Natural Law, Martin Luther King, Jr.

, and Social Justice

Dwight Goodyear, Ph.D.

dwight.goodyear@sunywcc.edu
www.philosophicaleggs.com

Introduction

The philosopher John Rawls, in his classic book A Theory of Justice, wrote
the following intuitively appealing description of justice:

Justice is the first virtue of social institutions, as truth is of

systems of thought. A theory however elegant and economical
must be rejected or revised if it is untrue; likewise laws and
institutions no matter how efficient and well-arranged must be
reformed or abolished if they are unjust. Each person possesses
an inviolability founded on justice that even the welfare of
society as a whole cannot override. For this reason justice
denies that the loss of freedom for some is made right by a
greater good shared by others. It does not allow that the
sacrifices imposed on a few are outweighed by the larger sum
of the advantages enjoyed by many. Therefore in a just society
the liberties of equal citizenship are taken as settled; the rights
secured by justice are not subject to political bargaining or to
the calculus of social interests.1

We can clarify this description by introducing three elements of justice:

(1) Other-directedness: justice is ‘inter-subjective’ or interpersonal insofar as

it is about relations and dealings with other persons.

(2) Duty: justice requires obligations to each other with regard to what is
owed.

(3) Equality: justice is incompatible with any view that supports the good of
any individual or group at the expense of another. Common forms of

1 Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 3.

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equality are equality before the law, material equality, political equality, and
equal opportunity.2

Given these elements, we can go on to discuss things like distributive

justice, which seeks to fairly allocate the benefits and burdens of society thus
limiting economic, racial, gender, and health inequalities, as well as
commutative justice, which involves the regulation and treatment of
individuals as far as certain social transactions and transgressions are
concerned. We can also go on to formulate laws and rights that protect
people’s equality and establish a solid foundation for our obligations to one
another.
But how can we rationally justify these ideas? To be sure, they sound
nice and many people agree with them. Most people feel justice is good and
can point to certain legal and political documents supporting it. But can we
go deeper and provide a more fundamental foundation? We can if we turn to
philosophy and utilize a moral theory that has traditionally been connected
to social justice, namely, natural law theory. Indeed, this theory has served
justice many times over the centuries and was employed by Martin Luther
King, Jr. to argue that segregation is morally wrong. But what exactly is
natural law theory? This is the first question I want to answer. Once we have
a basic understanding of the theory, I want to analyze King’s natural law
theory argument in more detail and show how it can be generalized to show
how all forms of social injustice are immoral. To anticipate, we will see that
all acts of social injustice are immoral insofar as they hinder, rather than
help, the actualization of our rational and free nature. I close with some
common objections and responses to this natural law approach.

The Basics of Natural Law Theory

The origins of natural law theory can be traced back to ancient philosophers
such as Heraclitus, Plato, Aristotle, Marcus Aurelius, and Cicero who
employed ideas central to it. It was then developed by medieval thinkers
such as Tertullian, Justinian, and St. Augustine. But perhaps the first
comprehensive formulation of the theory appears in the writings of the
medieval philosopher St. Thomas Aquinas. Natural law theory is then
subsequently developed over the centuries in various directions, many
theistic, some more secular in nature. Figures as diverse as Moses
Maimonides, Francisco Suarez, Thomas Hobbes, Hugo Grotius, and John

2These three elements are based on an analysis by John Finnis in his book Natural Law and Natural
Rights, Second Edition (New York: Oxford, 2011), pp. 161-164.

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Locke made substantial philosophical contributions to its development. And
the tradition continues to thrive in contemporary philosophy, political action,
law, and religion.3 There are four ideas common to most forms of natural
law theory:

(1) The theory maintains there are moral laws to be found in nature just like
there are scientific laws to be found in nature. Scientific laws are only
descriptive: they are generalizations that claim to describe how the physical
world does in fact work on a very fundamental and general level. For
example, Isaac Newton’s Third Law of Motion (when one body exerts a
force on a second body, the second body simultaneously exerts a force equal
in magnitude and opposite in direction to that of the first body) is just a
description of how motion occurs on a general level. There is no prescription
regarding what we should or should not do. But natural moral laws
are prescriptive or normative insofar as they tell us how we should act. And
these laws would be authoritative for all since they are universal (they would
apply everywhere at all times), objective (not only a matter of personal or
cultural opinion), and intelligible (capable of being rationally understood
either immediately or after careful consideration).

(2) We can know a natural law using our reason—we don’t need revelation
from God or any mysterious capacities or talents.

(3) We can know what natural laws exist by rationally analyzing human
nature. This analysis will entail identifying good potentials we have (for
example, the potential to reason) and formulating laws for right actions that
actualize these potentials (for example, everyone should have access to an
eduction to help actualize their reason).

(4) Once we have natural laws we can use them to justify natural rights.
Natural rights will be those things that are essential to us if we are to realize
our natural potential. Natural rights, just like natural laws, are not contingent
on the decisions of a particular society like civil rights are. Rather, they are
grounded in our shared human nature and thus inalienable and necessary if
our natural potentials are to be actualized at all.

3 An excellent anthology that covers the history of natural law theory and its key figures is The Natural Law
Reader (Oxford: Blackwell Publishing, 2014). Also visit the online Stanford Online Encyclopedia of
Philosophy and explore entries on natural law.

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Before turning to some historical examples of the theory in reference to
social justice, let’s consider a plausible example to make things less abstract.
Aristotle (322-384 BC) argued that to fully understand something it is
necessary to understand its natural purpose or essential function (telos in
Greek). In Book I of his Nicomachean Ethics, Aristotle argues that
mankind’s natural purpose is reason (see 1098a ff). It is the one trait unique
to us and definitive of our nature. But if reason is our defining characteristic
—our essence—then our natural purpose, according to Aristotle, is to
actualize this potential reason as much as possible in the form of moral and
intellectual virtue. By doing so we can become fully actualized human
beings and reach happiness or fulfillment (eudaimonia). Now once this view
of human nature is in place we can formulate the following natural moral
law:

NML: We should all develop our rational capacities.

Again, according to natural law theory, right action will be action that
facilitates the unfolding of good potentials of human nature. So the
recognition of the good comes first; then right action follows on this
recognition. In this case, we have the recognition of a natural good we
possess—reason—and then we have a moral prescription of right action
based on that recognition. Far from being just an unbiased description of
what we in fact are—rational animals—it goes on to provide a prescription.
This prescription can lead to concrete ways to guide our behavior and
evaluate our motivations, the acts that follow from these motivations, and
the consequences that follow from our acts. For example, we could argue
that everyone should get educated and should have a right to education.
After all, one of the bad consequences of not getting educated is that it
prevents the realization of our rational nature. Moreover, any motive to
prevent education would be bad and any act thwarting education would be
wrong. Thus we could articulate a second natural moral law:

NML: Everyone should get educated and should have a right to education.

We could also argue that people shouldn’t grow up in a totalitarian regime

where dissent is crushed and propaganda replaces the truth. After all, such a
society would be bad insofar as truth and free debate are integral to the
development of reason. And we could argue that forms of substance abuse
that impair the proper function of the brain are wrong as well. These

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observations could also be formulated as natural laws offering us further
guidance in many diverse areas of life.
Of course, there are many more natural traits than just reason. St.
Thomas Aquinas’ (1224-1274) account is helpful in seeing what other traits
we might consider. Aquinas was profoundly influenced by Aristotle and
comprehensively developed his emphasis on the actualization of our natural
rational potential within a Christian context. First, he argued that, as
biological beings, we tend by nature to grow and mature and therefore we
should preserve our being and our health by avoiding undue risks, eating
healthy, exercising, etc. Second, we are animals capable of sensing the world
around us. Therefore we ought to develop our senses and make use of them
to observe, assess, understand, etc. Third, we are rational beings that can
know the world and choose freely. Therefore, we should, on the one hand,
develop our rational capacities through education and, on the other hand,
develop our will and moral virtues like temperance and courage so we can
choose wisely. Fourth, we are by nature social animals. Therefore, we should
find ways to live harmoniously with one another under civil laws that do
their best to reflect the prescriptions of natural laws. Lastly, we are created
and sustained by an all good, all knowing, and all-powerful God. Therefore
our greatest happiness can only come from being in the presence of God and
therefore we should live a life in accordance with Christian teachings. Given
this more comprehensive account, we can see how many prescriptions could
be developed to guide us in various aspects of our lives.
Typically naturally theorists embrace two principles that help them in
their efforts to act in accordance with the natural law:

The Principle of Forfeiture: An individual (or group of individuals) forfeits

his or her moral claim to live if he or she threatens the life of an innocent
person(s).

This principle is helpful since it allows for some exceptions to certain

natural moral laws. And the second principle is

The Doctrine of Double Effect (DDE): If an act will have both bad and
good effects, then the act can only be undertaken if four conditions are met:
(1) the act itself must not violate any natural moral law—this is the moral
principle condition; (2) the bad effect cannot be the means to achieving the
good effect—this is the means-end condition; (3) the good effect must be the
effect that one intends to achieve—this is the right intention condition; and

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(4) the good effect must be at least as great as the bad effect—this is the
proportionality condition.

With these two principles in hand, natural law theorists can hope to do
justice to the complexity of moral dilemmas while maintaining their
commitment to the natural moral laws they discern in human nature.
But where do these laws and human nature come from? Many natural
law theorists have argued that the ultimate metaphysical ground for the
natural laws and human nature is God. However, we must recognize that
some natural law theorists have tried to ground natural law in ways that
don’t appeal to God as an explanation. Indeed, some have even turned to the
resources of evolutionary psychology to ground the moral law. These secular
approaches to natural law theory can function without God as long as the
conditions that give rise to the natural law allow for objectivity, universality,
and intelligibility.
Thus it is important to distinguish between the ultimate grounds for
the existence of the natural law and the ability to know what the content of
this natural law is. People can certainly disagree over the grounds of the law
but agree on the content of the law itself. Some may claim that natural laws
must derive from a lawgiver like God; others will claim these laws can be
adequately grounded in nature, evolutionary psychology, etc. But both
theists and secularists can, despite their differences regarding the ultimate
grounds of a natural law, agree on the specific content of a law such as “We
should all develop our rational capacities.” Thus natural law theory can
remain a functioning, practical force despite the difficulties involved with
discerning and agreeing upon its ultimate metaphysical roots.

Summary

Most ethical theories attempt to do at least two things for us: (1) define for
us terms like good bad, right and wrong on a general and fundamental level
and (2) give us some guiding principle(s) that will help us make and defend
moral judgments. According to natural law theory, we begin by recognizing
good traits of human nature and defining right action as action that facilitates
the development of these traits. Action can be both guided and judged by
articulating objective, intelligible, and universal natural moral laws which
are the central principles that the theory offers as guidance. We can also have
recourse to the doctrine of double effect and the principle of forfeiture.
Finally, an account of human nature and the natural moral laws based on it

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can serve as a fundamental foundation for natural rights that can help insure
the flourishing of our nature in a social and political context.

Natural Law Theory and Social Injustice: Some Examples

The earliest example we have of the central insights of natural law theory
comes from the ancient Greek playwright Sophocles in his play Antigone
(492ff.). In the play, Oedipus’ daughter Antigone has decided, against the
orders of King Creon, to bury her brother Polynices. Creon has ruled, in a
way that appears sensible, that Polynices’ body must be left to rot without a
burial because he was part of an unlawful rebellion against the state. But
Antigone justifies her actions by appealing to a law more fundamental than
Creon’s civil law, an eternal law that did not come from humans. Here is an
excerpt from the scene when Creon and Antigone first exchange words:

CREON

Didst thou, then, dare to disobey these laws?

ANTIGONE

Yes, for it was not Zeus who gave them forth,

Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
Coming from mortal man, to set at naught
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

The concepts presented in this fictional example have been employed in real
life as well. Throughout history there are examples of people appealing to a
deeper, moral order in their efforts to criticize the unjust laws and practices
of their time. Civil laws are made by particular people in particular societies.
But such laws can change or completely disappear as those societies change.
Not so with natural laws: they exist independent of opinions and provide an

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objective, universal, and intelligible ground for morality. Thus it is no
surprise to find that natural laws have been used for radical social critique.
For example, Charles Henry Langston (1817–1892), an American
abolitionist and political activist, was one of a group of men who freed
runaway slave John Price in 1858. The Underground Railroad hid Price in
Oberlin and helped transport him to freedom in Canada. Eventually,
Langston was tried and convicted. But he thought he stood on a moral law
deeper than the prevailing civil laws. Consider his words at the Cuyahoga
Courthouse, May 1859: “I stand here to say that I will do all I can, for any
man thus seized and help, though the inevitable penalty of six months
imprisonment and one thousand dollars fine for each offense hangs over me!
We have a common humanity.”4 Here we see a common theme of natural
law theory at work, namely, our common humanity.
This theme played a crucial role in the decisive Nuremberg Trials as
well. Barbara MacKinnon explains:

The Nuremberg trials were trials of Nazi war criminals held in

Nuremberg, Germany, from 1945 to 1949. There were thirteen
trials in all. In the first trial, Nazi leaders were found guilty of
violating international law by starting an aggressive war…in
other trials, defendants were accused of committing atrocities
against civilians…The defense contended that the military
personnel, judges, and doctors were only following orders from
their superiors in the Nazi regime. However, the prosecution
argued successfully that that even if the experimentation did not
violate the defendant’s own laws, they were still “crimes
against humanity.” The idea was that a law more basic than
civil laws exists—a moral law—and these doctors and others
should have known what this basic moral law required.5

And Martin Luther King, Jr.’s “Letter from a Birmingham Jail” (April 16,
1963) links natural law to our shared status as persons:

Since we so diligently urge people to obey the Supreme Court's

decision of 1954 outlawing segregation in the public schools, at
first glance it may seem rather paradoxical for us consciously to

4The full speech can be read at Oberlin College’s website. See http://www.oberlin.edu/external/EOG/
Oberlin-Wellington_Rescue/c._langston_speech.htm
5 Barbara MacKinnon, Ethics: Theory and Contemporary Issues, 8th ed. (Stamford: Cenage, 2015), p. 134.

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break laws. One may well ask: “How can you advocate
breaking some laws and obeying others?” The answer lies in the
fact that there are two types of laws: just and unjust. I would be
the first to advocate obeying just laws. One has not only a legal
but a moral responsibility to obey just laws. Conversely, one
has a moral responsibility to disobey unjust laws. I would agree
with St. Augustine that “an unjust law is no law at all.” Now,
what is the difference between the two? How does one
determine whether a law is just or unjust? A just law is a man
made code that squares with the moral law or the law of God.
An unjust law is a code that is out of harmony with the moral
law. To put it in the terms of St. Thomas Aquinas: An unjust law
is a human law that is not rooted in eternal law and natural law.
Any law that uplifts human personality is just. Any law that
degrades human personality is unjust. All segregation statutes
are unjust because segregation distorts the soul and damages the
personality. It gives the segregator a false sense of superiority
and the segregated a false sense of inferiority. Segregation, to
use the terminology of the Jewish philosopher Martin Buber,
substitutes an “I it” relationship for an “I thou” relationship and
ends up relegating persons to the status of things. Hence
segregation is not only politically, economically and
sociologically unsound, it is morally wrong and sinful. Paul
Tillich has said that sin is separation. Is not segregation an
existential expression of man's tragic separation, his awful
estrangement, his terrible sinfulness? Thus it is that I can urge
men to obey the 1954 decision of the Supreme Court, for it is
morally right; and I can urge them to disobey segregation
ordinances, for they are morally wrong….We should never
forget that everything Adolf Hitler did in Germany was “legal”
and everything the Hungarian freedom fighters did in Hungary
was “illegal.” It was “illegal” to aid and comfort a Jew in
Hitler's Germany. Even so, I am sure that, had I lived in
Germany at the time, I would have aided and comforted my
Jewish brothers. If today I lived in a Communist country where
certain principles dear to the Christian faith are suppressed, I
would openly advocate disobeying that country's antireligious
laws.

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 In all these examples we see attempts to counter perceived social
injustice by appealing to a natural law that runs deeper than civil laws, a
natural law that can be discerned by rationally investigating human nature or
our common humanity. But King’s critique of segregation is particularly
helpful in formulating a powerful argument that can used to combat all
forms of social justice. So let’s take a closer at his critique.

King’s Argument Against Segregation

We can begin by exploring King’s reference to the prominent twentieth

century philosopher, religious thinker, political activist and educator Martin
Buber (1878-1965). Buber argued, in his work work I and Thou (1923), that
an “I-It” relation is very different from an “I-Thou” one. When we relate to
others as “its” we relate to them in a detached manner as objects we can
label, control, and predict. In doing so, our interactions with them leave us
relatively unchanged. But when we relate to others as “thous” we relate to
them through dialogue in a transactional manner as free subjects whose
uniqueness defies labels and manipulation. In doing so, we are changed in
process of encountering them.6 Now King thinks any I-It relationship the
racist establishes is immoral since, in “relegating persons to the status of
things”, it violates a natural moral law. But what exactly is this law? Well, he
says “any law that uplifts human personality is just” and “any law that
degrades human personality is unjust.” Given these comments, I think we
can articulate King’s natural moral law as follows:

MLK’s NML: The human personality should be uplifted.

I think this emphasis on persons and the flourishing of the human

personality is a very promising approach when approaching issues in social
justice. But what exactly is meant by “human personality” here? Philosopher
Roger Scruton’s analysis of personhood helps us approach an answer:

The concept of the person…denotes potential members of a free

community—a community in which the individual members
can lead a life of their own. Persons live by negotiation, and
create through personal dialogue the space which their projects
require. Such dialogue can proceed only on certain

6 For more on Buber, see Sarah Scott’s Buber entry in the Internet Encyclopedia of Philosophy.

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 assumptions, and these assumptions show us what persons
really are [my emphasis]:

1) Both parties to the dialogue must be rational—that is, able to

give and accept reasons for action, and to recognizes the
distinction between good and bad reasons, between valid and
invalid arguments, between justifications and mere excuses.

2) Both parties must be free—that is, able to make choices, to

act intentionally in pursuit of their goals, and to take
responsibility for the outcome.

3) Each party must desire the other’s consent and be prepared to

make concessions in order to obtain it.

4) Each party must be accepted as sovereign over matters which

concern his very existence as a freely choosing agent. His life,
safety and freedom must therefore be treated as inviolable, and
to threaten them is to change from dialogue to war.

5) Each party must understand and accept obligations—for

example, the obligation to honour an agreement.7

This brief sketch helps us see that

• Persons are essentially rational and free beings who respect the
freedom and rationality of others. To uplift the human
personality would be, then, to support the flourishing of our
reason and freedom through dialogue, negotiation, and the
acceptance of obligations.

This formulation includes that aspect of human nature we saw earlier with
reference to Aristotle and Aquinas, namely, reason. But it also adds the
notion of freedom and the dimensions of social justice we saw in the
introduction, namely, other-directedness, duty, and equality. With these ideas
we can propose a natural law that improves on my first formulation of
King’s natural law:

7 Scruton, An Intelligent Person's Guide to Philosophy (New York: Penguin, 1996), p. 67.

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MLK’s NML (Revised): Humans should develop their potentials to be
rational and free by participating in I-Thou/personhood relations.

Clearly segregation violates this natural moral law. On the one hand, it
entails false beliefs on the part of the oppressor and oppressed alike (“false
sense of superiority” and “false sense of inferiority” respectively) which
means segregation thwarts the development of our essential rational nature
since rational dialogue pursues truth rather than falsehood. And
segregation, in perpetuating I-It relations rather than I-Thou relations,
thwarts people’s ability to live as persons who respect one another’s
freedom. If this is the case then I think King’s claims that segregation
“damages the personality” and “distorts the soul” can be understood as
follows:

• Segregation damages the personality and distorts the soul by

preventing the soul from actualizing its natural potentials to be
rational and free—two interrelated aspects that must flourish if
we are to be fulfilled and grow as persons individually and
collectively.

From Segregation to Social Injustice In General

My natural law formulation of King’s Buber-influenced insights about the

unnaturalness and falseness of relating to each other as its or objects, rather
than thous or free subjects, has universal scope. Indeed, it can serve as a
rational foundation—objective, intelligible, and universal—to ground
various rights and make a case against any belief, act, practice, or institution
that would undermine human reason and/or objectify free subjects and treat
them as things whether it be segregation or other forms of objectification.
We can easily see how, when it comes to the social injustice of racism,
sexism, abuse of power, human trafficking, health inequality, the
exploitation of workers, and so on, that the free and rational potentials of the
human personality are not uplifted or actualized; rather, force and deception
are used to undermine freedom, disrespect obligations and rights, and, in
general, treat subjects as objects.

Conclusion

Martin Luther King Jr.’s life was exemplary in the ways in which he stood
up, through action and argument, for the natural moral law. And his “Letter

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from a Birmingham Jail”, by giving us intellectual, emotional, and historical
resources to do the same, is a priceless natural law theory document. It gives
us the resources to piece together powerful arguments against segregation,
racism, and all practices that thwart the natural abilities of persons to grow
together freely and rationally through dialogue. These arguments, as we have
seen, flow from articulating natural moral laws grounded in facts about
human nature such as its free, rational, and social dimensions. As such, they
exist independent of opinions and provide an objective, universal, and
intelligible ground for the ethical evaluation of immoral actions and civil
laws. In doing so, they serve as powerful tools to rationally combat social
injustice anywhere at anytime.

Appendix: Objections and Responses for Further Inquiry

Objection and Response #1

We might observe that, while natural law theory offers us plenty of sensible
ideas, the very notion of making moral inquiry into laws is misguided. I have
referenced Aristotle a few times in this paper and he has been helpful in
clarifying some natural law ideas. But Aristotle himself argued, as Richard
Kraut describes in the Stanford Encyclopedia of Philosophy’s entry
“Aristotle’s Ethics”, for a more flexible approach: “What we need, in order
to live well, is a proper appreciation of the way in which such goods as
friendship, pleasure, virtue, honor and wealth fit together as a whole. In
order to apply that general understanding to particular cases, we must
acquire, through proper upbringing and habits, the ability to see, on each
occasion, which course of action is best supported by reasons. Therefore
practical wisdom, as he conceives it, cannot be acquired solely by learning
general rules. We must also acquire, through practice, those deliberative,
emotional, and social skills that enable us to put our general understanding
of well-being into practice in ways that are suitable to each occasion.”
Indeed, Aristotle claims that in ethics we must be satisfied with conclusions
that only hold for the most part (1094b11–22). So practical wisdom need not
be law-like despite having plenty of regularities and even an unchanging
first principle like humans are rational animals. If this is the case then
perhaps another moral theory, perhaps a form of natural virtue ethics that
incorporates insights about human nature but doesn’t use law, should be
embraced in order to do justice to the complexities of moral issues in a way
that both gives flexible guidance and avoids moral relativism.

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 One simple way to respond to this objection is to say that a law-based
approach, if we can achieve it in a convincing form, has tremendous benefits
as we have seen in this paper with regard to social justice. Once might argue
that it is precisely in not having flexibility that natural law theory was able to
serve as an objective, intelligible, and universal foundation for the critique
and eradication of so many social evils. And while flexibility seems like a
good when it comes to moral inquiry, many will say a law-based approach
has more intuitive appeal. Lastly, it is crucial to recall, as we have seen, that
natural law does typically offer some degree of flexibility through the
principles of forfeiture and the doctrine of double effect.

Objection and Response #2

Could it be that reason is not a good trait and that this analysis is mistaken in
taking it as an objective, universal, and intelligible ground for moral
prescriptions? Well, we saw earlier that the goodness of certain natural traits
is not something we infer logically or illogically from a fact or set of facts.
Rather, we analyze human nature and then come to immediately see the good
in a manner that is self-evident once all the relevant factors are understood.
To be sure, it may take some time or education for someone to be able to see
certain human traits as self-evidently good since understanding the traits can
be complicated. And self-evidence need not imply infallibility: we could be
wrong about what we take to be self-evident. But the hope is that through
rational dialogue and education all rational agents will eventually see that
being rational is inherently valuable and obviously worth developing.
Applying this to the foregoing, we can say that anyone who argues that
reason is not self-evidently good may be irrational.8 After all, if one
rationally argues against reason being self-evidently good then one
presumably thinks reason has inherent value—otherwise why would one be
arguing? This strategy allows natural theorists to show that any attempt to
rationally challenge this self-evidence is bound to be self-defeating. This
strategy would not, of course, lead to a demonstration of the self-evidence of
reason—this would remain indemonstrable insofar as it is self-evident. But it
might show the unavoidability of an implicit or explicit commitment to
reason as something inherently good.
And what about someone who denies the existence of free will and/or
denies that freedom is self-evidently good? Well, here we can point out that

8This strategy is nicely presented by John Finnis in his classic natural law theory work Natural Law and
Natural Right, Second Edition (New York: Oxford, 2011), p. 73-75. For his account for the self-evidence of
various natural goods, see pp. 33-48.

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any critique along these lines would in fact be utilizing freedom since free
will appears to be presupposed in our reasoning. After all, an argument is a
justification for a thesis on an issue that appears to be chosen, based on a set
of reasons, from a set of possible responses; it is not an explanation that
claims to show how an event necessarily came about because of a set of
causes. For example, we have an issue on the table: are humans determined
or free? We then deliberate, choose from among a set of possible responses
(we are determined, we have free will, perhaps a little of both, etc.) and then
try to give logical reasons for why we believe the way we do. This is critical
thinking. But if we were all determined there would be no possibilities from
which to choose and thus the whole notion of justifying one’s claim over
another in a critical debate with reasons would be senseless. 9 Thus one who
argues we have no free will or that free will is not self-evidently good would
be presupposing free will in those very arguments—and this, as in the case
of rationally arguing against reason as a good, would be self-defeating.

Objection and Response #3

Perhaps the most famous objection to natural law theory was raised by the
Scottish philosopher David Hume (1711-76). Hume observed that there are
three ways something can be considered natural: (1) opposed to supernatural
or miraculous; (2) normal as opposed to unusual or rare; and (3) not artificial
or made by humans. He argued that, regardless of the sense of natural we
employ, we cannot immediately derive anything about value from a fact; we
“cannot derive an ought from an is”. This means we cannot logically deduce
anything about what we ought to do just from the discovery that we in fact
do it. Here is an example of a prescriptive conclusion inferred from a
descriptive premise:

Doing excessive drugs can prevent proper mental functioning.

Therefore it is wrong to do excessive amounts of drugs.

Hume would claim this inference is fallacious, that is, not logical. Now it is
certainly true that a prescriptive conclusion cannot be logically deduced
from a premise that is only descriptive. That is, if we are using a form of
argumentation called deduction—a form of argument that states if the
premises are true then the conclusion is guaranteed to be true as well—we
have an invalid inference. After all, we can clearly see that there is a gap

9For a thorough account of this approach to establishing free will, see Joseph M. Boyle Jr., Germain
Grisez, and Olag Tollefsen, Free Choice: A Self-Referential Argument (Notre Dame: Notre Dame, 1976).

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between, say, the fact of human aggression being natural and any
prescription of aggression as moral or immoral. The conclusion is not
guaranteed as true even if the premise is true. However, a natural law
theorist doesn’t need to provide fallacious arguments that only have a factual
description(s) as a premise. All one has to do is add, along with a descriptive
premise, one or more prescriptive premises. For example, we could construct
this valid argument by adding a natural law premise to the example above:

Premise 1: Doing excessive drugs can prevent proper mental functioning.

Premise 2: Improper mental functioning is bad since it thwarts the
actualization of our natural rational potential.
Therefore it is wrong to do excessive amounts of drugs.

So we don’t need to immediately infer an ought from an is, or a moral

prescription from a factual description; rather, we can add a prescriptive
premise to the argument to draw a valid prescriptive conclusion.
We should also note that we can infer a prescription from a
descriptive premise alone if we are using an inductive argument rather than a
deductive argument. An inductive argument, unlike a deductive one, gives
some evidence for a more or less probable conclusion—it doesn’t promise a
guaranteed conclusion. So if we are only seeking a highly probable
conclusion we may proceed and infer a prescription from a description after
all.
Moreover, as we saw in response to objection #1, a natural law
theorist can point out that our understanding of what is good is not
something we infer logically or illogically from a fact or set of facts. Rather,
we analyze human nature and then come to immediately see the good in a
manner that is self-evident once all the relevant factors are understood. Thus
the value judgment in premise two of the above argument—improper mental
functioning is bad since it thwarts the actualization of our natural rational
potential—would ultimately be justified with an appeal to self-evidence.
This strategy of focusing on the immediate self-evidence of natural goods,
since it avoids inference, would make Hume’s objection that natural law is
grounded in a fallacious inference irrelevant.
Alternatively, a natural law theorist could try and undermine the very
distinction on which the naturalistic fallacy rests. Perhaps facts cannot be
separated from values in the first place; perhaps facts, such as how the body
or mind works, are the effects of God’s design—a design that is itself a
function of various evaluations God made. If one takes this theistic approach
to natural law, then one can argue that we don’t fallaciously derive an ought

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from an is; rather, we look at certain natural facts to see how God planned it
that way for the good—to see the God-given value in the facts. A similar
approach could be taken if one believes in the soul and thinks that the soul is
the active form of the body—a form that purposefully guides the
development of the physical facts to become what they become. And there
are also naturalistic approaches, like John Dewey’s for example, that seek to
overcome the fact/value distinction while avoiding both theism and dualism.

Objection and Response #4

The existentialist Jean-Paul Sartre (1905-1980) argued that we have no

nature until we are dead: we first live our lives, make decisions, and then,
when our life is over, our essence will be the sum total of our deeds. This is
the meaning of his slogan “existence precedes essence”. Sartre thought the
presence of anxiety in our lives and the despair of choice was proof that our
essence is not determined and made up in advance by nature, society, or
god. Darwinian evolution is often seen as contributing a similar objection
since for Darwin and his subsequent legacy (1) nothing has a fixed essence
and (2) and teleological explanations that require references to natural
purposes are no longer necessary to explain life.
In response to Sartre, the natural law theorist might argue that our
experience of habits, dispositions, neuroses, and personality traits shows that
this notion of radical openness is an illusion. It may be a nice thought; but
the reality is that our minds, no less than our bodies, are profoundly
structured in many ways. Not to mention the influence of our culture and its
interaction with our genetic code.10 To be sure, many natural law theorists
will deny that these factors determine us to act the way we do—we can still
have a significant degree of freedom despite the traits our natures have.
Indeed, without freedom moral action seems impossible since we can only
be morally accountable for freely chosen actions. But the above factors
certainly influence us and, in some cases, influence us as a result of being
part of our nature.

10 Referring to experiments that show the mutual influence of genes and environment, Matt Ridley writes
the following in the conclusion to his book The Agile Gene: “These are truly the experiments that show
genes to be the epitome of sensitivity, the means by which creatures can be flexible, the servants of
experience. Nature versus nurture is dead. Long live nature via nurture.” (280) For Ridley, it is no longer a
question of arguing for either nature or nurture as we study the human condition; rather, we should see that
we have a flexible genetic nature that interacts with the environment insofar as our genes “are designed to
take their cues from nurture” (4). So our nature does have flexibility but, in light of the limits set by both
nature and nurture, nothing like Sartre’s radical freedom. See The Agile Gene (New York: Harper Collins,
2003).

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 In response to the Darwinian-based objection, we can point out that
there are many people trying to show how evolutionary theory, far from
undermining natural law theory, can be the proper empirical ground for it.
For example, in his book The Mating Mind, Geoffrey Miller claims that
many of our virtuous character traits came about because sexual selection in
evolution favored traits like kindness, generosity, and helpfulness. Richard
Dawkins and E.O. Wilson have argued along similar lines, and Larry
Arnhart has argued for a “natural moral sense” supported by modern
Darwinian biology. So perhaps we can account for our nature and its
essential goodness by using evolution. We could argue that science can show
us how human nature works and then argue that certain altruistically
oriented traits should be cultivated for survival purposes. This approach
might then provide the three-fold ground that any natural law theory needs,
namely, universality, objectivity, and intelligibility.11
Alternatively, we could explore the traditional ties between natural
law theory and theism. If it can be rationally demonstrated that God exists as
a purposeful creator of our nature then the above objections that deny
natural purpose would fail. Moreover, we could argue that the soul exists
and has inherently purposeful mental states and thus cannot be completely
accounted for by evolutionary principles that deny all inherent purpose. So
evolution may not be telling us the whole story—a story that can, perhaps,
be rounded out with natural law theory and a view of human beings as
divinely created entities with purposeful minds influenced by, but not
reducible to, the principles of evolutionary psychology.

Objection and Response #5

But even if we assume we have a nature, we have to face the fact that it is
unclear what our nature really is. There has been a lot of disagreement about
human nature over the centuries and this suggests, contrary to natural law
theory, that we can’t just use our reason to discover our essence. But I think
it is clear that anyone committed to natural law theory has to admit that the
11Whether or not this approach is successful is an ongoing matter for debate. For philosopher and zoologist
Michael Ruse, evolution undermines the notion of objective moral truth and thus one of the central tenets
of natural law theory. He writes: “The position of the modern evolutionist . . . is that humans have an
awareness of morality . . . because such an awareness is of biological worth. Morality is a biological
adaptation no less than are hands and feet and teeth . . . . Considered as a rationally justifiable set of claims
about an objective something, ethics is illusory. I appreciate that when somebody says ‘Love they neighbor
as thyself,’ they think they are referring above and beyond themselves . . . . Nevertheless, . . . such
reference is truly without foundation. Morality is just an aid to survival and reproduction, . . . and any
deeper meaning is illusory . . . .” See Michael Ruse, “Evolutionary Theory and Christian Ethics,” in The
Darwinian Paradigm (London: Routledge, 1989), pp. 262, 268-9.

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notion of using reason to discern our human nature cannot mean something
like “all rational humans will simply see it clearly”. A supporter must simply
admit that rational inquiry, like many other forms of inquiry, can be very
hard. Moreover, it is imperative to see that natural law theory can accept a
diversity of ways in which a particular natural essence can be actualized.
Recall our earlier moral law that is plausible to most people despite their
background:

NML: We should all develop our rational capacities.

We can easily imagine diverse cultures and individuals having different

things to say about the means by which the young will realize their natural
rational potentials. The crucial thing will be to recognize that this respect for
diversity, dialogue, and development can still rest on a shared natural moral
law that requires ongoing elucidation.

Objection and Response #6

The 20th century philosopher G.E. Moore (1873-1958), in his book Principia
Ethica (1903), argued that it is always a fallacy to assert that an ethical
property, for example goodness, is the same as some natural property, for
example, pleasure or the actualization of something’s nature. He called the
identification of an ethical property with a natural property the naturalistic
fallacy and believed this fallacy showed that ethical facts could never be
identified with natural facts. But why is this identification a fallacy?
Because, according to Moore, if we try to identify a moral property like
goodness with a natural property like the actualization of natural potential,
then we need the meanings of both goodness and the realization of natural
potential to be the same; if they are not, then they cannot be identified. But,
according to Moore, we will always find two meanings when we seek to
identify a moral term with a purely natural term. Since natural law theory
seeks to identify goodness with the realization of something’s natural
potential, then natural law theory will necessarily fail as a way to understand
the good.
Luckily for the natural law theorist, the naturalistic fallacy is itself a
fallacy. Following philosopher John Searle, we can call it “the naturalistic
fallacy fallacy.” But why is it a fallacy? Simple: two terms—say goodness
and the realization of something’s natural potential—can refer to the same
property without meaning the same thing. Moore, as we saw, argued that any
identification of a moral and natural property required that the moral and

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natural property mean the same thing. Elliot Sober gives an example of an
argument Moore would accept:

“The expression “temperature” doesn’t mean the same as “mean kinetic

energy”.
Hence, the property named by the first expression isn’t identical with the
property named by the second.”

But, according to Sober, the argument is fallacious: “Chemistry tells us that

the temperature of a gas is one and the same property as the gas’s mean
molecular kinetic energy. The claim isn’t refuted by the fact that
“temperature” and “mean kinetic energy” aren’t synonymous expressions”.12
Clearly people who know nothing or very little about science can have an
understanding of what temperature means without understanding the proper
scientific meaning of it as “mean kinetic energy”. So it appears that we can
have two terms or phrases that (1) mean two different things and yet, upon
closer analysis, (2) refer to the same property of a gas.
So in our case we can, on the one hand, admit that the meaning of
“goodness” is different from the meaning of “the realization of something’s
natural potential” (people can understand the meaning of “good” even
though they know nothing about natural law theory) and, on the other hand,
still argue that both terms refer to the same property. For example, let’s say
the property of a human we are referring to is “ability to think logically”. As
natural law theorists, we want to say that this ability is good precisely
because it helps realize our essential rational potentials. And we can say,
despite the fact that “good” and “the realization of natural potential” have
different meanings, that the property “ability to think logically” is referred to
by both “good” and “the realization of something’s natural potential”. Thus
the natural law theorist can avoid committing Moore’s naturalistic fallacy.

Objection and Response #7

But what if, upon rational analysis, we discover that our nature includes
traits typically understood to be bad—perhaps even evil? Wouldn’t we then
have to say that these natural traits were, despite our intuitions to the
contrary, actually good and in need of actualization? Well, a natural law
theorist might argue that she is not committed to embracing all natural
phenomena, tendencies, etc. as good. Rather, natural law theory is about

12 Sober, Core Questions in Philosophy, Third Edition. (Upper Saddle River: Prentice Hall, 2001), p. 408.

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discerning and supporting as good those aspects of human nature essential to
our flourishing.
For example, the intellectual and dramatic flow of Plato’s dialogue
Republic is driven by Socrates’ attempt to show what justice is and why
being just is superior to being unjust. A character, Glaucon, presents a
challenge to Socrates in Book II: why would we be just if we had the ring of
Gyges that grants invisibility? Why wouldn’t we go murder, rape, steal, and
do all the things which we are usually afraid to do as visible agents
accountable to the social order? To face this challenge, Socrates claims he
needs to give an account of the human soul. But, in order to do that, he
suggests we look at an ideal state that is structurally similar to the soul. The
strategy is this: since the soul is obscure and hard to see, we should look to
the state that is the soul writ large. So begins an extended account of an ideal
republic or utopia. This account shows how an ideal state can be constructed
and how it deteriorates. And this account is used to depict an ideal soul and
how it can deteriorate if not properly cared for.
We learn that the soul has three parts: appetite, spirit, and reason. Our
appetite represents those desires for physical pleasures like food, drink, and
sex. Our spirit represents those desires for social wellbeing like fame, power,
and recognition. And reason represents those desires we have for intellectual
wellbeing like knowledge. Now, if the soul’s fundamental orientation is
rational then it will have the virtue of reason that is wisdom. And with wise
guidance the spirited function, which cooperates with reason, will manifest
the virtue of courage. Reason and spirit can then help moderate appetite so it
will manifest the virtue of temperance. When reason moderates appetite with
the help of spirit then we have the overarching virtue of the whole soul,
namely, justice. Like a well-regulated state, each aspect of the soul will
know its place and will contribute to the wellbeing of the whole person.
Once this account of the soul is established, Socrates returns to the original
challenge of the ring of Gyges. He argues that we would want to be a just
even when invisible. After all, acts of injustice, far from making us wise and
courageous, would strengthen our immoderate appetites for physical
pleasure thus making us more ignorant and cowardly. Our soul would, in
Plato’s terms, become unjust in its lack of balance and proper function.
Indeed, our soul would be akin to the soul of a tyrant who, according to
Socrates, is

really the most abject slave, a parasite of the vilest scoundrels.

Never able to satisfy his desires, he is always in need, and, to an
eye that sees a soul in its entirety, he will seem the poorest of

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 the poor. His condition is like that of the country he governs,
haunted throughout life by terrors and convulsed with anguish.
Add to this what we said before, that power is bound to
exaggerate every fault and make him ever more envious,
treacherous, unjust, friendless, impure, harbouring every vice in
his bosom, and hence only less of calamity to all about him than
he is to himself. (578d ff.; translation by Cornford)

So we see that Plato, an early precursor to what is now called eudaimonist

virtue ethics or an approach to ethics that sees virtues as constitutive
elements in the flourishing of our nature, describes human nature in a way
that includes some dangerous potentials which, if not adequately governed,
can lead to forms of psychological and political tyranny that destroy reason,
friendship, trust, virtue, and freedom. But he goes on to prescribe the
development of certain traits over others so we can flourish as self-moving
souls. I think this approach can be utilized by a natural law theorist who can,
on the one hand, admit if needed that our nature is not completely good and,
on the other hand, avoid being committed to the view that bad natural traits
should all be actualized.
But what if, upon rational analysis, we discover that our essential
nature is completely comprised of bad or evil traits? Then what? Well, here
we can argue that the notion of a completely bad or evil nature is incoherent.
After all, one plausible way to think about bad and evil is that they are
privations. The evil person lacks goodness; someone with a bad character
lacks virtues. But any privation assumes something that is non-privative. For
example, Swiss cheese has holes that are privations or lacks of cheese. But
the cheese that is there, the cheese we eat, is not a privation: it has being.
And this plausible analysis entails that goodness and being are convertible.
If this view of the convertibility of goodness and being or existence is
correct, then natures are good and privations of those natures are bad or
evil. All privations would therefore presuppose being and goodness. After
all, how could our nature, the thing that grounds our being, be nothing but
privation? Wouldn’t this be like having Swiss cheese totally made of holes…
something obviously impossible? To be sure, we all have privations and
these privations often contribute to vices, immoral action, evil deeds, and so
on. But we can’t be all bad or all evil since we can’t be all privation. If this
is the case, then the way is open to discern what good natural functions we
necessarily have and try to develop them so we can flourish.
If one is not convinced by this analysis based on the convertibility of
goodness and being, then there is always an alternative popular in the natural

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law tradition, namely, a theistic alternative that includes God. Alexander R.
Pruss explores this alternative with reference to divine command theory and
Plato’s Form of the Good:

According to Natural Law, the right thing to do is that which

accords with one's nature. But what if something really nasty
accorded with one's nature? This is, of course, akin to the
objection to divine command theory from the question "What if
God commanded something really nasty?" Both theories can
give the same answer: “That's just impossible.” God couldn't
command something really nasty and there just are no possible
natures of rational beings that require such nastiness….Why is it
impossible? One could think this is just a brute and unexplained
impossibility, but that is unsatisfactory intellectually. Even apart
from the Principle of Sufficient Reason, we don't like brute
facts that look like too much of a coincidence. And it looks like
too much of a coincidence that all of the nasty cases are
impossible. We want an explanation. The divine command
theorist has a pretty immediate explanation. We're talking about
God's commands, and necessarily God is perfectly good or, if
one prefers, perfectly loving….I think the Natural Law answer
can be similar. A nature is an essential…mode of participation
in God. It's impossible for a rational being's essential mode of
participation in God to require nastiness, because of the nature
of God….So there is an explanatory gap that Natural Law
points to, and bringing in God closes that explanatory gap. Are
there other ways of closing that gap? Maybe. One would be a
heavily Platonic theory on which natures are modes of essential
participation in the Form of the Good….In any case, the
question of why something nasty couldn't be required by one's
nature points towards serious metaphysics.13

This effort to tie human nature to divine goodness is a traditional strand in

the natural law tradition. One can see why: if our essential traits flow from a
all good moral source and are, as Pruss put it, “essential modes of
participation in God”, then they should be good as well. But if this theistic
approach is going to be philosophical, we must ask: can we get a persuasive
argument that God exists? And even if we could get one, wouldn’t such

13 See the full version of Pruss’ blog at http://alexanderpruss.blogspot.com/

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theological complexities show us that natural law theory is, despite its
virtues, far more complex than other moral theories and therefore should be
discarded in the interest of seeking the simplest available theory? Let’s take
the latter question first.
It might be the case that including a divine source of moral value and
obligation can, despite its complexity, widen the scope of what we can
explain thus justifying that very complexity. For example, if we include
something like God in our moral theory we may have a way to rationally
account for the inherent worth of humans. To be sure, most decent people do
not need rational grounds to treat people, as Immanuel Kant put it, as ends in
themselves and never as means to an end. But the world is full of people
who see human life as worthless and it would be helpful to know exactly
why they are wrong. If we believe human nature is made in the image of
God then presumably human nature is sacred and has inherent worth just as
God does. Someone could choose to discard that worth; but the worth would
be objective and independent of any personal or cultural opinions to the
contrary. We might also argue that God’s existence would provide a ground
for eternal truths—both moral and non-moral—as well as our cognitive
abilities and sense of moral duty before the law. If there are eternal truths,
truths that always were, are, and will be true, then such truths cannot be the
product of humans since there was a time when we didn’t exist. But an
eternally existing God could have such eternal truths—all of them—in mind
eternally. Moreover, if our cognitive capacities are not naturally suited to
know the world—if instead they have put together by blind natural selection
with all its random genetic mutations over millions of years—then we may
not expect these cognitive faculties to be geared towards truth. Just because
something helps us survive doesn’t mean it is true (not to mention good or
just). But if an all-good God designed us then perhaps our cognitive powers
are naturally suited to knowing. Lastly, we might argue that if we have
natural moral laws that humans did not create, laws that obligate us to act in
a certain way, then we need a lawgiver for those non-human laws. God
would be the source of this binding duty before the natural moral law.
But what about the former question from above, namely, can we get a
persuasive argument that God exists? Well, here we can simply appeal to
some or all of the above and use them as premises in an argument or a set of
arguments for theism. Perhaps we should believe in God because doing so
can help establish grounds for human dignity, eternal truth, veridical
cognitive capacities, and objectively binding moral obligations.
This is, of course, just a sketch to suggest ways in which a theistic
natural lawyer might go about arguing for theism and, in turn, show that this

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theism, far from making things unnecessarily complicated, may actually
offer a wider scope of explanatory power. To be sure sure, this approach is
bound to be difficult and will always be a source of intense disagreement.
But it is important to keep in mind the point raised earlier: people can
disagree over the grounds of the law but agree on the content of the law
itself. For example, both theists and secularists may, despite their differences
regarding the ultimate grounds of a natural law, agree on the specific content
of a law such as “We should all develop our rational capacities.” Thus
natural law theory can remain a practical force despite disagreements about
its ultimate metaphysical roots.

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