Problems with the normative essentialism of classical natural law theory 2a: Ignorant confidence and selecting premises

This is the second part of a consideration of the problems with classical natural law moral theory, derived from Ed Feser’s admirably clear presentation of classical natural law property rights theory. Part one is in my previous post, the second section of this part is my next post, with the concluding part three in the following post.


One of the perennial difficulties with classical natural law theory is that practitioners often does not have the background knowledge the theory requires given the importance put on the ends, the functions (understood as purposes), of things. St Paul, for example, comments on the purpose of human hair when he was simply not in a position to know the biological function of hair. So what he does is turn the presumptions of his own culture into “the nature of things”:

Judge for yourselves: Is it proper for a woman to pray to God with her head uncovered? Does not the very nature of things teach you that if a man has long hair, it is a disgrace to him, but that if a woman has long hair, it is her glory? For long hair is given to her as a covering.

This problem with knowledge and premature essentialism is somewhat on display when Feser writes:

Suffice it to say that classical natural law theory rejects the classical liberal idea that the state is artificial, a product of human convention, and regards it instead as a natural institution to which we owe allegiance whether or not we consent to it.

The state is a contingent historical creation. Rulership is, if anything, more common (it is certainly historically prior: central to the difficulties in Afghanistan is a legacy of long experience of rulership, little of a genuine state). The term ‘natural’ is not helpful nor apposite here.

One of the hardy perennial problems with natural law theory is how ‘natural’ often turns into ‘what I am comfortable with’ and/or ‘what I know about’. This follows in part from natural law theory requiring knowledge that people often simply do not have. But, given approved human ends, and approved concepts of the nature—thus proper use of things—are such an essential part of the moral system, and have such power in it, where else are people going to appeal to than what they are comfortable with and used to? St Gerald of Aurillac coming across a woman working in the fields and, when he found that her husband was sick and the work needed to be done, giving her money to engage a day labourer because:

... women should not do the work of men, for God has a horror of what is against nature

was doing exactly what comes naturally to classical natural law thinking. As was St Paul.

This difficulty goes right back to the origins of classical natural law thinking. The claim that sex that was not procreative was “against nature” comes from the Athenian in Plato’s The Laws who claims:

If we were to follow in nature's steps and enact that law which held good before the days of Laïus, declaring that it is right to refrain from indulging in the same kind of intercourse with men and boys as with women, and adducing as evidence thereof the nature of wild beasts, and pointing out how male does not touch male for this purpose, since it is unnatural …

And further that:

… our citizens must not be worse than fowls and many other animals which are produced in large broods, and which live chaste and celibate lives without sexual intercourse until they arrive at the age for breeding; and when they reach this age they pair off, as instinct moves them, male with female and female with male; and thereafter they live in a way that is holy and just, remaining constant to their first contracts of love: surely our citizens should at least be better than these animals.

It is now common knowledge that nature uses a vast variety of mating and offspring-raising strategies. Hence selecting some for praise, and others for rejection, exposes your assumptions, not anything in nature, which provides no such grounding. (The same as citing some passages in Leviticus and ignoring others—including the ones which require all its laws to be followed—tells us about your premises and grounds nothing in Leviticus as such, but in the criteria used for such selection.)

Not only is there a vast diversity in nature, this diversity includes a lot of queer behaviour:

Animals of the same sex build nests and homes together, and many homosexual pairs raise young without members of the opposite sex. Other animals regularly have partners of both sexes, and some even live in communal groups where sexual activity is common among all members, male and female. Many creatures are “transgendered,” crossing or combining characteristics of both males and females in their appearance and behaviour. Amid this incredible variety of different patterns, one thing is certain: the animal kingdom is definitely not just heterosexual. …
On every continent, animals of the same sex seek each other out and have probably been doing so for millions of years. They court each other, using intricate and beautiful mating dances that are the result of eons of evolution. Males caress and kiss each other, showing tenderness and affection towards one another rather than just hostility and aggression. Females form long-lasting pair-bonds—or maybe just meet briefly for sex, rolling in passionate embraces or mounting one another.
Bagemihl, Biological Exuberance (Pp9-12).

The Athenian is simply wrong in his claims of descriptive essentialism about sex and that leaves his normative essentialism without any grounding. It would be like holding that jaws and teeth only have the function of eating while ignoring their uses for fighting. Some of the biological reality of sex counts, and the rest does not, but there is nothing in how things actually are that grounds that setting of boundaries. Indeed, the argument is circular, since the “wrong” cases are excluded on the basis of inferences from how things are which excludes those cases. The pleasurable, cathartic and connection-expressing roles of sex are every bit part of its biological reality as procreation: indeed, more so, since they are more common.

If one responds to the sort of point that Bagemihl makes here:

… the only claim about naturalness that is actually consistent with the facts is the following: homosexual behaviour is as natural as heterosexual behaviour. What this means is that homosexuality is found in virtually all animal groups, in virtually all geopgrahic areas and time periods and in a wide variety of forms.
Biological Exuberance (p.78).

with the rejoinder ‘but that is not the same sense of ‘natural’, the answer is “yes, exactly”. And because it is not, the claims based on it are grounded in nothing but its own conclusions.

Hence St Gerald’s and St Paul’s ignorance of other cultural patterns, and the Athenian’s ignorance of biological reality, did not stop them happily applying natural law reasoning. This is because all you need to do so is the conclusion you want and the ability to frame the available evidence appropriately by concentrating on the use that is convenient for your conclusion. Because it is a normative essentialism, with a single view of natures (including human nature), according to a single set of ends, one can just set the boundaries of “what counts” so as to exclude inconvenient cases—any such just become “improper” instances. The conclusion gets to select its own premises: the utility of this for defending religious doctrine is obvious.
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In particular, it was ideal for Philo of Alexandria (of whom more in the next post), and his later adaptors, to express and justify monotheistic nervousness over sex. (A nervousness so intense that death was deemed an appropriate penalty for engaging in the wrong “form” of sex: justifying this, and attendant barbarities, on the grounds of a commitment to “human flourishing” has to be one of the viler perversions of philosophy.) Hence Philo’s characterisation, in On Abraman, of the destruction of Sodom and Gomorrah as being God-the-virtuous-exterminator enforcing boundaries about the form of sex according to sex’s alleged single purpose of procreation:

But God, moved by pity for mankind whose Saviour and Lover He was, gave increase in the greatest possible degree to the unions which men and women naturally make for begetting children, but abominated and extinguished this unnatural and forbidden intercourse, and those who lusted for such He cast forth and chastised with punishments not of the usual kind but startling and extraordinary, newly created for this purpose.

A monotheistic nervousness that St Paul then expresses, such as in Romans 1:26-27:

Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

(The last phrase in particular is very Philonic.) One can seize on one manifestation of sex (procreation), dismiss the rest, and claim that establishes what is “natural”. But that is a normative essentialism grounded in nothing but the exclusion it seeks to justify. It is the Leviticus problem all over again: the grounding is in the criteria of exclusion, not in the thereby selected. Not in the nature of things.

A criteria what was then, of course, applied as the criteria of justification for selecting bits of Leviticus, and not others, to be deemed to have continuing authority. To transfer such homicidal anthematisation on the basis of the form of sex across from the Old Testament Covenant to the new Christian Covenant (about which I will also have more to say in the next post).

The history of Catholic debates over usury demonstrates the malleability of natural law reasoning. Scripture damns usury (Nehemiah 5:7-12, Psalm 15:4-5, Ezekiel 18:16-18 & Ezekiel 22:11-13). Operating in the way classical natural law theory does—start with the conclusion (usury is wrong) and then work back to the construing of form and purpose which gets the desired result—money, as round bits of metal, was deemed inherently sterile. So clearly it was improper to pretend it was generative. Which is what charging interest clearly did, so charging interest was usury and wrong. Alternatively, the primary legitimate function was exchange, so interest violated money’s nature as a medium of exchange and so is wrong. The crucial criteria are construed quite differently: what they have in common is providing the correct (pre-determined) conclusion.

Nor was this done by minor thinkers: the notion that money is barren (and so charging interest is unnatural) and that returning money with interest violates its function as a medium of exchange both come from Aristotle, who wrote:

The most hated sort (of wealth getting) and with the greatest reason, is usury, which makes a gain out of money itself and not from the natural object of it. For money was intended to be used in exchange but not to increase at interest. And this term interest (tokos), which means the birth of money from money is applied to the breeding of money because the offspring resembles the parent.
Wherefore of all modes of getting wealth, this is the most unnatural." (1258b POLITICS)

The notion that usury was use against money’s natural end as a medium of exchange was endorsed by Aquinas, who wrote:

To take usury for the lending of money is in itself unjust, because it is a case of selling what is non-existent; and that is manifestly the setting up of an inequality contrary to justice. …
Now according to the Philosopher (Aristotle), money was invented principally for the effecting of exchanges; and thus the proper and principal use of money is the consumption or disbursal of it, according as it is expended on exchanges. …
But compensation is given him according to the equality of justice, if the exact amount is returned to him that he has lent. Hence if he exacts more for the use of a thing that has no other use than the consumption of the substance, he exacts a price for that which has no existence, and so the exaction is unjust.

Alas, a blanket ban on interest got in the way of the interests of the Papacy (and of merchants), so things were adjusted over time. Time, risk, use and labour were all admitted to be relevant when Pope Leo X ruled on the matter in the bull Inter multiplices (1515). The purposes of people as users of money are clearly what drove the shift in moral evaluation.

Besides, it was a wrong-headed way to conceive of money. It is indeed a purpose, an intended function, of coin to facilitate exchange (and payment of taxes). Coins are deliberately given a form that makes them as unchanging as possible. (Coins are ridged, for example, to discourage clipping.) The more unchanging the form, the better coins serve productive purposes. Interest does not flow from some perverse pretend generative property from round bits of metal or from “misuse” of their role as media of exchange but the wider context in which those round bits of metal (or notes of paper or plastic, or electronic entries) are used. To focus on their physical form, or their immediate use, in such a way is absurdly reductionist. The inference from form, and even use, turned out to be fallacious. What matters is the human purposes in the creation and uses of money (as the Papacy effectively acknowledged in the 1515 Bull).

A descriptive essentialism is grounded in how things are. A normative essentialism is not, since it is normative precisely because it excludes some of what it is. But how is this boundary of exclusion set? The original claim about sex having, by nature, a purely procreative function was based on a claim about how nature (in the sense of non-human animals) actually was. But as a description of biological reality, that claim is simply false. So, if the boundaries of “proper” nature are not set by what exists, what is it set by? A claim about ends and purpose. But an ungrounded claim about ends and purpose for it requires some separation of legitimate from illegitimate ends which is not derived from how things are but from how some thing are: where the boundary is set by the conclusion, so cannot be the justification of it.

The metaphysical argument that the sole (legitimate) end of sex is procreation is that procreation is the final cause of sex, the reason it came into existence. But this is a very pre-Darwinian concept of biological function, as it makes the discovery of new uses of things somehow illegitimate. Sex may have come into existence for procreation, but once it has come into existence, new uses can be found (and clearly have been). Operate long enough, and they can result in new forms. But the forms do not determine the use, the use selects for the forms—it is basic to natural selection that something can evolve into a new thing. That is, after all, how fins turned into legs turned into the hands that write texts, hold books and operate computers. Just as one of the features of agency is that it can find new uses for things.

As an aside, that we live in a technologically dynamic civilisation, where new uses are discovered for things all the time, and new perspectives on existing things, as well as a post-Darwin intellectual world, seems to be to be part of the explanation of why the broader metaphysics of classical natural law theory are a bit hard for modern minds, even modern philosophers, to get their heads around. (Something Feser, typically quite legitimately, regularly complains about.)

That we live in democratic, commercial and culturally diverse societies also has some effect. Unless one is committed to certain religious framings, it becomes increasingly natural to treat the diversity of people as just how things are. Including a generalised, consent-based, respect for human agency. By contrast, to claim that a set of ends is greater than any human who instances them; indeed that a particular end (such as sex-is-only-for-procreation) is greater than the human who instances it, is to crush the greater into the service of the lesser. Which is why it leaves such misery and barbarity behind it and why its social plausibility is fading. Except among those where God is waved to shore up the claim (see my next post).

Returning to Feser’s arguments, any attempt to set the boundaries of proper and improper as per normative essentialism cannot be grounded in the existence of final causes, no more than Locke can ground moral claims in something being God’s property, for just as if anything is God’s property, everything is, so if any causal sequence has final causes, they all do. Nor can the notion of flourishing do the trick, since in the cacophony of biological reality, there is most emphatically no harmony of flourishing: no inherent border between the flourishing that counts and the flourishing that does not. We are perfectly ready to sacrifice the flourishing of a pig, and the leg whose original biological function was to move the pig around, to the human purpose of providing ham.

Criteria of judgement cannot be grounded in what they, themselves, judge. This is a clear sense in which one cannot derive an ‘ought’ from an ‘is’.

For the final-causes-that-are do not tell us which causal sequences are proper just as the flourishings-that-are do not tell us which flourishings are desirable.