Putting Natural Law in Its Place

For at least three decades now, contemporary natural law advocates have been making the same two points^[1]: first, that natural law—defined as “the rule, order, or norm of all human actions…in terms of what is right or wrong, good or evil”—can be “known through the rational consideration of the natural ends of humankind through consideration of human nature,” meaning that natural law is “knowable, in its general principles, by all human beings.” Second, on the basis of natural law’s universal knowability, that Christians “can and should use natural law arguments in the public sphere to convince unbelievers of those moral truths which all men know” so as to “help society pursue and protect the common good of all people.”^[2]

The message hasn’t faltered in recent years, either: in 2020 David VanDrunen published his fourth book on natural law, once again urging readers to “exercise their powers of persuasion toward their children, their neighbors, or their coworkers in hope of shifting community opinion” toward natural law principles.^[3] Public Discourse—online journal of the Witherspoon Institute since 2008—continues to promote natural law in the service of contemporary public engagement, recently commending the late Peter Lawler for his belief that “free politics, guided by natural law, ultimately depends on confidence in the ability of ‘right reason’ to adjudicate differences through civil conversation—not through partisan or ideological fiat.”^[4] The online journal American Reformer was founded only ten months ago, but in that short time has enthusiastically taken up the mantle of natural law: “We must bring Protestant traditions of legal thought, natural law, and civic order back into public conversation,” says Colin Redemer;^[5] “without [natural law] the future of political Protestantism is bleak indeed,” says Timon Cline;^[6] “our Protestant tradition is rich with resources for what we might call a natural law argument for the spiritual dimension of politics,” says Bradford Littlejohn.^[7]

In these three decades, the focus has remained entirely on demonstrating the biblical, theological, and philosophical legitimacy of natural law, especially within Protestantism. Meanwhile, the inference common to all these natural law proponents—that from the universal knowability of natural law, it follows that natural law can and should be used as a means of contemporary political persuasion—has always been assumed but never demonstrated. The possibility that natural law, despite its reality and knowability, is ill-fitted for the task of contemporary political engagement has never been addressed by them, in part because many believe there is no other viable means of political engagement.^[8]

That such a considerable oversight has persisted for thirty years is made all the more incredible by the fact that affirming the reality of natural law while remaining skeptical of its political utility has precedent. Yves R. Simon (1903‒1961)—a French Roman Catholic philosopher who taught at Notre Dame and the University of Chicago—is a notable example of this viewpoint, yet in the quest to “return to the sources” of natural law he has been virtually ignored. It is therefore salutary for the ongoing discussion of natural law and its place in Christian thought to promulgate a couple of insights from Simon’s work on the subject, specifically on the knowledge of natural law.

Natural Law Known By Inclination First, Cognition Second

In The Definition of Moral Virtue, Simon writes this concerning the knowledge of natural law:

Natural law, [Jacques] Maritain explains, is known first of all by inclination. That does not mean, of course, that it cannot be known rationally, or that rational knowledge of its principles is not desirable. It is simply that primordially, primitively, and primarily, natural law, whose core is constituted by the premises of the moral order, is known by inclination.^[9]

This is not much different from the idea that natural law is known through “intuition”^[10] or “inscribed…on the heart of every person,”^[11] which is a common element of Christian works on the subject.^[12] However, Simon observes that inclination is no longer sufficient for most people:

It is possible to point to periods…when some sort of consensus, sufficient for many social purposes, existed by way of affective communion about such subjects as the evil of infanticide (unborn infants not excluded), the evil of murdering incurably sick people, the preferability of matrimony to free union, the prohibition of incest and homosexuality, etc. Since the nineteenth century it has become necessary, and it will remain necessary forever, to explain to an ever-growing number of people why those things are wrong. The working out of these explanations may be tragically difficult. But we know that we have no choice. The times of exclusive dependence upon judgment by inclination are gone forever.^[13]

Simon regards the task of explanation with an almost audible sigh, but contemporary natural law advocates speak of it with something closer to excitement. Indeed, the idea that natural law can be known through “reasoning”^[14] and “arguments”^[15] is the very feature of natural law that makes them so eager to champion it as a means of political engagement. The difference between these two apprehensions of natural law argumentation lies in Simon’s view of the communicability of moral knowledge.

Moral Knowledge Communicable in Theory, Largely Incommunicable in Practice

If a truth is capable of being rationally demonstrated, then it follows that this truth should theoretically enjoy common assent. So Simon: “Philosophical certainty is of a demonstrative nature and, consequently, enjoys unlimited communicability in principle.”^[16] In practice, however, moral truths—such as those belonging to natural law—are difficult to rationally communicate:

We often feel certain about right or wrong in a moral essence without being able to show clearly why it is right or wrong. Even in matters which admit of rational clarity, it often happens that available explanations are not airtight, and that there is a striking contrast between the firmness of our certainty and the vagueness of our explanation. Our intuitive acquaintance with the laws of the moral order is way ahead of our ability to connect moral essences with the first principles of morality, in other words, to show why an act is right or is wrong.^[17]

As a result, we cannot expect to reconstruct via rational argumentation the kind of consensus that once existed on the strength of inclination:

It can happen at any time in the history of a particular community that an issue on which sufficient agreement (an amount of agreement having about the same effects as consensus) had, so far, been ensured by affective communion no longer can be satisfactorily treated by such spontaneous methods, and demands to be treated by methods of rational communication. With regard to this particular issue, this particular society is in transition from the pre-Socratic to the Socratic age. Such transitions always have the character of crises, and they inevitably involve considerable destructions. One may not even be entitled to hope that the amount of agreement to be obtained in the future by methods of rational communication will ever equal the amount of agreement that was obtained in the past, spontaneously and silently, by affective communion.^[18]

Some good can be accomplished in attempting rational persuasion, provided we are under “no illusion about the possibility of bringing about demonstrative knowledge in a great number of minds.”^[19] But overly lofty hopes in the power of natural law argumentation are liable to end with a backlash against natural law:

For a number of years we have been witnessing a tendency, in teachers and preachers, to assume that natural law decides, with the universality proper to the necessity of essences, incomparably more issues than it is actually able to decide. There is a tendency to treat in terms of natural law questions which call for treatment in terms of prudence. It should be clear that any concession to this tendency is bound promptly to cause disappointment and skepticism.^[20]

Russell Hittinger powerfully recapitulates this point in his introduction to The Tradition of Natural Law:

In our time and culture, natural law is invoked as a response to the breakdown of tradition, to moral relativism and nihilism, to various species of utilitarianism, and to legal positivism. It is expected to be an all-purpose antidote to the estrangements of modernity. Called upon to remediate more than reasonably can be expected, natural law is liable to descend to ideology…. A society that perceives itself to have only the weapon of natural law to address the enemies of right reason is, no doubt, a society that will have trouble taking that measure.^[21]

Hence the general impotence of natural law in our society, notwithstanding sustained advocacy from contemporary proponents.

Conclusion

Yves R. Simon’s theory of natural law is but one among many. Yet its explanatory power for our current moment recommends Simon for wider attention than he has heretofore enjoyed.

The most obvious counterarguments to the perspective on natural law presented above are no arguments at all. Demanding an alternative approach to public engagement may be reasonable, but it also deflects from the need to answer for natural law argumentation’s own apparent weakness. I will not offer any such alternative here, as I have already done so at length elsewhere.^[22]

Neither is there any force to the charge that absent natural law argumentation, “there can be no political persuasion, only religious conversion.”^[23] Perhaps, and what of it? None other than John Witherspoon—the Witherspoon Institute’s eponymous inspiration—held that “the natural law was not a universal moral sense cultivating sociability in all citizens. A virtuous society requires regenerate Christians.”^[24]

The biblical, theological, and philosophical justification of natural law can be further refined, but it has already been effectively accomplished. It is now time to give more serious thought to the question of whether natural law can actually serve the political purpose to which so many have elevated it.

Notes

1. Examples are too numerous to list here. See the notes in James Clark, “Natural Law and the Prospects of Persuasion,” Mere Orthodoxy, 15 April 2019, https://mereorthodoxy.com/natural-law-prospects-persuasion/. ↑
2. David Haines, “Why Protestants Need Natural Law,” American Reformer, 17 May 2022, https://americanreformer.org/2022/05/why-protestants-need-natural-law/. ↑
3. David VanDrunen, Politics after Christendom: Political Theology in a Fractured World (Grand Rapids: Zondervan Academic, 2020), 355. For my critique, see James Clark, “The False Promise of Natural Law Liberalism,” Front Porch Republic, 27 July 2020, https://www.frontporchrepublic.com/2020/07/the-false-promise-of-natural-law-liberalism/. ↑
4. Daniel J. Mahoney, “Neither a Flatterer nor a Lockean Be: Peter Augustine Lawler as a Catholic Political Philosopher,” Public Discourse, 16 May 2022, https://www.thepublicdiscourse.com/2022/05/81689/. ↑
5. Colin Redemer, “The American Founding, Protestantism, and the Law of Nations,” American Reformer, 21 January 2022, https://americanreformer.org/2022/01/the-american-founding-protestantism-and-the-law-of-nations/. ↑
6. Timon Cline, “Protestant Politics and Natural Law,” American Reformer, 20 May 2022, https://americanreformer.org/2022/05/protestant-politics-and-natural-law/. ↑
7. Bradford Littlejohn, “The Union of Religion and Justice,” American Reformer, 31 May 2022, https://americanreformer.org/2022/05/the-union-of-religion-and-justice/. ↑
8. See, e.g., various authors quoted in Section 4 of Clark, “Natural Law and the Prospects of Persuasion,” https://mereorthodoxy.com/natural-law-prospects-persuasion/. ↑
9. Yves R. Simon, The Definition of Moral Knowledge, ed. Vukan Kuic (New York: Fordham University Press, 1986), in Yves R. Simon, An Yves R. Simon Reader: The Philosopher’s Calling, ed. Michael D. Torre, with John W. Carlson and Anthony O. Simon (Notre Dame: University of Notre Dame Press, 2021), 258. Compare Yves R. Simon, The Tradition of Natural Law: A Philosopher’s Reflections, ed. Vukan Kuic (New York: Fordham University Press, 1965, repr. 1992), xviii and xxi; Yves R. Simon, Practical Knowledge, ed. Robert J. Mulvaney (New York: Fordham University Press, 1991), 17 and 33; and Simon, Tradition of Natural Law, in Simon, Simon Reader, 167. ↑
10. David Haines and Andrew A. Fulford, Natural Law: A Brief Introduction and Biblical Defense (Lincoln, NE: Davenant Trust, 2017), 5. ↑
11. David VanDrunen, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (Grand Rapids: Eerdmans, 2010), 1. ↑
12. The primacy of inclination in knowing natural law can be traced back at least to Thomas Aquinas, Summa Theologiae I-II.51.1, trans. Fathers of the English Dominican Province (London: Benzinger Brothers, 1920), https://www.newadvent.org/summa/2051.htm#article1. See also Patrick Lafon, Virtue in Political Life: Yves Simon’s Political Philosophy for Our Times (Bamenda, Cameroon: Langaa RPCIG, 2017), 206. ↑
13. Simon, Tradition of Natural Law, 74. Compare Simon, Practical Knowledge, in Simon, Simon Reader, 51‒52, and Simon, Simon Reader, 25‒26. ↑
14. Haines and Fulford, Natural Law, 5. ↑
15. Carl Braaten, “A Lutheran Affirmation of the Natural Law,” in Natural Law: A Lutheran Reappraisal, Robert C. Baker and Roland Cap Ehlke, eds. (St. Louis, Concordia Publishing House, 2011), 11‒12. ↑
16. The Material Logic of John of St. Thomas: Basic Treatises, Yves R. Simon, John J. Glanville, and G. Donald Hollenhurst, eds. and trans. (Chicago: University of Chicago Press, 1955), in Simon, Simon Reader, 30. Compare Simon, Simon Reader, 15. ↑
17. Simon, Practical Knowledge, 33. Compare Simon, Practical Knowledge, 24; Simon, Tradition of Natural Law, xxi; Simon, Material Logic, in Simon, Simon Reader, 30; Yves R. Simon, A General Theory of Authority, rev. ed. (Notre Dame: University of Notre Dame Press, 1980), in Simon, Simon Reader, 280‒81; and Simon, Simon Reader, 15 and 265. ↑
18. Simon, Practical Knowledge, 72. Compare Simon, Tradition of Natural Law, xxvi. ↑
19. Simon, Practical Knowledge, 74. ↑
20. Simon, Tradition of Natural Law, 23. Compare Simon, Tradition of Natural Law, 24, 39‒40, 161. ↑
21. Simon, Tradition of Natural Law, xxiii‒xxiv. Compare Simon, Tradition of Natural Law, xviii, xxii, xxvii. ↑
22. James Clark, “The Witness of Beauty: An Introduction,” The North American Anglican, 19 February 2021, https://northamanglican.com/the-witness-of-beauty-an-introduction-part-1-of-3/. ↑
23. Littlejohn, “Union of Religion and Justice,” https://americanreformer.org/2022/05/the-union-of-religion-and-justice/. ↑
24. Christopher W. Parr, “John Witherspoon, Protestant Statesman,” American Reformer, 2 June 2022, https://americanreformer.org/2022/06/john-witherspoon-protestant-statesman/. Compare Daniel R. Heimbach, “Rethinking Natural Law for Engaging The Public Square,” The Ethics & Religious Liberty Commission of the Southern Baptist Convention, 22 April 2015, https://erlc.com/resource-library/articles/rethinking-natural-law-for-engaging-the-public-square/, and Simon, Practical Knowledge, 151‒52. ↑