Last Friday, I saw much of the event at Princeton's James Madison Program on religious liberty. Again, despite whatever disagreements I, as a libertarian may have with their social conservative point of view (and they with mine), I think the James Madison Program is one of the best things that Princeton has. And most of the lectures are open to the public.
Among others with whom I chatted that day included Rick Garnett of Notre Dame School of Law, and I made sure I thanked him for the link he gave to me a few years ago. I also met Francis Beckwith who seemed especially to be a nice guy (they were all nice). We talked about my blogbuddy Ed Brayton's support for Beckwith when he was denied tenure (note Brayton & Beckwith are on opposite sided of the ID debate) and had a chuckle over my blogfather Tim Sandefur's unwavering fervency in the pursuit of his ideals. Beckwith also had positive things to say about libertarianism, in particular that of of his late UNLV colleague Murray Rothbard (a libertarian AND a Thomist AND an atheist).
Robert P. George was nice enough to take the time and give me a detailed answer explaining the difference between the old natural law and the new. We discussed Andrew Sullivan's use of a blog post by Ed Feser which seemed to perfectly capture the traditional Aristotelian-Thomistic view of natural sexual practices. So Sullivan, in his new book, ends up using Feser as a proxy for the natural law view of sex which the Roman Catholic Church has long embraced. He then gets slammed by among others George, Feser, Ramesh Ponnuru for not understanding the difference between Feser's Aristotelian-Aquinas understanding of the natural law and George's. To which I asked "how many Aristotelian-Aquinas" natural law theories can there be? A bit of a rhetorical question.
But George did go into detail in answering my question. The bottom line as I understood, Feser's understanding is closest to Thomas' original and doesn't admit to any "inputs" but rather argues these principles can be determined from looking to nature via reason period. That leaves this theory perhaps vulnerable to what some term the "naturalistic fallacy." George's "new" natural law is more willing to admit to certain "inputs" that support its conclusion. I asked him whether the Bible was one of those "inputs" to which he gave an emphatic NO. Not that he had any hostility to the Bible (obviously as a devout Roman Catholic he does not). But the POINT of natural law since Aquinas was to be able to demonstrate these transcendent truths from reason-nature alone. As John Witherspoon (a sharp natural lawyer himself) argued in his Lectures on Moral Philosophy (i.e., what he taught to his students at Princeton), this method permits Christians to tackle "infidel" arguments on their own terms -- natural reason -- without reliance on the Bible.
On a more interesting note, George admitted, after Feser, that oral sex is permissible between a married husband and wife provided it is used as a "means" to the "end" of sex that is "procreative in form" and not as a "end" in itself.
I've intensley debated some evangelicals on the homosexuality issue. I usually get anti-gay evangelicals to admit "unnatural" as they used the term really means the Bible forbids it (Paul says something about "natural use"); but then why even pretend like you are appealing outside the Bible with a term like "unnatural"?
Once they mention "natural design" as sort of a "secular" argument to condemn homosexuality, oral sex between heterosexuals (something practiced by like 90% of heterosexuals) becomes just as "unnatural" as anything homosexuals do. The mouth is not "designed" for genitalia.
The Aristotlean-Aquinas argument is less crude. From an observance of nature alone, the ultimate natural end of sex is for sperm to fertilize egg; so anything that helps achieve that "end" (which foreplay could) is "natural." Another end of sex is that it must be "unitive" in a marriage (it must not treat people as means to ends which could even occur in a marriage as it did in Henry the VIII's where he just wanted sex with his wife for an heir). Therefore, oral sex might be permitted in some circumstances but contraception (even between married couples), masturbation, and other activities that frustrate the "end" of sperm fertilizing egg are always unnatural and hence wrong, as "unnatural" and "wrong" as homosexuality.
The closest to an inconsistency that one might be able to find in natural law theory on sex is: What about two elderly married people having sex, post menopausual on the woman's part? That is IMPOSSIBLE to produce a child. The natural law response is long as the sex is "procreative in form" it's permitted. In other words, even for the 60 year old married couple the husband still can't use condoms or ejaculate outside of his wife's vagina. If they follow those rules they can still have the "right" kind of sex. It is "procreative in principle." It closes the loop and makes for a completely consistent natural law, but for those of us who haven't "bought" the theory in whole, that particular distinction tends to strike us as quite thin, (some might say "sophistry").
And as an observation, when I discuss this issue with conservative evangelicals, though they agree on policy matters with Thomistic natural law thinkers (the overwhelming majority of whom are Roman Catholic), the evangelicals don't seem at all convinced by this natural law reasoning. They want to slam homosexuality as "unnatural" AND wrong according to the Bible and set policy accordingly. But a strong majority of whom I have encountered don't seem at all interested in following the natural law theory on sex to its logical conclusions.
But I digress. I also chatted with my friend Phillip Munoz of Princeton, Tufts, and who is moving to Notre Dame, Don Drakeman, venture capitalist and part time Princeton faculty, David Forte of Cleveland State University School of Law and Gerard Bradley of Notre Dame School of Law.
In a later post, I want to say more on Bradley's Establishment Clause suggestions with which I was quite impressed. I consider myself a more "secular minded" fellow (a soft as opposed to a hard secularist). I could find very little if anything to disagree with in Bradley's suggestions for lowering the "Wall of Separation."