Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law / Edition 1

by Nicholas Bamforth, David A. J. Richards

Overview

Fundamentalist forms of religion today claim authority everywhere, including the debates over the politics and constitutional law of liberal democracies. This book examines this general question through its critical evaluation of a recent school of thought: that of the new natural lawyers. The new natural lawyers are the lawyers of the current Vatical hierarchy, polemically concerned to defend its retrograde views on matters of sexuality and gender in terms of arguments that, in fact, notably lack the philosophical rigor of the historical Thomism they claim to honor. The book critiques forms of fundamentalism and offers an original argument both for how they arose and why they are unreasonable in contemporary circumstances.

Product Details

ISBN-13:	9780521868631
Publisher:	Cambridge University Press
Publication date:	12/06/2007
Edition description:	New Edition
Pages:	416
Product dimensions:	5.98(w) x 9.02(h) x 1.06(d)

About the Author

David A. J. Richards is Edwin D. Webb Professor of Law at New York University School of Law. He received his AB from Harvard College in 1966, his D. Phil. in moral philosophy from Oxford University in 1971, and his JD from Harvard Law School in
1971. His Oxford Doctoral dissertation was published by Oxford University Press in 1971 as A Theory of Reasons for Action, and he has published an additional 12 books, including Sex, Drugs, Death, and the Law: An Essay on Human Rights and Overcriminalization (Rowan and Littlefield, 1982) which was named the best book in criminal justice ethics by the John Jay College of Criminal Ethics in
1982. Choice Magazine named his book Foundations of American Constitutionalism (Oxford) one of the best academic books of the year in
1989. He has served as vice-president of the American Society for Political and Legal Philosophy and was the Shikes lecturer in civil liberties at the Harvard Law School in 1998.

Read an Excerpt

Cambridge University Press
978-0-521-86863-1 - Patriarchal Religion, Sexuality, and Gender - A Critique of New Natural Law - by Nicholas Bamforth and David A. J. Richards
Excerpt

CHAPTER 1

NEW NATURAL LAW IN CONTEXT

In the past forty-odd years, a tight-knit and highly influential group of Catholic thinkers, labeled (for wont of a better term) the ‘new natural lawyers’ or the ‘Grisez School’, has sought to develop an integrated theory applicable to the fields of religion, ethics, philosophy and law.¹ As E.M. Atkins suggests, the new natural lawyers’ work “is characterized by a bold trust in reason, by elaborate systematization, by a willingness to apply theory to a wide range of specific practical problems, and by a strong allegiance to Roman Catholic moral teaching, interpreted in a conservative way”.² New natural law provides a distinctive approach to Catholic theology, alongside a comprehensive account of ethics and the nature and proper purposes of law and legal systems. At a practical level, its proponents argue in favor of unilateral nuclear disarmament and against contraception, abortion, and any sexual activity outside of the heterosexual marriage (and many common sexual practices within it) – including all lesbian and gay sexual activity. The new natural lawyers haveplayed a prominent part in doctrinal debates within the Roman Catholic Church, and have sought to influence the outcome of important constitutional cases in the United States by submitting closely argued amicus briefs. New natural law arguments were, for example, advanced before the United States Supreme Court in Lawrence v. Texas in support of a state anti-sodomy statute that was later held to violate the Fourteenth Amendment due process guarantee,³ and at the state supreme court level in Romer v. Evans in support of a measure that was later found by the U.S. Supreme Court to display unconstitutional “animus” towards lesbians and gay men.⁴ Most recently, the new natural lawyers have been important advocates of a proposed constitutional amendment in the United States that would ban same-sex marriage.⁵

   Viewed as an integrated theory, new natural law has already been subjected to comprehensive and high-quality critical analysis by theologians and ethicists.⁶ Unfortunately, legal theorists have generally lagged some way behind, tending to evaluate the work of the main thinkers about law in the group – John Finnis and his follower Robert George – as a stand-alone contribution to legal theory, rather than as a component part of the cross-disciplinary new natural law perspective. This is despite the observation made by George and Gerard Bradley (another prominent new natural lawyer) that the theory was originally “proposed” by theologian Germain Grisez – who remains the preeminent theorist in the group – and “developed by him in frequent collaboration with John Finnis and Joseph Boyle”, so that while work by Finnis and others has brought the theory “to the attention of secular philosophers”, it is “of particular interest to Catholic moralists. This is because [new natural law] provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of ‘direct’ killing, as well as sexual immoralities such as fornication, sodomy, and masturbation”.⁷

   Perhaps surprisingly, only a tiny number of legal theorists have sought to address the question implicit in E.M. Atkins’s characterization of new natural law: namely, how far the theory’s approach to law presupposes or requires religious or particular doctrinal understandings of morality, human agency, and basic human action.⁸ Most seem, by contrast, to accept without question the notion that Finnis’s account of law is of a secular character, and appear unconcerned to explore the dependence of that account upon Germain Grisez’s work.⁹ The aim of the present book is to help redress this failure of evaluation, a task which we believe to be particularly important given new natural law’s illiberal prescriptions concerning sexuality and gender.¹⁰ We contend that new natural law defends, in these areas, a sectarian religious view that, because of internal and external flaws, constitutes neither a consistent nor an appealing approach to law and individual rights in a modern constitutional democracy.

1. THE ARGUMENT SUMMARIZED

Legal theorists usually associate John Finnis with his widely acclaimed book Natural Law and Natural Rights,¹¹ the central argument of which is that there are:

(i) a set of basic practical principles which indicate the basic forms of human flourishing as goods to be pursued and realized, and which are in one way or another used by everyone who considers what to do, however unsound his conclusions; and (ii) a set of basic methodological requirements of practical reasonableness (itself one of the basic forms of human flourishing) which distinguish sound from unsound practical thinking and which, when all brought to bear, provide the criteria for distinguishing between acts that (always or in particular circumstances) are reasonable-all-things-considered (and not merely relative-to-a-particular-purpose) and acts that are unreasonable-all-things-considered, i.e., between ways of acting that are morally right or morally wrong – thus enabling one to formulate (iii) a set of general moral standards.¹²

This distinction between (and combination of ) basic goods and practical reason-ableness is often seen as helping Finnis’s account to circumvent the so-called naturalistic fallacy¹³: the mistake, famously identified by G.E. Moore in Principia Ethica, of assuming without adequate argument that good is conceptually identical with some natural fact (or, as it is sometimes put more bluntly, the idea that a normative ‘ought’ claim cannot without more be derived from a des-cription of what ‘is’).¹⁴

   A vivid example of the acclaim with which Finnis’s work has been received is provided by leading liberal-minded theorist Sir Neil MacCormick, who suggests that:

Some books make a radical impression upon the reader by the boldness and novelty of the theses they state; to write such a book is a rare and difficult achievement. It is scarcely easier, though, and no less rare, to make a radical impression by a careful restatement of an old idea, bringing old themes back to new life by the vigor and vividness with which they are translated into a contemporary idiom. That has been the achievement of John Finnis’s Natural Law and Natural Rights, a book which for British scholars has brought back to life the classical Thomistic/Aristotelian theory of natural law. A theory which more than one generation of thinkers had dismissed as an ancient and exploded fallacy kept alive only as the theological dogmatics of an authoritarian church was rescued from a whole complex of misunderstandings and misrepresentations. At the same time, it was exhibited as a thoroughly challenging account of law, fully capable of standing up to the theories which were regarded as having refuted and superseded it, while taking into account and accepting into its own setting some of the main insights or discoveries of those theories.¹⁵

In fact, MacCormick’s statement provides a good illustration of exactly the type of failure – that is, to consider Finnis’s work in its proper context – that we are seeking to redress. For, as we will show in subsequent chapters, many of Finnis’s arguments – far from having ‘rescued’ natural law from ‘theological dogmatics’ – in fact presuppose a commitment to religious belief and might, more specifically, be seen as constituting a reflection and a defense of the authoritarian and patriarchal views propounded by the Roman Catholic Church hierarchy, most notably under the doctrinally conservative Papacies of John Paul II and Benedict XVI.¹⁶

   We will develop this analysis using two connected strategies. First, we place Finnis’s work in its proper context by showing its dependence (acknowledged by Finnis himself ¹⁷) on the arguments of theologian Germain Grisez. While the writing of Natural Law and Natural Rights marked an important stage in the de-velopment of new natural law, it did not constitute the final – much less the definitive or most comprehensive – statement of that theory, as both Grisez and Finnis acknowledge.¹⁸ We argue that to properly understand new natural law, it is necessary to examine Grisez’s work as well as later revisions to the theory made by Grisez, Finnis, and others: for the integrated nature of new natural law, as a school of thought, really does mean that Finnis’s prescriptions for law cannot be understood in an intellectually meaningful way save as part of the broader theory. Secondly, we consider in detail the new natural lawyers’ interventions in constitutional arguments concerning sexuality and gender (explaining the focus on these topics in the book’s title), and argue that these interventions highlight the morally unappealing dimensions of the theory, alongside its practical role in giving voice, in relevant constitutional debates, to the dictates of the contemporary Catholic Church hierarchy.

   To give a fuller idea of how the argument will develop, we should explain in a little more detail how the two strategies will be pursued in the chapters that follow. Chapters 2 and 3 essentially set the stage for our critique. In Chapter 2, we set out the criteria that we use when conducting our evaluation of the new natural lawyers’ work: namely, whether their arguments are internally consistent (for example, with their stated premises) and whether they are morally appealing. This is a slightly technical exercise, but one which allows us to arrange the arguments of later chapters more clearly. In particular, by explaining why our critique does not – unlike many existing U.S. analyses of the new natural lawyers’ views about sexuality and abortion – rest upon John Rawls’s concept of public reason, Chap-ter 2 helps to make clear what is distinctive about the present study. In the course of the chapter, we also discuss in greater detail the nature of the distinction between religious and secular arguments. In Chapter 3, we present an integrated account of the work of Grisez, Finnis, and other new natural lawyers, exploring their academic arguments, their practical interventions in constitutional and political debates in the United States, and their role in doctrinal debates within the Catholic Church. Although this material is not enough on its own to produce the conclusion that the new natural lawyers’ arguments about sexuality, gender, and the law are religious, it provides the basis for such a conclusion to be drawn in the light of the analysis of later chapters, particularly Chapter 4.

   In Chapters 4 and 5, we deploy our first criterion – a standard that we refer to as ‘internal consistency’ – in analyzing whether the new natural lawyers’ arguments (and Finnis’s in particular) are consistent with their premises or aims, or in terms of their logical development. In Chapter 4, we critically examine Finnis’s and other new natural lawyers’ claims that their arguments about sexuality and gender are of a secular rather than religious character. We suggest that these arguments in fact play a polemical role in defending the views on these topics of the Papal hierarchy (a point which we develop more generally in Chapters 9 and 10): views now reasonably questioned by Catholics and non-Catholics alike. We suggest that Finnis and his colleagues offer not an objective, secular approach to sexuality and gender, but instead sectarian religious arguments. The new natural lawyers’ work can best be seen as a defense of the pronouncements of the Church hierarchy and as an attempt to defend a morally conservative interpretation of Catholic doctrine. In Chapter 5, we consider inconsistencies in the new natural lawyers’ approach to the broadly Thomistic framework within which they claim to be working. We consider Grisez’s and Finnis’s approach to historical Thomism, and compare the new natural lawyers’ arguments about sexuality and gender with those advanced by other contemporary Catholic Thomists. We conclude from this that the reading of Saint Thomas adopted by Grisez and Finnis is overly selective and ultimately lacks both the philosophical and scientific appeal to generally accessible reasons that is characteristic of Thomas.

   In Chapters 6 through to 8, we deploy our second criterion – a standard that we refer to as ‘substantive appeal’ – in examining the moral appeal (or, as we argue, the lack of it) of the new natural lawyers’ views concerning sexuality and gender. In Chapter 6, we set out various normative arguments, both philosophical and constitutional, which explain the substantive moral good associated with lesbian and gay sexuality (and indeed, any freely chosen sexuality) and same-sex partnerships, and the wrongfulness of homophobia. We also offer, by analogy, some normative bases for condemning sexism. These arguments form the background to our exploration, in Chapter 7, of the homophobia and sexism of the new natural lawyers’ approach: an approach which, we argue, is substantively unappealing in constitutional democracies. Finally, we argue in Chapter 8 that the views of the new natural lawyers are not only problematic in the areas of sexuality and gender, but that their views are also open to challenge on issues such as nuclear deterrence and intention in morality, and can be seen, on examination, to rest on a form of sometimes fundamentalist argument that is inappropriate in a constitutional democracy. As well as reinforcing our analysis of the religious arguments of new natural law, Chapter 8 suggests that the new natural lawyers’ views about sexuality and gender are likely to appeal only to those with preexisting doctrinal commitments.

   The points raised in Chapters 3 to 8 also raise two larger questions. The first is whether new natural law, considered in the round rather than just in terms of its arguments concerning sexuality and gender, rests on a commitment to religious belief or to the truth of a particular set of religious doctrines. In logic, three answers might be possible. The first is that it does not. On this view, although Finnis and his colleagues are devout Catholics, support for their theory does not require religious faith or a commitment to Catholic doctrine, even if their practical reasoning is informed by their own faith. The second is the answer offered by the new natural lawyers themselves: While a full acceptance of their theory carries with it an acceptance of the reality of God as the uncaused cause, their conclusions can be arrived at by practical reason rather than doctrinal commitment and should not be seen as narrowly sectarian.¹⁹ In logic, this second answer knocks out any role for the first, although the two are linked in so far as they both presuppose (albeit in subtly different ways) that it is intellectually possible for a theorist to prevent the theory of law which they advocate from being driven or overwhelmed by their personal moral commitments. The third possible answer is that the new natural lawyers’ arguments concerning law are rooted in their authors’ religious beliefs and also depend in many instances upon Catholic doctrine. Supporters of this answer might believe either that it is inevitable that any theorist’s deep-seated moral commitments significantly affect their theorizing about the law, or that it is not inevitable but happens to be true in the case of the new natural lawyers. The material presented in Chapters 3 to 8 seems to us to make the third answer the most plausible, although – given our primary focus on sexuality and gender – we do not present a thorough defense of this view here (neither do we wish to become involved in a debate between the two possible versions of the answer canvassed in the previous sentence). Our aim, purely and simply, is to demonstrate the religious character and substantive undesirability of the new natural lawyers’ arguments about sexuality and gender-related matters.

   The second larger question is what motivates the new natural lawyers’ arguments. We offer our diagnosis in Chapter 9, which constitutes a historical, cultural, and psychological study of the impact of patriarchal assumptions on the formation, development, and continuing existence of the Catholic Church’s traditionalist views concerning sexuality and gender. We consider how such patriarchal views arose in the works of Saint Augustine and Saint Thomas and on this basis evaluate the motivations that led the new natural lawyers to defend such views today in the way that they do. We argue that whatever may once have been a reasonable basis for such views (if in fact anything ever was), they are today demonstrably unappealing in substantive moral terms. If this analysis is correct, then the new natural lawyers’ arguments about important questions of individual liberty and public and private morality – relating to marriage, the role of women, lesbian and gay sexuality, pregnancy, contraception, and abortion – can be seen as playing a role in unjust contemporary rationalizations of constitutional and moral evils such as sexism and homophobia. In many ways, these points go to the heart of our critique: for we suggest that the new natural lawyers’ arguments will strike anyone with a concern for individual liberty as being morally unappealing (indeed, radically so) and as unintelligible without a prior commitment of a sectarian religious nature. The new natural lawyers’ underlying motivation is to defend the authority of a patriarchal Church, with a rigid and unchanging set of doctrines, against reasonable internal criticism from other Catholic thinkers and reasonable external criticisms from society at large. The legitimacy problem currently posed by patriarchal Papal authority is, we argue, well illustrated by the Catholic Church’s inadequate response to the recent priest abuse scandal in the United States. Viewed in this light, new natural law must ultimately be seen as a defense of anachronistic patriarchal religion, a key reason for thinking that the theory’s arguments cannot be acceptable in modern-day constitutional democracies.

   Chapter 10 draws the various threads of our argument together. Given our analysis of the patriarchal notion of religion defended by the new natural lawyers, we feel it important to stress that many forms of Christian argument are – by contrast – not only consistent with the values of a constitutional democracy, but also have advanced and deepened such values. If the writings of the new natural lawyers constitute an attempt to shore up the authoritative position of the Catholic Church, based upon a reading of one of that Church’s most respected thinkers, St. Thomas Aquinas, what can a reading of the Gospels tell us about the reported views of Jesus of Nazareth himself? Chapter 10 thus offers an alternative view of Christianity that is based on a better understanding of the historical Jesus and offers a more reasonable view of sexual morality. We argue that the Gospels – subject, of course, to numerous controversies of a doctrinal nature (not confined to Catholicism) about how they are to be read – provide a very solid foundation for the view that Jesus of Nazareth was, if he in fact existed, the promoter of tolerance, reconciliation, and respect for the freedom and equality of individuals. None of these values – values which are rightly cherished by liberals in the modern world – sit easily with the conservative, dogmatic, and pre-modern beliefs articulated by the new natural lawyers. The historically significant contributions of Christian thinkers to progressive constitutional argument (for example, those of the radical abolitionists and of Martin Luther King, Jr.) have arisen also from anti-patriarchal forms of voice, suggesting that there is nothing incompatible between Christianity – properly viewed – and respect for the individual rights that are valued in modern constitutional democracies.

2. SOME BROADER ISSUES

In the previous section, we highlighted some significant questions which we feel spring from our analysis of new natural law. However, our account raises other broader issues which we must highlight in the present section. The first concerns the nature or basis of theoretical arguments about law, and the second – which is perhaps better described as a cluster of issues rather than a single one – the proper role of powerful organized religions (in particular the Catholic Church) and of religious arguments in modern constitutional democracies.

   Turning to the first issue, one of the more frustrating features of legal theory is the ability of legal theorists, however distinguished, needlessly to detach the theory or question they are examining from its philosophical, political, social, economic, or historical context.²⁰ Of course, given the law’s many distinctive features – not least its vocabulary, its authority claims and, many would say, its methodology – it would be wrong to suggest that context must always provide illumination whenever we consider some aspect of the law. To understand properly the law’s nature and operation, it is necessary to recognize that it often makes distinctive claims (both about itself and of individuals, organizations, and groups) and to engage with its distinctive style of reasoning. Nonetheless, since the law’s main task is to regulate social relations, our understanding of its workings also stands to be impoverished if we pay insufficient attention – where attention is warranted – to the effects of rules, to the reasons for their creation, and to relevant arguments about whether a given rule can be justified, whether it deserves to be amended or reinterpreted, and whether any new rule should be introduced.²¹ If context is relevant in these various ways to our understanding of the nature of the law, then it should also be relevant, albeit in subtly different ways, to our understanding and assessment of theories about the law’s nature and its permissible uses. It may therefore be important, for example, to consider the background political and moral philosophies of theorists if we wish to gain a full understanding of their theories about the law. This is one of the underlying issues to emerge from our analysis in this book: Too many legal theorists have simply been prepared to take the new natural lawyers’ arguments about law (in particular those of Finnis) at face value, and to ignore or gloss over evidence pointing to the conclusion that those arguments are in fact of a religious character. Having said this, we should stress that it is absolutely not our intention to accuse the new natural lawyers of deliberately dressing up religious arguments in a secular garb, thereby acting in bad faith by consciously misleading their readers. It seems entirely likely that, as people of deep religious commitment as well as serious scholars, they sincerely believe that their arguments about sexuality, gender, and law can be arrived at by practical reason rather than doctrinal commitment. Nowhere in law or philosophy, however, is it customary to take an author’s own view of the nature of his or her argument as constituting a definitive explanation of that argument. As we shall see in Chapters 2 and 4, the new natural lawyers’ sense of commitment may in fact make it difficult for them to apply (or apply in the same way) the analytical distinction that secular scholars tend to draw between religious and secular arguments, leading them mistakenly to believe that their arguments about sexuality and gender are not dependent – in so far as they concern the law – upon religious belief or doctrine.²² This makes it still the more important for legal theorists to take care – far greater care than has been the case to date – when analyzing the nature and implications of those arguments.

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© Cambridge University Press

Table of Contents

1. New natural law in context; 2. The architecture and reach of new natural law; 3. Criteria for evaluating new natural law; 4. Internal consistency: is new natural law secular?; 5. Internal consistency: is new natural law Thomistic?; 6. Substantive appeal: what's wrong with homophobia and sexism?; 7. Substantive appeal: new natural law, sexism, and homophobia; 8. Substantive appeal: moral absolutes and the inconsistent fundamentalism of new natural law; 9. New natural law and patriarchal religion; 10. Conclusions: Christian alternatives to new natural law.

Editorial Reviews

'Nicholas Bamforth and David A. J. Richards make a full frontal attack on the philosophical consistency, social relevance, and political desirability of new natural law ... will be welcomed ... this text presents challenging philosophical insights as well as informative commentary on the role of doctrinal religion in the construction of seemingly secular law. ... constructive mode ... meticulously argued, well-written, and thoroughly annotated ... provides a detailed map of the philosophical, personal, and political affiliations between Grisez, Finnis, George and, most importantly, it closely traces their arguments to 'illiberal prescriptions' concerning sexuality and gender. ... This is the gap in the philosophical investigation of new natural law that the text wishes to fill.' Politics and Religion

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