|
Article Excerpt
Natural law theory typically is represented as a loyal and doting theoretical partner to traditional marriage. Indeed, on the standard reading, lifelong monogamous heterosexual partnerships could hardly receive a more reliable endorsement than that offered by the natural law tradition. Very broadly, the standard move among natural lawyers is to claim for marriage the status of a "basic good" and to couple that claim with the practical principle that if something is a basic good, then acts and relations that instantiate it are valuable. Such a move unites a broad swath of various figures, from Aquinas down to contemporary "new" natural lawyers like John Finnis and Robert George. Operating within a framework that sees the state's primary role as promoting basic goods, this move often inspires the further claim that the state ought exclusively to recognize and support a traditional form of civil marriage.
In this paper, I will challenge this familiar portrait of natural law as a well-matched suitor for traditional marriage. Far from supporting the privileged moral and political status of traditional marriage, I will argue, the resources of the "new" natural law actually tell against it. The new natural law argument for traditional civil marriage proceeds through four distinct theses about sexual morality and, in each case, the theory undermines rather than supports the needed claim. Importantly, nothing in my argument turns on accepting liberal premises or principles; I make the case against the new natural law position entirely on its own terms.
1. The NNL Account of Marriage and Sexual Morality
New natural law theory (henceforth NNL), as articulated in the work of Finnis, George, and Germain Grisez among others, understands the whole of sexual morality to be structured around the contrast between "marital" and all other sexual acts. Its central commitments can be represented propositionally in the form of four theses about sexual morality, ordered by the strength of their respective claims.
Weak Practical Thesis (WPT): Only marital sex acts (i.e., acts of noncontracepted penile/vaginal intercourse between monogamous lifelong spouses) can realize the basic good of marriage; hence, such acts are the highest and most valuable expressions of sexual intimacy.
Strong Practical Thesis (SPT): Nonmarital sexual acts, even when undertaken within a traditional marriage, cannot realize any basic good for the participants therein; hence, such acts are always unintelligible and valueless expressions of sexual intimacy.
Moral Thesis (MT): It is always immoral to participate in nonmarital sexual acts, or even conditionally to will them, since doing so always shows disrespect for basic human goods.
Political Thesis (PT): The value of marital sexual acts, combined with the detrimental character of nonmarital sexual acts, gives the state sufficient reason exclusively to recognize and promote traditional civil marriage.
Significant gaps exist between these four theses; one cannot move without additional premises from WPT to SPT, nor can one move immediately from either of those to MT or from there to PT's conclusion about traditional civil marriage (henceforth TCM). How, then, do the new natural lawyers go about trying to fill these gaps?
Broadly speaking, NNL employs the general method of applying
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) to facts about the human personal organism. (2)
In what follows, I will attempt analytically to reconstruct, in turn, the particular case that NNL (as represented by its several, though largely interchangeable, defenders) makes for each of the four theses in terms of supporting facts, practical reasons, and moral principles.
1.a. NNL's argument for the Weak Practical Thesis
The central claim underlying the NNL account of marriage and sexual morality is that "marriage, considered not as a mere legal convention, but, rather, as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type, is an intrinsic (or, in our parlance, 'basic') human good." (3) Two key commitments animating WPT can be separated from this focal statement and summarized in turn: (1) the NNL account of basic goods (which embody practical reasons for certain actions) and the place of marriage therein, and (2) the NNL account of the nature of marriage as a two-in-one-flesh communion (which, roughly, describes some facts about the institution).
The first commitment relies on a particular understanding of the basic goods of practical reason. According to NNL, a basic good is:
(1) Self-Evident: It "cannot be demonstrated, but equally it needs no demonstration." (4)
(2) Objective: Its "validity is not a matter of convention, nor is it relative to anybody's individual purposes." (5)
(3) Intrinsic: It is "considered to be desirable for its own sake." (6)
(4) Irreducible or Fundamental: It cannot be reduced to some more fundamental good (e.g., aggregate well-being), form of experience (e.g., pleasure), or set of experiences (e.g., happiness); it is a basic building block of practical reason.
(5) Incommensurable: It cannot be compared to or exchanged with other goods, as there is no common standard of comparison or exchange. (8)
(6) Known to People of Ordinary Experience: Identifying and appreciating it does not require any sophisticated training or special capacities or insights.
(7) Relatively Open-Ended: It is capable of being embodied in any number of commitments, projects, and actions. (9)
A good meeting all criteria is "an aspect of authentic human flourishing, and ... the principle which expresses its value formulates a real (intelligent) reason for action." (10) The practical reason embodied in a basic good may be conclusive or defeated, but it always at least makes intelligible attempts to realize the good. (11)
Finnis has defended the following list of basic goods (a list commonly accepted and utilized by other defenders of NNL): knowledge, play/ skillful performance, bodily life, friendship, aesthetic experience, practical reasonableness, harmony with the ultimate source of all reality, and marriage (importantly, this was not included in Finnis's original list described in his classic Natural Law and Natural Rights (12)). Each of these goods is purported to make intelligible (though not necessarily reasonable-all-things-considered) actions taken in its pursuit; so, for example, writing a dissertation on The Canterbury Tales can be understood and properly appreciated, even where separated from any extrinsic goals, as participating in the basic good of knowledge. (13) NNL claims that the good of marriage, when added to the original list of goods, makes intelligible a "unique type of relationship"; one that is "unified by its dual point {finis}: the procreation, nurture, and education of children, and the full sharing of life in a home," but which, controversially, cannot be reduced to either. (14)
The second commitment underlying WPT is the NNL understanding of the nature of marriage, which issues in several necessary conditions. Four are particularly worth analyzing here.
(1) Permanence: The endurance of the marital bond through time without essential change. (15)
(2) Total Mutual Self-Giving: The unqualified and exclusive self-giving across each of several relational matrices--physical, emotional, volitional, and so on. (16)
(3) Open-Ended Community: A community that contributes significantly to each spouse's needs for "mutual love, companionship, willing and loving cooperation, help, and comfort, all of which fulfill the spouses' marital good" (17) and that always is openly oriented toward the possible begetting of children; this requires never vitiating the otherwise marital character of sexual acts through contraception.
(4) Organic Complementarity: A type of unity or completion obtaining at various levels of being, including physical and personal. (18) Physically, organic complementarity necessarily relates to the function of reproduction; hence, if a union is intrinsically (rather than accidentally) incapable of organic procreation, then sexual acts within the union are nonmarital. (19) At the personal level, NNL wants to avoid what Paul Weithman describes as a "crudely physicalist account of human sexuality" by making the further claim that one male and one female complete each other more than just physically. (20) Here features like emotional and volitional complementarity and perhaps also a complementarity of domestic roles likely would be cited. (21)
A "marital" sexual act, then, consists in noncontracepted penile/vaginal intercourse between monogamous lifelong spouses that realizes the intrinsic good of marital union itself; any other sexual act is judged to be "nonmarital" in character. This initial brightline contrast between "marital" and all other acts, and the goods each kind of act is able to realize, ends up decisively shaping, to use Stephen Macedo's colorful expression, "the old sexual morality of the new natural law." (22)
The basis for WPT, then, derives from a synthesis of the NNL understanding of the nature of marriage (the "facts") and its account of basic human goods (the practical reasons), as represented in the following argument:
(1) The highest and most valuable expressions of sexual intimacy are those sexual acts that contribute to and realize the basic good of marriage.
(2) Only those acts that are consistent with the nature of marriage can contribute to and realize the basic good of marriage.
(3) Only marital sexual acts are consistent with the nature of marriage; all other acts fail to satisfy at least one of the necessary conditions for genuine marriage (e.g., contracepted sexual acts fail the open-ended community condition, "sodomitical" acts fail the organic complementarity condition, and so on).
(4) Therefore, only marital sex acts can realize the basic good of marriage; hence, such acts are the highest and most valuable expressions of sexual intimacy.
1.b. NNL's argument for the Strong Practical Thesis
According to NNL, nonmarital sexual acts not only rank beneath their marital counterparts in the hierarchy of sexual value (per WPT), but actually are claimed to be altogether valueless and, hence, pursuing such acts is thoroughly unintelligible (per SPT). Here the concept of organic unity plays an absolutely central explanatory role for NNL, for it both explains (1) why marital sexual acts are able to achieve the good of marriage (WPT) and also (2) why nonmarital sexual acts are incapable of realizing any basic good (SPT). Robert George and Patrick Lee describe how this concept figures into both theses:
In the case of the sexual act of a married couple, their act of physically or organically becoming one (organic unity) is the common good, the shared pursuit of which (unity of action) also brings about or enhances their interpersonal unity (unity of persons). But if the participants in a sexual act do not become physically or organically one, then, whatever goods they may be seeking as ulterior ends, their immediate goal is mere pleasure or illusory experience. (23)
WPT is explained, then, by the fact that the organic unity of marital sexual acts forms a common good realizable as an intrinsic aspect of the act. SPT, on the other hand, is explained by the fact that, absent the common good of organic unity, no other good is possible in a sexual act. Hence, any pursuit of sexual intimacy that fails this necessary condition of uniting the partners organically (both biologically and personally) will also fail to realize any basic good.
The NNL argument for SPT also can be represented in numbered steps:
(1) Any sexual act that fails to organically unite the partners both biologically and personally is incapable of realizing any basic good.
(2) Nonmarital sexual acts fail to organically unite the partners therein across both biological and personal dimensions.
(3) Therefore, nonmarital sexual acts, even when undertaken within a traditional marriage, cannot realize any basic good for the participants therein; hence, such acts are always unintelligible and valueless expressions of sexual intimacy.
1.c. NNL's argument for the Moral Thesis
Despite their ability to make intelligible a person's pursuit of marriage and avoidance of nonmarital sexual acts, neither WPT nor SPT, by themselves, morally prescribe specific actions, such as "one ought to marry" or "one ought not perform nonmarital sexual acts." Commands of this kind require a moral, not just a practical, principle to underwrite their prescriptions. In MT's case, a principle of respect performs just this supportive function.
Though single in nature, the principle of respect for basic goods, I will suggest, is dual-pronged. Both prongs are discernible in what is arguably the clearest statement of the full principle: "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." (24) First, in what I call the harm prong, the principle of respect prohibits acting in ways that "harm" a basic good in one way or another (I use the term "harm" here for lack of a better grouping term to describe an action that destroys, damages, impedes, or violates a good.). (25) Second, in what I call the debasement prong, the principle forbids "debasing" the intrinsic superiority of basic goods by preferring "an illusory instantiation of a basic human good to a real instantiation of that or some other human good." (26)...
|
