Natural Law and the Giving of Justifications

In my contribution to the Democracy Symposium, I acknowledged that modern economic realities may well require more of our government than our Founders contemplated some 22 decades ago.  CK MacLeod worries that, as a Constitutional Conservative, I’ve wandered into a contradiction.  By my own terms, according to Mr. MacLeod, our founding documents are expressions of absolute principles.  Thus, the Constitutional Conservative is stuck in a Morton’s Fork:  Either we are stuck with the rules designed for a 18th century world, or Constitutional Conservatism is kaput.  Here’s Mr. MacLeod

Leaving aside the question of whether the DoI can be considered as in any way binding, I don’t see it quite making an argument that ignoring the first principles of anti-monarchists necessarily leads to “absolute Despotism.” The deeper problem is that when, in statements like the above, you assert absolute principles and then at the same time admit, as TVD also does, that fairly fundamental compromises can and must be made, and even woven into the fabric of the nation, then we’re just left with absolute principles that aren’t even remotely absolute as actually applied, are honored only in the breach, as they say. They seem to be ideals or aspirations, apparently among others – including very practical ones like justice, general welfare, defense, and so on. So attacking Democrats or progressives or anyone else for violating the first set of principles (which are not in any way binding and which were already recognized as completely insufficient even within the document itself and certainly in the early history of the republic) begins to look completely arbitrary. There is no predictable system for turning any absolute moral precept into a real world policy – and the attempt to do so has historically been at least as often typical of despotism, especially in the modern age, as compromising and muddling through has been. Why shouldn’t we expect that the Constitutional Conservatives, if ever in a position to govern, would immediately set about to picking and choosing when to apply their preferred and loudly advertised ideals – either that or bring the whole structure crashing down chaotically?

Emphases mine, and I’ll begin with the first.  Some of the principles in our founding documents are indeed expressions of the natural law.  Take the freedoms of speech and religion, and the right to property, as examples.  Deny these rights and, yes, the whole structure would come crashing down, as they are the cornerstones of our American project. 

But others of the tenets in our Constitution are simply a recognition of other natural law principles.  As just one example, consider James Madison recognition that men, by their very nature, are not angels—the recognition of which obsessed the framers with separating powers and installing checks and balances.  And yet we can tweak the separation of powers and limits on government while still making appropriate safeguards against factions and injurious self-interest.  The precise separations and checks and balances in the Constitution are not expressions of the natural law itself, like individual liberties are. The former are contingent propositions; the latter are necessary truths. 

As to Mr. MacLeod’s second point emphasized in the excerpt above, it is a mistake to assume that the natural law is about the handing down of “absolute moral precepts.”  The natural law is about deriving, through moral and logical reasoning, those truths about man and the world that must be accepted as true because they are antecedent to the ability to make cogent claims to knowledge about the world.  Thus, the natural law cannot be rejected without casting oneself into arbitrariness and absurdity. 

Much of the natural law project in American constitutional law is the giving of justifications.  Even when it comes to fundamental liberties, the Constitution enjoins Congress from making any law abridging the freedom of speech, as distinguished from falsely announcing a fire in a crowded theater, for example. There is no right to do a wrong—a natural law Lincoln spent much blood, including his own, codifying into our second constitution. Not all speech is justified, and what is not may be properly enjoined (some of the Supreme Court’s confused jurisprudence to the contrary notwithstanding).

Individual rights and laws respecting them have everything to do with presumptions and the giving of justifications. In the American model, the individual is presumed to be free unless and until the government provides a justification, in terms of moral logic, that would abridge his freedom.  Does this make for a “predictable system”?  That depends on whether a people remain concerned about the giving of justifications, a proposition that is the source of much consternation.  The past half century in constitutional jurisprudence has seen a right to “privacy” spring out of the Constitution, as if the moral quality of conduct is contingent upon architectural design.  Progressive taxation, whose moral justification has never been properly vetted, is a given in modern politics and untouchable by a Court whose most stalwart conservative won’t even touch the natural law, and its insistence on the giving of moral justifications, with a ten foot pole. 

When it comes to economic liberties, Constitutional Conservatives can, without any danger of contradicting their principles or appearing arbitrary, fully recognize that a number of moral justifications might be given as against the presumed freedom of the individual to do whatever he likes in the modern marketplace.  The requirement, now as always, is the giving of reasons amounting to a moral justification.  This, of course, will preclude such things as passing laws to find out what is in them.  But that’s a problem for the other guys. 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Interesting post. There have been so many posts going on about the right to do wrong in both the sub-blogs and the main page as well that it is almost like a symposium. It would have been an awesome symposium to do. Anyway, there are some things which I disagree with in your post.

    The natural law is about deriving, through moral and logical reasoning, those truths about man and the world that must be accepted as true because they are antecedent to the ability to make cogent claims to knowledge about the world.

    This, I think, comes a lot closer to the Kantian project than the Aristotelian or for that matter, Thomistic one. Not, that I disapprove of the project, mind you, just that there is something much more controversial going on in the natural law project for there to be so much conflict between Kantians and Natural lawyers. As a non-natural law guy, the thing that bugs me about natural law arguments is the essentialism. For example, a natural law argument (such as Jason Kuznicki might give) is that because reason giving is a uniquely human practice, human beings are by nature rational truth seekers and therefore un-reason is against human nature. A more conservative natural lawyer may argue that one of the telos of a species is to propogate itself, i.e. many of the common practices of species center around propogating itself as if that were its telos. Therefore homosexual practices are un-natural.

    The problem seems to me that we cannot infer from what seems a common practice to what is in part of one’s nature. I wonder what your take is on what natural law is all about and who counts as a natural lawyer and who doesnt.

    Much of the natural law project in American constitutional law is the giving of justifications. Even when it comes to fundamental liberties, the Constitution enjoins Congress from making any law abridging the freedom of speech, as distinguished from falsely announcing a fire in a crowded theater, for example. There is no right to do a wrong—a natural law Lincoln spent much blood, including his own, codifying into our second constitution. Not all speech is justified, and what is not may be properly enjoined (some of the Supreme Court’s confused jurisprudence to the contrary notwithstanding).

    It is not the act which is to be justified, but the law. constitution enjoines congress i.e. the government from enacting restrictive laws. As a matter of rough principle, then, the basic idea is that sans any appropriate reason, coercive laws are unjustified.

    Let me try to put this another way. Even you would not want to live in a place where there was no right to do wrong.

    I am sure that you as a Christian, consider the following things wrong:

    1. Worshipping other deities
    2. Idolatory
    3. Adultery
    4. Laziness
    5. Miserliness
    6. Fornication
    7. Disobedience to one’s parents

    1 & 2) Now, of course, I cannot compell another’s belief, but I can compell outward conformity not for that person’s sake (he or she is damned if they don’t repent anyway) but to reduce temptation to stray. That means no places of worship and no proselytising (no Hare Krishna people giving you pamphlets). This removes one kind of factor that pulls people away from what you consider to be the only justified religion.

    Even so, I don’t think you want to live in a theocracy like Saudi Arabia. I’m sure that you don’t interpret freedom of religion to be just the freedom to practice Christianity right?

    3 & 6) We can make adultery and pre-marital sex criminal offenses. Since you don’t believe in a right to privacy, intrusive investigations (when accusations are levelled) is not a problem.

    But, even here I don’t think you want to do this either. Sure, adultery can be grounds for divorce, but divorce is not always a punishment. nullity is not a sanction.

    4) We could institute forced labour. Or impose a fine on people for not working/searching for work hard enough or for spending all their time at home being a couch potato.

    but again, this is absurd. Mesures taken to mitigate moral hazard that might be present in welfare policies (e.g. show effort of looking for work) are not laws designed to punish lazy people. Rich people certainly have a right to be idle. Their riches may disapprear in a generation or 2, but that doesn’t mean that they lack the right to be lazy.

    5) The good samaritan gave a month’s salary to put up the poor man for a night at the hostel and for the doctor. By that measure our contributions to the worst off either through voluntary charity or through taxes are hardly high enough. We still spend an inordinate amount of our time and money on pir personal hedonistic pleasures instead of helping the worst off.

    Yet, I’m sure that you think that private property and free markets are good ideas. We design a system that not just takes advantage of our private vices to advance the public good, arguably, the modern market economy and encourages the consumerist culture which embiggens the extent/scope of our private greed to further engender even greater public good.

    7. Children disobey their parents all the time. Some even disrespectfully and flagrantly. Even in situations where they should obey their parents. Again I am doubtful that you think that such should be sufficient ground for criminal prosecution.

    In the above 7 instances, the is at least one set of actions that you deem both morally wrong and that you think ought to be permitted by the state. But if there is no right to do wrong, then there is no reason to protect people’s freedom to do certain things that you (in fact most people) regard as immoral.

    • Murali,

      I think you’re right about where my views on the natural law fall on the Kant/Aquinas spectrum. I do find teleological arguments to be compelling, but they work better in connection with/complemented by the Kantian framework, in my opinion.

      The problem seems to me that we cannot infer from what seems a common practice to what is in part of one’s nature. I wonder what your take is on what natural law is all about and who counts as a natural lawyer and who doesnt.

      Blaise made a similar argument in the comments on Tom’s post, saying that there are always exceptions even to things we regard as evil, e.g., the killing of others. But I say this proves there is a natural law: the fact that we are compelled to give justifications for killing human beings demonstrates that killing human beings is something we universally regard as having moral import. Even bin Laden had to come up with a moral/religious framework that justified his particular conception of jihad, however twisted it was. The particulars about what constitutes justification is another chapter in the discussion. But we begin with the realization that there are certain acts that are imbued with moral significance. That realization forms part of the basis of the natural law, and those who share it are, at least to some degree, natural lawyers.

      You are correct to recognize that the First Amendment requires limitation on speech to be justified. This is what I meant by saying constitutional law is about presumptions and justifications. Even though there is no right to do a wrong, as a matter of policy, we presume that speech may not be limited, and put the burden on the government to justify the abridgement. In this regard, the First Amendment is prophylactic legislation: It is a purposely overbroad protection that includes even wrongful conduct within its presumptive scope. We generally afford this type of prophylactic protection to individual rights because infringing those rights is too costly to the concept of liberty, unless the government demonstrates a sufficiently weighty justification.

      The response to some of your examples would depend, I think, on what particular religion I adhere to, and further still, how I interpret the tenets of my religion with respect to the intersection of government and religion. Let me think out loud for a moment here: It is obviously wrong for me to worship other deities. Does the Freedom of Religion recognize a right to do a wrong, then? Or is there a difference between the religious and the political? Speaking strictly as a Christian and not as a political philosopher, if I saw an unbeliever worshipping other deities, it would be my Christian obligation to minister to him. Even though I believe God is the ultimate authority of the earth and that he forbids his conduct of worshipping other gods, I doubt I would minister to him in this way. And I certainly would never use force, either my own or that of society, to try to turn him to God. And I think my answer is the same even if this person was a fellow Christian. Thus, I think the conclusion is that, even though this conduct is wrong, it is a wrong for which man’s institutions can offer no appropriate redress. A right-thinking society, then, would limit government from touching the sphere of worship, even though, technically speaking, I think it is incorrect to say that all forms of worship are “rightful.” I think there is an important theme here about the difference between spheres that are protected because they invove rights, and spheres that the government ought not interfere with despite the fact they do not involve rights.

      I think something similar goes for adultery and fornication. This is wrongful conduct, but we have to decide what is the ultimate or appropriate source of authority, man or God? I think the same analysis goes for drugs. I’m nervous about the idea of decriminalizing something so wicked, yet I cannot feign ignorance about the terrible effects of the Drug War. Why not just strip the penalties for these types of wrongful conduct? Society can declare its contempt for these evils but leave punishment to the Almighty. I’m told this idea of law without a sanction derives from the Romans, but I’ve not been able to find a good citation for that. I think there’s something to it, though.

      My answers to the rest of the categories will be along the same lines. There is no right to do a wrong, but there is not an appropriate governmental response to every kind of wrong. I think there is often a misconception that government may act so long as it does not infringe on a right. If this were true, you are correct that the seven examples you provide would pose a real problem for me. But not every wrong warrants the government’s response, and certainly does not warrant the same sort of response. Law is about authority, and human authority is limited when it comes to wrongful conduct that “neither picks my pocket nor breaks my leg.” That conduct is not rightful because it does not injure other humans, but it does affect how other humans can and should respond to it.

      • I think there is an important theme here about the difference between spheres that are protected because they invove rights, and spheres that the government ought not interfere with despite the fact they do not involve rights.

        I don’t think I agree with this. Unless maybe there’s some counterexample I am missing, it seems that to say that there is some sphere of activity that is protected just is to say that people have rights vis a vis that sphere of activity. i.e. when people talk about rights, all they are talking about are spheres of activity protected from coercive interference (either by government of their fellow citizens).

        To put this differently, let me throw this back at you: What is the difference? What is found in the idea of a Right that makes it the case it refers to more than a sphere of protected activity?

        I think there is often a misconception that government may act so long as it does not infringe on a right. If this were true, you are correct that the seven examples you provide would pose a real problem for me.

        You’re right about this and I was rather clumsily pursuing the argument, but there is a different sense of the way in which government action is problematic when it concerns irghts and whn it doesn’t.

        Let’s take a current example. Many renal patients in Singapore are having trouble paying for their dialysis. My mom wants to ask the ministry of health to provide government funded dialysis centres so that these lower income patients can have affordable dialysis. But the ministry is quite reluctant to increase its spending, so my mom feels that she has to look to private sources as a second best option.

        My disagreement with my mom is in the ordering of those options. In general, I don’t think the overnment should try to do too much and the first best option is to see if private charities can be funded sufficiently to meet the need. Now because I don’t think taxation is theft, when we have exahusted all private options, then I think government should fund dialysis because in the end, it is basic care.

        Basically the reason why I differ from my mom is because of efficiency concerns as well as basic size of government concerns. I think I can conceive of situations where such concerns are sufficiently weighty that it is better that a problem remain unsolved than there be government attempts to solve it. i.e. there are secondary effects from a particular government policy that outweigh the intended primary effects. The worry is more akin to a worry about the efficacy of a particular policy and its unintended consequences than a concern about liberty.

        But when it comes to the 7 exampls I gave you, it is not just the secondary effects that makes state action problematic, but that coercive interference into these spheres is independently problematic of whatever secondary effects particular policies may have. i.e. when you think that such spheres of activity should be protected, you don’t think that such spheres of activity should be protected until technical/sociological know how catches up and we have an available policy which dos not have the assorted unintended consequences. you think that such spheres of activity should be protected period because coercion in these areas in principle cannot be justified.

        • I suppose if we say that I have a right to torture puppies as against a government that has not promulgated any laws against it, then I’m with you. But that’s not the same thing as saying I have a right to torture puppies. It would be akin to bank robbers divvying up their loot, making claims to a certain share of the take. They can talk in terms of their “rights” as against one another, but they have no right to that money in an objective sense.

          Looking back at the seven examples through the modified lens you supplied – i.e., primary vs. derivative effects – I’d again look at each category in terms of presumptions and justifications. As for worshipping other deities, this comes down to a conscience issue, one of the most important liberties we have as human beings, even if I happen to believe other people are worshipping the wrong deities. Thus, there is a strong justification for unrestrained worship. There should be a presumption in favor of letting it occur without interference unless a justification can be offered (e.g., a person’s form of worship disturbs the peace or incites violence). Very similar analysis for Idolatry.

          When we get to Adultery, the presumption and justification analysis leads to the opposite conclusion. The ability to break one’s marital vows to engage in sexual relations with others is not important, and is indeed quite harmful. The conduct is generally unjustified and thus not deserving of a presumption against interference.

          Laziness and Miserliness fall somewhere in between. It is important that individuals be permitted to allocate their time and energy and money as they see fit, and yet excesses will occur. But these sins are matters of degree, requiring one to take a host of factors into account. Compare this to Adultery, for instance. God and the individual are in a place to judge whether the conduct is wrongful, and few others, if any. Thus, there should be a presumption against interference unless a justification can be offered.

          I’m running short on time, but that’s how I would assess in terms of primary consequences, leaving aside the derivative consequences.

  2. How could the Constitution be a statement of absolute principles when it provides for a Constitutional Convention? It has been constantly amended since it was first enacted. I’m afraid we really must go with your Kaput fork.

    Self-interest is the whole of Natural Law. Freedom is my ability to do as I please and if you can’t stop me, I shall continue to do so. It is true, men are not angels. They don’t want to be angels, that’s their problem. You’ve brought forward this line about Arbitrariness and Absurdity more than once, without any substantive demonstration or proof for Natural Law in operation without the framework of Synthetic Law arising from constitutions and legislation. If there’s any arbitrariness and absurdity in the world at large, it only appears in the absence of government and law enforcement.

    Moral and Logical Reasoning are contradictory modes of thought. Morals are what I won’t do under any circumstances: laws or no. You might not observe the same scruples and tabus.

    Natural Law is a rush to conclusions. It’s bad thinking, all round. For all its fine talk about morals, Natural Law always seems to derive its mandate from heaven.

    • Blaise,

      The Constitution is not an inventory of principles. It presupposes those principles. The doctrine of separation of powers is nowhere stated in the document. It is implicit. We can intuit these principles because we share a common nature with all humans, including the founders, thus ensuring a certain degree of continuity in our institutions. That is what makes it a natural law document.

      If there’s any arbitrariness and absurdity in the world at large, it only appears in the absence of government and law enforcement.

      Surely you don’t mean this as boldly stated as it is.

      If there is no natural law and we depend entirely on synthetic or positive law, where is the synthetic or positive law that governs this discussion? I submit there is none, and that you are instead appealing to natural law principles to advance your cause against the natural law.

      • The Preamble sets forth everything needful for any philosophical discussion of Constitution. It establishes Justice for the people of the United States of America that they may form a more perfect union. So much for one scrap of natural law in the US Constitution.

        You are completely wrong on the separation of powers. Powers and limits of the branches are established throughout the constitution. There’s absolutely nothing implicit, it’s explicit.

        I do not mince words. Since the first city-states, man has subjected himself to the rule of synthetic law. Even absolute monarchs would have their laws inscribed throughout the kingdom. There is no natural law nor am I using its principles. If there were any natural law in the world, it would have been instinctive behaviour and not the results of the hard-won struggle for democracy and the rights of man. Injustice and prejudice and every sort of societal evil has justified itself with the Fallacy of Tradition.

        • Since the first city-states, man has subjected himself to the rule of synthetic law.

          Coincidence? Or does this reflect something common to all men throughout history?

          And I still want to know what synthetic or positive law governs this discussion. I again submit that even to resist my theory you are forced to accede to it.

          • Heh. Go outside the city-state and see how Natural Law works out in practice. Around here, there’s much amusement when “Somalia” is uttered, but in this case, you left yourself open to it. Natural Law is not instinctive. It’s imposed on subject peoples by those with the power to enforce those laws. If there was any basis for law beyond sheer Macht, the shamans and religious types would interpret events, giving us the Tian Xia, the Will of Heaven.

            You haven’t given me one working example of Natural Law, that is to say, a law everyone obeys without some statute to enforce it. We aren’t instinctive creatures. We don’t migrate to some ancestral breeding ground and build nests. I see no distinction between the Natural Law from the Tian Xia, the mandate of heaven. Natural Law is always bolted into a sky hook. There’s no basis for it, beyond Appeals to Tradition. It’s no accident so many Constitutional Conservatives believe this is a Christian Nation. Nor is it an accident so many nations now moulting out of Strong Man States now want to revert to Islamic Law. They have no tradition of John Stuart Mill liberalism:

            The Benthamic standard of “the greatest happiness” was that which I had always been taught to apply; I was even familiar with an abstract discussion of it, forming an episode in an unpublished dialogue on Government, written by my father on the Platonic model. Yet in the first pages of Bentham it burst upon me with all the force of novelty. What thus impressed me was the chapter in which Bentham passed judgment on the common modes of reasoning in morals and legislation, deduced from phrases like “the law of nature,” “right reason,” “the moral sense,” “natural rectitude,” and the like, and characterized them as dogmatism in disguise, imposing its sentiments upon others under cover of sounding expressions which convey no reason for the sentiment, but set up the sentiment as its own reason. It had not struck me before, that Bentham’s principle put an end to all this. The feeling rushed upon me, that all previous moralists were superseded, and that here indeed was the commencement of a new era in thought.

            J.S. Mill, Autobiography

          • Even Hitler and bin Laden gave justifications for their actions. All men recognize the natural law, though often apply it very poorly.

            I’ve repeatedly cited as an example of the natural law in action your continued engagement in this discussion despite the lack of any synthetic or positive laws governing it. Either there are principles that govern our conduct irrespective of whether they are posited, or there aren’t. What posited principles do you contend govern our conduct in this exchange? If you cannot cite to them, what conclusion can I draw but that you are appealing to principles that are unstated yet that govern us both alike, and thus that you are doing natural law by decrying it?

            Blaise, I don’t think we’re talking about the same things.

          • Burlamaqui [1747], well-known to the Founders.

            “Moral instinct I call that natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad and blameable, independent of reflexion. Or if any one has a mind to distinguish this instinct by the name of moral sense, as Mr. Hutchinson has done, I shall then say, that it is a faculty of the mind, which instantly discerns, in certain cases, moral good and evil, by a kind of sensation and taste, independent of reason and reflexion.1

            Examples.II. Thus at the sight of a man in misery or pain, we feel immediately a sense of compassion, which prompts us to relieve him. The first emotion that strikes us, after receiving a benefit, is to acknowledge the favour, and to thank our benefactor. The first disposition of one man towards another, abstracting from any particular reason he may have of hatred or fear, is a sense of benevolence, as towards his fellow-creature, with whom he finds himself connected by a conformity of nature and wants. We likewise observe, that without any great thought or reasoning, a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature. On the contrary, to keep one’s word, to be grateful for a benefit, to pay every body their due, to honour our parents, to comfort those who are in distress or misery, are all so many actions which we cannot but approve and esteem as just, good, honest, beneficent, and useful to mankind. Hence the mind is pleased to see or hear such acts of equity, sincerity, humanity, and beneficence; the heart is touched and moved; and reading them in history we are seized with admiration, and extol the happiness of the age, nation, or family, distinguished by such noble examples. As for criminal instances, we cannot see or hear them mentioned, without contempt or indignation.”

            Man knows what is good, and what is not-good when he sees it—or he derives these things via his reason. “Natural law” is rooted in man’s nature [of which reason is a part], not the Bible, not in arbitrary positive law.


          • You’re fan dancing. Natural Law in the West is a product of Aquinas. Natural Law is the last gasp of dogma, the shrill, feeble, irate voice of absolutist thinking in an evolving world.

            Hitler and Lenin’s laws were obeyed by their subject peoples. It is entirely natural to believe Jews and Gypsies and homosexuals are not to be treated equally. Man does not know good when he sees it, he is told what is good and not-good from infancy. Natural Law never observed the rights of man. A good long stint out beyond the gates of the city would do your worldview a world of good. There are NO principles which govern our conduct beyond what’s punished and rewarded and the veneer of civilisation is thinner than you might suppose.

            A ragged urchin, aimless and alone,
            Loitered about that vacancy; a bird
            Flew up to safety from his well-aimed stone:
            That girls are raped, that two boys knife a third,
            Were axioms to him, who’d never heard
            Of any world where promises were kept,
            Or one could weep because another wept.

            Unless you wish to move off the Ground Zero of Aquinas, I’m going to conclude Natural Law a dangerous conceit.

          • “Hume, and other skeptical innovators, are vain men, and will gratify themselves at any expense. Truth will not afford sufficient food to their vanity; so they have betaken themselves to errour. Truth, Sir, is a cow that will yield such people no more milk, and so they are gone to milk the bull.”

          • Unless you wish to move off the Ground Zero of Aquinas, I’m going to conclude Natural Law a dangerous conceit.

            You haven’t engaged the issues, so what other conclusion could you take but the one you brought with you?

          • That’s just more fan dancing. If Aquinas isn’t a worthy exponent of Natural Law, who would you prefer to use as a reference point?

          • As for you, Tom, Hume said the wise suit their arguments to the evidence.

          • Keep on milking that bull, Blaise. [If you’re going to play it this way, Dr Johnson has the better of it, you and other such “skeptical innovators.”]

            FTR, because natural law has a teleological/metaphysical dimension, it is impossible to “prove” it to the materialist. But based on wisdom and experience, it has proven itself to be the most likely and successful [and may I say aesthetically appealing*] proposition to proceed upon, a posteriori.

            “Four score and seven years ago** our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”
            *Aesthetics is summarily dismissed by the skeptical innovator, but the aesthetic sense is part of man’s nature as well.

            **1776, the Declaration of Independence, a natural law document, not 1787, the Constitution, at least partially a positive law document.

          • Tim Kowal’s worth the argument. We’re trying to figure out what each other means by Natural Law. I’m saying Natural Law is defined by Aquinas in the West. He honestly believes we’re all doomed to absurdity without some underpinning absolutes.

            Now I’m a Liberal. I believe in the rights of man. Furthermore, I strongly suspect Kowal believes in them, too. His bit about freedom of speech emerging from natural law is a noble sentiment but it’s just not true. Other nations don’t have a First Amendment: Germany doesn’t. The UK doesn’t.

            This Natural Law business reminds me of that bit from the Book of Judges: In those days there was no king in Israel: every man did that which was right in his own eyes. Want meaningful justice? Enact meaningful laws. Natural Law is no basis for meaningful laws: once you’ve cancelled out terms, you’re left with nothing, philosophically. Teleology be damned: laws can be made and laws can be repealed.

          • As for you, Tom, Hume said the wise suit their arguments to the evidence.

            If Tom has shown anything in his quotations of and about Hume, it’s that he doesn’t understand what he’s talking about. Hume presented challenges to the rationalist that the rationalist has not yet answered. Except by saying that Hume was a ‘vain man’.

            Problem is, that response isn’t a refutation of Hume. It’s entirely consistent with Hume.

          • Hume presented challenges to the rationalist that the rationalist has not yet answered

            Aren’t we forgetting Kant? I’m sure Kant answered at least some of them.

          • “Meaningful” justice = “meaningful” laws = meaningless

            But if you’re done with the “fan dancing” crap, we can pretend you’re not milking the bull. ;-P

            Now, then, I’ve conceded that the existence of a natural law is provisional. Since it does depend on teleology, there’s no way to convince the skeptic of its essential truth, only that—a posteriori—the proposition is an excellent one.

            As regards Western law, our Christian or post-Christian axioms are few, and may be able to be reduced to a single one, that all men are created equal. I suppose we might dispense with that and go back to the Greeks, to Republic.

            Socrates: Justice is good.

            —No no, saith Thrasymachus. What hokum. “Justice” is BS. “Justice” in the interest of the stronger, might makes right. Shut up and sit down, you silly old man.

            Starting at the beginning is always good. But as a fine mind once noted, let us beware of the danger of pursuing a Socratic goal with the means, and the temper, of Thrasymachus.

          • Murali, that’s a question worth addressing, since from my pov (at least) Kant’s entire project was an answer to Hume. So it would be worthwhile to see if he achieved his goal.

            Can you name any Kantian answers to Hume that have held up over time? (Personally, I can’t,. even tho I’m very attracted to Kant’s arguments and methods.)

          • there’s no way to convince the skeptic of its essential truth, only that—a posteriori—the proposition is an excellent one.

            I agree with that Tom. It is an essential truth as a working hypothesis. But where we differ is whether the belief, at it’s ultimate grounding, is categorical or instrumental; a priori or a posteriori; immutable or ever-changing…

            This goes back to metaphysics pretty quickly, of course. And you and I don’t agree on that. But we can agree that acting as if the proposition was necessary has merits. Instrumentally. But the inclination to act as if it was necessary can be accounted for by alternative accounts of the origins and grounding of rights.

            Also, it’s not entirely clear that Thrasymachus lost that argument.

          • I would extend that bit about Kowal being worth the effort by noting you’re not worth the effort, Tom. You don’t really understand what Hume was saying. Kowal knows Aquinas lies at the root of this problem: he wants to eat his rationalist cake, which he deserves, but he cannot have it, too, walking past how Aquinas grounded his assertions about Natural Law, that is to say, upon the Divine.

            Dogmatism in disguise is how JSMill put it. I don’t think you’ll have any problem fessing up to your religious dogmatism, Tom. But I think Kowal does have some problems with it, though I might be misreading him, here. I brought up Aquinas and it’s like kryptonite to anyone who wants to still act as if he’s a rational man.

          • Can you name any Kantian answers to Hume that have held up over time? (Personally, I can’t,. even tho I’m very attracted to Kant’s arguments and methods.)

            – The noumenal/phenomenal thingie even if the exact contours may not be right (I mean he made a mistake when he said things that implied that 18th century physics was apriori true. But the rough idea is more or less right)

            1. Ideas like causality or the existence of other minds are things we bring to the table rather than things we glean from the world around us

            2. They are things we have to bring to the table in order make sense of the world

            3. However, since it is something that we bring to the table, we can never be sure (one way or another) that any description of the world tht makes sense to us bears any resemblance to the world as it actually is.

            On morality and practical reason, we have

            – The kind of autonomy that matters for moral responsibility is not about us being in some a-causal relation vis a vis the natural world, but about us being able to respond to practical reasons.

            – The idea that when we make moral claims we presuppose that such claims are either in themselves universally valid or follow from universally valid claims. (almost evey contemporary moral philosopher accepts some version of this)

            Other things kant got right which Hume wasn’t aiming at
            -The Nebular hypothesis of solar system formation. Kant postulated it first.

          • Ugly, Blaise, and I got it the first time. If you cannot tell fencing from a swordfight then I have you all wrong. I have thought you worth the time, but perhaps I was wrong.

            I brought up Hume only per Dr Johnson, that if you’re going to call the other fellow’s argument “fan dancing,” we shall call yours milking the bull. If that’s how you want to play it.

            As to the substance, several posts ago the rejoinder was that man seeks to justify himself [even Hitler and bin Laden did]. This is a first argument and evidence toward a “natural law” that man seeks a harmony with, to be “in the right,” not most powerful, but right. [JS Mill and Bentham be hanged.]

          • Aye, Stillwater. I too suspect Thrasymachus won in that first round. But then he had the decency to shut up and let Socrates throw every bit of justice-spaghetti at the wall hoping something would stick. [By the end, he’s really cheating with


            And thank you for listening long enough for my concession that the existence of a “natural law” can only be a proposition. Mr. Lincoln’s use of that locution—“the proposition that all men are created equal” shows that these guys were well aware of the formal philosophical nuances.

            Which is nice.

        • If there were any natural law in the world, it would have been instinctive behaviour

          Exactly. Is there an instinct for justice? Sure. Just as there’s an instinct for might makes right. I just don’t see how the natural law advocate can make an a priori distinction between the two without begging all the relevant questions in play.

          Like a posteriority.

          • No, I mean – or intend to mean! – something a little closer to what the natural law advocate thinks, ie., that natural law can be read from an a priori analysis of human behaviors/inclinations. If actual human nature reveals anything, it’s that animal instinct drives us as much – if not more – than our reason. Hence the desire to impose on animal instinct a set of conditions which constrain it.

            But if that’s right, then why think that a priori analysis will reveal anything of interest on the topic? Doesn’t it suggest that a priority is a tool looking for an independent justification? Or that it’s a useful tool only insofar as we deny the evidence of human nature in order to justify a preferred conclusion?

  3. “Everyone argues by appealing to logic, therefore all people are logical.”

    Not quite.

  4. The discussion has already advanced on several fronts, but, just to return for a moment to what Mr. K saw fit to quote, they were 1) written in response to a particular paragraph from his Democracy Symposium piece, and a direct claim that putting loosely stated economic exigencies ahead of the principles in the DoI would necessarily lead to “despotism, 2) in the context of a general argument from Mr. Van Dyke that somewhat similarly proceeded from a strict either/or statement of his own, in which one either followed a rigorous interpretation of the God-given rights of man or were on a highway to Hell on Earth and not just Earth.

    My problem with discussion such as the above is that much of it seems like an attempt to do philosophy without attending to philosophical necessity, especially the necessity of strict definition of terms.

    Mr. Kowal says:

    The natural law is about deriving, through moral and logical reasoning, those truths about man and the world that must be accepted as true because they are antecedent to the ability to make cogent claims to knowledge about the world.

    What’s interesting to me about the statement, which I think operates as a background to Kowal’s responses to BlaiseP, is that they are as much claims about the bases and purposes of discussion – “the ability to make cogent claims” – as they are about nature in the sense of nature as the subject of natural science (“mere being”).

    What TK seems to be trying to say to BlaiseP is the same as the necessary response of the philosopher to the sophist, skeptic, or nihilist: If you really believed what you were saying, you wouldn’t be saying it. Or, put differently, from your own point of view what you’re saying cannot actually be taken as meaningful. For our purposes, therefore, you are saying nothing, and we may ignore all of your statements, including your complaints if any about ignoring your statements. Kierkegaard put the problem in terms of the “leap of faith,” but we do not need to leap. We merely need to look around ourselves, not like Descartes – that would be a leap – but as we are right “now,” in the now of writing or reading, or of thinking or speaking, the dialogical “now” that is temporal for each and every participant, but not necessarily simultaneous.

    In order to be taken seriously, first of all by yourself, you have to assume certain things that may be taken as at least the universal and natural presumptions of dialogue, beginning with the presumption that engaging in dialogue is or might be a worthwhile activity. To make any cogent claim about the phrase “to make cogent claims,” we have to believe in cogency – in other words validity and coherence, in other words truth or meaning – and we have to share a belief in a speaker or claimant and a listener or listeners (or judge or judges). That we presume certain things about both speaker and listener is clear from the idea of the “claim”: To make a claim further implies a belief in purposes, a deficiency that can be repaired by action of some kind (even if merely a mental operation), and therefore in the good.

    We do not necessarily need to assume that the dialogue will be comprehensible to all people, but we may choose to constitute the human at least for the purposes of such dialogue in relation to these terms. So, without making a statement about all particular human beings – whether an infant, an individual who has entered an irreversible coma, or an individual grossly brutalized by a life of poverty and violence, is still “human” or “alive,” we can propose that the essence of human life for all meaningful intents and purposes is being capable of meaning, intents, and purposes, of engaging in dialogue, seeking agreement, recognizing greater or lesser cogency, and seeking the good.

    So in that limited sense, the natural law argument is self-validating: One cannot have a discussion of natural law without presuming the possibility of a discussion of natural law, and such discussion will always entail mutual recognition – at least in speech – of certain natural and universal, one might even say inalienable, characteristics of all such discussion. We presume, for instance, that we are alive, that we are at liberty to participate or not and to decide how to participate, and that we do so in pursuit of the good, at least for ourselves, however we understand it, in other words in pursuit of happiness. These truths are self-evident from the structure and implicit presumptions of all such discussion, including this discussion.

      • Yo, I speak well of CK behind his back.

        That he felt the need to lay down the Aristotelian-Thomistic premise of “intelligibility,” that the universe makes sense and so pondering it and discussing it is not a complete waste of frigging time, that we might think or say something intelligible about it…well, we need to start at an earlier beginning than I thought in these things.

        That anything in this crazy world and universe we live in makes any sense at all is a leap of faith, babe. All I know is that I love you and we’ve got to stop Dr. Destructo before he completes his mutanium reactor and destroys the past so we’re never born!

        The modern age, starting as it does with this moment now and attempting to work backwards might need to hear this. Well done, CK. [Not that last bit about the mutanium, but yours.]

        This talk of Hume and Kant and Mill is just so premature. If anyone stands astride the philosophical project yelling STOP!, it’s Thrasymachus. Might makes right, and prove me wrong.

        As for what CK says about what I said, I wish I understood what he says about it.

        • If might makes right, then Thrasymachus, long dead, if ever he actually existed, is utterly in the wrong, unless it’s his idea of might makes right that has survived, in which case the idea, even the wrong idea of the powerlessness of ideas, proves more powerful all over again. A bit like the old Nietzsche joke: Nietzsche is dead – God.

          I’ll try again one of these days on the other stuff. According to Kojeve the future comes first anyway.

          • Plato’s Thrasymachus speaks every time we trot out this discussion, CK. Spontaneously, not as though any of ’em have read Republic. The merest sophist and pre-philosopher can see it as plain as day—Might Makes Right remains an unrefuted argument.

            [I say “Plato’s” Thrasymachus because it’s a character in his dialogues, as is Plato’s Socrates. The real Thrasymachus was a respected sophist, a teacher of rhetoric and argument; another Socrates can be found in Xenophon. Pedantry, I know, and I pass it along to an honest brother as a heads-up, is all.]

  5. Here are a couple of interesting passages on the importance of telos to Thomistic natural law from Ed Feser’s book on Aquinas:

    efficient causation has indeed become something modern philosophers have found it very difficult to make sense of in light of the puzzles raised by Hume – puzzles that seem to arise only if we deny that causes are inherently “directed towards” their effects as towards a final cause. In particular, it has been notoriously difficult for modern philosophy to account for the necessary connection that common sense supposes to hold between causes and effects. This difficulty has in turn led to the “problem of induction,” on which, since there is no necessary connection between causes and effects, there seems also to be no rational ground for inferences to the unobserved from the observed or to the future based on what has happened in the past. Yet if science is in the business of discovering objective causal relationships between things, of describing the world in general (the unobserved portions as well as the observed ones), and of making predictions on the basis of that description, then it seems that science is impossible, or at least rationally unfounded. The “mechanistic” or non-teleological picture of the natural world that purportedly made modern natural science possible in fact seems to make it unintelligible.

    . . . .

    Darwinian evolutionary theory was, officially at least, supposed at long last to exorcise final causality from that part of the natural world where its existence seems most obvious. And yet, as the Thomist philosopher Etienne Gilson documented at length in his From Aristotle to Darwin and Back Again, teleological concepts have permeated Darwinian theory from the beginning. One problem here is that even after Darwin, it is as impossible as it ever was to give an adequate description of an animal’s organs, behavioral patterns, and the like except in terms of what they are for, and thus in teleological language. Contemporary philosophers of biology have tried to show how such language can be “cashed out” or analyzed in non-teleological terms, but no such proposal has been without serious problems. For example, on the currently most popular theory, to say that the kidneys in such-and-such an organism serve the function of purifying the blood is just shorthand for saying something like this: those ancestors of this organism who first developed kidneys (as a result of a random genetic mutation) tended to survive in greater numbers than those without kidneys, because their blood happened thereby to get purified; and this caused the gene for kidneys to get passed on to the organism in question and others like it. But as John Searle has pointed out, strictly speaking, such Darwinian accounts of the origins of biological traits don’t provide an “analysis” or “explanation” of the teleological functions of those traits at all, but rather simply eliminate the notion of teleology altogether, treating it as at best a kind of useful fiction. To use Aristotelian terminology, they are attempts to discard final causality and explain biological phenomena entirely in terms of efficient causality, not attempts to reduce final causality to efficient causality (a project which seems incoherent in any event). Moreover, even if we took such accounts seriously as analyses of teleological function, they would face serious difficulties. As Jerry Fodor has noted, they seem to have the absurd implications that we cannot know the function of a thing unless we know how it evolved, and that nothing could in principle even have a biological function unless it evolved. But in fact we knew the functions of all sorts of organs and behaviors long before the idea of natural selection ever occurred to anyone, and it is at least theoretically possible that such organs and behaviors could have functions even if they did not evolve. A deeper problem, though, is that what may be the greatest discovery of modern biology – DNA and the genetic code it embodies (which have been incorporated into the Darwinian story about the evolution of life) – seems teleological through and through. Descriptions of this famous molecule make constant reference to the “information,” “data,” “instructions,” “blueprint,” “software,” “programming,” and so on contained within it; and for good reason, since there is simply no way accurately to convey what DNA does without the use of such concepts. But every single one of them entails that DNA is “directed towards” something beyond itself as a kind of “end” or “goal” – the development of this organ in the growing organism, the manifestation of such and such a behavioral tendency, or what have you – and thus manifests precisely the sort of final causality that modern biology is claimed to have swept away.

    . . . .

    human actions seem just obviously teleological in nature, directed towards certain ends for the sake of which they are carried out; at least, and as philosophers like G. F. Schueler and Scott Sehon have argued at length, no attempt to analyze human action in non-teleological terms has succeeded.

    • [T]eleological concepts have permeated Darwinian theory from the beginning…


    • It’s certainly true that our vocabulary restricts us to talking about things in terms of agents, but DNA is not an agent. It doesn’t have goals. The “information” it has, when we’re talking about it outside of information-theoretic terms, is strictly metaphorical, because it doesn’t have a semantics, there isn’t an agent that interprets it, and so on. It’s undeniably true that we talk about biology in teleological terms to this day, as we do with many things, but I’m afraid that says more about us than about biology.

      Now, I don’t think this precludes a Thomist interpretation of biological facts: for example, that hands are adaptations for grasping, that is, that the ability to grasp increases fitness, and therefore that hands are “for” grasping in a substantial way (rather than an accidental one) is an argument that can be made, but the surface simplicity masks what would have to be a rather complex argument. This is particularly true given that Intelligent Design theories aren’t particularly compatible with Thomism (a point that Feser has made repeatedly, I believe).

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