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The Late Great Natural Law Debate: Synopses and Reflections, Pt. 2

April 5th, 2013 | 14 min read

By Brad Littlejohn

Last week, I sought to offer an extended summary, with a few reflections of my own, on the barrage of posts and counter-posts prompted by David Bentley Hart’s “Is, Ought, and Nature’s Laws.”  Although Hart’s essay had addressed the problem of natural law’s persuasiveness generally, the particular context for it was of course the debates over gay marriage, and when Peter Leithart reflected at First Things on the gay marriage problem specifically, it touched off what could be considered a second round of the natural law debate.  I have reserved consideration of that second round to this installment, which Matt Anderson has graciously invited me to post here.

In Part I, I worked to distinguish the pragmatic and the principled arguments against natural law, which had been mixed together in some of the discussions.  The first, while not disputing the formal validity of natural law arguments, worried that they simply would not gain any traction in our current culture, and so should be set aside.  The second deduced from the present ineffectiveness of natural law that it was not formally valid in any time and place, and we must resort to specifically theological arguments.  However, as I arrived at the conclusion of Part I, I pointed out that the pragmatic and the principled are not quite so easy to separate.  For if, in point of fact, natural law is valid, but our culture cannot see it as such, that means our culture is willfully blind or irrational.  And if we are to say that, are we not left with a condition of incommensurable beliefs and resulting culture war, part of the problem that the turn to natural law among contemporary evangelicals was meant to address?  Instead of telling our opponents, “You couldn’t possibly understand because you don’t know God,” we’re reduced to telling them, “You couldn’t possibly understand because you’re irrational,” which is, if anything, even more insulting.  In either case, we’re left with no real means of rationally persuading the opposition, and with quite considerable challenges to living together peacefully in a pluralist society.  I promised at the end of that post to work to “explore and perhaps even address these questions” in this second installment.  Whether I get beyond “exploring” at all remains doubtful, but let’s begin by briefly considering Leithart’s First Things post that kicked all this off.

Leithart’s starting point was not the failure of natural law arguments against gay marriage, but of biblical arguments, as observed in a recent debate on the subject between Doug Wilson and Andrew Sullivan.  Wilson’s arguments, said Leithart, were predominantly pragmatic, attempting to demonstrate the negative consequences of gay marriage, or else Biblical.  Sullivan considered the former unconvincing, the latter frankly irrelevant.  To be sure, Wilson sought to emphasize not the negative prohibitions of Scripture on the subject of homosexuality, but its positive vision of the genders and marriage, and the rich Biblical typology surrounding these themes.  Nonetheless, “in order for that to carry any weight,” observed Leithart, “people have to be convinced that social institutions should participate in and reflect some sort of cosmic order. Who believes that these days? Wilson tells a cute story, many will say, but what does it have to do with public policy?”

To anyone familiar with the recent discussions, it might appear that Leithart is headed at this point toward an endorsement of more robust, natural-law arguments on the subject, but instead, he throws up his hands in resignation: “Perhaps Christians are called to do no more than speak the truth without worrying about persuasiveness. Perhaps we have entered a phase in which God has closed ears, so that whatever we say sounds like so much gibberish.”  Our only hope, he concludes, lies in “a renaissance of Christian imagination.  Because the only arguments we have are theological ones, and only people whose imaginations are formed by Scripture will find them cogent.”

Writing at The Calvinist International, Alastair Roberts expressed incredulity over this “loss of nerve”:

“From such a statement, one might be led to presume that we were defending something akin to the Chalcedonian Definition, rather than the virtually universal consensus that has existed across human history and culture: namely, that marriage is a public institution declaring the interdependence of men and women; formed around the natural realities of sexual dimorphism, of the procreative union between a man and woman, and of the bonds of blood; and providing a secure setting in which children’s bonds with the parents that bore them are honoured and upheld and their nurturance assured.”

While professing great respect for Leithart’s work, Roberts saw his statements as a powerful indication of “just how much ground has been needlessly surrendered in this particular debate.”  In confining the Christian testimony on this issue to specifically theological arguments, Christian theologians, charges Roberts, are guilty of a retreat to commitment that leaves unchallenged their opponents’ “retreat from reality.”  Instead of “confidently advancing into the public conversation,” he says, most of our leading thinkers “timidly, without either strategy or momentum . . . blunder into it, wildly beating the air, before hurrying back to the security of a tribal reservation, where most of its forces are concentrated.”

In his post, Roberts contends that the retreat to specifically theological modes of argument is both unnecessary and, in fact, an unwitting collusion with our opponents.  On the former score, he seeks to distinguish between the cogency of our arguments and their reception, or, we might say, between their potential and actual effectiveness: “We can present good, strong, and accessible arguments from the creational order. We need to have a sense of the strength of these arguments that is not contingent upon the reception that they receive.”  In the previous installment, we saw Hart and some of his allies failing to draw this distinction, and deducing from the present poor reception of natural law conclusions about its intrinsic lack of validity.  Against this, Roberts pointed out that modern western society is, in history and global terms, a highly unusual aberration, and that the norm of heterosexual marriage would seem indeed almost self-evident to most audiences, and the arguments for it thoroughly persuasive.  Our problem, then, lies not in a poverty of arguments, but rather in the facts “that few people are really listening, that the debate is politically rigged, that few people have the nerve or willingness to hold unpopular positions that may seriously harm their employment and social prospects, and that the development of the culture over the last few decades has inured people to the creational realities that marriage cultures have always had at their heart.”

The most serious of these problems is the first, and Roberts argues (from personal experience) that, if we can succeed in holding the attention of a thoughtful interlocutor, we have a good chance at persuasion.  The last of these problems, on the other hand, stems from deeper philosophical roots, ones that Christians must be able to contest if their arguments are to prove persuasive.  At the root of the contemporary confusion, says Roberts, lies a social constructivism that “allows for a radical reinvention and reorientation of society, its institutions, and ourselves according to whatever we will. There is no ‘natural’ or divinely imposed order admitted.”  Such constructivism stems from the Enlightenment (or early-modern, or late-medieval, depending on your narrative) rejection of an intrinsic natural teleology, a given order within creation that grounds and limits all subsequent determinations of human will.  The turn to biblicism, answering these assertions of human will only with divine commands, ends up being complicit in the constructivist project, he argues:

“The difficulty for those who rely upon appeals to divinely revealed will imposed upon the creation is that they have largely granted the first movement of the radical social constructivists. Unprepared to answer such constructivism by referring to and asserting a divinely established order intrinsic to the creation that resists it, they can only press a sort of divine constructivism against it. Once that is dismissed, they are left to grasp at weak straws.”

Evangelicals, as much as their opponents, have accordingly grown inattentive to the natural order (as discerned intuitively by reason, displayed in the created order, and reflected in human cultures and institutions through history), and hence no longer know how to argue from it.  In a ringing peroration, Roberts declares,

“The divine will does not just submissively knock on the doors of our reality and prove powerless when we turn it away. As long as we exist within the creation, we are besieged by God. The Christian thinker is called to press this divine advantage against all who would lamely flee from its presence. The Christian thinker should be a student of the consequences of particular actions in God’s creation and the ways in which the creation prosecutes the will of God against those who flout it. This is the sort of reasoning that the same-sex marriage debate requires from us. It is also the means by which we can draw the nerve and confidence to prevail.”

Leithart’s reply a few days later on First Things largely dodged the more principled question of the validity of natural-law reasoning, simply noting in passing that “‘creational order’ is a theological notion’,” and returned to the more pragmatic problem.  “So what?” was the substance of the rejoinder: it may well be that the weight of history is on our side, but history has moved on, and these arguments, common sense or not, find themselves in a persecuted minority.

“By all means, defend marriage, invoke the weight of tradition, make all the arguments you can invent with all the passion, compassion, and cunning you can muster. But we shouldn’t fool ourselves into thinking any of this readily touches the experience or intellectual habits of a majority. . . . Surrounded by the white noise of late modern culture, many regard marriage as Roberts and I understand it nearly as exotic as a confession of one person, two natures.”

Although Leithart does not say so explicitly, we might also object that Roberts’ appeal to historical consensus proves both too much and too little.  On the one hand, human cultures across the world and throughout history, including many Christian ones, have also united in approving conduct that we now consider reprehensible, such as (to be terribly clichéd) slavery and oppression of women.  Of course, thoughtful defenders of natural law are well aware of this argument, and have ways of answering it, but it remains a forceful objection, that weakens the cogency of natural law in the minds of many.  On the other hand, it does little good to object that new modern attitudes are in the minority historically speaking, if one is convinced that they represent genuine progress, and will carry the day in the future.  How do we know that, looking back a couple thousand years from now, heteronormativity may not look like a quaint minority position in the grand scheme of history?

In any case, though, having made his brief observation, Leithart reiterates his original diagnosis: in the short-term, we must accept the calling to be Jeremiahs, speaking truth to deaf ears; in the long-term, we must cultivate aesthetic arguments to capture the attention of irrational late moderns: “Beauty is the best persuasion, so Christians should above all aspire to form marriages and families that are living parables of the gospel.”

Thus we are back at the impasse identified at the end of the first installment: regardless of whether the problem is that natural law can’t work, that people can’t understand it, or that people just aren’t listening, isn’t the upshot the same—namely, that we are faced with a rapidly ascendant opposition that our best rational arguments cannot persuade, and we need to figure out either how to live with the situation or to find alternative means of persuasion?

Roberts, however, was not ready to lay aside the principled question so quickly, or to let Leithart get away with the quip “I note that ‘creational order’ is a theological notion.”  In a second response to Leithart, he argued,

“‘Creational order’ is indeed a theological notion, but what it names is a shared reality: it is this reality that lies at the heart of the case that I present. . . . As the ‘creational order’ of which I speak is an order that is present and operative within us as persons and societies, and not solely outside of us, it will naturally tend to produce consistent patterns of behaviour.”

Seeking to elucidate further his concept of natural law, he insisted that it was not so much a set of rational arguments, as an “instinctive apprehension of the natural order”; accordingly, it can never be entirely effaced, however hostile toward or inept in rational argument our culture becomes.  “Even when we can’t give good arguments for it, or may be disoriented by bad arguments against it, some of our sense of balance in God’s creation will stubbornly remain.”  This should give us optimism “that current disorientation is [not] the same thing as a settled, total, and lasting reorientation of the public’s consciousness. . . . we should not lose hope of communicating to most people in our day, many of whom are not so much wilfully hardened as disoriented, confused, and fearful of speaking their minds.”

Moreover, while agreeing with Leithart that the foreseeable future is likely to be one in which the world, broadly speaking, will not hear us on the subject of gay marriage or indeed many matters of morality at all, Roberts denied that this means that it doesn’t matter what we think of natural law.  If, in the dreariness of present circumstances, we surrender the claim to an intrinsic, naturally apprehensible moral order, then what resources will we have when circumstances become less dreary, when the bankruptcy of the present social constructivism leaves people looking for answers?  On Leithart’s account, we would seem to have only a Biblical narrative to supply, an ultimatum to society: repent and be saved, or perish in your disorder.  And to be sure, as Christians, we do have a responsibility to confront the world with a call to total repentance.  However, we have also God’s assurances that the created order, though distorted by sin, has not been destroyed, and we have a duty to imitate our God in seeking to preserve it.  This means that we have both the God-given responsibility to summon even our unconverted neighbors to a relatively well-ordered way of life, and a God-given assurance that this task is not futile.

Peter Escalante, writing a few days later on The Calvinist International, sought to bring together the threads of this latter exchange between Roberts and Leithart and also the earlier exchange involving Hart, Feser, etc., and in so doing, to clarify why Steven Wedgeworth had called the writers at First Things “thoroughgoing modernists.”  He reiterated Mr. Roberts’s points about the relative uniqueness and contingency of the contemporary Western incredulity toward conventional sexual morality.  Indeed, he supplied two additional hypotheses as to why we find ourselves in the present position, which exposed the shallow hypocrisy of the current Religious Right: libertarianism and capitalism.  Of the first, he remarks, “It is worth considering the possibility that we really aren’t dealing with a loss of corporate reason or even the natural law per se, but rather with a large-scale Liberal/libertarian ‘none of my business’ philosophy of legislation. Most Americans are not themselves in favor of homosexual activities. They are just opposed to the government outlawing them.”  Of the second, he declares,

“And too, the sulking over the supposed moral deafness of the masses conveniently ignores the fact that these masses are in fact incorporated into a servile system which is the primary agent of the dissolution of marriage and family; way back in the 19th century, when the system was much less developed than it is now, even Marx and Engels were able to say with justice that it was hypocritical for the bourgeoisie to charge communists with wanting to destroy the family when in fact the proletarianization of the citizenry had already done that job pretty thoroughly. Academic theologians chiding the masses for their moral deterioration are almost exactly like rich foodies snorting at poor people for not eating seasonal vegetables and artisan salumi.”

If there is anything to arguments such as these, it is worth noting that they go quite a ways toward answering the worries of Samuel Goldman and Alan Jacobs, on which we brooded at the end of the first installment of this survey.  Goldman and Jacobs had worried that, if we claim that natural law arguments should be persuasive to any rational and attentive person, we would find ourselves having to dismiss as irrational or inattentive anyone who remained unpersuaded.  And if we took this kind of moral and intellectual high ground, how were we to avoid an arrogant culture-war mentality which would simply widen the rift between us and our opponents and make persuasion all but impossible?  By describing this contemporary deafness as the result of concrete and contingent historical factors and ideological missteps, for which many of our interlocutors can hardly be blamed, Roberts and Escalante seek to reduce the rift to manageable terms.  In other words, we do not need to dismiss opponents as lazy or stupid; we simply need to diagnose the sources of their incomprehension and work, one by one, to remove these obstacles.

In any case, though, Escalante sought to answer the consistent worry of the First Things and American Conservative skeptics that “natural law arguments” can be “primary means of public deliberation” by denying that they were ever traditionally intended as such.  “Saying that most people nowadays aren’t persuaded by natural law arguments is true, but not at all to the point. Of course we can’t appeal to natural law as if it were a traffic code written clearly on everyone’s heart– or everyone’s speculative reason– and to which we need only point. That is not what natural law ever really meant.”  Indeed, he agrees that the public discussion of gay marriage “is very probably unsettleable in the terms on which officially sanctioned public discourse presently operates.  And we can understand the many good reasons for wanting to rethink or even quietly abandon the “culture war” as it presently being waged.”  To this extent, then, he agrees with Hart, Jacobs, Dreher, Leithart, etc. that it would behoove us to consider a graceful withdrawal from the battle that now rages over the gay marriage issue.  However, he insists that we understand this as a prudential tactical withdrawal, rather than an abandonment of any claim to the contested public space and the validity of natural law as the authority over that space.

In the latter part of his lengthy essay, then, he elaborates considerably upon the points made by Feser, Wedgeworth, and Roberts, critiquing the “retreat to commitment” which forfeits the Christian tradition’s claim to offer a philosophically intelligible account of human reason and human nature.  His argument here is dense and couched in terms of trademark Escalantean precision, so I will merely point you to it, rather than seeking to synopsize it further.  He concludes,

“What is at stake in this debate is not whether or not natural law arguments can or can’t act as trump cards of public rationality. It is, rather, whether we open our eyes to see the fact of our common nature and common mind, or close them and retreat into the Romantic inner world of conservative subjectivism.”

It will probably be clear by now that I find Roberts’ and Escalante’s account persuasive, on two important counts.  First, I think that they largely succeed in showing why the claims of natural law on subjects such as gay marriage are coherent, and why it really does matter that we insist on this.  Much more still needs to be said, of course, to answer the barrage of contemporary objections to the natural law tradition, objections derived from epistemology, psychology, sociology, biology, etc.  By the nature of the case, defenders of natural law cannot afford to ignore such objections, or to dismiss them as merely the products of depraved minds.  They will have to carefully evaluate and address them.  I, for one, remain confident that such objections can be addressed, but in any case, that is a conversation for another day.  More pressing is the second point: one can account for the failure of natural law in the current context without simply demonizing or dismissing opponents.  Yes, theirs is a failure of reason, but it is one with particular causes that we can identify, engage, and seek to correct; we are not condemned either to a perpetual shouting match or to a resigned disengagement.

Although not interacting with Roberts’s or Escalante’s posts, Greg Forster at The Gospel Coalition provided another helpful angle on the discussion, in terms that resonated with their analysis.  The failure of natural law arguments in the current debate does not consist, said Forster, merely in that they presuppose the givenness of a natural order, that “marriage is something specific, (not just ‘whatever we say it is’),” in a society dominated by constructivism.  More serious is the rhetorical problem: the terms in which the debate is conducted sound wholly alien to most people’s experience of sexuality.

“Natural law advocates almost always restrict their account of marriage to the aspects that can be recognized by the law and public policy. This leaves them describing the nature and purpose of marriage solely in terms of reproduction.  It’s true that reproduction is the main reason it is legitimate for the state to institutionalize marriage. But when Americans hear marriage described as an institution that exists for reproduction, that bears no resemblance to their self-understandings and daily experiences of marriage.”

The result is a language barrier, which Forster sees starkly pictured in the rightly acclaimed new book What is Marriage? by Robert George, Sherif Gergis, and Ryan Anderson.  In the book itself, and in public debates surrounding it, George, Gergis, and Anderson have been largely unintelligible to the public: “all of Gergis’s talk about ‘conjugal union,’ ‘coitus,’ ‘reproduction,’ and ‘the common good’ comes across as obscure, irrelevant, and alienating.”  Concludes Forster sadly, “Every time the leading advocates of marriage use this alien terminology, another young American goes over to the other side.”

The answer to this, however, is not the retreat to commitment.  On this Forster is clear, pointing out that if it is incomprehensibility we are concerned about, biblical arguments aren’t going to get us a step further than natural law ones.  We must cling to both the authority of Scripture and the reality of natural law, but our approach to influencing the culture must be subtler than relying on either.  Forster reserves his own constructive proposal for a follow-up post, and I shall do likewise, integrating aspects of his recommendations with observations from the other interlocutors we have surveyed.  So stay tuned for next week.

Brad Littlejohn

Brad Littlejohn (PhD University of Edinburgh, 2013) is a Senior Fellow with the Edmund Burke Foundation and President of the Davenant Institute, author in the fields of Reformation studies, Christian ethics, and political theology.