natural law theory sees normativity as built into the very fabric of reality in the first place.So there is no Humean ‘is-ought gap’.
Olderberg takes a traditional “strong metaphysics” view of such normativity. “Agent-centred” natural law theorist Robert George holds that the:
first principle of moral judgment is that one ought to choose those options, and only those options, that are compatible with the human good considered integrally—that is to say, with an open-hearted love of the good of human persons considered in all of its variegated dimensions.There is a clear, knowable, human flourishing that generate moral principles. That concept of human flourishing turns out to be very ready to discount various human claims by invoking definitive metaphysical claims. “Agent-centred” natural law theorist John Finis provides an example of such discounting in his Law, Morality, and "Sexual Orientation".
The basic notion of natural law theory is that things have definitive natures that create definitive functions (telos in the original Greek). In their much-discussed What is Marriage? Grigis, George and Anderson define marriage as follows:
Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.How do we know this? This is a central question, for all sorts of arrangements that anthropologists have labeled ‘marriage’ are excluded by this definition. A lot of people seem to have been “ metaphysically mistaken”. Including the Old Testament, for it claims that Solomon had many wives, yet the authors argue that only monogamous marriage is marriage.
So, this is a definition that excludes a very large number of actual historical marriages. Hence it is not a definition that is arrived at by examining marriage in history. It is not a definition that works on the basis that something reveals its nature in its history. The notion being propounded by the authors is that marriage has intrinsic nature regardless of contradicting instances of its history, so that what appear to be cases of marriage are not so.
This is the typical natural law move of “the conclusion gets to declare the ambit of its premises”. It is the move whereby some cases are declared authoritative while cases that fail to conform are declared perverse or in some other way as not counting. Thus is ‘nature’ and ‘natural’ allegedly defined by how-things-are but are actually defined by preselected criteria that cut out contradicting cases. It is the application of the “no true Scotsman” fallacy.
If any lawyer argued like that, their reasoning would be dismissed. But lawyers have to contend directly with opposing arguments and concern for evidence. In natural law theory, since to argue in the above way is an essential element in the whole approach used by natural law thinkers from Aristotle and Aquinas on down, it is happily proceeded with: for, without that move, the entire mode of moral reasoning collapses.
The problem is that reality incorporates the moral and the immoral or, in this case, the proper (“real marriages”) and improper (“purported marriages”). If reality is where the standard is to be found to separate the moral and the immoral, the proper and the improper, in a normative (rather than merely descriptive) way, then reality is judging itself. Or, more precisely, the conclusion gets to choose the ambit of its premises, since cases that contradict the conclusion do not count. They do not get their norms from the nature of things: their norms drive how they define things.
I propose a different definition of marriage: marriage is an arrangement whereby two or more people build a life together. Notice that this definition of marriage actually incorporates all the historical cases of marriage. It incorporates the historical reality of both polygamous marriage (a person being a member of more than one marriage) or group marriage (two or more people married to each other). It does not say that there are “real” and “purported” marriages, that some people have it “metaphysically correct” and some folk (indeed, entire cultures) are “metaphysically mistaken”.
Note also that my definition does set boundaries on what counts as a marriage. It does not include animals (‘two or more people’) for example. It involves at least a presumption of living together, some (or complete) sharing of income and property and some presumption of sexual bonding (‘build a life together’). It also happily includes all philosopher John Corvino’s test cases of marriage.
What it does not do is expect a definition to resolve any issues about how marriage should be legally treated. After all, a definition of marriage as-a-thing-in-the-world will include a very wide range of marital arrangements. It does not involve endorsement, merely identification.
But, in natural law theory, morality comes from following the proper nature of something. So, to define correctly is to endorse (and, of course, dis-endorse).
The definition I proposed does not include raising children. But it does incorporate why marriage is the normal (and normative) vehicle for raising children: that people who are bonded together, who are building a life together, provide a presumptively suitable home for children. This extends beyond being biological mother and fathers: it incorporates adoption and re-marriage. It is perfectly compatible with having and raising children being a great blessing of a marriage. It is even compatible with getting married in the expectation, hope or purpose of raising children. But it does not make having children definitive of marriage, because it is not. A marriage remains a marriage before having children, after children have left and if there are never any children. Infertility does not make a marriage, not a marriage.
If having children was defining of marriage, we would expect to find infertility to be reason to nullify a marriage, proof of fertility as a natural condition for marriage (or at least confirming it) and that children of any member of the marriage to be automatically included in it. While versions of these features did occur in some cultures (humans really are quite varied in their marital arrangements), they have never been part of Western marriage. Illegitimate children were most definitely not included within the ambit of a marriage unless their parents married: marriage as a bond between two people trumping mere procreation.
On the contrary, it was what is actually defining of marriage – two or more people building a life together – which makes marriage a suitable vehicle for raising children.
So, our authors have simply got it wrong. They have defined marriage incorrectly. Their “direct apprehension of reality” has proved to be not all that direct. Their failure, discussed below, to distinguish between group and polygamous marriage is indicative of a bigger failure.
How natural law theory goes wrong, again and again
But this is not an isolated failure. Natural law theory again and again gets sex wrong. It defines sex as having a single legitimating function: reproduction. So, the mechanics of sex really matter, for only unimpeded penile-vaginal sex (coitus) fulfils the legitimating function of sex. But, once again, the ‘how do we know?’ problem pops up. For natural law theorists have disagreed on how restrictive this function is. Clement of Alexander said all sex acts had to be intended to be procreative; Aquinas that that they had to be possibly procreative; Pope Paul VI that they had to procreative in form, even if procreation was not actually possible. It turns out ‘procreative’ is not nearly as determinative as is purported.
On the first appearance of this argument, by the Athenian in Plato’s The Laws, we know sex is naturally procreative because animals only ever engage in procreative sex. This at least gave a realm to provide a benchmark – nature. But it fails on two grounds. First, because it turns out we are highly selective on which bits of the realm of the natural we choose to take as normative (nature being ‘red in tooth and claw’ remember). Our authority is not nature at all, but the criteria by which we pick and choose.
Second, because it is flatly not true that animals do not engage in homosexual activity and bonding. Indeed, in one of our closest primate relatives (bonobos or pygmy chimpanzees) same-sex bonding is central to their social arrangements, to the extent that there seems to have been selection in favour of more prominent clitori to promote female-female erotic bonding.
It is also flatly not true that procreation is the defining function of sex. Sex is also used for pleasure, express intimacy, catharsis, bonding, favours, etc. That something starts off with a particular function does not mean that remains its defining function. Look at your hand: it was once a fin and used to move our distant ancestors through water. We now use our hands for many things: hands have a defining form but not a defining function (a hand, for example, hits, carries and signals). Natural law theory ultimately rests on a “everything was created for a specific purpose” notion of reality which is simply false.
To claim that procreation is the defining function of sex is not to find one’s norms in the nature of things, it is, in the normal natural law style, to use one’s norms to define the nature of something. It is choosing which function to focus on.
And it is to do so by presuming far too much knowledge, to put far too much confidence in our direct apprehension of reality. Consider masturbation: natural law theory holds that it is a non-procreative use of sexual organs, so immoral. But suppose masturbation before sex clears out dead sperm and makes a male more likely to be fertile while masturbation after sex promotes ovulation and makes a female more likely to conceive. Does masturbation then serve a procreative role or not? The problem is, even on a procreation-only view of sex, without scientific study, we cannot tell. Our direct apprehension of reality is nowhere near good enough to bear the weight natural law theory insists it does.
The essential irrelevance of the mechanics of sex
If having children is not a defining function of marriage, then we do not need to enquire into the mechanics of the sexual arrangements between married persons. We can presume there is likely to be sexual bonding and intimacy within the marriage. But we do not have to enquire into the mechanics.
Now, historically, it is true that consummation (as in penile-vaginal coitus) was required for a legal marriage. (Well, it was required if either partner made a fuss about it.) But this was because the law explicitly incorporated the Christian natural law conception of marriage: it incorporated it for religious reasons. If one enquires into the history of the Christianisation of marriage, however, we find that it was a matter of genuine debate within the Church whether a marriage needed consummation to be a valid marriage. It was decided, ultimately, that it was but it was not taken to be “self-evident” that this was true. Now, on the authors’ take on marriage, this is completely mysterious. On my definition of marriage, it is not.
Which goes back to my original question. How do we know? If we cannot find our “proper” marriage by enquiring into marital arrangements across human societies, how to we know what are “proper” marriage and what a purported-but-not marriages? The authors propose a definition, but anyone can do that. My definition has a test – examining the range of marital arrangements across human societies. Their definition has no such test. Referring to historical practice within Christianised marriage law, or the pronouncements of philosophers within the natural law tradition, merely tests the theory with itself.
A small polygamy problem
The problems with the authors’ approach becomes clear when they get to the “what about polygamy?” move:
Revisionists often capture this point with a question: “How would gay marriage affect you or your marriage?” It is worth noting, question could be turned back on revisionists who oppose legally recognizing, for example, polyamorous unions: How would doing so affect anyone else’s marriage? If this kind of question is decisive against the conjugal view’s constraints on which unions to recognize, it cuts equally against the revisionist’s.Actually, that is almost ludicrously easy to answer. Allowing marriage to be between more than two people immediately, in a monogamous legal marriage culture, changes the terms of every existing marriage since it opens up the possibility of one or more people being added to it. This is obviously not true from legally recognising same-sex relationships or legalising same-sex marriage. Moreover, allowing polygamous marriage allows richer or otherwise advantaged folk to grab more of the available spouses. (An effect almost guaranteed to work unevenly between the sexes.) Again, legalizing same-sex marriage does not have this effect: on the contrary, it extends, rather than restricts, the benefits of marriage.
But then, I am arguing from a facts-first perspective rather than a “normative” “only convenient facts count” perspective. So I don’t need to worry about whether definitions do my work for me. For the ones with the problem barring polygamy are the authors themselves. Marriage has to be monogamous because:
Such a union can be achieved by two and only two because no single act can organically unite three or more people at the bodily level or, therefore, seal a comprehensive union of three or more lives at other levels.But, on their own argument, penile-vaginal coitus only has to happen once for the union to be comprehensive in the essential way to satisfy their definition. So, clearly, a husband can be comprehensively united with several wives. (Or, for that matter, a wife with several husbands depending on whether we are talking of polygyny or polyandry.) Their notion that the Bible is lying, or is metaphysically mistaken, when it refers to ‘Solomon’s wives’ is patent nonsense: particularly as Solomon’s wives did not marry each other, they married Solomon. The authors’ argument against polygamy, that it is not “real marriage”, simply fails.
Clearly, the authors’ do not want to permit polygamy: but to claim that polygamy is not marriage demonstrates that they are trying to get mere definition to do far too much. For if polygamous marriages are, indeed, marriages according to the essential features identified by the authors’ definitive definition, then their definition of marriage does not provide a definitive legal guide. For there become marriages which have the declared essential features but, nevertheless, are not to be legally recognized. You see their little problem?
The authors’ solution that permitting polygamy is a metaphysical, and thus moral, mistake does not work—after all, did we ever think Solomon’s wives married each other? Of course not: hence the issue of bodily unions between them never came up and is not relevant to their marital status. The authors’ rather desperate move comes from trying to get far too little to do far too much. That the authors’ fail to distinguish between group marriage (where three or more people marry each other) and polygamous marriage (where one person marries two or more others) is very unimpressive. It is, however, a revealing obtuseness: revealing of their ludicrous over-confidence in what definitions can do.
Using one’s conclusion to determine the range of one’s premises is a great way to rationalise desired conclusions: it has nothing to do with the truth, moral or otherwise. Same-sex marriage is not a “definitional mistake”. And the nature of marriage makes it a suitable vehicle for raising children, not the other way around. Defining marriage is not the end of the moral debate, it is the beginning of it and thinking that the correct definition resolves such debate is a sign of what is wrong with your thinking, not what is right with it.