Problems with the normative essentialism of classical natural law theory 2b: Not being grounded in nature but convenient for doctrine

This is the second part of part two 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 here, the first part of part two is here. The concluding part three will be my next post.



What would the biological world look like if procreation was not the sole biological function of sex? If, for example, sex also had the functions of catharsis, pleasure and establishing and maintaining intense connection?

Then the capacity to perform those functions would exist beyond that needed for procreation. So the capacity to enjoy sexual pleasure, to experience catharsis, to establish intense connection would be much wider than that required for procreation: both in the sense of what actions performed those functions and in the sense of when those actions occurred and between whom.

We would observe in the natural world sexual acts that were not procreative—in form, in timing (i.e. would occur without both parties being fertile). These acts would clearly be functional: that is, they would fulfil various functions other than procreation. We would observe animals using tools to engage in non-procreative sexual acts. We would observe animals communicating to negotiate such acts.

Which is exactly what we do observe in the natural world, let alone the human one. The notion of a unitary function for sex is not based on what we observe in the natural world (even though, as we saw in the previous post, the Athenian, in Plato’s The Laws erroneously claimed it was). It is certainly not based on what we observe in the human world.

It is perfectly possible to agree that a sexual act between loving partners which conceives a child to be born and raised in love is the peak of what sex can achieve without it following that is the only aiming point which can justify sex. Without concluding that every single sexual act has to be aimed at that target, that sex only draws its justification from that highest possible achievement.

We certainly do not have to conclude that, for example, achieving procreation without love (for example, in a loveless marriage) is, by some huge moral gulf, profoundly better than a non-procreative sex act that expresses love such that the first is justifiable and the second is completely unjustifiable: which is the classical natural law position. To reach such a position, we must have some other reason to think that procreation is the only justifiable reason for sex.

We may, for example, want to maximise the number of soldiers and workers being born. (This seems to have been the Aztec justification for banning same-sex activity: one shared with Leninist and Nazi regimes.) Or we may think that sex is inherently problematic: so inherently problematic that only such a wonder as procreation can justify it.

Monotheism’s sex nervousness
Which is the position the Catholic thinkers in particular tended to maintain, part of a general monotheist insistence on procreation as the sole justification for sex. Clement of Alexandria, for example, thought that sex not intended for procreation “outraged nature” and that (also here):

... pleasure sought for its own, even within the marriage bonds, is a sin and contrary both to law and reason.

St Augustine of Hippo and Pope Gregory the Great:

“... conjugal union cannot take place without conjugal pleasure, and such pleasure cannot under any circumstances be without blame”
Stephanie Coontz, Marriage: A History (p.86)

echoed St Clement’s sentiments. The great medieval Jewish philosopher Maimondes argued that circumcision was beneficial because it reduced sexual pleasure.

Monotheism is the worship of the One God who is singular, so not of an active sexuality. Sexual activity is not part of the divine. On the contrary, sex is that which most distinguishes humans from God; it is what makes us most unlike God, and so (it is natural to feel) is what most divides us from God.
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Polytheists—with their Gods and Goddesses in sexual unions—might think sex can bring us closer to the divine: for monotheists, not so. On the contrary, sex is naturally conceived as a dangerous and distracting differentiation from the divine, particularly (as we have seen) its pleasure function. Hence also the general monotheist sense of sex and its products (such as semen and menstruation) being unclean, impure, polluting and the strong nudity taboos of monotheism, hiding those theologically disturbing genitals. Which are not made in the image of God. (With male genitals being particularly disturbing since males had authority from being more like God, yet the penis proclaimed and embodied difference and distance from God.)

ASIDE The pervasive misogyny of worship of the sexless—but conceived-as-masculine—One God is hardly surprising. The combination of only males making decisions on doctrine with sex being deeply problematic was bound to be bad news for women. It is no accident that the New Testament figure most concerned about sex and gender—St Paul—is its sole purveyor of misogyny and anathematisation of same-sex activity. While the monotheist insistence on a unitary moral order—and full inclusion of women as moral beings in that order—had benefits for the status of women (even within St Paul’s writings: part of his pervasive inconsistency) that provided only a partial counterpoint to the aforementioned deep pattern: particularly obvious in Patristic writings.

And the universalism of natural law thought combined with the universalism of Pauline Christianity also acted to anathematise same-sex activity between women (St Paul provides the only Scriptural reference to such), something the Old Testament and Talmudic law had not done.END ASIDE

The non-sexualised nature of the One God made for very clear differences between One God worship and the sexualised deities of polytheism. In the Apostolic references to the story of Sodom, Jude 1:6-8 alludes to the evil of sex with angels (i.e. divine beings), emphasizing the rejection of sexualized conceptions of the divine. In 2 Peter 2:4-7 the story of Sodom—a city labeled “ungodly” and “lawless”—is one of a list of cases of God’s punishment, a list which starts with the punishment of sinning angels (i.e. divine beings behaving badly), part of a general denunciation of false conceptions of the divine based on the inflaming of sensual lusts. St Paul may be alluding to the Sodom story in Romans 1:24-27, but even then St Paul’s central concern in that passage is with idolatry and its consequences.

Preaching in pagan empire where polytheistic religious beliefs very much saw sex as part of the divine—even as a way of connecting to the divine—emphasizing how transcendent, how not-sexed, God was differentiated the message of the Risen Christ very clearly from pagan belief. Just as the Hebrew strictures (Deuteronomy 23:17, I Kings 14:24, I Kings 22:46, II Kings 23:7) which forbid male (and, in the case of the first, also female) temple prostitution differentiated Hebrews as worshippers of solitary Yahweh from the surrounding polytheists. (Crompton argues that, as there were no female-to-female temple prostitution, female-to-female sex was not banned because it raised no issues of defining Yahweh worshippers. It also did not involve “lowering” men to a woman’s role.) As noted in my previous post, Philo of Alexandria was particularly horrified by public parades by effeminate priests of polytheistic deities. Contemporary African Christianity also struggles against animistic and polytheistic traditions with highly sexualised conceptions of the divine, which no doubt helps explain why it tends to notoriously uphold a very sexually restrictive view of Christianity.

But God is God the Creator. So the only aspect of sex that has any connection to God is the procreative function. So sex can only be justified if it is procreative (or, at least, links procreators). Thus we have Jewish writer Josephus writing in the first century:

The Law recognizes no sexual connection except the natural union of man and wife, and that only for the procreation of children. The sexual connection of males with males it abhors, and it punishes any guilty of such an offense with death. ... The Law orders all offspring to be brought up, and forbids women either to cause abortion or to make away with the foetus; a woman convicted of this is regarded as an infanticide, because she destroys a soul and diminishes the race.

With Catholic natural law theology being particularly intense in its narrowing down of permissible sex. But it is simply a particularly intense manifestation of a wider pattern that owes nothing to natural law theory per se but does make sexually restrictive construal of natural law theory congenial: particularly, that procreation is what justifies sex. Just as, over time, the wider pattern of worship of the sexless One God made sexually restrictive construal of the Word of God congenial. If the pleasure function is given any positive role, it is only by being completely subordinated to the reproductive function.

A wider pattern that leaves no place for the same-sex oriented. The same-sex oriented do not connect to anything of the divine. So their sexual activity become demonic in Zoroastrianism—in the words of the Vendidad:

The man that lies with mankind as man lies with womankind, or as woman lies with mankind, is the man that is a Daeva [demon]; this one is the man that is a worshipper of the Daevas, that is a male paramour of the Daevas

—an abomination in Leviticus; an unnatural sinfulness in St Paul; a wanton indecency which ignores limits in the Qur’an.

For the peak of construing the sin of Sodom as male-to-male sex is reached in Islam, where it is given Scriptural authority. The story of Lut (Lot) is much referred to in the Qur’an. While Sura 11: 77-82 is fairly close to Genesis 19, the other references— Sura 7: 80-84, Sura 26: 160-172, Sura 27: 54-58, Sura 29: 28-37—characterise the great sin of Sodom as being man-to-man sex. Sura 7 and 29 even claim that the men of Sodom invented sex between men. Which takes Jewish and Christian commentary on the sin of Sodom further still by placing it in Scripture, making it the direct word of God. One manifestation of the way Islam appropriates the Jewish (and Christian) prophetic tradition and reworks it.

Islam provides some revealing complexities. Being a religion of conquest whose precepts clearly sanctioned Muslim (male) conquerors enjoying the fruits (including the sexual ones) of conquest encouraged some leeway, particularly with slaves or other lower-status males. The segregation of woman also encouraged same-sex affection and activity (as it still does; Saudi Arabia is particularly notorious for the level of homosexual activity). While a hadith (tradition) of the Prophet held that:

… he who loves and remains chaste and conceals his secret and dies, dies a martyr.

This romantic martyrdom provided a sanction both for deeply religious poetry extolling contemplation of a beautiful (male) beloved as a path to the divine and for more secular poetic celebrations of male love. (Some examples here: that the classic line from the Rubaiyat of Omar Khayyam:

A Flask of Wine, a Book of Verse, and Thou

refers, in the ‘thou’, to a wine boy is an example of the “queerness in plain sight” which occurs in literary culture.) Hence Islam—with enduring similarities to the social circumstances of classical Greece—was notoriously more relaxed about same-sex affection and activity than Christendom. Until the abolition of slavery and legal dhimmitude (and so there were no longer males of safely lower status, with the partial exception of visiting Westerners) and the increasing appeal of defining itself against the West—such as resorting to a narrow Qur’anic literalism and a sense of religious superiority—led to more brutal policies.

The answer to writer and MP William Beckford’s question—provoked by a 1816 hanging of a “sodomite”:

I should like to know what kind of deity they fancy they are placating with these shocking human sacrifices.

is a creative-but-unsexual One with a penchant for wrathful extermination based on sexual horror. To the extent that, The Golden Legend tells us, He required human slaughter to Incarnate. A notion that the Aztecs—also great judicial killers of the same-sex active on the grounds that it distracted men from performing their reproductive duty to breed children for the state (though there is some dispute about the translation of the relevant Aztec texts and the Aztecs do seem to have had some religiously-sanctioned same-sex activity)—would entirely understand. (That all monotheisms anathematise same-sex activity does not mean that all anathematising of same-sex activity is monotheist: though historically most of it has been.)

Clearly, monotheism does not need natural law theory to justify anathematising same-sex activity. The prohibitions in both Leviticus and the Vendidad well predate the development of natural law theory. But natural law theory certainly aided it and gave it extra power: it is the source, as I discuss further in the next post, via Philo of Alexandria, for the reading of Genesis 19 as being all about God’s horror at sex being of the wrong form.

Once you are committed to the great sin of Sodom being not violence against guests, not rape, not contempt for the servants of the Lord, but male-to-male sex (indeed, particularly anal sex), then you are committed to two men having sex together is worse than a man raping a woman. Which, being deeply logical thinkers, St Augustine and St Thomas Aquinas both grasped; hence the ranking of sexual sin in the Summa Theologica so that sin against form is worse than a sin against people, Aquinas citing St Augustine on Sodom in support. Acceptance of Philo’s interpretation of the story of Sodom gave same-sex activity its grave metaphysical import.

And natural law theory in the hands of Philo and his later adapters could do that because of the malleability of classical natural law’s normative essentialism: its ability to draw conclusions based on citing what bits of how the world are convenient for its conclusions and dismissing as “improper” those bits that are not. With very grim consequences for a small and vulnerable human minority—those attracted to members of their own sex; but, as we shall see in my next and concluding post, not only for them.