Since at least the founding of America and even before, the idea that some law existed in the natural order that could organize human society has been sort of the brass ring for philosophers of ethics. Wouldn’t it be awesome if we could tap the intrinsic moral code written into the universe? Then we wouldn’t need tyrannical governments to tell us what to do. We wouldn’t need a Bible or some other book to tell us what was right. We’d have finally uncovered independent and universal morals.
Why talk about natural law in a discussion of marriage equality? Well, as I said last time, in order for the civil government to enforce the stipulations of contracts, it needs to have a definition of what is and isn’t a valid contract. I don’t think the government itself should be the source of that definition. So the question is: “What is the source for our definition of marriage?”
Many libertarians have said that marriages are and should be defined by the people that enter into them. That the private agreement will naturally sort itself out. However, we’ve seen that some “consensual” and “non-harmful” private contracts, though they would meet every libertarian’s stated ethical boundaries, would still be rejected by most libertarians as unethical. So we need some source of law beyond governing principles to tell us what is right. We need some source of law beyond government. And since our society seems to think that Christianity has gone to seed, they’ve decided to adopt a much more recent philosophy of ethics with a fairly recent track record of… abysmal failure. Yes, I’m talking about natural law. It has many problems.
The most egregious of which? It’s impossible to actually find out what it is. Obviously and apparently, nature is “red in tooth and claw.” Animals commit genocide, incest, cross-species sexual acts, etc. They do all sorts of things that would not be considered ethical by even the most progressive of human progressives. So how do we sort between the natural stuff that we want to use as a defense of our actions (e.g., lots of animals are homosexual) and the natural stuff that makes our stomachs turn (e.g., wild dogs eating babies)? In order to determine what we’ll cherry pick from nature for our ethical principles, we have to have a higher standard than natural law.
So most natural law theorists aren’t even basing their ethics on nature ultimately. They are really relying on nothing more than what is “reasonable” to them. And this, of course, changes with every generation. And it’s different even for each natural law theorist. So, ultimately, natural law theory is personal preference masquerading as universal principle. And personal preference is no basis for law. Arbitrary law systems always degenerate into exercises of brute force. In other words, whoever is strongest gets to enforce his personal preferences. How ironic that natural law should make human society look so much like animal “society.”
Even though laws must be written for a specific day and age, the moral principles from which we draft those laws must be universal. Otherwise, our laws will be unjust. If we base our laws on what is reasonable to the most powerful of us at the moment, we’ll probably always make unjust laws that are oppressive to the weak and destructive to a peaceable society. And they will be more perishable than discount dairy products.
Tomorrow, we’ll talk about what I think is the best source for the definition of marriage and why.