on natural law

its history and its misuses explored

Our strange situation: ‘discourse’ on natural law

Over the past few years, it has been a surreal experience — at times gratifying, at times unsettling — to watch the kinds of conversations that we had at two o’clock in the morning in our respective doctoral programs, conversations about the problems with effective altruism (University of Chicago) or about the Pelagian heresy (Oxford), become part of contemporary political discourse (or, at least, political discourse in our weird corner of Twitter). So it was, at first, with a degree of interest and amusement that we discovered that natural law was trending on Twitter.

The genesis of this latest discourse seems to be a rhetorical move made by the Catholic writer Michael Brendan Dougherty in National Review, arguing against the teaching of ‘critical race theory’ in schools by positing a hypothetical conservative counterpart. What if, Dougherty asked on July 7, “[t]he new natural law theory had sparked a broader movement that went under the banner of ‘practical reason’ … [a]nd school districts and teachers’ unions regularly paid Catholic apologists and priests who had good training in this theory significant fees to act as their ‘NNL consultants’”? A day later Washington Examiner columnist Tim Carney took the meme mainstream, exhorting via Twitter that “we need to teach natural law in the public schools.” The cry was reiterated by the Claremont Institute’s Matthew Peterson, then subsequently condemned, in a now-deleted series of tweets, by Yale professor Jason Stanley (author of How Fascism Works) who called the exhortations “a dogwhistle to white Christian nationalism”, sparking a further firestorm.

Our initial response was something along the lines of why on earth is natural law tending on Twitter? Stanley was criticized for a simplistic reading of natural law as merely some kind of metaphysical grounding for Catholic integralism. But he did have a point. Over the past few decades public discourse about natural law has undergone something of a transformation. Natural law, has, in the contemporary Christian political imagination, gone from something that governs our telos as human beings to, in too many cases, a reification of biological determinism. (Our telos is what we as human beings are for, given what we are.)

Shaped by the debates of the current culture wars, appeals to natural law have tended to become a way of “owning the libs”: rhetorical constructs designed solely to attack the fantasy of liberal self-making. In the process, natural law has been conflated, all too often, with the Darwinian law of nature.

A genealogy of this transformation might well begin with the aftermath of the infamous 1992 passing of "Amendment 2" in Colorado. This ballot initiative, which garnered the support of 53 percent of voters in a referendum, made it illegal for state agencies to enact any laws designating LGBTQ people as a protected class: overturning protections in places, like Aspen and Denver, that already had them, and in essence enshrining sexual-orientation discrimination in the state. A lawsuit — Evans v. Romer — was filed and the ballot initiative was ultimately found unconstitutional. During appellate arguments, the state offered up a number of expert witnesses, including the political philosopher Robbie George, whose purpose was to argue for so-called public morality as a compelling interest in upholding it.

But the history of ideas quickly became a site of debate, too. Philosopher and classicist Martha Nussbaum was called as a witness for the plaintiffs, while John Finnis, a law professor, drew on Aristotle, Plato, and Plutarch to argue that homosexuality, and indeed all forms of non-procreative sexual activity were at their core nothing but “the pursuit of an illusion,” the instrumentalization of one body by another. For Finnis, only the biological reality of childbearing (a possible, if lukewarm exception might be made for married, infertile heterosexual couples) provided a framework for a sexual relationship oriented not to instrumental pleasure but to the common good. 

The rhetoric here would come to define the place of natural law discourse in the wider culture wars. Natural law, divorced from its wider intellectual context, increasingly defined itself against liberal notions of self-making and desire. The liberal order (so the argument went) privileged “unnatural” desire, desires divorced from the biological reality of human life. So too did it privilege human ability to redefine and reimagine our human relationships and social orders, and hierarchies, separately from our place in a divinely-ordained communal system. Only within recourse to an older, higher law could liberalism’s unfettered self-inventing be sensibly restrained.

This kind of natural law talk continued to dominate Catholic, and ultimately wider Christian, discourse about culture war topics. In his 2011 manifesto for the Claremont Institute’s newly-instated Natural Law Institute, for example, Amherst political theorist Hadley Arkes laments those “judges soaring off, inventing new rights, all on the side of the Left, all untethered to any text or to any ground of moral judgment.” Arkes is explicit in seeing natural law theory as a necessary bulwark against postmodern nihilism. “The orthodoxies of postmodernism and relativism on the American campuses,” Arkes writes, “emphatically deny that there is a fixed human nature. ‘Natural rights’ they regard as an ideology of patriarchalism that justified the rule of white males. And ‘nature,’ they say, is ‘socially constructed’ from one place to another according to the vagaries of the local culture.” 

Natural law theory has, of course, been predominantly confined to Christian — often Catholic — spheres. Yet, over the past decade or so, a parallel, secular phenomenon has sprung up: the appeal to a law of nature as a similar rhetorical bulwark against “social justice progressives.” Proponents of this latter view, ranging from Stephen Pinker to Jordan Peterson, see themselves as attacking a similar phenomenon to proponents of natural law: liberal self-making, particularly when regarding gender roles and identity and (albeit less often) race.

In their characterization, liberals and “social justice warriors” (the distinction is often elided) both insist on denying scientific, biological truths about essential and instantiated human nature, choosing instead to ascribe power either to individual human choice or to “social systems” in the aggregate, as the summation of other people’s choices. (One of us wrote about this phenomenon in greater detail for the American Interest.) Rather, these thinkers argue, drawing on evolutionary psychology and cultural history alike, who we are is fixed, eternal, immutable. We have a nature we cannot change.

One element in this discourse (though one not universally held) is the assumption that inherent to our nature are fundamental distinctions, and importantly, hierarchical differences, between persons. We are not individuals, but rather pieces in a wider natural story, each with our own fixed place within that schema, despite (they argue) what idealistic liberals would have you think. Thus Peterson (writing in 12 Rules for Life): “The dominance hierarchy is not capitalism. It’s not communism . . . . It’s not the military-industrial complex. It’s not the patriarchy . . . . it’s not even a human creation . . . . it is instead a near-eternal aspect of the environment.”

This codification of the culture wars as fundamentally between “blank slate” liberals and “realists” (including, in the most noxious corners of the internet, those racists who call themselves race realists) has come to dominate — via the Intellectual Dark Web, the rationalist community, and adjacent publications like Quillette — the camp of owners-of-libs.

As these various thinkers have become increasingly allied in a post-Trump world — consider Peter Thiel’s conversion to Christianity or the increasing prevalence of “god-pilled” traditionalism as fashionable anti-modernity — natural law has, like any phenomenon in the cultural wars, become reduced to a meme, or an empty signifier. Whatever its meaning in theological and philosophical discourse proper, it is difficult to deny that, on Twitter, at least, natural law has become a way of responding not just to “CRT” but to liberal views altogether, in order to replace discourses of power, privilege, and violence with accounts of human givenness.

Both of us are inclined to sympathy with one aspect of this impulse. It is true that, beyond the often academic theological and philosophical discourse within which the concept of natural law was developed, we lack robust cultural notions with which to talk about givenness, about facticity, about our telos — to put it most generally, about the ways in which what we are made for might not be simply what we (are inclined to) choose. The language of natural law can, at its best, be a vital way to approach those questions of the true, the beautiful, and the good that modern relativism by its nature occludes. But we believe that the current wielding of “natural law” as a culture-war cudgel is dangerously limited, and that its proponents have lost sight of the concept’s wider ethical and metaphysical questions.

If natural law has a place in conversations about human nature and human purposes, we must begin from some sense of what this term has meant. We need an approach sensitive to intellectual history, not a memetic one.

A brief intellectual history of natural law

From the start, let us admit: what follows is a potted history, not an exhaustive or even a particularly scholarly historical account of the development of the notion of natural law. Rather, it is meant as a genealogy of the intellectual moments that have defined that development, from a specific vantage point in the now. One of us is a scholar of Aristotelianism, so the tradition that winds from Plato to Aristotle to Aquinas looms largest. Cicero, with his distinctive and influential blend of Stoicism and the Latin juridical tradition, is also crucial.

Nature contra justice: Greek skeptics about morality

During the intellectual flowering of the 5th c. BC in Greece arose something more than a hot take and something less than a movement: a number of thinkers arguing that justice (the concept most nearly corresponding to our ‘morality’) was (merely) a matter of social convention. We find hints of this view in the tragedians, in the historian Thucydides, and most clearly in various hostile characters in Plato’s dialogues.

We can reconstruct the core of their reasoning as follows. Legal statutes are clearly artificial, even if hallowed by tradition or religious sentiment. What if the whole of law — nomos, meaning what is customarily held to be proper, written out or not, virtually equivalent to the whole of social order — were similarly artificial, having only the backing of what people, here and now, tend to think?

There were, from the start, many versions of this idea. A particularly important one, for our purposes, is Callicles’s defense of a hedonistic immoralism in Plato’s Gorgias. Plato portrays Callicles — a character in a literary text, perhaps an invention, but in any case standing for a certain type of young aristocrat — as quite smug about having seen through the illusions of ordinary people. For Callicles, the principle of equal treatment that says it is wrong for a powerful person to take something from a weak person is only an invention and a conspiracy of the weak.

In fact, among non-human animals (e.g. the lion) and at the level of nations (e.g. the Persian Empire), we see the strong prey on the weak without restraint or sanction. In these cases, nature unvarnished reveals itself. And this, too, Callicles declares, is a kind of law, a general principle setting out the order of things, that shows how our social apparatus is a petty and insubstantial thing, at least for someone whose vigor cannot mean contentment with it.

When Callicles speaks of a law of nature, it is a rhetorical flourish worthy of his friend Gorgias. It is hard for us to hear this because the metaphorical use of law of nature is so deeply familiar to us, not least from the natural sciences. But nomos means not merely a regularity or a pattern, but also the social manifestation of (world-)order (kosmos).

To see such an ordering, outside the social world as presently constituted, as bearing on us is a key aspect of the natural law tradition. That is how a group of people who are skeptical about whether justice binds end up standing at the head of a tradition of moralists.

Plato has Socrates mount an at-times stirring reply to Callicles’s case. Among other points he makes, Socrates holds that Callicles has chosen his examples from ‘nature’ poorly and that harmony and order in fact prevail in the world as a whole. But no extended defense of this point about harmony — such as the ones we find in the Republic and elsewhere — is forthcoming. Readers of the Gorgias, then, may still feel unsettled (and be meant to feel this way) about the possibilities that Callicles raises.

Nature and reason: the promise of ethical naturalism

In others of Plato’s dialogues, especially in the Symposium, we find the kernel of a theory of specifically human nature that explains the shape of a good life for us. But it is in Aristotle’s ethics and politics that this idea, a form of what is sometimes called ‘ethical naturalism’, comes to be the key to understanding how our lives can be understood as both natural — as part of and embedded in the regularities of nature — and ours — as governed, at least to some extent, by choice, intention, institution, and custom. Ethical naturalism gives us a robust way of responding to the challenge of an immoralist like Callicles without appealing to cosmic regularities or the music of the spheres.

For Aristotle, crucially, there is no single Nature, but only a realm of the natural — this is simply the realm of changing things. Central to this realm are things that maintain themselves by changing, the best examples of which are living organisms. We are born, we grow, we live, and we die: throughout these processes, we maintain ourselves as we are, a status displayed most fully in the good condition that belongs to a healthy, mature specimen of the kind of organism we are.

The good condition for a gingko tree or a bear can be described simply in terms of health — of flourishing in the ways characteristic of that organism: for the gingko, roots reaching deep and leaves spreading far; for the bear, foraging and hunting, sleeping (perhaps hibernating), and so on; for both the gingko and the bear, reproducing themselves in offspring.

When it comes to human beings, maturity and health and flourishing mean something different, however. Because we live together on the basis of communicated and reasoned ideas of what we should do, maturity means the ability to participate in social and political life. Health means not only vigor but also a harmonious, self-consistent manner of life. Flourishing means living well as a kind of creature that lives by thought as well as feeling, a creature that, in striving for excellence and not only survival, achieves a share in divinity, and for whom life can be not just good (advantageous to itself) but also beautiful, splendid, worth celebrating.

For Aristotle, we belong to nature as changing things, but we also belong, in a different way, to the eternal and the divine. That is because we are capable of thought and, therefore, are vulnerable to encountering the timeless aspects of reality, which nevertheless always lie beyond us. To describe human lives fully, one needs to describe both the type of regularities that define the life of any living thing and to describe the thoughts, intentions, and decisions of any given individual and the social whole to which they belong.

Law is a central way that we maintain ourselves as reasoning creatures who live in societies, but Aristotle’s conception of law — unlike that of Plato, or later, the Stoics (see below) — remains on this human level. The central insight that Aristotle contributes to the natural law tradition is instead that human nature is regular and patterned even as we govern our lives, individually and collectively, by deliberation and reasoning: that these ideas are, indeed, harmonious, not in tension with one another.

Natural law as primary law: Cicero and ius naturae

But what explains this harmony between our natural constitution and the ways we govern ourselves by deliberation and reasoning?

Cicero, in his political works (De re publica and De legibus), articulates the natural origins of human sociability in much the same terms as Plato and Aristotle. We need justice and courage and moderation to live well with one another as the kinds of creatures we are and the seeds of these qualities dwell within us — in Cicero’s lovely expression, “we are born for justice”. We form societies based on our impulse toward companionship and friendship as well as our need for survival. We can view these needs (and the impulses to which they respond) both as aspects of human nature and as obligations discoverable by reason.

Despite these affinities with Plato and Aristotle, Cicero goes beyond them in an important way, following the lead of earlier Greek Stoicism: the use of specifically juridical language to characterize those obligations that belong to us by nature and are discoverable by reason. In fact, the core and highest meaning of law turns out to be these obligations, which are also the standard by which human laws must be evaluated; to speak of such human laws as “law” is in fact merely the way that ordinary people talk. The harmony between our nature and our use of reason, then, is a matter of derivation, the products of reason in human beings reflecting a primordial and primary reason in the very nature of things.

The difference between Cicero’s Stoic view and Aristotelian ethical naturalism is most easily understood by considering the scope of the ideal human society. For the Stoics, all human beings (and God!) belong to a single ideal community, even as they live in their own individual communities — joint-citizens of a rational world-order (an image that cast a notable shadow in the Enlightenment). For Aristotle, the Greek polis is the fulfillment of human sociability: its perfection depends on the resources and character of its citizens and the order provided by a constitution that governs their ongoing project of law-making.

Natural law and its supernatural origin: Aquinas and the Christian tradition

Arguably, in the work of Saint Thomas Aquinas, we find a synthesis of Aristotelian ethical naturalism and Stoic natural law that respects the difference between our reasoning and the order that the natural world contains, while still making room for natural law as more than a metaphor. For Aquinas as for the Stoics, the world is the creation of divine intellect, which explains what is lawlike in nature by appealing to a rational order that is prior to it. But like Aristotle, Aquinas holds that, within the realm of changing things, the natures of living organisms exemplify this order above all. 

Human beings participate in this divine order or ordering in two ways. All creation bears the likeness of God as a trace, the way a wax seal reflects the signet ring that stamped it. In being capable of reason, we, like the angels, also bear the likeness of God as an image, a kinship that promises the possibility of union and intimacy with our Maker. 

These two kinds of participation together define the special in-betweenness of human existence: natural law serves as an object of emulation for us, because its precepts direct us to the flourishing life for human beings. (We tend toward our goal, even if very imperfectly, just because of what we are.) But the precepts of natural law are also a starting point or foundation for reasoning about how we should act: our natural tendencies toward what is good — the seeds of ethical maturity and the possibility of flourishing — set the standard for what we should pursue. Our tendency to sociability, for instance, means that we ought to cultivate friendships, not just that doing so is useful or pleasant to us, because friendship is part of the articulated vision of a good life whose basis is a characterization in natural law of what we as human beings all share.

These ‘oughts’ of practical reason have the character of law in part because they mark out what we must not fail to cherish. (They are not simply recommendations.) Nevertheless, no particular policies — for an individual life or for a community in the form of positive law — immediately flow from this starting point, and natural law cannot simply be invoked as a cudgel in a practical dispute. The account given above is metaphysical — about how things stand in nature — though Aquinas adds to it a theory of knowledge on which we have an awareness of the most basic precepts by a faculty of conscience (synderesis). Even so, we can be mistaken about what natural law demands. Moreover, it takes an articulated theory of the qualities that human beings need for life with one another and the purposes that govern such a life to fill out the thin notion of tending toward the good on which this theory rests.

What this intellectual history shows

Appeals to nature as a source of authority can be used to undermine traditional morality (as skeptics like Callicles aim to do) or to provide it with a foundation (as the Stoics do). But natural law is best understood as an appeal to human nature. The tradition represented by Aristotle and Aquinas holds that human beings are intellectual and social beings, and that unpacking our nature is a matter of explaining how these dimensions fit together. By contrast, Hobbesian natural law theory sees society as a veneer and survival as our aim.

The choice between these types of natural law theory is a matter of correctly drawing the line between the artificial and the natural. In particular, the idea that we are born for justice — and for friendship — seems to better describe our tendencies (allowing for both our own shortcomings and those of all human societies) than the idea that each of us might be an ‘island entire of itself’. We are, rather, involved in one another. To recognize this fact is to see ourselves as essentially vulnerable and dependent.

Appeals to human nature that try to go beyond social facts (to some Ur un-social or animalistic nature) lose the ground they seek to stand upon. Natural law is an attempt to describe a certain set of social facts: the ones that are fundamental and shared by human beings as such. To denominate some facts essential because they are ‘biological’ in kind is to slip from the Aristotelian view into something more like the Hobbesian one. Our biological nature just is a social and a psychological one.

How to use natural law: a guide

As committed critics both of unfettered liberal self-making and of the kind of biological determinism that shadows so much of reactionary discourse, we believe that natural law can, and should, be a part of our civic discourse, even as our understanding of natural law differs from some popular conceptions. We hold that it is in the contradictions of the Christian self, in the ways in which we are both fearfully and wonderfully made and corrupted — in our bodies and souls alike — by original sin, that we are called variously not only to embrace, but also to resist the realm of the given.

Central to our moral obligations is discernment: the process of coming to know when givenness or facticity should be embraced (say: the recognition that there is a time in most of our lives when we become, by age or illness, distinctly vulnerable to others, and that this should figure prominently in our account of the human), and when it must be overcome in the name of a higher, stranger Christian calling that cannot be reduced merely to pagan pro-natalism or to, say, gender essentialism. This is, in other words, the discernment of purpose in our lives, a task that demands philosophical reflection, right attention to the world around us, and — at least, for us as Christians — the grounding force of revelation.

The process of discernment in question requires us to consider the world around us — cosmic, animal and social alike — not just with intellectual curiosity but with a particular set of moral dispositions: a wonder, and a reverence, for the handiwork of a God who reveals Himself to us, in all creation, as all-loving.

By way of contrast, let us consider Jordan Peterson’s example: the lobster, which bears in its ancient carapace millennia of residual dominance hierarchies. The telos of the male lobster, according to Peterson’s vaguely Darwinian view, is to mate with lady lobsters, survive, and spawn other lobsters, thus propagating itself further in the genetic code of its offspring. On this view, lobsters are the way they are because power and greed are the law of the universe, a fact that may or may not be morally good, but is nevertheless so ubiquitous that we needn’t concern ourselves with subverting it. Animals exist to beget other animals, which are, insofar as they are their genetic offspring, fundamentally also themselves.

The example is meant to illuminate something about us, of course. On this biologically determinist view, it is easy to go from “lobsters have shells” to “men want virginal women with narrow waists and big hips and also to have sex with as many such women as possible” (or, in one a more traditionalist iteration of this Petersonian conflation, “men want one virginal woman with a narrow waist, big hips and zero tattoos.”)

As it turns out, however, a common liberal view of our nature and purpose turns out to rest on the same premise as the biologically determinist view: we exist to propagate ourselves, to further ourselves in the world through our offspring. This liberal view posits not that we exist to bear children, but that through a conscious cultivation and expansion of our extended selves, we can achieve an analogous kind of immortality: our “personal brands” floating, inchoately, perhaps, in the digital realm after our mortal death. Self-making of this kind, free of not only biological constraints but also the bounds and bonds of family and friendship, is a denial of our true nature and the forms of givenness that define us.

Unlike both these views, the Christian life — and no natural law theory that does not take into account this strangeness can claim to be truly Christian — more often demands less us. For that reason, our telos cannot be understood merely as different in degree, rather than kind, from that of animals. (Not that we should regard unquestioningly the idea of power-as-telos in animal life: we are told that the eschatological end of Christian history sees the lion and the lamb lying down together.) A life of celibacy or of chosen family outside the confines of marriage and biological children does not produce more us. A quiet life, a hidden life, a life of service, a life of kindness, all these are direct assaults on the very idea of telos-as-power we saw Callicles wink his way to endorsing. They are deeply unnatural, in one sense, and yet they are precisely the forms of Christian life in which natural law might best be discerned.

At the heart of this discernment, therefore, must be the question inherent in any account of natural law: who are we and what are we for. In the Christian view, our telos has traditionally been understood as the knowledge and love of God, a love that is discerned best through the Incarnation: the idea that God became man, and with it, that we know God best through the love of other human persons. That telos cannot be reduced to, or confused with, as a nineteenth-century vitalist might have held, the impulse to survive or propagate ourselves. (To be sure, a secular Aristotelian view can easily reject such a vitalism along the lines suggested above, by focusing on our distinctly social and rational nature.)

Indeed, it is precisely in our rejection of the law of nature as the “law of the jungle”, and other forms of biologically-derived evolutionary givenness, that we will come to understand our telos as human beings, made in the image and likeness of God. We must preserve — within our civil discourse, our political discourse, our shared political life — the idea that we are for something more than, and better than, our own flourishing as isolated individuals or as lucky furtherers of the species. It is precisely by that embrace of givenness — that we do not choose our purpose in this life; that we cannot choose against love — that we can most robustly critique those liberal notions of “instrumentalization” that Finnis so derided.