After reading all the favorable responses to David Bentley Hart’s refutation of natural law reasoning, I’ve started to wonder if there might be a possible synthesis of the natural law and its proposed refutations. Here’s a thesis: the natural law could be updated by presenting the (as yet underdeveloped) role of the importance of the will, which is at once free and yet has its freedom precisely from its teleological order to the absolute good.
Why focus on freedom? Because it seems to me that the concerns and objections to natural law, when translated into the language of natural law itself, become concerns about the undervaluing of the real freedom of the will because of an overemphasis on the intellectual specification of the moral act. Again, all theories of practical reason (of which Natural Law is only one) can come off as putting the whole essence of morality in reason, in such a way that the only relevant data of what ought to be done can be determined theoretically from self-evident principles. Objections to this present themselves in many ways:
1.) Attempts to make the is-ought distinction a logical truth. In spite of being self-refuting when taken as a logical or general rule of thought (i.e. an “ought statement” of thought) the distinction continually recurs, which seems to indicate that it is an attempt to articulate some truth or another. But natural law theorists could account for the truth of the distinction through the real division of intellect (which is ordered to true or false and so the “is” and “is not”) and the will (which is ordered to the good and so to what ought to be done). No enumeration of true things – even truths about moral questions – can make the truths things to be done. This is an additional formality that must be added by the will, and which does not reduce to anything outside of the will. It is this real autonomy of the will that some objectors to natural law are pointing to when they say things like “even if you determined that something was according to my nature, why should I want to do it?” Truth – and in this sense argument or any other act of intellect – could never make an action formally a thing to be done. A particular could be the object of the cognitive power of conscience, but not the object of the voluntary power of free choice.
2.) Arguments about the outdated character of teleological accounts of nature. Our modern account of nature is not teleological but mechanistic. But whatever else a mechanism might be, it isn’t responsible – it’s not guilty or innocent, praised or blamed, though all of these things are at the basis of moral action. Even if the older, teleological account of nature is true, we still get a better account of morality by opposing morality to our ideas of nature. When translated into the language of natural law, our modern ideas of nature serve as a via negationis to illumine the notion of morality as free, that is, morality so far as it is an act of the will.
3.) Arguments that natural law theories are out of date and do not speak to modern concerns. The repeated insistence that a moral argument should persuade can be taken as indications that it should take the act of the will seriously, though this could only be taken as a sign. The fact is that in order to “speak to” us, one needs to see the essentially free character of moral action. Our concern with right, or our idea that the essential element in law is the imposing of obligation, or half a dozen other facts of our moral discourse all testify to the idea that our moral ideas are tied up more with the will than the intellect.
So then, given all this, one avenue of articulating natural law would be to focus principally on the role of will in natural law. It is perhaps lamentable that the will was treated as a sort of afterthought, as though it were simply the execution of an essentially intellectual act. Plato, in fact, might have seen it in this way, and so far as he did the critique of natural law theory can be taken as a critique of the Platonic idea that all vice is ignorance, and that all virtue is simply intellectual rectitude.
So then, a natural law argument of a different kind: a teleology of the will precisely as free. On the one hand, this is impossible: freedom is indetermination to a goal whereas teleology is determination to a goal. Let this sense stand as a clear sense in which our morality cannot be met by a teleological natural law. But freedom as such is still an intentional and purposive action and so cannot be cut off from goals altogether. More later.