"NATURAL LAW" AND THE LAWS OF NATURE
In the history of human thought few words have created as much confusion as the words "nature" and "law". They can assume very different meanings, and these meanings are not always made sufficiently clear. Indeed, when people use the words in an argument, they often switch from one meaning to another without becoming aware of it and thus trap themselves in logical fallacies.
It seems useful, therefore, to take a brief look at how the concepts of "nature" and "law" originated, how they developed over the ages, and how we can best understand them today.
The Doctrine of Natural Law
In our Western civilization there is an ancient belief that above the imperfect laws written by human legislators one can find a higher, perfectly just, unwritten "natural law" created by God. Human laws are valid only insofar as they correspond to the natural law, and everybody can discover for himself what this natural law demands simply by using his reason.
This belief was well expressed about 2000 years ago by the Roman writer and politician Cicero in his book Laws (I, 10):
"There is in fact a true law— namely right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. ... It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter and its sponsor. The man who will not obey it will abandon his better self and, in denying the true nature of man, will thereby suffer the severest of penalties, though he has escaped all the other consequences which men call punishment."
!n this single, short paragraph Cicero summarizes all the essential features of "natural law": First, it is the direct expression of the Divine Will. Therefore it is universal, eternal and unchangeable. Second, its rules can and must be found with the help of right reason. Third, man has a sacred obligation to obey these rules. Whenever he breaks them, he violates his own "true nature" and therefore automatically punishes himself.
Thus, the concept of a Natural Law implies that moral principles are immanent in nature, and that they tell us exactly how we should behave. As long as we obey them, we fulfill our true destiny. All our actions will not only be natural, but also perfectly moral. In other words, if everybody acted according to his nature, i.e., his "better self", the world could forever live in harmony, justice, and peace.
Cicero was, of course, by no means the first to suggest this appealing idea. Long before him a school of Greek philosophers called Stoics, and before them Aristotle and Plato had made the same basic suggestion. However, even they only updated a much older philosphy. Indeed, as we shall see, the Natural Law doctrine has its roots in some of the earliest religious beliefs of mankind.
The oldest and most primitive form of religion is known as "animism". That is to say, at the lowest stages of civilization man considers natural things —trees, rivers, mountains, the stars in the sky—as "animated" or endowed with feeling and intelligence. He believes that spirits or souls dwell within or behind them, and that these spirits have to be treated with the same consideration as his fellow human beings. In fact, they deserve even greater respect, because they possess superhuman powers with which they can reward or punish him. Thus, all natural phenomena are easily explained: The corn grows because the corn spirit wants to reward man for righteous conduct. The corn fails to grow because its spirit wants to punish man for his transgressions. The river carries the boat because the river spirit is at peace with man. The boat is pulled down into the water and sinks because the spirit has been offended.
This animistic interpretation of nature can, of course, also be described as a social interpretation. Or, to be more precise, man's earliest experience of nature is simply an extension of his social experience. The spirits which surround him everywhere react very much like powerful lords, chiefs, or elders and therefore have to be treated in a similar fashion. In return, they offer protection and help. Thus, the relationship between man and nature is essentially a social relationship governed by the principle of mutual obligation. Man finds himself tolerated and even supported by nature as long as he meets his obligation. However, as soon as he fails, nature becomes angry and punishes him.
As man progresses on his path of civilization, his religious beliefs become more refined and his primitive animism turns into some form of polytheism (Greek: a belief in many gods). The multitude of powerful spirits is gradually reduced to a small number of even more powerful gods, each of whom governs a large segment of nature. Thus, a god or goddess of fertility is responsible not just for a single plant, but for the whole harvest. Boating and seafaring no longer depend on the spirit of each individual river or ocean, but on one great god of all waterways. Needless to say, this more sophisticated religion simplifies life considerably. Still, it does not change man's basic relationship to nature. As a matter of fact, this relationship may remain unchanged even on the next level of sophistication, when polytheism gives way to monotheism (Greek: the belief in one God).
For the purpose of our present argument it does not make very much difference whether the corn grows at the command of a corn spirit, an ancestor spirit, a fertility god, or the Lord God Almighty. The important point is that this growth is caused by a superhuman intelligence in response to human behavior. Sunshine and rain, good and bad harvests, are reward or punishment for man's conduct. Indeed, everything that occurs in nature has some personal meaning for man and is somehow related to his fate. All natural phenomena have the same cause and serve the same end. The law of nature is divine will. There is no differentiation between causal and normative laws. Explanation and justification are one and the same.
Moreover, in these early phases of religious evolution, the divine will manifests itself not only in the laws of nature, but also in the laws of society. Indeed, as we have already mentioned, society and nature are not yet clearly distinguished in man's mind. Both follow the same rules and are experienced the same way. Everything in this world (of which man is an integral part) is governed by powerful, superhuman beings who demand personal, strict obedience. These superhuman beings—the spirits, the gods, or God—are therefore the source of all law, declared and implied, general and specific, known and unknown, written and unwritten. In short, the contrast between an imperfect "artificial" human law and a perfect "natural" law does not yet exist. Even the most trivial social customs, rules, and regulations are of divine origin.
This is the reason why many primitive human societies believe that their political and legal institutions owe their existence to some national deity or a divinely inspired leader. In some societies the rulers themselves claim to be divine or at least of divine ancestry. It is only at higher stages of civilization, when the old customs and laws have to be changed, when people develop some sense of history, and when they learn to show some tolerance for foreign ideas, that they begin to perceive their social order as an arbitrary creation of fallible men. This is the point at which the distinction between a written, imperfect positive law and an unwritten, perfect natural law appears. From now on, perfect justice is restricted to the natural order.
To be sure, for the great monotheistic religions there remain some written laws which are directly inspired by God. They are preserved for all time in the sacred books containing His revelations—the Old and New Testaments and the Koran. However, these laws are rather general in character, cover only a few selected areas of life, and thus have to be augmented by a host of secular human laws. These human laws may, under certain conditions, very well turn out to be unwise and unjust. It is therefore always necessary to measure them against the divine law which is revealed in the Scriptures and the natural law which is implied in nature itself.
ST. THOMAS AQUINAS
St. Thomas Aquinas (1224-1274 A.D.) was the greatest medieval theologian and one of the most brilliant proponents of the Natural Law doctrine.
In our Western culture, this philosophy was, of course, eventually tied to the doctrines of the Christian faith. (The Jewish and Islamic legal traditions developed along different lines of their own.) Thus, from the end of antiquity well through the Middle Ages, the Catholic church was considered the proper guardian and interpreter of all "higher" law. In his Summa Theologica, Thomas Aquinas, the greatest medieval theologian, distinguished four basic types of law:
1. Eternal Law (the justice of God, which is almost identical with His reason),
2. Natural Law (the Eternal Law implanted by God in nature and in the human mind),
3. Divine Law (God's overt revelation of His will), and
4. Human Law (derived from Natural Law).
The first three types of law express the will of a heavenly legislator and therefore clearly fall into the province of theology. Only the fourth type, human law, can be said to have some secular basis. However, since it is derived from natural law (and in specific instances superseded by divine law), its ultimate validity still has to be decided on religious grounds.
The Thomistic view of the law dominated European thinking for many centuries and is, in fact, still held by Catholic theologians today. Obviously, these theologians also believe, as Thomas did, that there can be only one correct interpretation of nature and the Scriptures—the Catholic interpretation. This latter belief, however, is no longer shared by all Christians.
The Impact of the Reformation
The Protestant Reformation of the 16th century devided the formerly unified Western church, giving rise to new, and often conflicting, religious and moral doctrines. As a result, Christians found it more and more difficult to agree on the “true” will of God or the intentions of nature.
(Left) 16th century Prostetant caricature portraying pope Alexander VI. as the devil.
(Right) 16th century Catholic caricature portraying Martin Luther a a bagpipe played by the devil.
The Protestant Reformation of the early 16th century has, in the meantime, given rise to a great number of new, independent Christian churches which offer a variety of different and even conflicting scriptural interpretations. Furthermore, many of these churches refuse to formulate any detailed official dogma and encourage their members to study the Bible according to their own lights. As a result, the exact meaning of specific divine revelations has become a matter of opinion.
Not surprisingly, modern Christians also differ in their interpretations of the Natural Law. Instead of a unified church speaking with one voice, we now hear many churches and countless individuals expressing their own diverse beliefs about the meaning of God's creation. Indeed, in the last few centuries this diversity has grown almost to the point of chaos. Thus, the "true nature" of man, which had seemed so obvious in the past, has turned into an ever more elusive phantom.
Because of these developments, the doctrine of Natural Law itself has lost much of its former influence and gone into a gradual decline. Today, legislatures no longer pay much attention to it, but pass their laws simply as an expression of the popular will without invoking any "higher" authority.
The increasing neglect of "nature" as the source of the law has been especially noticeable in England and America, which share a legal heritage quite different from that of other Western countries. English kings gave up some of their "natural" rights as early as 1215 with the signing of the Magna Carta, and in the following centuries their power was limited even further by Parliament. Moreover, a common law founded on practical experience and guided by precedents bound both the King's ministers and his subjects. Thus, unlike the law of continental Europe, English law soon acquired a rather pragmatic character. Legal disputes were more easily recognized as disputes between people, and the key to justice was sought not so much in the Bible as in the Statute Book.
This does not mean, of course, that England and America completely discarded the natural-law philosophy. Indeed, when, in the late 18th century, the American colonies took up arms against the English crown, they used this very philosophy to justify their rebellion. Thus, the Declaration of Independence of 1776 refers specifically to "self-evident truths" and to "the laws of nature and of nature's God." Still, upon closer study, this same document also reveals that its authors were somewhat ambivalent in their attitude or even had second thoughts about the basis of the natural law. For example, in contrast to older traditions they also state that governments derive their just powers not from God in heaven, but from the "consent of the governed" here on earth. It follows that, if necessary, the people have a right to institute a new government, "organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." In other words, government and law are seen mainly in secular terms as the work of man. The people alone, therefore, bear the ultimate political and legal responsibility.
The American Declaration of Independence
The American Declaration of Independence of 1776 still owes many concepty and phrases due the doctrine of Natural Law. However, the document also reveals a certain ambivalence towards this doctrine. Shown here is the introduction. The key expressions relating to the Natural Law doctrine have been underlined for easy identification.
In contemporary America, the Natural Law doctrine has ceased to play any important practical role. All that is left of it today are a few bizarre vestiges, most notably in the unrevised, older state criminal codes. For example, until recently, a number of states still prohibited so-called "crimes against nature", i.e., acts that do not involve actual victims, but run counter to what Jews and Christians once considered to be the will of God. However, the validity of these laws was successfully challenged not only by some theologians, but also by modern scientists. As a matter of fact, in the meantime, the whole notion of a normative natural order has been made obsolete by the advance of the natural sciences.
The Natural Sciences and the Laws of Nature
As we have pointed out earlier, primitive man experiences nature as part of society and thus interprets all natural occurrences in social terms, i.e., first and foremost, according to the principle of retribution. Sunshine and rain, good and bad harvests, health and sickness, life and death, are caused by powerful spirits, the gods, or God in response to human conduct. Righteous conduct is promptly rewarded, sinful conduct is automatically punished. There is no differentiation between causal and normative laws. Everything that happens in nature is the direct expression of a superhuman personal will. In short, explanation and justification are one and the same.
This prescientific view of nature could, of course, easily be illustrated with ancient myths and religious beliefs from all over the world. In the present context, however, we can perhaps restrict ourselves to our own Judeo-Christian culture and just mention a few examples from the earliest part of the Bible—the Five Books of Moses in the Old Testament.
In the Book of Leviticus, for instance, Yahweh tells the people of Israel that certain sexual relationships displease him and therefore will not go unpunished. Thus, he declares, among other things: "If a man marries his brother's widow, it is impurity; . . . they shall be childless" (Leviticus 20;21). In other words, religious offense and physical disorder are described simply in terms of cause and effect. An "impure" marriage produces infertility. Even if both the man and the woman were fertile before, their sin immediately and inevitably blocks their normal bodily functions and thus makes procreation impossible. (It will be noted that Yahweh's attitude here is quite different from that expressed earlier in the Book of Genesis (38; 8-10), when he commanded Onan to impregnate his brother's widow and punished him for refusing to do so. (See also "Types of Sexual Activity—Sexual Self-Stimulation.") This apparent contradiction must remain unresolved here. It is a problem for biblical scholars,)
Yahweh also punishes sexual intercourse between the "right" partners which occurs at the "wrong" time: "If a man has sexual intercourse with a woman during her menstrual period, . . . they shall be cut off from among their people" (Leviticus 20; 18). Today, the latter phrase is often interpreted to mean exile or banishment. However, many biblical scholars assert that this interpretation is false, and that the phrase "cut off from among their people" refers instead to sickness and early death sent by the all-knowing Yahweh himself. Thus, again, the crime invariably produces its own punishment.
In the Book of Deuteronomy, Yahweh is even more explicit. His people can receive nothing from nature but what they deserve. If they are righteous and obey the commandments, they will be blessed with prosperity, fertility, gentle rain, and good harvests (Deuteronomy 28; 8 ff.). However, if they should prove to be disobedient, they will be cursed with pestilence, consumption, fever, inflammation, fiery heat, boils, ulcers, scurvy, the itch, madness, blindness, confusion of mind, drought, locusts, worms, and the spoilage of food (Deuteronomy 28; 20 ff.).
To be sure, in many cases Yahweh also relies on human help in carrying out his punishment. Thus, he commands the people of Israel: "If a man has sexual contact with an animal, he shall be put to death; and you shall kill the animal" (Leviticus 20; 15). Still, in this as in all other cases, the human executioners are mere instruments of the Divine Will. If they fail in their duty, they will be punished themselves. If, on the other hand, they do as they have been told, they will be promptly rewarded. (For an example see the rewarding of Phinehas who executed a sinful couple [Numbers 25;6 ff.].) At any rate, in the cause of divine justice, human beings never play more than a minor, auxiliary role. Yahweh may use them, but he never depends on them. With or without their assistance, His will is done—as in nature, so in society.
As we can see, for the ancient Israelites the laws of morality and the laws of nature followed the same pattern. Indeed, strictly speaking, there was only one type of law, and it was prescriptive and descriptive at the same time, i.e., it stated not only what ought to happen, but also what would happen in any given case. Retribution could be delayed, but it could not be prevented. In the end, all innocence and all guilt would be revealed, and everybody would be given his due.
We have to remember, of course, that this legal philosophy was by no means restricted to Israel. Similar views were held by many other ancient peoples. The earliest Greek philosophers, for example, saw both the physical and the social world ruled by the twin forces of fate (Moira) and necessity (Ananke). The Greeks also personalized the concept of unfailing justice in the awesome figure of Dike, the goddess of retribution, the ultimate judge of all those who act against the divine order of things. Thus, we can read in a famous fragment written by the philosopher Heraclitus: "The Sun will not overstep his path; if he does, the Erinyes, the handmaids of Dike, will find him out." In other words, even the heavenly bodies follow the commandments of justice. If they deviate from their prescribed course, their offense will be discovered and punished. The laws of nature are essentially moral norms which must be fulfilled by an obedient universe.
The tendency to equate natural with moral laws is characteristic of all pre-scientific thinking, and this thinking changed only with the gradual progress of civilization. It took mankind a very long time to discover that the course of the stars, sunshine and rain, storms and earthquakes, birth defects, epidemic diseases, and the behavior of locusts and worms have nothing to do with human sin or righteousness. In ancient Greece, some philosophers (the so-called Atomists) fairly early developed the notion of an objective causality, but with the rise of the Christian church, their work was increasingly neglected and finally forgotten. It was not until the beginning of the Modern Age, when men like Copernicus, Bacon, Brahe, Kepler, and Galilei started the "scientific revolution" that nature was again studied objectively, i.e., without reference to any divine or human concerns.
When scientists examine a natural phenomenon, they deliberately ignore its alleged religious or moral meaning. Instead, they try to understand it strictly on its own terms. Goodness and badness, justice and injustice do not concern them. They do not make value judgments, but judgments of fact. In short, they do not prescribe what should be, but only describe what is.
A scientist acts on the assumption that the natural and the social order are governed by different principles, and that he can therefore very well explain natural events without having to justify them at the same time. He no longer ascribes any "higher purpose" to nature, but regards it merely as a system of elements which are connected with one another as cause and effect. This connection is independent of any human or superhuman will.
Those familiar with the history of science know, of course, that it did not attain full "objectivity" overnight. Indeed, for many centuries the new, morally neutral principle of causality and the older principle of retribution remained linked in several indirect ways. For example, the first modern scientists assumed that, just like human sin and divine punishment, cause and effect must follow an automatic sequence, and that they must always be in direct proportion to each other. Stronger causes were thought to produce stronger effects. It was further believed that a cause could have only one effect, and that an effect could have only one cause.
In the meantime, these and other vestiges of retributive thinking have been completely eliminated from the scientific concept of causality. Today scientists recognize that cause and effect are only elements in a continuum, and that, as such, they signify nothing more than a regular succession of events. Each cause is the effect of another cause, and each effect is the cause of another effect. Therefore, it seems rather arbitrary to single out any particular cause for any particular effect. Moreover, the connection between cause and effect is no longer considered to be one of absolute necessity, but of mere probability. Under these circumstances, some scientists have, in fact, abandoned the terms "cause" and "effect" altogether, and now speak instead more generally of "conditions" or "components" and "resultants" of an event.
Fortunately, in the present book, we do not have to concern ourselves with all the intricacies of modern scientific theory. For our purposes, it is sufficient to emphasize its basic premise: The natural and the social order are not identical. Nature, i.e., the physical reality surrounding us, can and must be explained without any reference to social norms. The laws of nature are fundamentally different from the religious, moral, criminal, and civil laws of society.
The entire issue can also be summarized in another way: With the advance of the natural sciences, the word "law" has acquired two very different meanings. Where once there was only one law—the will of God—which ruled everything both in nature and in society, we now insist on a sharp distinction between normative and causal laws, and, in formulating the latter, we avoid any reference to possible divine intentions.
The following two laws may illustrate the point:
1. If a woman commits adultery, she will be punished.
2. If water is cooled below a certain temperature, it will turn into ice.
For the prescientific mind, both of these laws simply describe the workings of a divine will. God punishes adultery, God freezes the lakes and rivers, and he does the one as unfailingly as the other. (Still, if he wants, he can also make an exception in both cases. Thus, he can show mercy and let an adulteress go unpunished, or he can perform a miracle and keep a particular river flowing when all other rivers are frozen.)
For the modern, scientific mind, on the other hand, the two laws share only a very superficial resemblance. It is, of course, true that both have the same grammatical structure. Indeed, in the most general and abstract sense, they express the same basic thought, i.e., they connect something as a condition with something else as a consequence. However, it is now widely recognized that the character of this connection is quite different in each case. The first law connects the condition (adultery) with its consequence (punishment) in a prescriptive way, stating that the condition ought to be followed by the consequence. The second law connects the condition (a certain low temperature) with its consequence (conversion of water into ice) in a descriptive way, stating that the condition is followed by the consequence. The first law designates a compulsory rule laid down by some legislative authority. The second law designates nothing more than an observed pattern. The first law must be enforced by some superhuman or human agent (the spirits, the gods, God, or the police). The second law "enforces itself" as it were. It takes its course regardless of anybody's opinion or action. A woman who commits adultery may not always be punished. Water which is cooled below a certain temperature always turns into ice.
The difference between normative and causal laws becomes perhaps even more apparent when we consider the ways in which they may change in the course of time. Normative laws are easily amended or even repealed by legislative fiat. The amendment or the repeal then simply replaces the old norm with a new one. Causal laws, on the other hand, change in a very different way, and this change has a different meaning. Indeed, in a certain sense, one might say that causal laws are unchangeable, and that it is only our perception of them which changes. For example, scientists may formulate a certain causal law and then be forced to revise it in the light of new observations. Any such revision, however, produces a greater degree of accuracy in describing the observed phenomenon and therefore does not invalidate the original purpose of the law itself.
Finally, it has to be understood that there are many normative systems in the world, but only one causal system. In the course of its history, the human race has established a great variety of social orders with vastly different and even conflicting norms. Thus, actions that were required at the time were prohibited at another time, and qualities that were praised in one society, were condemned in another. In contrast, there has never been more than one natural order, and it is still the same everywhere today. The reason for this is plain: The natural order has never been and will never be subject to human influence. Human beings can study it and even use it to their advantage, but they cannot change it.
"Nature" as Ideology
When we today look back at the history of human civilization, we see that the strict distinction between normative and causal laws was one of its greatest achievements. Without this distinction the advance of the natural sciences with all of its benefits would have been impossible. Science began only when man finally decided to disregard the divine and human aspects of everything he studied, i.e., when he separated the explanation of natural events from their justification. As a result, he became able to look at nature in a detached, disinterested manner. He no longer assumed that it had any obvious or hidden personal meaning for him, but instead tried to understand it on its own terms. Paradoxically, it was this very detachment, this neutral, "objective" attitude, which enabled man to learn more and more about nature and thus to use it for his own ends.
The objectivity of science is based on the recognition that natural events have no "higher purpose" and do not express or establish any moral values. Scientists know that there is no logical inference from factual reality to ethical norm, from the "is" to the "ought". It does not follow from the fact that an event occurs, that it ought to occur or that it ought not to occur. The fact that in nature water turns into ice if it is cooled below a certain temperature, does not imply that cold temperatures are good or bad, or that water is better or worse than ice. By the same token, the fact that in nature big fish swallow little fish does not imply that their behavior is right, nor yet that it is wrong. The fact that some plants overgrow and destroy other plants says nothing about the moral value of plant life.
However, while nature as such is value-free, human beings cannot live without values and therefore always prefer certain natural phenomena over certain others. Thus, men aboard a ship prefer the lakes, rivers, and oceans unfrozen while men on a sled prefer them covered with ice. Some fishermen like to catch big fish, others prefer to catch little fish. Farmers and gardeners spend their lives cultivating some plants and weeding out others, knowing full well that their weeds may be another man's crop. In short, man constantly selects certain natural things or events as useful and dismisses others as useless. In each case, his selection is guided by his own shifting self-interest, not by some value or norm embedded in nature itself.
Nevertheless, there are still some people today who maintain that nature is built on moral principles or, what amounts to the same thing, that all natural phenomena serve some ultimate end. Furthermore, this ultimate end can supposedly be deduced from nature with the help of "right reason". Thus, everybody who carefully examines nature can discover the law by which he himself should live. This "natural law" guarantees him a way of life which follows the intentions of nature and is therefore perfectly moral and just.
The belief that nature can have intentions clearly implies that it is a superhuman being endowed with will and intelligence, or at least that it is governed by such a being. It follows that the laws of nature do not merely describe observed patterns, but are, in fact, compulsory rules laid down by some legislator. This supreme legislator is either nature itself or God who created nature as an expression of his will. Man's self-interest, properly understood, is therefore best served by obeying God's or nature's commands. As summarized by Sir William Blackstone, the great 18th century legal scholar, in his Commentaries on the Laws of England: "As man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will. This will of his Maker is called the law of nature."
As we have shown earlier, the natural-law doctrine is not and cannot be based on scientific insight, but is essentially religious in character. It reflects a prescientific, mythical view of the world. This fact is, indeed, freely admitted by most Christian proponents of the Natural Law, and even among the adherents of non-Christian faiths it is usually considered quite obvious. Nevertheless, in modern times there have also been repeated attempts to derive "objective" norms from nature without the benefit of religious guidance. As a matter of fact, even some atheistic philosophers have tried to find the foundation of their moral values in "nature".
These modern, non-religious believers in a "natural law" contend, for example, that "finite existence is always unfinished", or that all living things have a "tendency toward completion or fulfillment". Thus, human beings also have certain tendencies toward a particular "natural" way of life which ensures their existential completion or the realization of their inherent potential. Any action which furthers this goal is good, any action which hinders or prevents it is bad. The state or the social order therefore has an obligation to encourage everyone to behave "naturally".
The idea that everything in nature strives towards some sort of completion or fulfillment is, of course, a very old one. For example, in Aristotle's Metaphysics (1015a, 13-15) we find the following definition: "Nature in the primary and strict sense is the essence of things which have in themselves, as such, a source of movement." The "essence of things" according to Aristotle, is that singular quality which truly defines them, which makes them what they really are. The essence of an acorn is to become an oak tree, the essence of a tadpole is to become a frog, and the essence of a fetus is to become a human being. The "movement" which "things have in themselves" is their tendency to grow and develop, to realize their potential. It is this movement which produces oak trees from acorns, frogs from tadpoles, and human beings from fetuses. In other words, acorns, tadpoles, and fetuses will always become what they were meant to be unless some outside force prevents it. In that case, their "natural" tendencies would be blocked, and their development would come to an "unnatural" halt. Their "nature" would be deprived of its completion or fulfillment.
However, this view of nature, time-honored and appealing as it may be, is quite incompatible with the demands of scientific objectivity. For a scientist, the growth of oak trees, frogs, and human beings represents only a regular pattern of changes, a probable and, to a certain extent, predictable development. It does not fulfill any inherent needs or express any special tendency towards "completion". Indeed, for someone who merely wants to describe nature without passing judgment on it, all things are always complete as they are.
On the other hand, if any stage of natural development is ever regarded as a stage of incompleteness, then all things are always incomplete. For example, a fetus is incomplete because he is not yet born, a baby boy is incomplete because he is not yet an adult, an adult is incomplete because he is not yet old, and an old man is incomplete because he is not yet dead. If any of these possible changes are described as the realization of a "tendency", then all of them can be described this way. Then there exists not only a tendency towards life, but also a tendency towards death, and both must be equally "natural" and good. Obviously, such a conclusion leaves nobody any wiser.
The truth is that no unprejudiced observation can tell us whether or when a particular living thing is "complete" or "incomplete". In the course of its existence, everything undergoes many different changes, and to say that some of these changes are for the better (i.e., serve its completion) and others for the worse (i.e., deprive it of its completion) is to state a subjective opinion, not a scientific fact. Indeed, the very concept of "completeness" already implies a positive value judgment, just as that of "incompleteness" implies a negative one. The assertion that something is incomplete can only mean that it is imperfect, that something is missing from it which ought to be added. People who argue that the completion of natural things is good and that the lack of completion is bad simply trap themselves in tautologies.
Under the circumstances, an objective observer has no choice but to admit that nature in itself has no tendencies, intentions, meanings, or ultimate goals. Therefore it cannot be taken as a moral guide. Regrettable as this may seem to many people, there simply is no honest way of building a "just" moral or legal system on it. So far, all attempts to find universal values in nature have failed. At worst, they have led to narrow, capricious, and oppressive dogmas; at best, they have produced empty slogans and meaningless maxims which can serve every possible purpose or justify every possible action.
For example, "nature" has been said to require that everybody receive his due. Thus, the ancient Roman moralists thought they had discovered a true natural moral law when they demanded "Suum cuique!", i.e., "To each his own!" However, this law can never create concrete justice, because it fails to answer the crucial question: "What is everybody's own?" This question, the only one that really matters, must already have been decided by some other, positive law or political system. Therefore, the phrase "To each his own!" can be used to justify any such system, the slave state, feudalism, capitalism, or socialism.
Another equally unreliable precept is the so-called Golden Rule or, in other words, the admonition "Do unto others as you want them to do unto you!" At first hearing this, too, may sound like a universally valid "natural" law. However, it would allow any person who enjoys pain to inflict pain on others, even if they do not care for such treatment. Similarly, any alcoholic may, in good conscience, force a hard drink on his neighbor. Finally, if somebody violates the Golden Rule, should it also be violated against him? After all, nobody wants to be punished, even if he has done wrong. Hence, according to the Golden Rule, nobody should punish a wrongdoer. In short, taken literally, the Golden Rule results in the abolition of law and morality.
Still another example is the so-called Categorical Imperative formulated by the German philosopher Kant: "Act only on that maxim whereby you can at the same time will that it should become a universal law!" In other words, a man should act only on those principles that he shall wish to be binding on all other men. But what are these principles? They can be the principles of liberal democracy as well as those of fascism, communism, or any other conceivable social order.
The fact of the matter is that, in the course of history, the so-called Natural Law has been used to justify any imaginable moral or political position. Thus, Aristotle declared that some people were destined "by nature" to be slaves. (Nor did the Bible find anything wrong with slavery.) Interestingly enough, when the institution of slavery finally came under attack in modern times, abolitionists also used the Natural Law as an argument. Rejecting the positive, written laws of their time, they appealed to a "higher" unwritten law which declared all men to be created equal and which guaranteed them their inalienable "natural" human rights. The slaveholders remained unimpressed, however, and simply turned the argument around. According to them, God had created nature, and nature had shaped the fate of mankind. History proved that human progress was possible only because superior men gained the freedom to develop their faculties by ruling over their inferiors. Therefore, nature itself demanded slavery as the price of civilization.
Through the centuries, similar inconclusive arguments have been made about the true "natural" form of government. Monarchists, for example, used to point to the hierarchical order of the sky where moons revolved around planets which, in turn, circled the sun. Thus, it was only natural for common citizens to live in the service of noblemen who, in turn, served a king or emperor. Democrats, on the other hand, protested that all heavenly bodies were equally subject to the same law of gravity and that nature therefore also prescribed equal justice under the law for all men. This view did not suit the anarchists, however, who saw the universe as a place of continuous, unrestrained struggle between elementary forces. Therefore, any human legal restraint, even under the pretext of equality, only interfered with the proper workings of nature.
The problem with all of these disputes is not that the ultimate or "true" intention of nature was misunderstood by one or the other side. Nor can it be assumed that an additional dosage of "right reason" would finally have revealed it to all sides. The truth is that no such intention exists and that the quarreling parties simply projected their own value system into nature from where they then retrieved it through circular logic. This is possible precisely because nature has no definite moral content. When used in moral disputes, the word "nature" can mean anything anybody wants it to mean. Thus, it represents the classic example of an "empty formula", a semantic vessel into which each society or group of society pours its own notions about the "right" order of things. In short, it is essentially an ideological term.
This is nowhere more obvious than in the area of sexual morality. We have already described earlier how the ancient Greeks saw the "nature" of sex in pleasure and personal fulfillment. The sexual urge was due to a divine inspiration which drove the lover to unite with the beloved. Any act that approached or accomplished this goal was "natural". In contrast, the ancient Israelites and early Christians believed that the "nature" of sex was procreation and that therefore only one very specific sexual act—coitus—was "natural". Any other sexual activity was "unnatural", and a just society was obliged to prevent it from taking place. The American Indians and ancient Polynesians, on the other hand, felt that even homosexuality, transvestism, and transsexualism expressed the "nature" of particular individuals and therefore had to be respected. Any social interference would have been the greatest injustice and, indeed, a crime against nature itself.
Still no matter how a "crime against nature" is defined—as a specific noncoital sexual act or as its suppression—the definition is always arbitrary and subjective. Objectively speaking, nature can never be violated, because even the violation itself would be entirely natural. Or, as a famous sex researcher once put it: "The only unnatural act is one that cannot be performed."
Therefore, the assertion that certain acts are "unnatural" is never a statement of fact, but always a value judgment. Obviously, it cannot mean that nature prevents these acts from occurring (since actually they occur all the time). It rather means that nature somehow disapproves of their occurrence, or that they are not in nature's best interest. In actual fact, however, nature has no opinion about them one way or the other. The opinion is entirely human. The disapproval does not come from nature, but from very specific men and women who find their personal moral values rejected.
The words "natural" and "unnatural" are expressions of praise and condemnation. They do not provide us with objective descriptions of anything. People who merely want to describe reality without judging it do not use these words. In the neutral view of a scientist, for example, everything is natural, since everything is part of nature. For him, pain is just as natural as pleasure, disease just as natural as health, and death just as natural as life. However, it is obvious that, if used in this neutral fashion, the word "natural" is practically meaningless. Scientists therefore have removed it from their vocabulary and relegated it to the sphere of morals.
When we study the instances in which the words "natural" and "unnatural" are actually used, we always find that they are meant to support definite moral judgments. Needless to say, these value judgments vary with the bias of the speaker. Historical and anthropological research has shown that, in different periods of history and in different parts of the globe, societies have lived by very different moral values. In fact, such differences continue to this day. Nevertheless, also to this day, every society has always presented its own particular moral values as universal, eternal, and unchangeable, i.e., as truly and exclusively "natural". The reason for this is simple: The invocation of "nature" lends any subjective value system an aura of objectivity. It allows people to avoid personal responsibility for their moral positions. Thus, if one dislikes the sexual behavior of one's neighbor, it is easier to persecute him in the name of God or "nature" than in one's own name. In short, we are all too easily tempted to claim that our own tastes and predilections correspond to the demands of "universal justice", the "general welfare", the "divine will", or the "natural order".
However, any such claim is either an innocent delusion or a cynical fraud. An objective analysis proves in every case that the alleged "divine will" or "natural order" represents nothing but the interests of certain individuals, groups, or social classes. This is the very reason why the same God and the same nature can be invoked to justify so many different social policies. As we have seen earlier, even the great monotheistic religions—Judaism, Christianity, and Islam—vary considerably in their interpretations. Moreover, within Christianity itself there are countless churches, sects, and movements with widely divergent views of God's will and nature's law. Thus, using the same Bible to bolster their arguments, some churches recognize divorces while others do not, some churches prohibit contraception while others demand it, and some churches condemn homosexuality while others ordain openly homosexual ministers and perform homosexual marriages.
In any case, it is obvious that today there are Christian churches which no longer share the traditional Judeo-Christian belief that the "nature" of sex is reproduction. To many Christians this belief now appears to have been based on an outmoded, narrow, and arbitrary assumption, and therefore they try to develop a new, more open sexual morality. In doing so they realize, however, that it is not enough to replace one arbitrary assumption with another and to seek the solution in some updated doctrine of Natural Law. Instead, they are beginning to understand that they themselves have to take full responsibility for their sexual values.
This does not mean that the entire moral effort of earlier Natural Law advocates should be ignored or discarded. Indeed, as even its severest critics have pointed out, the Natural Law doctrine has often been used to attack oppressive religious and secular authorities, and thus it has also served the cause of human freedom. In short, in the course of history, the belief in a Natural Law has not only served the prevailing order, but also projected a better order to come. The word "nature" may be an empty formula, but it has sometimes been filled with mankind's best hopes and aspirations. Human beings may not have any God-given, natural rights to life, liberty, and the pursuit of happiness, but in some modern societies they have successfully invoked "nature" to fight for these rights and to win them. The notion of a Natural Law therefore has a Utopian, humanistic aspect that deserves to be emphasized and appreciated. In this sense, a critical study of the Natural Law tradition can still teach us a great deal about a truly humane sexual morality.
(Note: In the preceding chapter a number of arguments and illustrating examples have been borrowed from various writings of Hans Kelsen, Karl Popper, Ernst Topitsch, and other representatives of Middle-European Ideologiekritik. Although these writers have not dealt specifically with the problem of sexual deviance, their general reasoning is obviously applicable here, and their work is therefore recommended for further study. For a sample of Kelsen's critique of the Natural Law, which has been partly summarized above, see his collection of essays What Is Justice?, Berkeley, 1957. The Utopian aspect of Natural Law has been thoroughly investigated by Ernst Bloch in his Naturrecht und menschliche Würde [Natural Law and Human Dignity], Frankfurt, M. 1961).