is precisely the status of final causes:
if there were a version of natural law theory that both appealed to final causes in nature and at the same time could allow for Hume’s fact/value dichotomy, then Hart’s argument might at least get off the ground. But there is no such version of natural law theory, and it seems that Hart is conflating the “new” and the “old” versions, thereby directing his attack at a phantom position that no one actually holds. The “new natural lawyers” agree with Hume and Hart that one cannot derive an “ought” from an “is,” but precisely for that reason do not ground their position in a metaphysics of final causes. The “old” or classical natural law theory, meanwhile, certainly does affirm final causes, but precisely for that reason rejects Hume’s fact/value dichotomy, and in pressing it against them Hart simply begs the question.13
According to Feser, then, natural law theory is not a monolithic enterprise without distinctions, schools, or traditions; yet, a reader as sophisticated and subtle as David Bentley Hart apparently overlooks these nuances. This oversight will be important for the thesis of this book.
Given such disputes, it’s unsurprising to find Protestants involved in similar head-scratching. While natural law is sometimes considered “a Catholic thing,” contemporary social issues like abortion, homosexual marriage, embryo-destructive research, and religious freedom have made for unexpected alliances, and have also strained the usual fences and demarcations. For instance, two years prior to Hart’s essay, Matthew Lee Anderson’s piece for Christianity Today on why “the brokenness of human reason” made evangelicals wary of natural law arguments about marriage prompted a torrent of (pixilated) ink, with tensions similar to the Hart debate.14 In an interview with Robert P. George, a leading natural law thinker, Al Mohler summarized the thought of many evangelicals:
I think one of the crucial points of distinction has to do with just how compelling we believe the natural law to be. . . . I have to come at this from a position that is more informed by Romans chapter one. When I believe that what we are told there is that humanity is dead set to suppress the truth in unrighteousness and that there is no law written within the heart nor within the role of nature that will keep them from doing what they are determined to do except by the regenerating power of God, the gospel of Jesus Christ . . . at the end of the day, I am not very hopeful that a society hell bent on moral revolution is going to be held in check by our arguments by the moral law, the natural law. . . . And as an evangelical, we have every reason to use natural law arguments, we just don’t believe that in the end they’re going to be enough.15
But which version of the natural law is being discussed, classical or new? In a later response, Anderson remarked that some of his respondents “were right to remind us that there are different strands of ‘natural law.’ If I conflated the versions, it’s only because from what I can tell evangelical Protestants are no more amenable to Russell Hittinger/Jay Budziszewski style [natural law] than the new natural law. On this point, I would be delighted to be wrong.”16 He may be right in his judgment that evangelical Protestants are as wary of the old versions as they are of the new, but recognition of the distinction is not at all evident in the various discussions in either the popular or academic venues.
Whose Law? Which Nature? Historicity and Meaning
In both these episodes, fault-lines around politics, culture, ecclesiology, soteriology, tradition, nature, grace, and the status of reason emerged, and in both it was suggested that distinguishing natural law theories might aid the conversation. Apparently, old or classical natural law theory is distinct from new natural law theory, although how they differ or what this might mean for the various disputes was not evenly explored or precisely defined in the exchanges. The work of distinguishing the accounts—old and new—and making a case for why the distinction may matter is the task of this book. The question should be forced, “which natural law are you talking about?”
But even posing this question challenges natural law, a theory claiming that some things are self-evident, written on the heart, or cannot not be known by functioning persons.17 If C. S. Lewis is correct, and the first principles of practical reason are “without question as being to the world of action what axioms are to the world of theory,” then how can multiple theories of natural law provide a defense of natural law theory?18 Wouldn’t the plurality of accounts call into question any claim that natural law is basic, foundational, universal, normative, and known to all?
Tradition Dependencies, Tradition Independence
I agree with John Finnis, a prominent voice for what has been termed the “new natural law theory” (NNL), that the first principles of natural law are universal and non-revisable “however extensively they were overlooked, misapplied, or defied in practical thinking. . . .”19 Certainly “there is a history of the opinions or set of opinions, theories, and doctrines which assert that there are principles of natural law” but there is a clear distinction “between discourse about natural law and discourse about a doctrine or doctrines of natural law.”20 If this is so, as I would also maintain, then the distinction between old and new theories reflects a division in discourse about natural law rather than a division of natural law itself—people talk about natural law in a variety of ways, which does not thereby render a variety in the law. The basic practical truths “are available to anyone,” even though “truths find various modes of expression in differen[t] cultures and traditions.”21
At the same time, I also agree with Joseph Boyle, a close collaborator with Finnis, that “all intellectual efforts, including their results in such things as theories, propositions, or arguments, appear to depend in a variety of ways upon cultural contingencies and particularities,” and, moreover, that “the work of natural law theorists is obviously tradition-dependent” and “this is a kind of tradition dependence which natural law theory need not deny.”22 In one sense of tradition-dependence, there is no contradiction involved in accepting “that the same proposition or prescription can be expressed in different languages or arrived at by enquiries with very different starting-points,” a claim supported, I should think, by most or all natural lawyers.23 Additionally, Boyle suggests a stronger sense of dependence, “namely, the sense of tradition dependence which applies to those engaged in an enquiry and who recognize themselves to be developing a body of thought which prior thinkers have originated and developed but left incomplete.”24 This, too, is not particularly problematic, for it would be the most wooly-headed thinker who supposed that Thomas Aquinas had solved once and for all every possible elaboration and application of the natural law covering every conceivable domain of practical reason. Of course tradition develops in this way, although development here has a somewhat weak sense of extension and completion rather than the stronger sense of evolving. Suggesting also a third, strongest sense of tradition dependence, Boyle identifies the role of moral community or “common way of life,” including those groups which “maintain a strong sense of group solidarity and identity” from which to live out their values and ethical standards. While he does not mention any particular group, it’s possible to read trends in contemporary ecclesial ethics, sometimes quite strongly opposed to natural law theory’s claims of universalism, as fitting this third sense of tradition dependence.25 Here natural law claims
