Or How the Law of Nature Can Guide Concrete Moral Choice
Draft © by Dr. Jan Garrett
October 12, 2005
On Sat, 8 Oct 2005 a young member of the International Stoic Forum email list was reading the following in a message that had been previously sent to the Forum: "It is my understanding as well that morality/ethics is objective in Stoicism, and part of Nature - independent of human thought, belief, culture, or opinion. They are true facts about the universe. There is no 'right FOR ME' - there is just 'right.'"
He quickly shot back this response, "I think you're correct that this is standard [S]toicism. But the statement seems to me to be meaningless. How can a 'morality' be independent of human thought? What is a moral 'fact about the universe'? What does it mean for a 'moral' statement to be 'just right'"?
His response prompted my reply that follows:
[A Two-Stage Solution]
Perhaps part of the difficulty [the young member] is having is that he wants moral reason to move straight from what a given person would prefer to do, given his or her perhaps flawed conception of the good for himself, to objective rightness, and finds this hard to do. At the risk of oversimplification, let me suggest a two-stage process.
Instead of going directly to moral rightness, look at legal rightness. There should be no great difficulty in figuring out what a particular organized society holds to be legally right (entirely aside from whether it is correct in so doing). The criterion of legal rightness is just what the recognized authoritative legal and judicial bodies in the society say it is. Aside from civil war situations, most people in any given society agree as to what and who these bodies are, and ascertaining their views is an empirical matter.
Legal rightness may vary from society to society and within a given society from time to time. But it does provide one standard for saying something about the supra-individual rightness or wrongness of individual (or group) actions.
[The Moral Law of Nature as a Standard for Judging Adequacy of Human Law]
Now, as [common sense and most] philosophers have held since at least the time of Socrates, it is possible for what is legally or conventionally right in this sense to be objectively wrong. This insight led some of the ancient Greeks, and the Stoics in particular, to posit a moral law of Nature, which they identified with the right Reason of Zeus. The laws of states are right insofar as they conform to the moral law of nature.
The sage chooses rightly because his or her will is completely aligned with the right Reason of Zeus. But given that we are not sages, or are only making progress toward sagedom, what kinds of signs or clues can we use to determine whether our merely human laws and customs are aligned with objective law?
[The Role of Preferred Things in Determing the Content of the Natural Law]
Well, we can look at whether our human laws tend, so far as possible, to promote preferred things and discourage rejected things. What these are is no big secret. My modernized list of preferred things would include many of what Martha Nussbaum calls capabilities:
- living a life of normal duration
- physical health
- respect for bodily integrity, including freedom of movement and control over one's own reproduction (within reason)
- actualization of our capacities for skilled use of our senses, of imagination, and diverse cognitive abilities.
- practical reason, in the sense of being able to form a conception of the good and to engage in critical reflection about it and about the planning of one's life
- being able to function cooperatively in relation to others, to give respect to and receive it from others
- being able to exercise individual and cooperative control over parts of one's material environment and joint political control with other human beings over the social environment
Growing out of (especially) the next to last capability is the recognition of our human interdependence that gives rise to a sense of justice: it is a genuine objective moral law that people should be treated with equal respect insofar as possible, such that states are obliged to make real efforts, within their means, to ensure to those within the territory under their control (not just their own citizens) access to these capabilities.
(If you want a concrete application with moral bite, relate this to the third capability--respect for bodily integrity, which supports a strong case against torture, and think of the U.S. [government's] treatment of detainees [at Abu Ghraib prison and] at Guantanamo.)
Nussbaum's list of capabilities could be called first-order capabilities and a sense of justice could be called a second-order capability. It is like the [other?] internal capabilities in being an acquired internal disposition, but unlike them it presupposes an understanding of the other capabilities and the proposition that they should be distributed fairly. (The distinction between first-order and second-order capabilities I am talking about here is different from Nussbaum's distinction between basic, internal, and combined capabilities, although [justice as a] second-order capability is related to internal capabilities as a special kind of them.)
[The Basis for Adherence to or Reform of the Human Law]
My point is that we can cite factors such as the capabilities as reasons for or against holding specific human laws to be in accord with the objective law, also called, e.g., by the ancient Stoics, "the right reason of nature." If specific human laws fail to accord with the objective law, or fail to discourage actions contrary to the objective law, such observations can be the starting point for a reasoned case for reform of the human law or additions to it.
If the human law is largely in accord with the natural law, then human law itself will give us a pretty good set of moral guidelines. If the human law is grossly out of alignment with the natural law, then it is our moral duty, so far as possible, to promote modifications of it but, in the meantime, to act according to our best estimate of what the natural law would demand of us in our individual and local situations. We can be guided in this respect by awareness of superior legal cultures at other times or in other places. If the human law is partly in agreement and partly in disagreement with the natural law, then our task is complex, but that does not mean we are entirely without guidance.
Originally composed October 8, 2005; slightly modified October 12, 2005.
Related ReadingMartha Nussbaum on Capabilities and Human Rights
On "preferred" and "rejected" values in Stoicism