Why Natural Law is a Bait and Switch

Mr. Wired and I have had these discussions over many years, but this seems a good time to export them into the blogosphere.  I’m a lawyer, he’s not, but he is a law buff, and also a computer maven with a very logical mind.  He looks at law as a tripod upon which any complex society must rest:

Leg #1:  the basic legal code.  This is the set of rules without which no group can function for more than a few years without falling apart.  You know them as well as anyone:  don’t murder, don’t steal, don’t rape, all of that good stuff.

Note that these words are terms of art with definitions that depend on the social context. “Basic” does not mean “too obvious to need explanation.”

Thus,  “murder” is not coextensive with “kill.”  In different societies, some kinds of homicide are permitted and other kinds are forbidden.  A forbidden homicide is a murder. In most societies today, killing in war, self-defense, and defense of others is not murder.

Similarly, “steal” is not coextensive with “take.”  Different societies have different concepts of what can be owned and therefore what can be stolen.  The difficult relationship between the Native Americans and the European colonists resulted from the fact that, in many Native American cultures, land could not be owned, or stolen.  In the pre-Civil War South, a runaway slave was stealing himself from his master/owner.  Obviously that is no longer part of our basic legal code.

And “rape” is not coextensive with “non-consensual sexual intercourse.”  In most advanced countries, even consensual sexual intercourse, if it involves a minor  (how old is a minor? Depends on the social context.  In the US it varies by state), is rape; on the other hand, until very recently, a wife whose husband had intercourse with her against her will was not considered the victim of a rape.  You get the idea.

The point is, a group has to agree on at least the basic principles in order to survive as a group at all.  This means that they have to agree both on not murdering/stealing/raping, and on the definition of murder/theft/rape in the context of their group.

Leg #2:  ethical code—these are the refinements to the basic legal code that make social functioning easier and smoother.  For instance, if you damage somebody (even unintentionally), you should compensate them enough to restore them to the position they were in before the damage, or as close to it as possible.  There may be many ways to accomplish this goal, and different societies may choose different means.  In general, there is likely to be one set of ethical mechanisms per social group, even though the group may recognize that there are other ways to accomplish the same goal, in other groups.  For instance, the common law legal system presumes that such compensation is made with money damages.  In other societies, restitution may actually involve physical objects or even physical labor.  But the common purpose is easily discernable.

Leg #3:  (and this is the really tricky one) the moral code.  These are generally formulated by religious or sub-cultural groups within a larger society.  So that society is likely to have multiple moral codes, which can and often do conflict.  Phylogenetically, each one probably arose as a basic legal code in a smaller and less complex society.  As those societies got amalgamated into larger states and regions, they had to figure out how to coexist with their neighbors.  “Who is my neighbor?” became the basic question long before the Gospel of Luke raised it.

Thus, observant Muslims do not drink alcohol.  Can they forbid their non-Muslim neighbors from making, selling, and drinking booze?  Observant Jews do not work on Saturdays.  Can they require their Christian neighbors to shutter their businesses on that day?  Observant Catholics who have been civilly divorced cannot remarry.  Can they impose the same strictures on their Protestant neighbors?

Note that this system is not a hierarchy.  All three of these legs of the tripod are necessary, and equally necessary, to civilized life within a 21st-century culture.  Trying to figure out which heading a particular rule or law or regulation belongs under is a great college-bull-session or cocktail party game with occasionally useful results.  But right now, the impact of morality on law and ethics is the most salient and dangerous aspect of this system.

There are actually two sets of questions. First, how can a multi-cultural or multi-religious polity decide whose morality (if any) to enforce on all of its citizens?  The First Amendment of the US Constitution says, essentially, it can’t, and shouldn’t try.  The Supreme Court has done an end run around this rubric, by allowing certain provisions of moral codes to reinvent themselves as ethical codes.  Thus, it has ruled repeatedly that local jurisdictions can prohibit or restrict businesses from operating on Sunday, not because Sunday is the Christian day of rest (that, obviously, is a moral code) , but because everybody should be able to get one day a week off from work, and it’s more convenient for everybody if we use the one that is common to the largest number of people.  That’s an ethical rule. Therefore, says the Supreme Court, a civil society can impose it on everybody.  So far, the Supremes have felt free to ignore the collateral damage done to members of groups that are obliged to refrain from working on some other day too, and therefore have to compete with workers and businesses who can put in one more day of work per week.  At the moment, in most of the US, it doesn’t matter too much.  Most employees get two days off per week, and most localities have given up on Sunday closings anyway.

And second, how does a religious or cultural group, governed by its own basic legal code, become part of a larger polity and allow its code to become one of many group moralities within that polity?  There are scholars who claim that Islam, with a few isolated exceptions, has never made that transition at all.  Certainly there are schools of Islamic law that forbid a Muslim to live in a state ruled by non-Muslims.  There are also orthodox Hindus who claim that any Hindu who leaves India automatically becomes unclean.  On the other hand, the Bible (both the Hebrew and the Greek scriptures) presumes that its protagonists live in a world full of Others.  Much of its legislation deals (often in contradictory ways) with proper relations with those outsiders.  Arguably, that means that most of our models for manageable relations between basic legal codes and subgroup moralities come from Christian and Jewish history.  Which leaves Muslims free to complain that “we” are imposing “our” legal models on “them.”

You may reasonably ask where the “natural law” of the title comes in.  The phrase turns up in most philosophical writing beginning as far back as classical Greece.  We Americans are most familiar with it in the Declaration of Independence, where Jefferson alludes to “the laws of Nature and of Nature’s God.”  But probably the other place it turns up most often these days is in Catholic theology.  It is the purported source of the Catholic prohibition on birth control, and on abortion.  Natural law is another way of saying “everybody knows.”  As Mark Twain pointed out long since, much of what “everybody knows” isn’t true.  But as long as the Catholics can claim that their version of natural law is obvious to everybody, including non-Catholics and even non-Christians, then they can also argue that everybody is bound by it.  It is not merely the moral code of a religious subgroup, but governs all of humankind.  They came to this conclusion back when anything derived from Aristotle (like the notion of natural law) was believed to be universally applicable.  In fairness, it was easier to believe this back in the late Middle Ages, when Aristotelian texts found their way into European universities by way of Jewish and Muslim translations and commentaries.

The battle over birth control has subsided to a minor skirmish over the last 40 years. But the battle over abortion, as Dr. Tiller’s murder at the door of his own church tragically underlines, is still raging.  Equating abortion with murder works only if you equate the fetus with human life.  But what kind of decision is that?  It isn’t a scientific decision. A scientist can tell you what stage of life a fetus is in at pretty much any given moment, and can tell you that its genome is human. That’s not the same as being able to tell you whether, or when, it is a “human life” with all of the rights and obligations included in that definition.  That’s a political decision, and varies from one religion or sub-culture to another.  But a scientist can certainly tell you, without a moment’s hesitation, that an acorn is not an oak, and an egg—even a fertilized egg—is not a chicken.  Anyone who tries to define an acorn as an oak, or an egg as a chicken, is operating on some agenda other than science.

Hardline feminists have concluded that the “pro-life” agenda is mostly about oppressing women.  Certainly that is one consequence of enforcing anti-abortion moral rules as if they were part of the basic legal code. There are plenty of other ways to look at the pro-birth program.  Arguably, it’s anti-sex, with all the psychological and artistic corollaries of that lifestyle.  And pro-overpopulation, with all of the economic and ecological consequences that entails. And, judging from what happened in Rumania during Nicolae Ceauşescu’s reign, when the laws forbidding contraception and abortion were very strictly enforced, but the economy made child-rearing prohibitively expensive for most working people, it is anti-child.  Most of the children produced by this evil confluence of political and economic forces ended up vegetating and ultimately dying in orphanages.

An increasing number of liberals, especially among religious thinkers, are trying to raise the anti-abortion rules to the level of an ethical code.  President Obama seems to take this view.  Reduce the demand for abortions, by reducing unintended pregnancies and by making childrearing less costly to working parents, he suggests.  I might even consider going further, turning the ethical approach into a basic legal one:  thou shalt not unduly burden the parents of the next generation, if thou art at all serious about having one.  Give it a thought.


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