Some Reflections on the Problem of Natural Law: Comments on the Papers

I’d like to begin by thanking all contributors to this symposium on natural law for their thoughtful papers. One thing those papers illustrate quite nicely, I think, is that “natural law” is not so much a position, but a group of positions. The term “natural law theory” designates a set of intellectual commitments together with a set of difficulties, or problematics, attendant upon those commitments. In light of this, I think it might be helpful if I first attempt to sketch out a list of the different kinds of commitments and problematics associated with the natural law position. This anatomization is not intended as comprehensive, but rather as an initial attempt which I hope will help to further our position.

A List of Natural Commitments
[1] As several of our speakers point out, natural law appears to involve a commitment to some sort of philosophical moral realism. By this I mean the view that there is an objective moral order which exists independently of whether or not human beings acknowledge it, and that we can designate this moral order with the term “nature.”

[2] The natural position often includes a certain sort of epistemological claim, namely, that the objective moral order can be apprehended by all human beings through the use of their reason.

[3] Propositions (1) and (2) are often combined to produce a claim that there is a universal, common morality, accessible to all persons through the use of reason. However, propositions (1) and (2) need not be combined. One could hold (1) that there exists an objective moral order, without holding (2) that the moral order can be apprehend by reason. Some Christian theologians, for example, might hold that the character of the objective moral order must be revealed, in which case, belief in an objective moral order would not lead to the proposition of a universal, common morality.

[4] The term natural law often implies more specific claims about human nature. Those claims can be of at least two types:

Following ancient Greek philosophy, natural law theory may include the claim that human nature has a teleological structure. That is, the human being has a natural function which is realized through the pursuit and actualization of certain natural goods. In this case, natural law also involves a commitment to a theory of goods.
Along more Kantian lines, the natural law concept may assert an objective and rational moral order that is found not so much in individual human nature, but in nature more broadly understood as the universe or cosmos. Human beings recognize and to some extent participate in the rational structure of the universe and therefore should submit to it. However, natural law does not unfold from a teleological human nature and the natural law concept does not appear connected to a theory of goods.
[5] Natural law is sometimes related to a broader theory of law and included within a set of distinctions among types of law. Thomas Aquinas talked about the eternal law, the divine law, the natural law, the law of nations, and human law. Protestant theologians sometimes talked of the ceremonial law, the natural law, and the law of love. In such cases, the natural law is not a complete summary of the objective moral order, but only a part of that larger objective order.

[6] These natural law commitments raise a set of questions and problematics with which natural law thinkers must come to terms. Allow me to list a few of them.

Problematics attendant upon the natural law position
[7] (A) One standard philosophical question raised by the natural law position concerns the relationship between nature and moral obligation. Even granting that there is an objective nature, why am I obligated to conform to it? This particular question comes up frequently in matters of sexual ethics. For example, one might note that the natural purpose of sexual intercourse is procreation, but then ask why this natural function generates a moral obligation to order intercourse to procreation.

[8] A commitment to natural law also raises a number of typical theological questions for Christians.

[9] (B) How does sin affect the natural law? The sin question takes on at least two forms. (B.1) An epistemological question: how well can we know the natural law given that our reason is misguided by sin? (B.2) An ontological form: since sin has become a part of nature, how should we take account of sin in our account of the natural law? The answer to this question clearly has implications for proposition (1), concerning philosophical realism. Theologians often distinguish between prelapsarian and postlapsarian natural law, which suggests that the content of natural law has been altered by sin. Another way to get at the issue is to distinguish between an absolute and relative natural law. The absolute natural law addresses a circumstance without sin; the relative natural law contains modifications necessary to address the phenomenon of sin. (B.3) A subsidiary set of theological questions related to the ontological question concerns the relationship between nature and grace.

[10] (C) Another set of theological questions concerns our knowledge of the natural law. Can there be knowledge of the natural law apart from revelation? A thinker might hold that natural law exists, but that our knowledge of it depends upon Christian sources. Or a thinker might be committed to the idea of natural law as a body of knowledge arrived at independently of Christian sources. In that case, the next question is, what are those non-Christian sources? Do we look to the natural sciences, the social sciences, philosophy, or perhaps other sources when articulating the content of the natural law?

[11] There may be additional propositions and problematic that I have failed to consider. As I say, the list is not intended to be comprehensive. At this point, however, I would like to move on to consider the papers.

Comments on Thomas Pearson’s Paper
[12] Pearson advances the tentative thesis that for Luther natural law plays a foundational role in “civil righteousness” (which I take to be political ethics), but does not play a role in theology. This certainly seems like a reasonable thesis, but I’d like to consider it in light of the distinctions among commitments and problematics that I have just raised.

[13] First, I’d like to ask whether it is possible to distinguish between Luther’s general concept of law and his concept of natural law. That is, does Luther distinguish between a theological law and natural law, or does he think there is one law, but with different uses? Or to put it differently, when Lutherans distinguish between the theological and political uses of the law, should they understand this as a distinction between different kinds of law, or between different aspects of the same law?

[14] The answer to this question may have implications for how we understand Luther’s position on other natural law. If the theological and political use are merely different aspects of the same law, then the way human beings come to have knowledge of the law may be the same in both aspects. Suppose, for example, that I encounter the law in its theological use through my conscience, which is a rational capacity belonging to my human nature. Similarly, let’s suppose that I arrive at knowledge of the law in its political use through my conscience. In this case, my knowledge of the law, both within the domain of the theology and the domain of “civil righteousness” is via a natural capacity I share with all human beings. That is, Luther would seem to hold the commitments I labeled (1) and (2).

[15] Along somewhat different lines, we might ask how Luther comes to articulate the content of the natural law (insofar as he does articulate content). Does Luther look to Biblical sources, whether that be the Decalogue or the Scriptures more broadly, or does he look outside the Bible, to biological or sociological phenomena? The answer to this question may affect how we understand Luther’s position on problematic (C).

[16] Pearson appears to hold the view that Luther holds that there are two different types of law, rather than different aspects of the same law. If that’s true, the question would then be how the two kinds of law are related in Luther’s thought. Do the theological and political laws function completely separately from each other, or can one discern an underlying unity behind them?

[17] I would like to consider the possibility that the boundaries between theology and political ethics are more porous in Luther’s thought than Pearson suggests. This possibility is suggested by Luther’s concept of equity. Equity, which is related to epiekeia, is an exercise of prudence, or practical reasonableness, in the application of the law to difficult cases. In the third part of his treatise on temporal authority, Luther writes that even the best laws admit of exceptions, and therefore a good prince must be able to “determine in his own mind when and where the law is to be applied strictly or with moderation.” Further, in applying the law with equity, the good prince must act in a Christian way and let his judgments be informed by the law of love. This is the point behind Luther’s story about Duke Charles of Burgundy, which Pearson quotes. Pearson suggests that Luther, in approving the Duke’s decision, is departing from the natural law tradition. I don’t know enough about medieval natural law to be certain about this, but my sense is that the natural law tradition allowed for epiekeia. The deeper point, however, is that in Luther’s view the prince who exercises equity allows his judgment to be informed by the law of love, or Christian considerations. If that is the case, then even political law for Luther is influenced by, rather than separated from, Christian understanding.

Comments on Cristina Traina’s Paper
[18] I take Traina’s central thesis to be that the natural law entails a commitment to “holistic human flourishing.” Such a moral commitment certainly seems reasonable and praiseworthy, and I don’t wish to dispute it. Rather, the question I want to pose is this: What about Traina’s commitment to human flourishing depends upon the idea of natural law?

[19] The aspect of Traina’s paper that leads me to ask this question is its indeterminate description of human flourishing. It seems to me that a more traditionalist Catholic description of human flourishing would build on a more explicit and determinate theory of goods. So, for example, a traditionalist position might describe the goods of marriage specifically as fellowship and procreation, argue that these two goods are integrally related such that one cannot foreclose the pursuit of one good without damaging pursuit of the other, and thereby give us a fairly determinate description of flourishing in marriage. Moreover, the source of the married couple’s obligation to adhere to this vision of human flourishing would then derive from a claim about our universal human nature such that if the description of human nature is inaccurate, the description of flourishing in marriage loses its obligatory character. A natural law argument of this sort makes a realist claim about human nature and the objective moral order which, because it is grounded in objective nature, is also universally valid. That is, the commitment to natural law here purchases a universally binding description of human nature and flourishing (depends and builds upon commitments 1, 2, and 3).

[20] Traina, however, not only eschews universally binding descriptions of human nature, she explicitly rejects them. She emphasizes the importance of “self-critical humility” in formulating the requirements of natural law and she insists that the content of human flourishing varies by “situation, person, time and place.” Further she suggests at a number of places that human nature itself can change. Now I don’t wish to dispute these assertions and defend traditionalism–I’ll withhold judgment on these Catholic debates. My question is simply whether a commitment to flourishing in itself counts as a natural law position? Can one be committed to the idea of human flourishing without being committed to the idea of natural law?

[21] One might, for example, articulate a moral commitment to flourishing within the context of a theory of justice and right. Within the context of such a theory one might argue simply that human beings should be free to make their own choices about the good life provided those choices harm no one else, and that this right to choose should extend to all rational persons. Of course such an argument makes universal normative claims, and so perhaps might be construed as a natural law argument. But every moral argument makes normative claims. A natural law argument, it seems to me, would involve a further set of commitments. Finally, I’m left to wonder if Traina couldn’t make her argument more clearly by jettisoning natural law language altogether.

Comments on Daryl Charles’s Paper
[22] I want to begin my comments on Charles’s paper by reflecting on Barth’s critique of natural law, a critique which has in many ways determined the course of subsequent Protestant reflection on the problem of natural law.

[23] I suppose that Barth, in his famous argument with Emil Brunner, may have been wrong about the attitude of the Reformers toward natural law; but if Barth was wrong, it certainly wasn’t because he was unaware of what Luther and Calvin had said about natural law. It was because Barth insisted on understanding their comments within the context of the Reformation insight about the primacy of grace. I don’t think for Barth the issue was so much the idea of law as it was the nature of our knowledge of the law (problematic C). The debate with Brunner was really over the question “can there be knowledge of the law apart from revelation?” And Barth is probably right that this particular pointed question was never addressed directly and explicitly by the Reformers. This is in some ways a modern question raised for us by the condition of pluralism. Barth thus calls our attention to an issue that needs to be asked in connection with all natural law thinking, namely, when endorsing moral standards derived from “nature,” do we not set aside the authority of Christ?

[24] At the very least, when advocating norms rooted in the natural law, we ought to examine the warrants for those norms more closely. For example, one might argue that nature teaches a right to self-defense, because all living creatures seek their self-preservation. The Christian question, though, is why the instinct toward self-preservation generates a moral norm when Christ teaches us not to resist evil? The question is, has the concept of nature been used here to overturn the requirements of the gospel? Or to put the question more broadly, why should nature be normative when Christ calls by grace? The question, then, I would put to Charles is this: if we wish to view nature as normative, what guarantees are there to protect us from endorsing non-Christian norms?

[25] More generally, when thinking through the problem of natural, and especially when advocating a natural law position, I believe it’s helpful to become explicit about which of the natural law commitments one wishes to make. For example, Charles suggests that one explanation for contemporary Protestant resistance to natural law thinking originates in a misplaced fear of legalism and a misunderstanding about the nature of law. I think there’s something to this observation. At the same time, one might argue on behalf of greater Protestant appreciation of law without committing to the view that moral norms can be derived from “nature” on the basis of knowledge unformed by Christian sources. Perhaps Charles’s own defense of law can be articulated independently of what I’ve called commitment (2).

[26] Secondly, I want to pick up on what was really only a passing comment in Charles’s paper–the part where he says that for Luther the natural law is not a postlapsarian device, but part of the original nature of Adam. Here I have to say that I think the issue is really more complicated. The distinction between prelapsarian and postlapsarian has to do with the content of the natural law and the extent to which the natural law addresses the problem of sin (problematic B.2).

[27] Luther talked about the estates (or orders) of marriage, government, economy, and it seems to me he’s not really clear about the ways in which these estates are prelapsarian and postlapsarian. Let’s take the case of government. In the Large Catechism Luther discusses government in connection with the 4th commandment about honoring one’s parents. Here Luther appears to derive the authority of government from the authority of the father, and since the family existed before the fall, it would seem reasonable to infer that government is a prelapsarian order.

[28] However, when Luther talks about tasks of government, he usually talks about the office of the sword, which responds to sin and the threat sin poses to public order. Since sin is a postlapsarian phenomenon, then insofar as the office of government is to use force in response to sin, it would seem that government is a postlapsarian order. There was no need for the sword before the fall. I suspect that Luther was just not clear on this question, probably because he never considered it directly. Today, however, when theologians talk about the natural law, it’s important for them to think about the ways in which the natural law addresses factors related to sin and the ways in which it seeks to describe a sinless ideal nature.

[29] In conclusion, let me just note once more that the natural law is a complicated and multi-faceted intellectual problem. I think each of the papers has contributed in illuminating some of those difficulties. I hope my comments have too.

H. David Baer

Helmut David Baer is an Associate Professor of Theology and Philosophy at Texas Lutheran University.