Natural Law in Our Lives, in Our Courts (Part 2)

J. Budziszewski on Latency, Denial and Rationalization

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AUSTIN, Texas, APRIL 2, 2004 ( U.S. courts have been giving short shrift to natural law for the past century, says a professor of government and philosophy.

J. Budziszewski, a professor at the University of Texas and author of several books, including “What We Can’t Not Know: A Guide” (Spence Publishing), shared with ZENIT why he thinks many modern courts, thinkers and members of society unfairly, and unwisely, ignore the basics of natural law.

Part 1 of this interview appeared Thursday.

Q: What is the moral significance of natural law and how can it most effectively shape the laws enacted by governments?

Budziszewski: The natural law simply is the moral law. We may think of it this way. Everything God made has a nature. However, not everything he made is subject to him in the special way called natural law.

Natural law is a privilege of created rational beings — that includes us — because it is a finite reflection of his infinite wisdom in their finite minds. This is what Thomas Aquinas means when he defines natural law as “the participation of the rational creature in the eternal law.”

In view of the fact that the natural law specifies the universal requirements for the common good of human beings, it is the basis for the human laws enacted by governments.

Ordinary human laws may be connected with the natural law in either of two ways. These used to be called the way of “conclusions” and the way of “determinations,” but today it might be clearer to call them “inference from general principles” and “filling in the blanks.”

An example of the first kind of connection is that since it is wrong to harm one’s neighbor, the human law should forbid poisoning.

An example of the second is that since we ought to have regard for the safety of our neighbors, the human legislator must pin down such matters as whether automobiles are to drive on the right or the left. Sometimes the “pinning down” is by unwritten rather than written law; this is one of the ways in which culture is built up.

Q: American courts have often referred to natural law and traditional notions of “ordered liberty” in their decisions in the past century, but their decisions seem often at odds with Christian moral truth. How do you explain this phenomenon?

Budziszewski: I would put it differently: Though American courts have sometimes referred to natural law over the course of our history, during the past century they have been more and more loath to do so.

During the same period, their references to “ordered liberty” — a phrase that once upon a time presupposed the natural law — have become more and more incoherent.

We reached the nadir in 1992, when the Supreme Court opined that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

What the court seemed to be propounding in this passage was a degenerate theory of natural law — a universal moral right not to recognize the universal moral laws on which all rights depend. Such liberty has infinite length but zero depth.

A right is a power to make a moral claim upon me; if I could “define” your claims into nonexistence — as the court said I could “define” the unborn child’s — that power would be destroyed.

I have written elsewhere that in such a polity, no one can long be safe. Indeed, the wonder of it all is how one thing leads to another. Having declared that the Constitution somehow includes a right to define reality, the judges must put themselves in its place: If he wishes to survive, any king who says, “Everything is permitted” must add, “But I decide for everyone what ‘everything’ includes.”

To take a longer view of the matter, in order to justify violating the natural law against murder, the court has at last found it necessary to defy the principle of our own republican government — the balance of powers; the principle of all republican government — that the weak have equal standing with the strong; and the principle of government as such — that rule is ordained to protect, not destroy.

Q: Why do modern thinkers and modern culture so willingly ignore even the basics of the natural law, when, according to you, these are matters we “can’t not know?”

Budziszewski: One reason is latency: It’s possible to know something without knowing that you know it. The complementarity of the sexes is like that; it may not even occur to you until someone calls it to your attention, when you say, “Of course, that’s obvious.”

Another reason is denial: It’s possible to know something and yet tell yourself you don’t.

Usually, we play such tricks on ourselves either because we know something is wrong but want to do it very much — or because we’ve already done it, and conscience is too painful to face. Denial is a much more serious problem than latency, because a person or a culture in denial resists being taught.

A third reason is rationalization: We make excuses for doing wrong not because we don’t know it’s wrong, but because we do. In fact, the knowledge of right and wrong provides the very material for our excuses.

For example, the feminist Eileen McDonagh admits that it’s wrong to deliberately take innocent human life, but she says that the fetus isn’t innocent — it’s an aggressive intruder in the woman’s womb. She even compares it with a rapist. I don’t think many women would be able to believe that the baby in the womb is a trespasser, but a lot of judges might.

Q: What prospects do you see for a renewed appreciation of the natural law in the courts, the law schools, and the other high places of our culture?

Budziszewski: Here’s why your question is difficult. The foundational principles of the natural law are not only right for everyone, but at some level known to everyone.

This doesn’t mean we can’t deny them. What it means is that when we do deny them, the problem lies less in the intellect than in the will. Your question, then, becomes “How likely are our elites to repent?” The answer to that question is hidden in the providence of God.

However, I don’t think we need an answer anyway. We know our own duty well enough. One of the permanent advantages of evil is the temptation that it offers us to despair. This is a burden.

But we have a permanent advantage in the virtue St. Paul calls hope, for our confidence, unlike the bravado of our opponents, is not presumption. It does not rest in our own small strength, but in the strength of the One whom we serve.

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