Abstract
Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.
Highlights
The NNL view is that such access is possible
I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty
“Traditional” natural law theorists in particular object to NNL theory’s strong separation of practical from theoretical reason (Veatch 1990), its particular applied conclusions on matters such as capital punishment (Feser and Bessette 2017) and vital conflict cases in bioethics (Furton 2014), its denial of the “transcendence of the common good” (Goyette 2013), its rejection of the relevance of “closeness” as a criterion of what is intended (Jensen 2014), and its Thomistic bona fides (Pakaluk 2020).2. Many such critics believe that the NNL theory understates or ignores the role that God plays in ethics
Summary
Following the early 20th century jurist Wesley Hohfeld, NNL theorists hold that a “right” in the strict sense always has as its correlative a “duty”: I have a right in relation to you that you Φ if and only if you have a duty to Φ in regard to me, where Φ-ing can encompass both acting and refraining from acting (Hohfeld [1919] 2001). The theory holds that practical reason, prescribing without error, identifies certain goods as providing non-instrumental reasons for human action Such goods, which include life, health, knowledge, play, aesthetic experience, friendship, integrity, religion, and marriage, offer distinct and, even in their individual instantiations, incommensurable aspects of a flourishing that, for human beings, is indefinitely and perhaps infinitely variegated. The status of basic goods as aspects of human flourishing just as such, and as providers of reasons for action just as such, generates the claim that in the absence of a greater good, an act in which the agent intends damage to an instance of basic good cannot be an act fully open to the integral directiveness of practical reason; in itself, it is contrary to that directiveness. The first concerns the relationship between human dignity and the scope of human rights; the second concerns the motivational efficacy of human rights
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