Chief Justice Roy Moore and the Inherent Problem with “Natural Law” [Updated]

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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98 Responses

  1. Avatar EB says:

    How does this work out even on paper? Is it possible to even write the sentence “I believe that laws should be enforced only insofar as they support the good/will of God” without thinking “hmm, is there unanimous agreement as to what that is?”Report

    • Avatar dragonfrog in reply to EB says:

      I submit that you can’t seriously express that sentiment without long ago having accepted that you know what the good / will of God consists of, and anyone who disagrees with you is obviously wrong.Report

      • Avatar EB in reply to dragonfrog says:

        I agree (as is probably clear). I think that saying

        is giving natural law too much credit. Say what you will about Marxism and Objectivism, they’re not obviously, facially absurd. You really do have to try it and see. This falls more into the realm of “Natural law theory is one of those things, like the belief in the tooth fairy, that is just silly.”Report

      • Avatar EB in reply to dragonfrog says:

        Messed up a tag (on my first try, too!) Here’s what I meant to say:
        Saying “Natural Law theory is one of those things that, like Marxism and Objectivism, works beautifully on paper.” is giving natural law too much credit. Say what you will about Marxism and Objectivism, they’re not obviously, facially absurd. You really do have to try it and see. This falls more into the realm of “Natural law theory is one of those things, like believing in the tooth fairy, that reflects poorly on your status as an adult.”Report

    • Avatar Saul DeGraw in reply to EB says:

      I concur with dragonfrog. People who believe in natural law tend to be very strong on the idea that your view is the correct one. Sometimes they will say Judeo-Christian.Report

      • Avatar Murali in reply to Saul DeGraw says:

        @saul-degraw
        @Jason Kuznicki is a natural law theorist and an atheist. I don’t know how you or @tod-kelly are going to parse that one.Report

      • Avatar Kim in reply to Saul DeGraw says:

        Murali,
        oh, it’s quite simple, really. Authoritarians are relatively stupid (might we even call them morally diminished? — certainly according to a few ethical theories they are at an “earlier” stage of development, and likely to stay that way to the end of their days) and like things to be black and white.

        They REALLY like the idea of Natural Law.

        Lumping all Natural Law advocates together is probably less precise than talking about Authoritarian Personality (Disorder? ;-P).Report

      • Avatar Murali in reply to Saul DeGraw says:

        Diagnoses of Authoritarian personality “disorder” seem like the kind of thing one would come up with just to put down political opponents. I suspect that there are some whoppers in terms of contentious value judgments masquerading as fact.Report

      • Avatar Kim in reply to Saul DeGraw says:

        Murali,
        I contend these people are dangerous no matter whose side they are on, and the mere fact that they’re on the opposite side of the Political Table than me is a fortunate happenstance that may change at any minute.

        I’d rather we write them out of politics entirely, as they aren’t terribly well suited for it (wanting to use the Law as a vehicle to deliver Shame To Others is just one of their terrible ideas). They’re much more likely to be victims of propaganda than most people — which simply means that their votes can be easily usurped without much effort.Report

      • Avatar Kim in reply to Saul DeGraw says:

        Murali,
        I can point to the studies about Authoritarian personalities. It’s a real thing. (my calling it a disorder was supposed to be a “cute joke”, I’m Not Serious!)Report

      • Avatar Road Scholar in reply to Saul DeGraw says:

        @murali , an atheistic natural law theorist will refer to certain moral precepts as “self-evident” rather than being dictated by a deity. Essentially they function in the same way as mathematical axioms such as the commutative and distributive properties.

        In reality self-evidence really means moral intuition but that fact is rarely acknowledged.Report

  2. Avatar dragonfrog says:

    If only Natural Law advocates would restrict themselves to things that are truly demonstrably natural laws – enforced by nature herself. They could go around sternly making sure that objects dropped near the surface of the Earth descend with an acceleration of 9.81 m/s^2 unless they can show the legitimate defence of high air resistance relative to mass, and leave the rest of us alone…Report

    • Avatar Burt Likko in reply to dragonfrog says:

      I realize your tongue is firmly in your cheek, @dragonfrog , but NL advocates believe that principles of good and evil, order and commonweal, are as subject to objective identification as the acceleration of gravity or the speed of light. More difficult, perhaps, and requiring a different set of intellectual tools to discern, but within the realm of at least theoretical possibility.

      Now, certainly it’d be easier to do that when one of the tools at your disposal is an infallible holy book. But it’s at least theoretically possible to do it without such an aid. The essence of it is that 1) law is an instrument for good, and 2) the good is an objective reality.

      So the real question is — is there such a thing as objective good and objective evil? Something inherent, transcendent of culture, and unchangeable about those concepts? I struggle with that, at least as relates to things that are very important to me like love and autonomy or things that are very offensive to me like slavery and torture.Report

      • Avatar dragonfrog in reply to Burt Likko says:

        Well, I guess we can look forward to some concrete answers from the NL camp once the Very Large Utility Accelerator gets up and running…Report

      • Avatar Francis in reply to Burt Likko says:

        “is there such a thing as objective good and objective evil?”

        No.

        In lieu of a longer answer I point you to Nazi Germany, Pol Pot’s Cambodia, the Rwandan Genocide, ante-bellum American South and modern Saudi Arabia.

        While I am the farthest thing from a historian, ethicist or philosopher, I am absolutely sure that a large percentage of each of those communities was absolutely sure that they were doing the right thing.

        We choose the rules that we live by. Some people like to believe that these rules are encoded in a holy book. That’s provably false, but logic rarely changed anyone’s mind about morality.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        Moreso than the speed of light, since many of them reject Einstein’s Theory of Relativity as immoral. (I am not making this up.)Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @mike-schilling

        At first you made me facepalm with that observation.

        Then I did teh Google. And found good ol’ reliable Conservapedia.

        So now I’m not sure if this is real or Poe. I really hope it’s a Poe.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        If you click on that page’s history tab, you can see that many of the edits to it were made by Andy Schlafly himself. It’s often asserted that Conservapedia looks like that because of widespread liberal vandalism. In fact, it looks like that because its owner is a major dumbass.Report

      • Avatar Mad Rocket Scientist in reply to Burt Likko says:

        Oh..My..God..

        I should know better than to read crap like that.

        Seriously, Relativity is bad because L. Tribe used it as a rhetorical tool in an argument for expanding abortion rights?

        I think I need to go lay down until this aneurysm subsides or bursts. I’m not sure which outcome is preferable right now.Report

      • Avatar Stillwater in reply to Burt Likko says:

        The second most amazing thing about Conservapedia (after the content) is the writing. Sentences are ungrammatical and garbled. Paragraphs are strings of ungrammatical, garbled sentences with no logical relation to each other. Well, no connection other than refudiating the liberal view. Most of the entries express a level of reasoning I became quite familiar with teaching intro-level college courses.Report

      • Avatar Wardsmith in reply to Burt Likko says:

        @burt-likko when Tod quoted you saying “nouminous” above from the prior OP, were you there quoting from “In the Dust of This Planet: Horror of Philosophy”, By Eugene Thacker? Because Thacker there had an extremely interesting counter factual going in relation to horror. We have a hard time defining Good and Happiness and Love but it seems we zero in on their opposites pretty easily. Ultimately when we examine civilization at large it is as Lovecraft pointed out, man’s deepest and strongest emotion is Fear and fear of the unknown is man’s greatest fear. Civilization is our artificial “Matrix” construct to hold that ethereal unknown at bay. “Natural Law” gives us a framework to avoid looking into Nietzsche’s abyss. Just because we aren’t looking doesn’t mean the abyss has gone away..Report

      • Avatar James K in reply to Burt Likko says:

        @burt-likko

        NL advocates believe that principles of good and evil, order and commonweal, are as subject to objective identification as the acceleration of gravity or the speed of light.

        It’s such a strange idea – to think that morality could be somehow baked into the universe. I wonder, do these people think there are morality fields, or morality particles or are they just so unaware of how the universe is constructed that it doesn’t occur to them to ask the question?Report

      • Avatar Murali in reply to Burt Likko says:

        @james-k

        Well, this fields, particles stuff is just ridiculous straw manning. Reducing moral terms to non-moral terms need not involve particles or fields. Moral properties could be some complex property that deals with collective self-defeat, pro-sociality or something. Doing the reduction is hard. But not necessarily impossible. There are natural properties we deal with in the social sciences that are not reducible to fields and particles but whose provenance is entirely non-mysterious.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @james-k the nouminous is not like the phenomenal. (Which should answer @wardsmith ‘s question — I’m referring to Immanuel Kant here.) It’s akin in a way to a Platonic form than to something like matter or energy or a Planck unit.

        I’m pretty clear that if nothing else, Oliver Wendell Holmes Jr. got it right to say that the law is not a brooding omnipresence in the sky and all that a judge need do is detect it. I’m a bit less certain that good and evil aren’t susceptible of an objective definition. It’s very hard for me to think of a circumstance in which torture might be morally good, for instance. That suggests to me, empirically, that there may be such a thing as intrinsic evil. But other things that some find similarly abhorrent are deemed with equal force to be totally innocuous by others, like homosexuality, and nature causes things that if they were done intentionally we would condemn as cruel but do not because the universe is not sentient. The universe is not being cruel when a hurricane destroys your house, for instance: the hurricane lacks the capacity for cruelty. So those ideas vitiate the notion that objective evil exists.

        This is a brute force approach, but the more lofty and theoretical methods of formal philosophy either escape me in their conceptual complexity or fail to satisfy the inherent ambiguity of empirical data. So I’m still unresolved as to the existence of objective good and evil, which casts me as a natural law skeptic.Report

      • Avatar Roger in reply to Burt Likko says:

        @murali

        “Reducing moral terms to non-moral terms need not involve particles or fields. Moral properties could be some complex property that deals with collective self-defeat, pro-sociality or something. Doing the reduction is hard. But not necessarily impossible.”

        To the extent that the reduction can be done, then fine. To argue something is a natural right places the burden of the one making the argument to connect the dots for us. At this point though natural rights starts to break down to consequentialism.Report

      • Avatar Murali in reply to Burt Likko says:

        @roger

        Once you clear away a lot of the 18th century metaphysical baggage, natural law moral theories look a lot like some forms of indirect consequentialism. The major difference is that natural law theories going back to the ancient greeks consider the virtues to be exhibited as part of the ultimate good as well.Report

      • Avatar Kim in reply to Burt Likko says:

        Murali,
        Then you have plenty of things that are neither good nor evil. And you have to deal with the “but that bullet is a good bullet, and that bullet is a bad bullet” (or substitute death for bullet if you’d rather).

        Anything that gets to be that big is going to be fuzzy. Hell, intelligence itself is fuzzy. And fuzzy and objective aren’t on good terms.Report

      • Avatar Ken S in reply to Burt Likko says:

        Francis : “is there such a thing as objective good and objective evil?”No.
        In lieu of a longer answer I point you to Nazi Germany, Pol Pot’s Cambodia, the Rwandan Genocide, ante-bellum American South and modern Saudi Arabia.”

        These examples don’t prove that natural doesn’t exist, they prove that government-made law can be horrifically wrong. The fact that everyone reading this blog knows in his or her heart, without the need to cite any external authority, that these examples are pure evil, suggests that there is at least something to a natural theory of morality.

        The fact that lots of natural law advocates are homophobes and misogynists doesn’t disprove that existence of natural law any more than the decades-long success of the Piltdown Man hoax disproves the theory of evolution.Report

      • Avatar veronica dire in reply to Burt Likko says:

        @burt-likko — Thing is, your certainty that torture is always-everywhere wrong is admirable. But it is hardly universal. Torture was once fairly routine, and the people who performed torture otherwise upstanding citizens.

        Which to me seems alien, but there it is.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @veronica-dire I’m well aware that torture, like slavery, was once commonplace and culturally acceptable. The fact that a practice is commonplace does not illuminate the issue of whether it is morally justifiable, at least in my mind.

        If slavery is morally wrong today, in 2014, wasn’t it equally as morally wrong 200 years ago in 1814? In 1014? Sure, lots of people owned slaves but that doesn’t mean it was morally right for them to do so.

        Alternatively, if the morality of slavery is a construct governed by nothing more than contemporary cultural mores, such that it was morally justifiable in 1814 but not in 2014, then why are we so certain today that it is really wrong, and we must confront the possibility that it might become morally acceptable again in the future. Uncomfortable, to say the least!

        Mutatis mundatis for, e.g., criminalizing sexualities other than hetero, forced religious conversions, torture, child labor, serfdom, caste systems, settee, ritualized genital mutilation, human sacrifice, population control via infanticide, gladiatorial games, etc. etc.Report

      • Avatar Kim in reply to Burt Likko says:

        Burt,
        I am much more comfortable explaining why torture is not ethical, rather than why it is not moral. (also, it strikes me that the governmental endorsement of torture is much more broadly problematic than torture itself, as it strikes at America’s ability to keep it’s own treaty obligations among other things).

        Morality is something that each person decides within their own heads, and in a given situation as well (I’m not that Kantian). As much as I’m certain that torture is immoral, I’m not going to push that on someone else, in every situation. The world’s too bleak and grim for me to be judging someone else.Report

      • Avatar Kim in reply to Burt Likko says:

        Burt,
        Would you say that cannibalism is immoral? Or is that just a matter of culture and taste? (does it matter if it’s endo or exo cannibalism?)Report

      • Avatar dragonfrog in reply to Burt Likko says:

        @murali Reducing moral terms to non-moral terms need not involve particles or fields. Moral properties could be some complex property that deals with collective self-defeat, pro-sociality or something.

        I don’t see that transforming morality into terms of collective self-defeat or pro-sociality is actually any reduction in complexity or fuzziness. That is, as far as I can tell, it would be just as much of a no-op to transform collective self-defeat or pro-sociality into terms of morality.

        To misuse some comp sci – I’m not convinced that morality, pro-sociality and collective self-defeat aren’t all NP-complete problems. A proof that a solution to a problem A can be turned into a solution to a problem B known to be NP-complete doesn’t help solve problem B, it just demonstrates that A is at least as hard as all other NP-complete problems – which is to say, practically insoluble unless quantum computing gets far far better than it is now.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @kim

        I would not call cannibalism immoral. I would call it taboo. Not all cultures have this taboo, but most do, and in those, it’s a really really strong taboo.

        Human meat is probably not sustainable as a food source, because ingestion of human prions can cause spongiform encephalopathy. So it might be unethical, at least as a routine practice. But in an extreme situation, with no other realistic opportunity to survive, it seems to me that after some uncomfortable shifting in the seat, seems that we’d have to concede that it’s not immoral to eat human flesh.

        And yes, to your coda, that includes eating one’s own flesh, as creepy and awful as that sounds.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @kim I neglected to add that I’m not considering how the meat has been harvested and I’m presuming that the taking of the meat was accomplished without resort to murder. We’d have to get into a really extreme fact situation before I’d even consider giving a pass to killing a human being for the purpose of harvesting their meat for consumption.Report

      • Avatar Murali in reply to Burt Likko says:

        I don’t see that transforming morality into terms of collective self-defeat or pro-sociality is actually any reduction in complexity or fuzziness.
        @dragonfrog, Things like collective self defeat are somewhat more tractable than terms like morality. I have a fairly precise understanding of what I’m talking about when I talk about collective self defeat. The term morality itself (at least pre analysis) seems more fuzzy. Collective self defeat is tractable. For any given subjective principle of action, checking whether it is collectively self defeating involves seeing if everyone applying the principle undermines the stated aims of the principle. This is basically Kant’s formula of universal law.

        Now, if the reduction is done well, morality should be analysable entirely in terms of non-moral terms which are themselves fairly tractable. Even if morality is np complete, partial solutions over a limited but salient range are possible. In fact, I think the Original Position argument is a partial solution that covers principles for the fundamental social institutions in a pluralistic society. And finding out what people would decide in the Original Position is also a tractable problem. Even if a general solution is np complete, some practically partial solutions are not.Report

      • Avatar veronica dire in reply to Burt Likko says:

        @burt-likko — I guess I’m coming at this from a particular angle. I’ll try to summarize:

        1. I fully accept the worldview that comes from the natural sciences, that the universe is made of atoms/quarks/leptons/etc., and nothing else, that we are made of atoms/quarks/leptons/etc. and nothing else, that our brains are made of this, and all that entails.

        2. I think that our sense of love, meaning, truth, justice, and morality, are each nothing more than a manifestation of brain chemicals. That’s it.

        3. But it does not feel this way.

        4. These feeling are very strong. However, to me this simply means we are wired, probably in the structure of our brains, to see an illusion of truth, meaning, and justice.

        5. We try really hard, I think, to erase this truth, to find some way to show this illusion is actually real, but it is not.

        6. To some people, perhaps most of us, realizing this is horrifying.

        7. We cannot turn off this illusion. I’m not sure if we would want to.

        So you goes for your (and mine) objections to torture and slavery.

        I’m not sure what to do about this, but I believe it is true and indeed the world we find ourselves in.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        If only we could control the chemicals and electrical impulses in our brain with enough fine precision that when our bodies are subjected to torture, we could render ourselves within the experience of pleasure rather than that of pain. Torture would then cease to exist, and whether it is objectively evil or not would cease to matter. But this is not the case.Report

      • Avatar bob in reply to Burt Likko says:

        Burt, there may not even be something “objective” much less good or not.Report

  3. Avatar zic says:

    As a hedgewitch, all I can say is that those Christians and the voices they hear in their heads got nothing to do with natural law. Not a single damned thing at all; except maybe their rye went bad.Report

  4. Avatar James Hanley says:

    a few hand-selected high priests

    I would suggest you mean “self-selected.” But that’s a quibble on a post in which I am otherwise wholly in agreement. As a strong believer in individual liberty, natural law would be a nice crutch to support my preferences, but I have to begin with first principles, and the first principle is that we have no basis on which to claim there is a moral basis to the universe.Report

  5. Avatar Shazbot3 says:

    Wait are you asserting that Natural Law theory about the law is the same as or derived from Natural Law Theory about morality? ??? I hope not, because that would be really wrong.

    Sure, believers in Natural Law theory about morality almost always hold homophobic views. It is a stupid and easily refutable moral theory. There are clear differences between unnatural and immoral or natural and moral.

    But belief in Natural Law Theory about the law can be compatible with liberalism, libertarianism, Marxism, Fascism. It is simply the assertion that social facts alone do not determine what the law is and why the law is normative.

    I hold something like Dworkin’s view, which is close to Natural Law theory in a way, and has nothing to do with these conservative idiots who believe in natural law about morality.Report

  6. Avatar Kazzy says:

    Ugh… I don’t even know where to begin. I can’t even put together a simple sentence. The mere presumption that there is A natural law — that just one set of “God given rights” exists and that it necessarily (and conveniently) comes from there God just makes me want to break things.Report

    • Avatar roger in reply to Kazzy says:

      Agreed, talk about rights is often just a way to shut down discussion. That said, seems to me various libertarians and progressives use ”rights arguments” routinely on this site. Property rights, sanctity of body rights, right to a living wage and so forth.

      Interestingly, i would say the VALUE of rights, is to get us to shut down internal discussion (within our own minds). Once we consider something a right, there is value in considering it sacrosanct and not worthy of further debate (i.e. a good moral heuristic). The question though are which moral and social conventions are worthy of being considered rights.Report

      • Avatar greginak in reply to roger says:

        I agree people talk about “rights” to much and often use the word as a way to easily justify whatever they think is good. Even people i agree with do this. It seems like an American thing that once you call something a right that ends discussion. Most things are at best good ideas, a good idea is enough to talk about and try to implement.Report

      • Avatar zic in reply to roger says:

        Interesting; but: as someone who sees a march of progress from few rights to something that’s beginning to look like equal rights, I sort of disagree, @greginak and @roger

        First, that march tells me that rights are not innate, we are not born with them, they shift, and they are a mutual covenant. So the concept of ‘inalienable rights’ has built into it the privilege of generations of mutually-agreeable covenants that English Society had settled. Those rights didn’t include my great grandmother, they didn’t include people living on the Ivory Coast, they didn’t include the tribes already here.

        So discussions of rights should be serious business. And because of that, things that people want to make serious get inflated. Health care is a good example; I’m probably guilty of saying people have a right to health care. But nobody has a right to bend all possible resources to a disease; just as nobody should die out on the street for lack of basic health care.Report

      • Avatar Stillwater in reply to roger says:

        Awesome post Tod.Report

      • Avatar greginak in reply to roger says:

        @zic I think rights are important also. It’s more that most arguments involving rights turn into quasi-religious arguments that evade the issue. Those of us who believe in Uni health care believe in it regardless of whether we call it a right i think. Those who don’t dig UHC obviously don’t think its a right. So talking about whether its a right seems to be a bit away from whether UHC is a good idea and how to do it if we are going to do it. To many discussions of rights end up about philosophy which is fine and all, but doesn’t prove anything.

        Even when we have rights we agree upon the rubber really meets the road when we have to figure out how the various rights we have fit together. It’s easy, oh so so easy, to proudly declare something a right. But much harder to define the limits of that right especially when that right abuts others rights and other principles.Report

      • Avatar Roger in reply to roger says:

        @zic and @greginak ,

        I don’t think our positions are all that far apart. Somewhere buried in my comment is the implication that rights are not something which we can whack someone not believing them over the head with.

        IOW, it is unproductive to say “health care is a right ” to someone not already agreeing. It is more productive to say “health care should be a right and here is why.”

        Once we all agree it is a right (assuming we do, and I don’t) then it can be useful to treat it as an inalienable right. Rights are useful fictions. Practical heuristic tricks.Report

      • Avatar Kazzy in reply to roger says:

        @roger

        Do you believe that rights exist?Report

      • Avatar Roger in reply to roger says:

        Sure. But fiction exists too. Lies exist. Useful rules of thumb exist.

        The error is to objectify an extremely useful moral heuristic and project it beyond what it is.Report

      • Avatar zic in reply to roger says:

        @kazzy @roger

        Earlier, I was going to ask Roger what he thought inalienable rights are; but I thought it was a stupid question. Kazzy’s made me reconsider, maybe it’s a good question. What are our inalienable rights?Report

      • Avatar Kim in reply to roger says:

        zic,
        I don’t think we have any, really. We have things we call rights, by which we really mean that folks will take great umbrage if the government attempt to take them away.

        But let a corporation do the same thing, and certain people are all on board with justifying why the corporation is correct, and why it’s the government’s fault that we have slaves in America.Report

      • Avatar Burt Likko in reply to roger says:

        I’ve gone on record with my opinion about this subject. Rights begin where governmental power ends. There is nothing supernatural about how that line is drawn; it’s all a function of the positive law. In the United States, the Federal Constitution represents the highest level of positive law. And like all positive law, it’s malleable, although by intent, it can only be altered with substantial political difficulty.Report

      • Avatar Brandon Berg in reply to roger says:

        Or five judges realizing that they can say the Constitution means whatever they want it to because no one can overrule them.Report

      • Avatar Francis in reply to roger says:

        On a purely practical level, here in the US a ‘right’ is a claim recognized by one branch of government — the judiciary — that some executive (usually) branch of government has overstepped its powers. Rights do not exist in a vacuum; they are defined by the extent to which the judicial branch will push back against executive overreach.

        For example, back when I was a land-use / water rights lawyer (up until the great recession), the hot topic in property rights was regulatory takings. What is the limit of land use regulation? It’s the point at which a court will find that the 5th amendment or state constitution equivalent requires compensation.

        Most people don’t use rights language that way. Probably for the best; lawyers can be a very annoying breed. And while that approach tells you what a right is, it doesn’t do much to tell you (or the court, for that matter) what the scope of the right should be.

        Unfortunately, the determination of what the scope of a right should be seems far too often to be driven by the Rule of Five (five votes on the Supreme Court).Report

  7. Avatar veronica dire says:

    All I know is if this guy gets put in charge of Mozilla I’m gonna be pissed!Report

  8. Avatar Road Scholar says:

    Great post, @tod-kelly ! IMO, ultimately, the Natural Law proponent is engaging in a fundamental deceit. She will attribute the moral/legal precept to some outside Authority, whether God or Nature or whatever, thus absolving herself of any real responsibility for said precept. “I’m not saying gays should be stoned in the public square. That’s God saying that. If you have a problem with it, take it up with Him.”

    But of course she really is saying that gays should be killed, whether by her choice of scriptural authority or by dint of her revelatory discovery of the relevant natural, “objective” principle. Ultimately it boils down to an argument from Authority with the claimant herself as that Authority and then lying about that part. In fairness, I suppose we should acknowledge that the claimant likely doesn’t realize she’s doing that, and that she’s lying to herself first and foremost. Even so, it’s still obnoxious and belies more than a touch of arrogance.Report

    • Avatar James K in reply to Road Scholar says:

      @road-scholar

      Just so. There is no alternative to using your moral judgement, for deciding to follow the dictates of an authority is itself an act of moral judgement.Report

      • Avatar Murali in reply to James K says:

        I’m not sure how well this measures up psychologically. Presumably, we use very different parts of our brains when we reason through things ourselves than when we defer to the judgment of others. How do I know that there is anthropogenic global warming? Well, the climate scientists say there is. Consider the following hypothetical. Scientists find that global warming is instead mostly attributable to naturally occurring bushfires and volcano eruptions. Since I defer to experts, if climate scientists really do say that, I will most likely just follow suit. Subjectively, I’m just treating climate scientists like a highly reliable source of information. My decision to do so is far removed in the past and my hypothetical change in views does not seem to robustly be a product of deliberation or at least at most indirectly so. It also seems that in any one event of moral decision making where one of the options is dictated by an authority, if I am pre- committed to that authority, my subsequent “decisions” do not seem like singular acts of moral judgment.

        And, if it turns out that some of my priors are constructed in such a way that gives me little occasion for revision and further these priors designate some moral authority, the sense in which I have decided to follow the dictates of said authority may be extremely tenuous.Report

    • Avatar j r in reply to Road Scholar says:

      What you have just said is a very good argument against certain logical fallacies (appeal to nature, naturalistic fallacy, appeal to authority,etc.) It is not, however, a good argument against Natural Law Theory, which is something wholly different from what you are describing.Report

  9. I think Tod’s OP relies very heavily on the notion that according to natural law, the absolute good must be knowable to a certainty and that natural law advocates claim to know the absolute good to a certainty.

    Still, I see a couple problems with the OP’s way of putting it. First, I’m not so sure that all adherents to natural law theory do believe the absolute good is knowable. They might say it’s absolute and naturally derived, but they advocate a posture of humility to ground any forays into determining what the absolute good is.

    Second, even if a NL advocate believes that the absolute good is in theory “knowable” (by humans), I don’t think it therefore follows that the same advocate actually claims to know the absolute good to a certainty.

    But I do think something like NL is somehow implicated in what most of us believe. For example, @burt-likko and @james-hanley above note some things that they regard as important principles. But they hedge a bit. Burt says he “struggles” with whether some of his first principles, such as respect for autonomy or opposition to slavery, can be called objectively good or bad. And Aitch declines to rely on what to him is the facile NL argument in favor of his support for individual autonomy, saying instead that his first principle is that “we have no basis on which to claim there is a moral basis to the universe.”

    It’s probably too reductionist for me to say that they actually are believing in NL without knowing/acknowledging they do. But I also think they each are conceding a point. I doubt Burt would say slavery ever is acceptable. And I think Aitch’s claim about there being no moral basis to the universe can be itself a “moral” claim, because the reason for making it is to proscribe certain moral terms to be derived from nature in the first place.

    And again, I realize that’s reductionist. And I hate it when philosopher types say, “well, by saying that, you’re actually doing that which you argue against” (in other words, I’m not sure how fond I’d be if I were one of Socrates’ co-citizens). But I’m bothered by the OP’s claim that NL consists in the claim to knowability and to certitude, and most of us have certain principles we either know to be true or at least act as if they are true even while conceding they can’t be known. I don’t think the statements of a bigoted judge or a group of constitutional originalists necessarily damns the whole idea of NL, and if they represent the logical extension of anything, it’s of the notion that one can be certain in the absolute good, not the idea of an absolute good itself.Report

    • tl; dr: believing that the absolute good is knowable and knowable to a certainty is not necessary to believe that the absolute good exists.Report

      • That may be true, @gabriel-conroy , but if you veer out of the territory of comprehensibility of the absolute good, then you are operating on belief alone. Unless that belief is universally held, which is an impossibility in a pluralistic culture, you’ll have chosen a liquid, or at best plastic, foundation upon which to construct a positive law.Report

  10. Avatar Brandon Berg says:

    Eh? Natural law is a term I associate primarily with John Locke and classical liberalism, not with Christian conservatism. Is this wrong?Report

      • Avatar Shazbot3 in reply to Burt Likko says:

        Aquinas is a confusing case as I say below.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Point being, the notion of natural law predates enlightenment era liberalism (you can find elements of it at least as far back as Plato) and has had numerous Christian philosophical luminaries who dealt with it. This wasn’t an original concept to Locke, Rousseau, and their contemporaries; they had their takes on it, sure, but it’s really been sort of an eternal issue, one humans have dealt with in one form or another as long as we’ve had civilization.Report

    • Avatar Shazbot3 in reply to Brandon Berg says:

      BB is correct.

      The idea that you have natural rights not given by the written law, that are prior to the written law, which determine normative claims about the written law is Natural Law Theory. There is the real law and real rights and there is the written law. The real law is always good and the written law is good if it conforms to the real law. Accounts of the real, natural law vary from the religious, the reason-Kant-based, to the utilitarian human interest based, and can vary from libertarian to socialist and all poijts in between

      Natural law theory asserts that written law is sometimes not really law at all. Positivism denies this; the law is whatever has been posited to be law by a society is the law. Whether it is a good law is a separate matter. Proponents include Bentham, Austin, and even Marx.

      The most famous critic of positivism is Dworkin. Dworkin is not quite a natural lawyer, but is closer to that than positivism.

      In short, all of this is very meta. You can accept any of these positions and deny the sort of stupid conservo-fascist Christianity that this dumb paradigm of American conservatism is accepting. Many great philosophers of many different stripes in fact have accepted positions that are Natural Law or Positivism.Report

    • Avatar Brandon Berg in reply to Brandon Berg says:

      To be clear, I’m not trying to claim the concept of natural law for libertarians, or even definding it—I think it’s just an attempt to declare personal preferences and intuitions to be axiomatic. And Burt is right about it predating liberalism. I just don’t think of it as something associated with Christian conservatives, particularly.Report

  11. Avatar j r says:

    As @shazbot3, @shazbot9 and @brandon-berg have pointed out, Natural Law Theory and Natural Rights Theory are things that are separate from Roy Moore and his goofy, populist, ahistorical understanding of political philosophy and jurisprudence. To say that the latter is inherent to the former is a classic example of a reductio ad absurdum. In fact, creationists do something similar in arguing that Nazi eugenics is somehow inherent to a belief in evolution and natural selection. No such thing is true.

    If you want to argue in favor of legal positivism or some variant of it or to point out some of flaws in natural rights theory, you should do that. You should make a positive argument in favor of an alternative or you should criticize the thing itself and not some warped social conservative take on natural law, which has a very full historical and philosophical record dating back to Aristotle and Thomas Aquinas and John Locke.Report

    • Avatar Shazbot3 in reply to j r says:

      Yeah, people get confused by the reference to Aquinas and the two meanings of Natural Law. One is a theory about the content of morality (which is often used to justify homophobia) and the other is a sort of meta theory about the status of laws. Aquinas defended both views.

      But I would guess the majority of people who believe in Natural Law theory about laws do not accept Natural Law theory about the content of morality.

      Also, if you deny Natural Law theory all the way (and don’t compromise like Dworkin), you’re a Legal Positivist, and that isn’t exactly a problem free philosophy either. (Only Hakuna Matata is a problem free philosophy.)Report

  12. Avatar Kim says:

    *smirk* Now everyone who duly clapped at seeing this nincompoop get his just desserts — care to explain about why Israel is allowed to privilege Jews over other religions?

    I continue to maintain that it is immoral.Report

  13. Avatar j r says:

    I’ve gone on record with my opinion about this subject. Rights begin where governmental power ends. There is nothing supernatural about how that line is drawn; it’s all a function of the positive law. In the United States, the Federal Constitution represents the highest level of positive law. And like all positive law, it’s malleable, although by intent, it can only be altered with substantial political difficulty.

    As you might expect, I have some problems with this view, but not necessarily insurmountable problems. Although I come at this from a modified natural rights perspective, I am guessing that we could come to agreement on a fairly robust set of points where rights are the reflection of political will and a fairly robust set of points where rights reside in the realm of the individual. There would be some areas that you would claim for the political and I would claim for the individual, but nothing so drastic that we could not come to an agreement that enables us to peacefully co-exist.

    That being said, this post is slightly vexing, because I am not sure what the ultimate point is. If you want to show that Moore and those like him are wrong, you don’t need to take on Natural Law theory. You’d be better off showing that Moore is wrong by his own admitted standards, which he is. And if you really want to take on Natural Law theory, you would be better off offering a critique of what it actually is as opposed to Moore’s bastardized version of it.

    You may have reason to critique Natural Law and Natural Rights theory, but i doubt that you want to dispense with it as a whole. Contemporary egalitarian liberalism is built upon classical liberalism and it would be better to identify where the two diverge than to try to pull the whole plant out by the root. To do so would be to essentially discard the entire history of Enlightenment political philosophy.

    Here is an example of where this is relevant. There is a movement in certain circles to begin referring to African Americans enslaved in the United States and elsewhere as enslaved people as opposed to slaves. The idea behind this movement is that calling people slaves reduces them to their legal standing and to their bondage while calling them enslaved persons is a fuller recognition of their humanity. I tend to agree with that idea, in part, because I’ve never liked how we often talk about slavery as a singular institution or historical happenstance, as opposed to what it really was, which was on ongoing state of theft, kidnapping, extortion, rape and murder.

    By your legal positivist world view, these men and women really were just slaves, because that was their legal status. The only way around that is to recognize that human beings have a claim on rights that extends beyond just what the law allows. I don’t think that you would lose your ability to effectively criticize Moore or other reactionary, or even libertarian, positions by recognizing some level of natural, preexisting rights.Report

    • Avatar Burt Likko in reply to j r says:

      Well, bear in mind that Our Tod wrote the OP, not me. He referred to a thumbnail definition of natural law that I gave, what, two years ago now. If I’ve misstated what natural law theory is, by all means correct me.

      No one is a fan or a defender or Moore, it seems obvious that he’s only dressing up his bigotry in the vestments of law, morality, and religion.

      Interesting about the nomenclature of slaves versus enslaved persons; it strikes me as important from the level of reminding the modern reader that these were people, not property. I have no intellectual difficulty with the notion that these people were deemed property being simultaneously legally accurate and morally offensive: the law sometimes is bent to serve immoral ends, after all. But that did not make it any less the law. If you agree with that, congratulations, you’re at least partially a positivist since you just distinguished law from justice.Report

  14. Avatar LWA says:

    I add my voice to those who see the OP as being overly broad.
    Its fine of course to wave the banner of pluralism and tolerance, expesically at such a raging bigot as Moore.
    But ultimately pluralism runs into its own limit of absurdity.
    \There are no universal truths? Ever? At all?
    Human rights are malleable over time, and across cultures?
    For instance, people in America have rights, but people in Sudan don’t? Property rights exist today, but maybe not tomorrow?
    Good and evil are just whatever we declare them to be?

    Moore- and many others- mistakenly appeal to Natural Law when what they really are appealing to is a fundamentalist revelation. That is, they have a one on one personal revelation of the truth, and stop there.Ironically, they are relying on a form of individual pluralism, where one person’s opinion is every bit as valid as centuries of case law and philosophical development.
    Moore, for example, isn’t appealing to some large body of intellectual work that has been argued and defended. He is asserting an entirely personal inspiration.

    Social justice teaching, by contrast, promotes the idea that a universal truth can be discovered but not simply by revelation. The revelation needs to be supported by empirical analysis, and dialogue and consensus.

    Why is there this assumption that nothing lies between moral slavery and moral anarchy?Report

    • Avatar Matty in reply to LWA says:

      I agree there is a lot between those extremes but let me suggest something else that fits in the gap.

      The lack of a universal rule about what is best does not mean there are no grounds to prefer one option over another.

      I’ll use speed as an example, I think that it is a bad idea to drive as fast as you can past a school as children are coming out. Does that mean there is or should be a universal law that you must never try and go and fast as possible? Does it mean that my preference for going slower near schools is completely arbitrary and if I did 100mph no one would have any reason to criticise me?

      In the same way moral claims can be specific to given circumstances without being meaningless. Universality is not needed to make decisions most of the time.Report

      • Avatar Murali in reply to Matty says:

        universality is not about applying at all times and places. It is about applying to everyone who is relevantly similarly situated.

        That said, one practical upshot of simpler rules with a wide range of application is that everyone can follow them. More complicated rules are harder to follow by everyone. If it turns out that some significant subset of competent adults could not follow a rule because it is too complicated, there might be a case for thinking that this is not the sort of rule that could apply to everyone.Report

  15. Avatar Road Scholar says:

    I’m starting to wonder if what Justice Moore is promulgating really is, or at least whether it should be, considered a version of Natural Law theory at all.

    Consider many Biblical stories, for example the one about Abraham being commanded by Jehovah to sacrifice his son, Isaac. Abraham demonstrates his righteousness by his willingness to do what, in any other context, would be a heinously wicked act. Right and wrong, good and evil, are determined solely by the will of God at any particular moment, irrespective of consistency with any broader principles or established rules. This is the Natural Law Justice Moore subscribes to.

    Contrast that with the philosophical project of our own Jason K., an atheistic NL theorist. His project as I understand it–and I’d be delighted to have him chime in here–posits that objective morality is baked into reality much the same way as physical laws or mathematical logic. Something isn’t right or wrong because… anything, really. They just are. It’s reminiscent of the Buddhist Eight-fold path of Right Action, Right Thoughts, etc. While Jason I’m sure would declaim personal revelation, i’m not sure how you avoid the intuitive basis of it all.

    But I digress. My point is these are very different philosophies. Jason’s version, for better or worse, correct or not, at least has the virtues of constancy and consistency. Justice Moore, on the other hand, necessarily has to allow for the possibly capricious will of the deity from whom the Law flows. And that, I would argue, sounds a hell of a lot like a kind of legal positivism, albeit theologically based, but I don’t see how that makes it any better.Report

  16. Avatar Road Scholar says:

    Comment in moderation. Must have hit a bad keyword.Report

  17. Avatar DRS says:

    I vote we abolish the word “Christian”. From now on, it’s Protestants, Catholics and God-Botherers. (I’ll let the Mormons decide amongst themselves where they prefer to sit.) I refuse to share a designation with sub-evolutionary liars-for-Jesus like Moore, Palin and their ilk. I realize that leaves me with Rick Santorum and Paul Ryan but that still lightens the load considerably.Report

  18. Avatar Barry says:

    Francis : “is there such a thing as objective good and objective evil?”No.
    In lieu of a longer answer I point you to Nazi Germany, Pol Pot’s Cambodia, the Rwandan Genocide, ante-bellum American South and modern Saudi Arabia.”

    Ken S: “These examples don’t prove that natural doesn’t exist, they prove that government-made law can be horrifically wrong. The fact that everyone reading this blog knows in his or her heart, without the need to cite any external authority, that these examples are pure evil, suggests that there is at least something to a natural theory of morality.”

    I’ll bet money that Moore doesn’t think that the ante-bellum American South was evil. He might be smart enough to refrain from publicly saying so………Report

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