While it may seem negligible to some, the philosophy underpinning Mike Pompeo’s Landon Lecture, and especially his new Commission on Unalienable Rights, should be taken seriously. By “taken seriously” I mean his ideas should not be offhandedly dismissed as religious dogma or unintelligible conservative rhetoric. They, like any other philosophy, require serious and sincere engagement from liberals and conservatives.
The reason why is simple: the new natural law theory, the commission’s governing philosophy, is one of conservatism’s most influential approaches to moral, political and social philosophy. If liberals fail to engage or familiarize themselves with the new natural law, they will lose ground on the intellectual front — perhaps endangering their cultural stronghold. If conservatives fail to engage the new natural law, they will miss one of the most important intellectual developments of their tradition in the last century.
The Dismissiveness Problem
A paradigmatic example of the dismissiveness problem is Kathryn Joyce’s article in The New Republic about the philosophers and jurists assisting Pompeo. Joyce passes along a faithful, although incomplete, definition of classical natural law theory: “Natural law — a tradition comprising Ancient Greek philosophy, Catholic medieval theologian Thomas Aquinas, and some Enlightenment-era social contract theory — in its classic form, argues that humanity has certain inherent ‘goods,’ such as marriage or family, that are objective, universal, and, although inspired by God, also deducible through human reason and therefore a proper basis for policy.” So far so good, although more can be said.
Unfortunately, after this quote, Joyce’s core problem appears: she explores the new natural law from those outside of tradition and, slowly but surely, becomes more condescending.
“‘According to this theory, God established a rational order to the universe, and the rules he has set are thereby ‘laws’ for all rational beings. Aiming at the natural goods for one’s species is thus commanded by God,’ University of Wyoming political theory professor Brent Pickett told me,” Joyce said.
This definition is good in that it recognizes that the new natural law theory is axiological. Axiological ethics claim morality is grounded in the pursuit of intrinsically valuable ends or goods.
But, Pickett’s definition quickly departs by suggesting the obligatory force of pursuing these goods are the commands of God. This implies that the new natural law is some form of Divine Command Theory, but this is inaccurate. Both classical and new natural law theory claim that its conclusions on moral issues can be discerned by unaided human reason — God is not immediately necessary for figuring out it is wrong to kill an innocent person or steal from the poor.
From there, Joyce’s charitability further declines, and her insinuation of ill will and theocratic motivations to new natural law thinkers continues: “As a legal strategy, it’s a better bet than citing scripture.”
If you read the entire article, you will find that little is said in defense of the new natural law, and her charitability towards the philosophy depletes. Accusations are levied against certain thinkers, but, once you look into the sources she provides, one finds her accusation is either unfounded or deeply misleading.
The New Natural Law Theory
I am here to do what Joyce and others should have done — provide an unbiased introduction to the theory and then analyze its controversial but influential role in American life.
The theory begins by assuming human beings can act for intrinsically valuable ends rather than for merely instrumental reasons. For example, new natural law theorists would say the reason you pursue friendship is not because you are merely using people to some end, but you recognize that having a friend is by itself good enough for you to pursue it. It is intrinsically good.
The new natural law theorist then argues that there are other basic goods, things worth pursuing and loving, that motivate human action. Among these are life, knowledge, play, aesthetic experience, friendship, marriage, religion and practical reasonableness. By “practical reasonableness”, the new natural law theorist says we recognize it is simply good, without need for further explanation, that we should orient our cognition and practice around the good or the basic goods. Since the theorist has provided some of their views on human nature, this allows them to move on to questions of politics and social justice.
When the Supreme Court decided Obergefell v. Hodges in 2015, which ultimately legalized same-sex marriage, the new natural law was pivotal for conservative justices. Robert P. George, professor of jurisprudence at Princeton University, published a paper in the Harvard Journal of Law and Public Policy alongside two students defending traditional marriage with both constitutional and new natural law principles.
While their paper caused a stir in the academic world, and the book version of their paper ‘What is Marriage?‘ went on to be cited by the Supreme Court, the general public seemed to have dismissed or simply had never heard their arguments. For my purposes here, however, I am not going to reiterate their case. I will only emphasize that their case did not rely upon a single page of scripture but a rigorous jurisprudential method that has been engaged by other scholars.
Now, even if you are inclined to think their conclusions are false, that does not warrant an outright dismissal of their arguments. What should get you to think their arguments are no longer worthy of engagement is if their premises are demonstrably false and if they emulate from unscholarly and disingenuous characters.
This engagement principle was best embodied in 2017 by LGBTQ activist and Wayne State University philosophy professor John Corvino. Corvino engaged both of Robert P. George’s students in the book ‘Debating Religious Liberty & Discrimination.’ Even though Corvino deeply opposes social conservatism, he nonetheless views and treats his intellectual opponents as thinkers worthy of proper engagement.
The New Conservatives
While this would seem like the proper place to stop, I must include one last note on a common accusation made against Pompeo’s commission. It goes something like this: the natural rights approach is going to reduce the rights of Americans!
This accusation already assumes the natural rights approach is false, and I believe it rests on too narrow a conception of the framework itself.
For example, what impressed me about the the students’ approach in ‘Debating Religious Liberty & Discrimination’ was how thoughtful they were in laying out their case. They recognized the intricacies and sensitivities of the issue and developed a principled account of tolerance and the common good.
When you look at other natural law thinkers such as Harvard Law School’s Mary Ann Glendon, the head of Pompeo’s commission, one finds these thinkers are not the rabid caricatures of conservatives seen in popular media.
These thinkers are critical of the rampant individualism that has overtaken society and shattered communal responsibility. They have offered their critiques of libertarianism and pioneered new avenues of thought for conservatives, such as exploring whether the Founders were mistaken and reexamining what truly constitutes a free market for everyone.
These are certainly not your stereotypical conservatives. And, perhaps, this commission will be a welcomed change of pace, forcing everyone to debate the basic questions of morality and political theory again.
Suan Sonna is a sophomore in political science and philosophy. The views and opinions expressed in this column are those of the author and do not necessarily reflect the official policy or position of the Collegian. Please send comments to firstname.lastname@example.org.