The Case Against Natural Law
Copyright © 2005, David A. Epstein.Natural Law Theory
All Rights Reserved.
August 25, 2005
It should be noted this discussion will strictly be referring to the Western development of Natural Law Theory. There is a separate history of natural law found in the Far East. The "laws of nature" are described in Indian masterpieces like the Bhagavad Gita and other Sanskrit works. The Gunas, depicted as attributes or modalities of nature, form the basis of natural law theory in Vedic period thought. They encompass not only the study of material science, but of spirituality and consciousness as well. Similary, the laws of Karma are integral to the governance of the natural world. And lest we forget about Yin and Yang in Chinese philosophy, or the Buddhist concept of suffering and the Eight Fold Path to overcome it, I'll parenthetically mention these here.
The basic Western theory of natural law stipulates that there is an implicit order in the universe, and human beings should live in accordance with the underlying rules and laws that produce this order. According to the theory, these laws are immutable in nature and are discoverable by the rational mind. Nature has primary operating principles that extend to all realms of life; they explain how nature works by incorporating such phenomena as cause and effect, action and reaction, and various physical and intellectual processes in its annotation. The metaphysics of these principles form the basis of a moral code that all peoples are expected to live by, especially to recognize a fundamental differentiation between what is deemed to be good and evil, even if each culture, religion, and society has a unique implementation of such a code.
Though the "immutability" aspect of natural law theory appears to have derived from the "unchangability in the universe" philosophy of the pre-Socratic philosophers Xenophanes and Parmenides, The Stoics were widely believed to be the pioneer theorists of natural law. They argued that the universe is governed by reason that can be understood by any reasoning mind. In many respects, their ideas formed the basis of Science and the study of ethics. In the Medieval period, the theory was advocated by many theologians and religious figures, most notably Thomas Aquinas. He argued that natural law is "the participation of the rational creature in eternal law". In the 17th century, philosophers like Francis Bacon and Rene Descartes further developed the theory of natural philosophy. Bacon advocated an inductive empirical approach while Descartes argued for deductive reason to discover the laws of nature. During the same period, political theorists like Thomas Hobbes and John Locke applied natural law to advance their respective views on individual freedom and the social contract.
The theory appears to provide reasonable explanations to several problems found in philosophy, religion, politics, sociology, and other disciplines. As it applies to humanity, it's often colloquially referred to as "human nature", thus creating the impression that an objective yet diversely expressed human behavioralism is rooted in nature. Several political thinkers like Locke argued that natural rights promoting individual liberty and property rights are derived from natural law. Again, this appears to be a reasonable formulation; however, I can't see how the theory holds up to modern critique, scientific investigation, and most importantly, system theory.
Everything in life must be affiliated with some system. This is the common denominator of science, technology, biology, economics, sociology, and any sound metaphysics or epistemology. There can be autonomy, self-determination, decentralization, and individualism, all worthy goals to pursue and uphold in their own right, yet they all must be associated with some type of system.
Every system must have the following:
2) transitional or intermediate states,
The three integrated together will constitute some functional set of operations. These operating principles regulate the behavior of the system, determine how the system responds or adapts to changes in inputs or states, and describe how it procedurally functions within its environmental domain. The recurrence of an operational data flow and establishment of a set of procedures or tasks leads to regular stability, reliability, and performance. The system will also implicity contain complexity measures describing how complex the system is (i.e. the prevalence of multiple vs. singular inputs, number of junctures, descriptions of intermittent pathways and transitional states, connections between inputs, states, and output, etc.).
Some of the output can be redirected as feedback into the system's inputs. This feedback can lead to a refinement of data input and significant error correction, and also supply useful information to the system or subsystems to engage in operational decision making. The operational flow of data certainly results in errors, but any effective system should have some type of error correction and data recovery. Additionally, learning takes place in complex adaptive systems. This learning is the result of applied pattern recognition, cognition, perception, and memory; yet is is also occurs as a byproduct of correcting these errors. Over a prolonged period of time, and with sufficient regularity and repetition of actions that involve learning, the emergence of new attributes and states will augment the functionality of the system.
All of these attributes (feedback, error correction, learning, operational decision making, and so forth) necessitate the existence of transitional states that lead to an established system functionalism. That functionality produces the primary output of the system: a discrete, recognizable product, good, service, or process that has some purposeful application. Example of transitional states include:
a) transference of data,
b) request/response actions used in computer networking,
d) intermediary data or request handlers,
e) states that indicate a process is pending, being kept-alive, awaiting additional information, suspended or cancelled.
Finally, these types of systems necessitate interactivity between the system and its background. The background can't be viewed as a static entity; it actively influences the operations of the system, and to a substantially lesser degree, the system reciprocates in effecting the background environment. Of particular interest is how the background affects the system as an external agent without being integrated into the system. See the system theories of Niklas Luhmann for more discussion on the subject.
Natural Law and System Theory
Has anyone shown that natural law operates as a system? If so, what are its inputs? If one says they come from God, as Aquinas did, then at least there is some basis to the claim that natural law is compatible with system theory; but any reference to God just ends the argument right there, for one would be invoking a concept that can't be rationally addressed. Alternatively, if one takes an agnostic approach and simply argues that the input source is nature herself, then even though this would appear to be a reasonable argument, superficial as it is, it is self-referential and introduces greater problems in the argument. The proponent of this argument walks into the theatre of the absurd. Natural law, if it exists, is the set of operating principles governing nature. Invoking a cheerful metaphor, it would be the fuel, no, wait, the essential lifeline of nature. So if anything is true in this argument, and I'm not claiming there is, it is that natural law is the input to nature, and not the other way around. Hence, we're back to the original question of what are the inputs to natural law.
To set the record straight, nature, with all her intricacies, is explained by the grand daddy of natural philosophy, science. Science was derived from natural law theory, but no longer requires its obtuse explanations of nature to further advance our understanding of the physical universe we inhabit. As it applies to the human realm, there are not only the biological and social sciences, but also art, humanities, and a host of other successful endeavors to describe "human nature". We don't need an antiquated philosophical approach to explain it. From this perspective, natural law, at best, is a tautology of science and these other fields, but more likely is simply a bad caricature of them. It's offspring, natural rights, doesn't fare much better.
Law is an established set of rules and regulations based upon some code of ethics, and if they are imbedded in nature, the defenders of natural law have to prove that this ethical code is unique, correct, and indisputable. According to natural lawyers, nature and its rules are universal and is not a forum for competing legal systems; there is one set of laws derived from one ethical code. This defies one of the primary tenets of system theory, and something allegedly a part of natural law: parent/children relations. Every child is created by two parents, and each child can have siblings. These relations are extended into virtually every intellectual tradition. For example, we speak about the birth of ideas derived from multiple sources, or a given culture being influenced by nearby cultures. Furthermore, while "children" inherit their "parents" traits and characteristics, the "parents" can learn from their "children" and hence adopt different behavioral patterns and make alternative choices in their lives. Thus, the defenders of natural law have to offer realistic examples of the following:
a) cases where different natural laws are derived from a common set of ethics,
b) a single natural law that is derived from multiple sets of ethics,
c) the implementation of a natural law "child" that in some meaninful way alters the content or message of its natural ethic "parent" (or visa versa for those that subscribes to the belief that ethics are derived from natural law),
d) a natural law that changes over time, for without this, there can be no justification for human laws that change or evolve over time (we're not including fallacious laws superceded by more just ones, but rather just laws that have meaningful changes made to their content, implementation, enforcement, and jurisdiction).
So far, the natural lawyers have offered nothing of the sort.
It's certainly true that since natural law theory stipulates there are innate operating principles in nature, it exhibits a basic trait of system theory. However, exhibiting a trait of something is not the same as subscribing to its underlying processes. With respect to system theory, natural law doesn't operate with any transitional states that lead to some established functionality. While it results in some discrete output as described in step 3 above (natural law produces natural rights), it breaks down between steps 1 and 2, and between steps 2 and 3. Everything in natural law is fixed, immutable, and unchanging; hence, they can't be subjected to intermediate or transitional states, data flow routing, control mechanisms, feedback, learning, emergence, and so forth.
Nature isn't self-contained, a mere closed system if you will. It must handle a multitude of inputs and changing conditions over both the short and long term. If there is a human naturalism, comprising fundamental governing laws of human nature, then some schema must be formulated to demonstrate that it's a workable system. I contend that not only have any of the defenders of natural law ever designed one, but that most likely one can't be designed in accordance to their world view. When someone offers propaganda or opinions, I ask them to build a system with it. Better yet, ask them to build a bridge. The bridge of natural law, assuming one could be built to begin with, would be extremely rigid and would eventually collapse. With natural law theory and to a great extent its derived natural rights, there is no flexibility, there are no mistakes, no errors or error correction, no feedback, no learning, no complexity measures, etc. And these can't build any workable bridges. I know that I would immerse myself in hot water by calling natural law a "belief system", and would have to raise the surrender flag! Naturally, I'll leave that to another discussion. ; )
Evolution vs. Natural Law
One of the great fallacies of contemporary thinking is to place a great deal of faith in the permanence of values, beliefs, or virtues people consider to be true. The fact they are currently true, in their minds, leads them to argue that they were always true and will forever remain true, irregardless of a changing world. The true believers will settle for nothing less, for if their beliefs are later determined to be ephemeral, shifting, or uncertain, then the entire belief system, again in their minds, will totally collapse. The adherents to Natural Law certainly suffer from the same mindset.
Natural Law supporters argue that it's a bedrock foundation for civilization, morality, economics, and socio-political organization. They argue that it always existed in nature and forevermore will exist there. What they have failed to demonstrate is how it came into existence, for it surely didn't mysteriously appear out of the thin air (again, disregarding the claims of the Natural Law theists).
In rejecting any evolutionary development leading to its foundation, its defenders are missing an opportunity to incorporate processes that are integrally found in nature. Socio-political or economic evolutionary thought is a hallmark of successful societies and civilizations. A system that can adapt to a variety of changing conditions is more likely to effectively function within its given domain, to ward off external attacks, and prevent an internal collapse from occurring. The Natural Lawyers would strengthen their argument if they accepted the premise that their belief system came to inhabit a bedrock foundation; for every foundation is created, as opposed to being immaculately conceived, through the laws of physics, geology, civil engineering, or any other scientific discipline.
Now, I have argued that such a foundation is in fact illusory. From my perspective, it would only strengthen their position to accept the existence of a historical roadmap leading to the foundation they allege to exist, that the pathway to its creation was not by design but rather by the interplay of trial & error, random mutations, natural selection, variation, and the twin engines of growth and decay. These are the hallmarks of every evolutionary system. The Natural Lawyers could full heartedly accept this premise, but they would still fail to demonstrate the immutability (re: without birth or death) of that supposed bedrock foundation. The main reason for this failure is their fundamental inability to perceive that the "laws of nature", and the derived natural rights of liberty and property ownership, are not built upon a foundation, but are outgrowths of a historical process punctuated with defining socio-political and intellectual events.
With respect to Natural Rights, which many thinkers contend are based upon Natural Law, freedom and liberty were not achieved in our society simply because they were deductively conceived by the rational mind interpreting this Natural Law. They arose out of and as a reaction to a long history of human oppression and suffering. This history is replete with both advances and setbacks to the "cause of freedom". These correspond to spurts of growth and contraction indicative of evolutionary development. The concept of liberty itself was a 17th & 18th century construct (with its highest expression by Thomas Jefferson) that was preceded by thousands of years of historical change. There were periods of mass brutality, coercion and slavery, which lead to a popular aversion to these socio/political ills coupled with an attraction to self-determination. Before becoming a codified moral precept, and finally one conceived to be embedded in nature, liberty was lodged in the historical processes of conflicts, war, persecutions and suffering experienced from Antiquity, through the Middle Ages, and even up until the period of the Enlightenment.
Liberty doesn't abstractly exist in nature; it's a human creation that has evolved into a sacrosanct vision for human consumption. Likewise, the yearning for liberty didn't arise from a vacuum or isn't naturally instilled in our psyches; it too is an outgrowth of historical processes. At times throughout history, there were people who were quite content being serfs, servants, and even slaves; but when the burdens of being enslaved, tortured, or violated became so great, these people protested, rebelled and made pronoucements that were in the spirit of achieving liberty. Historically speaking, the yearning for freedom is at its greatest when one is enslaved but has a chance to be released from a state of involuntary servitude. As such, both natural law and natural rights derive from the same historical processes that are in fact better explained by the rules of system theory.
Reason, Natural Law, and the Anthropic Principle
One of the primary facets of Natural Law Theory is that nature requires a rational mind to discover its inner workings and inherent order. It discounts the contributions of the heart, feelings, emotions, intuition, instincts, and most importantly, creative interpretation to uncover the hidden truths of nature. While one must conclude that reason is a requisite factor, and most likely the premier one for understanding how nature operates, by no means can one justifiably prohibit the inclusion of the aforementioned factors, for just as nature does not operate through a sole modus operandi, it can not be comprehended by a singular approach. In a rightful attempt to implement a mixed strategy, reason must form a lasting partnership with these other cofactors in its quest to obtain a clear and complete picture of her identity.
While both Science and Natural Law are based upon reason, and seek to discover the truths of nature, Science does not claim to describe everything about it. Instead, it restricts itself to explaining physical phenomena. Many honest scientists including Newton and Einstein recognized the role that religion (and spirituality) could play in shedding light upon other aspects of nature such as the mysterious and mystical. Likewise, art, literature, social commentary, and other pursuits play their respective roles. Natural law, on the other hand, seeks to describe everything about nature. Moreover, while Science imploys a sound methodology to conduct experiments and reach its conclusions, Natural Law generally has no methodology outside of deductive reasoning. There is little if any role for observation of the real world (I noted the contributions of Bacon above, whose empirical induction represent a counter example, though a minor represented one in the natural law camp), for the natural lawyers claim that the world is a result of the actualization of natural law.
This reason-centric world view leads to a fundamental though generally unexpressed tenet of the theory: the universe was created for the rational mind to discover. Whether it's a gift from God or innate to human existence, reason is the key for unlocking the secrets of nature. Moving beyond the realm of the human mind leads to the doctrine that the universe was primarily created for man. From this conclusion, the concept of the anthropic principle is developed. This might very well be the final defense offered by the natural lawyers, for if they can demonstrate that this scientific principle accurately describes the purpose of the universe, then man can claim his rightful place in it; hence, natural law would triumph.
The two main incarnations of the anthropic principle are the Strong and Weak versions. The strong version stipulates that the universe exists for the purpose of creating carbon-based life forms (i.e. humans), while the weak version essentially states that if universal conditions were different, those same life forms would not exist. Another way to interpret the Strong principle is to accept a causal connection between the creation of the universe and human beings: the universe was designed for man to inhabit. This is the primary argument of the teleological doctrine of design and is the impetus behind the famed Teleological Proof of God's Existence. The Weak principle does not necessarily make any causal connections or arguments by design, but allows such factors as randomness, a series of unrelated coincidences, or evolution to explain human existence. By such logic, human existence could even be seen as the byproduct of freakish cosmological and terrestrial random mutations.
The natural lawyers, whether they realize it or not, are advocates of the Strong version. They not only view rational man to be at the center of the universe, but argue that the universe primarily exists for him. Indeed, they testify that his behavior and rights are direct derivations from its operational laws. It's more likely the case, however, that they would be standing on more "secure ground" if they at least adopted the Weak version, for it clearly suggests that man and the universe uneasily coexist while he struggles to survive living off its limited resources. This is a far more reasonable explanation and born out by the world of experience. Nevertheless, the anthropic principle in general is not holding up too well to scientific scrutinization. For an excellent article on the anthropic principle and how it applies to nature, see Victor Stenger's Natural Explanations for Anthropic Coincidences.
Other Related Systems
This is NOT an attack on Capitalism, by the way. Capitalism is a system whose operating principles call for private ownership of property and the means of production, mutual voluntary exchange, free enterprise, decentralization, and the workings of the invisible hand. We can argue about the merits or shortcomings of Capitalism, but there's no denying that it's a system.
Nor is this a claim that a constitutional democracy, republic, state, or even an anarchist society is incompatible with system theory. Any of these forms of government, or lack of government, are based upon real functional systems. Government systems operate with inputs (taxes, federal/state employees), process those inputs to enact/enforce laws and regulations, and provide outputs in the form of services and goods. Governments interacting with other governments add to the complexity of the "system". Alternatively, an anarchistic theory must demonstrate that a society without government will function as a workable system. This society would still need to grow it's own food, build its infrastructure, provide social services for its members, create and maintain cities, roads, hospitals, schools, ajudicate cases, protect people from attack, etc.
What this is is a critique of natural law as a philosophy that political theorists, economists, theologians and others insist forms the basis of their respective beliefs. While these people may or may not have sound arguments in their respective areas of expertise, they would be better off abandoning the weak natural law theory and replacing it with more sound principles. What I'm showing is that the theory violates some of the major tenets of system theory.
So what then would be the appropriate philosophy or model of human nature? This could be the subject of another discussion. What I'll say for now is that it's directly related to one of the things I alluded to above: complex adaptive systems.