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A Brief Introduction

In March 2013, First Things published an essay by the noted theologian David Bentley Hart highly critical of natural law theory and its role in current moral and social disputes.1 A remarkably gifted writer and polemicist widely known for The Beauty of the Infinite: The Aesthetics of Christian Truth, his essay garnered much attention, revealing significant fault lines between and within various theological schools.

According to Hart, whatever its pedigree, and however much his own theology affirms similar conceptions of the cosmos, he rejects a “style of thought whose proponents . . . believe that compelling moral truths can be deduced from a scrupulous contemplations of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world.”2 Such, declares Hart, “is a hopeless cause.”3 In attempting to converse with secular society in neutral terms, or at least terms acceptable to the secular mind, natural lawyers insist “that the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation,”4 an evidentness Hart believes not present or discernible, partly because of the knock-out delivered by David Hume’s claim that value statements—an ought—can never be derived from factual statements—an is—and partly because nature is interpreted from within a cultural tradition. Consequently, natural law is acceptable if and only if one “has prior supernatural convictions” grounding the law, so any attempt to use natural law as a purely secular and rational language “can never be much more than an exercise in suasive rhetoric (and perhaps something of a pia fraus).”5

Hart’s proponents were quick to run with the notion of pious fraud. Writing in support, Michael Potemra suggested that boosters of the natural law argue “in a form along the following lines: The moral desiderata of the American political Right are not an attempt to impose religious views in the public sphere, but a desire to make public morality conform to truths accessible to pure reason.”6 But, he continued, if these truths are so easily accessible, even self-evident, “why do so many people deny them” unless we appeal to the false, not to mention unfair, accusation that either “the deniers have their minds darkened by sin” or “that the deniers are just plain stupid.”7

Accounting for your position’s failure by calling your opponents wicked or stupid lacks credibility, and others in the broader conservative milieu were quick to express similar reservations. Noah Millman doubted our grasp of human nature: “it’s supposed to be an instance of deriving social ‘oughts’ from a natural ‘is’ . . . [but] there’s another step to the argument: what is the epistemology that is necessarily prior to the determination of what this natural law is? In other words, how do we know what our essential natures are?”8 Making a similar point, Rod Dreher suggested that natural law persuades only those already committed to the “metaphysical dream” undergirding the position, and that “you have to believe so that you may understand.”9 Alan Jacobs made a similar point: “Is it really the best we can do to say ‘You fail to meet my standards of rationality; therefore I refuse to debate with you further’?”10

Not at all deterred by the criticisms, Edward Feser responded to Hart on both the form and substance of the argument, claiming that Hart “equivocates insofar as he fails to distinguish two very different theories that go under the ‘natural law’ label,” and that the ambiguity is “essential to his case” for if clarified “it becomes clear that with respect to both versions of natural law theory, Hart is attacking straw men and simply begging the question against them.”11 Distinguishing between classical and new natural law, Feser, who sides with the classical account, articulates just how diverse contemporary natural law happens to be, and how undifferentiated and un-nuanced the critics are with respect to the theory:

Where the two approaches differ is in their view of which philosophical claims, specifically, the natural law theorist must defend in order to develop a system of natural law ethics. The “old” natural law theorist would hold that a broadly classical, and specifically Aristotelian, metaphysical picture of the world must be part of a complete defense of natural law. The “new” natural law theorist would hold that natural law theory can be developed with a much more modest set of metaphysical claims—about the reality of free will, say, and a certain theory of practical reason—without having to challenge modern post-Humean, post-Kantian philosophy in as radical and wholesale a way as the “old” natural law theorist would.12

More particularly, while Hart’s objection rests on the force and persuasiveness of Hume’s is/ought distinction as negating Aristotelian final causality, commitment to which, Hart assumed, was a sine qua non for natural law, Feser explains that one major difference between the classical and new accounts 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 tradition independence, denying that practical reason is “based on and limited by the values lived within a community,” claiming that “much of moral thought is not essentially dependent upon the lived values of a moral community,” even though the third sense maintains that at least some principles or virtues are “not accessible to those who do not share the life of a community.”26

We can begin to ascertain some of the tensions in contemporary thought, for as Hart claimed that natural law required cultural formation and supernatural commitments considered bizarre within the “the modern conceptual world,” so might Hauerwas suggest the priority of the story-formed community, or Mohler that “the gospel of Jesus Christ” is “where we begin and . . . where we end.”27 Strange bed-fellows, perhaps, but all equally committed, albeit in their own distinct ways, to the inadequacy of natural law in the face of the distinctives of theology, the church, and the Gospel, distinctives which the natural law not only cannot include but which are potentially violated by natural lawyers, even if unintentionally.

Modes of Meaning and the Nature(s) of Intention

In addition to Boyle’s three senses of tradition-dependent rationality, the last of which he judges foreign to natural law accounts, I suggest a fourth sense, one which on face seems rather at odds with the universalism of natural law, what I’ll term the modes and stages of meaning. Meaning itself is tradition dependent, or historical, because meaning depends upon the operations of concrete human subjects who always operate as historical. This statement is rather more than the first sense identified by Boyle, for the claim here is not simply that the same moral principles are expressed in disparate cultural forms, something analogous to “dog,” “Hund,” and “le chien,” all of which mean the same thing. In other words, the claim is not that the differences in legal systems depend upon a deeper underlying correspondence of first principles. (I think that’s true, it’s just not what the fourth sense intends to convey.) Instead, the very meaning and way that meaning is formed changes in time and culture, thus even concepts such as “nature,” or “law,” or “reason” do not mean the same thing in all places and times, nor is the way that humans make those meanings identical, although this is not, in any way, to suggest the absence of invariant, transcultural, or normative precepts for how meaning, in its various modes, is or ought to be made.

As an example: The meaning of nature differs quite dramatically in history, as does the way human intelligence functions to form the various meanings.28 For Aristotle, “nature” is essentialistic, universal, necessary, and unchanging in its defining properties. Correspondingly, “nature” is comprehended through episteme or science, which is itself deductively necessary, derived from certain and self-evident first principles, unchanging in its conclusions or methods, governed by syllogistic logic, and strictly delineated in terms of object and governing principle. Such an account is most definitely not what is meant by “nature” in a philosophy of emergence, governed not by logic but by statistical probability, little concerned with essential properties but with patterns and functions of recurrence, and admitting less of universal necessity than of correlations, tendencies, and directions. To put it another way, Boyle’s first sense suggested different terms for something universal, like nature, whereas I mean that a common term, say “nature,” might be meaningful in radically disparate ways. Aristotle, Descartes, Newton, Leibniz, a caveman, a modern person with little scientific background, Einstein, and Bohr—they might all use the term nature, perhaps even recognizing a historical continuity of the term itself (Boyle’s sense 2), but do they mean the same thing or utilize the same tools of thought in governing meaning?

For each, nature means some variable sought by the intellect, an x expected to be discovered at the end of the relevant inquiry, but the meaning of x and the way inquiry unfolds is not universal—“nature” seems to lack a nature other than as the heuristic, the “unknown towards which inquiry is heading.”29 And yet, or so I’ll claim, there is something universal, fixed, abiding, and normative governing the inquiry, although history itself would be relevant to figuring out how.

Very briefly here, with more detail in subsequent chapters, Lonergan demonstrates the historicity of knowing, including the way knowing functions within stages of meaning. For Lonergan, knowing is the result of a series of operations—experiencing, understanding, and judging—rather than any single operation. While an empiricist may confuse experience with knowing and the idealist reduce knowing to understanding, fully human knowing includes the entire nexus of operations. The operations themselves, while invariant constants of human knowing, can be directed, synthesized, or coordinated in a variety of different patterns, and thus the same operations admit of quite distinct exigencies. If nature functions as a heuristic—the unknown x to be attained when one knows—our own experience provides ample evidence that we seek the unknown in a variety of ways. The car mechanic, the stock broker, the baseball pitcher, the psychiatrist, the theologian, or the theoretical physicist all have some unknown occupying their attention, and all seek the elusive x which, when known, provides them what they are seeking to know. The what or x differs—what is causing that odd noise in the fan belt, what is a good value for this equity, what mix of speed and location will strike the batter out, what therapy will bring wholeness to the client, what kind of particle could travel faster than light?—and yet each utilizes experience, understanding, and judgment to arrive at an answer, albeit in widely different exigencies or patterns of meaning. As Lonergan puts it, “[d]ifferent exigences give rise to different modes of conscious and intentional operation, and different modes of such operation give rise to different realms of meaning.”30

The first distinction is that between common sense and theory. Both realms of meaning, for the most part, attend to the same objects from differing viewpoints.31 Common sense considers objects as they relate to us, the world of persons and bodies out there for me to observe and interact with. Common sense brings with it a descriptive realm of meaning. The water coming from this tap is hot (or so it seems to me), my uncle is short (or in relation to me), and the car is speeding toward me (thus I jump back). These descriptions do not arise from some rarified method known only to experts, but still real knowing is involved. We name these in ordinary language taught to the members of the linguistic community, but the words serve not to grasp or explain the Form of the object, but rather to facilitate communication and use relative to us.

As an example, Lonergan highlights the confusion of Socrates’s interlocutors. They really did know how to navigate the marketplace or gymnasium in Athens; no one thought them clueless or without knowledge, and they used the words in the proper and conventional ways, but Socrates pushed a different mode. Dissatisfied with conventional use, he asked for definitions—for the nature of justice or courage or piety—accepting only accounts which were universal and explanatory. Consequently, “the systematic exigence not merely raises questions that common sense cannot answer but also demands a context for its answers, a context that common sense cannot supply or comprehend. This context is theory.”32 For theory, the pattern of questions and judgments does not describe things as they relate to us, but explains things in relation to other things. Rather than suggesting the water is “hot,” as in common sense, theory creates units of temperature, comparing the water to a scale of 0 to 100 degrees Celsius rather than to my sense perception. So, too, rather than suggesting the car is moving “fast,” theory calculates velocity by the relation of data to other data (v=d/t). Remember learning the difference between weight and mass in your early schooling, and how puzzling that was to your ordinary experience? That’s the difference between common sense and theory.

We find the distinction in many domains of human inquiry, not just science. Consider the difference between the Trinity of St. Patrick’s shamrock and the homoousious of the Creed, or how we explain fairness to a child (“Would you feel good if they took your toy?”) and principles of contract in the first year of law school. In each case, relatively similar objects are addressed, and perhaps even by the same people, but in quite distinct modes of inquiry. And as the mode of inquiry functions differently, so too does meaning, and so too does the heuristic of expectation change, the unknown but sought x which guides the query, the “nature.”

Even noting the distinction between common sense and theory engages in a distinct mode, namely, to advert to the way(s) one’s own intellect operates and functions to make and control meaning. Consequently, one “is confronted with the three basic questions: What am I doing when I am knowing? Why is doing that knowing? What do I know when I do it?”33 In asking questions like this, one’s intelligence turns from the objects of common sense and theory to oneself as an “object” of study, or at least to one’s own intellectual performance and operations as “objectified,” and thus the realm of interiority, the third stage of meaning.34 Interiority is noetic exegesis, when consciousness becomes explicit to itself, when one’s own consciousness is studied from within, so to speak, from the perspective of oneself as a knower, and when one’s inquiry is about inquiry itself in a process of self-interpretation.35

The distinction between common sense and theory is significant in natural law, for that distinction separates naïve physicalism and naïve psychologism from a theoretical anthropology.36 So, too, does the realm of interiority distinguish contemporary versions of natural law, rooted in a first person perspective, from the classical versions rooted in theoretical anthropology and its concomitant metaphysics of the person. Upon these distinctions all my arguments rest, and so much more explanation is to be expected in the following chapters.

As much as I borrow from contemporary natural law’s use of interiority, the thrust of the book is to sketch an outline for natural law from a fourth realm of meaning, what Lonergan terms transcendence.37 His articulation of this realm is somewhat brief, written after severe illness and more hinted at than actualized. He does tell us, though, that such meaning moves “beyond the realms of common sense, theory, and interiority and into the realm in which God is known and loved,” or into a realm of what he terms “religious conversion,” the “flooding” of our hearts by God’s love and the fundamental remaking of our very selves and our consciousness.38

Consequently, we find not one natural law account but many, and those accounts can be differentiated not only by variations of content or articulation—this thinker says that, but that thinker says this—but more fundamentally by the realms of meaning in which differences operate and are formed. Such differentiation is, of course, fairly complex and demands “a rather highly developed consciousness” or phenomenological attunement.39 One has to have appropriated one’s own intellect.

The Argument

Following the hints made by Feser and Anderson, I suggest that many of the disputes in contemporary discourse about the natural law suffer from a lack of differentiation, thus confusing and conflating various accounts, merging together what should be distinct, and using arguments which may very well respond to one account as if they respond to another, even though they operate in widely different modes of meaning.

I claim, too, that the usual Protestant objections against the natural law are similarly undifferentiated, thus not particularly responsive to contemporary natural law, and can be accepted by natural law in the mode of interiority, and sublimated in transcendence.

To summarize the arguments I hope to demonstrate:

1. Natural law operates within stages of meaning, and thus there are natural law accounts articulated from the standpoint of common sense, theory, and interiority. Each mode of meaning brings different emphases and implications for the account.

2. The usual Protestant objections to natural law—the “Protestant Prejudice”—are objections directed towards natural law as it developed within the theoretical mode of meaning, and as such are reasonable and sensible objections, even if not entirely persuasive.

3. Contemporary natural law—here I’ll include the work of John Paul II, Martin Rhonheimer, the so-called new natural law (NNL), and the cosmopolitanism of Bernard Lonergan—have moved beyond the theoretical mode into interiority, although the various thinkers express this in various ways: perspective of the acting person, first person accounts, subjectivity, internal point of view, phenomenological experience, intentionality, and so on. While these versions are not reducible to each other, and in fact disagree on several important issues, particularly in application, all operate from within the mode of interiority rather than theory.

4. Natural law understood from the mode of interiority is quite able to include the effects of sin on intellect and will, the role of grace, the importance of community, history (including salvation history), and the centrality of the Gospel. For Protestants to continue the usual objections without differentiation is to commit a straw man, attacking natural law as theory as if this defeats natural law as interiority.40 To be sure, there are able and competent proponents of classical or theoretical natural law and by no means do they admit defeat to either the Protestant objections or those of contemporary natural law. In no way will I claim to have answered or refuted classical positions, but insofar as Protestants continue to argue the way they have, they will not be responding to natural law as it is currently understood by many schools.

5. An account of natural law incorporating history, sin, grace, and Gospel remains natural law, but it is natural law opening to a further mode of meaning beyond interiority. I am here attempting to articulate the broad outlines of natural law in a new mode, namely, from transcendence, the perspective of love.

A Final Word

In the following pages thinkers from quite distinct modes of thought and vocabularies are placed into conversation. In all of this, I can claim to represent no particular school, for while I am indebted to classical natural law accounts, I’m more sympathetic to the work of John Paul II, Martin Rhonheimer, and the NNL theorists, borrowing heavily from them all; but I don’t claim any of these schools or thinkers would endorse my arguments or understand the modes of meaning as I do. My thought is enriched by them all, and I gratefully acknowledge my debts, just as I would be delighted if they found my arguments helpful, but in the end I take their arguments down different paths. Of course, the major influence in all my work is the late Bernard Lonergan (1904–1984), a Jesuit theologian-philosopher whose work on noetic exegesis governs the entirety of this project. As in my previous writings, I assume that Lonergan is not well known, and so I view this as a brief introduction to some aspects of his work, even as I take his thought into new conversations and directions.

In the end, I want to claim that natural law is more complicated in its varieties than is often thought, but that since the natural law is a work of human reason, and since human reason is also governed and ordered by love (ordo amoris), natural law is best grasped insofar as love is grasped. The human person can best be understood in terms of love, and since love is bent by sin and healed only by grace, an account of natural law can certainly include those very aspects which the usual Protestant objections find lacking. But before we get to that love which reveals the very meaning of the human, we start with common sense and with theory.

1. Hart, “Is, Ought, and Nature’s Laws,” 71–72.

2. Ibid., 72.

3. Ibid.

4. Ibid.

5. Ibid., 71.

6. Potemra, “A Bracing Challenge to Conservative Natural-Law Theorists.” For my responses, see Snell, “Understanding Natural Law” and “Natural Law Is neither Useless nor Dangerous.”

7. Ibid.

8. Millman, “What’s Natural about Natural Law?”

9. Dreher, “Why Natural Law Arguments Fail.”

10. Jacobs, “More on Natural Law Arguments.”

11. Feser, “A Christian Hart, a Humean Head.” For the extended debate, see Hart, “Nature Loves to Hide,” 71–72, and Feser, “Sheer Hart Attack.”

12. Ibid.

13. Ibid.

14. Anderson, “Why Natural Law Arguments Make Evangelicals Uncomfortable,” para. 5; Girgis et al., “What Is Marriage?” 245–87. See also, as examples, Carter, “Why Aren’t Natural Law Arguments More Persuasive?”; Knippenberg, “Evangelicals and Natural Law Update.”

15. Mohler, “Moral Argument in Modern Times,” para. 46.

16. Anderson, “Assorted Thoughts on Evangelicals and Natural Law,” para. 4.

17. See Budziszewksi, Written on the Heart, 179–219; Budziszewski, What We Can’t Not Know, 19–53.

18. Lewis, Abolition of Man, 40.

19. Finnis, Natural Law and Natural Rights, 24.

20. Ibid., 25.

21. George, In Defense of the Natural Law, 254, also 249–58.

22. Boyle, “Natural Law and the Ethics of Traditions,” 5–6.

23. Ibid., 6. Lewis made the same claim; see Abolition, 44–48.

24. Ibid., 7.

25. Ibid., 9–10. See, as examples, Hauerwas, A Community of Character: Toward a Constructive Christian Social Ethic; Kallenberg, Ethics as Grammar: Changing the Postmodern Subject; Wells, God’s Companions: Reimagining Christian Ethics; Yoder, Body Politics: Five Practices of the Christian Community Before the Watching World.

26. Ibid., 16, 11.

27. Mohler, “Moral Arguments,” para. 46.

28. Lonergan, A Second Collection, 43–53.

29. Lonergan, Understanding and Being, 64.

30. Lonergan, Method in Theology, 81.

31. Ibid.

32. Ibid., 82.

33. Ibid., 83. See also Lonergan, Insight, 343–71.

34. Ibid., 83.

35. Snell, Through a Glass Darkly, 78–97; Snell and Cone, Authentic Cosmopolitanism, 15–43.

36. Snell, “Protestant Prejudice,” 21–30; Snell, “Performing Differently.”

37. Lonergan, Method, 83.

38. Ibid., 83, 105.

39. Ibid., 84.

40. This is an argument I posited in “Protestant Prejudice,” 21–30. See also my “Thomism and Noetic Sin, Transposed,” 7–28.