In a recent post at The Josias, “The New Natural Law Theory as the Source of Bostock’s Error,” James Berquist analyzes a particular case of the general mistake made by the “new” natural law theory. The core of his philosophical criticism of the jurisprudence of Bostock lies in the following error:
Gorsuch’s mistake, which is absolutely typical of the NNL theorists in general and Finnis in particular, is that he attends to reality as if things existed in reality in the same way they exist in thought. In our thoughts, we can abstract and separate things that cannot be separated in reality. The NNL theorists and, again, Finnis in particular tend to treat of things separated in thought as if they could be separated in reality. This can be a danger in speculative understanding, to be sure, but it is deadly in questions of motivation, action, and practical reasoning in general. For we can separate good things in thought and then treat of their goodness or desirability as if they could also be parceled out, as it were, according to the separations or abstractions in our mind.
That is, as Berquist explains later in the essay, “The NNL bases action on the conceptual good rather than the final cause,” such that by their account “the good that grounds action is the good abstracted.”
It seems to me that this deepens and explains a critique that I have made of the new natural law theory, focusing on the same passage in Finnis’s Natural Law and Natural Rights, namely: “One can shift one’s focus, in this way, one-by-one right round the circle of basic values that constitute the horizon of our opportunities.” In “Some Mistakes Due to What Is Per Accidens” at Thomistica, I argued that Finnis’s attempt to undermine the hierarchy of goods
is to argue by fallacy of the accident. It is, of course, necessary that every actual choice occur in particular circumstances. That is, when we make actual choices we must “focus” our attention upon one good rather than another and see that, in the given circumstances, that good is more choiceworthy. Someone failing to choose to save her friend’s life—provided she is able, etc.—and instead choosing to contemplate a certain mathematical theorem whilst ignoring her friend’s plight would be a grave moral failure. More generally, it is per se to a good as actually chosen that it be an object of our will in concrete circumstances. However, the circumstances are clearly not per se to that good, otherwise that good could not exist in other circumstances. Finnis’ argument, through its use of the phrase “focus on it” in relation to various human goods, occludes the actual fact that his argument hinges upon the concrete context, or circumstances, of a choice. These require that we focus on, weigh, and decide upon the goods presented to us by those circumstances.
Berquist’s analysis of the mistake, however, shows a deeper cause as to why this mistake of the per accidens is present. The cause is that the new natural law position “[claims] that action is rooted not in being as it is in things, but rather as it is in the mind.” That is, the mode in which the good exists in the mind and the univocity erroneously attributed to the descriptions based upon that mode is per accidens to the nature of the good in reality. And the good exists in things before it exists in the mind, and as Berquist emphasizes, it is only a final cause of our actions insofar as it exists in things.
It seems to me this also explains a phenomenon observable in many writings of the new natural lawyers. That is, while accepting as valid the critique made by those defending the naturalistic fallacy, they also “[invoke] content-rich theoretical knowledge to defend propositions about basic human goods that are otherwise claimed to be self-evident,” as Fr. Joseph Koterski observes. They affirm in their actions of defending their theory what they wish to deny in their theory. If Berquist is right, as it seems to me that he is, then it would make sense for an overly abstract account of the good to take as necessary extensive factual descriptions and theoretical analyses of those goods.
In the same review (of some of the work of Professor Robert George), Fr. Koterski remarks:
Now, on the question about the need and the permissibility of using theoretical knowledge to arrive at knowledge of moral obligation, there has been a great impasse in the scholarly debate between the traditional and the new natural law camps. Some of the quarrels are reflected in the extremely courteous and fair-minded reports of the position of George’s opponents such as Russell Hittinger, Henry Veatch, and Ralph McInerny. But I wonder if a resolution here might not come by making a better distinction between the sort of knowledge needed by the moral agent as opposed to the sort of knowledge needed by the moral theorist. Traditional natural law theorists have never claimed that the individual moral agent needs elaborate and sophisticated theoretical knowledge of anthropology and metaphysics in the way that the moral theorist does when trying to formulate a science of ethics. The knowledge of nature which a moral agent needs may come from within by way of natural inclinations but there is still need for reflection on these inclinations in the light of experience (one’s own and those of others in one’s community), and this reflection cannot be adequately described as the work of practical reason but is an exercise of theoretical reason that can be put in service of practical reasoning. For George to speak of practical judgment as affirming things like the self-evidence of the first principle of practical reasoning or the incommensurable goodness of the basic human goods is confusing an act of practical reasoning with an act of theoretical reasoning about practical reasoning.Joseph W. Koterski, “On the New Natural Law Theory.” Modern Age 42, no. 4 (2000): 415–18, p. 417.
In this connection, one could also consult Justin Matchulat’s recent article “Thomas Aquinas on Natural Inclinations and the Practical Cognition of Human Goods: A Fresh Take on an Old Debate,” which engages with Steven Jensen’s Knowing the Natural Law: From Precepts and Inclinations to Deriving Oughts. Also relevant here is Steven Long’s article in the 2013 National Catholic Bioethics Quarterly (13.1), an issue devoted particularly to criticisms of the new natural law theory (a reply was mounted in 2019 in the same journal), as well as Augros and Oleson’s article later that year.
I conclude with Long’s judgment, which echoes the error Berquist highlights and then indicates the gravity of this error:
Thus, it must be said that the NNLT reasoning offers little to no improvement whatsoever over the proportionist or consequentialist account, save that it is less overt and so perhaps piously obscures the enormity of the derogation of the moral law that it represents. The intentionalist account of action theory is deceptive inasmuch as it allows use of the language of “intrinsic evils” while nonetheless construing this language in such a manner that in fact anything—subject only to an agent’s own self-description of a proposal for action—may be done. That is to say, in the NNLT account, only the cognitive proposal of the agent and not the deliberately chosen causality of the action provides moral definition. This is the result of adopting a logicist rather than realist starting point in one’s object theory. Indeed, it is a speculative error with practical implications, the very thing that the NNLT maintains to be impossible but which is the wellspring of its many errors.Steven Long, “Fundamental Errors of the New Natural Law Theory,” The National Catholic Bioethics Quarterly 13, no. 1 (2013): 105–32, p. 130.