIRTUE

If virtue is making a comeback in contemporary moral philosophy, the came cannot be said of natural law.

I think this is unfortunate. Indeed, it seems to me that our understanding of virtue will suffer fatally if we seek to separate virtue from the objective conditions in human nature which support it.

Much continues to be written on the subject of natural law, some of it excellent, but the very ascendancy of virtue carries with it the suggestion that to speak of human action in terms of law is to adopt an exiguous conception of persons. More seriously, there may seem to be a conflict between the natural law and virtue approaches to moral philosophy.

Iris Murdoch, in The Sovereignty of the Good, was one of the first to draw attention to the fact that the actor cast in the role of human person in the then dominant way of doing moral philosophy had little to do with flesh and blood individuals. The moral agent was thought of as someone facing a puzzle and seeking a solution to it, the suggestion being that getting clear about the problem and finding the solution to it summed up the ethical task. From this seemingly innocent assumption, odd consequences result.

First, the following disjunction presented itself. Either every waking moment is one in which the agent finds himself puzzled or the moral life is episodic. Since it is false that humans are forever confronting quandaries, the moral life, on the view in question, would be composed of those separate and discrete occasions when one is confronting a moral problem. But how is human life in the intervals to be described? As amoral or non-moral or what?

Second, the assumption that the moral life consists of events when the agent confronts a cognitive problem – “What is the right thing to do?” – predictably ran afoul of one of the oldest issues in moral philosophy. We cannot assume that knowing the solution is the solution. Nothing, alas, is more familiar to us than that we sometimes act against our best knowledge of what it is that we ought to do.

The hope that knowing what we ought to do is tantamount to doing it dies hard. Socrates insisted that knowledge is virtue. The reverse of this claim is that acting badly is due to ignorance. Once ignorance is replaced by knowledge, it becomes impossible to act badly.

So ran the theory. And of course it ran aground on common human experience. The conclusion is inescapable. Important as knowledge is, it is not sufficient to guarantee good action. But if ignorance does not explain bad action, what does?

When Aristotle discussed the Socratic claim that to know what we ought to do suffices for doing it, he observed that it all depends on what we mean by “know.” Someone napping on the lawn may know more nuclear physics than anyone else on the block, but presumably he is not presently considering it. Having knowledge and using it differ. So too someone can know something in general and not see its particular application. One might know that heat is soothing to an injury and not know that by doing such-and-such heat will be generated and comfort gained. Aristotle concludes that one can know something yet not be actually considering it, and know generally but not in particular.

Still and all, it may be wondered where such criticisms lead. What view of human agents could be substituted for that according to which we sometimes confront problems and have to solve them and use our minds to do so? It would seem very strange indeed to invoke Aristotle’s authority against a position which stresses the fact that human persons are rational agents. Indeed, the mark of man, Aristotle observes, is that he acts according to reason and is good or bad insofar as he does this well or ill. True enough, but Aristotle also said that we do not become good by philosophizing.

It is not a question of denying that good behavior involves correct thinking, but of asking what kind of thinking is involved. And one way of hitting upon the kind of knowledge on which good human action depends is by noticing the distinction between changing one’s mind and changing one’s life.

When Aristotle denies that knowledge is virtue, what he means is that the Fifty Drachma course from Protagoras is not just as such what will make us good. Abstract knowledge, what Cardinal Newman called “notional” thinking, does not engage us where we live. Newman contrasted the notion with the real. So too, Kierkegaard, another giant of the 19th century, contrasted Thought and Being, thinking and existing, but pointed out that existing, doing, acting, follow from another kind of thinking.

When in the Nicomachean Ethics, Aristotle confronted head-on the position Plato ascribed to Socrates in the dialogue Protagoras, he made an analysis of practical discourse. (He actually uses the phrase “practical syllogism”, but then syllogism means discourse.) The discussion becomes somewhat technical, but the most striking element of it can be expressed as follows. The way we think as we act depends on the kind of person we are. That is, the thinking that guides our choice is essentially dependent on our moral character.

Like so many points made by Aristotle, this one is easily seen to be true. The reason we do not expect a coward to act bravely is that his way of assessing the circumstances in which he must act is colored by his past craven behavior. Isn’t this what we mean by “rationalizing?” So too the sensualist sees the arena in which he must act through the lens of his disordered appetites. And, on a happier note, the brave and the just see the demands of courage and justice correctly because, to use the familiar phrase, their hearts are in the right place.

St. Thomas Aquinas develops this contrast in a way that exercised a great influence on, among others, Jacques Maritain. Imagine that you want advice on a matter pertaining to chastity, St. Thomas says. You might consult a moral theologian and he would speak to you generally but for all that say important and true things. He is not speaking in propria persona; indeed what he says is quite impersonal. He speaks with the authority of the knowledge he has, and the advice he gives, the judgment he makes, is, Thomas suggests, in the manner of knowledge (per modum cognitionis). On the other hand, you might consult a chaste man who would listen to you, think a bit, and then begin by saying, “well, what I would do . . . ” He puts himself in your shoes and he sees the situation you have told him of with his own eyes, through his own character. He speaks in his own name and his advice reflects the best of his character; he judges, Thomas suggests, by way of a kind of connaturality with the end in view (per modum inclinationis). It is not that the moral theologian knows and the other man does not; rather, it is the different kind of knowledge each man has. And that of the man of experience is more proximately related to acts his listener might perform.

Like Aristotle, St. Thomas regards general knowledge of what we ought to do as valuable, but of little help when we act, since actions are singular and particular. Indeed, taken by itself, general knowledge of what we should do does not amount to much for the mind to lay hold of since it seems to be always in need of qualification – “by and large” – and, more importantly, of application. One does not need a moral theory in order to be good and one can have a moral theory without being good. Nonetheless, it is best to have both.

Natural Law

We can now state the opposition between natural law and virtue in a sharper way. Virtue (or its opposite) is that thanks to which we are what we are morally; furthermore, it is decisive for action in a way general knowledge is not. Whether virtue is moral or intellectual, having its seat in appetite or mind, respectively, it carries the imprint of reason. It is something we have (and thus is called a habit), it is our character, marking us as the moral type we are. Under its influence, correct choices are made easily, almost routinely. Habitual behavior is rational because it exhibits the rule of reason ingrained in appetites and inclinations. It is the existential realm of connaturality, of affinity and kinship with the known good.

As opposed to what? To general, disengaged, impersonal knowledge, notional thinking. And here’s the rub for natural law. Natural law consists of the first, overriding, non-gainsayable principles or starting points of practical reasoning. These principles, accordingly, are not only general but most general, as general as you can get. “Do good and avoid evil.” “Be brave.” “Be just.” “Act prudently.” “Nothing in excess.” I have stated them as commands because this underscores how little they help us in the crunch. The soldier in battle, wondering what to do, is not enormously helped by the command that he act bravely.

A man tempted in the way Graham Greene’s Scobie is tempted in The Heart of the Matter is not immediately helped by being told he should be chaste. Of course, there are easily imagined circumstances where such general precepts would bear a quite particular interpretation. Kipling’s reiterated “Be a man, my son,” has specific content because of the contrasting behavior of others. But in and of themselves such common commands, by covering all possible cases, do not specify what I should do here and now.

Anyone who has read much about natural law will recognize here a standard criticism brought against it. “Do good and avoid evil?” Who would not accept that and contend that what he proposed to do is in keeping with the injunction? I propose to show how this feature of natural law, far from being a weakness, is precisely its strength (I do not say, its virtue).

The principles of natural law are often called precepts or commands on an analogy with the kind of things legislatures create. A law or statute is passed to govern behavior of a certain kind in a society. One is enjoined to act in one way rather than another, the injunction carries authority and punitive sanctions are attached. One might obey the law in order to avoid punishment, but that is scarcely a justification of the law itself. It would be an odd law that enjoined us to do something in order to escape punishment. What we are told to do could then be just anything. But ordinarily laws tell us to do quite specific things with the implicit reason that action of that kind will be conducive to the common good. That is, a law or precept orders us to take certain means either in order that the end of society be achieved or that it not be thwarted. The underlying model would thus seem to be end/means.

In classical times or the Middle Ages or a century or two ago, men spoke of the morally educative role of civil law. Laws enjoined actions which if not morally good were morally neutral and obedience to the law created the habits of the good citizen for whom the common good of the society took precedence over his merely private good, not because he feared punishment, but because the law helped him to become ordered to the common good as his good.

Many statutes, of course, bear on matters which are morally indifferent, but the law elevates the indifferent to a moral status. Abstractly considered, there is no more reason to drive on one side of the road than the other; nonetheless, given the traffic laws, one has a moral obligation to obey them. Why? Because they aim at the common good.

Law and Natural Law

Sometimes there are laws which cannot be interpreted in this way. In a given society, the buying and selling of human beings may be legally condoned. In another society, the aborting of unborn children may have legal sanction. William Shirer, in The Rise and Fall of the Third Reich, devotes an entire chapter to a discussion of the care the Nazi regime took to make its practices, including genocide, a matter of law. Concentration camps, the incinerators at Dachau, were within the law. In all these cases, the critic will say that the laws in question are not aimed at the common good. He will say that these laws are unjust. He may even say that these laws are not laws.

Now clearly in some sense of the term even a bad law or an unjust law is a law. If it is enacted by the legislature or enunciated by the monarch, if it follows the legislative procedures of a given political regime, it is a law. To what then is appeal being made when it is said that a law is unjust or not really a law? At the Nuremberg trials there was talk on international law and this concept came under severe criticism. The world court and other creatures of the United Nations, to the degree that they depend on a notion of international law, may be open to the same criticism. The notion of international law, if it is taken to be the product of a supranational legislature, is a fiction. Consequently, courts which interpret international law would seem to be fictions too. (That they are often ideological instruments is another matter.)

This not to say that countries do not bind themselves by treaties and even seek a third country to arbitrate differences, but this is not like appealing to federal law over state law or state law over municipal.

The Nuremberg trials were justifiable, not because some supranational body had passed laws that the Germany of Adolph Hitler violated, but because there is an unwritten law, known to all, and such Nazi practices as genocide, even if allowed by the laws of the Third Reich, were in conflict with that law. With moral law. With what from time immemorial has been called natural law.

”Law” is used here in an analogous sense. Of course, we think of legislatures when we hear the term; we are meant to. Only if we are clear about what we mean by “law” in this sense, can we grasp the extended sense of the term at play in such phrases as moral law and natural law. Natural law may be law only in an extended sense, but what it refers to is the measure of law in the ordinary sense. A law permitting murder is in conflict with the natural law injunction against killing the innocent; that is why it is an unjust law. To deny that it is a law at all is not to claim it failed to meet certain procedural requirements, but that it enjoins action which would thwart the common good. When we appeal beyond the law, it is to natural law that we appeal.

Ethics and Natural Law

Individuals making moral decisions are forming a judgment as to how they should act in these circumstances if a certain end or good is to be achieved. That judgment may be called a precept, as if the agent were issuing commands to himself, but of course it does not have the force of law nor is it incumbent on others to obey him. This is already the case with the judgments of the moral philosopher. Say I write a book on moral philosophy in which I go on and on about what people ought to do in this area of action and that. You read the book and go on living as before without fearing that the McInerny constabulary, their uniforms reminiscent of the Swiss Guard, will show up on your doorstep with a warrant for your arrest. The charge? You have violated the principle laid down in Chapter Four of my book.

If the judgments of moral philosophers and the judgments of individuals as to what they ought to do do not have the force of law, they nonetheless have this in common with the precepts of law: that they enjoin an action with an eye to attaining some end or seeing that an end is not thwarted. Thus the end/means analysis is common to law, to ethics and to individual practical reasoning. That is why it was once all but universally held that the mark of a humsm action is that it is an undertaking for the sake of some end. That is, of any human action whatsoever it can said: it is for the sake of some end.

Just as natural law is of importance when questions arise as to the status of civil law, so it is of importance when the question arises as to whether or not there is any objective standard of human moral judgments. The legal positivist holds that a society can make any law it wishes and that the law it makes is a law and that is the end of the matter. There may be procedures within a society for changing laws as well as making them, but while a law is a law it is quite simply a law. On this view there is nothing to prevent a society from legalizing genocide, abortion, homosexuality, child abuse, and so on.

Surely it one of the profoundest ironies of our day that while the Nazi genocide, under the label of the Holocaust, has become an almost universal symbol of unequivocal evil, legal theorists of the positivist persuasion argue that the Nazi laws were no less laws than the prohibition of mass murder in other societies. But to say that a moral objection to law leaves the law as untouched is to trivialize the moral condemnation.

It was not all that long ago that an analogue of legal positivism was imported into ethics by R. M. Hare. Like Aristotle and Thomas, Hare saw moral discourse as a search for means to an end. Such discourse would seem to be reducible back into common overriding principles, and Hare agreed. His reader was somewhat surprised to learn that, according to Hare, by all accounts a good and decent man, one might hold the extermination of Jews as his principle. Thomas and Aristotle would have said that such a principle is a bad one, a false one, an erroneous one, but Hare did not feel such talk is justified. If someone held that all Jews ought to be exterminated and continued to hold it even if he discovered that he himself was Jewish, then nothing more can be said. The principle passed the only tests Hare knew for a principle to be a moral principle, such formal tests as universalizability. There is no way to assess or appraise or rank or condemn moral principles as such, nor does there seem to be any substantive reason for holding those we do. The principles we hold are held on the basis of feeling inclination, whatever, what Hare called a “Decision of Principle”; there is no objective, realist defense of them possible.

Universal Emotivism

Far from maintaining a unique position, Hare could be said to have expressed rather precisely a common assumption about moral judgment and moral disagreement. We might engage in a rational discussion about how we and others ought to act on the assumption of some goal or principle, but if the principle itself comes under question, the discussion stops. There are irreducibly different points of view. Radically different opinions. I see it one way and you see it another. I can reason within the assumption of a point of view, a principle, an end, but I cannot maintain that it would be false to say that the pursuit of an end contrary to this one is fulfilling of the kind of agent we are.

Notice what is not being said. It is not a matter of pointing out how difficult it is to change other people’s minds and how even more difficult it is to get others to change their lives. Emotions get in the way, commitments, person history. All that is true but leaves open the question whether a given course of action can be argued to be incompatible with the kind of agent we are. It might be hard to change a Nazi’s mind but that does not mean it is impossible to argue that genocide is wrong.

Secondly, there are all kinds of compatible objectives and goods and ends that humans pursue. This agent cannot pursue a given end and its opposite, but it may well be that either end is a good one. Moral realism in the form of Natural Law does not commit one to the view that in any given set of circumstances there is one only course of action that could justifiably be performed Not at all. It is part and parcel of the Natural Law tradition that the moral life is all but definable as actions performed according to practical judgments that are only for the most part binding. Most moral advice is tentative precisely because there is not a single right thing to do in given circumstances. It falls to each moral agent to fashion his particular path through life.

What Natural Law maintains is that there are objective parameters of our moral life, that at the limits of moral discourse there are some few principles or precepts which hold not just for the most part, usually, but always. This is clearer in the case of negative precepts. We are never permitted to kill the innocent. Stealing is always wrong, and so is lying. Fornication and adultery can never be done licitly. And so on. But the moral ideal which consists of temperance and courage and prudence and justice is not optional. It is true of every human agent that he should be just, temperate, brave and wise.

Earlier we mentioned that it is a familiar complaint against Natural Law that it does not tell us what specifically to do. It does not. Some actions are conducive to justice and others thwart it, but most judgments about how we should bring about the end of justice do not deal with means without which justice could not be achieved. The moral task is to apply the ideal to ever changing circumstances. Of course Natural Law, which consists of the most common principles, does not tell us how to apply them here and now. The fundamental importance of Natural law is to show the impossibility of the kind of radical relativism positions such as Hare’s involve. If MacIntyre is right in maintaining that Emotivism characterizes modern moral philosophy, and emotivism is untenable, I suggest that Natural Law is involved in the effort to show it is untenable.

Let us say that, in speaking of a proposed course of action, you say it is the thing to do, meaning the moral thing to do, and I strongly disagree, saying it is wrong. Your judgment takes the form “X is good” and mine the form “X is bad” and X stands for the same thing. What you might mean is that doing X fits in with your vocation or plan or goal and my disagreement might then mean that you are wrong to think that getting an MBA will advance your career as a pole vaulter. Let us say that there are things to be said on both sides and there is really no knock-down-drag-out way of resolving the issue. This sort of disagreement happens all the time; it is of the essence of conversation. We may think that there are better reasons for the one course of action than for is opposite, but usually we recognize that there are some reasons on the other side. Furthermore, one need not be a pole vaulter nor even have an opinion about how advancement – or elevation – can be gained in that pursuit. No ethical theory should promise to help us find the one and only course of action in any circumstances whatsoever.

What seems to be widespread today is the notion that there are irreducibly different outlooks or standpoints which lead to different notions of what is right or wrong, good or bad, and that we simply cannot discuss these outlooks. We cannot say that one outlook is bad because to say this is to say it from another outlook. When adopted as a radical position, this relativizes moral judgments, and leaves one theoretically without resources to declare that genocide is wrong. (I am assuming that any moral theory that cannot give reasons why genocide, murder, theft, etc. are wrong is a radically deficient moral theory, indeed is a moral theory only in the way a bad law is a law.) “X is good” may be true from your point of view and false from mine. Fair enough when the value of X is pole-vaulting; pernicious when the value of X is genocide. Not only is it pernicious to hold this in the case of genocide, it is also incoherent. How?

The Incoherence of Relativism

To say that all judgments are relative is to get involved in something like the Liar’s Paradox. If your judgments that all judgments are relative applies to itself, then it does not apply to my judgment that all judgments are not relative. If it does not apply to itself, then it is false. One dislikes this kind of refutation because it has an excessively tricky sound to it. Nonetheless, the only appropriate way to hand a verbal denial of the undeniably true is to show that the negator cannot consistently maintain his position. Such a reduction is not meant to establish the truth of anything so much as to make it clear that some truths are so fundamental they cannot coherently be denied.

Very well. It cannot be universally true that each and every moral judgment is relative to a standpoint one may or may not adopt. (A further feature of Emotivism, remember, is that the adoption of standpoints or principles is irrational and thus not susceptible of justification.) However hospitable moral discourse is to relative judgments – most moral judgments are relative, true only by and large if true at all – fundamentally, at its limits, moral discourse reposes on judgments that are necessarily true and self-evident in the sense that one cannot coherently deny them. What principles are these?

Obviously, to see that universal moral relativism is incoherent does not as such inform us as to what the moral absolutes are. But then we do not begin thinking about the moral life from such an abstract and formal perspective. Moral philosophy is a special reflective instance of the thinking we engage in when we act. In acting we are sorting out possible courses of action, weighing and appraising them, choosing the one that in the circumstances seems to us best conducive to the end in view. We have at least implicitly adopted a notion of what the human good is and how it can be obtained. This is why Plato and Aristotle begin by wanting to clarify the nature of human happiness, the human good, the ultimate overriding end. They attempt to free from the particularities of this action and that the embedded implicit notion of the human good. Human agents make decisions as members of families and societies and sometimes as mere individuals and it was clear to the Greeks that a human being could attain the fulfillment that is implicitly pursued in any action only as a citizen and member of a family. “Man is by nature a political animal.”

That is the essential note of the Natural Law. We must fashion our lives with free and responsible choices and the area left to our own devising is, abstractly speaking, almost total. Nonetheless, there is the given of our nature to provide a remote guide. If we are naturally political, there are numberless morally legitimate ways in which society can be organized. Natural law is a constraint in the sense that it makes it clear that we cannot speak of the human good if we do not think there is any human nature to be brought to fulfillment. What is fulfilling of the nature that is ours is temperance, courage, justice and practical wisdom. “Be temperate” may not tell me what to do or not to do here and now, but it provides an ultimate criterion of assessment. To assert that intemperance, cowardice and injustice are the human good is not simply an undiscussable alternate viewpoint. It is an untenable because incoherent position. Genocide is not simply in conflict with my outlook (but just fine from a Nazi point of view); it is a perniciously false claim about what is fulfilling of the kind of agent we all are.

It will be seen that Natural Law is not a position one puts forward as following from something else and provable in that way. The precepts of Natural Law are those no one can fail to know, at least in this sense that attempts to hold their opposites lands one in self-contradiction. Natural Law has this feature in common with other first principles. One does not prove the Principle of Contradiction; rather one shows that the denial of it can only be verbal. (If A = [p . –p], then –A is as true as A, and one has asserted nothing.) So is it analogously with the starting points, principles, of practical reason. We do not try to persuade someone that he should seek the good. We do not honor the claim that the human good has nothing to do with reason – any attempt to show that to be true exhibits its recognition of the centrality of reason. In much the same way we deal with claims that murder is sometimes right, that stealing and lying are in certain circumstances permitted, and so on. Natural Law is proved by showing that seeming alternatives to it are incoherent.

I began by suggesting that, welcome as is virtue’s return to prominence in moral philosophy, it stands in need of the supporting doctrine of Natural Law. The reasons for that suggestion will now be clear.

Virtue or character is a settled disposition or habit thanks to which we easily and quickly appraise the fleeting situations in which we find ourselves in the light of an end or good that is ours, a good with which we have affinity and connaturality because of our past history of pursuing it. We are inclined and ordered to it, cognitively and appetitively, and this enable us to recognize opportunities that would not otherwise be clear to us. Not to have a virtue is not to be in a neutral condition. Every agent has a personal history thanks to which he has the character and habits that are his. He may have acted in such a way that he is unjust, intemperate, cowardly. He is thereby inclined to see situations in which he finds himself in the light of ends he has long pursued. If he is unjust, he will be blind to the demands of justice in a concrete situation. If he is a coward, the opportunities of brave action will not even occur to him.

If something like this is true, moral character seems to relativize action in a fairly decisive way. It is at least a partial reason why we sometimes find others unintelligible and sense that they find us the same. Their way of looking at things is simply not ours and it is as difficult for them as it is for us to rise above our outlook. Oftentimes, most often, these differences are morally legitimate and testimony to the freedom with which men can pursue the good indicated by their common nature. But when a parent tells his child he must not lie, he is not merely passing on “his values,” imposing on the poor child his own viewpoint. No more do lawgivers consider that they prohibit murder. The case against murder is not that it is incompatible with what lawgivers think: rather, it is incompatible with the human good. Lawgivers must think that truth to act on it, but it is not their thinking it that makes it true.

Of both the virtuous and the vicious it can be said that, thanks to their character, their freedom has been modified, as well as their ability to see things from another’s point of view. In some sense, they may have nothing to say to one another. When they do talk, the proponent of virtue is painfully aware that, however telling his arguments, it is unlikely the other will be changed by them. “One does not become good by philosophizing.” In short, we may seem to have here all the elements that have led to radical moral relativism. That is why it is important for the proponent of virtue to recognize that the denial of the good he seeks does not have equal status with its affirmation. Furthermore, the denial cannot consistently be maintained.

What is the relation of Natural Law to habitual virtue? Its most important role is in distinguishing those habits which are virtues from those which are vices. Unless the great ends of action are appropriate to the agent, are what is good for him, the rule of reason ingrained in appetite will guarantee that we act badly rather than well. Thus it is the humble but important function of what is called Natural Law to say obviously true things about moral agents, to sketch at a level of great universality the constituents of the human good, and thereby state the limits of moral discourse, to show the moral skeptic that his position is untenable and to enable us to see that the personal, connatural thinking that is embedded in action reposes ultimately on general principles whose enunciation is occasionally a matter of great practical importance.

If virtue is the personal appropriation of the good sketched in the precepts of Natural Law, Natural Law provides the ultimate basis for seeing our common humanity in a way that celebrates the inexhaustible legitimate differences exemplified in virtuous acts.

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