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."
31 comments:
If one lowers the "Wall of Separation" (I think you mean Church and State relations), then reason and revelation are not separate spheres. So, wouldn't the article on Moral Philosophy (Witherspoon) be nullified?
Scripture is a human book and the Church is a human organization, and the political realm is inclusive of all of life, which means that all is political, pragmatic and "of this world"...So, what is being a Christian in the world? Doing the 'right" thing (definition of "right" is important)...and if one adheres to our nation's belief of "conscience" and "liberty", then it would leave choice to individuals...in realms of their political functioning...wouldn't it?
When you use 'duty', one imagines a "military' stance toward a "state"....which some Christians believe to be evangelical "discipleship" or the "replacement theology" of the Church with the nation of Israel. I find this disturbing, because of "image"...
Images are what Christian faith is about...and though some can "worship" in a military stance, as God is "King"...another image is God is Father, which has the relationship of "family"...which does not respond out of duty (law) but love...'
one responds out of respect for position, and one out of respect for character...
Your discussion on the sexual aspects of marriage really "irritates" me, as that is such a personal matter of conscience between the people involved that I find it intrusive of private conscience...why are the religious so "hung up" about sex?
It is interesting that Tibetan Buddhism has been in line with the Christian take on sex through the same method of natural law reasoning.
That some Protestants---of the Calvinistic inclination, I would think---would reject any common ground or universality with other traditions is indeed silly, if they want the ideal to be part of the law, of politics. By pushing the Bible alone as the source of ethics, morality or even reality [natural law makes a claim on reality], they not only want what they want, they want what they want the way they want it.
If you follow that.
The rejection of natural law is not particularly even Calvin, according to this history:
http://www.firstthings.com/article.php3?id_article=3983
The article also argues against Ms. Van De Merwe's nihilism, or relativism, or whatever, the claim that "political realm is inclusive of all of life." Unfortunately this is true, in this political age. Politics is the realm of opinion, after all, and is the brute exercise of power whether wielded with a Bible or in the name of the primacy of subjective opinion over the possibility of objective truth.
Jon, I look forward to your Gerard Bradley essay. I ran across one of his articles recently [stupidly didn't bookmark it and now can't find it], but found little to disagree with.
Don't have much time right now to give Ms. AVDM a full answer but I understood Bradley as calling for a lowering of separation on "rational" (not "revealed") grounds and doing so while respecting a fundamental norm of religious equality (to which some of the conservatives in the crowd balked because of problems with the implications).
Maybe it's just me, but I see vouchers as a great test case/illustration of this. Separation qua separation demands no vouchers because $$ goes to sectarian schools.
We could lower the wall of separation on SECULAR(neutral/non-discriminatory) grounds by permitting vouchers where the parents choose where the voucher $$ goes. They can give it to a liberal Christian school (like the Quaker "Friends" schools) a conservative Christian school, a secular private school, a Muslim school and so on and so forth.
And when questioned on whether Islam gets constitutional protection, Bradley's response was something like "yes, because Islam is a 'religion' and that's what the Constitution protects."
Your discussion on the sexual aspects of marriage really "irritates" me, as that is such a personal matter of conscience between the people involved that I find it intrusive of private conscience...why are the religious so "hung up" about sex?This is going to call for a longer essay, something I'll deal with in the future. I understand why such explicit detailed discussion of sex might "irritate" someone, but these are deep philosophical matters that touch politics, and that's not a good reason for taking it off the table of discussion.
I probably see eye to eye with you on policy matters. I'm not convinced of this "natural law" theory that was articulated. But even if I were (or one is) I would still note the state must respect a zone of privacy or give individuals "rights" (that is space from the state) to figure these matters out themselves. That means a right to live according to the natural law or the Bible or someone else's sacred text, or NOT to live according to those principles.
The natural law may be more of a guide for good living, not a guide for good government. Natural rights are the guide for good government and I think one could logically put the two concepts together and conclude natural rights, properly understood gives individuals the right to FOLLOW OR BREAK the natural law.
Thank you, Jonathan. I agree with you about the State giving room or "respecting" the individual, otherwise, we have a Facist or Marxist State, or a Religious State that oppresses...
The distinction you made concerning natural law and natural rights was an intriguing one. That means "freedom" of conscience, which is a pivotal value of our country's ideals...
I also look forward to your review of Bradley.
Well, here's the thing, Jon---when we make the private a public issue. The door swings both ways. The issue here isn't really tolerance about private behavior.
Now, there's an unavoidable subjectivity about truth in the political arena, and "my opinion is x" and "the Bible says x and the Bible is true" are equally subjective for all political purposes. [The odd thing is that the latter has been declared invalid while the former is considered A-OK. But that's another matter as well.]
However, if we personalize truth, and make every public matter a question of individual choice, we have invited nothing but anarchy under the guise of liberty. Further, we have made a definitive moral choice in favor of relativism over objective truth.
The Founders definitely believed in the existence of objective truth---and natural law is a good way to put it---even if they disagreed on some of the specifics. Yes, there was subjectivity, but not relativism.
If our enlightened age chooses relativism, I suppose that's democratic. But we should acknowledge it has no support in the Founding ethos.
Natural law, is "cause and effect" thinking, which does value choice, but with consequences. This the "enforcement of law and order", as in "obedience for fear of punishment", the first level of moral development and is useful for children or criminal minds.
I do not believe in "BIG BROTHER". Big Brother intrudes into our private lives, where we have no privacy, in the name of "protection of government's rigt to know"...I find that our government's understanding was based on not a beauraratic governance, but a limited government that was representative.
Representation is an important value as it concerns "law and order", because otherwise, there is no justice. Representation infers individual rights, as the representative is to be an advocate before the "judge". Indiviuals must be informed of their rights before being taken into custody as to their right to call a lawyer. Individuals should not be guilty by association alone. And a thorough investigation and trial is a mandate of representative government.
Natural law would be seeing things as "god's punishment" or "god's reward", such as Job and his comforters. This is not good government unless the laws are such that it allows enough space for differences.
So, as to public policy, I believe that we cannot take away privacy without doing damage to freedom. (Freedom does not infer by definition "lawless")...
Actually, Ms. VDM, as Jon notes above re natural law, the Aquinas-Suarez-Grotius view does NOT depend on God. [Or on the Bible, as Robert George notes in Jon's essay.]
Perhaps this recent essay will clarify:
http://americancreation.blogspot.com/2009/04/primer-on-natural-law.html
Your argument linking BIG BROTHER, "privacy" and liberty isn't quite the issue here, it's the substituting of one moral and political system, relativism and individual judgment as to the right and the good, for another, natural law and the existence of objective moral truth [even if arrived at subjectively and in practical terms, by consensus].
Either is of course democratically valid; the latter, however, was the Founders' understanding and ethos.
Well, here's the thing, Jon---when we make the private a public issue....I think the problem is for a long time the "private" was inappropriately held within the purview of laws properly regulated by the state. I know that's now over with Griswold to Lawrence. And by the way I support both of those decisions on natural rights grounds. What's in between -- Roe-Casey -- I think are the harder, more complicated cases because they arguably involve the natural right to life of an innocent 3rd party v. the natural right to liberty of another.
Griswold and Lawrence seem easy "no-brianers" in comparison to those harder cases.
Well, the reasoning in both Griswold and Lawrence is specious. And Justice William O. Douglas' "penumbras" and "emanations" of the constitution is insidious nonsense, and you rightly observe it has been taken to an individualistic extreme---of "natural rights" trumping all other considerations---in the later cases.
I'll concede in advance the Fourteenth Amendment in the first two cases, which can be used to derive any desired conclusion, and I need to look at Justice Byron "Whizzer" White's [concurring] reasoning, as I like him.
However, when natural "rights" preempt all natural "duties" [and Founding-era and "classical liberalism" political philosophy saw them necessarily in equilibrium], then we are indeed the "crypto-Hobbesian hedonists" that some charge Locke with being "under the covers."
We move to the public-private debate. Even the dissenters in Lawrence would have agreed that it would have been better---and more sensible---that sodomy laws not be on the books in the first place. Still, they argued that society---and in this case we mean an individual state, not the federal gov't---can and always has been legally empowered to indeed "legislate morality."
We do legislate morality all the time; you can't have sex on the sidewalk, you can't torture animals, you can't smoke in a public park in front of children and 1000 other things. Most of them, we derive from some sense of "natural law," although the reasoning can be even more arbitrary than that.
The problem of theory vs. practice that that when we legalize something [as opposed to decriminalizing it out of sheer prudence] that was formerly illegal, we use the power of gov't to put society's stamp of approval on it.
When society and government are in harmony through democratic means, there is no problem. "Blue Laws" that illegalized commerce on Sunday, the Lord's Day, were democratically dispensed with.
But when gov't claims primacy over society, over deciding what is good and right and just and proper, it becomes tyrannical, the arbiter of all truth. Hold on a second here!
Now, admitttedly, it so happens that society is egregiously wrong sometimes, the case in point being slavery and Jim Crow. [ALWAYS the case in point!, although race is sui generis, not just in America's history but mankind's as well.] But let's not discount it, even if it's dragged into to virtually any discussion of "rights."
Daniel Patrick Moynihan, an extremely wise man by all accounts from both left and right, put the conundrum best:
"The central conservative truth is that it is culture, not politics, that determines the success of a society. The central liberal truth is that politics can change a culture and save it from itself."
Right now, I think the pendulum tilts too far toward the latter truth, so much so that we have almost completely lost the former truth, and in my view Ms. VBM's remarks bring that point home. But in another age, I easily could be arguing the other way. We Libras are like that.
in your comments, as to hedonism...'do you think that legislating against a certain type of sexual expression in marriage appropriate? Is homosexual marriage something that you believe could be validated under "natural law"?
I think that one has to discuss what purpose is marriage? Is it for the benefit of individuals in their fidelity, loyalty and trust relationship, or is it about procreation? If the former, then there is not reasonable reason why homosexuals should not be united in civil unions.
Do you see any separation between Church and State, and on what basis do you defend you position? I am really not trying to be antagonistic, as this really interests me and I am fairly ignorant (as you have recognized). Thanks for informing me so far. and I hope you don't mind my asking questions in the future...
Well Tom, I think your points are apt insofar as they relate the dictomy of what the Democratic Party-Left (and what's to the left of that) and Republican Party-Right (ditto) want to do politically. I would never assert that which is ridiculous that the D-Left does not try to legislate its own morality which it does. Rather I'd turn to natural rights libertarianism which imposes the least amount of "legislation of morality" (and indeed legislates a minimum LCD morality to which leftists-rightists-and libertarians all agree; leftists and rightists might want the state to do MORE, but all agree that the state should at least do THAT).
Further I wouldn't justify the results of Griswold-Lawrence on the reasoning of their respective Supreme Court opinions but rather look to the philosophic works of Spooner, Rothbard, Rand, Barnett, Pilon, among others (perhaps, Jefferson, Madison, Locke; but that's a longer story).
However, when natural "rights" preempt all natural "duties"....Let me also note, as a matter of originalist textualism, this is exactly the case. The Constitution seems to mention neither rights NOR duties. The DOI mentions ONLY rights and NOT duties. You may be able to find a discussion of rights AND duties in the original writings of the Founding. But discussion of RIGHTS not DUTIES made their way into the DOI. That's not to say that duties are not important. But it IS to say as a matter or original Founding textual public policy, rights trump duties.
Thx for your courteous tone, Ms. VDM. [Sorry for the previous typo.]
Your self-confessed "ignorance" is honest and refreshing. Rest assured I'm not a know-it-all. When I joined this blog---as a contributor!---I was unaware of how the Founders felt about "natural law." Mostly, for years now, Jonathan Rowe & I have been having a public discussion in comments sections on various blogs about how to discuss these issues intelligently, civilly, and finding a common language so we just don't shoot opinionated cannonballs across each other's bow. This blog became the home for our continuing colloquy after Jon wangled a generous invitation from Lindsey Shuman for me to be added as a contributor.
The point being, we all teach each other through and past our ignorances around here. What I know now comes only from kicking it around with Jon, and all those here gathered, too.
Damn, that's a good point. Think I gotta hit Google and find out what the Founders and the Great Thinkers thought about it.In brief answer to your most pressing point, damn right there's a separation between church and state. The Founders---almost to a man---hated churches, especially churchmen, who were self-aggrandizing tyrants and who stoked up the bloodshed over religion in Europe that made Europe a place to leave behind in the rear-view mirror.
We didn't even have to get to the Founding era---look at the "Puritan" era---before the colonists decided that theocracy was unworkable. Thank God.
On the other hand, on the day George Washington was first inaugurated, he thanked God for making it all possible, and then he and the congress all went over to St. Paul's Chapel in New York to pray.
Getting into the Founders' heads is a tricky business, especially through the veil of the religious and then the nonreligious rewriting history. You'd be surprised at how little we really know about the truth of the Founding after all that writing and rewriting.
Even though this seems to be some boring blog exchanging opinions whether Willie Mays or Babe Ruth was the greatest baseball player ever, the people around here find amazingly overlooked things in the Founding literature all the time.
Religion and the Founding isn't a topic you can find a single scholar to quote as Bible Gospel truth.
The book is not closed. I love that about this blog and this topic.
[It was Babe Ruth, BTW, because he could pitch and even set a World Series record for it.]
Quite right, Jon. The "duties" were well understood, re Romans 13.
;-)
Only the exceptions and specifications needed to be spelled out.
We take for granted what they took for granted, and that is our modern disconnect, which has lost sight of all duties, let alone Romans 13.
Further I wouldn't justify the results of Griswold-Lawrence on the reasoning of their respective Supreme Court opinions...
Oooops Jon, missed this response. Thx, and you're the lawyer here. I might agree with the results too. The law is a ass, as Mr. Dickens put it, or as another fine thinker put it, a lousy prism through which to view reality.
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The problem surfaced here is a long way from the Founding Era; but, some roots are in the Founding.
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I'm reminded of Barry Allan Shain's The Myth of American Individualism comment on this problem:
"Revolutionary-era Americans awarded preeminence to the public’s needs. But, more was expected from each of them than this, for they were a communal people. They believed that local intermediate (familial, social, religious, and governmental) must play a prominent and intrusive role in defining the ethical life of individuals by placing limits on individuality." (My emphasis)
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Pinky,
Of course, the law does demand one's duty or obedience. But, laws can be useful tools to do the unethical, lawfully, which I believe is intrusive invasion of privacy.
Shouldn't individuals have choice about their life? This is not suggesting that "anything goes". That is ridiculous, but the Golden Rule would be a good gauge, as it would limit useing the law to promote self-interest alone.
And even using the Golden Rule is not a universal, in regards to how it is carried out. Behavior that I would like, is not necessarily what you would like, so there needs to be some room for differenes of opinion, and conviction where it concerns grey areas.
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My reflections tell me that the Founding Fathers were filled with the spirit of genius that directed them toward the good you are proclaiming; so, I agree with you 100%, Angie.
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The First Amendment, for example, sets forth the foundations upon which individual beneficiaries are able to build their own views of reality. That's something almost all Americans during the Revolutionary-era never dreamed about.
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Back in the seventies, I was involved in a gestalt T-Group. There was a gal who talked about how she, as a Catholic, thought Jesus was sitting on the edge of her bed every time she had sex and that inhibited her ability to enjoy it.
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She left the church as a result.
I thought of her as I read Jonathon's article.
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The First Amendment, for example, sets forth the foundations upon which individual beneficiaries are able to build their own views of reality. That's something almost all Americans during the Revolutionary-era never dreamed about.Hmmm. I'd say that 21st century relativism might make that claim about the First Amendment [and that claim was made by the court in Casey, but the Founders would reply, you're entitled to your own God, but not your own reality.
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."---Justice Anthony Kennedy, Planned Parenthood v. CaseyThe irony is that Kennedy [and the court] use the power of the state to define and dictate the meaning of the "mystery of human life:" relativism.
Now, many in the 21st century applaud the court's thinking, but the Founders as well as the ancient and medieval philosophers would be appalled.
It's quite fair for nonbelievers to require that the Bible not be used in arguments in the public square, that reason must be the common language.
But any decent philosopher could make mincemeat out of Kennedy's argument through reason alone.
It's the relativists who are being irrational and tyrannical. They have not convinced the governed, have thrown away the thousands of years of philosophy and theology that led to the Founding principles and substituted their own, using the brute power of the state to impose their philosophy on society.
Sort of like the accusations against the religious right, except they never succeeded with such an assault against reason and democracy as did the court in Casey.
The only relief is that, as Brad Hart puts it, Kennedy's blather is in dicta, meaning it's to be viewed as commentary, not law. It cannot stand, or all is lost.
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I wrote, "The First Amendment, for example, sets forth the foundations upon which individual beneficiaries are able to build their own views of reality.".
WE are the individual beneficiaries of the First Amendment.
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The fact is that the government is disallowed from limiting our access to information coming to us from outside the prescribed sources of this or that special interest. And, this provides each of us with the ability to be influenced in other ways than any would be would be official would or could legislate. I can access ideas that might seem dangerous in a system without our First Amendment guarantees. But, the bastards keep trying.
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Individualism, rather than a force, is one of the results we get from the First Amendment as our Supreme Law plays itself out. And, this gives access to ideas and things we might otherwise never be able to access.
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That's why I have referred to our Founding Fathers as being influenced by the Spirit of Genius.
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In so far as Jonathon's ideas about Barry Shain, Mr. Rowe is a self proclaimed Libertarian. That identifies his preferences and renders his opinions just that--opinion. No more worthy than those which anyone else might suppose.
More power to all of us as it is a struggle.
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Oh, I think Jon was just saying that Shain's not very mainstream in scholarly circles. I don't think that means Shain is wrong---it's the mavericks who make the breakthroughs.
I don't think you and I are disagreeing here, really, just talking about different things.
Shain is probably relevant here, as it seems he's arguing that the radical individualism of today [and that would include relativism] wasn't the case at the Founding, and it's a 21st century illusion [revision] to think that that it was.
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First off, I think you should define what you mean when you use the word, relativism.
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I helpfully provided a link.
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I helpfully provided a link.,
A simple quick definition would be helpful. The link involves about five hours of audio.
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There's text below the audio. I wouldn't just leave you with a pool of audio, Phil. That wouldn't be fair, or helpful.
However, the subject is well-limned in this discussion already.
Wow. Just, wow.
I have always been quite thankful to not have suffered the affliction of 'faith' or 'religion.'
Now I know why. And I am more thankful than ever.
Thank you Johnathan.
Natural law adherents of the Roman Catholic kind are just apologists, not 'theorists'. I am unaware of any element of the laws of nature that have led, say, Robbie G to a conclusion different than received Catholic doctrine.
One of the chief problems with natural law theorists of this ilk, new, old, or Thomist is that they have no epistemological humility on display.
In his, they violate the scripture itself. Who can forget God asking Job, "Where wast thou when I created the heavens and the earth?"
Doesn't mean that their struggle to see isn't worthy, to themselves or sometimes in general, but it means that they often mistake their conclusions for facts, right?
Indeed, one could go further and suggest that the establishment of 'natural law centers' is an affront to elucidation.
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