Dylan Pahman – Natural Law, Public Policy, and the Uncanny Voice of Conscience: An Orthodox Response to David Bentley Hart

Source: Ehtika Politika |

David Bentley Hart

David Bentley Hart

In his recent First Things article, “Is, Ought, and Nature’s Laws,” David Bentley Hart puts forth a formidable and subtle critique of the use, “by certain self-described Thomists,” of the natural law tradition in public discourse. While Hart does not deny “a harmony between cosmic and moral order,” he takes issue when “the natural law theorist insists that the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation.”

He thus contends that (1) such natural lawyers, despite best intentions, ultimately fall prey to David Hume’s critique that one cannot derive an “ought” from an “is”; that (2) natural law reasoning depends upon a person’s prior acceptance of certain metaphysical commitments (e.g. a teleological world and a harmony between the cosmic and moral orders); that (3) universal moral norms are more often “artifacts of cultural traditions” derived from historical experience rather than dictates of reason discerned in nature; and that (4) due to the dissonance between the necessary metaphysical assumptions that make natural law compelling and the common, secular assumptions of our present age (i.e. “a mechanistic understanding of the physical world, a neo-Darwinian view of life, and a voluntarist understanding of the self”), natural law-based public discourse today “is a hopeless cause.”

On the one hand, I am sensitive to Hart’s critique—morality is more than solely what can be deduced by a properly reasoning mind, as some seem to believe. Nevertheless, while I would not necessarily describe myself as a Thomist (like Hart, I am an Orthodox Christian), I take issue with his critique for (1) failing to account for the role of conscience in traditional natural law theory and for (2) confusing the role of reason in natural law theory as a result.

That primarily conscience, in addition to reason, testifies to the dictates of the law of nature constitutes an essential presupposition of the natural law tradition. As St. Paul puts it, even apart from knowledge of any written, divine revelation, people “show the work of the law written in their hearts, their conscience also bearing witness, and between themselves their thoughts accusing or else excusing them” (Romans 2:15). According to St. John Chrysostom, the natural law is not so much something discerned outside of the self as within: “when God formed man, he implanted within him from the beginning a natural law.” He continues to note the testimony of conscience: “And what then was this natural law? He gave utterance to conscience within us; and made the knowledge of good things, and of those which are the contrary, to be self-taught” (Homilies on the Statues 12.9). He continues to argue—as is the classical understanding—that the content of the natural law accords, at least, with the second table of the Decalogue.

If Hart was correct that knowledge of the natural law comes only through reflection upon the natural world by reason, then Hume’s is/ought objection might apply. However, the traditional conviction is that—in addition, perhaps, to the “uncanny voices” of history that Hart highlights—there exists within the human heart the uncanny voice of conscience. Natural law begins here, with an “ought” of intuition, the “ought” of conscience.

Indeed, people do not need much explanation, if any, to agree that killing innocent persons, taking what is not theirs, deceiving the trusting, and so on—is wrong. People may disagree about the specific application of the dictates of natural law, but even our contemporary culture currently acknowledges the existence of conscience. People who live as if they had no conscience our modern society rightly classifies as sociopaths and, if necessary and possible, institutionalizes them.

Thus, already, I am not convinced that Hart’s objections hold up. (1) Natural law, known through the “ought” of conscience, does not, therefore, require deriving an “ought” from an “is”; (2) on the same basis, natural law does not require any further prior metaphysical commitments, only an acceptance of the basic reliability of the voice conscience in the human heart; (3) since conscience testifies to universal moral norms, such norms cannot wholly be reduced to cultural and historical factors; and lastly, (4) since there is no insurmountable barrier of metaphysical perspective in our contemporary context to acknowledging the existence of conscience, there is, therefore, no contextual barrier to appealing to the dictates of natural law in public policy discussions. Of course, in our sin we are capable of ignoring and dulling the sense of conscience within us, but that does not negate its usefulness.

But what of reason? To be charitable, Hart may still, at this point, have a case to be made. What relation does reason have with natural law, given the primacy of conscience?

In this case, I find the analogy of vision to be quite helpful. There are many reasons why I may be incapable of seeing something accurately in the physical world. For example: I may be nearsighted; I may be colorblind; or I may be entirely blind. In fact, I actually have firsthand experience with the first two. In the case of my nearsightedness, the deficiency could be remedied with corrective lenses or, perhaps, with Lasik eye surgery. (I am content with my glasses.) In the case of my colorblindness, barring a miracle I must rely upon the judgment of others to gain accurate knowledge of the world I observe in its chromatic element—my wife helps me match my clothes, for example. Lastly, if I were totally blind, it would, indeed, take supernatural intervention alone for me to see anything at all.

Much as, according to Philo of Alexandria, “encyclical knowledge of music and logic” is the “handmaiden” of virtue and wisdom (On Seeking Instruction 2), so also reason is the handmaiden of conscience. Like corrective lenses for deficient vision, reason can help guide some people to see the truth of the moral order more clearly. This is precisely what Hart’s “self-described Thomists” seek to do, to guide people with the aid of reason to see how the dictates of conscience apply in some specific area of public policy. Whether or not they take the time to focus on the role of conscience at all does not negate their tacit reliance on it, consciously or not. They are, thus, justified in doing so, so far as deficient moral vision is a problem of insufficient understanding.

However, I see no reason why the problem, in some cases, might be otherwise. For example, I can rationally understand that purple is the combination of blue and red; and I can know, by the testimony of others, that certain objects are, in fact, purple; but I am nearly—if not wholly—incapable of seeing the color purple with my own eyes. To extend the analogy to morality and public discourse, a person may first need to be shown that their moral vision itself is irreparably deficient. This, again, might be able to be done with the aid of reason, but not with the same line of argumentation typically taken by Hart’s unnamed natural lawyers. To do so would be like offering a colorblind person corrective lenses. For that he would be right to criticize them, but he does not take such a line of objection.

Finally, one may, like the sociopath, be morally blind, deaf to the uncanny voice of conscience within the human heart. In this case Christians know the answer, and it is not a matter of rational discourse. In most cases, there is no operation or device by which the blind can see—typically only the power of God can open the eyes of the blind. In this case Hart’s criticism stands, but, given the existence of conscience, his argument would require that such blindness be far more widespread, when, in fact, some may simply be morally colorblind or nearsighted.

In this light, contra Hart, I would argue that Christians ought to affirm the natural law on the basis of conscience and employ well-reasoned arguments in support of the specific application of its dictates in areas of conflict in the public square with the hope that some may be able to see the truth or, at least, their own deficiency. However, with Hart, I would also affirm the need for supernatural enlightenment. We must not neglect evangelism but testify through our lives to the Truth incarnate with both hope and caution, recalling the words of Christ himself: “For judgment I have come into this world, that those who do not see may see, and that those who see may be made blind” (John 9:39).

Dylan Pahman

Dylan Pahman

Dylan Pahman is a contributing editor at Ethika Politika. He is also assistant editor of the Journal of Markets & Morality and for Christian’s Library Press and research associate at the Acton Institute. He has his MTS in historical theology with a concentration in early Church studies from Calvin Theological Seminary. He is a regular contributor to Acton’s blog and has additionally been published in the Calvin Theological Journal and Touchstone Magazine. He has previously written on the spiritual life from an Orthodox Christian perspective in Theosis and continues to do so at everydayasceticism.com.


  1. cyntha curran :

    Well, the Justinian Code uses a natural Law agrument it discusses how animals get together for coupling and it the human race its called married to rise children.

  2. cyntha curran :

    In 438, Emperor Theodosius published the Codex Theodosianus, which consisted of 16 books, containing all standing laws from the age of Constantine I till then.

    [edit] Corpus Iuris Civilis

    Main article: Corpus Iuris Civilis

    Soon after his accession in 518, Justinian appointed a commission to collect and codify existing Roman law. A second commission, headed by the jurist Tribonian, was appointed in 530 to select matter of permanent value from the works of the jurists, to edit it and to arrange it into 50 books. In 533 this commission produced the Digesta.

    Although Law as practiced in Rome had grown up as a type of case law, this was not the “Roman Law” known to the Medieval, or modern world. Now Roman law claims to be based on abstract principles of justice that were made into actual rules of law by legislative authority of the emperor or the Roman people. These ideas were transmitted to the Middle Ages in the great codification of Roman law carried throughout by the emperor Justinian. The Corpus Iuris Civilis was issued in Latin in three parts: the Institutes, the Digest (Pandects), and the Code (Codex). Three of the world’s most widespread legal systems are: the common law of the Anglo-American legal tradition, Sharia, and Roman law (in, for instance, most of Europe, Scotland, Quebec and Louisiana).

    [edit] Middle Byzantine Period

    Following Justinian’s reign the Empire entered a period of decline partially enabling the Arab conquests which would further weaken the Empire. These developments contributed to a dramatic weakening of legal standards in the Empire and a substantial drop in the standards of legal scholarship.[6] Legal practice would become much more pragmatic and, as knowledge of Latin in the Empire waned, direct use of Justinian’s “Corpus Juris Civilis” would be abandoned in favor of summaries, commentaries, and new compilations written in Greek.

    [edit] Ecloga

    The changes in the internal life of the empire which occurred in the years following the publication of Justinian’s code called for a review of the legislation, so as for the requirements of the times should be met. Within the framework of the reforms Leo III the Isaurian, (the first Isaurian emperor), introduced, he provided also for the modification of current laws. In 726 he issued the “Ecloga”, that bore his name as well as the name of his son Constantine. “Ecloga”, referring to both the civil and criminal law, constituted, as was declared in the title a “rectification (of the Justinian legislation) towards a more philanthropic version”. The membership of the editing committee is not known, but its primary mission, however, was, on the one hand, to modify those dispositions not in step with the times and, on the other, to provide judges with a concise legal handbook to help them dispense justice properly.

    The dispositions of “Ecloga”, influenced by the Christian spirit, as well as by the common law, protected and supported the institution of marriage, increased the rights of wives and legal children, and introduced the equality of all citizens before the law. The penalties of amputation and blindness, not in step, of course, with the Christian character of the enactment, were introduced, most likely, due to the customs of the East, reflecting the Byzantine concept in this period of changes. By means of his “Ecloga” Leo addressed the judges also, inviting them “neither the poor to despise nor the ones unjust to let uncontrolled”. Besides, in his effort to deter bribery in the execution of their duties he made their payment local and payable by the imperial treasury. “Ecloga” constituted the basic handbook of justice dispensation up to the days of the Macedonian emperors, that also assumed legislative activity, whereas later it influenced the ecclesiastic law of the Russian Orthodox Church. Formerly the researchers attributed the juridical collections “Farmer’s Law”, “Rhodian Sea Law” and “Military Laws” to Leo III the Isaurian. These views, however, are no longer valid.

    [edit] The Farmer’s Laws

    With the exception of a few cities, and especially Constantinople, where other types of urban economic activities were also developed, Byzantine society remained at its heart agricultural. An important source regarding law, which reflects in a particularly characteristic way the internal life of the Byzantine villages during the Middle Byzantine Era (7th – end of 12th century) is the “Farmer’s Law”. Due to its importance, the “Farmer’s Law” roused the interest of researchers from a very early stage. Ever since it has been one of the most discussed texts concerning the internal history of Byzantium.

    It is a private collection, continuously enriched, and refers to specific cases relevant to rural property within the framework of the Byzantine rural “community”. As evident by the dispositions of the “Law”, peasants were organized in “communities” and collectively responsible for the payment of the total tax the “community” was liable for, being obliged to pay as well the amounts corresponding to indebted members of the community. As for the chronology of its writing, since the text itself bears no specific date, it is placed somewhere in between the second half of the 6th century and the middle of the 14th. Very early on, it was acknowledged as a legal handbook of great importance and greatly influenced much of the law of the Slavic countries and especially Serbia, Bulgaria and Russia.

    [edit] The Sea Laws

    Dating problems, similar to the ones of the “Farmer’s Law”, presents a code of equal character, the “Rhodian Sea Law” (Nomos Rhodion Nautikos). Written probably between 600 and 800, it is a collection of maritime law regulations divided into three parts. The first part refers to the ratification of the “Naval Law” by the Roman emperors. The second specifies the participation of the crew in maritime profits and the regulations valid on the ship, while the third and largest refers to maritime law, as for example to the apportionment of responsibility in case of theft or damage to the cargo or the ship. The “Naval Law” was included in the Basilika of Leo VI the Wise as a complement to book 53.

    [edit] Ecclesiastical law

    In accordance with the model of the secular legal associations, the canons of the ecclesiastic councils concerned ecclesiastic issues and regulated the conduct of the clergy, as well as of the secular as concerned matters of belief. The “In Trullo” or “Fifth-Sixth Council”, known for its canons, was convened in the years of Justinian II (691-692) and occupied itself exclusively with matters of discipline. The aim of the synod was to cover the gaps left in canon law by the previous Fifth (553)and Sixth Ecumenical Councils.

    This collection of canons was divided into four parts:

    a) The canons ratifying the doctrinal decisions of the first six ecumenical councils along with the teachings of the Fathers of the Church.

    b) The canons specifying the obligations of the ministrational clergy.

    c) The canons referring to the monks.

    d) The canons referring to the secular. The influence of these canons carried on in the future and they were extensively annotated by Balsamon, Zonaras and Aristenos, the three great ecclesiastic jurists of the 12th century.

    [edit] Later Byzantine law

    Not certain about the referance of common law but its not common law in the west. Byzantines people of laws. Religion and govening society are different things and sometimes the Orthodox go to far against natural law and legal law when it comes to Byzantiium.

    This section is empty. You can help by adding to it. (June 2008)

    [edit] See also
    Roman law

Care to Comment?