Natural Law Now
| Date | 01 September 1993 |
| Published date | 01 September 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01903.x |
| Author | William Lucy |
REVIEW ARTICLES
Natural Law Now
William
Lucy
*
Robert
P.
George
(ed),
Natural Law Theory: Contemporary Essays, Oxford:
Clarendon Press, 1992, xi+371 pp, hb
E30.00.
I
Why
Bother?
One could be forgiven for thinking that natural law doctrine has nothing but a past.
That past may be thought historically and sociologically interesting, charting, as it
does, the ebb and flow of theological thought and power; predating, yet being
conjoined with, the development of the modern state and its law. Moreover, a
genealogy of this body of thought, elucidating whatever influence it had or has
upon particular social practices, and the effects those practices had or have upon
that body of thought, could yield further insight into the pervasiveness of power
within both the social structure and the human or social sciences.’ Alternatively,
that past could be examined so as to show that the concerns of this tradition of
thought throw light upon other contemporary practical and intellectual problems:
ignoring our history will lead to a misunderstanding of the present. For example,
we might understand better the apparently endless perplexity and controversy
which moral judgments generate in our culture by reference to the historical
displacement of the social and intellectual conditions that allegedly make such
judgments possible and conclusive.2 Similarly, an account of the concerns of the
tradition of thought we know as natural law, and an account of the displacement of
the conditions that made particular responses to those concerns conclusive, could
provide us with a diagnosis of, for example, our apparent inability to determine
whether or not there is a moral obligation to obey the law. Both approaches bring
with them more or less explicitly formulated methodological and epistemic
injunctions, laying down the way in which our studies ought to be structured and
what results we can expect them to yield.
Both
approaches agree that our studies
ought not to track truth
-
where ‘truth’ means the attempt to seek secure
foundations for our knowledge, values and beliefs
-
but should instead report
local practices or tell edifying and empowering stories.
Though the roots of these two approaches are far from new (Foucaultian
genealogies seem to take us back to Nietzsche while contemporary accounts of
traditions owe a great deal to Aristotle and Collingwood), they are currently
*Law School, University
of
Hull.
Thanks to Patrick Birkinshaw
for
helpful comments on this essay. Of course, the remaining weaknesses are
all my fault.
See M. Foucault,
The Archaeology
of
Knowledge
(London: Tavistock, 1972) and
Discipline and
Punish
(London: Penguin, 1979).
This is the main burden
of
A.
MacIntyre’s work. He suggests that a return to an Aristotelian account
of
the virtues, and the social and cultural conditions which made such an account compelling, will lead
us
out
of
the impasse
of
contemporary ethical thought: see his
Afer Virtue
(London: Duckworth, revised
2nd
ed,
1985) chs4,
5,
6,
9 and 18, and
Three Rival Traditions
of
Moral Inquiry
(London:
Duckworth, 1990) chs
2,
5
and 9.
1
2
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enjoying a second wind in the academy. However, the majority of essays in this
collection are not
contemporary
in that sense
-
although those by Joseph Boyle
and Russel Hittinger examine the assumed conflict between natural law theory and
those contemporary ethical theories that emphasise the importance of traditions
and the virtues, while Jeffrey Stout offers an account of natural law which appears
influenced by contemporary philosophical pragmatism. The essays are
contemporary
in that they are by authors who have recently said things about
natural law and who, on the whole, share
an
assumption that the concerns of the
natural law tradition are also our concerns, here and now, as members of particular
communities defined by perhaps unique cultural, economic and institutional
circumstances. This approach to a tradition of thought is often regarded as
unhistorical, and in a clear sense it is. For without any attempt to determine the
historical, intellectual and social conditions which made the questions raised by
proponents of this tradition intelligible, and without any demonstration that those
conditions hold for us as they held for them, the assumption that our and their
questions are the same looks vulnerable. Furthermore, the hermeneutic and
epistemic problems of trying to formulate what exactly were the concerns of the
exemplars of the tradition are either ignored or given slight attention. This is the
case even in the essays most heavily reliant upon exemplars of the tradition
-
Aristotle, Aquinas and Cicero
-
by Boyle, John Finnis and Hedley Arkes. This
rather cursory approach to the history of natural law thought could be forgiven if
the essays in the volume, in their attempts to affirm and reconstruct the concerns of
the natural law traditions as
our
concerns, succeed in improving our understanding
of them.
From the evidence of this volume, it appears there are three such concerns.
First, the tradition seems often to have addressed the nature and basis of morality
in order to determine how life ought to be lived. Even if one ignores the philosophy
journals, in the belief that philosophical moral thinking does more harm than
contemporary debates about the ethics of various distributions of health
care, or about the permissibility or illegitimacy of abortion or of types of
discrimination, suggest that for us, just as for traditional exponents of natural law,
the question ‘what shall we do and how shall we live?’ is a live However,
the answers to this question considered in these essays differ from the answers of
many representatives of the natural law tradition in one very obvious way: they are
secular and not theistic.
The second concern consists of the attempt to relate answers to the question
‘how shall we live?’ to the exercise of power and authority in a community. This
concern requires consideration
of:
the legitimacy of the use of force by those
groups or institutions strong enough to exercise some
de
facto
power (such as the
Church or state); the moral claim, if any, such exercises of power have upon us;
and of the ways in which such exercises of power track justice or the good. At this
particular time, in our particular circumstances, this concern is also a familiar one.
Even setting aside the law journals (assuming legal philosophy to be as dubious as
moral philosophy), issues of whether or not we ought morally to obey the law and
3 This seems
to
be the view
of
B.
Williams,
Ethics
and
the Limits
ofPhilosophy
(London: Fontana,
1985): ‘reflective criticism should basically
go
in a direction opposite
to
that encouraged
by
ethical
theory’
(p 116).
4
The question is Tolstoi’s: quoted in
M.
Weber, ‘Science
as
a Vocation’ in
H.H.
Gerth and
C.
Wright
Mills
(eds),
From
Mar
Weber
(New York: Oxford
UP,
1958) p 143.
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1993
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