Recent Criticism of Natural Law Theory, Study notes of Law

Download Recent Criticism of Natural Law Theory and more Study notes Law in PDF only on Docsity! REVIEWS Recent Criticism of Natural Law Theory Robert P. Georget Lloyd L. Weinreb. Natural Law and Justice. Harvard University Press, Cambridge, Mass. 1987. Pp ix, 320. $25.00. Russell Hittinger. A Critique of the New Natural Law Theory. Uni- versity of Notre Dame Press, Notre Dame, Ind. 1987. Pp vi, 232. $26.95. A noteworthy feature of contemporary philosophy in the En- glish-speaking world and beyond is a reawakening of interest in practical reason. The willingness to take reasons for action seri- ously in descriptive and prescriptive jurisprudence, as well as in political philosophy and ethics, has been a mark of many notable philosophical achievements over the past three decades. In juris- prudence, the works of H. L. A. Hart, Joseph Raz, and Ronald Dworkin certainly come to mind. In political philosophy, one im- mediately thinks of the competing theories of justice developed by John Rawls and Robert Nozick. In ethics, a long list of contribu- tions would only begin with those of Alan Donagan, Alan Gewirth, Philippa Foot, David Wiggins, and John McDowell. The revival of interest in practical reason has brought in its wake renewed philosophical attention to theories of natural law. Long relegated to merely historical interest (at least outside of Ro- man Catholic intellectual circles), natural law theory is once again a competitor in contemporary philosophical debates about law, politics, and morals. What this means, for one thing, is that the writings of St. Thomas Aquinas, Hugo Grotius, Francisco Suarez, t Assistant Professor, Princeton University and Visiting Fellow, New College, Oxford. I thank Adam Sloane, Walter F. Murphy, and Germain Grisez for criticisms of early drafts. 1371 The University of Chicago Law Review and other leading scholastic natural law theorists have again found an audience in the secular academy. Moreover, a number of con- temporary authors have developed modern theories of natural law. While certain of these theories remain more or less within the scholastic tradition, not all do. The natural law theory recently ad- vanced by Michael S. Moore, for example, shares little more than a label with the theory of, say, Aquinas. In the past year, two significant books on the subject of natu- ral law theory have been published. The first, Lloyd Weinreb's Natural Law and Justice,' is a profoundly ambitious study. It not only charts the history of natural law theory through the ages, but also presents a sophisticated philosophical argument that, if valid, makes philosophy a largely meaningless exercise. He argues that all efforts to develop a credible theory of natural law are doomed and yet, that it is impossible to devise an alternative to conceiving of problems in moral and political philosophy as problems of natural law. The second book, Russell Hittinger's A Critique of the New Natural Law Theory,2 presents a detailed case against a particu- larly influential modern theory. Hittinger's target is the theory of natural law originally developed by Germain Grisez, and widely publicized in John Finnis's influential book Natural Law and Nat- ural Rights.3 Weinreb also singles out this theory for detailed criti- cism, citing it as an especially significant example of contemporary "deontological" natural law theories. In what follows, I shall largely, though not exclusively, focus on this recent criticism of what, following Hittinger's convention, I shall refer to as "the Grisez-Finnis natural law theory." My claims are that neither Weinreb nor Hittinger represents the theory accu- rately or presents compelling arguments against it. Before taking up criticisms of the Grisez-Finnis theory in particular, however, I shall describe Weinreb's general argument and criticize his treat- ment of Aquinas's theory of natural law. I. WEINREB'S NATURAL LAW AND JUSTICE. A. 'Ontological' Natural Law and the 'Normative Natural Order' Among Lloyd Weinreb's goals in Natural Law and Justice is to "restore[] the original understanding of natural law as a theory 1 Lloyd L. Weinreb, Natural Law and Justice (Harvard, 1987). ' Russell Hittinger, A Critique of the New Natural Law Theory (Notre Dame, 1987). John Finnis, Natural Law and Natural Rights (Oxford, 1980). 1372 [55:1371 Natural Law 'How can we be obligated to obey the law?' "14 The dispute is no longer one with skeptics over the grand question of the nature of reality; it is with legal positivists over the comparatively mundane question of obligation. But, according to Weinreb, neither natural law theorists nor legal positivists can avoid the problem of freedom and cause. It lurks in the background, informing the terms of the debate over obligation, and rendering that controversy ultimately unresolvable. "Beneath the surface of an apparently inconsequen- tial dispute," says Weinreb, "there lingers the central puzzle of the human situation."" B. An Overview of Weinreb's Account of Natural Law and Justice Weinreb's book is divided into two parts. In the first, entitled "Natural Law," he presents a largely historical account of what he views as the failures of traditional natural law theorists to come up with a satisfactory answer to the ontological question. He then pro- vides a brisk review of what he sees as the unsuccessful strategy of early modern and Enlightenment thinkers, from Hobbes to Kant, to transfer the problem of "the normative basis of human exis- tence"1 from nature to the civil state. Finally, he offers a critical philosophical analysis of the efforts of modern natural law theo- rists to come up with a credible deontological alternative to the ontological question. His considered judgment is that the tradi- tional authors failed because their question is unanswerable, and their successors fail because there is simply no avoiding that question. [T]he puzzle of human freedom in a determinate, causally or- dered universe persists for ordinary persons and philosophers alike. The vocabulary and the conceptual context have changed; but we endorse answers to the problem in our daily lives and in our philosophizing, because we must. We could not carry on either otherwise. 17 In the second part, entitled "Justice," Weinreb broadens his analysis by examining the attempts of certain contemporary think- ers to treat the problems of moral and political philosophy as problems about "the nature of justice" rather than about whether " Id at 3. " Id at 12. " Id at 67. 11 Id at 4. 1988] 1375 The University of Chicago Law Review nature is just.18 In the thought of liberal political theorists such as John Rawls and Robert Nozick, and in the work of their communi- tarian critics, among whom Weinreb includes Alasdair MacIntyre, Michael Sandel, and Michael Walzer, the separation of ethics from ontology obscures the antinomy of freedom and cause. Yet, this antimony undercuts the efforts of deontological natural law theo- rists no less thoroughly than it did those of their ontological prede- cessors. To obscure the antinomy is not to eliminate it. It re- emerges in the form of analogous antinomies of desert and entitle- ment (in respect of individual justice) and liberty and equality (in respect of justice in the social order) within the concept of justice. Such antinomies are ultimately rooted in the antinomy of freedom and cause (in respect of a putatively normative natural order). Desert, Weinreb says, is an implication of moral responsibility, which in turn presupposes freedom. The upshot of this connection with moral responsibility and freedom is that desert is "insistently individual."' 9 Entitlement, by contrast, "is based on the applica- tion of a rule according to its terms, without regard to individual qualities that the rule ignores."20 The fulfillment of individual jus- tice, as Weinreb understands it, would require a perfect harmony of desert and entitlement. Unfortunately, however, conflict be- tween these elements of justice "is not an occasional, regrettable lapse but is inherent and unavoidable."2 The very concept of desert requires a background order of en- titlement. For example, we regard persons as entitled to natural assets. When people successfully make use of their natural assets, we treat them as deserving (e.g., a prize in a footrace). However, the ground of that initial entitlement cannot itself be desert. As Weinreb puts it, "if every one of a person's qualities has itself to be deserved, the idea of a person as the subject of desert loses meaning."" But where the ultimate ground of desert is (unde- served) entitlement, in what serious sense can persons be under- stood as deserving? A way out of the dilemma could, of course, be a notion of free choice that would provide, at least in some re- spects, an ultimate ground of desert not reducible to sheer entitle- ment. But to appeal to such a notion, according to Weinreb, is pre- cisely to confront the antinomy of freedom and cause that 18 Id at 126. 19 Id at 10. 20 Id. 21 Id. 21 Id at 205 (emphasis in the original). 1376 [55:1371 Natural Law exercised the ancient and medieval natural law theorists. So, as Weinreb sees it, inquiry into the nature of justice ultimately rein- troduces the "ontological" problem of the justice of nature. Similarly, liberty and equality-the elements, for Weinreb, of a just social order-inherently contradict each other. Just as free- dom requires a determinate causal background with which it is ul- timately inconsistent, and just as desert requires a background or- der of entitlement with which it is ultimately inconsistent, liberty (the social analogue of desert and freedom) requires a background of equality with which it is ultimately inconsistent. According to Weinreb, "[1]iberty and inequality, equality and restriction of lib- erty, are the same, except that we ordinarily use the former mem- ber of each pair to indicate our approval and the latter to indicate disapproval."2 Hence, every attempt to advance liberty comes at a cost in terms of equality. But to the extent that inequalities are tolerated, the conditions of liberty are erased. Inasmuch as one is "less" equal, one is unfree. Yet enforced equality would destroy liberty. Weinreb maintains that attempts to overcome this antinomy by reference to a principle of "equality of opportunity" fail for rea- sons familiar to those acquainted with the current debate about justice. There seems to be no principled way to avoid either broad- ening the meaning of equality of opportunity to the point of re- quiring equality of results (thereby directly eliminating liberty) or narrowing it to a mere formalism (thereby sacrificing the substan- tive equality that serves as a condition of liberty). So, under Wein- reb's analysis, Nozick rightly charges Rawls with throwing over lib- erty for the sake of equality. But, by the same token, Nozick must plead guilty to jilting equality for the sake of liberty. And since liberty presupposes a background order of equality-an order which the concept of equality of opportunity cannot pro- vide-liberty itself cannot survive under Nozick's scheme. Unfor- tunately for egalitarian and libertarian theorists of justice alike, the very concept of justice is "antinomic." If Weinreb's arguments are telling, moral and political philos- ophy are doomed to frustration. The antinomy of freedom and cause that, according to Weinreb, eventually undid ontological the- ories of natural law reemerges to undo every modern alternative, whether they be deontological natural law theories or theories of justice. Contrary to what the older natural law theorists supposed, " Id at 225. 1988] 1377 The University of Chicago Law Review course of action. The work done by the first principle is more primitive. It states a condition of any coherent practical thinking, viz., that one's reasoning be directed toward some end that is pur- suable by human action. Even morally wicked choices, to the ex- tent that they are intelligible, meet this condition (although, as we shall see, not so well as morally upright choices). Consider, for ex- ample, a choice that treats another person unfairly. To the extent that such a choice has an intelligible point, it will be consistent with the first principle of practical reason, despite its immorality. Understood as a directive, the first principle is weak: It requires only coherence, not full moral rectitude. Under Grisez's interpretation, Aquinas believed that ulti- mately any choice has its intelligibility by reference to the intelligi- ble end(s) for the sake of which one terminates one's deliberation and acts. Our initial intelligent grasp of these ends requires no knowledge of metaphysical anthropology or any other speculative discipline, although various sorts of speculative knowledge (includ- ing sound metaphysics) can help one to pursue these ends more intelligently. The most basic knowledge of these ends is, rather, the fruit of practical insights. The practical intellect itself grasps certain ends as reasons for action that require no further reasons. They are intelligible as ends-in-themselves. As such, their intrinsic choiceworthiness is, as Aquinas says, per se nota (self-evident). It is by reference to such an end-in-itself, as the ultimate term in a more or less complex chain of practical reasoning culminating in a choice, that a non-baffling account of that choice can be given. Once one brings such an end into focus, no further questions rele- vant to the choice necessarily arise for someone seeking such an account. For Aquinas, as Grisez reads him, the ends that the practical intellect grasps as ultimate reasons for action are properly under- stood as intrinsic human goods and, as such, aspects of human ful- fillment. As goods "to be done and pursued" they are fundamental determinations of the first principle of practical reason, and, thus, basic precepts of natural law. They are not, however, singly and directly criteria of moral rectitude. Knowledge of human goods does not by itself resolve moral questions because it does not ex- clude some choices which, while intelligible, are morally wrongful. Rather, our intelligent grasp of human goods is what makes moral questions possible. For example, is it morally wrongful for a scientist to kidnap a child and subject her to deadly experiments-not, let us suppose, out of any malice, but in a sincere quest to identify the causes and 1380 [55:1371 Natural Law cure for a ravaging communicable disease? The question arises by virtue of our grasp of the genuine human goods at stake in a deci- sion either way. Let us suppose that a moral norm does in fact forbid the kidnapping and experimentation. As Grisez understands Aquinas, the first principle of practical reason could not have gen- erated this moral norm because a choice to go through with the kidnapping and experimentation would not be incoherent. The wrongfulness of such a choice would not consist in its being unintelligible. To the contrary, the goods of knowledge (here, sci- entific knowledge) and life and health (here, the lives and the health of victims and potential victims of the disease) provide the intelligible ends by reference to'which even the morally wrongful choice would be intelligible. But in view of the goods that the scientist could realize by carrying out the kidnapping and experimentation, it is worth ask- ing whether a moral norm forbidding the decision to do so would itself come into conflict with the first principle of practical reason. The answer is that it does not; for the choice not to kidnap and experiment is also intelligible. The life and health of the child, among other goods, are the ends that provide the intelligibility of this alternate choice. The moral norm provides a decisive reason for choosing between two courses of action, both of which are con- sistent with Aquinas's first principle. It excludes as wrongful one of the intelligible choices. As a moral norm, it does not identify the "good[s] to be done and pursued"; rather, it guides and structures human choice and action respecting such goods.3 2 According to Grisez, Aquinas did not bequeath us a systematic account of moral norms. Nor did he establish the link between the specific moral rules he did articulate and the self-evident first prin- ciples (i.e., the determinations of the first principle of practical reason) specifying the goods "to be done and pursued." In his own natural law theory of morality, Grisez has sought to remedy these inadequacies. In so doing, he freely departs from Aquinas at a 11 Of course, nothing changes if the correct moral norm requires a different result. Let us suppose not only that the scientist may kidnap the child and experiment on her but also that a moral norm commands this course of action. Either choice in the face of the putative moral norm in control of this situation would remain intelligible. The goods of life and health (here, the life and health of the child) would provide the intelligible determinants by reference to which the putatively immoral choice of not going through with the kidnapping and experimentation would be intelligible. Reference to these goods would provide a non- baffling answer to the question "why didn't you do it?" His choice not to do it, while, we are supposing, immoral, would be perfectly consistent with the first principle of practical reason. 1988] 1381 The University of Chicago Law Review number of points, while retaining Aquinas's fundamental theory of practical rationality as he understands it. Later, I shall discuss Grisez's revisions and development of Aquinas's moral theory. For the moment, however, I simply want to highlight the implications of Grisez's interpretation of Aquinas's theory of practical reason. Grisez's Aquinas does not propose to judge the morality of acts by their conformity to human nature. The knowledge of human goods that sets practical inquiry in motion and ultimately accounts for the intelligibility of human choices is not the fruit of metaphysical anthropology or any other speculative discipline. Nor can speculative inquiry generate moral norms by reference to which human beings can uprightly guide and structure their choos- ing in respect of human goods. Such norms are needed, but they cannot be derived from (human) nature. Thus, under Grisez's in- terpretation of Aquinas, nature is "normative" neither in Wein- reb's sense nor in the neo-scholastic sense. While Weinreb cites Grisez's article in a footnote to his own discussion of Aquinas's first principle of practical reason, he makes no reference to the interpretive dispute in which it figures as a cen- tral text. Indeed, almost immediately after stating Aquinas's prin- ciple, he baldly asserts that "natural law thus directs us to fulfill our natural inclinations. '3 3 Weinreb does not even consider Grisez's alternative account. He states that natural law "is a reflec- tion of human nature, the natural human inclinations toward ap- propriate human ends. 34 The role of reason, he says, is "to trans- late the natural inclinations into practical decisions and actions."35 If one accepts Grisez's interpretation of Aquinas's first princi- ple of practical reason, then the idea of a normative natural order has no place in Aquinas's ethics. If one rejects Grisez's interpreta- tion in favor of something like the neo-scholastic reading of Aqui- nas, an idea of what might be called a normative natural order is, indeed, required. But Weinreb's idea of such an order is nothing like what neo-scholastics (whose interpretation of Aquinas's first principle Weinreb seems to share) have in mind. When neo-scho- lastics claim that, for Aquinas, natural law theory hinges on mat- ters of ontology (or metaphysics), they do not mean that the cen- tral problem that must be addressed is that of human freedom in the face of causal determinism. Rather, they mean that moral norms must be derived from speculative knowledge of (human) 3 Weinreb, Natural Law and Justice at 58 (cited in note 1). 3, Id at 59. 35 Id. 1382 [55:1371 else to quibble about in this particular statement until the final clause, with which various sorts of Thomists would not only quib- ble but quarrel-at least if it is understood as Weinreb suggests we understand it. As I have observed, the whole of creation is, for Aquinas, suffused with meaning and value by divine intelligence and free choice. The universe is, indeed, ordered to the purposes of a providential Creator. But as Aquinas saw it, this does not rule out the proposition that some aspects of creation also are suffused with meaning and value by human intelligence and free choice. The natural (moral) law concerns meaning and value insofar as it is within the ambit of human intelligence and free choice. The nat- ural law is a participation in the eternal law because even that part of creation subject to the norms of the natural law ultimately de- pends upon divine intelligence and free choice. Nothing that is lies outside of the divine plan. But, contrary to what Weinreb implies, personal responsibility, for Aquinas, extends only to a person's free choices. Such responsibility extends "to what [a person] is and all the circumstances of his life" only insofar as these depend on his prior free choices. Whatever does not depend on free choices is the responsibility of someone else-ultimately God. Since Aquinas perfectly well understood that persons are often victims of evils for which they bear no responsibility, he recognized the need for a theodicy. But even here Aquinas made no appeal to a normative natural order under which "nature does justice." His theodicy was not designed to get God off the hook by showing that persons somehow deserve all they receive. As a Christian philoso- pher, Aquinas wanted to show that the evil to be found in the world is not chosen by God. God accepts the evil for the sake of the good, otherwise unattainable, that God will in His wisdom bring out of situations involving evil. As with any theodicy, there is ultimately a mystery about this, for the norms (if any) governing divine causality (if it exists) cannot be known by the human intel- lect. But this mystery has nothing to do with an alleged contradic- tion at the core of the idea of human freedom and responsibility. Weinreb misreads Aquinas's theory of natural law in supposing that that theory was proposed in an effort to overcome any such contradiction. D. Weinreb on Finnis and "Deontological" Natural Law Among those whom Weinreb classifies as contemporary "deon- tological" natural law theorists, John Finnis alone works self-con- sciously within the tradition of Aquinas. Weinreb singles out Fin- nis's work for special praise. "In his book Natural Law and 1988] Natural Law 1385 The University of Chicago Law Review Natural Rights... , John Finnis has developed the most substan- tial and serious contemporary theory to which the label of natural law attaches."'40 As Finnis himself observes, however, there is "not • . . much that is original" in his arguments.41 The natural law the- ory of morality Finnis proposes as a foundation for the political theory and jurisprudence he defends is, as he says, "squarely based" on the work of Germain Grisez.42 And, as we have already seen, Grisez's approach to ethics builds upon his own understand- ing of Aquinas's theory of practical rationality. In the years since Finnis's book was published, Grisez and Finnis have collaborated on a number of projects (usually along with Joseph M. Boyle, Jr.), and have developed their ethical theory in important respects. I will deal with what is perhaps the most significant of these devel- opments in the present section. Weinreb's basic criticism of Finnis's natural law theory is that it is based on the mistaken "belief that, if one reflects carefully about the human condition, the principles of moral action are a self-evident basis for the determination of concrete obligations. 4 Weinreb supposes that Finnis "[r]eject[s] explicitly any proof for his claims except the self-evident truth of the claims themselves." 44 In one instance, Weinreb refers (dismissively) to "Finnis' apparent claim that his position on [the subject of abortion] is a self-evident truth. '4 5 More generally, Weinreb suggests that "even those who agree with [Finnis] on the merits may suppose that he has con- fused self-evidence with personal conviction. ' 46 And, while al- lowing that "[t]he conclusions that Finnis reaches may be correct," Weinreb flatly accuses Finnis of "repeatedly [suggesting that] ar- guments opposed to his own are.., accepted only by persons who have not thought carefully or are blinded by bias or self-interest or convention. 47 On this last point, Weinreb offers no citation to Finnis's writ- ings, nor could he have done so. He has simply misunderstood the implications of Finnis's account of the reality of immoral choos- ing.48 This account does not imply that arguments opposed to Fin- 40 Id at 108. 41 Finnis, Natural Law and Natural Rights at vi (cited in note 3). 42 Id at vii. 43 Weinreb, Natural Law and Justice at 115 (cited in note 1). 44 Id at 109. 45 Id at 296 n 32. 46 Id at 113. 47 Id at 112. 48 Finnis offers this account as part of his reply to moral skeptics who cite the diversity 1386 [55:1371 nis's own are only accepted by those who are thoughtless, biased, or self-interested. What Finnis, like most moralists, does suppose is that persons (and whole cultures) can, in their practical think- ing, be led astray by factors such as bias, self-interest, convention, and emotion. It is hardly fantastic to think, for example, that such factors had something to do with the blindness of many Americans of another age to the immorality of slavery. But, while virtually no one today is unimpressed (or admits to being unimpressed) by ar- guments against slavery, it is worth noting that even certain argu- ments directly in support of slavery were accepted by some people who were not "careless in their thinking or blinded by bias, self- interest, or convention." Nothing in Finnis's account requires him to deny this in order to hold both that pro-slavery arguments were wrong, and that those who accepted them were wrong in so doing. Weinreb's substantive objections to Finnis's theory have mainly to do with Finnis's appeals to self-evidence. Since puta- tively self-evident propositions do figure crucially in the moral the- ory Finnis defends and deploys, it is worth attending closely to these objections. I shall argue that Weinreb has seriously misun- derstood the place of propositions claimed to be self-evident in the Grisez-Finnis theory of morality. Contrary to what Weinreb sup- poses, those subscribing to the theory do not hold conclusions in normative ethics to be self-evident. Once I have cleared away this interpretive mistake, I shall explain what sorts of principles they do suppose to be self-evident and offer a defense of the plausibility of such principles. Weinreb makes a basic interpretive error in supposing that Finnis thinks that his conclusions (whether about abortion or any other issue in normative ethics or political theory) are self-evident. Specific moral norms (like a norm about abortion or its legal regu- lation) are, under the Grisez-Finnis theory, derived from more gen- eral moral norms that guide human choice and action in respect of intrinsic human goods. Any such derivation requires an argument. One must argue one's way to a conclusion. If, as Grisez and Finnis suppose, human life is an intrinsic good of persons, and if, as they further suppose, a general moral norm forbids direct attacks on such intrinsic goods, then abortion, if it destroys the human life of a person directly (i.e., either as an end or, what is more likely, as a means to another end, rather than as a foreseen and accepted side- effect of an otherwise morally acceptable choice) is immoral. But if of moral opinion and, especially, cultural relativity, as part of their case against natural law. See Finnis, Natural Law and Natural Rights at 127 (cited in note 3). 1988] Natural Law 1387 The University of Chicago Law Review me tell a little story designed to demonstrate how Grisez and Fin- nis suppose we can grasp first practical principles that refer to ba- sic human goods. E. The Identification of a First Practical Principle I regularly employ as a teaching assistant a graduate student named Adam. He has been remarkably successful as a teacher be- cause he combines extraordinary intellectual curiosity and ability with genuine dedication to the education of his students. Indeed, he sometimes devotes himself so fully to his teaching that he is left with but little time for his own projects. Now, let us suppose that I discover that Adam has taken a part-time job on the late-night shift (9 p.m. - 3 a.m.) flipping hamburgers at the local Burger King. Naturally, my curiosity is aroused. I wonder why, in view of all the other demands on his time and energy, he has made a choice to spend time that he could, after all, devote to reading, writing, relaxing, being with friends, enjoying himself, getting some sleep, and the like, sweating over a hot grill in a noisy fast-food restaurant. I know that Adam is not irrational, so I assume, of course, that there must be some coherent explanation. So, let us suppose that I ask him about it. Now, if he responds to my inquiry by saying that he took the job to earn some extra money, I would hardly find his explanation baffling. I am well aware of the utility of money. One can, after all, spend it on things one needs or wants. One can save it for a rainy day, enjoying the peace of mind that comes, I am told, with financial security. One can even collect and study money, in the form of bills or coins, as a hobby or amusement. Of course, I would suppose that if Adam took the job to earn money, he sought the extra income for some such reason. But if, contrary to my supposition, Adam should in- form me that he wants the money just for its own sake, I would find his decision to take the job simply unintelligible. Let us suppose I press him on the matter: "Surely, Adam, you want the extra money for a reason. Are there things you want to purchase with it?" "No, I already have enough money to buy any- thing I'll ever want." "Then, do you want it for the power or pres- tige available to those known to be wealthy?" "No, I am a Ghan- dian; I have no interest in such things." "Do you want it in order to give it away to a friend, or to a cause, or to the poor?" "No." "Then perhaps it is not the money you want, after all. Perhaps your reason for taking the job is that you enjoy that sort of work." "Are you kidding? Only a fool would work as a short order cook except to make money. As I said, the money is what I'm after. But 1390 [55:1371 Natural Law I'm not after it for any ulterior reason. It is an end-in-itself." Well, this conversation would leave me baffled. The curiosity aroused in the first instance when I learned of Adam's decision to take the part-time job would remain unsatisfied. A question that the inquiring intellect cannot but consider relevant-why do you want the money?-would remain unanswered. The putative desir- ability of money for its own sake just "does not compute." So, Adam's account would leave me scratching my head in bewilder- ment. I would remain unable to make sense of his decision to take the job. It is not that I would view Adam's choice as somehow im- moral or even imprudent. Questions of moral rectitude or prudence would simply not be reached. I would be stuck contemplating the (ir)rationality of the choice. Under Adam's account, his decision to take the job would seem utterly pointless, and therefore irrational. It would seem to violate Aquinas's first principle of practical rea- son (as Grisez interprets it). The general lesson to be drawn from reflection on the matter thus far is that money can only have (important) instrumental value. It cannot serve as a reason for action that requires reference to no further reason in order to ground the action's intelligibility. If we trace a chain of practical reasoning culminating in a choice back to its ultimate term, and find that that term is money sought as an end-in-itself, the data provide no intelligibilities for the in- quiring intellect to pick out. But let us now suppose that Adam's account of his decision to take the job does not end with his desire to earn some additional money. In reply to my inquiry, he says that he wants the extra money for a reason-to buy an expensive medicine. Of course, I immediately suppose that he, or someone close to him, is ill. But, again, what if my supposition is incorrect? When I ask after his health, he says, "Oh no; it is kind of you to ask, but I'm not sick. No one I know is sick. I'm not buying the medicine to administer it to anyone. Medicine is worth having just for its own sake." "Have you become interested in pharmacology?" "Nope." "You haven't started a medicine collection, have you?" "Of course not." This conversation leaves me no less baffled than the one about money. Inasmuch as medicine, like money, is something of instrumental value rather than intrinsic value, it fares no better than money as an intelligible ultimate reason for action. It is not an "explanation stopper." Of course, since Adam is a rational person, his account of his decision would not stop with the reference to medicine. He would give a reason for wanting the medicine. Let us suppose that his 1988] The University of Chicago Law Review reason is that his sister has been afflicted with a serious illness that only a costly medicine can cure; so he has decided to take the job in order to earn the money to buy the medicine needed to restore his sister's health. If Adam's explanation stops here, has he left me baffled? Not at all. I now have the data I need to make sense of Adam's decision, and, thus, to understand it as, at least, rational. I can now see the point of his decision to take the part-time job. Acting for the sake of (his sister's) health as an end-in-itself is per- fectly intelligible. The intelligibility of health as a reason for action need not be supplied, as in the case of money or medicine, by some more fundamental reason. Of course, there is nothing to stop me from asking Adam why health is something he wants his sister to have. But there would be nothing baffling about the straightforward reply that, beyond any instrumental value health might have for his sister, health is one of those things worth having just for its own sake. Adam's decision, and the chain of practical reason culminating in that decision, are completely intelligible simply by reference to (his sister's) health as something intrinsically valuable. And this intelligibility is avail- able to anyone inquiring into the matter-regardless of whether the inquirer himself would have acted as Adam did had a loved one of his own been ill.57 Grisez and Finnis notice that we do not grasp the intelligibil- ity of health as something intrinsically valuable in the same way we come to understand the purely instrumental value of things like money or medicine. Instrumental values can (only) be established by way of deductions or inferences from still more fundamental premises. But intrinsic values, as ultimate reasons for action, can- not be deduced or inferred. We do not, for example, infer the in- trinsic goodness of health from the fact, if it is a fact, that people everywhere seem to desire it. (Although this sort of anthropological information can figure usefully in dialectical arguments-especially those meant to rebut claims that our belief in the intrinsic good- ness of health is merely culturally induced.) We see the point of acting for the sake of health, in ourselves or in others, just for its own sake, without the benefit of any such inference. Acts per- formed for the sake of health (even where we do not approve of them-e.g., when the scientist kidnaps the child in order to find a cure for the ravaging disease) do not strike us as utterly pointless. It is in this light that Grisez and Finnis claim that principles such '1 Of course, affirming the intrinsic value of health does not preclude acknowledging that health, like other intrinsic goods, has tremendous instrumental value as well. 1392 [55:1371 Natural Law shall do so here as well. Insofar (but only insofar) as the Grisez-Finnis theory under- stands the intelligibility of human choices as grounded ultimately in human goods (understood as constitutive aspects of human ful- fillment), it is "teleological." Weinreb's labelling notwithstanding, Finnis's natural law theory is by no means purely deontological.16 In its teleological dimension (but only in this dimension), it resem- bles consequentialist ethical theories as well as certain neo-Aristo- telian and neo-scholastic natural law theories. Any teleological theory of practical reasoning that identifies more than one human good will need, if it is to ground a theory of morality, a principle or set of principles capable of guiding human choice and action in respect of the various goods. For consequen- tialists, the master principle of ethics directs the chooser to act in the way most likely to produce the best net proportion of good to bad consequences, overall and in the long run. Grisez and Finnis reject this principle on the ground, among others, that it assumes what is false, viz., that the instantiations of human goods (and bads) are commensurable in such a way as to make possible the intelligent weighing or measuring of "value" necessary to conse- quentialist calculations. As ultimate reasons for action, the human goods, and their instantiations, must be irreducible to one another or to any more fundamental category. Thus, they are incommensurable.6 2 Grisez and Finnis maintain that the principle proposed by many neo-Aristotelian and neo-scholastic moralists as an alterna- " The theory is not "teleological" in any sense that implies a commitment to a conse- quentialist principle of moral judgment, on the one hand, or a teleological view of nature, on the other. 6' Under pure deontological theories, practical reason identifies moral norms without reference to human goods. 62 On the damning implications of incommensurability for all forms of consequential- ism, see Germain Grisez, Against Consequentialism, 23 Am J Juris 21 (1978); Finnis, Funda- mentals of Ethics at 86-93 (cited in note 49); and Finnis, Boyle, and Grisez, Nuclear Deter- rence at ch IX (cited in note 51). See also Joseph Raz, Value Incommensurability: Some Preliminiaries, 86 Proceedings of the Aristotelian Society 117-34 (1985-86); and Joseph Raz, The Morality of Freedom ch 13 (Oxford, 1986); Anselm W. Muller, Radical Subjectiv- ity: Morality Versus Utilitarianism, 19 Ratio 115-32 (1977); Philippa Foot, Utilitarianism and the Virtues, 94 Mind 196-209 (1985); and Philippa Foot, Morality, Action, and Out- come, in Ted Honderich, ed, Morality and Objectivity 23-38 (Routledge & Kegan Paul, 1985); Alasdair Maclntyre, After Virtue 61-62, 67-68 (Notre Dame, 1981); Charles Taylor, The Diversity of Goods, in Amartya Sen and Bernard Williams, eds, Utilitarianism and Beyond 129-44 (Cambridge, 1982); and David Wiggins, Weakness of Will Commensurability and the Objects of Deliberation and Desire, in Amelie Oksenberg Rorty, ed, Essays on Aristotle's Ethics 241-65 (Cal-Berkeley, 1980). 19881 1395 The University of Chicago Law Review tive to consequentialism is no more plausible. This principle sup- poses that speculative inquiry can identify an objective hierarchy among the goods. It directs the chooser, at least in certain conflict situations, to act for the sake of the superior good. Grisez and Fin- nis deny that anything in our grasp of fundamental practical prin- ciples warrants the conclusion that there is an objective hierarchy among the basic goods to which these principles refer-at least in any sense of "hierarchy" relevant to choice. Indeed, they suspect that any claim that such a hierarchy exists supposes the false the- sis about commensurability that renders consequentialism untena- ble. It supposes, that is, that some goods have "more" good in them than others. Having rejected consequentialist and neo-scholastic principles, Grisez and Finnis propose their "modes of responsibility." These are put forward as a set of general norms by reference to which various forms of unreasonableness in choosing in respect of human goods can be identified. But what do Grisez and Finnis take to be the standard of (un)reasonableness? The answer to this question remained obscure in Finnis's book and in Grisez's early work. As presented, the modes of responsibility, while intuitively appealing to many readers and defensible dialectically against various criti- cisms, appeared to pop out of nowhere. Especially perplexing to some readers was the mode that forbids acting directly against a basic good, i.e., "doing evil that good might come of it." Even some readers who found Grisez's and Finnis's criticisms of consequen- tialism and neo-scholasticism compelling felt uncomfortable with an apparently ungrounded moral norm capable of generating moral absolutes (e.g., no direct killing, no torture). Perhaps the most important development in this theory since the publication of Finnis's book is what Grisez and Finnis call the "first principle of morality." As formulated in their most recent collaborative work, this principle enjoins persons to "choose and otherwise will those and only those possibilities whose willing is compatible with integral human fulfillment."6 If sound, this prin- ciple provides an intelligible grounding for the various modes of responsibility. The modes themselves are, in effect, specifications of this first principle. They exclude as practically unreasonable (i.e., immoral) various types of willing inconsistent with a will that is well-disposed toward all of the human goods. The concept of integral human fulfillment, as it figures in the 6' Finnis, Boyle, and Grisez, Nuclear Deterrence at 283 (cited in note 51) (emphasis removed). 1396 [55:1371 Natural Law Grisez-Finnis statement of the first principle of morality, is easily misunderstood. It is not meant to indicate a supreme good above or apart from the basic goods. The basic human goods are reasons for action in a sense that integral fulfillment cannot be. But the fulfillments offered by basic goods, while genuine, are incorrigibly partial. No choice, or set of humanly possible choices, can bring about overall fulfillment. In none can one realize every humanly fulfilling possibility. The very open-endedness of the basic goods precludes this. The possibilities realized in and by human choices and actions are aspects, but only aspects, of complete human well- being. Inasmuch as no human choice, or set of choices, can realize anything more than aspects of complete human well-being, integral fulfillment cannot be a grand operational objective (whether of an individual, a community, or the whole human race). As Finnis and Grisez put it, "[e]thics cannot be an architectonic art in that way; there can be no plan to bring about integral human fulfilment."I4 Thus, for Grisez and Finnis, the principle of integral human fulfillment is an ideal: not in the sense of a Platonic form of the good existing in a realm transcending this world, but in the sense of something that, while not a direct object of choices or attainable by and in them, can nevertheless be imagined (if imperfectly) and even wished for, and so can provide the standards by which choices may reasonably be guided. 5 The first principle of morality, in making reference to this ideal, does not direct us to choose in such a way as to bring about (or contribute to a project of bringing about) integral human fulfillment, for any such principle would be worse than utopian. It would direct us to do what in principle can- not be done. Any such principle would itself be an ideal-and a 64 Id. " The possibility of there being possibilities for choice the willing of which is compati- ble with integral human fulfillment depends on a particular (and controversial) theory of human action. Under this theory, the commonly accepted model of action-that under which an agent (i) wants to bring about a certain state of affairs; (ii) makes plans to bring it about by causal factors within his power; and (iii) carries out a set of performances to bring it about-must be rejected as inadequate. The theory proposes a more complex model under which persons choose not just for extrinsic purposes, but for ends which are intrinsic to themselves as persons-goods, in other words, in which they participate. A person's actions have moral significance as voluntary syntheses of the person with human goods in three ways: when one chooses something for its intrinsic value; when one chooses something as a means; and when one voluntarily accepts side-effects (good or bad) brought about inciden- tally to acting in the other two ways. All of this is rejected by consequentialists, for example, who deny that voluntarily accepted side-effects can be outside of the scope of an intelligent agent's intention in any morally significant way. Finnis, Boyle, and Grisez formally set out and defend their action theory (against consequentialist and other criticisms) in Nuclear Deterrence especially at 288-91 (cited in note 51). 19881 1397 The University of Chicago Law Review then an adequate alternative will have to treat basic goods as in- commensurable. But to do so, a general moral principle would have to direct choosing in a way respectful of each basic human good and each human individual as an ultimate locus of incommensura- ble values.7 1 This, of course, is exactly what the first principle of morality, as formulated in the Grisez-Finnis theory, is designed to do. In the absence of some understanding of human goods, knowl- edge of the first principle of morality would not be possible. Does this confute the alleged self-evidence of this principle? No. If any- thing, it establishes that our grasp of the principle is not, as some have charged, a mere intuition. Rather, it, like our grasp of first practical principles, is accomplished by intelligent reflection on data. Our practical intellects pick out intelligibilities in the data provided by our grasp of first practical principles, thus making possible additional practical-in this case moral-judgments. Here, I think, it is worth spelling out briefly the relationship between the first principle of practical reason, its determinations, and the first principle of morality. We have already seen that, under the Grisez-Finnis theory, practical knowledge in its "pre- moral" aspect is directive (although not fully normative). It directs action toward intelligible ends and, thus, away from pointlessness. It identifies goods as "to be done and pursued." Thus, immoral choices are not irrational. (Indeed, purely irrational acts are not "chosen" in any morally significant sense.) One chooses immorally for a reason. The intelligibility of immoral choices, like that of all rational acts, is grounded ultimately in the goods for the sake of which they are made. These goods are, as we have seen, the sub- jects of first practical principles. Any immoral choice is, thus, con- sistent with at least one such principle. The immoral choice re- sponds to the directiveness of that (or those) principle(s). The good available in such a choice can be sought as a genuine benefit. But it is a benefit that comes only at the cost of ignoring the direc- tiveness of other practical principles. The goods that are treated as something other than irreduc- ible, incommensurable aspects of integral human fulfillment in an immoral choice are themselves, of course, the subjects of practical principles. Thus, the responsiveness of immoral choices to the first principles taken as a whole (i.e., to the first principle of practical reason) is imperfect. Indeed, they are imperfect in a sense in which 71 In the next section I shall discuss the complex question of the relationship between human goods and the persons whom they fulfill. 1400 [55:1371 Natural Law morally upright choices cannot be judged imperfect. Let me explain. In any morally upright choice, there will be "goods to be done and pursued" that are not done and pursued. No choice can bring about integral human fulfillment by perfectly realizing every possi- ble human good. But the directiveness of first practical principles does more than identify goods as "to be done and pursued." It identifies the damaging of these goods as "to be avoided." A choice that is rational inasmuch as it responds to a practical principle, can still be less than fully reasonable in its failure to respect a dif- ferent practical principle. To choose with a will toward realizing a certain good is to choose rationally. Both morally upright and im- moral choices embody this sort of willing. But to choose with a will that another good be sacrificed or damaged is to seek a goal "at the expense of reason, part of whose directiveness will have been ig- nored by choice. '7 2 Such choosing is the mark of immorality-not because it contradicts the first principle of practical reason, but inasmuch as it responds to it imperfectly. Does this imply that the first principle of morality is unneces- sary because the determinations of the first principle of practical reason themselves are sufficient to forbid immoral choices? No. By making knowledge of the ideal of integral human fulfillment (and what is inconsistent with that ideal) possible, first practical princi- ples provide the occasion (i.e., the data) for judging that a princi- ple of complete reasonableness would direct action by reference to that ideal. Unless the judgment is made, and the principle formu- lated, however, there is no ultimate ground for full moral norma- tivity, as distinguished from practical directiveness. Does this im- ply, then, that the first principle of morality is deduced or inferred from pre-moral practical principles? Again, the answer is no. The judgment is made in light of the data provided by the first practi- cal principles, but it is not the fruit of a derivation from those principles. Such principles do not provide the grounds of the epi- stemic legitimacy of an affirmation of the first principle of moral- ity. Those grounds are provided by the proposition stated in the principle itself. There is, for example, no relationship of entailment between the first principle of practical reason, and/or its determi- nations, and the first principle of morality. 72 Germain Grisez, Joseph Boyle, & John Finnis, Practical Principles, Moral Truth, and Ultimate Ends, 32 Am J Juris 99, 123 (1987). 1988] 1401 The University of Chicago Law Review G. Free Choice, Causality, and Moral Responsibility I presented the foregoing lengthy exposition and defense of the Grisez-Finnis theory to correct Weinreb's account of the role of self-evident principles in the Grisez-Finnis natural law theory and to answer his criticism of Finnis's appeals to such principles in Natural Law and Natural Rights. This, as I understand it, is the heart of Weinreb's case against "deontological" natural law theory of the Grisez-Finnis sort. Having assumed that Finnis's work con- fuses self-evidence with personal conviction, Weinreb does not de- velop a detailed case against the Grisez-Finnis theory for failing to solve what Weinreb himself takes to be the central puzzle of moral and political philosophy (and, indeed, human existence itself), namely, the "ontological" problem of human freedom in a causally determinate universe. I shall conclude my discussion of Weinreb by remarking on how the question of freedom and cause can be handled under the Grisez-Finnis theory. Weinreb is correct to suppose that the problem of human free- dom, i.e., self-determined action, is crucial in moral and political philosophy. In the absence of some free choice in human affairs, there could be no moral norms because such norms govern only free choices. Anyone who proposes a moral norm presupposes some free choice. But this presupposition does not establish that free choices are possible. It might be the case, after all, that no human actions are self-determined and, therefore, that there are no moral norms. If it is more reasonable to believe in complete determinism than in some free choice, then it is more reasonable to disbelieve than to believe in any moral norms. If, as Weinreb argues, the is- sue is inherently unresolvable, then no moral theory (and no moral norm) can be secure. Indeed, if Weinreb's argument goes through, there would appear to be no practical point to moral theorizing. Recognizing the relevance of free choice to moral theory, Grisez, together with Joseph M. Boyle, Jr. and Olaf Tollefsen, took up the problem directly in a book published in 1976 entitled Free Choice: A Self-Referential Argument. Therein, the authors presented an argument for the proposition that someone can make a free choice. The argument is self-referential in the sense that it proposes to establish the falsity of the proposition that nobody can make a free choice by reference to the very act of asserting that proposition as true. Reducing a very lengthy and dense argument to its central propositions, here is a summary: The arguments made by those who deny free choice will, like any other arguments purporting to ground rational affirmations, presuppose both the [55:13711402 Natural Law it in appealing to a principle of sufficient reason. Any such princi- ple is either at the boundaries of explanation, and intelligible in itself, or else unintelligible. There is no sufficient reason for it (which is by no means to say that it is false). Much earlier I quoted Weinreb's assertion that unless the cir- cumstances of a person's act, together with the qualities that make him act as he does, are determinate, his act seems to be "the prod- uct of arbitrary occurrences as far as he is concerned and not something for which he individually is responsible." ' This claim grounds the alleged antinomy of freedom and cause that Weinreb thinks is the central, unavoidable, yet unresolvable, question of moral and political philosophy. I think that his claim is confused. "Arbitrary" refers to human action, while "occurrence" refers to what happens apart from action. To the person choosing, the choice he is making seems "arbitrary" only in the trivial sense that he perceives nothing forcing him to make it. It does not seem "ar- bitrary" in the sense of irrational or non-rational, because whatever he opts for does not seem to him pointless. The choice does not, however, seem like an "occurrence." It seems like some- thing he is doing, not like something that is happening to him. From his own point of view, at least, he is determining the outcome. Of course, the particular options a person faces may have little or nothing to do with that person's (or, for that matter, anyone else's) free choices. The sheer givenness of a set of options does not mean that the choice between them is not free, nor does it mean that one cannot be responsible for choosing one way rather than another. Free choice does presuppose causality-otherwise there could be no determinate options for choice-but it does not pre- suppose a measure of causality with which it is incompatible. When we have a free choice to make, lots of things that are already determined, including everything that brings us to that point, pro- vide the open alternatives among which we must choose and make our choosing possible. All that it means to say that this is a free choice is that nothing causes us to make the choice one way rather than another. Implicit in many arguments that actions must either be caused or are random is the so-called phenomenalist conception of the self.7 5 Under this conception, the self is a collection of discrete ex- 7 Weinreb, Natural Law and Justice at 6 (cited in note 1). ' On the role of the phenomenalist conception of the self in many arguments against free choice, see Boyle, Grisez, and Tollefsen, Free Choice at 81 (cited in note 73). 1988] 1405 The University of Chicago Law Review periences bundled together only by various regularities. Any event, then, that is not integrated into these regularities by a cause, must be the product of mere chance. A "free choice" made by such a self would be a random event. And, as Alasdair MacIntyre argued many years ago, "[w]hat is random is no more free than what is caused." 6 Were the phenomenalist conception of the self compelling, it would provide profound support for Weinreb's alleged antinomy. But a great many arguments can be marshalled against the phe- nomenalist conception, and Weinreb does not argue for it. Implicit in the free choice position is an alternative conception of the self as substantially, but not completely, integrated. For a person to make a free choice that is not merely random but truly his, he must have a character and personality. Without these, there is no self capable of understanding the intelligible goods promised by the options, deliberating about them, and acting.77 But, at the same time, his character and personality must be sufficiently open that these causal factors do not determine the choice. The concep- tion of the self as substantially, but incompletely, integrated com- ports well with our common sense understanding of human agency. Under this conception, persons partially determine their characters and personalities by their own free choices. Heredity, environment, and free choice together account for a person's character.7 8 Free choice accounts for the possibility of self-determined changes (for better or worse) in character, and hence for the possibility of, for example, repentance and reform. The more or less determinate self that makes a free choice de- termines itself further in that choice. The choice, in a sense, then, "lasts" in the character and personality of the chooser-at least until the chooser makes another choice incompatible with it (thus re-orienting his character and personality by his own free choice)." The upshot of this self-constituting quality of choices is that sub- sequent acts performed in accord with a character established by one's free choices are acts for which one can reasonably be held (and hold oneself) morally responsible. Weinreb is correct to say that "[f]ull moral responsibility seems to require that an act be 76 A.C. MacIntyre, Determinism, 66 Mind 28, 30 (1957). 7 See Boyle, Grisez, and Tollefsen, Free Choice at 82 (cited in note 73). 78 Id at 83. 71 On the "lastingness" of choices, see Finnis, Fundamentals of Ethics at 139-44 (cited in note 49). 1406 [55:1371 Natural Law both free and determinate."80 But he is wrong to suppose, if in- deed he does suppose, that any self that is determinate enough to enable a person's act to be his own is completely determinate, and therefore incapable of doing anything other than whatever it does. As we have seen, a central feature of the Grisez-Finnis moral theory is its account of ultimate reasons for action. The first prin- ciple of practical reason and its determinations guide action by ref- erence to these reasons. Thus, they make free choice possible with- out implying "arbitrariness" in any sense that would undercut moral responsibility for one's actions. If these principles are sound, we need not account for every aspect of non-arbitrary human ac- tion by reference to causality. Causal factors will bear on human choice and action in a wide variety of ways, but some free choice can exist against the background causal order without contradic- tion. Moral norms, if they can be identified, provide the standards for fully reasonable (free) choosing where free choice exists. Moral and political philosophy are not, then, as Weinreb's arguments would lead us to conclude, doomed to frustration by an antinomy at their core. A theory of natural law, including a natural law the- ory of justice, need not adopt the implausible proposal that the causal natural order parcels out illness and health, plenty and pri- vation according to the desert of the recipients in a desperate ef- fort to dissolve the alleged antinomy. II. RUSSELL HITTINGER'S A CRITIQUE OF THE NEw NATURAL LAW THEORY. Russell Hittinger's A Critique of the New Natural Law The- ory is both narrower in its scope and less ambitious in its claims than Weinreb's book. Hittinger's work is a critical examination of the Grisez-Finnis natural theory-a theory Hittinger identifies as a product of the movement abroad in contemporary moral philoso- phy to recover a credible "pre-modern" tradition of ethics. This movement, which he labels "the recoverist project,"81 is generated, in his view, by widespread disillusionment with what appears to be stalemate between utilitarianism and deontology in modern dis- course about ethics. It was in reaction to this apparent stalemate, according to Hittinger, that Alasdair MacIntyre, perhaps the most prominent "recoverist," set about diagnosing what he called the "interminability" of contemporary moral debates in his influential W' einreb, Natural Law and Justice at 6 (emphasis in the original) (cited in note 1). 81 Hittinger, A Critique at 2 (cited in note 2). 1988] 1407 The University of Chicago Law Review represents a theory of "natural law without nature." Such an ap- proach, in Hittinger's judgment, attempts "to recover natural law theory by way of shortcuts."' 0 And, for him, no less than for Wein- reb (although for a different reason), shortcuts will not do. Hittinger's critique of the Grisez-Finnis theory begins with a set of arguments purporting to show that the attempt to identify human goods without appeal to a speculative philosophy of nature falls into a sort of intuitionism that leaves the basic goods vulnera- ble to skeptical attacks. Indeed, he implies that Grisez and Finnis themselves seem to perceive this inasmuch as they regularly mar- shal evidence acquired by various sorts of speculative inquiry (e.g., anthropological data) in support of the putatively self-evident ba- sic goods. Arguments based on evidence of this sort ought to be unnecessary, Hittinger suggests, if the practical intellect can grasp the first principles that refer to basic goods without inferring any- thing from speculative knowledge of the goods as natural human ends.9' In criticizing Weinreb's account of Finnis's appeals to self-evi- dence, I discussed the familiar charge that the Grisez-Finnis theory of first practical principles is based on intuitions. Here I wish to say a word about the use of dialectical arguments in defense of propositions claimed to be self-evident. Dialectical argumentation focuses on the relationships between propositions (including puta- tively self-evident propositions) to be defended and other knowl- edge. The point of such argumentation is to highlight the unac- ceptable implications of denying the propositions to be defended, or the inappropriateness of relying on certain evidence (shown to be inapt or defective) to deny or cast doubt on those propositions. Now, speculative arguments can be useful in casting doubt upon propositions alleged to be self-evident practical truths. For example, the presentation of anthropological evidence tending to show that no form of friendship existed in certain non-Western cultures prior to their contact with the West, while not itself a dis- proof of the self-evident value of friendship, would cast substantial doubt on the proposition that friendship is intrinsically valuable. It would provide an occasion for anyone who judged friendship to be objectively good to at least rethink the matter. One would be sur- prised to learn that a self-evidently worthwhile human end was un- known (or known but unvalued) by a substantial part of mankind. In carefully rethinking the matter, perhaps one would discover 91 Hittinger, A Critique at 198 (cited in note 2). 91 Id at 44-45. 1410 [55:1371 Natural Law a mistake in one's practical judgment about friendship. Perhaps it would transpire that, while friendship is not intrinsically valuable, its historically contingent, but very close, links with certain more fundamental goods in one's own culture deflected one's under- standing of the matter, leading one falsely to conclude that the value of friendship is intrinsic (rather than, say, merely instrumen- tal). On the other hand, perhaps, even after a searching reconsider- ation, one's judgment of the intrinsic worth of friendship would not change. In this event, one would likely find the anthropological evidence perplexing in light of one's considered practical judgment. The phenomenon of a widespread failure to grasp what one judges to be a self-evident practical truth would itself demand an expla- nation; it would set a substantial question for further speculative inquiry. Just as speculative arguments can cast doubt on propositions claimed to be self-evident practical truths, speculative arguments can be effective in rebuttal. An effective speculative argument of this sort does not estabish the self-evidence of a self-evident prac- tical truth. It simply removes a particular doubt about that truth. For example, an argument that established that the apparent non- existence of friendships in certain non-Western cultures can be ac- counted for by the failure of Western anthropologists to appreciate the distinctive forms and expressions of friendship in such cul- tures, would itself remove the doubts raised by the disturbing an- thropological evidence. But, one might ask, can there be doubts about self-evident truths? Yes-precisely because such truths are not mere intuitions or innate ideas. They are grasped by intelligent reflection on data presented by experience (e.g., one's own direct or indirect experiences of friendships). And any such grasp involves an act of understanding. Many factors capable of derailing under- standing respecting non-self-evident propositions, whether practi- cal or speculative, are equally capable of impeding sound judgment in respect of self-evident propositions. Thus, we would do well to follow Aquinas in distinguishing propositions that are self-evident to everyone, from propositions that are self-evident only to the wise.9 2 It is possible for anyone to fail to grasp a self-evident truth; just as it is possible for anyone to mistakenly suppose that what is in reality a derived proposition (or even a false proposition) is a self-evident truth. Dialectical arguments are, I think, especially powerful in re- " Aquinas, Summa Theologiae at 1-2, q 94, a 2 (cited in note 29). 19881 The University of Chicago Law Review buttal. However, they may be employed affirmatively in support of a self-evident practical truth, often with persuasive force. For ex- ample, the considerable anthropological evidence tending to show that various forms of friendship, knowledge, and religion are to be found in virtually all cultures, while not evidence of the self-evi- dence of the value of these realities (for there can be no "evidence" of "self-evidence"), does show that a practical judgment of their intrinsic worth comports well with the data. It places something of a burden on anyone who would deny the proposition stating this practical judgment to account for the universality of phenomena such as friendship, intellectual inquiry, and worship. Any theory that proffers an explanation proposing a sociologically determinis- tic or psychologically reductionistic account will be subject to the increasingly familiar criticisms of all forms of determinism and re- ductionism. Perhaps someone skeptical about basic goods could meet these criticisms. But here the skeptic would, in any event, be the party attempting to rebut dialectical arguments supporting self-evident practical truths (but not, of course, establishing their self-evidence). In view of the foregoing analysis, I see no warrant for Hit- tinger's suspicion of Grisez's or Finnis's use of evidence procured by way of speculative inquiry in support of propositions they hold to be self-evident practical truths. But Hittinger has another, more substantial, argument against the proposal that first practical prin- ciples are not derived from speculative knowledge. He argues that there are respects in which at least a certain minimum amount of speculative knowledge is indispensable to our practical judgments. For example, a basic understanding of the integral organic func- tioning of the human body (i.e., of being alive) is a condition of any judgment, including any practical judgment, about the status of life and health as basic goods. Grisez himself has implicitly ac- knowledged this, as Hittinger points out, especially in his early work on contraception. 3 There, as Hittinger reports, Grisez ar- gued, for example, that the good of life must be judged as a whole rather than in relation to the end of each faculty or physiological power. Ac- cordingly, respiration and nutrition cannot be said to be basic human goods. However, from a biological point of view, the "work of reproduction is the fullest organic realization of the living substance." [Citation omitted] In other words, it differs Germain Grisez, Contraception and the Natural Law (Bruce, 1964). 1412 [55:1371 "good" as what is "attractive to the agent" flirts (at a minimum) with subjectivism. But Hittinger does the Grisez-Finnis theory an injustice by implying that a derivation of value from a speculative philosophy of nature is necessary to rescue that theory from sub- jectivism. Nowhere in the theory is the intelligibility of first practi- cal principles made to depend upon the attractiveness of the basic goods to the acting person (which is to deny neither that basic goods can be attractive nor that their attractiveness can motivate action). At one point, Hittinger accuses Grisez of holding an axiology in which the basic goods "are curiously Platonic-like forms. '10 1 The charge is untenable. Repeatedly, and in virtually all of their works on ethics, Grisez and Finnis make the point that goods do not exist in some transcendent realm, but are constitutive aspects of persons. To cite perhaps the most forceful statement, Finnis says in Natural Law and Natural Rights that the basic aspects of human well-being are ...not abstract forms, they are analytically distinguishable aspects of the well-being, actual or possible, of you and me-of flesh-and- blood individuals. 10 2 Hittinger seems to assume that the Grisez-Finnis theory must rely on some mysterious Platonic notion of the good because it does not propose to derive basic goods from speculative knowledge of human nature. But, as a critique of the Grisez-Finnis theory of practical knowledge, this assumption simply begs the question. Grisez and Finnis claim that first practical principles are self-evi- dent truths grasped in non-inferential acts of understanding. It is this claim that Hittinger set out to prove false. But this proof can- not be accomplished by a gratuitous assertion-directly contrary to what Grisez and Finnis actually say-that basic goods are "curi- ously Platonic-like forms." Does the Grisez-Finnis axiology imply a wall of separation be- tween knowledge of human nature and knowledge of human good? Indeed, does the Grisez-Finnis theory implicitly deny that humans have a (knowable) nature? Neo-scholastic critics of the Grisez-Fin- nis natural law theory frequently raise these questions, and they are suggested at various junctures in Hittinger's analysis.10 3 The 101 Id at 187. 102 Finnis, Natural Law and Natural Rights at 371-72 (cited in note 3). 100 Hittinger frequently implies an affirmative answer to the first question and, at least once in his book, implies an affirmative answer to the latter. See Hittinger, A Critique at 1988] Natural Law 1415 1416 The University of Chicago Law Review [55:1371 answer to both questions is "no." To see why, it will be useful to distinguish the epistemological mode of inquiry from the ontologi- cal mode in respect of basic goods. Grisez and Finnis maintain not only that human beings have a nature, but also that human nature is a worthwhile object of speculative inquiry. They follow Aquinas, however, in maintaining that we come to know human nature by knowing human potentialities; and that we come to know these by knowing their actuations; and that we come to know these, in turn, by knowing their objects. 10' And how do we come to know the ob- jects of human acts? Not by reflection on human nature, for it was the question of human nature that prompted our inquiry in the first place. Rather, we come to know the objects of the actuations of human potentialities by grasping self-evident first practical principles. The objects of human acts are the intelligible ends of such acts, i.e., the basic human goods to which first practical prin- ciples refer. Knowledge that comes as the fruit of practical reflection be- comes available to (i.e., provides data for) speculative inquiry (e.g., in metaphysics or theology). On the basis of one's practical grasp of the intelligible ends of human acts, one may derive propositions about the nature of human beings. The point is that in the episte- mological mode of inquiry, our (practical) knowledge of human good(s) is methodologically prior to our (speculative) knowledge of human nature. The latter knowledge presupposes the former: It is not, as neo-scholastics suppose, the other way around. Let us shift for a moment to the ontological mode. Here, if we reflect on Aquinas's methodological principle, it is clear that the human goods are goods for (i.e., fulfillments of) human beings pre- cisely because human beings have the nature they do. As Finnis says, "[t]he basic forms of good grasped by practical understanding are what is good for human beings with the nature they have."1 5 Were human nature otherwise, human goods would be correspond- ingly different. In this sense, the basic human goods depend, onto- logically, upon human nature. So, in the ontological mode of in- quiry, an account of the human goods will refer back to human nature: "Why are these the ends fulfulling of human beings?" "Be- 195-96 (cited in note 2). 104 For a clear and concise statement, see John Finnis, Natural Inclinations and Natu- ral Rights: Deriving "Ought" from "Is" According to Aquinas, in L.J. Elders, S.V.D. and K. Hedwig, eds, Lex et Libertas, 30 Studi Tomistici 43 (Libreria Editrice Vaticana, 1987) (NB: The title of Finnis's article is misleading.). 100 Finnis, Natural Law and Natural Rights at 34 (cited in note 3). Natural Law cause human nature is constituted as it is." But this answer in no way entails that our knowledge of the ends as human fulfillments is derived from prior speculative knowledge of human nature. B. Goods and Persons Near the end of a discussion of Grisez's stated opinion that "Kant's view of moral principles is not so much false as grossly inadequate,' 6 Hittinger raises some questions about "the mean- ing and implications of shifting one's focus from persons to goods."'1 7 Hittinger asks: Does this not assume, or suggest, that goods and persons are strictly co-extensive both ontologically and in terms of actions which bear upon them? Is moral agency, for instance, some- thing more than the sum of the parts of the goods with which practical reason is interested? In other words, is there some- thing of value in personhood that needs to be affirmed in terms quite different from merely our concern for goods which fulfill persons?'018 Alan Donagan shares Grisez's interpretation of Aquinas's the- ory of practical reasoning and has, in his own Kantian "respect for persons" ethics, defended many of the specific moral norms de- fended by Grisez and Finnis.10 9 Still, Donagan has long criticized the Grisez-Finnis theory along the lines Hittinger's questions im- ply. Here it must be recalled that, under this theory, basic human goods, while analytically distinguishable from the persons whom they fulfill, are not extrinsic purposes of human action, but rather intrinsic aspects of persons. In the earliest statement of the theory, Grisez held that persons "actualize and receive the human goods into personal existence." 110 But, from the point of view of action in respect of a person, the person is not a value standing alongside the values that are constitutive aspects of the person. To act for the sake of a person, for example, is to favor some constitutive as- pect(s) of that person's well-being-i.e., to promote or preserve or 106 Grisez, Christian Moral Principles at 108 (cited in note 66), reported in Hittinger, A Critique at 27 (cited in note 2). 107 Hittinger, A Critique at 29. 100 Id at 29-30. It is worth noting that the criticism implicit in the last of these ques- tions will seem especially compelling to anyone who supposes-wrongly-that "our concern for the goods which fulfill persons" can be judged a "mere" concern inasmuch as these goods are mere tendencies, inclinations, attractions, or are in some other sense subjective. 10I See Alan Donagan, The Theory of Morality (Chicago, 1977). 110 Grisez, Contraception at 78 (cited in note 93). 1988] 1417 The University of Chicago Law Review derived from the first principle of morality. These norms identify and forbid various forms of unreasonableness in human willing. Hittinger erroneously interprets Grisez in particular as main- taining that the first principle of morality is an ideal. This misin- terpretation is important for Hittinger's analysis of the adequacy of the Grisez-Finnis theory for moral theology: In his transition from moral principles to moral theology, Grisez regards Jesus as the concrete good that annuls the ideality of the Fpm [first principle of morality]. Its ideality, therefore, makes room for (even requires) a move into moral theology.117 But the implications of this misinterpretation for the Grisez-Finnis theory when it is considered solely as philosophical ethics are profound. As I noted in the previous section, if the first principle of morality were itself merely an ideal, then it would be both too general to guide concrete human choices, and incapable of rational specification. Although our grasp of first practical principles gives us some knowledge of integral human fulfillment, it is nevertheless an ideal in the sense that it cannot be realized in human choices. 8 But the first principle of morality is anything but an ideal. It is capable of specification, and the norms thereby derived direct us to do things that can be done. The point is critical: We cannot choose to bring about integral human fulfillment, but we can choose compatibly with a will to integral human fulfillment. The standard of practical reasonable- ness is not how close we come to bringing about integral fulfillment in our choices (nor is it how "much" fulfillment, in some aggrega- tive sense, we bring about); rather, it is whether our choices are compatible with a will to integral fulfillment. Hittinger seems to miss this point altogether. Indeed, in the course of his theological discussion, he accuses Grisez of "taking away with one hand what was just given with the other" because Grisez, as Hittinger under- stands him, holds that "[t]he achievement of the state of integral human fulfillment (the goal of the moral life for ethics and moral theology) is not a human act.""' 9 Hittinger judges this to be "a 117 Hittinger, A Critique at 51 (cited in note 2). 18 The "ideality" of integral human fulfillment does indeed have theological implica- tions. Although we can wish for integral fulfillment, it can only be hoped for in the light of religious faith. If it is to be realized-if its ideality is to be annulled-divine action is re- quired. In Christian terms, grace is needed to perfect nature. I" Hittinger, A Critique at 135 (emphasis added) (cited in note 2). 1420 [55:1371 Natural Law contradiction in terms, or at least a paradox of some sort,"' 0 and he is correct. But the contradiction or paradox is generated not by Grisez's first principle of morality, but by Hittinger's own funda- mental misunderstanding of it; Grisez never proposes integral human fulfillment as a "state" (or state of affairs); nor does he im- agine that it can serve as a "goal" to be sought in human choosing. D. The Question of a Hierarchy of Basic Goods The centerpiece of Hittinger's case against the Grisez-Finnis theory of moral principles features the claim that unless an objec- tive hierarchical ordering of the goods is built into ethics at the axiological level, moral problems raised by the plurality of goods and opportunities for their instantiation will render many moral problems unresolvable. His proposal is, of course, that a specula- tive philosophy of human nature is needed to provide the hierar- chical ordering. As discussed earlier, the Grisez-Finnis theory relies not on a principle of hierarchy to govern choice and action in respect of ba- sic goods, but, rather, on the modes of responsibility. Hittinger does not allege that the modes are incapable of resolving any moral problems, but only that there are many important moral problems that they cannot resolve. He does not suppose, as do some critics of the Grisez-Finnis theory, that the modes cannot rule out any rational choices as practically unreasonable inasmuch as any choice, qua rational, will ultimately have its intelligibility by refer- ence to some intelligible good(s) sought in the choice. (These crit- ics, overlooking the force of the modes altogether, argue, for exam- ple, that, inasmuch as aesthetic appreciation is as much a fundamental good as life is, a healthy adult may reasonably (i.e., morally) stand by the side of a wading pool appreciating the beauty of the sunshine and not raise a finger to help a drowning infant easily within reach. Indeed, some might argue that nothing in the Grisez-Finnis theory forbids the adult from tossing the in- fant into the pool in order to appreciate the beautiful nobility of its struggling.) But Hittinger does claim that reliance on the modes to rule out immoral actions done for the sake of intelligible goods is rather odd. I shall present Hittinger's argument in his own words: Grisez has reserved moral grounds for objecting to[, for exam- ple, Aztec religious practices involving human sacrifice]. For 120 Id. 1988] 1421 The University of Chicago Law Review instance, he might argue that these practices violate some other human good, such as life; but this moral judgment does not disqualify the rituals as the good of religion; it only indi- cates that this particular religious observance violates the good of morality by failing to respect other basic goods. In other words, the Aztecs, according to nature, participate in the good of religion, for they find their religious practices at- tractive and gratifying; yet the practices, according to natural moral norms, violate [the mode of responsibility that forbids doing evil for the sake of good]. Nature appears to speak with a forked tongue.121 My first task here is to clear away some, by now familiar, in- terpretive mistakes. First, religious rituals, practices, and observ- ances are not, under the Grisez-Finnis theory, the good of religion. Hittinger's statement to the contrary reflects his failure to notice Grisez's distinction between goods and the actions by which per- sons may realize and participate in goods. Second, what rationally excludes the Aztec rituals, under the Grisez-Finnis theory, is not "the good of morality," but a specific moral norm forbidding direct killing (which is itself derived from the mode of responsibility Hit- tinger cites). Third, the fact that the Aztecs find their religious practices "attractive and gratifying" is not, for Grizez (or Finnis), a ground of the goodness of the practices. Here again Hittinger im- ports into Grisez's axiology a conception of the basic goods as mere subjective motives. Such a conception has no foundation in Grisez's writings. The Grisez-Finnis theory of natural law recognizes (and gives an account of the fact) that the Aztec rituals were not unintel- ligible acts. To the extent that they were sincerely performed (and so far as I know there is no reason to doubt the sincerity of those who performed them), the intelligible point of the rituals was har- mony with the divine, or "religion." That someone would choose ultimately for the sake of such an end is hardly baffling. Even if one's own considered judgment is that there is nothing beyond the material world-no divine realities with whom to seek har- mony-one may still understand the religious acts of those who have reached different conclusions. Inasmuch as the Grisez-Finnis theory understands "good" as that which provides an ultimate rea- son for action, it is hardly an occasion for puzzlement that the murderous Aztec rituals can be said to have been performed for 121 Id at 111-12. 1422 [55:1371 Natural Law one at the dinner table with the devil-even if the devil is a moral relativist (which I doubt). Hittinger seems to share the suspicions of some neo-scholas- tics. In an article published just before his book, he tries to win the point and establish the need for a hierarchical ordering of basic goods by seizing on a hypothetical case Grisez once employed to illustrate the implications of his view on the question of hierarchy: [I]n Beyond the New Morality Grisez states that on Sunday morning one can either participate in the basic good of play (a round of golf perhaps), read the Sunday paper (the good of knowledge), or attend church. Since there is no objective hier- archy prior to choice, one can do any of these, so long as one chooses "inclusively"-that is, so long as one remains open to the goods which are not chosen.2 4 The lesson Hittinger invites us to draw from this is that reli- gion and other ends cannot be judged to be good "without an ante- cedent justification of their rationality.' ' 25 This justification, of course, must be the fruit of a speculative inquiries: "Whether God exists, or in any event, whether human desires which are identifi- ably 'religious' are good, are," he declares, "crucial questions.' 1 26 Now, whether God exists is a very important question. (I am not quite sure what Hittinger means by identifiably "religious" human desires.) If one judges that God exists (a speculative judg- ment), one will base one's understanding of the good of religion (i.e., that end by reference to which human religious acts have their intelligibility) on one's (further speculative) judgments about God and what He reveals and commands. But nothing in these judgments need alter one's grasp of foundational practical and moral principles, nor one's basic understanding of how to employ these principles in one's practical thinking. Let us suppose that one believes that God has authorized certain human authorities to establish rituals and set rules for worship. Among the rules, there is a requirement that one attend a certain ritual on Sunday. In view of these (speculative) religious judgments, one would, as far as one's own understanding of the good of religion is concerned, be acting directly contrary to that good in failing in what one judges to be one's obligation to attend church. The genuine goods to be 124 Russell Hittinger, The Recovery of Natural Law and the "Common Morality", 18 This World 62, 69 (1987). 12 Id. 126 Id. 1988] 1425 The University of Chicago Law Review realized by reading the paper or playing golf would not excuse one from one's responsibilities under the moral norm. The subject in Grisez's hypothetical will not be able to reach the judgment that he is under a moral obligation to choose to go to church on Sunday over reading the paper or playing golf, without some speculative knowledge (here, religious knowledge). But the knowledge that he needs is not knowledge of the hierarchical or- dering of religion in relation to the other possible goods. Rather, it is the sort of speculative knowledge (whether of religion, or health, or any other good) whose relevance to morally upright choosing the Grisez-Finnis theory never denies. Indeed, in the most recent statement of the theory, Grisez, Finnis, and Boyle explicitly ac- knowledge the bearing of speculative knowledge on particular moral judgments: Just as [speculative] knowledge, true opinion, and experience enhance the initial insight into the substantive goods [e.g., life and health, knowledge, and aesthetic appreciation], so they deepen understanding of the reflexive goods [e.g., friendship, self-integration, authenticity, and religion]. For example, both sound metaphysics and experience in practicing authentic re- ligious faith contribute to one's understanding of the good of religion. In doing so, they enhance the power of the principle underlying the religious quest.127 Attending to Grisez's hypothetical shows that speculative knowledge can enrich one's understanding of human goods, and even affect thereby one's judgments about moral responsibilities. This is by no means uniquely true for the good of religion. Specu- lative knowledge of various types can also, as Grisez and Finnis observe, enrich one's understanding of the goods of health, friend- ship, aesthetic appreciation, and, certainly, knowledge itself. But the hypothetical does not show that a hierarchy of basic goods must be posited if the religious believer is to judge himself to be under a moral obligation to observe his sabbatarian requirements. Nor does it show that speculative knowledge is needed (or able) to ground an inference that religion, health, friendship, aesthetic ap- preciation, or knowledge is "a good to be done and pursued." It leaves the Grisez-Finnis claim that any such judgment must be a non-inferential practical judgment untouched. In other words, speculative knowledge of this sort cannot be a substitute for foundational practical knowledge (e.g., knowledge of 2' Grisez, Boyle, and Finnis, 32 Am J Juris at 109 (cited in note 72). 1426 [55:1371 Natural Law the basic practical principle that harmony with the divine-if there is a divine-is a "good to be done and pursued," and the intermediate moral principle that one ought never to act directly against a basic human good). It can only supplement it (albeit in ways that can make critical differences for one's judgment in spe- cific situations of choice). Here again it is evident that the Grisez-Finnis theory erects no wall of separation between practical and speculative knowledge. But it does try to sort out the specific contributions of practical and speculative knowledge in understanding specific moral norms. And it eschews what I now hope to show is the ultimately hopeless strategy of trying to make decisions by reference to an alleged ob- jective hierarchy of basic values. Let us suppose, for a moment, that such a hierarchy does ex- ist, and let us further suppose that religion ranks higher than knowledge or play. We are, to be sure, likely to conclude that Grisez's newspaper-reading golfer ought to go to church on Sun- day. (As we have seen, the Grisez-Finnis theory can reach the same conclusion on the basis of different principles.) But we are likely to have trouble figuring out what he ought to do on Monday morning when he faces the option of going to a morning church service or getting to work on time. Does the supposed hierarchical priority of religion release him from the moral obligation (to be at work promptly) entailed by his prior commitment to his employer? Per- haps the principle of hierarchy does not control this particular choice; perhaps we can conclude that, despite the priority of reli- gion, our subject ought to go to work in this case rather than to church. But what if he can manage to attend the service and still make it to work on time, thus avoiding any violations of moral norms? Does the priority of religion entail that he behaves immor- ally if he opts instead to spend his time before work reading the paper, or listening to some jazz recordings, or playing with his chil- dren? Suppose he does forgo all these possibilities in favor of the morning church service. Is he also morally required to forgo a pleasant walk in the park after lunch in order to attend a noon- time religious observance? Does the priority of religion over the other human goods mean that in every situation of choice in which one is under no moral obligation to do something else, one must, if possible, act specifically for the sake of religion? If not, then when must one so act? The hierarchical ordering does not seem to 1988] 1427