Vol. 9 No. 11 (November 1999) pp. 497-501.
IN DEFENSE OF NATURAL LAW by Robert P. George. Oxford and New York: Clarendon Press and Oxford University
Press, 1999. 343pp. Cloth $65.00.
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College
Robert P. George is one of the discipline's more visible proponents of the natural law tradition in moral and political
theory identified with Aristotle and Aquinas and with its contemporary interpretations by German Grisez and John
Finnis. In an earlier book, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY (1993), George positioned himself
as an opponent of the liberal tradition in moral and political theory by advocating the principle that law should
enforce fundamental moral principles to encourage persons to pursue basic human goods and the morally good life.
IN DEFENSE OF NATURAL LAW
is a collection of essays, about half of which were published since MAKING MEN MORAL, that serves two basic functions.
As a collection it defends further
George's version of natural law theory against its various opponents (inside and outside the natural law tradition),
and it intimates a conception of public reason that would fully explain the theory's legal and political implications.
Before I summarize what these essays are about, I want to take special note of the Introduction to this volume.
It is a gift to readers who, like myself, are not fully versed in the nuances of the natural law scholarship but
who are nonetheless interested in what is going on there. The Introduction provides a superb summary of the essays
that follow it, and it aptly lays out what is at stake in developing their themes. I gratefully acknowledge that
I used the Introduction as a reference point while reading the essays and that I borrowed liberally from it to
write this review. (And I apologize in advance for any errors or distortions of these essays that arise from my
not being fully versed in the scholarship.)
Part One of this work provides a defense of various facets of the Grisez and Finnis version of natural law theory.
At its core, and complications aside, this version of natural law holds, first, to the conviction that practical
reason can grasp, by inclination and experience, objective, first-order truths about intrinsic moral (e.g., health,
knowledge, religion) and non-moral goods of human well-being and achievement. These truths are self-evident, indemonstrable,
and belong to persons as part of their nature. According to this natural law theory, these truths about intrinsic
goods should inform choices about opportunities for achieving intelligible moral
ends or purposes independently of tastes, desires, and instrumental reasons for choice-making.
Second, it holds to the conviction that there is a multiplicity of these (sometimes incommensurable) goods and,
it follows, of potential practical reasons for actions. Therefore, this version of natural law theory commits
itself to arguing for intermediate or second-order practical reasons, also referred to as 'modes of responsibility.'
These second-order reasons, which are necessary to make choices between competing possible goods and
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reasons for action, are said to do their job when they are derived from the principle that moral choices must cohere
with human fulfillment. Examples of second-order reasons are "impartiality" and the (Pauline) principle
that forbids "doing of evil so that good may come of it." Reasons such as these are useful primarily
for excluding those choices for acting or not acting that disregard or damage genuine human goods. Lastly, concrete
practical judgments about choices require third order or prudential norms. These norms are based primarily on consequentialist
or pragmatic judgments that come into play in deciding whether or not to act on what first- and second-order reasons
appear to require of us.
The essays of this part of the book are concerned with a philosophical defense of various facets of this tripartite
conception of natural law reasoning, referred to variously as a "perfectionist theory" and "new
natural law theory." In the first chapter George rejoinders a philosophical objection that practical reason
cannot locate first- order reasons, independent of non-instrumental reasons for action, that are simultaneously
practical and sufficiently objective to qualify them as truths. In the second chapter he defends, at length, the
Grisez-Finnis version of natural law against philosophical criticisms that it is based upon flawed distinctions
between
value and fact claims about human nature identified with Kantian and Humean philosophy. (The arguments here center
primarily on the theoretical integrity
of first principles about basic human goods.) The third chapter briefly addresses a number of specific criticisms
of the Grisez-Finnis version of natural law that have arisen from those who are sympathetic to natural law theory.
In the fourth chapter, George defends his version of natural law theory against the complaint that its conception
of practical principles and a multiplicity of goods make it impossible to choose among competing possibilities
for moral action. (Here the arguments primarily concern the role of the intermediate norm of impartiality.) In
the fifth chapter, George outlines his conception of the connection between natural law theory,
positive law, and judicial review. And in the last chapter of Part One, George explains the relationship between
commitments to natural law and the rule of
law via considerations of free choice, practical reasoning, and morality.
Granted the nature of the issues involved, all these essays are inescapably abstract. Fortunately the author
has a deft way with these abstractions, and he does yeoman-like service by addressing them so that they are accessible
to an audience wider than those who are well tutored in them. Naturally, the rhetorical structure of natural law
arguments is essential to their substance, and it is a pleasure to think along with George as he works within that
structure. George sets up precisely the significance of the controversy he wants to address. He then analyzes
the strengths and weaknesses of the arguments of his most prominent opponents in the
controversy. He next cites appropriate authorities for his side of the controversy (and differs from them when
necessary); and finally he characterizes the analytic weaknesses or inconsistencies of his opponents' arguments,
or the misrepresentations of their treatment of his version of natural law. The conclusion drawn is then a defense,
at this stage in the controversy, of the net superiority of the natural law position he wants to defend.
I dare say that the impact of all this, granted my lack of critical insights into many of the controversies,
is not so much to persuade me that the author's arguments are superior to his opponents' but that his arguments
are at least as credible, coherent, and corrigible as theirs. Consequently, I think that readers who are willing
to follow
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along with the rhetorical structure of the arguments-even if they know beforehand that they reject natural law
theory or its consequences-will find themselves testing their wits against those of the author. Otherwise, I
suspect that these theoretical arguments will be of interest primarily to those scholars who are tutored in the
philosophical debates about the canon of natural law and who are involved in the debates between liberal, natural
law, republican and communitarian theorists over what to do about the ostensible troubles in contemporary moral
and political theory, or will be of interest to those graduate students for whom these debates provide fodder for
doctoral canons.
The six essays of Part Two represent the author's attempts to detail some of the more practical, often quite controversial,
implications of his natural law theory. (The author believes that the implications of natural law theory are more
controversial inside than outside the academy, and that therefore the potential for natural law theory as a rival
to liberalism is underestimated). In contrast to liberal theory, the seventh chapter argues, provocatively, for
the theoretical and practical implications of understanding sacred religion as a basic public or common, not private,
good. The author argues that in theory, if not necessarily in practice due to prudential
considerations or conflicts with other goods such as religious liberty, that religion as a public good justifies
positive governmental action to encourage religious faith and practice.
The eight and ninth chapters address the natural law morality of marriage and sexuality. At the core of these
chapters is the defense of the very controversial (and from my perspective perhaps indeed hurtful if moral) claim
that the intrinsic goods of sexuality must be understood solely within the context of (his Roman Catholic conception
of) the intimacies of heterosexual marriage and procreation. The correlate of this claim is that abstinence is
the preferred sexual alternative to what would otherwise be the moral harms of non-marital or homosexual acts.
The tenth chapter justifies a correlate claim that in principle pornography ought to be prohibited,
prudential considerations about free speech principles aside (which George asserts cannot function as trumps),
because of its potential to produce harms such as provoking sexual desires that are unassociated with the goods
of marriage and procreation.
The central point of these three chapters is that the law ought to be used to protect and preserve our "shared"
natural moral integrity and the natural integrity of intimate family relations. I think the author is on to something
when he contends that in some non-academic circles his positions are not as controversial as they are inside the
academy, and one of the many questions along those lines that arose as I read these chapters was the extent to
which readers will be persuaded that abstract philosophical arguments are the most prudent way to argue for the
strengths and weaknesses of the alternative positions on the issues addressed.
In the penultimate chapter of this part of the book, George argues against John Rawls' 'political liberalism' and
its conception of good moral reasons. I found George depending on the now familiar complaint that Rawls front-loads
a conception of justice by philosophically ruling out potentially opposing conceptions of good reasons. Within
this frame of reference, George endorses Gutmann and Thompson's argument, in DEMOCRACY AND DISAGREEMENT: WHY MORAL
CONFLICT CANNOT BE AVOIDED IN POLITICS (1996), that in a polity composed
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of people who disagree about fundamental issues, public reason should promote open discussions about disagreeable
issues in such a way that those discussions respect the reasonableness of opposing positions. In sum, I found
this chapter to serve the purpose of promoting the "reasonableness" of natural law theory in the face
of academics who are otherwise inclined to dismiss it out of hand as a contender in debates for a public philosophy.
The twelfth chapter operates at an altogether different level of analysis by considering the extent to which consequentialist
and prudential considerations are essential for structuring the international community. The author's point here
is that one should be wary of the illusory appeal of moral absolutes, and that those absolutes can only go so far
as to indicate the range of morally permissible policies. (I will return to this point shortly.)
In the six rather brief essays of Part Three the author works some of the intimations of a new natural law theory
of public reason. (These intimations arise from a technique the author calls "dialectical engagement"
that I found to be a truncated version of the rhetorical style of the more philosophical essays.) George engages
the moral and legal theorists Alasdair MacIntyre, Michael Perry, the journalist Andrew Sullivan (Roman Catholic
former editor of the New Republic), Richard Posner, and Joel Feinberg. Specifically, in the MacIntyre essay, George
endorses some aspects of the MacIntyre's (1988) natural law thinking, but he contests MacIntyre's version of (Catholic)
objective truth because it strays too far from the new natural law version of Thomistic universal moral norms that
George argues is central
to moral reasonableness in public debates about morality. In the Perry essay, George concerns himself with Perry's
tendency to over-emphasize consequentialist considerations in regard to moral decision-making which George finds
to undermine what natural law theory requires by way of reasoning about basic human values. In the Sullivan essay,
George defends a traditional (Catholic) natural law argument about homosexuality and he argues against what George
says is Sullivan's inconsistent (Catholic) criticism of it.
In the Posner essay, George defends his "academic moralism" (which would be Posner's pejorative term
for George's efforts) in general, criticizing in particular Posner's treatment of natural law and his economic
analysis of moral rules. The Feinberg essay addresses specific criticisms that Feinberg has made of natural law
theory that George finds especially fair-minded and worthy of rejoinder. In the last chapter of the book, George
explains his reasons for endorsing Gutmann and Thompson's conception of reasonable public discourse, and his reasons
for endorsing Cass Sunstein's (1996) judicial minimalism and preference for democratic deliberation for deciding
contentious moral and political.
Perhaps it is wrongheaded of me, but I found the arguments in the third part of the book to be the most important
ones. Others before me have said, in effect, that if new natural law theory is to challenge liberalism it must
present a positive program of its own (Sheldrick 1994; Sandel 1997; Smith 1997). The "dialectical engagement"
of this last part of the book does not do that for me, because a positive program should, I think, do two things.
First, it should go beyond explaining the philosophical weaknesses of other theories and spell out its practical
implications for persons and the polity by demonstrating how natural law theory either improves upon or supplants
a liberal theory's commitment to neutrality about human goods. Second, it should address in detail how a perfectionist
theory manages the legal
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and political consequences of its way of bridging the gaps between its second- and third-order reasons to resolve
social and political conflict.
From this perspective, I read the third part of the book as a partial payment on the author's promise in MAKING
MEN MORAL to develop what is there
only a "sketch" of a theory of the moral foundations of civil liberties. These essays left me with the
impression of a promise on the part of this advocate of new natural law theory to present, at a later date, a fully
developed conception of a perfectionist theory of public reason. These details would take us to the heart and heat
of public reason and to struggles to take first-order moral principles seriously while at the same time being vigilant
about the illusory appeal of moral absolutes.
Naturally, to construct such a theory of public reason is an exceptionally ambitious, long-term academic and intellectual
project. But if we take the author at his word that what matters here is "the truth. and its capacity to
shed light on why we ought to refrain from doing certain things which it is in our power to do or refrain from
doing, but which we have the effective freedom-the choice-to do or refrain from doing" (1) then the burden
of proof falls on the advocate to go forward. Even as a pragmatist, and one who has some reservations about the
moral and political implications of natural law theory, I hope that the author will continue to build on what he
has done in the past and try to fulfill as much as possible of that ambitious academic and intellectual project.
REFERENCES:
George, Robert P. 1993. MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC
MORALITY.
Oxford: Clarendon Press.
Gutmann, Amy and Dennis Thompson. 1996. DEMOCRACY AND DISAGREEMENT: WHY MORAL
CONFLICT CANNOT BE AVOIDED IN POLITICS. Cambridge: Belknap Press of Harvard
University Press.
MacIntyre, Alasdair C. 1988. WHOSE JUSTICE? WHICH RATIONALITY? Notre Dame,
IN:
University of Notre Dame Press.
Perry, Michael J. 1999. "The Law Professor as Moral Philosopher?" YALE
JOURNAL OF LAW & THE HUMANITIES. 11: 415.
Sandel, Michael J.. 1999. "The Constitution of the Procedural Republic:
Liberal Rights and Civic Virtues." FORDHAM LAW REVIEW. 66:1.
Sheldrick, Byron M. 1994. Review of MAKING MEN MORAL: CIVIL LIBERTIES AND
PUBLIC MORALITY. JOURNAL OF LEGAL EDUCATION. 44: 304.
Smith, Steven D. 1997. "Natural Law and Contemporary Moral Thought: A Guide
from the Perplexed." THE AMERICAN JOURNAL OF JURISPRUDENCE. 42: 299.
Sunstein, Cass R. 1996. LEGAL REASONING AND POLITICAL CONFLICT. New York:
Oxford University Press.