Sex, gender and bigotry(2): John Finnis and the perverse instrumentalism of natural law sexual morality

This is the second part of a two part consideration of a published essay Law, Morality, and "Sexual Orientation" (pdf) by John Finnis arguing for Catholic natural law sexual morality and its (highly selective) legal implementation. The first part was in my previous post.


Note the linked goods of “children and mutual affection” in Finnis’ statement that:

Genital intercourse between spouses enables them to actualise and experience (and in that sense express) their marriage itself, as a single reality with two blessings (children and mutual affection). Non-marital intercourse, especially but not only homosexual, has no such point and therefore is unacceptable.

Now, it is perfectly obvious that a wide range of sexual acts can express mutual affection. But that does not count. The human purpose of mutual affection is not enough on its own. It has to be expressed in a particular way (unobstructed penal-vaginal intercourse within marriage). The procreative purpose is absolutely dominant, as Finnis makes clear:

The union of the reproductive organs of husband and wife really unites them biologically (and their biological reality is part of, not merely an instrument of, their personal reality); reproduction is one function and so, in respect of that function, the spouses are indeed one reality. So their union in a sexual act of the reproductive kind (whether or not actually reproductive or even capable of resulting in generation in this instance) can actualise and allow them to experience their real common good. That common good is precisely their marriage with the two goods, parenthood and friendship, which are the parts of its wholeness as an intelligible common good even if, independently of what the spouses will, their capacity for biological parenthood will not be fulfilled by that act of genital union. But the common good of friends who are not and cannot be married (for example, man and man, man and boy, woman and woman) has nothing to do with their having children by each other, and their reproductive organs cannot make them a biological (and therefore personal) unit.

In other words, sex which is not an instrument of the procreative function has no legitimacy.

There is the obvious difficulty that, even with married couples, procreation is not always possible: one or more both may not be fertile, either as a permanent or temporary condition. That is still fine, because the procreative form has power even if it lacks even procreative possibility:

… such sterility does not render the conjugal sexual acts of the spouses non-marital. (Plutarch indicates that intercourse with a sterile spouse is a desirable mark of marital esteem and affection.) For: a husband and wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualising and experiencing the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child.

Only procreation justifies sex because only the procreative form generates true unity.

Which raises the question of whether this form creates its unity in a loveless marriage, or during rape and so on. Presumably not: so the procreative form is the boundary in which only legitimate sex can take place but it is clearly taken that not all sex that does take place within that form is legitimate. Which does raise the question of whether the extra emotional elements that create that extolled unity could also operate in other sexual forms.

To which the answer is an emphatic no:

… that there is no important distinction in essential
moral worthlessness between solitary masturbation, being sodomized as a prostitute, and being sodomized for the pleasure of it. Sexual acts cannot not in reality be self-giving unless they are acts by which a man and a woman actualize and experience sexually the real giving of themselves to each other …

Sex is only legitimized by procreation. Sex within the procreative form by a married couple:

… differs radically from the acts of a husband and wife whose intercourse is masturbatory, for example sodomitic or by fellatio or coitus interruptus. In law such acts do not consummate a marriage, because in reality (whatever the couple's illusions of intimacy and self-giving in such acts) they do not actualise the one-flesh, two-part marital good.

One would have thought that if one is driven to claim sex between two people is masturbatory, one might stop and consider that a certain conceptual confusion might be involved. But, then, that one is defending a theory of sex that led people to decide it was a fine thing to burn people alive for having sex or getting married might give one pause too.

Let us consider the notion that all sex that does not operate according to the unobstructed penile-vaginal form within marriage is equally worthless. Clearly sex is regarded as profoundly problematic if procreation (or, at least, the procreative form) is the only thing that can make it legitimate. Consider further the profound denigration of human agency involved. What people want, what they consent to—unless it is to perform unobstructed penile-vaginal sex within marriage—is entirely beside the point. Indeed, equally morally worthless.

On the denigration of human agency, it is worth noting that the notion of the unitive “one flesh” nature of marriage was, until very recently, held to operate to bar any concept of rape within marriage, since a woman was held to have given consent forever when she said “I do”. While the bar on convenient forms of contraception—those that did not keep to the correct sexual “form”—brought home to millions of women in particular how much this sexual morality restricted (their) human agency.

The rich world of human eros is thus reduced by this concept of only unitive sex being legitimate to one very narrow legitimate form. The general denigration of human agency is encapsulated in Finnis’ statement:

… it is to the realities of our constitution, intentions and circumstances that the argument applies the relevant practical reasons (especially that marriage and inner integrity are basic human goods) and moral principles (especially that one may never intend to destroy, damage, impede, or violate any basic human good, or prefer an illusory instantiation of a basic human good to a real instantiation of that or some other human good).

The term “illusory instantiation” is doing a lot of work.
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The more specific denigration of the agency of the same-sex attracted is much more explicit. Same-sex activity is put on a similar moral plane as bestiality:

Copulation of humans with animals is repudiated
because it treats human sexual activity and satisfaction as something appropriately sought in a manner as divorced from the expressing of an intelligible common good as is the instinctive coupling of beasts -- and so treats human bodily life, in one of its most intense activities, as appropriately lived as merely animal. The deliberate genital coupling of persons of the same sex is repudiated for a very similar reason. It is not simply that it is sterile and disposes the participants to an abdication of responsibility for the future of humankind. Nor is it simply that it cannot really actualise the mutual devotion which some homosexual persons hope to manifest and experience by it, and that it harms the personalities of its participants by its dis-integrative manipulation of different parts of their one personal reality. It is also that it treats human sexual capacities in a way which is deeply hostile to the self-understanding of those members of the community who are willing to commit themselves to real marriage in the understanding that its sexual joys are not mere instruments or accompaniments to, or mere compensations for, the accomplishment of marriage's responsibilities, but rather enable the spouses to actualise and experience their intelligent commitment to share in those responsibilities, in that genuine self-giving.

A pretty thorough attack on human diversity: one, moreover, which requires humans to conform to the proper purpose of sex. Sex is not to be understood as people may conceive of it, but as they have to conceive of it: as the only permissible way to conceive of it: a very Catholic notion of absolute possession of the truth. Eros is not an instrument of their purposes, they are instruments of its purpose and only act legitimately when they are so. As we shall see, the consequence of requiring human agency to conform to the deemed purpose of sex is that sex that serves “mere” human purposes becomes an “instrumental” misuse of a human body (either yours, in the case of masturbation, or someone else’s, in the cases of all non-penal-vaginal sex, any penal-vaginal sex not within marriage and any deliberately obstructed penal-vaginal sex within marriage).

The attack on the nature of the same-sex attracted is made absolutely explicit:

Homosexual orientation in this sense is, in fact, a standing denial of the intrinsic aptness of sexual intercourse to actualise and in that sense give expression to the exclusiveness and open-ended commitment of marriage as something good in itself.

Same-sex attracted people are the people who should not exist. The attack on human agency is also made absolutely explicit:

All who accept that homosexual acts can be a humanly appropriate use of sexual capacities must, if consistent, regard sexual capacities, organs and acts as instruments for gratifying the individual "self" who has them.

Yes, that would be the alternative view. One that, apparently, threatens the very basis of marriage:

Such an acceptance is commonly (and in my opinion rightly) judged to be an active threat to the stability of existing and future marriages; it makes nonsense, for example, of the view that adultery is inconsistent with conjugal love, in an important way and intrinsically—not merely because it may involve deception. A political community which judges that the stability and protective and educative generosity of family life are of fundamental importance to the whole community's present and future can rightly judge that it has compelling reasons for judging that homosexual conduct -- a "gay lifestyle" – is never a valid, humanly acceptable choice and form of life, in denying that same-sex partners are capable of marrying, and in doing whatever it properly can, as a community with uniquely wide but still subsidiary functions (see section 1 above), to discourage such conduct.

So the same-sex attracted are not only the people who should not exist, their existence as sexually-active persons is a threat to the very basis of marriage. (Like Jews used to be held to be threats to the Christian religion, perhaps?)

One might consider the possibility, that if one’s theory of marriage and sex is such that the existence of a small minority of people is ruled as both improper and a threat to the large majority, it is time to re-examine one’s theory of sex: but no, because if they are an improper form of the human, their existence is a problem of moral repression, but not of moral reconsideration. They are to be sacrificed to the theory that is taken to trump their existence.

Contract and evidence
Let us just consider what a nonsense this claim about threats to marriage is in terms of the simple law of contract. Do we really think that the idea that people enter into contracts for their own reasons in any way undermines the very notion of a contract and makes keeping contracts profoundly more difficult? Of course we do not. This claim about the threat to marriage only makes any sort of sense by treating sex as something profoundly problematic: so problematic that only one narrow form of it can be recognised as legitimate, otherwise moral chaos will result.

Which is, in fact, an empirical claim. Which, given not many people both believe and act upon the moral theory Finnis is supporting, would seem to be already refuted. For a line of argument fond of talking of objective moral facts, natural moral law theorists are often remarkably reluctant to consult existing anthropological data. Which shows, quite clearly, that societies can have functioning heterosexual families and marriages perfectly happily in conjunction with same-sex marriages and relationships. Particularly as same-sex relationships and couples have, in fact, always existed. Finnis is waving around what is a danger to (his) theory: that the public acknowledgement of the legitimacy of same-sex relationships endangers the theory of sexual morality he supports, not other people’s marriages.

Just as divorce acts to improve the general quality of marriages—allowing choice tends to improve performance in this as in other areas of life. (Divorce statistics are highly misleading: most modern marriages end only with death; a minority of people are bad at marriage and re-marry a lot, creating highly misleading averages.)

The form of marriage Finnis is delineating and defending—monogamous marriage between a man and a woman treated as full legal equals—is a historically quite rare form of marriage. (The last certainly did not apply when the Church controlled marriage law) Many cultures have permitted same-sex marriage of various forms. Clearly, they did so on different theories of sex and, often, of gender than that Finnis is supporting (that one’s genitals entirely define one’s gender; which makes sex-change operations illegitimate too): theories of sex and gender that gave far more credence to human agency.

Besides, let us grant for the sake of argument Finnis’ claim that unitive sex is the only morally worthy sex. What would follow, as a matter of public policy from that? Nothing. Equality before the law does not rest on the relative worthiness of citizens or their activities. Equality before the law rests on them being citizens, on their common humanity. The case for same-sex marriage is the same as for marriage: that people will pair up, that transactions costs will be lower if the state provides a standard marriage contract, that multiplication of marriage or marriage-like contracts is not good public policy, that citizens who seek to build lives together are entitled as citizens to equal protection of the law: all applying with particular force since some of those couples (both same-sex and opposite-sex) are and will be raising children. Given Finnis’ claims about damage to other people’s marriages or willingness to marriage are demonstrably false, and that the modern state has never regulated marriage to require procreation, the moral worthiness of the sex engaged in within same-sex marriages is something public policy should take no cognizance of just as it does not for current opposite-sex marriages. We can see here how much Finnis’ argument ultimately rests on denying that the same-sex attracted are proper versions of the human.

After all, he puts them in the position that to be “moral” they have to lie (pretend erotic engagements and interests that are not authentic) or be celibate. To experience burdens and costs that are far in excess of what happens if the “wrong form” of sex is engaged in. The damage done—in judicial murder, imprisonment, being social outcast, emotionally and psychologically stunted and harmed—in taking the same-sex attracted as being not a proper form of the human is so much greater than any “danger” they represent. But to worry about that entails worrying about them as if they are proper versions of the human and that their experience therefore counts. The utterly unnecessary emotional turmoil same-sex attracted youth go through, for example, is clearly simply a non-issue in this calculus: a “necessary cost” of establishing heterosexuality as the only acceptable sexual manifestation of the human.

But there is no reason to grant Finnis’ claims for unitive sex, as he provides no evidence for the absolute superiority of unitive sex: apart from (as we shall see) a silly claim about using the body instrumentally, it is argument based on assertion. He is making three claims: (1) unitive sex exists with the characteristics he claims for it; (2) it is the most morally worthy form of sex; and (3) no other form of sex has any moral worth. As to (1), that is entirely a religious claim, not found in classical philosophy but relying on Scriptural statements about “one flesh” and not based on the breadth of human experience of sex. As for (2), for sex that creates life within a loving marriage, that may well be true, without making (3) true. As for (3), that rests on a denigration of human agency, and the actual human experience of sex, that we have no good reason to grant and many reasons not to.

One of the features of being same-sex oriented is that one finds sex with one’s own sex far more profoundly satisfying than sex with the opposite sex: in particular, that the former is far more likely to be an expression of a profound erotic engagement with another person. But, of course, Finnis has framed things—as the natural moral law tradition does—so that nothing the same-sex attracted say on their own behalf in such matters count. An evidentiary procedure that should be utterly contemptible to anyone trained in law. (This is a system that really does turn priests into commissars of natural law, with the same-sex attracted having no more recourse against the burden of the theory than someone designated a ‘counter-revolutionary’ would have against Leninism.)

Finnis does cite evidence that homosexual pairings tend not to be monogamous. First, he only cites evidence about male couples: evidence about female couples would be quite different. Second, the evidence is from societies where there is no history of public recognition of same-sex couples: Finnis is hardly in a position to claim that changing the law does not have implications for attitudes and behaviour. Thirdly, marriage has survived having sub-groups with distinctly different patterns of behaviour (the British aristocracy comes to mind). Fourthly, the law need not concern itself about such matters: as, of course, it does not for heterosexual couples except in so far it affects pleas for divorce.

Silly instrumentalism
The only real argument Finnis advances for the absolute superiority of unitive sex so that all other sex is morally worthiness is one about not treating humans as instruments. Such as:

For want of a common good that could be actualised and experienced by and in this bodily union, that conduct involves the partners in treating their bodies as instruments to be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus dis-integrates each of them precisely as acting persons.

Or:

… the self-understanding of those members of the community who are willing to commit themselves to real marriage in the understanding that its sexual joys are not mere instruments or accompaniments to, or mere compensations for, the accomplishment of marriage's responsibilities, but rather enable the spouses to actualise and experience their intelligent commitment to share in those responsibilities, in that genuine self-giving.

And:

All who accept that homosexual acts can be a humanly appropriate use of sexual capacities must, if consistent, regard sexual capacities, organs and acts as instruments for gratifying the individual "self" who has them.

Finnis also cites Kant on instrumentalism:

The post-Christian moral philosophy of Kant identified the wrongfulness of masturbation and homosexual (and bestial) conduct as consisting in the instrumentalisation of one's body, and thus ("since a person is an absolute unity") the "wrong to humanity in our own person".

All this rests on the same deep problematising of sex that the rest of Finnis’s position rests on. Apparently, any use of the body for sensual pleasure is a wrongful instrumentalism of the body, since they all involve the use the body to experience sensual pleasure as much as sex does: weird of the body to have such capacities then.

Moreover, it is a ludicrous characterization of human interaction for pleasure and joy. Are we going to damn games and sports, for example, as illegitimate instrumentalisations of the body? (Kant really needed to get out more.) The notion that one person expressing their love for another by giving them sexual pleasure (or indeed sensual pleasure, such as a massage) is an illegitimate instrumentalisation of the human body or person is an utter nonsense which only gets any plausibility at all by putting sex in this weird, deeply problematic box—whether because of the issues monotheism has with sex, or because you have some deep problem with human passions, or do not understand the role of catharsis or whatever. Semen and orgasms are not fixed resources: ejaculation or orgasmic release in one context does not preclude or limit it happening in a different context. The simple joy of comfort with your own body and intimate joy with another are good in their own right: they do not have value only as instruments of procreation.

But not only are Finnis’ claims here nonsense (and nonsense that has no relevance to the law) but his breast-beating about turning people into instruments is deeply hypocritical. Because that is precisely how he treats the same-sex attracted. For the role he puts the same-sex attracted is: your existence is inconvenient to our theory of sex, so we are going to seek to truncate your lives in ways that are convenient to our theory of sex regardless of the costs to you; we are not going to concern ourselves with what you want; indeed, we are going to frame things so there is nothing you can say on your behalf of your erotic aspirations; we are not going to concern ourselves with whether what we demand of you is reasonable or not; we are not going to concern ourselves with the implications for your status within your own society. None of these things we will give any standing to. The only thing that matters is the convenience of our theory.

This does not derive a concept of “human flourishing” from how people actually are, it uses its concept of “human flourishing” to define the human. If you do not fit, you are not “properly” human. Is that not treating the same-sex attracted with a thoroughly dehumanising instrumentalism? Of course it is. Is thus a monstrous hypocrisy? Of course it is.

That is, it is as long as you think that the same-sex attracted are people, in the ordinary moral sense of the term. But if they are not proper versions of the human, then it is not hypocrisy, merely utterly vile.

For, no matter how one dresses it up, Catholic natural law sexual morality is a thorough attack on the agency—and thus the elementary humanity—of the same sex attracted. It treats them as not proper manifestations of the human, as metaphysically deformed due to having:

… a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder

and so not due considerations which would otherwise be elementary. It thereby uses them as instruments to be sacrificed to natural law moral theory. Literally sacrificed as burnt offerings in judicial murders in past centuries, whatever level of repression can be got away with in our own time, in a slow process of responding to liberalising social attitudes that the Church has fought at every step of the way.

Casualties of priestly authority
All of which, of course, completely subverts the second principle of Christianity. But priests hated Christ’s teaching at the time, because it took away their power as "gatekeepers of righteousness" to say who was morally “in” and who was “out” with its notion that everyone should be treated as if they were morally “in”. They do not hate that teaching of His any less now. The Church refuses to change its teachings because, not merely would such a reversal of itself undermine its authority but because rationing orgasms is very much about keeping priestly authority—the authority to say who is in and who is out—going: an authority that rests crucially on the subversion of the second principle of Christianity.

Indeed, it is worth considering what evils done by the Catholic Church—its homicidal wars against religious, intellectual and sexual diversity, the denigration of Jews, the betrayal of children in its care—have not been products of the creation and maintenance of priestly authority.

This matters for the essay being examined here as John Finnis—like Robert George and Ed Feser—defends this teaching because it is the doctrine of the Catholic Church. Indeed, part of the casualties of this maintenance of priestly authority is someone like John Finnis arguing for the proposition that some of his fellow humans are metaphysically deformed—and so not entitled to the equal protection of the law—on the basis of an approach to natural law not in any way based on Gospel thinking and which was homicidal in its origins, homicidal in its history and continues to be homicidal (in unofficial murders) in its implications.

But, like His insistence on promiscuously offering moral inclusion to all—and thus the “insult of equality” to all those convinced that entire categories of their fellow humans are emphatically not their moral equals—Christ’s teaching that belittling others was not only wrong for what it did to them, but also wrong for how it diminishes the belittler, remains highly subversive.