Robert George And The New/Old Natural Law

The NYT magazine profile of Robert George, by David Kirkpatrick:

FOR 20 YEARS, George has operated largely out of public view at the intersection of academia, religion and politics. In the past 12 months, however, he has stepped into a more prominent role. With the death of the Rev. Richard John Neuhaus, a Lutheran minister turned Roman Catholic priest who helped bring evangelicals and Catholics together into a political movement, George has assumed his mantle as the reigning brain of the Christian right. And he is in many ways the public face of the conservative side in the most urgent culture-war battle of the day. The National Organization for Marriage, the advocacy group fighting same-sex marriage in Albany and Trenton, Maine and California, has made him its chairman. Before the 2004 election, he helped a coalition of Christian conservative groups write their proposed amendment to the federal Constitution defining marriage as heterosexual. More than any other scholar, George has staked his reputation on the claim that same-sex marriage violates not only tradition but also human reason.

[...]

In the American culture wars, George wants to redraw the lines. It is the liberals, he argues, who are slaves to a faith-based “secularist orthodoxy” of “feminism, multiculturalism, gay liberationism and lifestyle liberalism.” Conservatives, in contrast, speak from the high ground of nonsectarian public reason. George is the leading voice for a group of Catholic scholars known as the new natural lawyers. He argues for the enforcement of a moral code as strictly traditional as that of a religious fundamentalist. What makes his natural law “new” is that it disavows dependence on divine revelation or biblical Scripture — or even history and anthropology. Instead, George rests his ethics on a foundation of “practical reason”: “invoking no authority beyond the authority of reason itself,” as he put it in one essay.

George’s admirers say he is revitalizing a strain of Catholic natural-law thinking that goes back to St. Thomas Aquinas. His scholarship has earned him accolades from religious and secular institutions alike. In one notable week two years ago, he received invitations to deliver prestigious lectures at the Southern Baptist Theological Seminary and Harvard Law School. His critics, including many of his fellow Catholic scholars, argue that he is turning the church into a tool of Republican Party. They say he is too focused on the mechanics of sex and morality, neglecting the other sides of the Christian message: the corruption of human reason through original sin, the need for forgiveness and charity and the chance for redemption. Citing George’s comparison of Catholic scholars who support abortion rights to defenders of chattel slavery, Cathleen Kaveny of the Notre Dame Law School, another scholar of law and theology in the Thomistic tradition, has called George and his allies “Rambo Catholics” and “ecclesiastical bullies.”

[...]

The same-sex marriage debate, George argues, illuminates an error in our understanding that he blames for most of the ills afflicting modern marriage — infidelity, divorce, out-of-wedlock births. Marriage is not just for procreation, love or sexual pleasure. “People have lost their grip on the true reasons for marrying, so they are unwilling to make all the sacrifices real marriage requires,” he said.

He admits the argument for marriage between a man and a woman can require “somewhat technical philosophical analysis.” It is a two-step case that starts with marriage and works its way back to sex. First, he contends that marriage is a uniquely “comprehensive” union, meaning that it is shared at several different levels at once — emotional, spiritual and bodily. “And the really interesting evidence that it is comprehensive is that it is anchored in bodily sharing,” he says.

“Ordinary friendships wouldn’t be friendships anymore if they involved bodily sharing,” he explained to me. “If I, despite being a married man, had this female friend of mine and I said, ‘Well, gosh, why don’t we do some bodily sharing,’ and we had straightforward sexual intercourse, well, that wouldn’t be friendship or marriage. It is bodily, O.K., but it is not part of a comprehensive sharing of life. My comprehensive sharing of life is with my wife, which I just now violated.” But just as friendships with sex are not friendships, marriage without sex is not marriage. Sex, George said, is the key to this “comprehensive unity.” He then imagined himself as a man with no interest in sex who proposed to seal a romance by committing to play tennis only with his beloved. Breaking that promise, he said, would not be adultery.

The second step is more complicated, and more graphic. George argues that only vaginal intercourse — “procreative-type” sex acts, as George puts it — can consummate this “multilevel” mind-body union. Only in reproduction, unlike digestion, circulation, respiration or any other bodily function, do two individuals perform a single function and thus become, in effect, “one organism.” Each opposite-sex partner is incomplete for the task; yet together they create a “one-flesh union,” in the language of Scripture. “Their bodies become one (they are biologically united, and do not merely rub together) in coitus (and only in coitus), similarly to the way in which one’s heart, lungs and other organs form a unity by coordinating for the biological good of the whole,” George writes in a draft of his latest essay on the subject. Unloving sex between married partners does not perform the same multilevel function, he argues, nor does oral or anal sex — even between loving spouses.

Infertile couples, too, are performing this uniquely shared reproductive function, George says, even if they know their sperm and ovum cannot complete it. Marriage is designed in part for procreation in the way a baseball team is designed for winning games, he says, but “people who can practice baseball can be teammates without victories on the field.”

George argues that reason alone shows that heterosexual sodomy and homosexual sex are morally wrong, just as the Catholic Church, classical philosophers and other religious traditions have historically taught. Unlike marital union in his special sense, he contends, such acts treat the body as an instrument of the mind’s pleasure. As both a practical and a philosophical matter, he argues, the law should not necessarily police such things. But the need for the state to establish a proper definition of marriage is a different matter, he says, because the law has always regulated it in the interest of parenthood and community. “Marriage in principle is a public institution,” he said. “I don’t think it can be like bar mitzvahs or baptisms or the Elks Club.”

It is safe to say that not many contemporary philosophers — whether secular or Catholic — agree with George’s marriage argument. Many balk at the mystical “unitive and procreative” qualities George ascribes to sexual intercourse. The idea of “one flesh” union seems far less obviously intelligible than other “basic goods” like friendship, knowledge or religion. Even fellow Catholic Thomists who oppose same-sex marriage question the esoteric quality of George’s argument. Why not just begin with the fact that humans are sexual and ask how best to channel that sexuality? Liberals, on the other hand, generally argue that the meaning of marriage is in the partners’ love, not their loins. (To which George counters that they offer no definition that would exclude polygamy.)

Joe Carter at First Things

Ryan Anderson at The Corner:

Calling George “the Conservative-Christian Big Thinker,” the Times concludes that when it comes to intellectual leadership for social conservatism, George is the quarterback: “With the death of the Rev. Richard John Neuhaus . . . George has assumed his mantle as the reigning brain of the Christian right.” I lived with and worked for Fr. Neuhaus for the last two years of his life, and this judgment seems about right. Maybe the Times understands us after all . . .

But the Times profile did misunderstand one pretty important aspect of George’s work.

Throughout the article, George is depicted as having manufactured an entirely new moral and political philosophy, which he now “sells” to the leading Evangelicals and Roman Catholic bishops of America to advance social-conservative causes.

Without a doubt, George and the other so-called “new natural lawyers” are innovative, but their innovations are in the service of reviving and refining what Isaiah Berlin called the central tradition of Western philosophy, the tradition that runs through Aristotle and Aquinas. Rather than manufacturing novel philosophical theories, George and his colleagues see themselves as appropriating and building on the wisdom of the ages to tease out the purposes and meanings of various social practices. In other words, this is philosophically critical conservative thought at its best.

This is most apparent in George’s arguments over abortion and sexual morality. Few citizens could explain to a sophisticated skeptic’s satisfaction why all people deserve the equal protection of the laws, or why cold-blooded murder is wrong. When the question is put to them, their likely response is that “they just do; it just is.” The right to life for the adult is just one of those self-evident propositions. So, too, with equal protection. You either see it, or you don’t.

Philosophers like George help make explicit the implicit judgment of the ordinary citizen. We ought not to murder adults because they possess intrinsic worth by virtue of the kind of creature that they are — rational and free animals. They are beings possessed of a rational nature. We ought to provide equal protection of the laws to all people because while they may vary in their gifts and talents, at their core all people possess the same fundamental dignity; each life is thus equally worthy of protection and promotion. But what is true of human beings in mature stages of development, George observes, is no less true of them in earlier developmental stages. What is true of the adult is also true of the unborn child. Any basis for distinguishing the two would, his arguments show, be unjustly arbitrary and have abhorrent logical consequences. The conclusion is straightforward: No human being may legitimately be harmed or denied the equal protection of the laws on account of such morally arbitrary features as age, size, stage of development, or condition of dependency. Championing the embryological science that conclusively demonstrates that the developing embryo and fetus is a whole member of the species Homo sapiens, George simply applies the same moral reasoning implicit in our Western legal and political tradition to the contemporary question of the dignity and value of unborn human life.

The same is true for marriage. Yet the Times is particularly keen to push the view that George has developed and sold a new conception of marriage. But a social practice such as marriage has its own intrinsic rationality, based on the nature of the human person and the goods that fulfill people. This rationality is usually only implicitly grasped, frequently thought to be common sense and self-evidently true. As a result, it becomes embodied in legal, political, and religious institutions. As George and I argued a few years ago in NRO, none of these institutions created marriage. Rather, they all recognized this pre-political (and even pre-religious) natural institution and provided it with legal support and religious solemnization. George’s philosophy seeks to articulate the implicit rationality in these social and legal practices to explain and make explicit why marriage — the moral reality that our traditions track — has the structure that it does and is relevant to the political common good in the way that it is.

Jonathan Rowe:

Last Friday, I saw much of the event at Princeton’s James Madison Program on religious liberty. Again, despite whatever disagreements I, as a libertarian may have with their social conservative point of view (and they with mine), I think the James Madison Program is one of the best things that Princeton has. And most of the lectures are open to the public.

[...]

Robert P. George was nice enough to take the time and give me a detailed answer explaining the difference between the old natural law and the new. We discussed Andrew Sullivan’s use of a blog post by Ed Feser which seemed to perfectly capture the traditional Aristotelian-Thomistic view of natural sexual practices. So Sullivan, in his new book, ends up using Feser as a proxy for the natural law view of sex which the Roman Catholic Church has long embraced. He then gets slammed by among others George, Feser, Ramesh Ponnuru for not understanding the difference between Feser’s Aristotelian-Aquinas understanding of the natural law and George’s. To which I asked “how many Aristotelian-Aquinas” natural law theories can there be? A bit of a rhetorical question.

But George did go into detail in answering my question. The bottom line as I understood, Feser’s understanding is closest to Thomas’ original and doesn’t admit to any “inputs” but rather argues these principles can be determined from looking to nature via reason period. That leaves this theory perhaps vulnerable to what some term the “naturalistic fallacy.” George’s “new” natural law is more willing to admit to certain “inputs” that support its conclusion. I asked him whether the Bible was one of those “inputs” to which he gave an emphatic NO. Not that he had any hostility to the Bible (obviously as a devout Roman Catholic he does not). But the POINT of natural law since Aquinas was to be able to demonstrate these transcendent truths from reason-nature alone. As John Witherspoon (a sharp natural lawyer himself) argued in his Lectures on Moral Philosophy (i.e., what he taught to his students at Princeton), this method permits Christians to tackle “infidel” arguments on their own terms — natural reason — without reliance on the Bible.

On a more interesting note, George admitted, after Feser, that oral sex is permissible between a married husband and wife provided it is used as a “means” to the “end” of sex that is “procreative in form” and not as a “end” in itself.

I’ve intensley debated some evangelicals on the homosexuality issue. I usually get anti-gay evangelicals to admit “unnatural” as they used the term really means the Bible forbids it (Paul says something about “natural use”); but then why even pretend like you are appealing outside the Bible with a term like “unnatural”?

Once they mention “natural design” as sort of a “secular” argument to condemn homosexuality, oral sex between heterosexuals (something practiced by like 90% of heterosexuals) becomes just as “unnatural” as anything homosexuals do. The mouth is not “designed” for genitalia.

The Aristotlean-Aquinas argument is less crude. From an observance of nature alone, the ultimate natural end of sex is for sperm to fertilize egg; so anything that helps achieve that “end” (which foreplay could) is “natural.” Another end of sex is that it must be “unitive” in a marriage (it must not treat people as means to ends which could even occur in a marriage as it did in Henry the VIII’s where he just wanted sex with his wife for an heir). Therefore, oral sex might be permitted in some circumstances but contraception (even between married couples), masturbation, and other activities that frustrate the “end” of sperm fertilizing egg are always unnatural and hence wrong, as “unnatural” and “wrong” as homosexuality.

The closest to an inconsistency that one might be able to find in natural law theory on sex is: What about two elderly married people having sex, post menopausual on the woman’s part? That is IMPOSSIBLE to produce a child. The natural law response is long as the sex is “procreative in form” it’s permitted. In other words, even for the 60 year old married couple the husband still can’t use condoms or ejaculate outside of his wife’s vagina. If they follow those rules they can still have the “right” kind of sex. It is “procreative in principle.” It closes the loop and makes for a completely consistent natural law, but for those of us who haven’t “bought” the theory in whole, that particular distinction tends to strike us as quite thin, (some might say “sophistry”).

And as an observation, when I discuss this issue with conservative evangelicals, though they agree on policy matters with Thomistic natural law thinkers (the overwhelming majority of whom are Roman Catholic), the evangelicals don’t seem at all convinced by this natural law reasoning. They want to slam homosexuality as “unnatural” AND wrong according to the Bible and set policy accordingly. But a strong majority of whom I have encountered don’t seem at all interested in following the natural law theory on sex to its logical conclusions.

Andrew Sullivan:

In fact, it is very hard to see what George’s argument means unless it can be reduced to the idea that sex for the infertile is moral merely because they are heterosexual, and that sex and love for homosexuals is immoral merely because they are homosexuals.  So sexual orientation is the critical category here, not procreation or nature as it is actually found, and the result is to retain a stigma and legal discrimination against homosexuals – simply because they are what they are.

But what of gay existence in every culture, every place, every era of human history? What of same-sex orientation that is, as even the Vatican has conceded, innate? What of the prevalence of homosexuality across so many natural species? If anything looks like a natural fact of human nature, it is this resilient and fascinating drop-shadow on heterosexuality normativity. You’d think that Christian scholars would be intrigued to figure out the questions – what are homosexuals for? why did God create them? why did natural selection favor their persistence? And yet, for the new natural lawyers, these obvious questions never seem to arise. Because homosexuals are not objects for open-minded inquiry for these fellows; they are objects to maintain hostility toward. To advance this project, they have no interest in the new genetics of homosexuality, or the varieties of its expression across the ages, or the gayness of many saints and Popes; they just have a class of people to be categorized as “objectively disordered” and discriminated against for their own good.

It is this exceptionalism that exposes the core prejudice gussied up as reason that lies behind some, but not all, natural law reasoning. And it is this exceptionalism and hostility to the diversity of God’s actual creation that strikes me as arrogant and wrong and un-Christian. It would be wrong and un-Christian if it merely applied these arcane ideas to everyone; but to infer that these arguments demand that a tiny minority of people must thereby be designated beneath civic dignity and family security makes this worse than un-Christian. It makes it evil.

More Jonathan Rowe:

These debates are like a game of intellectual ping pong. Once the natural lawyers assert post-menopausal sex is procreative in principle as long as the husband continues to plant his seed inside his wife’s womb, there’s really not much more to remark than either, yeah that makes sense, or no, that sounds like sophistry.

Julian Sanchez:

A long New York Times profile this weekend advances the proposition that philosopher Robert P. George—whose work I first encountered back in college—is now “this country’s most influential Christian conservative thinker.” I have my doubts, but to the extent the profile itself helps make the claim more true, that’ll be welcome.  Andrew Sullivan argues—and I agree—that his natural law arguments often display a conspicuous indifference to actual nature, nor do they stand scrutiny well at a strictly conceptual level.  But man oh man would I rather be talking about why the arguments in Making Men Moral don’t work than about why Andy McCarthy’s arguments don’t work.

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