Balkinization  

Thursday, February 01, 2007

A Pragmatic View of Natural Law

Brian Tamanaha

One of the themes in my recent book, Law as a Means to an End (sidebar), centers on the adverse consequences of the gradual loss of belief in natural law over the past several centuries. Many in the founding generation and throughout the nineteenth century accepted some version of natural law or natural principles. It was widely thought that these principles were built into the common law and had a background role in the constitutional arrangement. But we have not thought about the law in these terms for a long time. Now the Constitution and the law are seen as positive declarations of rules that we can alter in any way we desire, and that we can use to serve whatever ends we desire. Natural law has no recognized place in this scheme (other than a residual sense in the Bill of Rights). Although law was once thought to have a built in core of principles, it is now seen as an empty vessel.

The book elaborates on the worrisome implications of this shift, but I do not advocate a return to natural law because, in my view, society, culture, the economy, politics, and law have changed so much that those long lost views cannot and should not be recovered.

I should also admit that I don’t believe in natural law, at least not in the traditional sense of timeless, universal, objective fundamental principles. Reading a lot of John Dewey, Richard Rorty, and other pragmatists has made it impossible for me. Pragmatists assert that there are no such things as timeless, universal, absolute, objective principles. These are human ideas that arise, take hold, and are given meaning in specific social-cultural contexts. Appending the label “natural law”—or today: “human rights”—and calling them objective and universal is a way of according them emphasis and a higher status, but they are socially invented ways of speaking about socially constructed norms.

It must be emphasized that a pragmatist can deny that “natural principles” are objective, yet still recognize that many people believe that they are objective and universal and that this belief can have positive social consequences (as William James argued with respect to religious beliefs). From a pragmatic perspective, these beliefs are useful and valuable to that extent.

A pragmatist will also insist, however, that we must consider the negative consequences of these beliefs. Dewey wrote that “one of the chief offices of the idea of [natural law and justice] in political and judicial practice has been to consecrate the existent state of affairs, whatever its distribution of advantages and disadvantages, of benefits and losses; and to idealize, rationalize, moralize, the physically given.” We must remember that bad things have been done, and will be done, in the name of natural law or natural rights (this prudential concern is the core of my article on the contemporary relevance of legal positivism).

Opponents castigate pragmatists for being moral relativists. The charge seems to fit the pragmatists, except for this consideration: criticizing someone as a “relativist” is meaningful only if it is possible to be a non-relativist.

These critics—let’s call them “objectivists”—deny that their position is a relativist one because objective natural principles really do exist. When making this claim, objectivists are saying not only that they believe that these principles exist, but more so that they do in fact exist.

The pragmatist will respond that, while the belief of objectivists in natural principles is sincere and has consequences (when they act on this belief), the claim itself is wrong—there are no such things as universal, objective, absolute principles. The referent of the claim does not exist. If it is meant by the objectivist as a factual claim, it is false. If it is a metaphysical claim, then it is a myth or fiction on a par with belief in the existence of ghosts.

Assuming these responses are correct (a big assumption, which cannot be discussed here), the charge of relativism senseless. It has no bite because objectivists are in exactly the same position as pragmatists—they too have no objective, universal grounding for their principles. One could say that we all are relativists—and the objectivists just don't know it—but a better understanding is that the term relativism is misleading and inapt because it posits an alternative position that is not available.

These passages from Isaiah Berlin (“Subjective Versus Objective Ethics”) help explain this view:

"The fallacy of this position [denouncing Hume for subverting moral order by arguing that "objective" truths applies to logical and empirical realms, but not normative] consists in the tacit assumption that ethics, which is, alas, subjective, might in principle have been objective, although it has been shown by Hume's cold reasoning not to be so in fact. But if Hume is right...then he is in effect implying (though he never himself saw this clearly enough) that ethical statements are in principle different in the way they are used from logical or descriptive statements, and the distinction between subjective and objective may turn out to not apply to them at all."

Berlin goes on to indicate his agreement:

"Can a world be conceived in which normative statements acquired 'objective status'? It is only when we realize that this is a meaningless suggestion--that the note of regret which the word 'subjective' often expresses springs from what has been called a pseudo-lament,' because it deplores the absence not of something which could be present..., but of something whose presence cannot be conceived, of which to say that it is present is to utter a meaningless phrase--it is only then that we grasp the unsuitability of such an epithet as 'subjective' when applied to ethical, political or other normative disciplines."

A reader might accept these passages, yet not be able to shake the despondent feeling that we have been thrown into relativism. Yes, but that’s because we previously thought (mistakenly) that we were not in that position. A better way of describing matters is that we are now “disappointed objectivists” rather than “relativists.”

The good news is that a pragmatist will insist that we can still talk about right and wrong—about good and valuable principles—without making apologies. Shorn of the former objectivist language and its supportive belief structures, these kinds of statements remain what they have always been: normative claims invoked in discourse. Granted, they are no longer bolstered by the former objectivist beliefs, but the bottom line has not changed: One must still persuade an interlocutor in any normative exchange that one’s normative claim should be accepted. Even in the old days, when the arguments were couched in terms of natural principles, there was plentiful disagreement on moral and legal claims.

Does the pragmatic view leave open the possibility of constructing a natural law position? Maybe. It would have to be brought down to earth, empirically grounded, and argued for in pragmatic terms. H.L.A. Hart argued that there is a minimum content of “natural law”—that is, universally applicable—based upon the core requirements necessary for humans to live together peaceably in a social group. A pragmatist would find this kind of argument unobjectionable. Another possible approach, gaining attention of late, is to build upon some form of “moral naturalism,” which argues that moral norms are natural facts based upon our existence. An important new article on this subject is Larry Solum’s “Natural Justice,” which sets out a detailed argument about the implications of natural justice for judging. The pragmatist in me is concerned about precisely what is claimed by invoking the term “natural” here (other than identifying its grounding in us), but I find the specifics of his account of virtue in judging attractive and convincing.

To return to a point I made at the outset—natural law principles of the past are beyond recovery. Nostalgia is pointless, and revivalist movements can be reactionary precisely because they require us to suppress much that has changed. We can construct a sound view of integrity in law that is realistic and comports with who we are now. There is no option but to build with the pieces that we have at hand.

Comments:

This is a very slippery article as it pervasively confuses ontology and epistomology. Rorty was talking about ontology in terms of the non-existence of natural law. Hume on the other hand was talking about epistomology, about the unknowability of natural law. Dewey wasn't sure which he was writing about. These are two very different positions are require separate analysis.

For example is "disappointed objectivism" a disappointment because we can't figure out natural law or a a disappointment because it doesn't exist? A standard response from a pragmatist might be it doesn't matter whether the disappointment is ontological or epistomological, but that does not merit conflating the two as if they are the same argument.
 

Doesn't "the adverse consequences of the gradual loss of belief in natural law" show that the positivist point of view is at least as outdated as the natural law viewpoint?
 

Heh! There is only one natural law:

Sooner or later we will all return to the bottom of the food pyramid (faster if we are eaten by something bigger or stronger first).
 

This is a very slippery article as it pervasively confuses ontology and epistomology. Rorty was talking about ontology in terms of the non-existence of natural law. Hume on the other hand was talking about epistomology, about the unknowability of natural law. Dewey wasn't sure which he was writing about. These are two very different positions are require separate analysis.

But the two questions are so closely connected that it is in fact hard to keep them separate. Our ability to have knowledge is intimately connected with our evidence of what in fact exists; and our ability to make inferences about the world is likewise very much limited by the extent of our knowledge.

That being said, my assumption would be that the vast majority of pragmatists would say that they doubt that the notion of natural laws as facts about the world is a coherent ontological idea. Indeed, it's quite challenging to construct a satisfying conception of natural laws such that propositions about them can be true or false, in the normal ways we use those terms.

I think a lot of people assume ethical cognitivism as a basic assumption because they haven't thought carefully about some subsidiary questions. Most importantly, relatively few people have spent time thinking carefully about what it is precisely that makes statements true or false. Until one has a basic working approach for these ground-level issues, it is essentially futile to dicker about whether ethical statements can be true or false.
 

While it's true that "you can't get from an is to an ought", the practical consequences of this are quite limited for people who aren't enfatuated with moral relativism, or just looking for an excuse to ditch morality.

Because what you can do, is accumulate a fairly comprehensive catalog of Kantian "hypothetical imperatives" whose conditions enjoy virtually universal assent. And then properly treat the people who refuse to assent to them as the dangerous sociopaths they are.

Clearly, the political class, (Who I take Balkin to be speaking of with his "But we have not thought about the law in these terms for a long time.", because otherwise the assertion is wrong.) have a conflict of interest in deciding whether the purpose of law is to enact some independent scheme of morality. Because the alternative to that, for the political class, is to enact their whims.

And who wouldn't like to enact their whims, if they could do so without feeling guilty about it?
 

Marghlar: "But the two questions are so closely connected that it is in fact hard to keep them separate. Our ability to have knowledge is intimately connected with our evidence of what in fact exists"

No, the two questions are very separate. One precedes the other. If we can't have knowledge about a subject, we cannot say anything about whether a statement is true or not. The fact that we cannot comprehend something does not mean it does not exist. It's just the difference between atheism and agnosticism
 

This argument is simply a variation of the age old story of God's absolute truth and immutable law and man's rebellion against that law seeking license to create his or her own rules or to follow no rules at all.

For those who do not believe in God, secular philosophers simply renamed God's law as ideals or natural laws and the debate continued.

After millenia of this argument, I sincerely doubt that the "pragmatist" rebellion of man has won a final victory.

Go ask the population at large outside of this cozy secular academic enclave whether the following statement is true or subject to revision:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
 

Zathras,

Your distinction between ontology and epistemology is important and correct. I tried to make clear that my assumption, for the purposes of the post, was an ontological one (natural principles "do not exist"). That we cannot know for certain what they are, if they did exist, is a separate issue. But for the reasons Marghlar notes the two positions are linked. The intransigent epistemological problems are suggestive (though not conclusive) of the ontological position.
 

Rorty was talking about ontology in terms of the non-existence of natural law.

But does Rorty *prove* this ... or (my bet) *assume* it, on epistemological grounds?

Pragmatists don't do ontology, do they?

--I appreciate Tamanaha's post; I share the skepticism about "traditional" natural law, while vaguely thinking that some sort of "philosophy of as-if" is called for on the subject, if rights are not to be the gracious gift (string attached) of the government.
 

Professor Tamanaha:

Are you seriously arguing that there are no natural immutable laws?

For example, take the law against murder.
 

You don't have to be Bart DePalma or believe in God to believe in natural law or human rights.

At the risk of sounding like Alan Dershowitz:

We have a biological imperative to survive, to avoid pain, to see our children survive us. That's the natural part. "There is not a man under the canopy of heaven who does not know that slavery is wrong for him." Likewise for murder, torture, arbtirary imprisonment. That's the natural part.

The law part comes from our ability to perceive with our senses and to understand in our mind that other people are as human as we are. And we have the capacity to apply a little logical consistency, and say: if it is wrong for him to do these things to me and my children, it is wrong for me to do these things to them.

Obviously, there's going to be a lot of disagreement about specifics once you get beyond these obvious ones, and they're going to vary depending on the time and the place and the culture. Obviously we should be skeptical of any judge's or priest's claims that not only does natural law exist, but he can authoritatively say what it is.

You don't really believe that the bill of rights are arbitrary preferences, surely. You certainly don't act as if you do.
 

Brett:
"Because what you can do, is accumulate a fairly comprehensive catalog of Kantian "hypothetical imperatives" whose conditions enjoy virtually universal assent."

What about conditions like slavery, oppression of women, genocide of native populations, etc.? All of which enjoyed "virtually universal assent."
 

Katherine: "We have a biological imperative to survive, to avoid pain, to see our children survive us. That's the natural part."

What about dying for a cause or suicides? Or self-flagellation, or the idea of "no pain, no gain." Or abortion?
 

No, the two questions are very separate. One precedes the other. If we can't have knowledge about a subject, we cannot say anything about whether a statement is true or not. The fact that we cannot comprehend something does not mean it does not exist. It's just the difference between atheism and agnosticism

Zathras, others have made the point, but I think we are talking past each other here. I certainly agree that as a definitional or categorical matter the questions are distinct. What I am saying is that in practice, the questions tend to blur, because we can't discuss one without discussing the other. How can we have a meaningful discussion on the ontological point without dragging in our evidence (and hence our epistemological assumptions about what that evidence can show for us)?

I agree that the two questions would sharply diverge for an omniscient third party observer. But until one is ready to enter this discussion, I think you'll tend to see ontological arguments used in favor of epistemological results, and vice versa.
 

"There is no option but to build with the pieces that we have at hand."

Quote of the day, Prof. Tamanaha. Paraphrasing Neurath: We are like sailors who must reconstruct their boat while it floats on the open sea.
 

Katherine: "You don't really believe that the bill of rights are arbitrary preferences, surely."

This brings up an interesting point. In current political discourse, you see denials of the absolutism of the Bill of Rights almost exclusively on the right. The left, while postitivist in theory, has a more natural law position in claiming that these rights are inalienable.

In contrast, while the right in the US are in theory for natural laws, they are much more positivist in practice. They believe that the rights in the Bill of Rights are more flexible and change with circumstances, rather than being absolute.

This is to say nothing of the fact that the Karl Rove book of political discourse owes much more to Derrida and Foucault than to Locke and Aquinas. Every time I've heard Rove speak he sounds to me like a hard core postmodernist. Is this really the type of political theory that you want to be associated with?
 

Bart writes:"This argument is simply a variation of the age old story of God's absolute truth and immutable law and man's rebellion against that law seeking license to create his or her own rules or to follow no rules at all.

For those who do not believe in God, secular philosophers simply renamed God's law as ideals or natural laws and the debate continued."


Which God?
 

Marghlar" "How can we have a meaningful discussion on the ontological point without dragging in our evidence?"

I agree. But the converse is not true. You can have a meaningful discussion about the reliability of the evidence without getting to the ontology. That's why I said the epistomological question preceeds the ontological one.

"But until one is ready to enter this discussion, I think you'll tend to see ontological arguments used in favor of epistemological results, and vice versa."

Yes, and this is one of the most common fallacies in philosophical discourse. Making a mistake often enough does not make it right.
 

"secular philosophers simply renamed ..."

Correctly, the sentence should read "secular philosophers elucidated and examined the underlying philosophical principles the earlier religious writers had merely groped after in the murk of their beliefs..."

Science has come to the rescue of "natural law" to some extent by discovering that humans, with some exceptions, have an innate ability to feel the emotions and pain of other animals. This empathy explains the almost universal support for a proscription against murder, theft, or other crimes against others without dragging a supreme being into the argument.

Of course, it calls into question a lot of what Congress has been doing for the last couple of hundred years.
 

You can have a meaningful discussion about the reliability of the evidence without getting to the ontology.

I would vigorously dispute that premise, which is, I think, the root of our disagreement. The only major epistemological position I know of that accords with that position is pure coherentism, which is a very shaky foundation indeed on which to build an epistemology.

Arguing that we have reliable knowledge of the world necessarily assumes a strong causal link between the world and our knowledge; this means that we have to argue about the world in order to argue about knowledge. I just don't see any way around this question that is useful.
 

Science has come to the rescue of "natural law" to some extent by discovering that humans, with some exceptions, have an innate ability to feel the emotions and pain of other animals. This empathy explains the almost universal support for a proscription against murder, theft, or other crimes against others without dragging a supreme being into the argument.

Which doesn't resolve the is-ought problem, of course, but it does provide a great explanation of our moral attitudes and prescriptive statements.
 

bitswapper said...

Bart writes:"This argument is simply a variation of the age old story of God's absolute truth and immutable law and man's rebellion against that law seeking license to create his or her own rules or to follow no rules at all.

For those who do not believe in God, secular philosophers simply renamed God's law as ideals or natural laws and the debate continued."

Which God?


The one and same God which Judaism, Christianity and Islam all try to explain.

I am not trying to go down the side path discussing the origin of natural law or to debate the existence of God, but rather argue that natural law exists.
 

I second the observation about the confusion of a Humean epistemology (which is doubtful, at best) with ontology, and which makes the presentation confusing.

In any event, it seems we have discovered a new natural law, the law of pragmatism, which tells us there are no ascertainable natural laws, except of course the natural law of pragmatism, which is immutable.

This argument is incoherent and self-contradictory, and merely erects a new orthodoxy making universal claims.

If the argument took itself seriously, it would apply the lens of pragmatism onto pragmatism itself, and see the critique through, and unmask all the presumptive natural laws encapsulated within pragmatism itself.
 

I suspect most of us believe in a bare minimum of something that we can probably call "natural law" with no harm done, fairly obvious propositions derived from basic information about human needs, wants, powers, and limitations. But what we can get from that, significant as it is, as far as it goes, doesn't go very far. If and when the advocates of something more deserving of the name "natural law" come up with a robust account of a reasonably detailed code, we can talk. But a lot of very smart people have tried without success for a very long time, and I don't expect a breakthrough here.
 

"The left, while postitivist in theory, has a more natural law position in claiming that these rights are inalienable.

In contrast, while the right in the US are in theory for natural laws, they are much more positivist in practice."

This is dead on.

The people who claim to believe in "natural law" on the religious right sound a lot more like divine command theorists to me. And then you have the relativistic/positive views that it's perfectly fine to do awful things to foreigners, because the Constitution doesn't protect them.

You wouldn't find Human Rights Watch or Amnesty talking about "natural law" or "nature's God," but they're the closest modern analog of that tradition.
 

As an anthropologist, I'm very wary of the idea of natural laws and self-evident truths, simply because the range of variation in social forms, norms, and their historic contexts far exceeds the general models used to propose "Kantian hypothetical imperatives" as Brett put it. But to point out that morality is contingent upon those things is not the same as attempting to avoid morality altogether.

I have a certain distaste for Solum's use of order as an axis for his approach to how "just humans" behave, particularly in the implicit assertion that people in "dysfunctional societies" have no capacity of internalizing the laws and social norms, and are therefore "on their own." History (and prehistory) has shown that moral frameworks and belief systems are remarkably durable in the face of chaos; while they are never static, they are rarely destroyed outright. Furthermore, one society's chaos is another society's order, which makes the axis a bit difficult to use in this means.

Brett spoke of the practical consequences of moral relativism, saying that unless you're infatuated with moral relativism, it doesn't do much for you. At best, he might say, it's a party trick you can share with your friends while blabbing about ontology, contingency, historicity, and any other number of words ending in "y". At worst, it could be used as a justification for arbitrary rule. (My sincere apologies to all who have lived through the particular postmodern debates of your field for rehashing here.)

Here's what swallowing the idea of moral relativism gains you in a practical sense: the ability to understand and in a limited sense predict the behavior and responses of people who do not share your own set of norms, without condemning them outright as evil or (dare I say it?) dysfunctional. Obviously, that could be very handy for members of the "political class" who are responsible for dealing with other societies (ugh).

However, the idea that morals are purely an arbitrary set of individual choices about how to behave in the world is dead wrong. As George Costanza reminds us: "We live in a society." Not only that, we live in several of them at once, each with its own set of rules and norms that we are expected to abide by. These rules are developed and enforced socially, often through very subtle means, such as the way living space is apportioned. Here it may be obvious that I'm channeling post-structuralist Bourdieu and his notion of field and habitus.

I don't always agree with Brett, but I think he's right on the money when he talks about agreeing upon rules as a group and then declaring the outliers as sociopaths and treating them accordingly. That's the way society works and self-regulates. That's what living in a society entails.

The notion that these rules necessarily stem from some natural or universal imperative, however, is absurd. Furthermore, the awareness of that absurdity does not force somebody to suddenly begin disobeying them. One still has to live in society, and I doubt you'll see even the most radical proponents of moral relativism speeding through stoplights, shooting up into the air with automatic weapons simply because traffic laws are unnatural.

The "oh so I guess anything goes, then, eh?" criticism of the postmodern assertion that multiple viewpoints can be valid ignores the fact that validity itself is contingent upon the social context in which it occurs.
 

PMS_Chicago: "Furthermore, the awareness of that absurdity does not force somebody to suddenly begin disobeying them."

I would like to see what Brian says about this unsupported statement, since even he acknowledges that there are "adverse consequences of the gradual loss of belief in natural law"
 

Bart writes:
"The one and same God which Judaism, Christianity and Islam all try to explain.

I am not trying to go down the side path discussing the origin of natural law or to debate the existence of God, but rather argue that natural law exists."


Instead you can just assume which god on behalf of everyone reading this blog so they don't have to. Frees all of us from the horrible burden of thought. *whew*
 

Katherine: "You wouldn't find Human Rights Watch or Amnesty talking about "natural law" or "nature's God," but they're the closest modern analog of that tradition."

The ones whom I think are even closer to such a consistent position are people like Jim Wallis ("God's Politics") and the other Sojourners. They are close to the practice of Amnesty in terms of fundamental rights, but who have no problem talking about natural law. Just a few years ago, this group and like-minded people were a very marginal group, but the number of people who are in this camp have been growing exponentially.
 

PMS: "Furthermore, the awareness of that absurdity does not force somebody to suddenly begin disobeying them."

Zathras: I would like to see what Brian says about this unsupported statement, since even he acknowledges that there are "adverse consequences of the gradual loss of belief in natural law

I don't mean to make the point that adverse consequences do not or cannot occur as the result of adopting a relativist (or pragmatic or "disappointed objectivist") view. My point is that adverse consequences, including sociopathic behaviors, are not the inevitable logical outcome of such a paradigm shift, and that, adverse or favorable, the effects will vary according to context.
 

The Latin Church, particularly through Aquinas, adopted the natural law (cf., laws of nature) from the Stoics, in which moral principles are ascertained from the workings of nature. The obvious problem with this line of thought is that the workings of nature just "are," while morals are "values" the people hold.

Whether Hume's is/ought bifurcation or Moore's naturalistic fallacy (fact/value), one cannot derive a value from what "is," or what "is" by means of "values," since what is, simply "is." Hence, the entire natural law is a fallacy (indeed, incoherent).

If one limited the scope of natural law to Aquinas's ST, II, 94, in which REASON is our natural law, then it might be less fallacious. But Aquinas elsewhere describes the natural law of sexual relations, where he posits that the penis is meant for the vagina and procreation only; any other "use" violates the natural law. The absurdity of this position should be self-evident.

Are there, then, no universal moral laws? Arguably, Kant's categorical imperative could be just such a law, however impossible humans find to obey it. Part of Kant's problem is that REASON alone makes the calculation, ignoring investment in family, puruits, interests, and society. It also sidelines all emotional evaluations. If humans were calculators, Kant's categorical imperative would be useful, but since humans are not calculators, the imperative has little to recommend itself.

Most modern moral philosophers have dropped "morality" (which is deontological) and adopted in its stead "ethics" (which is teleological), and thus Aristotle's virtue ethics has been in a renaissance. Darwinian biologists have reinforced the viability of the Scottish Enlightment "morality" of David Hume and Adam Smith, where empathy plays a major role (as do reciprocal altruism, cooperation), recognizing that kin relations will be preferred over the "universal man."

James Q. Wilson's The Moral Sense is an excellent synthesis of virtue ethics, empathy, fairness, self-control, and duty. As becomes clear, ethical judgments from the beginning have always relative to the individual person apply the Major Premise (a universal proposition) and the Minor Premise (the particular action) to determine the right course of action. In this sense, ethical judgments are individualized, but not necessarily relativised. The phronemos (wise person) will take the same premises and come to the same right action. So, individualized is not synonymous for relativized.

But as far as Absolute Moral Claims, that horse has long been dead, except for certain religious claims. Given that religious individuals and their institutions have committed some of the greatest moral attrocities on humankind, I'm not sure their moral claims have much standing with enlightened individuals.

Thus Wilson's book (among others, e.g., Ridely, Sober) is pointing toward a "moral sense" that can be ubiquitous without being absolute, based on human nature, not on divine revelation or a categorical imperative. Given the alternatives, this ubiquity is to be preferred over deontological claims or relativist claims. And one does not need to accept the pragmatists' notion of utility as the final arbiter, as in Mill's deontic "do no harm." This duty may also be pragmatic, in a sense, but it is not derived from a pragmatic epistemology, rather from duty grounded in empathy, reciprocity, and self-interest.
 

Brian,

The proscription against murder is a tautology, and thus self-evident.

Some have taken the biblical commandment, "you shall not kill," and substituted "murder" for "kill." That is not a synonymous substitute!

Murder is defined as the unjustified taking of another's life. It's an analytic prescription.

Conversely, "killing" would also bar self-defense, a just war, and the defense/protection of others. So the two words, while related, are not synonyms.
 

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