New Natural Law, Homosexuality and Religion (Part One)

John Finnis, one of the leading defenders of New Natural Law

As most of my readers will be aware, a common argument against the legalisation of homosexual marriage, particularly in the U.S., is the new natural law argument (NNLA). In essence, the NNLA holds that homosexual marriage is impermissible because it is contrary to a basic human good — viz. the marital good — which can only be achieved through heterosexual unions involving ongoing acts of a procreative type.

I know I’ve written about this argument ad nauseum before. But I’m preparing some materials for a class on natural law next week and I thought it might be worth revisiting it from a slightly different angle. Specifically, from the angle taken by Bamforth and Richards in their book Patriarchal Religion, Sexuality and Gender: A Critique of New Natural Law, which considers whether the NNLA can be embraced on purely secular grounds (Note: their book does lots of other things besides this too).

This angle interests me because two of the leading defenders of new natural law (Finnis and George) are keen to stress its secular power. In other words, despite the fact that both men are devout Catholics, and despite the fact that natural law is deeply embedded in the Catholic tradition, both are keen to argue that their arguments can be embraced by those who do not share their religious views.

Bamforth and Richards take Finnis and George to task for this. They argue that the NNLA is religious, and cannot really be embraced on secular or non-religious grounds. I want to look at how they defend this claim in this post and the next. I’ll break the discussion down into four parts. First, I’ll lay out the basic methodological framework of new natural law (as set down by Finnis). Second, I’ll describe the NNLA against homosexual marriage (and, indeed, non-procreative sexual acts of all kinds). Third, I’ll consider Bamforth and Richards’s test for the religiosity of new natural law. And fourth, I’ll explain their argument for the religiosity of the NNLA. In the end, it will emerge that I’m not entirely convinced of the merits of their argument, but it’ll be a somewhat interesting ride along the way.

I’ll cover the first two parts of this discussion in the remainder of this post.


1. The Methodology of New Natural Law
New natural law is a comprehensive ethical theory, or at least it purports to be. Whether any ethical theory is truly comprehensive is another question for another day. What does a comprehensive ethical theory look like? Well, at a minimum it provides a theory of good and a theory of right. Let’s consider what both of these things are briefly before considering whether or not natural law has them.

Roughly speaking, a theory of good is that part of a comprehensive ethical theory that specifies the kinds of states of affairs in the world that are valuable or worth pursuing; whereas a theory of right is that which specifies how we ought act in relation to the good. Examples of things we think of as “good” might be sentient pleasure, the pursuit of our interests, the satisfaction of our desires, friendship, good food, long walks on the beach, and so forth (with some of these obviously being more serious than others). These goods come in two common forms: (i) intrinsic goods, which are worth having, obtaining, or experiencing for their own sake; and (ii) instrumental goods, which are worth having, obtaining or experiencing because of what they lead to. Similarly, theories of right come in two basic flavours: (a) consequentialism, which holds that we ought to act so as to achieve the most good, even if that means doing something that is itself bad; and (b) deontologism, which holds that we ought to honour the good in every act, even if that means doing something that gives rise to bad consequences. Comprehensive ethical theories will specify what type of things they think are good, and how we ought to act in relation to those things.

Does new natural law do this? Yes, indeed it does. To illustrate, I’ll use the example of John Finnis’s Natural Law and Natural Rights, which is probably the pre-eminent modern secular statement of new natural law theory. The theory does have its roots in Thomism and other, more contemporary, theological writings (specifically those of Germain Grisez) but those roots can be ignored for now. We’ll return to them later when assessing Bamforth and Richards’s argument.

Finnis’s theory of good is grounded in the notion of basic goods. These are things that are intrinsically valuable and form the intelligible ends of most human activities. In his original formulation, Finnis identified seven such goods. They were: life, knowledge, play, aesthetic experience, friendship, practical reasonableness, and religion (defined broadly as the speculation about the order of things, or the ultimate ground of reality). Finnis’s contention is that the fact that these seven things are intrinsically good is self-evident or, in some cases, that it is self-contradictory to deny their goodness. To quote:

…if one attends carefully and honestly to the relevant human possibilities one can understand, without reasoning from any other judgment, that the realization of those possibilities [the seven basic goods] is, as such, good and desirable for the human person; and…one’s understanding needs no further justification.

There are many doubts one could express about this approach to identifying the good, however, I’m not inclined to express them here. As it happens, I’m broadly in agreement with Finnis’s approach, and think that the seven things listed are indeed basically good. In fact, I think most people agree with this (do you really think friendship or knowledge aren’t good?). To be sure, I might add things to the list (e.g. skilful work) but then it could be argued that those are already covered. I would also note that Finnis’s approach bears some similarity to the objective list approach in utilitarian ethics. Where the disagreement between my approach and Finnis’s arises is in relation to: (a) his belief that the goods are incommensurable; (b) his belief that marriage is a basic good (more on that anon) and (c) how he moves from the theory of good to the theory of right. After all, as Finnis says, most human activity, including immoral activity, can be understood in terms of the basic goods. What separates the moral person from immoral one are the principles they use to determine how to act in relation to the good.

Finnis's Moral Framework

In this regard, Finnis appeals to nine separate principles of practical reasonableness. The principles tell us how we ought to make decisions in relation to the basic goods. In other natural law theories these principles are sometimes referred to as “modes of responsibility” which, although the terminology is slightly different, are essentially the same thing. I won’t run through all nine principles here — they are in the diagram below if you’re interested — but they include things like not having arbitrary preferences among goods, following one’s conscience, developing a coherent life plan, and, most importantly, respecting every basic good in every act.

The last is the most important because it is what really drives the objection to homosexuality (and non-procreative sex of all kinds). Stated more formally, the principle reads something like the following:

Non-Violative Principle: One must respect every basic good in every act; that is to say one cannot act so as to destroy, damage, impede, violate or pursue an illusory form of a basic good.

This principle is non-consequentialist in nature. It implies that we cannot sacrifice one basic good for another, even if we think it serves a greater good. Indeed, the very notion of a greater good is somewhat anathema to the scheme of basic goods, each of which is intrinsically valuable, none of which can be reduced to the other. This, I suggest, creates problems when dealing with dilemmatic choices, i.e. choices that necessarily involve the sacrifice of at least one good. It’s not clear how much guidance (if any) natural law can provide in these cases.

Anyway, to sum up, new natural law is a comprehensive ethical theory. It includes a theory of good (the basic goods) and a theory of right (the principles of practical reasonableness). This suggests a two stage test that should be followed when deciding what to do. At stage one, you ask whether or not your acts are directed toward (at least one) of the basic goods. And at stage two, you ask whether the act is consistent with the principles of practical reasonableness. If you pass both stages, your act is permissible and possibly even superogatory. If you do not pass both stages, your act is (presumably, though we may need to challenge this) impermissible.


2. The Argument against Homosexuality
So how does all of this apply to the case of same-sex marriage? The first thing to note is that it doesn’t just apply to same-sex marriage. Rather, Finnis and George offer arguments against all non-marital forms of sexual activity, and they do so on the grounds that marriage is a good that has procreative sex as part of its essence and engaging in these other forms of sexual activity would be contrary to this good.

Let’s try to unpack this a little, starting with the notion that marriage is a good. The first thing we need to know about is what this good consists of. The definitions have varied slightly over the years, but the following captures the view:

The Marital Good: Marriage is the one-flesh multi-level union between a man and woman (spouses). The spouses unite both on behavioural-cognitive levels (through emotional commitment, support and mutual affection) and on a physical level (through ongoing reproductive-type acts). The union is oriented toward children, but it is not extrinsically good (i.e. good because of its role in child-rearing); it is intrinsically good.

Now, whether the marital good is basic, or derived, has been a matter of confusion over the years. As seen above, Finnis did not include it among his list of seven basic goods in the original edition of Natural Law and Natural Rights, arguing that it could be derived from the good of friendship or sociality, but he seems to have changed his view more recently and claimed that marriage is itself a basic good. His reasons for doing so feature as part of Bamforth and Richards’s argument so we’ll talk about them later.

If we accept that marriage is a good (preferably a basic good), then we next need to ask why homosexual marriages, and non-procreative sexual acts, are impermissible. After all, just because one thing is good, it does not follow that other non-equivalent acts are bad or impermissible. The key here is the non-violative principle. Finnis and George contend that if we acknowledge homosexual marriages or engage in homosexual sex, or if we engage in non-marital non-procreative type heterosexual acts (masturbation, anal sex, oral sex, contracepted sex or even uncontracepted pre-marital sex), we would be destroying, damaging, impeding, violating or pursuing an illusory form of the marital good.

Finnis offers a bunch of reasons in support of this view. I’ll just mention two. First, and most obviously, these other types of sexual activity will (with one exception) lack the procreative potential of marital sex. Second, whereas marital sex involves the multi-level union between a man and a woman (i.e. union at the personal and bodily levels), non marital sex does not. According to Finnis, it involves the partners (or the person themselves in the case of solo masturbation) disintegrating the personal and bodily levels. They end up treating their bodies merely as sources of pleasure: things to be manipulated for their own enjoyment. This, apparently, damages or impedes their ability (and the ability of others) to pursue the marital good.

That gives us the following argument:

• (1) The marital good is a (basic) good: it is a one-flesh, multi-level union between a man and woman, oriented towards child-rearing, and consummated by ongoing procreative-type acts. 

• (2) It is impermissible to act so as to destroy, damage, impede, violate or pursue an illusory form of a basic good. 

• (3) Non-procreative sexual acts destroy, damage, impeded, violate or instantiate an illusory form, of the marital good. 

• (4) Therefore, non-procreative sexual acts are impermissible (from 1, 2 and 3).

Frankly, I find all this bizarre. It’s very difficult for me to appreciate how this view could be persuasive to anyone, but that’s part of the problem that Bamforth and Richards raise, and I’ll discuss it the next day. For now, let me mention a couple of responses to the argument.

First there is the sterility objection: sterile married couples cannot engage in procreative type acts and yet no new natural lawyer thinks their sexual unions are impermissible. I’ve discussed this objection before (see HERE and HERE). Second, it's not really clear that the reasons Finnis offers in support of premise (3) are persuasive, even within the confines of his worldview. The personal-bodily disintegration to which he refers is certainly arguable, and the claim that non-procreative sex really damages or impedes marital sex is also doubtful.

A third objection, and one that I quite like, is slightly more meta-theoretical. It goes back to the problem I mentioned earlier with the non-violative principle, namely: sometimes the world presents you with dilemmatic (or tragic) choices. Anything you choose to do will lead to at least one basic good being violated, so anything you do is contrary to the non-violative principle. I suggest that, even if one accepts the natural law view, this is going to be true in the case of homosexual unions: a homosexual couple could achieve the bonds of mutual affection and emotional commitment through marriage so in denying it to them they are denied these goods. Thus, deeming those unions impermissible fails to respect the basic goods that could have been achieved by homosexual couples, even if it also protects other basic goods. The choice necessarily sacrifices some basic goods.

Now, to be clear, I don’t even think that much is true. In other words, I don’t actually think that there is any real loss of goods involved in the permission of homosexual unions. But that’s because I can’t grasp the metaphysical worldview that grounds the notion of the marital good. Bamforth and Richards suggest that this is because that view relies on religious concepts that will never be persuasive to secularists like me. I’ll cover their argument the next day.