God, New Natural Law Theory, and Human Rights

Abstract

Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.

The “New” Natural Law (NNL) theory articulated and defended over the past 50 or more years by figures such as Germain Grisez, Joseph Boyle (2020a, 2020b), John Finnis, and others, represents a significant achievement in the domains of foundational ethics, applied ethics, political and legal philosophy, philosophy of action, and re-interpretation of the thought of St. Thomas Aquinas.1 It is not, of course, without its critics in each of these areas. “Traditional” natural law theorists in particular object to NNL theory’s strong separation of practical from theoretical reason (Veatch 1990), its particular applied conclusions on matters such as capital punishment (Feser and Bessette 2017) and vital conflict cases in bioethics (Furton 2014), its denial of the “transcendence of the common good” (Goyette 2013), its rejection of the relevance of “closeness” as a criterion of what is intended (Jensen 2014), and its Thomistic bona fides (Pakaluk 2020).2

Many such critics also believe that the NNL theory understates or ignores the role that God plays in ethics. Fulvio Di Blasi, for example, declares flatly, “There is no role for God in the new natural law theory” (Di Blasi 2013, p. 35); and Stephen Long writes of the NNL theory that it involves a “negation of the essentially theonomic character of the natural law” (Long 2013, p. 107). Such critics are often triggered by the stark claim of John Finnis in Natural Law and Natural Rights that his intention in that book is to offer “a rather elaborate sketch of a theory of natural law without needing to advert to the question of God’s existence or nature or will” (Finnis [1980] 2011, p. 49). Yet Finnis does go on to offer philosophical reflections on precisely those topics, and he believes those reflections are far from redundant. In particular, worries about ultimate meaning and the further point of morality require investigation into the existence of an uncaused cause whose character as such is distinctly personal, and who might therefore have communicated with human persons an invitation to enter into a personal relationship with that being.3 Any worries that the NNL theory ignores or has “no role for” God are certainly unwarranted.

Nevertheless, questions can reasonably be asked about the role of the divine in the NNL theory, and this paper considers that role as regards one particular aspect of the theory, its account of human rights. The question at issue is this: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? The question arises because it might indeed seem like Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights.

This essay will present a nuanced answer to that question. I will argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible in the absence of reference to God’s existence, nature, or will. The NNL view, as articulated by Finnis above, is that such access is possible. But, as I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and, as I will show, the NNL framework acknowledges and accommodates this fact without difficulty.

1. The New Natural Law Theory’s Account of Human Rights

Following the early 20th century jurist Wesley Hohfeld, NNL theorists hold that a “right” in the strict sense always has as its correlative a “duty”: I have a right in relation to you that you Φ if and only if you have a duty to Φ in regard to me, where Φ-ing can encompass both acting and refraining from acting (Hohfeld [1919] 2001)4. The negation of a right is “no-right”: I have a no-right that you Φ if and only if you have no duty to me to Φ. And the correlative of that no-right is a liberty: you have a liberty not to Φ if and only if I have no-right that you Φ. In other words, you have no duty to me to Φ.

Clearly, then, an assertion of a right will gain in both clarity and action-guidingness to the extent that the right is fully presented as a three-term right, in which a relationship is identified between some person(s), some interest, and the person(s) with a “duty of respect or promotion of [that] interest and the kind of choice (to act or forbear) that is required of them to fulfill that duty” (Finnis 2011, p. 2). But as a historical matter the canonical articulation of human rights does not adhere to this logical form. In both the Declaration of Independence and in the Universal Declaration of Human Rights, for example, rights held to be natural or human are identified by the claim that “everyone (or: “all men”) has (have) a right to x”: a right to life, liberty, property, and so on, without reference to the bearer of the relevant duty. Thus Article 3 of the Universal Declaration states that “Everyone has the right to life, liberty, and security of person”; yet it does not explicitly identify the duty bearer(s) the Hohfeldian formulation requires.

In addition to the lack of reference to a duty bearer, these statements of right are also quite abstract. What is included within the right to life? One would expect that it involves immunity against certain forms of violence or force, but which, and under what circumstances? Are any entitlements to aid included, and if so, under what circumstances? Are preventative measures demanded by the right to life in order to protect life? In a political community, such questions ultimately require concrete legal answers in order for a right to be realized and secured.

But human rights are standardly considered to be pre-political; so vindication of assertions that such rights obtain cannot require the specification provided by a polity’s laws. Accordingly, New Natural Law theorists have given close attention to those human rights which both most fully approximate to full three-term specification in their traditional formulations, and which arguably are paradigmatically pre-political, namely, those rights, if there are any, which could be considered both universal and absolute.

Finnis notes in Natural Law and Natural Rights (pp. 211–13) that the Universal Declaration identifies certain rights with a different framing than the “Everyone has a right to…” of Article 3. Article 4, for example, states “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Finnis argues that the “No one shall be…” formulation is used to identify rights which in important respects need no further specification: both their content, and the correlative duty bearers are adequately identified. On the one hand, the duty bearer that is correlative to “no one shall be…” is “everyone”: for each person, it is the case that s/he has a duty not to do the act picked out. On the other hand, the act is picked out with adequate precision such that it can be identified by an agent considering practically what to do: of all the options available, any that involve the holding or selling of another into slavery are simply not to be done. The right is thus both adequately specified, universal, and absolute: there is no logical space for exception to be made.

Of course, the assertion of such rights requires justification, and in several places NNL theorists have attempted to justify the existence of the morally absolute negative responsibilities that are correlative to morally absolute rights.5 At its foundations, the theory holds that practical reason, prescribing without error, identifies certain goods as providing non-instrumental reasons for human action. Such goods, which include life, health, knowledge, play, aesthetic experience, friendship, integrity, religion, and marriage, offer distinct and, even in their individual instantiations, incommensurable aspects of a flourishing that, for human beings, is indefinitely and perhaps infinitely variegated. Practical reason further issues a very general norm, the first principle of morality, that in all forms of willing, agents should be open to the integral human fulfillment of all persons including themselves (Finnis et al. 1987b).

That norm is then further specified in a general principle that one should never intend damage or destruction of a basic human good. The argument depends first upon the incommensurability of goodness of the options involved. Properly understood, that claim is a denial only of commensurability in terms of the goodness of the options: where options are real, no one option offers all the goodness of the others, plus more.6 But if options are incommensurable in this way, then a clear justification for damaging an instance of a good, namely, that it would bring about a greater good, is blocked. Second, the status of basic goods as aspects of human flourishing just as such, and hence as providers of reasons for action just as such, generates the claim that in the absence of a greater good, an act in which the agent intends damage to an instance of basic good cannot be an act fully open to the integral directiveness of practical reason; indeed, in itself, it is contrary to that directiveness.

If this norm is to be fully action-guiding, it remains to identify act kinds in which damage to an instance of a basic good is intended. For example: to intend the death of another human being is to intend damage to the basic good of human life; therefore, intending the death of another human being is always and everywhere wrong. NNL theorists have made similar cases for the absolute wrong of lying, torture, rape, and enslavement. In each case, if it is absolutely wrong that the act in question be done to another, then the other has an absolute right that the act not be done to him. Such absolute rights, notably, do not extend to claims against any and all forms of harm brought about as a side effect, for it can be permissible to bring about as a side effect what it is always impermissible to intend. Finnis has been particularly critical of the tendency of European courts to extend the reach of absolute rights beyond what is intended to encompass what is foreseen as a side effect or even merely risked as a side effect (Finnis 2016).

2. Human Rights, Human Dignity, and God

What is the relationship, according to the NNL theory, between the triad of human rights, human dignity, and the divine? The question must be investigated along two axes. The first concerns the relationship between human dignity and the scope of human rights; the second concerns the motivational efficacy of human rights.

2.1. The Ontological Dimension

Human persons possess, as Robert P. George has noted, a “God-like” power for free choice, the ability to choose between fully deliberated options without anything other than the choosing sufficing for its being this option that the agent chooses (George 2017, p. 63).7 This “God-like” power of free choice, a power incapable of existing without also being accompanied by the power of reason is, as George and others have argued, the source of our dignity, or excellence, and thus radically marks us—say, the readers and author of this essay—off from all known non-human animals (Lee and George 2008). But NNL theorists defend the further claim that this power or set of powers is essential to the nature of the human being as such and that it is sufficient for possessing this ability in at least radical or root form that one be a human being.

If this is correct, then human dignity is possessed equally by all human beings, regardless of age, stage of development, disability, or moral state. A human being’s dignity cannot be lost by his or her performing horrific acts, or by his or her cognitive incapacitation or disability, and a human being’s dignity is present throughout his or her immaturity of developmental stage. So, for example, an unborn human being, even at its one-celled zygotic stage, is a human person with full human dignity, provided that, as contemporary embryology holds, that one-celled entity is indeed a human being.8

This dignity is the ground for the possession of human rights. Human goods are to be protected and promoted, and not intentionally damaged, in the person of all beings who are perfected by those goods, and entities fall within the scope of that perfection precisely insofar as they possess the dignity of human persons. “Human” in “human persons” is essential because the goods are human goods; “persons” is essential because it is as having the special excellence of a free and rational being—again, at least in root capacity—that all human beings are radically equal in status and thus entitled in justice, and as a matter of right, to have the goods in their person respected, promoted, and not intentionally damaged.

Many philosophers dispute this claim that all human beings are human persons with dignity and rights. Personhood, dignity, and rights are held by such philosophers to belong only to some human beings, typically those who have achieved and maintain some physical or psychological marker, such as the development of a rudimentary nervous system or brain, consciousness, or self-consciousness. On such views, a human embryo or fetus has less dignity, or worth, than, say, an adult dog or chimp, whose achieved level of consciousness far exceeds that of the unthinking because immature human being.

Yet no dog or chimp will ever do what it is natural for a human embryo to do if it is not prevented by death or debility, namely, be the executor of its own growth and development to the point of being able to exercise the root capacities for consciousness and self-consciousness that were obviously present from its beginning as an organism, since, from that beginning, it was destined to develop as a human being and not as a dog or chimp. Human embryos do not become new kinds of organisms when they have developed the active or occurrent ability to, say, think or choose freely; rather, they have developed that ability because of the kind of organism they are, because, that is to say, of their nature. It is, thus, the nature of human beings that grounds their status as human persons, with dignity, and fundamental rights, and since all human beings have this nature, all human beings are persons with dignity and fundamental rights.

Clearly, NNL theorists are committed to two claims about human nature: that there is such a thing as human nature, and that human nature includes the radical capacity for reason and free choice, the powers described by George as “God-like.” Can these duplex claims about the nature of the human being be sustained in the absence of something actually God-like, or indeed, actually divine in nature playing the role of creator and sustainer of the beings whose abilities are so profound? Let us call this the ontological question of human dignity. Are the NNL theorists’ claims about human nature, on which they rest their case for the universal scope of human dignity and thus human rights, dependent upon claims about the divine source of the beings possessed of that nature?

The Department of State’s Commission on Unalienable Human Rights, of which I was a member, suggested that questions of dignity and rights could stand clear of questions of natural theology and the ontology of human nature: “However philosophical debates about reason, nature, and God might be resolved, the Declaration’s affirmation of rights inherent in all human beings everywhere has, over the centuries, become deeply woven into American beliefs, practices, and institutions, and undergirds the nation’s moral and political inheritance” (Commission on Unalienable Human Rights 2020, p. 11). The idea here is that affirmation of inherent human rights can be sustained even if the “philosophical debates” about God and nature are resolved as an atheist would resolve them, in virtue of the entrenched role of human rights in the fabric of our common life and history.

But we should distinguish between the epistemological and the ontological possibilities. It is the standard natural law view that some and perhaps many moral truths may be known by unaided human reason, without adverting to knowledge of God’s existence, or activity, or will. So the unique nature of the human person, and the unique moral status that attends that nature, may be recognized “naturally”; such knowledge is epistemically possible.9

But is such a nature possible—ontologically possible—in a world such as that described by secular naturalism? It seems not: secular naturalism is, to begin with, deeply skeptical of claims that there are natures at all (Silver 2006). But even more importantly, naturalism, or materialism, must hold that no merely material being could possess the radical capacity of free choice; such a being would be determined by the laws of material nature. Hence the common and correct recognition of most such worldviews that libertarian freedom is incompatible with the naturalistic worldview (Coyne 2012).

The picture of the human person that emerges from that worldview is likewise, and for that very reason, not compatible with the idea of equal dignity and equal rights for all human beings. For in the absence of the radical equality that follows from a radically equal endowment of a capacity for rational freedom—even when that capacity is in fact blocked by disease or developmental failure or injury—it seems obvious that human beings are not in fact equal in any deep or important sense. What is seen as valuable is not what human beings are but what they can more or less occurrently do. Secular naturalism seems in fact generally to acknowledge this, holding, as we have seen, that not that every human being possesses human rights, but rather that only those human beings developed to the point of some sort of occurrent use of reason, or occurrent ability to choose autonomously, are subjects of rights. Indeed, on the account of one of the most prominent recent defenders of human rights, even young children do not possess such rights (Griffin 2008).

But what is noteworthy is that just here, the boundaries between the ontological and the epistemological begin to break down. For although any natural law view is committed to a claim about the capacity of natural reason, no such view should deny that false theories about nature and human nature can impede reason’s endeavors to come to the truth about morality and human rights. In consequence, although the light of reason is not intrinsically darkened as regards the possibility of truly human rights, it can nevertheless be extrinsically blocked by false theory. So, the NNL theory can hold that ontologically, human rights without God are an impossibility, and that epistemically, the full scope of human rights is less likely to be acknowledged within a naturalist frame than otherwise. Accordingly, one finds in the work of John Finnis, Germain Grisez, and Robert George, among others, a continual concern for the effects of secularism, a concern not at all inconsistent with their natural law bona fides.10

2.2. The Motivational Dimension

This brings us to the second axis on which the relationship between dignity, rights, and God must be investigated, namely, the issue of the motivational force of human rights. Grant that there are rights pertaining to all human beings as such; it is a further distinctive feature of the NNL account of human rights that the paradigmatic forms of such rights are not merely universal in scope, but, as noted above, genuinely absolute: the right not to be enslaved, tortured, killed at will, raped, and the like, are correlative, on the NNL account, to absolute duties never to enslave, torture, kill at will, etc. Such acts are simply never to be done, regardless of the consequences.

Here, I believe there is a gap between what can be known epistemically and what is possible motivationally. Once again, the traditional natural law view, also held by NNL theorists, is that human reason, tracking the argument given above, can recognize that certain acts are never to be done. That recognition is grounded in an awareness of reasons for action that, while cognitions, are nevertheless also motivations for rational agents. Making good on this claim is central to the NNL theorists’ ongoing polemic against non-cognitivism and subjectivism.11

Moreover, NNL holds that the norms of the natural law are in themselves protective of the possibility of human fulfilment, and that for agents faced with practical dilemmas, traversing the norms of the natural law is damaging to their own prospects for fulfilment. For action contrary to the norms of the natural law is constitutive of a character that, in its now settled (until repentance of one’s choice) opposition to reason and human good, is in various ways alienated not only from reason and human good in oneself, but thereby also from other human persons, and from God, whose desire for us is that we be fulfilled by human goods in community with others. So, there is a reasonable answer to the question “Why be moral?”, even when framed in terms of human rights: “Why respect the human rights of others?” The answer: we should respect the rights of others because in fulfilling the norms of justice, which are constitutive of right relationships with other human persons, we are thereby also fulfilling our own selves.

Yet the motivational appeal of any absolute norm is, under the most adverse circumstances, understandably weak, requiring as does that an agent be willing to sacrifice the prospect of some great good, or suffer some significant evil, as the cost of refusing to act in a way judged always and everywhere impermissible. Such losses and suffering are real, even if they are the reasonably accepted alternative to immoral action.

The record of history suggests both that human beings rarely have the fortitude to resist such temptations and that, as with the relationship between the ontological and the epistemological, failure in the motivational domain works backwards to impede what would otherwise be epistemically possible. That is, having given in to the temptation to intend damage and destruction to human goods, human agents proceed down the path of rationalizing such destruction. Even among Christians, justification for lying, for intentional targeting of civilian populations, for torture, and for other violations of absolute norms, and hence absolute human rights, are far from unknown.

As a philosophical ethics, NNL theory acknowledges this fact: reason’s claims are unlikely to fully motivate those faced with the most tragic choices. But as it moves closer to natural, and then revealed, theology, the NNL theory offers a further nuanced motivational response that resists a standing temptation towards legalism. On this account, legalism should be understood as the view that moral norms are a form of divine positive law that exist only in an extrinsic or instrumental relationship to the heavenly fulfillment that is available to human persons: “pie in the sky when you die.” For the legalist, one must follow the law in the face of temptation, but only in order to achieve some extrinsic benefit; in an eschatological frame, the relevant benefit is some form of fulfillment with God.

The ways in which legalism actually undermines absolutism are clear: if the relationship between natural law and eternal reward is extrinsic, then God can lift the relevant norms, or create exceptions to them; and forgiveness for their violation can be a path to reward even without interior repentance. Legalism in Catholic moral theology has arguably both reinforced and been reinforced by the emerging dominance of universalism, the doctrine that hell is empty.12

On the NNL account, by contrast, upright action on earth finds its fulfillment and continuation in the Kingdom of Heaven, an eternally ongoing communion of persons both divine and human, in which human goods are still pursued and realized. Eternal life in the Kingdom is not an extrinsic reward for a morally upright life, but an ongoing realization of the goods around which an upright life is structured. Thus, Grisez has argued, following a well-known passage of the Second Vatican Council, the fruits of good acts will be discovered again in the Kingdom, and, rather than an extrinsic relationship between those ends and heavenly flourishing, the latter will be in part constituted by the properly human choices, actions, and fulfillments of mortal life.13

What this means concretely is, of course, necessarily obscure: how the costs of upright action on earth will be set right in the Kingdom cannot be known. But those who with faith seek the Kingdom can be empowered to suffer rather than do injustice in a way witnessed to by many martyrs, with confidence that their suffering will ultimately be redeemed.

God is clearly central to this story of how fully upright action for the Kingdom is possible in the face of human evil and personal suffering. In the motivational, as in the ontological dimension, the NNL theory thus does justice both to the epistemic possibilities traditional to natural law accounts, and to the limits of those possibilities, limits that require reference to the divine if they are to be overcome.