What is Natural Law?

We have an interesting discussion over on the NewsReel Blog concerning the notion of Natural Law. For the Founders, Natural Law was a fundamental concept in forming this new country, but David Swindle says he has always had a hard time understanding this key idea. He states:

With “Natural Law” there’s nowhere to dig. With “Natural Law” it’s as though someone says, “Well that’s just the way it is” in answering an argument. It has a religious sensibility. Someone might as well be saying “It’s true because the Bible says so.” And because of that I have a hard time taking it seriously at an intellectual level.

He tells us that he is a former radical who came to conservatism late. I would suggest that his radical past might account for a good bit of his problem with Natural Law theory, although by saying that, I do not mean to sound unduly critical. I think we all suffer from the same cultural influences that brought out the radical in young Mr. Swindle, even those of us who never flirted with radicalism. And it is these all but unconscious influences that produce a certain cognitive dissonance when we try to understand ideas from 200 years ago.

Among these influences, the Western fact-value distinction has special relevance to the (mis)understanding of Natural Law. In its simplest formulation, the fact-value distinction tells us that we cannot reason from what is to what ought to be. Facts and values inhabit two entirely different categories of thought, each with its own set of assumptions and terms, and never the twain shall meet.

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As it has come down to us, though, the fact-value distinction carries a modernist skeptical twist: not only are facts and values distinct, but facts are empirical and rational (and good), whereas values are conceptual and irrational (and bad).

We see these assumptions playing out in our culture all the time, in ways large and small. Hidden behind Mr. Swindle's own quote above is the reflexive notion that Natural Law does not appear to derive from anything rationally intelligible. But that is because Natural Law is sub specie ethics and morality, and therefore within the realm of values, which we moderns are conditioned to regard with suspicion.

But this modernist twist of ours is itself a value-laden decision that facts are somehow more concrete than values, and begs the question of Natural Law. To recapture the truth of the Founding, understanding Natural Law is critical. To do so, we moderns must shuck ourselves of our prejudice against ethical and religious values, and step into 18th Century shoes.

Natural Law was based on the Aristotelian notion that the world could be understood on the basis of purpose or teleology. Dogs had a certain clearly discerned nature, that which defined it as a dog, as did other animals. And so did Man. Man was the rational animal, the animal whose distinctive teleology was to think and reason about the world around him. As Kurt Vonnegut put it in Cat's Cradle:

Tiger got to hunt, Bird got to fly, Man got to ask himself why, why, why?
Tiger got to sleep, Bird got to land, Man got to tell himself he understand.

Vonnegut's skepticism aside, there are two important assumptions in this Aristotelian notion: (1) that nature manifests order; and (2) that this order is discoverable and understandable by Man in his rational capacity. Natural Law carries these assumptions into the spheres of ethics and morality. Man's good is to be in an ordered and just society, and what that order and justice should be is both discoverable and understandable by Man in his rational capacity.

It is here that we modernists usually stop. As Pontius Pilate asked without expecting an answer, "What is truth?" so we ask, "What is order and justice?" and expect there will be no answer, too. As Mr. Swindle puts it, our experience is that "we all come to different conclusions on issues. Perfectly good, reasonable people come to polar opposite ideas on issues."

But, in fact, we do know what an ordered, just society is, in great part because our Founders showed what it is: a society based on liberty, the rule of law, and the consent of the governed. We also know a free society is more ordered and just than a non-free society because we saw the depredations inflicted on millions of people by totalitarian systems, and also the creeping dystopianism of the soft tyranny of nanny state socialism.

In all of these cases, what we are doing is discerning an order and justice in the very nature of things, which is exactly what Natural Law theory posits we can do as rational human beings. On this understanding, the problem of "good, reasonable people com[ing] to polar opposite ideas on issues" is simply a problem of education, which is precisely what Mr. Horowitz, Mr. Swindle, and many others in the conservative blogosphere are attempting to do, every day.

When confronted with an advocate of statist socialism, do Messrs. Horowitz and Swindle retreat into skepticism? Of course not. They pull out the history of the United States, the achievements of this free society over the last 200 years, the happiness of its citizens, the envy it receives from the world, and all sorts of other evidence that freedom works and socialism does not. What is this other than discerning and understanding proper order and justice in the world, just as Natural Law theory says we can?

It is true that many ethical and moral values underpinning Natural Law are also religious values. This should not be surprising. Catholic/Aquinian thinking posits that Christian truth is also rationally discernible in God's created world, not least because God the Creator was a loving, good God who would not "play dice with the Universe," as Einstein insisted. In fact, it was because of this overlap between faith and reason that the Founders (not all, but most) felt that strong religious institutions were essential to maintaining the moral virtue of the people so necessary to a free society. But that is a complex question for another day. For now, its only important to note that both faith and Natural Law reason end the same: the essentially just society is grounded in Freedom. In this sense, Natural Law is not a rational theory competing against religious faith, but more like an acceptable rationale developed for the irreligious among us.

That the ethical goodness of a free society is a concrete reality in the world, and that people can be educated about this reality is absolutely crucial to the notion of a free society. If such is not possible, then a government founded on freedom is not possible either. The Founders understood this, and rightly understood that what they were attempting was a grand "experiment" in self-government, an experiment that, thankfully for us, proved so incredibly, even outrageously, successful.