The latest edition of the National Catholic Bioethics Quarterly (NCBQ) is devoted to criticisms of the so-called New Natural Law Theory. I summarize my paper in the volume, “Is the New Natural Law Theory Thomistic?,” with the following abstract:
Whether the new natural law theory counts as a plausible interpretation of St. Thomas Aquinas is not a mere antiquarian question in the history of philosophy but is itself a philosophical question, which bears on how we should interpret and assess the NNLT. Through an examination of problems in Germain Grisez’ influential paper “The First Principle of Practical Reason,” which proposed an interpretation of Summa theologiae I-II, q. 94, a. 2, it is argued that the NNLT is on every major point at odds with Aquinas, such that the NNLT involves a rejection of the classical and Catholic traditions of natural law and not a reformulation, revival, or saving of that tradition. The NNLT gives a flawed account of individual morality, not a Thomistic account of law as binding a community.
I was deeply impressed by Grisez’ powerful paper when I read it in graduate school. Since then, I’ve studied some Aristotle and Aquinas and, when I was asked by NCBQ to contribute something, I thought I would return to that foundational essay and read it again, examining it as I would any attempt at interpretation and exegesis. This time I reached a very different view about the soundness, though not the genius, of the piece, and I thought that that would be worth writing about.
If you are interested in reading the paper, you may download it with permission of the NCBQ here: Pakaluk, Is the New Natural Law Theory Thomistic. In fact, you may find the whole issue here. In what follows, I give some background in a popular fashion.
What is the New Natural Law Theory?
The “New Natural Law theory” refers to a body of thought that was first formulated in the 1960s by an eminent American philosopher-theologian, Germain Grisez. Actually, Grisez says that he attained his crucial insights in the spring of 1963. So although I do not know that any commemorations or special retrospectives are planned, this year marks its 50th anniversary.
Grisez gatherer around him a group of highly talented and energetic collaborators who have since helped to develop and defend his theory, including Joseph Boyle (Toronto), John Finnis (Oxford and Notre Dame), and Robert George (Princeton). This group is sometimes referred to as the “New Natural Lawyers,” and indeed some of them are lawyers.
At the risk of introducing confusion, I should say that there is a dispute over precisely how the New Natural Law theory is “new”. Its proponents call it new only in relation to versions of natural law that immediately preceded them—those for instance that were found in the manuals for seminary education in the early 20th century. But they actually think that they are reviving the theory found in Aquinas, which they regard as the true or sound theory, and they would agree that this version is old and goes back to the Greeks.
However, critics of the New Natural Law say that it is “new” in the sense of accepting unsound philosophical views which seem at odds both with classical thought and the Catholic intellectual tradition in general.
What are the distinctive teachings of the “new” natural law?
Its bedrock foundation principle is that there is an unbridgeable chasm between facts, or statements about how things are, and values, or statements about how things ought to be. If so, then from truths about God, human nature, or the universe, it would seem to be not possible to reach any conclusions about how we should act. So, for example, from “God exists and is your Creator”—and add as many other truths about the world as you wish–no obligations can possibly follow.
How then do we know what we should do? The New Natural Lawyers say that we need to rely on a different and distinctive sort of reasoning—not reasoning about how things are, but rather “practical reasoning,” which they say is already impelling us in various ways, through a kind of internal prompting, to seek certain kinds of things.
Natural law theory then becomes a matter of identifying what these promptings are for—hence the list of the ten or so “basic human goods” which the New Natural lawyers proffer—and figuring out how to honor these goods in each of our actions, never in practice denying any of them to be goods.
The New Natural Lawyers say that since each basic human good is foundational for practical reasoning, none can be measured by or even ordered to any other, and therefore in each action we have to be aiming to integrate all of them, or at least show our openness to integrating all of them. This is the basic principle of morality for them.
Readers who want to know more should consult this accessible exposition by Chris Tollefsen.
What are those “new” philosophical views which critics of the theory are concerned about?
Let us be clear first of all that it is not an objection to a philosophical theory that it is new, or that it departs from Aquinas, or that it departs from a tradition. Philosophical views must stand on their own and be evaluated on their own merits. But if one wants to dispute over whether the New Natural Law is indeed “new” relative to Thomism, then the following could be said.
The sharp distinction between “facts” and “values” which the theory presupposes is certainly “new” relative to Aquinas, which can be shown through many texts. But consider the example just given. Suppose one says it is a “fact” that “creatures ought to honor their Creator”: then, from the additional “fact” that “I am a creature,” one may apparently derive the obligation that “I ought to honor my Creator.” Critics say that this result can be denied only by adopting a problematic and too restrictive view about “facts,” which would be “new” in the sense that it is akin to views ultimately deriving from Bacon and Descartes, which deny teleology in nature.
Similarly, the New Natural Law Theory’s sharp distinction between speculative and practical reason seems to me both problematic and, as a matter of the history of philosophy, “new” in the sense that it is more like views traceable to Immanuel Kant than those which can be found in Plato, Aristotle, or Augustine.
The New Natural Law theory’s account of goods is also “new.” Its theory of human goods is not based on any theory of goodness in general, for example, goodness as form and the perfection of form; or the convertibility of being and goodness. We may easily grant that goods are “incommensurable”– that is, not subject to a single quantitative measure, the way some extreme utilitarians have held–without also holding, as the New Natural Lawyers do, that none of their basic goods is inherently, naturally, or most reasonably ordered to others.
Again, their view of the ultimate goal of human life seems problematic to some. They hold that the ultimate goal of human life is not God but rather the simultaneous and dynamic possession of all the basic goods (which will of course include God). It seems to follow from this that the beatific vision of God cannot make us happy. The New Natural Lawyers seem to be forced to embrace this conclusion because they deny that goods are or can be ordered.
Yet the “new” natural law has been highly regarded by many Catholic thinkers. What has been the source of its appeal to Catholics in particular?
One should understand that the New Natural Law theory was formulated by Grisez in the 1960s in his attempt to identify precisely why one might want to regard contraception as malum per se. In my view, he deserves immense credit for recognizing so clearly then that acceptance of contraception would be fatal for the Christian life and become a scourge for society in general. His New Natural Law argument against contraception was appealing and intuitive: to engage in intercourse is to put oneself in circumstances in which to act then against conception is in effect to deny the basic human good of human life.
In taking this position against contraception, Grisez had to vindicate the existence of “moral absolutes” (that is, types of action which are wrong no matter what the consequences) and refute incompatible ethical views, such as situationism and proportionalism, which were gaining favor among some Catholic moral theologians at the time. Grisez’ praiseworthy distaste for legalism in ethics also aligned him with the “personalist” movement and the ideals of the Second Vatican Council. So his views were rightly given a serious hearing, and he won many supporters.
Around the 1980s, two legal and political philosophers whom we mentioned already (Finnis and George), became collaborators with Grisez, and then the New Natural Law theory became attractive for other reasons. Because it spurned metaphysical foundations, it seemed to offer a better framework for constructive dialogue with political liberalism. Then too its insistence on a distinction between facts and values made it appear to be aligned with the temperament of the sciences in a modern research university.
One must also take into account that Grisez and his collaborators are, and are know to be, admirable intellectuals and academics, who have shown great integrity, dedication, and seriousness.
But what about the relationship between the New Natural Law and Thomism? Do advocates of the New Natural Law claim that it is Thomistic, and are they wrong about that?
As I mentioned earlier, the New Natural Lawyers say that their theory is “new” relative only to the dominant or “conventional” versions of natural law, which immediately preceded them (which they trace back to Suarez). Grisez at least has always stated that the New Natural Law theory is the view of St. Thomas—although he has always insisted, too, that one should not accept his theory because it was held by St. Thomas.
But I think Grisez is wrong about that. One can say this: there is a distinction between classical and modern outlooks, and the New Natural Law theory is modern rather than classical, whereas St. Thomas is broadly classical. Of course I regard St. Thomas as a “scribe in the Kingdom of God” who brings forth things that are new as well as old, but he embraces and builds upon the foundation he finds in Plato, Aristotle, the Stoics, and St. Augustine. I do not think the New Natural Law is similar in that way.
But are we dealing with an argument about the history of philosophy or the interpretation of a book here? Why is this important?
If a connection with St. Thomas is broken, it is unclear why the New Natural Law theory should be counted as a theory of natural law at all. It seems to be simply a theory of morality, not law. Admittedly, as a theory of morality, it would seem to be incompatible with legal positivism. But so is almost any theory of morality: a utilitarian too might say that “an unjust law is no law” or affirm that the force of law does not derive solely from convention. If it is conceded that Catholics today need a good account of natural law, then, if the link between the New Natural Law and St. Thomas is broken, it is clear that the New Natural Law would not supply that need.
Then too the metaphysical austerity of the New Natural Law, which makes it appealing in some contexts, of course comes at a price. By emphasizing its difference from Thomism, we can perhaps become clearer about the greater philosophical resources that would be available to Catholic philosophers and students of Catholic philosophy if they gave greater attention to the “old” natural law.