The American Interest
Religion & Other Curiosities
Published on July 30, 2014
Natural Law A Vatican Work Sheet

It is believed by many that the only alternative to natural law is moral relativism. This a misleading idea. One may acknowledge the empirical fact that all moral judgments are relative in that they are determined by location in time and place. Nevertheless, this does not mean that moral judgments cannot themselves attain a certainty which surpasses science itself.

On July 12, 2014, The Tablet carried an article by Charles Curran on preparations for the Extraordinary Synod on the Family, to be convoked by Pope Francis in Rome this coming October. A questionnaire had been sent to bishops all over the world, asking how the faithful thought about issues of family and sexuality, with recommendations on how to respond to the reported difficulties. The Vatican has just published an instrumentum laboris (“Work Sheet”), summarizing the findings and making recommendations of its own on how the teachings of the Church could best be effectively conveyed. According to Curran, Catholic progressives will be disappointed that the document simply repeats and reaffirms the teachings of the Magisterium (the Church’s authoritative body of doctrine) on matters such as indissolubility of marriage, non-marital cohabitation, same-sex unions—and contraception (arguably the issue on which the Church is most at odds with just about anyone else in Western societies). The disappointment is a bit premature: After all, the instrumentum was asked to propose an agenda for the Synod, not to preempt its conclusions. Curran doubts that any radical outcomes are likely, beyond greater pastoral flexibility in adapting the teachings to local or individual circumstances (which is very much in line with Francis’ statements on such matters). Contraception has been a divisive issue both within the Catholic Church and in its relations with the outside, ever since 1968 when Paul VI in his encyclical Humanae vitae authoritatively laid down the rigid stance on contraception which characterizes the Catholic position today. The issue has again become politically salient in this country by the clumsy effort of the Obama administration to force Catholic institutions to cover contraception in the health insurance offered to their employees, and by the recent Supreme Court decision in the Hobby Lobby case extending the “religious exemption”, granted (reluctantly) by the administration to some religious organizations, to some “closely held” corporations (in this case held by one pious family). Curran is hardly an uninvolved bystander. He is a Roman Catholic priest and theologian, a vigorous critic of Humanae vitae and other conservative positions by the Church. In 1986 this got him removed from the faculty of the Catholic University in Washington; he is now the Elizabeth Scurlock Professor of Human Values (great title!) at Southern Methodist University in Dallas.

The instrumentum covers a large number of issues. Contraception is probably the most questioned and ignored in practice by Catholic lay people. It is all the more important that on this issue, as with all others concerned with marriage, gender and sexuality, the claim is made that the Church not only teaches its specific beliefs but that these are grounded in natural law. Supposedly the “openness to life” (that is, to procreation) is intrinsic to the grounding of marriage in the “order of creation”. Thus these beliefs apply in principle not only to Catholics but to all human beings with the gift of reason. If “natural law” is, as the Apostle Paul thought, “written in the heart” of people everywhere, it is exceedingly difficult to verify empirically. It is noteworthy that Paul VI based his encyclical on the minority report of the commission set up to deal with the issue of contraception; the majority took a much more nuanced position. Not surprisingly, Catholic social teachings can be interpreted quite differently. Take another important encyclical in the history of Catholic social thought, the encyclical Quadrogesimo anno, issued by Pius XI in 1931. Its assertion of the right of workers’ organizations served to legitimate the “corporate state” in fascist Italy, Austria and Spain in the 1930s, but also the development of democratic labor unions in the United States about the same time.

The idea of natural law has a very long history, from Greek philosophy to medieval scholasticism to the application of this idea by the Roman Catholic Church to the moral dilemmas of the modern age. I am not competent to present this history in its fascinating richness; even if I were, this blog is not the right place for it. Instead, what I will now do is two things: First, I will try to illustrate the problematic quality of the idea by looking at a thinker far removed from our present concerns—the Chinese philosopher Mencius (Mengzi), who taught a version of natural law in the 4th century BCE. [This is what the German playwright Bertold Brecht called Verfremdung/”bestrangement”—using the unfamiliar to perceive the familiar.] And second, I will compare the issue of contraception (on which hardly anyone agrees with the Catholic view) with the issue of slavery (on which today just about everyone agrees).

Mencius gives this example: If a small child is tottering on the edge of a well, even the most hardened criminal will be impelled to pull the child back to save it from drowning. Is this really so? There may be psychopaths who enjoy the spectacle of watching a child drown. More significantly, the reaction of the bystander may be different if the child is from his own tribe and if the child is from another tribe, perhaps an enemy. If Mencius had been familiar with modern biology, he might have said that a tribe in which small children are unprotected will not prevail in the evolutionary struggle for survival. But such a biological imperative does not apply to the children of an enemy tribe. What Confucians call “human-heartedness” may be inbred, but to develop fully it must be “cultivated” (today we would say, it must be “socialized”). And a lot of “cultivation” is required to inculcate the value that all children must be protected, even those of a hostile tribe.

Is slavery wrong? In much (not all) of the world today most people would say “yes, of course”. This is due to several centuries of “cultivation”, and even regimes that allow slavery in practice will at least give lip service to the idea that it is wrong. Historically, it is impossible to maintain that the idea is “natural” in the sense that it has always and everwhere been assumed to be true. Aristotle, considered one of the fathers of natural law, believed that there was an inferior breed of “natural slaves”. Generally, classical Greeks assumed that there was a “natural” domination of men over women, Hellenes over “barbarians”, citizens over slaves. Among “cultivators” of the notion, that it is morally wrong for one human being to own another, Christianity must certainly be counted. But it took a long time for the perception, that all human beings were “created equal” and therefore may not be enslaved, to take hold as “self-evidently true” (in the words of the American Declaration of Independence—indeed, it was fiercely rejected in the ante-bellum South).  Slavery was not only accepted in the Hebrew Bible, but it contained specific (relatively humane) laws to regulate it. Jesus seems to have been uninterested in the question. The Apostle Paul did not challenge the institution as such; in the Letter to Philemon he only urged kindness on the part of a slave owner. A certain perception of what it means to be human developed over time, first in Europe, then disseminated and internalized far beyond its borders. Today it is part of what the French sociologist Daniele Hervieu-Leger called the “ecumenism of human rights”, a global creed however much certain regimes may call it Western cultural imperialism, opposed to, say, Asian or Russian values.

I have used the word “perception” advisedly. Human rights are not primarily based on a code of moral imperatives, but on a specific mode of seeing. This can, indeed must be taught, even if this education is built on a congenital foundation. In other words, morality is basically indicative before it is imperative: It says “Look at this!” before it says “Do this!”/”Don’t do that!” – “Pull back this child”—“You cannot own this individual, even if he is black or belongs to a group defined as less than fully human”. (Before Emancipation, the census in the South counted a slave as amounting to two-thirds of a white person for the purpose of demographic statistics.)

My favorite illustration of this point comes from American literature. In Mark Twain’s novel The Adventures of Huckelberry Finn, Huck is drifting down the Mississippi on a raft when Jim, a black man, climbs aboard. It turns out that Jim is a fugitive slave. Huck is well-socialized (if you will, appropriately “cultivated”) as a son of the South. His conscience tells him that he ought to return Jim to his rightful owner. Huck intends to do this, then discovers that he cannot. What has happened? This is a novel; we only know what the author tells us. But there is no reason to think that Huck has had contact with the Quakers who helped fugitive slaves to escape north, or that he has been reading abolitionist literature smuggled in from places like Boston. What seems to have happened is a sudden shift of perception: He now sees Jim as a human being who should not be owned by anyone, and therefore should not be returned to slavery (and the terrible punishments meted out to fugitives). In classical Greek drama there is a term for such sudden shifts of perception—anagnorisis/”recognition”. Penelope suddenly recognizes that what first appeared to be a stranger turns to be Ulysses, her husband returned from years abroad. Oedipus suddenly recognizes that his wife Jocasta is actually his mother. Of course these two recognitions have opposite emotional consequences—Penelope is overcome by joy, Oedipus by despair. What they have in common is a dramatic shift in the perception of reality.

The idea of natural law is attractive because it allows existing laws to be superseded by moral judgment: This may be the law, but it is morally wrong and therefore should not be obeyed. That was the moral basis for the Civil Rights Movement defying the (properly legal) system of racial segregation: This must not be! (Incidentally, President Lincoln’s Emancipation Declaration was, legally speaking, a violation of the U.S. Constitution.) It is also relevant to observe that the Nazi regime provided a legal basis for every step in its war on the Jews—from the deprivation of the status of citizens, to the confiscation of property, all the way to the “final solution”. It was against the Nazi horrendous violations of human rights and dignity that one must read the lapidary sentence in the postwar constitution of the Federal Republic of Germany: “The dignity of man is inviolate” (“Die Wuerde des Menschen ist unantastbar”). In other words: “Look at these horrors! They must never be again!”

I have no accreditation as a philosopher. But as a (hopefully reflective) layman with moral convictions, I concede that what I am proposing here may be deemed to be a kind of natural law—in the sense of discovering some truths about the human condition which, though hidden, must always have been there. It is believed by many that the only alternative to natural law is moral relativism. I think that this a misleading idea. I may acknowledge the empirical fact that all moral judgments are relative in that they are determined by my location in time and place. If I were an educated individual in classical Athens or Rome I would probably have no moral problems with slavery. Every definition of reality has a history, that of the individual and of his society. What logicians call the genetic fallacy is the notion that knowing this history precludes asking questions of truth. Ethics is different from science, but, say, modern physics cannot be invalidated by pointing out that it arose in modern capitalist Europe and that its fascination with mathematics may derive indirectly from the numerical skills required by success in the capitalist economy.

At any rate some of my moral judgments are apodictic—“slavery is absolutely wrong”—I am certain about this, no matter the historical and social genesis of these judgments. I have argued that they are based on specific perceptions (perhaps some version of Descartes’ “clear and distinct perceptions”). But once these perceptions have been firmly established in my view of reality, they attain a certainty which scientific discoveries can never have; these are never more than probabilities. These moral certainties imply universality: If it was wrong to have slaves in the antebellum South, it was wrong in ancient Greece, even if no one had yet understood it. What is more, these certainties can be communicated to others, not by some tortuous attempt at proof, but by saying: “Look at this – see what I see!” To return to the topic of contraception, with which this little essay began, I have no such certainty about the use of condoms. What is more, I have doubts about those who claim such certainty. [By the way, the claim to certainty about contraception by the official Catholic Church undermines the credibility of many other Catholic teachings which I, for one, find not only credible but persuasive—for instance, about religious freedom or concern for the poor.]

  • Boritz

    “…modern physics cannot be invalidated by pointing out that it arose in modern capitalist Europe and that its fascination with mathematics may derive indirectly from the numerical skills required by success in the capitalist economy.”

    Not true. &nbspSomething akin to Charles Beard’s take-down of the constitution can be applied to modern physics any time it is deemed necessary. &nbsp This hasn’t happened because physics, unlike the constitution, has not come into direct and sustained conflict with the Left agenda. &nbsp If it should, then it can be readily attacked in this manner. &nbsp How many fingers do you see Winston?

  • Anthony

    Morality (normative ethics). “Nevertheless, this does not mean that moral judgments cannot themselves attain a certainty which surpasses science itself.” Different activities have different standards, but this may not mean that one is inferior to another – perhaps in this instance just different (Berger’s juxtaposition of science and morals – proof, knowledge, and certainty).

    Natural Law – use of reason (universally) to examine human nature while seeking a moral understanding for behavior (among Roman jurist; those instincts and emotions common to man/rule of conduct which is prescribed by the creator – ethical applications). I was once informed that moral words are all tied down, in varying degrees, to notion of intention. In other words, what are the rules of procedure or the principles of relevance (Berger in essay denotes natural law) we actually use to assess the merits of a moral view? Are they apodictic and can all hold them?

  • Breif2

    “Look at this – see what I see!”


  • Luke Phillips

    A mentor of mine, Father James Heft, the director of the Institute for Advanced Catholic Study, put it this way- there IS absolute moral truth, and it IS there regardless of any social constructions an interpretations, and it IS based in the soul and dignity of the human person. But as the human mind is imperfect and shaped by the realities it inhabits, we can SENSE this with conscience, but we cannot KNOW it the way God can. It’s a soft postmodernism- a doubt in the ability of Man to comprehend the truth, yet a conviction that there indeed IS a truth, and we can PERCEIVE it however imperfectly.

    I’m glad you brought this to the fore, Mr. Berger- the tension between moral absolutism and moral relativism is one which all must tread lightly upon. Most campus radicals, I think, tend to believe they are moral relativists while in practice being moral absolutists; but that’s another topic.

    As for contraception, I wish my church would focus on the act and its spiritual consequences rather than the mechanics- the Church should be teaching that contraceptive us in hookup sex is the problem because it encourages uncommitted promiscuity. “Closedness to life” is a small fish to go after- there’d be much more support among slightly less conservative Catholics, I think, were the push instead being made specifically against the wholesale cheapening of human sexuality and the sheer hedonism that happens to have condom use as one of its main facets. Hate neither the sinner nor the sinner’s tool, but the sin.

  • Gary Novak

    Why does Berger make the point that theories of moral judgment are not limited to
    the alternatives of moral relativism or natural law? He says that what he is
    proposing in his post is “a kind of natural law—in the sense of discovering some
    truths about the human condition which, though hidden, must always have been
    there.” If he is taking a natural law position, why does he need more
    alternatives? It’s because morality is like nature only in being ontologically
    independent of human construction. Morality and physics have always been there,
    but, epistemologically, we get at them differently. Quantum mechanics is never
    just a matter of “seeing” quantum indeterminacy: “Poor little quanta—I know the
    feeling– I’m often undecided myself!” The adequacy of scientific concepts is
    determined by their capacity to predict future observations. If they can do
    that, they need not be “understandable” in the sense of Weberian “verstehen.”

    Berger hints at the attempts of evolutionary biology to explain morality. But in using
    “inclusive fitness” to reduce altruism to “selfish genes,” biology is not so much
    explaining morality as explaining it away. It is turning moral judgment into a
    dependent variable, obscuring its nature as perceptual immediacy beyond which
    there is no appeal. Science can be, must be, articulated in a never-ending
    series of refinements of second-order concepts. Morality must be “seen”– or
    become subject to “syllogism daggers.”

    So natural law only expresses an aspect of morality—its objective reality. To
    grasp it apodictically we must approach it through moral intuition, not through
    what used to be called the “moral sciences” (analogous to the physical
    sciences). But to say that moral intuition is capable of apodicticity is not to
    say that it does not require “cultivation”—which is usually found in the tool
    box of the moral relativists. The idea that we have to learn what we already
    know is as old as Plato’s doctrine of anamnesis (remembrance). The slave boy
    already knew the theorems of geometry—Socrates only had to draw out his
    knowledge through careful questioning. We, too, know moral truths. But living in
    a culture of homeless minds, it can be hard to know what we know.

    • Wayne Lusvardi

      As the character Ulrich in Robert Musil’s novel The Man Without Qualities, put it:

      “…For him morality was neither conformism nor philosophic wisdom, but living the infinite fullness of possibilities. He believed in morality’s capacity for intensification, in stages of moral experience, and not merely, as most people do, in stage of moral understanding, as if it were something cut-and-dried for which people were just not pure enough. He believed in morality without believing in any specific moral system. Morality is generally understood to be a sort of police regulations for keeping life in order, and since life does not obey even these, they come to look as if they were really impossible to live up to and accordingly, in this sorry way, not really an ideal either. But morality must not be reduced to this level. Morality is imagination. This was what he wanted to make Agathe see. And his second point was: Imagination is not arbitrary. Once the imagination is left to caprice, there is a price to pay.”

      • Gary Novak

        In his essay on “The Problem of Multiple Realities: Alfred Schutz and Robert Musil” (1970), Berger notes that Musil’s novel begins with “the exact weather report for central Europe for a lovely day in August 1913.” But despite its historical specificity, his novel, as Musil himself notes “is not a ‘great Austrian novel,’ nor a ‘historical report,’ nor a ‘description of society.’ Rather, this particular society is presented to us with the intention of bringing out certain key features of ANY society, that is, with the intention of delineating the essential structure of everyday reality” (Phenomenology and Sociology, Penguin, 1978, p. 346).

        Non-phenomenological sociologists typically dismiss the idea of “essential structures” of society as a threat to social constructionism. How can there be essential structures of a universal lifeworld (including apodictically perceivable moral structures– perhaps hidden, but always there) without undermining the bread-and-butter sociological principle of cultural relativism? As Berger would say, this is not the place and I’m not the one to straighten all of this out. But surely we’re better off acknowledging that something more than bare-bones natural law or bare-bones cultural relativism is necessary if we are to face up to modernity. Husserl, Schutz, Musil, and Berger have all contributed to that effort.