Neil Gorsuch, President Trump’s nominee for the vacancy on the U.S. Supreme Court, has impressive philosophical credentials. He studied moral philosophy at Oxford under John Finnis, a philosopher who defends the natural law theory of ethics.
Gorsuch wrote a book on the morality of euthanasia and assisted suicide that is an impressive work of moral philosophy. Professor Finnis is the first person named on the acknowledgements page of Gorsuch’s book.
Democratic Sen. Dick Durbin wondered in this week’s confirmation hearings whether Gorsuch agreed with Finnis’s views of homosexuality. Finnis argues that homosexuality is unnatural and wrong. Gorsuch sidestepped that question, explaining that students don’t agree with everything their professors say.
At any rate, this is an opportune time to reflect on the natural law theory of morality. The natural law theory begins with an account of the basic functions or purposes of things. Good acts fulfill those functions. Bad acts violate them.
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Finnis applies this logic to sexual ethics. He argues that the function of sex is reproduction (as well as to unite people in love). He concludes that homosexuality is wrong, since it cannot be reproductive.
The problem, of course, is that there are deep disagreements about the nature of sex. Maybe there is more than one function of sex. Maybe sex is more about pleasure and happiness than it is about making babies.
Contemporary sexual ethics is also not solely based in natural law. We also value liberty, autonomy and privacy. And we are concerned with the utilitarian goals of reducing disease and unwanted pregnancy.
Similar moral complexity exists with regard to euthanasia and assisted suicide. Life is valuable. But so are privacy and autonomy. And we ought to be concerned with minimizing suffering in the era of advanced medical technology.
The difficulty of the natural law approach is that we continue to disagree about what counts as natural. Monogamy seems natural to us – but polygamy has been widely practiced in the history of the world. Celibacy seems unnatural – but some people view it as a higher good. And so on.
Self-evident moral truth
The natural law theory often appeals to the idea of self-evident moral truth. Finnis has explained that self-evident truths are things we assent to “without needing the proof of argument.”
The Declaration of Independence states, “we hold these truths to be self-evident.” Gorsuch appealed to this idea in his book on euthanasia. He argues that the idea that human beings have innate value is a self-evident truth. This is what he calls “the inviolability-of-life principle.” He says, “all human beings are intrinsically valuable and the intentional taking of a human life by private persons is always wrong.”
Some have wondered how Gorsuch would apply this idea at the other end of life, with regard to abortion. But the abortion debate also includes a variety of conflicting moral principles involving privacy, autonomy and the question of whether fetuses are human persons.
It would be nice if there were one undisputed self-evident set of moral truths. Some will argue that religion provides a source of definitive moral truth. But soon enough we are left wondering which religion and whose interpretation we ought to believe. The history of moral and religious dispute shows us that we lack a final answer.
Natural law theory is often connected to an account of purposes and functions that are created by God. But natural law need not be religious. Gorsuch quotes Aquinas and other religious philosophers. But he focuses on “secular moral theory” and common law. He claims that the assumption about the intrinsic value of human life transcends sectarian religious difference. This assumption is the “product of our practical human experience.”
But human experience changes over time. Our ideas about morality and religion have changed. Slavery is permitted in the Bible. Divorce is not. The American founders thought that only men should vote. And they permitted slavery as well.
And so it goes. Nothing seems more natural than changing moral opinion. It is self-evident that we disagree about morality. That is why we need a secular political system that includes a separation of powers, a system of checks and balances, a strong commitment to protect liberty of conscience – and judges who understand this.
Andrew Fiala is a professor of philosophy and director of The Ethics Center at Fresno State: @PhilosophyFiala