Public Morality, Public Reason
by Robert P. George
Copyright (c) 2006 First Things (November 2006).
A contest of worldviews in our time pits devout Catholics, Protestants, Jews, and other believers against secularist liberals and those who, while remaining within the religious denominations, have adopted essentially secularist liberal ideas about personal and political morality. The contest manifests itself in disputes over abortion, embryo-destructive research, and euthanasia, as well as in issues of sex, marriage, and family life. Underlying these specific conflicts are profound differences about the nature of morality and the proper relation of moral judgment to law and public policy.
I am hardly the first to recognize the existence of this conflict of worldviews. People on both sides have noticed it, commented on it, and proposed ideas about how an essentially democratically constituted polity ought to come to terms with it. The trouble is that the issues dividing the two camps are of such profound moral significance—on either side’s account—that merely procedural solutions are not good enough. Neither side will be happy to agree on decision procedures for resolving the key differences of opinion at the level of public policy where the procedures do not guarantee victory for the substantive policies they favor. This is not a matter of people being irrationally stubborn; rather, it reflects the considered judgment of people on both sides that fundamental and therefore nonnegotiable issues of justice are at stake.
Jurgen Habermas in Europe and the late John Rawls in the United States are perhaps the premier examples of secular thinkers who have taken the measure of the problem and proposed terms of engagement that, they believe, can be affirmed by reasonable people across the spectrum of opinion. Both single out Catholicism as an example of a non-liberal “comprehensive doctrine” that may nevertheless affirm essentially liberal terms of engagement with competing comprehensive doctrines. Indeed, they argue, one needn’t be a secular person, much less a secularist, to endorse their teachings. There is plenty of room, they say, for religious people of various stripes to affirm the secular principles and norms that should govern political life in contemporary pluralistic democratic societies. Indeed, their goal is to identify principles and norms that can reasonably be accepted by believers and unbelievers alike, and affirmed by people irrespective of their convictions about human nature, dignity, and destiny.
From a Catholic vantage point, there is nothing startling or troubling about the quest to identify moral and political principles that can reasonably be affirmed without appeal to theological claims or religious authority. That’s one description, accurate so far as it goes, of the enterprise known as natural law theory. But there is something deeply alien to Catholic thought about separating inquiry into moral and political principles from questions pertaining to human nature, dignity, and destiny. According to the Catholic understanding, moral and political philosophy is, in significant measure, an inquiry into human nature, dignity, and destiny.
Inasmuch as Habermas and Rawls propose theories of political morality that purport to prescind from such basic questions, there appears to be a fundamental incompatibility between their proposals and the Catholic approach to moral and political theory. This is a problem for Habermas and Rawls. Both men offer theories that reasonable people of diverse faiths, including Catholics, are supposed to be able to endorse without compromising their faith.
Moreover, for both Habermas and Rawls it is important that Catholics in particular be able to endorse their theories—in part because Catholicism is the world’s largest religion, and in part because contemporary Catholicism affirms and even promotes liberal democracy as a political ideal. Pope John Paul II repeatedly praised democracy, describing it as the political system most consistent with both man’s nature as a rational creature and the principle of the equality in dignity of all human beings. Since the Second Vatican Council, popes and other Catholic officials have regularly preached the obligation of governments to respect and protect human rights, including the freedom of religion. While the Church does not rule out state-established religions (such as exist in Great Britain and Israel), it does not promote them, even where Catholicism is the dominant faith, and it strictly demands respect for religious liberty, even where established religions exist.
Given these and other “liberal” dimensions of Catholic social and political teaching, it would be particularly awkward for Rawls or Habermas if Catholics could not, in good conscience, affirm their political theories. Indeed, the inability of these theories to accommodate Catholics, if proven, would invite the suspicion that there is something distinctly sectarian about them. It would suggest that the theories are not merely secular but fully secularist.
In his influential 1971 book A Theory of Justice, Rawls defended what he called “justice as fairness,” in which basic principles for a well-ordered society are identified as those that would be chosen by free and equal persons in what he called “the original position.” Parties in “the original position” select principles in a state of ignorance regarding their personal moral and religious convictions, social and economic status, and related factors that will distinguish them from many of their fellow citizens when they emerge from behind “the veil of ignorance” to live in a society governed in accordance with the principles they had selected.
In 1993, Rawls published a new book, Political Liberalism, which amends certain features of the theory he had advanced in 1971. Most important, Rawls conceded that the argument for “justice as fairness” in A Theory of Justice relied on a premise that was inconsistent with the theory itself: the belief that “in the well-ordered society of justice as fairness, citizens hold the same comprehensive doctrine, and this includes aspects of Kant’s comprehensive liberalism, to which the principles of justice as fairness might belong.”
By a “comprehensive doctrine,” Rawls means something like a worldview—an integrated set of moral beliefs and commitments reflecting a still more fundamental understanding of human nature, dignity, and destiny. Rawls’ problem with the position he had adopted in A Theory of Justice is that liberalism (considered a “comprehensive,” as opposed to a merely “political,” doctrine) is not held by citizens generally in contemporary pluralistic societies. Liberalism considered as such—plainly a secularist view—competes in such societies with Catholicism, as well as with various forms of Protestantism and Judaism, and with other religious and secular comprehensive doctrines. Indeed, liberalism considered as a comprehensive doctrine is plainly a minority view in the United States. Most Americans reject secularism of any type, including secularist liberalism. In any event, Rawls’ revised understanding is that a plurality of comprehensive views, religious and secularist, is natural and unavoidable in the circumstances of political freedom that characterize constitutional democratic regimes. Political theorizing that accepts the legitimacy of such regimes must begin, therefore, by acknowledging what Rawls calls “the fact of reasonable pluralism.”
To appeal to comprehensive liberalism, Rawls concedes, would be no less sectarian than to appeal to Catholicism or Judaism. Some alternative must, therefore, be found or the social stability of such regimes would be in constant jeopardy. Everything would depend on the capacity and willingness of people with fundamentally different moral views—including radically different conceptions of justice and human rights—to reach and preserve a modus vivendi.
The alternative Rawls proposes is “political liberalism.” Its ideal is that “citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonably be expected to endorse.”
The core of this political liberalism is the idea that, whenever constitutional essentials and matters of basic justice are at stake, political actors must refrain from acting on the basis of principles drawn from their comprehensive views except to the extent that “public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support.” Thus, citizens are constrained from appealing to and acting on beliefs drawn from their most fundamental moral understandings and commitments precisely at the most fundamental political level.
Rawls’ political liberalism aspires, then, to be impartial with respect to the viewpoints represented by the various reasonable comprehensive doctrines that compete for the allegiance of citizens. It “does not attack or criticize any reasonable [comprehensive] view,” Rawls claims. “Rather than confronting religious and nonliberal doctrines with a comprehensive liberal philosophical doctrine, the thought is to formulate a liberal political conception that those nonliberal doctrines might be able to endorse.”
Rawls maintains that terms of cooperation offered by citizens to their fellow citizens are fair only insofar as citizens offering them “reasonably think that those citizens to whom such terms are offered might also reasonably accept them.” This “criterion of reciprocity” is the core of what Rawls labels “the liberal principle of legitimacy”—the notion that “our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may be expected to endorse in the light of principles and ideals acceptable to their common human reason.” When, and only when, political power is exercised in accordance with such a constitution do political actors—including voters—maintain fidelity to the ideal of “public reason.”
The “liberal principle of legitimacy” and ideal of “public reason” exclude as illegitimate any appeal to principles and propositions drawn from comprehensive doctrines. At first glance, the scope of “public reason” seems to be wide. It would, to be sure, rule out as illegitimate any claim based on the allegedly “secret knowledge” of a gnostic elite or the putative truths revealed only to a select few and not accessible to reasonable persons as such. But it would not exclude any principle or proposition, however controversial, that is put forward for acceptance on the basis of rational argumentation.
Now, Rawls himself cannot accept this wide conception of public reason. His goal, after all, is to limit the range of morally acceptable doctrines of political morality in circumstances of moral pluralism to the single doctrine of “political liberalism.” The wide conception of public reason will not rule out propositions drawn from comprehensive forms of liberalism. More important, it will not exclude propositions drawn from non-liberal comprehensive doctrines that content themselves with appeals to “our common human reason.”
Notable among such doctrines is the broad tradition of natural law thinking about morality, justice, and human rights. This tradition poses an especially interesting problem for Rawls’ theory of public reason because of its integration into Catholic teaching. So it is, at once, a non-liberal comprehensive philosophical doctrine and part of a larger religious tradition that, in effect, proposes its own principle of public reason.
If Rawls is to defend a conception of “public reason” narrow enough to exclude appeals to natural law, he must show that there is something unfair about such appeals. And he must demonstrate this unfairness without appeal to comprehensive liberalism or any other comprehensive conception of justice that competes with the natural law conception. In other words, he must avoid smuggling in principles that are themselves in dispute among adherents to reasonable comprehensive doctrines.
This, it seems to me, he has not done and, I believe, cannot do. Rawls does not explicitly address the claims of natural law theorists. He seems, however, to have their beliefs in mind in his critique of what he calls “rationalist believers who contend that [their] beliefs are open to and can be fully established by reason.” Rawls’ argument rests entirely on the claim that these “rationalist believers” unreasonably deny “the fact of reasonable pluralism.”
But do they? Rawls’ own methodological commitments mean that he cannot rule out the views of natural law theorists or rationalist believers on such issues as homosexuality, abortion, euthanasia, and drugs on the grounds that their views are unsound, unreasonable, or false—or else his political liberalism would have collapsed again into a comprehensive liberalism. He thus limits himself to a simple denial that the claims of the rationalist believers “can be publicly and fully established by reason.”
But how can this denial be sustained independently of some engagement with the specific arguments they advance—arguments that Rawls’ idea of public reason is meant to exclude without an appeal to their soundness and reasonableness or the truth or falsity of the principles and propositions in support of which they are offered? It will not do for Rawls to claim that he is not denying the truth of rationalist believers’ claims but merely their assertion that these claims can be publicly and fully established by reason. What makes rationalist believers “rationalist” is precisely the belief that their principles can be justified by rational argument and their willingness to provide just such rational argumentation.
Catholics and other natural law theorists maintain that on certain issues, including certain fundamental moral and political issues, there are uniquely correct answers. The question whether there is a human right against being enslaved, for example, or being punished for one’s religious beliefs admits of a uniquely correct answer that is available in principle to every rational person. Pro-life advocates assert that there is similarly a human right against deliberate feticide and other forms of direct killing of innocent human beings, irrespective of race, ethnicity, and sex, but also irrespective of disability, age, size, location, stage of development, or condition of dependency. Differences over such issues as slavery, religious freedom, abortion, and euthanasia may be “reasonable” in the sense that reasonable persons can err in their judgments and arrive at morally incorrect positions. But, assuming there is a truth of these matters—something Rawls cannot deny and, one would think, has no desire to deny—errors of reason must be responsible for anyone’s failure to arrive at the morally correct positions.
Rawls certainly cannot declare such views unreasonable because they maintain that on certain morally charged and highly disputed political questions—including questions of human rights—there are uniquely morally correct answers. The fact that reasonable people can be found on competing sides of such questions in no way implies that the competing views are equally reasonable. Reasonable people can be wrong, as Rawls himself implicitly acknowledges in his claims against the rationalist believers who are, after all, reasonable people even if their claim that their beliefs can be fully and publicly justified by reason is unreasonable. There is simply no unreasonableness in maintaining that otherwise reasonable people can be less than fully reasonable (sometimes culpably, other times not) in their judgments of particular issues.
In fairness to Rawls, we should acknowledge his treatment of the sources of moral disagreement in connection with what he calls “the burdens of judgment.” To preserve the integrity of his political liberalism, however, we must read his account of the sources of disagreement in such a way as to avoid its collapse into relativism. If we do, then Rawls’ idea of “fully reasonable” views—and even “perfectly reasonable” though erroneous views—refers to false beliefs that are formed without subjective fault. I think that this is what people generally have in mind when, though fully persuaded of the truth of a certain view, they allow nevertheless that “reasonable people” can disagree with them. The fact of “reasonable disagreement” in this sense is not a valid warrant for ruling out argument as to the truth of matters in dispute on the ground that reasons adduced in any argument “on the merits” cannot qualify as “public reasons.”
In A Theory of Justice, Rawls identified the basic principles of “justice as fairness” by the method of “political constructivism,” which asked what substantive principles would be chosen by parties in the “original position” behind the “veil of ignorance.” In a key passage of Political Liberalism, he says that the “liberal principle of legitimacy” and the ideal of “public reason” have “the same basis as the substantive principles of justice.” This basis remains insecure. Over more than thirty years, Rawls failed to provide any reason to suppose the injustice of principles of justice not selected under conditions of artificial ignorance by the unnaturally risk-averse parties in the “original position.” Rawlsians seem to suppose that from the proposition that principles that would be selected by such parties under such conditions are just, it follows that other principles—which might well be chosen by reasonable and well-informed persons outside the original position—are unjust. But that does not follow at all.
Central to J?rgen Habermas’ political thought is a distinction between “morality” and “ethics.” As John Finnis has observed, in Habermas’ work, this distinction “has much the same role as Rawls’ untenable distinction between ?comprehensive doctrines’ and ?public reasons.’” The distinction, in Habermas’ case, is part of what he calls an “ethics of discourse” that “adopts the intersubjective approach of pragmatism and conceives of practical discourse as a public practice of shared reciprocal perspective taking: each individual finds himself compelled to adopt the perspective of everyone else in order to test whether a proposed regulation is also acceptable from the perspective of every other person’s understanding of himself and the world.” “Ethics,” on this account, has to do with “how one sees oneself and who one would like to become,” while “morality” has to do with the proper concern for “the interests of all.” Political theory is fundamentally concerned, then, with “morality,” not “ethics.” And fundamental questions of the nature, dignity, and destiny of the human person are putatively excluded from the realm of political theory precisely because they are “ethical,” not “moral.”
According to Habermas, “Ethical questions point in a different direction from moral questions: the regulation of interpersonal conflicts of action resulting from opposed interests is not yet an issue. Whether I would like to be someone who in case of acute need would be willing to defraud an anonymous insurance company just this one time is not a moral question, for it concerns my self-respect and possibly the respect that others show me, but not equal respect for all, and hence not the symmetrical respect that everyone should accord the integrity of all other persons.”
Finnis has put his finger on the problem here: “The compatibility of self-respect with this dealing with the insurance company cannot . . . be rationally assessed without making ?moral’ judgments about the conditions on which property rights are justly respected and justly overridden, and about the injustice of fraud, and so forth.” But if that is true, the distinction itself begins to collapse.
Worse still, Habermas employs the distinction in a way that implicitly answers the question much disputed in our culture of who is to count as within the “all” whose interests must be taken into account in making moral judgments, while purporting to lay aside the evaluation of certain types of homicide as merely ethical. Writing in a law-review symposium devoted to his work in legal and political theory, Habermas raised the questions of abortion and euthanasia as cases involving “ethical” judgment and not “morality.”
Of course, the claim of pro-life citizens is that a just law will protect the lives of the unborn and the frail or disabled precisely because justice requires respect for the fundamental interests of “all.” No human being may be excluded from the community of the commonly protected on the basis of age, size, stage of development, disability, condition of dependency, or any other of the grounds on which supporters of abortion and euthanasia seek to exclude some human beings in order to justify these practices. The discourse into which pro-life people invite their fellow citizens is precisely a discourse about the reasonableness or unreasonableness of such exclusion. People on the pro-life side offer rational grounds—public reasons—for protecting the unborn and the disabled from being killed. They offer to show that the exclusion of the unborn and the disabled from the protections of the law is arbitrary and, as such, unjust.
Habermas, however, expressly speaking of Catholics, suggests that pro-life citizens are bound to accept legal abortion and euthanasia precisely because these are ethical questions, concerned with what is the best way to live, and not moral questions, concerned with the interests of all. Indeed, he implies that morality requires pro-life citizens to refrain from acting on the basis of their ethical judgments, not because these judgments are in any way unsound, untrue, or unreasonable, but because they are ethical. The abstention is required, in other words, by a due regard for “the interests of all.”
Yet, on what ground are the interests of the unborn or the severely disabled to be excluded from consideration? If the question of who is to count as within the all whose interests must be taken into consideration is an ethical one, then it is clear that moral questions depend on ethical judgments—judgments regarding the nature and dignity of the human person—that cannot be avoided or relegated to the domain of the private.
There is in John Rawls’ later work an almost exact parallel to J?rgen Habermas’ error on this point. In Political Liberalism, Rawls raises the issue of abortion in a footnote—the one concrete contemporary political issue Rawls uses to illustrate the application of his doctrine of public reason. He asserts, “as an illustration,” that “any reasonable balancing” of the political values of respect for human life, “the ordered reproduction of political society over time,” and women’s equality would “give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester” and perhaps beyond. For the law to protect the life of the human being in the early stages of development would be to impose, according to Rawls, a “comprehensive doctrine” in defiance of the strictures of political liberalism.
Like Habermas, Rawls offers no argument as to why the developing human being should be excluded from the law’s protection. He does not offer reasons to rebut those scientific and philosophical arguments and fully public reasons offered in defense of the rights of the unborn by pro-life citizens. (In the end, as Rawls himself later acknowledged, he merely expressed an opinion, not an argument. )
Also, like Habermas, he eventually gets around to addressing “Catholics” as such on the issue:
Some may, of course, reject a decision, as Catholics may reject a decision to grant a right to abortion. They may present an argument in public reason for denying it and fail to win a majority. But they need not exercise the right of abortion in their own case. They can recognize the right as belonging to legitimate law and therefore do not resist it with force. To do that would be unreasonable: It would mean their attempting to impose their own comprehensive doctrine, which a majority of their fellow citizens who follow public reason do not accept. Certainly Catholics may, in line with public reason, continue to argue against the right of abortion. That the Church’s nonpublic reason requires its members to follow its doctrine is perfectly consistent with their honoring public reason.
Even if interpreted generously as granting that advocacy of the strict prohibition of abortion can be consistent with public reason, Rawls’ admonition to Catholics here is awkward. Plenty of American Catholics and others, most of whom reject resort to violence to protect the unborn from the injustice of abortion, reasonably refuse to recognize the right to abortion as “belonging to legitimate law.”
Rather, they believe that any law recognizing a right to abortion is so gravely unjust as to be illegitimate in principle. As such, any law of this type should be opposed resolutely by people who understand its grave injustice.
As Finnis observes,
[T]he argument of [pro-life] citizens is that the killings whose legalization Rawls and Habermas defend are a radical basic injustice imposed on people deprived or to be deprived of the protections of citizenship. The responses suggested by the argumentation of Rawls and Habermas would run something like: “You free citizens need not exercise the right to [own slaves] [abort your children] in your own case, so you can and must recognize our law as legitimate as it applies to the rest of us (and as we will enforce it against you if you interfere).” “You people need not do any of this [slave owning] [killing] yourselves, so your integrity is undamaged and so you ought (and will be compelled) to stand aside to allow us, in the exercise of our prior right of coexistence with you, to [coexist’ with our slaves->?http://en.wikipedia.org/wiki/coexist%26%238217%3B_with_our_slaves] [terminate our coexistence with these unborn children/fetuses and with people whose lives are not worth living].”
In fact, advocacy of the right to life against the forces advancing abortion and euthanasia is an example of how the Catholic tradition of thought about justice and political morality honors public reason (though not Rawls’ artificial and unreasonably restricted conception of it) and promotes an “ethics of discourse” (though not Habermas’ artificial and biased version of it). Natural law, as Catholics and those of a similar mind understand it, truly demands that “the interests of all” be taken into account.
This is the implication of the principle that each and every human being is fashioned in the image and likeness of the divine creator and ruler of the universe and, as such, shares a fundamental dignity that others, including those exercising the highest worldly authority, are bound in reason to respect and protect.
Moreover, natural law is nothing other than a doctrine of public reasons that, as Finnis puts it, “would command a universal consensus under ideal conditions of discourse and meanwhile are available to, and could be accepted by, anyone who is willing and able to give them fair and adequate attention.” These reasons, embraced and proclaimed by the Catholic Church, can be, and have been, affirmed by people who know nothing of, or do not accept, Jewish or Christian revelation or the authority of the Church or any other institution. Respect for these reasons as reasons accounts for the honored place of dialectic in the tradition of natural law theory and the emphasis of contemporary natural law theorists on full and fair debate in the forums of democracy on such issues as abortion, euthanasia, embryonic stem-cell research, human cloning, and marriage.
That is why, from the Catholic vantage point, there is something scandalous in the effort of theorists such as Rawls and Habermas to remove such issues from public debate by arbitrarily restricting reasons on one side of the debate over the nature, dignity, and destiny of the human person. There is nothing “liberal,” “democratic,” “reasonable,” “moral,” or “ethical” about that.
Robert P. George is the McCormick Professor of Jurisprudence at Princeton University and a member of the First Things editorial board.
Sunday, November 09, 2008
God's Reasons: The role of religious authority in debates on public policy
Robert P. George
Remarks at the 1998 American Political Science Association Convention (revised and expanded)
Appeals to religious authority have their place. That place is plainly not, however, in philosophical debates, including philosophical debates about public policy.
Do such appeals have a legitimate place in political advocacy? I think they do, but at the same time, I have some sympathy with Professor John Rawls's proposition that such appeals are legitimate only where they are offered to buttress and motivate people to act on positions that are defensible without such appeals. Like Rawls, I believe that public policy should be based on "public reasons." And while I believe that Rawls's own particular conception of what qualifies as a "public reason" is unreasonably narrow--its narrowness in effect stacking the deck in favor of legal abortion, "same-sex marriage," and other positions held by liberals in contemporary debates over morally charged issues of public policy--the idea that public policy ought to be based on public reasons strikes me as, well, reasonable.
(For a fuller development of my critique of Rawls's position, see Robert P. George, "Public Reason and Political Conflict: Abortion and Homosexuality," Yale Law Journal, Vol. 106 (1997), pp. 2475-2504. This article also develops much of the scientific material, which I will discuss subsequently herein.)
It is not, however, unproblematic. Anyone who believes that God has revealed that the public policy of a certain polity must be settled in a certain way has, so far as he can tell, an absolute, indefeasible reason for supporting that way of settling public policy irrespective of whether there are any grounds apart from revelation for the policy. My scruples, or Rawls's, would--and should--simply cut no ice for a person in this position. And if I happen to be the person in that position, or if Rawls happens to be that person, then I, or he, would be irrational in declining to lay aside our scruples. I suppose that when push comes to shove, those of us who hold these scruples believe that it just isn't the case that God sometimes reveals that public policy ought to be settled in a certain way irrespective of whether there are any grounds apart from revelation for settling policy in this way. Such people either don't believe in God, or (and this is my view) don't believe that God operates this way (at least we don't believe that He operates this way anymore). It seems to me, then, that our differences with those who don't hold these scruples implicate in this way certain theological judgments.
People who do not hold these scruples may believe either that God (at least sometimes) has no reason for the public policies He commands or (at least sometimes) has no reason He chooses to make available to human understanding. As they see it, God's reasons, if He has any, are (at least sometimes) opaque to us. "Ours is not to question why, ours is but to do or die."
But of course, this understanding of how God operates is one possible theological understanding among others. Many, perhaps most, serious religious believers in our society have a different understanding. To be sure, they believe--we believe--that God is a God of justice, who cares what the public policy of our society is on morally significant questions--e.g., abortion, euthanasia, and marriage and sexuality, not to mention capital punishment, civil and human rights, military policy, economic justice, etc. And a great many believers, though not all, believe, as I do, that God wills that the unborn, handicapped, and frail elderly be protected by law, and that the institution of marriage as a permanent and exclusive union of one man and one woman be preserved against what we believe are the corrupting influences of sexual immorality.
But we also believe not only that there are reasons (apart from revelation) for these policy positions, but also that these reasons are (or, at least, are among) God's reasons for willing what He wills. Indeed, it is our view that often the identification of these reasons by philosophical inquiry and analysis, supplemented sometimes by knowledge derived from the natural and/or social sciences, is critical to an accurate understanding of the content of revelation in, say, the Bible or Jewish or Christian tradition.
Perhaps the best example is in the area of marriage and sexual morality. Philosophical inquiry is indispensable to the project of fully understanding the meaning and implications of the proposition revealed in chapter two of Genesis and in the Gospels that marriage is a "one-flesh union" of a man and a woman. (See Germain Grisez, The Way of the Lord Jesus: Volume Two: Living a Christian Life (Quincy, Ill.: Franciscan Press, 1992), ch. 9.)
Another example is that of abortion, where both philosophical analysis and knowledge obtainable only by scientific inquiry were essential to settling, and continue to be essential to understanding, the precise content of the authoritative teaching of the magisterium of the Catholic Church declaring direct abortion to be intrinsically immoral and a violation of human rights. (See John Connery, S.J., Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1997).)
In short, many religious people--most informed Catholics and many Protestants and observant Jews--understand reason not only as a truth-attaining power, but as a power by and through which God directs us as individuals and communities in the way of just and upright living. In his formal account of natural law as a participation in what he called the "eternal law," Aquinas says that although God directs brute animals to their proper ends by instinct, God directs man--made in God's image and likeness and thus possessing reason and freedom--to his proper ends by practical reason through which men grasp the intelligible point of certain possible actions for the sake of ends (goods, values, purposes) which, qua intelligible, provide reasons for choice and action. (See St. Thomas Aquinas, Summa Theologiae, I-II, q. 91, a. 2.)
Where these reasons have their intelligibility not, or not merely, by virtue of their utility in enabling us to realize our other valuable or desirable ends, but also by virtue of their intrinsic value and choice-worthiness, they constitute the referents of the most fundamental principles of practical reason and precepts of natural law. (For a fuller explanation, see Robert P. George, "Recent Criticism of Natural Law Theory," University of Chicago Law Review, Vol. 55 (1988), pp.1371-1429.) Aquinas gives an expressly non-exhaustive list of examples: human life itself, marriage and the transmission of life to new human beings, and knowledge, particularly of religious truth. (See St. Thomas Aquinas, Summa Theologiae, I-II, q. 94., a. 2. For an effort by contemporary natural law thinkers to provide a more complete account, see Joseph M. Boyle, Jr., Germain Grisez, and John Finnis, "Practical Principles, Moral Truth, and Ultimate Ends," American Journal of Jurisprudence, Vol. 32 (1987), pp. 99-151.) The integral directiveness of these principles, when specified, constitutes the body of moral norms available to guide human choosing reasonably, viz., in conformity with a good will--a will toward integral human fulfillment. (For a fuller explanation, see Robert P. George, "Natural Law Ethics" in Philip L. Quinn and Charles Taliaferro, eds., A Companion to Philosophy of Religion (Oxford: Blackwell Publishers, 1997), pp. 460-465.)
In his contributions to the February 1996 issue of First Things magazine--contributions in which what he has to say (particularly in his critique of liberalism) is far more often right than wrong--Professor Stanley Fish of Duke University cites the dispute over abortion as an example of a case in which "incompatible first assumptions--articles of opposing faiths" make the resolution of the dispute (other than by sheer political power) impossible. Here is how Professor Fish presented the pro-life and pro-choice positions and the shape of the dispute between their respective defenders:
A pro-life advocate sees abortion as a sin against God who infuses life at the moment of conception; a pro-choice advocate sees abortion as a decision to be made in accordance with the best scientific opinion as to when the beginning of life, as we know it, occurs. No conversation between them can ever get started because each of them starts from a different place and they could never agree as to what they were conversing about. A pro-lifer starts from a belief in the direct agency of a personal God and this belief, this religious conviction, is not incidental to his position; it is his position, and determines its features in all their detail. The "content of a belief" is a function of its source, and the critiques of one will always be the critique of the other.
It is certainly true that the overwhelming majority of pro-life Americans are religious believers and that a great many pro-choice Americans are either unbelievers or less observant or less traditional in their beliefs and practice than their fellow citizens. Indeed, although most Americans believe in God, polling data consistently show that Protestants, Catholics, and Jews who do not regularly attend church or synagogue are less likely than their more observant coreligionists to oppose abortion. (See James Davison Hunter, Before the Shooting Begins: Searching for Democracy in America's Culture War (New York: Free Press, 1994), pp. 104-105.) And religion is plainly salient politically when it comes to the issue of abortion. The more secularized a community, the more likely that community is to elect pro-choice politicians to legislative and executive offices.
Still, I don't think that Professor Fish's presentation of the pro-life and pro-choice positions, or of the shape of the dispute over abortion, is accurate. True, inasmuch as most pro-life advocates are traditional religious believers who, as such, see gravely unjust or otherwise immoral acts as sins--and understand sins precisely as offenses against God--"a pro-life advocate sees abortion as a sin against God." But most pro-life advocates see abortion as a sin against God precisely because it is the unjust taking of innocent human life. That is their reason for opposing abortion; and that is God's reason, as they see it, for opposing abortion and requiring that human communities protect their unborn members against it. And, they believe, as I do, that this reason can be identified and acted on even independently of God's revealing it. Indeed, they typically believe, as I do, that the precise content of what God reveals on the subject ("in thy mother's womb I formed thee") cannot be known without the application of human intelligence, by way of philosophical and scientific inquiry, to the question.
Professor Fish is mistaken, then, in contrasting the pro-life advocate with the pro-choice advocate by depicting (only) the latter as viewing abortion as "a decision to be made in accordance with the best scientific opinion as to when the beginning of life . . . occurs." First of all, supporters of the pro-choice position are increasingly willing to sanction the practice of abortion even where they concede that it constitutes the taking of innocent human life. Pro-choice writers from Naomi Wolfe ("Our Bodies, Our Souls," The New Republic (1995), reprinted with commentaries by pro-life writers in The Human Life Review (Winter, 1996)) to Judith Jarvis Thomson ("A Defense of Abortion," in Marshall Cohen (ed.), The Rights and Wrongs of Abortion (Princeton University Press, 1974)) have advanced theories of abortion as "justifiable homicide." But, more to the point, people on the pro-life side insist that the central issue in the debate is the question "as to when the beginning of life occurs." And they insist with equal vigor that this question is not a "religious" or even "metaphysical" one: it is rather, as Professor Fish says, "scientific."
In response to this insistence, it is pro-choice advocates who typically want to transform the question into a "metaphysical" or "religious" one. It was Justice Harry Blackmun who claimed in his opinion for the Court legalizing abortion in Roe v. Wade (1973) that "at this point in man's knowledge" the scientific evidence was inconclusive and therefore cold not determine the outcome of the case. And twenty years later, the influential pro-choice writer Ronald Dworkin went on record claiming that the question of abortion is inherently "religious." (See Ronald Dworkin, Life's Dominion (Alfred A. Knopf, 1993).) It is pro-choice advocates, such as Dworkin, who want to distinguish between when a human being comes into existence "in the biological sense" and when a human being comes into existence "in the moral sense." It is they who want to distinguish a class of human beings "with rights" from pre-(or post-) conscious human beings who "don't have rights." And the reason for this, I submit, is that, short of defending abortion as "justifiable homicide," the pro-choice position collapses if the issue is to be settled purely on the basis of scientific inquiry into the question of when a new member of homo sapiens sapiens comes into existence as a self-integrating organism whose unity, distinctiveness, and identity remain intact as it develops without substantial change from the point of its beginning through the various stages of its development and into adulthood. (I explain this point more fully below. Also see Patrick Lee, Abortion and Unborn Human Life (Washington, DC: Catholic University of America Press, I995) and Dianne Nutwell Irving, "Scientific and Philosophical Expertise: An Evaluation of the Arguments on 'Personhood'," Linacre Quarterly, Vol. 60 (1993), pp. 18-46.)
All this was, I believe, made wonderfully clear at a debate at last year's meeting of the American Political Science Association between Jeffrey Reiman of American University, defending the pro-choice position, and John Finnis of Oxford and Notre Dame, defending the pro-life view. That debate was remarkable for the skill, intellectual honesty, and candor of the interlocutors. What is most relevant to our deliberations, however, is the fact that it truly was a debate. Reiman and Finnis did not talk past each other. They did not proceed from "incompatible first assumptions." They did manage to agree as to what they were talking about--and it was not about whether or when life was infused by God. It was precisely about the rational (i.e., scientific and philosophical) grounds, if any, available for distinguishing a class of human beings "in the moral sense" (with rights) from a class of human beings "in the (merely) biological sense" (without rights). Finnis did not claim any special revelation to the effect that no such grounds existed. Nor did Reiman claim that Finnis's arguments against his view appealed implicitly (and illicitly) to some such putative revelation. Although Finnis is a Christian and, as such, believes that the new human life that begins at conception is in each and every case created by God in His image and likeness, his argument never invoked, much less did it "start from a belief in the direct agency of a personal God." It proceeded, rather, by way of post-by-point philosophical challenge to Reiman's philosophical arguments. Finnis marshaled the scientific facts of embryogenesis and intrauterine human development and defied Reiman to identify grounds, compatible with those facts, for denying a right to life to human beings in the embryonic and fetal stages of development. (Finnis's paper, "Abortion, Natural Law, and Public Reason," and Roman's paper, "Abortion, Natural Law, and Liberal Discourse," have been published in Robert P. George and Christopher Wolfe (eds.), Natural Law and Public Reason (Georgetown University Press, 2000).)
Interestingly, Reiman began his remarks with a statement that would seem to support what Professor Fish said in First Things. While allowing that debates over abortion were useful in clarifying people's thinking about the issue, Reiman remarked that they "never actually cause people to change their minds." It is true, I suppose, that people who are deeply committed emotionally to one side or the other are unlikely to have a road-to-Damascus type conversion after listening to a formal philosophical debate. Still, any open-minded person who sincerely wishes to settle his mind on the question of abortion--and there continue to be many such people, I believe--would find debates such as the one between Reiman and Finnis to be extremely helpful toward that end. Anyone willing to consider the reasons for and against abortion and its legal prohibition or permission would benefit from reading or hearing the accounts of these reasons proposed by capable and honest thinkers on both sides. Of course, when it comes to an issue like abortion, people can have powerful motives for clinging to a particular position even if they are presented with conclusive reasons for changing their minds. But that doesn't mean that such reasons do not exist. And the reason the pro-life position is superior to the pro-choice position is precisely because the scientific evidence, considered honestly and dispassionately, supports that position.*
A human being is conceived when a human sperm containing twenty-three chromosomes fuses with a human egg also containing twenty-three chromosomes (albeit of a different kind) producing a single-cell human zygote containing, in the normal case, forty-six chromosomes that are mixed differently from the forty-six chromosomes as found in the mother or father. Unlike the gametes (that is, the sperm and egg), the zygote is generically unique and distinct from its parents. Biologically, it is a separate organism. It produces, as the gametes do not, specifically human enzymes and proteins. It possesses, as they do not, the active capacity or potency to develop itself into a human embryo, fetus, infant, child, adolescent, and adult.
Assuming that it is not conceived in vitro, the zygote is, of course, in a state of dependence on its mother. But independence should not be confused with distinctness. From the beginning, the newly conceived human being, not its mother, directs its integral organic functioning. It takes in nourishment and converts it to energy. Given an hospitable environment, it will, as Dianne Nutwell Irving says, "develop continuously without any biological interruptions, or gaps, throughout the embryonic, fetal, neo-natal, childhood, and adulthood stages--until the death of the organism."
Some claim to find the logical implication of these facts--i.e., that life begins at conception--to be "virtually unintelligible." A leading exponent of that point of view in the legal academy is Jed Rubenfeld of Yale Law School, author of an influential article entitled "On the Legal Status of the Proposition that 'Life Begins at Conception,' " 43 Stanford Law Review 599 (1991). Rubenfeld argues that, like the zygote, every cell in the human body is "genetically complete"; yet nobody supposes that every human cell is a distinct human being with a right to life. However, Rubenfeld misses the point that there comes into being at conception, not a mere clump of human cells but a distinct, unified, self-integrating organism, which develops itself, truly himself or herself, in accord with its own genetic "blueprint." The significance of genetic completeness for the status of newly conceived human beings is that no outside generic material is required to enable the zygote to mature into an embryo, the embryo into a fetus, the fetus into an infant, the infant into a child, the child into an adolescent, the adolescent into an adult. What the zygote needs to function as a distinct self-integrating human organism, a human being, it already possesses.
At no point in embryogenesis, therefore, does the distinct organism that came into being when it was conceived undergo what is technically called "substantial change" (or a change of natures). It is human and will remain human. This is the point of Justice Bryon White's remark in his dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986), that "there is no non-arbitrary line separating a fetus from a child." Rubenfeld attacks White's point, which he calls "[t]he argument based on the gradualness of gestation," by pointing out that, "[n]o non-arbitrary line separates the hues of green and red. Shall we conclude that green is red?"
White's point, however, was not that fetal development is "gradual," but that it is continuous and is the (continuous) development of a single lasting (fully human) being. The human zygote that actively develops itself is, as I have pointed out, a genetically complete organism directing its own integral organic functioning. As it matures, in utero and ex utero, it does not "become" a human being, for it is a human being already, albeit an immature human being, just as a newborn infant is an immature human being who will undergo quite dramatic growth and development over time.**
These considerations undermine the familiar argument, recited by Rubenfeld, that "the potential" of an unfertilized ovum to develop into a whole human being does not make it into "a person." The fact is, though, that an ovum is not a whole human being. It is, rather, a part of another human being (the woman whose ovum it is) with merely the potential to give rise to, in interaction with a part of yet another human being (a man's sperm cell), a new and whole human being. Unlike the zygote, it lacks both genetic distinctness and completeness, as well as the active capacity to develop itself into an adult member of the human species. It is living human cellular material, but left to itself, it will never become a human being, however hospitable its environment may be. It will "die" as a human ovum, just as countless skin cells "die" daily as nothing more than skin cells. If successfully fertilized by a human sperm, which, like the ovum (but dramatically unlike the zygote), lacks the active potential to develop into an adult member of the human species, then substantial change (that is, a change of natures) will occur. There will no longer be merely an egg, which was part of the mother, sharing her genetic composition, and a sperm, which was part of the father, sharing his genetic composition; instead, there will be a genetically complete, distinct, unified, self-integrating human organism whose nature differs from that of the gametes--not mere human material but a human being.
These considerations also make clear that it is incorrect to argue (as some pro-choice advocates have argued) that, just as "I" was never a week-old sperm or ovum, "I" was likewise never a week-old embryo. It truly makes no sense to say that "I" was once a sperm (or an unfertilized egg) that matured into an adult. Conception was the occasion of substantial change (that is, change from one complete individual entity to another) that brought into being a distinct self-integrating organism with a specifically human nature. By contrast, it makes every bit as much sense to say that I was once a week-old embryo as to say that I was once a week-old infant or a ten-year-old child. It was the new organism created at conception that, without itself undergoing any change of substance, matured into a week-old embryo, a fetus, an infant, a child, an adolescent, and, finally, an adult.
But Rubenfeld has another argument: "Cloning processes give to non-zygotic cells the potential for development into distinct, self-integrating human beings; thus to recognize the zygote as a human being is to recognize all human cells as human beings, which is absurd."
It is true that a distinct, self-integrating human organism which came into being by a process of cloning would be, like a human organism that comes into being as a mono-zygotic twin, a human being. That being, no less than human beings conceived by the union of sperm and egg, would possess a human nature and the active potential to mature as a human being. However, even assuming the possibility of cloning human beings from non-zygotic human cells, the non-zygotic cell must be activated by a process which effects substantial change and not mere development or maturation. Left to itself apart from an activation process capable of effecting a change of substance or natures, the cell will mature and die as a human cell, not as a human being.
The scientific evidence establishes the fact that each of us was, from conception, a human being. Science, not religion, vindicates this crucial premise of the pro-life claim. From it, there is no avoiding the conclusion that deliberate feticide is a form of homicide. The only real questions remaining are moral and political, not scientific. Although I will not go into the matter here, I do not see how abortion can ever be considered a matter of "justified homicide." (The efforts of Judith Jarvis Thomson and other philosophers to defend abortion as "justified homicide" are very ably criticized by Patrick Lee in Abortion and Unborn Human Life.) It is important to recognize, however, as traditional moralists always have recognized, that not all procedures which foreseeably result in fetal death are, properly speaking, abortions. Although any procedure whose precise objective is the destruction of fetal life is certainly an abortion, and cannot be justified, some procedures result in fetal death as an unintended, albeit foreseen and accepted, side effect. Where procedures of the latter sort are done for very grave reasons, they may be justifiable. (See John Finnis, "Abortion and Health Care Ethics II," in Raanan Gillon and Ann Lloyd (eds.), Principles of Health Care Ethics, 1994, pp. 547-557.) For example, traditional morality recognizes that a surgical operation to remove a life-threateningly cancerous uterus, even in a woman whose pregnancy is not far enough along to enable the child to be removed from her womb and sustained by a life support system, is ordinarily morally permissible. (See Germain Grisez, The Way of the Lord Jesus: Vol. II: Living a Christian Life, p. 502.) Of course, there are in this area of moral reflection, as in others, "borderline" cases that are difficult to classify and evaluate. Mercifully, modern medical technology has made such cases exceptionally rare in real life. Only in the most extraordinary circumstances today do women and their families and physicians find it necessary to consider a procedure which will result in fetal death as the only way of preserving maternal life. In any event, the political debate about abortion is not, in reality, about cases of this sort; it is about "elective" or "social indication" abortions, viz., the deliberate destruction of unborn human life for non-therapeutic reasons.
A final point: In my own experience, conversion from the pro-choice to the pro-life cause is often (though certainly not always) a partial cause of religious conversion rather than an effect. Frequently, people who are not religious, or who are only weakly so, begin to have doubts about the moral defensibility of deliberate feticide. Although most of their friends are pro-choice, they find that potion increasingly difficult to defend or live with. They perceive practical inconsistencies in their, and their friends', attitudes toward the unborn depending on whether the child is "wanted" or not. Perhaps they find themselves arrested by sonographic (or other even more sophisticated) images of the child's life in the womb. So the doubts begin creeping in. For the first time, they are really prepared to listen to the pro-life argument (often despite their negative attitude toward people--or "the kind of people"--who are pro-life); and somehow, it sounds more compelling than it did before. Gradually, as they become firmly pro-life, they find themselves questioning the whole philosophy of life--in a word, the secularism--associated with their former view. They begin to understand the reasons that led them out of the pro-choice and into the pro-life camp as God's reasons, too.
* The following nine paragraphs are reprinted with minor revisions, from my Yale Law Journal article "Public Reason and Political Conflict: Abortion and Homosexuality."
** Once one recognizes that the scientific evidence establishes that the fetus, no less than the newborn, is a human being, one must logically treat the two the same in assessing the question of their rights and our duties towards them. And so Peter Singer, a leading advocate of abortion and a recent appointee to a distinguished professorial chair of bio-ethics in my own university, argues that infanticide is sometimes morally justifiable and ought, up to a certain point, to be legally permissible. While Singer's views have caused outrage and made his appointment at Princeton controversial, the truth is that he is merely following the logic of a pro-choice position in light of an honest assessment of the scientific facts. He recognizes that "birth" is an arbitrary dividing line when it comes to the humanity and rights of human beings in the early stages of their development. Hence, if abortion is morally justifiable, so is infanticide. Of course, I believe that Singer is tragically wrong in supposing that abortion and infanticide are morally justifiable; but he is right in claiming that either both of these practices are justifiable, or neither can be justified.