Natural Law’s Burden of Proof

Natural Law’s Burden of Proof

Natural law, whatever its form, is an attempt to derive normative rules from the nature of things. In other words, an attempt to bridge the is-ought gap. The way things are, it is argued, implies certain things that humans should do.

Natural law doctrines vary widely in their particulars, but ultimately they are united by an epistemological claim that moral obligations are perspicuous. They have to be for the doctrines to do any work: people can know what they are supposed to do, and can be held morally responsible for not doing them.

This epistemological claim makes natural law doctrines uniquely susceptible to discredit simply by being a minority position. If moral obligations are indeed clearly derivable from the nature of things, why has everyone else gotten it wrong, and what guarantees that your derivation is correct?

I can think of four possible answers to this question:

  1. Normative claims are conditional. This is to rewrite any “thou shalt” with “if you want x, then thou shalt.” Really, all normative statements are implicitly of this form. But some have an unconditionally true condition. If you want happiness… well who doesn’t? It is the objects of these necessarily-true normative statements – the claims of what has intrinsic value – with which natural law is concerned, and to which the criticism applies.
  2. Everyone agrees on the main points of natural law and takes it for granted; the argument is at the margins. But natural law cannot pretend to be a positive science like linguistics, the goal of which is to make explicit the rules we all know implicitly in language. A linguist who finds a widespread syntactic idiosyncrasy will take it as data and try to explain it. A moral philosopher, on the other hand, who finds some widespread strange habit, will pass judgement on it based on his prior reasoning. This is the point of natural law. It makes judgements, not predictions, so disagreements cannot be adjudicated by prediction, as in a positive science. In fact, natural law purports to be itself that adjudicator, standing as evidence to a moral dispute much like an experiment would in a scientific dispute. But, quis iudicat ipsos iudices? What is left to adjudicate when the judge itself is in dispute? Naturally, this is unavoidable at the deepest level of epistemological discourse. But natural law, in attempting to be that externally valid adjudicator itself, ultimately proves self-defeating.
  3. Our believers are unique in some way. We have divine revelation. Our thinkers are systematically smarter than those of other sects. History has selected us as a vanguard. But whatever the distinction, isn’t the point of natural law to enable ethical discussion across such divides? What good is natural law if it isn’t ecumenical?
  4. Natural law is not perspicuous after all. If the moral obligations we derive from the nature of things are indeed as obscure as the existence of controversy suggests, are they really moral obligations? One will need a theory of culpable ignorance here. And again, if the majority of people are culpably ignorant, what guarantees that you aren’t the ignorant one? (the answer to which will be some sort of option 3)

No doubt there are other creative ways of getting around the problem. But for theistic natural law, unless one is willing to argue that humanity has undergone a radical moral darkening over the past few centuries, the decline of natural law philosophy appears, on its face, to be its own refutation. And as far as I can tell, no nontheistic variant has ever attained the critical mass necessary for anyone to call its conclusions self-evident. Such doctrines cannot exist comfortably as minorities. And now that the form of argument has fallen into general disfavor, barring a third Great Awakening (some exogenous moral mass-enlightenment?), it is unlikely that any will gain enough momentum to regain credibility in the future either.




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  • 1

    Raymond C. Niles

    Mar 21, 2014 at 2:42 | Reply

    the argument basically boils down to saying that the truth of an idea is a function of how widely believed it is.

    But that cannot be true, can it? The truth of any idea can only be determined by assessment of the evidence. That is not a numbers game. That is ascertained by looking outward at facts in the world, not by looking at people nodding their heads (or not) in agreement with oneself.
    Perspicacity is a red herring the way this author uses it. It is a side issue in thinking about ideas. Sure, ideas should be clear and intelligible, but that aspect alone is not determinant of the truth of an idea. Many false ideas were perspicacious and widely believed like the phlogiston theory of combustion. That did not make them true. Just like many ideas are complicated and tough to understand, but still true, such as the complicated laws governing chemical reactions.

    Clarity is good and can even help in pointing to true ideas, but it is not determinative.

    A general comment regarding this article: it more or less argues that truth is determined by how many humans agree with an idea. This is not true and not scientific. If it were, we would have to defend the Church against Galileo, or defend the scientific establishment against any newcomer who challenges the status quo. A newcomer can be wrong and the status quo may be right, but that is answered by weighing the evidence offered by both sides, not by weighing the mass of bodies on each side.

    In fundamental terms, every true new idea begins solely in the mind of a single individual. Only if others agree with evidence, independently using their own minds, can the idea spread. But in each case the focus must be on the evidence, not on the number of believers in the idea.

    • 1.1

      Cameron Harwick

      Mar 21, 2014 at 10:46

      In general it’s true that someone in a minority position shouldn’t be bothered too much by that fact. But natural law -by the form of its argument- demands that it be perspicuous; otherwise how do you consider it binding? The fact that it’s by now a minority position suggests it’s not. Sure, this wouldn’t be a problem for chemistry or astronomy, but for natural law, if it’s not perspicuous, it loses its prima facie plausibility.

    • 1.2

      Raymond C. Niles

      Mar 21, 2014 at 12:21

      Man has rights that derive from his nature. It is true regardless of whether others recognize those rights or not. Natural law, or the idea that man has certain rights, is an idea like any other. It is validated (or not) by reference to facts, to evidence. The evidence comes from a study of man, of the requirements of his life. See Ayn Rand’s article “Man’s Rights’ or her article ‘”What is Capitalism?” for good, recent elucidations of the evidence.

      Whether a certain number of people recognize this fact of man’s nature is irrelevant to determining the truth of this idea, or any other scientific idea.

      Think of a stark example. Does a man not have a right to his life in North Korea or Cuba or China or Colonial America? Of course he does. The fact that it wasn’t recognized by the governments of the day (or only partially) did not change that fact.

      Or, does not a slave have a right to his life? He does by the fact that a human being, by his nature as a human being.

      Luckily, people are free to judge for themselves the truth of this idea, like all others. That is how revolutions happen that overthrow governments that violate rights and institute governments that, at least partially, recognize those rights.

      A successful revolution *is* a numbers game, but before that it is a battle of ideas. Each individual decides for himself the truth of that idea, but that truth exists, whether or not a particular person or number of people ascertain it.

    • 1.3

      Cameron Harwick

      Mar 21, 2014 at 13:23

      What is a right? It’s a claim (whether positive or negative) on someone else, and the ability to censure anyone who violates it, yes? But people censure each other all the time. How do we know whose censures are legitimate? Regardless of how you get from “here is a man” to “he has rights” and “here are what those are”, natural law has to be able to appeal to something clearly recognizable in principle by all people, else that censure has no force. This is an implication of the form of the natural law argument which can be tested against evidence, namely: is it clear to most people? When they hear it, do they find it plausible? Rand, even more than historical natural law doctrines, fails that test.

      This isn’t a knock-down argument – I’m sure there are ways of salvaging the principle of natural law – but it does significantly diminish its prima facie plausibility and/or its practical significance. As Oliver Cromwell said, “I beseech you, in the bowels of Christ, think it possible that you may be mistaken.”

    • 1.4

      Raymond C. Niles

      Mar 21, 2014 at 14:02

      Rights are like the law of supply and demand. It exists even when someone violates it. For example, price controls cause shortages. Those shortages are not evidence that the price mechanism doesn’t operate.

      In the same manner, a thief or a salve master may violate the right to a person’s life and property. That does not change the fact that a person must be free if he is to be able to achieve his life-sustaining values.

      In the same manner, if one wants production, one cannot attempt to thwart the law of supply and demand by imposing price controls.

      Rights stem from objective facts. Man must take action using his mind in order to live. That fact remains whether or not people recognize it.

      Just look at how people live when governments do not recognize the rights of its citizens. They die by the millions or live lives that are nasty, brutish and short. Observe that when societies recognize rights, they recognize that man must be free to pursue his well-being, people prosper. America, Europe, Japan – societies that partially recognize the right to life and property – prosper while those that more stringently violate those rights do not.

      The root of rights is man’s nature. That is objective and can be studied just as anything else in nature.

      (The only sense that rights are a “group thing” is that the concept only applies in a society. It is a moral code that says people shouldn’t hurt each other. Obviously, such a social norm does not apply to Robinson Crusoe just as the concept of interpersonal trade and exchange prices does not apply to him.

      Still, Robinson Crusoe must take actions using his rational mind if he is to have shelter, food, etc. He does not need “rights” to ensure that he has the freedom to do these things. Rights are only needed when you have a society of two or more people.

      To put it succinctly:

      Freedom is an objective requirement of human life. Man must be free in order to produce the things he needs for life. In a social context, that freedom is ensured through individual rights.

      It is to secure those rights that (just) governments are created by men.

    • 1.5

      Cameron Harwick

      Mar 21, 2014 at 14:07

      “Observe that when societies recognize rights, they recognize that man must be free to pursue his well-being, people prosper.” This, I think, is the important point. And the idea of point (2) in the article. You don’t need all the apparatus of NL to recognize that some rules/norms are more beneficial than others.

      On the other hand, where NL -differs- from other doctrines that agree on these broad particulars, it still needs these differences to be plain to the average person. If they’re not, it suggests – not necessarily that NL has drawn the wrong practical conclusions (in fact I think they’re mostly right) – but that it’s the wrong moral framework to get there.

    • 1.6

      Raymond C. Niles

      Mar 21, 2014 at 14:19

      By what standard does one judge whether a norm is beneficial? And to whom?

    • 1.7

      Cameron Harwick

      Mar 21, 2014 at 14:29

      You mentioned a prosperous society as an illuminating metric. Now, that’s so aggregated that it will be a very rough estimate, but one of the purposes of economics is to sharpen the benchmarks by which we can judge such rules. Timely coordination of resources, I think, is a very important one.

    • 1.8

      Raymond C. Niles

      Mar 21, 2014 at 15:49

      The only standard that makes sense – that avoids the many problems of an aggregative standard is the standard of an individual life. What is good for the individual is good for a society of individuals.

      A collective standard opens the door to “greatest good for the greatest number” and other problems.

      I will leave my case here, refer you to the articles I cited and what I wrote. You can have the last word, if you want it. It’s your Facebook page after all!

    • 1.9

      Cameron Harwick

      Mar 21, 2014 at 16:07

      Fair enough. I think individual standards have their own problems, but that’s a different argument. In the end, natural law in general – and natural rights in particular – seems to be, when you push it far enough, just a reification of whatever benchmarks we choose, which ends up inhibiting clear thought about them.

      (That’s a strong claim, so I won’t begrudge you jumping back in if you want.)

    • 1.10

      Raymond C. Niles

      Mar 21, 2014 at 18:53

      No. I refer back to what I wrote. Also the Ayn Rand articles. The key idea is that our requirements of survival and well-being are a scientific issue, just like knowing same for a plant or an animal.

      The big difference between us and plants and animals is that we must use our reason to create the values that our lives depend upon. That requires freedom and in a social context, rights. Rights preserve that freedom.

      It is not an arbitrary concept. Rights are specific and derive from these facts about man. Not just any old idea that someone holds as a “benchmark” constitutes a valid concept of rights.

    • 1.11


      Apr 20, 2019 at 4:23

      Why is natural law not a version of a “god of the gaps” argument?

      Theists claim that god is a good explanation for the unknown. As the unknown becomes known, ‘god’ recedes into what we further still don’t know. Therefore god becomes an ever-receding pocket of scientific ignorance. It makes no predictions of the future and therefore cannot be falsified.

      A theist claiming god as a good prescriptive for what we don’t know, would, at the same time, encourage scientific inquiry, as each scientific discovery would simply be proof of the handiwork of god.

      In the same way, it seems we would agree that scientific inquiry is the only way to find out how to order society in a way acceptable to us.

      Where we might disagree is the prescriptive use of the Almighty natural law in order to describe these scientific discoveries.

      If you are saying natural law is a good explanation for what we don’t know about how society should be organized, then should it not also make predictions? Otherwise what use do we have for naming scientific discovery as “natural law”?

      Let me ask you, would it be possible for natural law to contradict scientific discovery of how best to order society (by whatever metric we decide upon)?

      If not, then it would have to be necessarily interchangeable with scientific discovery. Why use another word to describe it?

      It seems to me that we’re all saying the same thing and using different words to describe it.

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