Natural Law and Its Critics: A Response to Amos Wollen

Dr. Brian Besong, author of Sex in Theory, defends traditional natural law against a recent criticism.

Note from the editor: The following is a guest post by Dr. Brian Besong.

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- Pat

Amos Wollen has an interest in natural law, at least by the evidence of a growing sequence of blog posts on the subject. I welcome his interest, and am even more delighted to see he is taking seriously the Catholic faith. While some of his content and tone strikes me as unprofessional, I will try to disregard what often looks like schoolboy antics to focus on two recent posts, both paywalled, on his blog: the first, from September 7, containing a brief engagement with my recently published Sex in Theory, and the second from September 8, which attempts to reconcile his disdain for natural law with strong evidence for the truth of a faith that seems committed to some version of the theory, namely Catholicism.

Sex in Theory argues that prevailing moral theories have a very difficult time explaining central elements of moral commonsense, elements that plausibly constitute Moorean facts—facts we know better than any premise in an argument (or view) to the contrary. The argument involves no brute assertion. Rather, each chapter carefully works out the bedroom implications for extant theories—act, rule, and preference consequentialism, contractarianism, contractualism, Kantianism and Neo-Kantianism, and the virtue ethics of Slote, Hursthouse, and Swanton, as well as natural law in both new and classical varieties. Not all fare the same, but all contemporary theories except classical natural law struggle to explain why token instances of (biological sibling) incest, necrophilia and sexualized cannibalism, and bestiality (among many others) aren’t permissible. I argue the wrongness of these are Moorean facts, and the failure to explain the obvious truth is a powerful reason to reject every theory besides natural law.

Though Wollen provides a single citation to the text, engagement is shallow—much of what he discusses could have been gleaned from the preface, and many of the points he raises against my views are discussed in the book, though one could not tell as much from what Wollen says. I don’t say this to casually dismiss the points he does make, but rather because Sex in Theory is a pricey book, currently running about $140 on Amazon. Many readers of Wollen’s blog will not shell out the money to see if Wollen’s critiques hit home. A simple example of thin engagement arises at the outset, with his claim that I argue for the “Perverted Faculty Argument,” a phrase, and an argumentative strategy, that will be found nowhere in the book. Perhaps this is meant merely as a pejorative description of natural law. Elsewhere, Wollen proposes sex with humanoid aliens as a counterexample to natural law’s conclusions on bestiality without mentioning its discussion on pg. 102–103, an indexed entry. He compares necrophilia to “sex acts with non-reproductive hunks of matter” and—without specifying what hunks of matter he has in mind—hopes the reader shares his intuitions about humping hunks. I think what he has in mind is sex toys, which I also discuss at greater length (pg. 103), another indexed entry.

His discussion of incest, consanguinity, and genetic problems are similarly quick. He complains that, as incest can result in children, incestual sex cannot be dismissed as unnatural—at least cannot be without adding an “epicycle” that aiming for healthy children is part of the procreative aim of the power. (Why this is deemed an epicycle goes unexplained, perhaps it is because Wollen anticipates his audience is as hostile to the theory as he is.) Relatedly, he complains about a vagueness problem that emerges from degrees of consanguinity for natural law. These and other worries can be neatly resolved by more careful attention to the text and its immediate implications. Particularly given Wollen’s ongoing interest in natural law, and its relation to a faith he has begun to take seriously, I’d like to respond.

Start with the latter, regarding vagueness. Is that a problem for natural law? Some degree of vagueness on the topic of sex with highly distant family is, I suspect, exactly what we’d expect from the best moral theory, with immediate family incest being (intuitively) obviously wrong, but each degree of separation becoming less clearly so. Natural law delivers on that common intuition precisely because the degrees of closeness pose obvious problems to the success of the sexual act. Wollen finds this vagueness “jarring,” but it is perhaps because of the tendency he and others have to return ad nauseum to a thought experiment involving some Really Bad Consequences if not performed (“sex acts snap from wrong-even-to-avert-WWIII to permissible at the drop of a hat”). It should come as no surprise that, as I am not a consequentialist, I do not think varieties of this thought experiment are useful except as intuition pumps. Any theory worth its salt is going to have moral absolutes, and those moral absolutes will bind even in the face of Really Bad Consequences.

Wollen can be forgiven for not putting a couple discussed pieces of natural law together in his presentation. He has narrowly focused on one of two converging principles. Admittedly the one he focuses on is usually more important, and for that reason the latter appears to have escaped his attention. First, actions must use natural powers toward their natural objects (p. 144-148), the first principle that Wollen has kept in mind. While procreation is that object for the sexual power, this claim must be understood de re: we are talking about a real kind of achievement that is not reducible to the semantic content conveyed by the word. It’s more than just whatever results in conception. Put differently, it is no more an ‘epicycle’ to say aiming for procreation obviously implies the health of the child than it is to say it also involves, e.g. a human child, one conceived by the male sexual participant’s sperm and female sexual participant’s egg, one who can in turn have children, who lives longer than 15 minutes, etc. These and others are conceptually, but not semantically, contained in the notion of procreation. Nor is the attainment a Platonic form, for our faculties could not have perfect ideals as an object. One does well in ordinary procreation even if pairing with another person would have yielded a child of exceptional intelligence or health, etc.

The second, neglected principle has to do with circumstances (p. 150, 154–155). As I explain it in the text, “one must canvass and bring together all the ‘reciprocal partners’ of a power that are under one’s voluntary control—one must do what is within one’s volun­tary control to bring about what Williams calls the appropriate “constella­tion” for act to be appropriately aimed at the power’s object” (p. 150). While directing a power against its end is intrinsically wrong—wrong no matter the circumstantial details—failing to act in conditions necessary (and under your control) for the success of the power is not. But it is still wrong. Hence, sodomizing one’s fiancé is intrinsically wrong. Procreating with one’s fiancé is not intrinsically wrong, but it is wrong. Marriage too is part of the circumstantial success of procreation.

How does this relate to incest? Sex with extended family is under one’s control and, to degrees of increasing importance as one increases in consanguinity, necessary for the success of the power: for procreation. On the level of the action, natural law is interested in what follows from human nature, not token humans (p. 148–149). Immediate family incest, at least given the human nature we observe, seems invariably results in problems whether in the immediate progeny or downstream, which strongly implies that it’s intrinsically wrong—that heterosexual sex between say, a brother and sister, is unnatural. (One could imagine a nature so fecund that sibling incest does not inherently lead to the problems it does; for such a nature, sibling incest would not be intrinsically wrong.) The inherent problems in immediate family incest arguably do not apply as couples decline in degrees of consanguinity, but this only means that extended incest is wrong, at least when it is so, because of circumstantial reasons. For ordinarily one fails to do all that is in one’s power to attain the end of one’s powers by having sex with a second cousin, say. None of this implies that one can do wrong to avoid Really Bad Consequences, even if Wollen seems to imply that only intrinsic evils are verboten to avert Disaster! Because such extended family incest is wrong for circumstantial and not intrinsic reasons, marriage to distant family could be permissible when such pairings are the only ones legitimately available to marriage partners, for instance in isolated populations. For one must only do what is within one’s power, and the number of suitable marriage partners is rarely within one’s control. (For those who, like Wollen, are interested in Catholicism, this picture fits exactly with Catholic practice.)

What about couples with incidental, coinciding genetic problems? For instance, recessive genes for Tay-Sachs disease. Ironically, problems like these are the common result of past inbreeding and occur with most frequency among populations with a history of the same. The so-called “Founder Effect” involves a recessive genetic mutation (presumably within a single individual, male or female) passed within an isolated community to the point that it is commonly shared by many men and women in that community. In other words, the members of the community are nearly all distant family, carrying the trait because of their common descent from the relevant founder. Put differently, populations prone to such recessive genetic defects are arguably those where continued intermarriage does involve extended incest—the problem is that the family histories become so muddled as to make this incestuous relationship unclear. The same considerations as above apply here, namely that permissibility largely has to do with available marriage partners. It would be prima facie wrong to marry within an inbred population when exogamy is as easily available. As I see it, natural law provides an intuitively fitting result here: if marrying a person is likely to result in serious problems for your child, another suitable partner should be sought after. And not only because of the so-called “non-identity” problem, but rather because one should always be oriented to the flourishing of one’s nature. Concern for others—and most notably, one’s children—is of course part of that nature, but not the only part. The procreative purpose of sex is the unifying element and neatly explains the spectrum of incest. In a moment, I will consider Wollen’s attempt to provide an alternative explanation, uniquely aimed at explaining the wrongness of gay sex. Suffice to say that in his engagement with me, Wollen only gestures at pragmatic considerations without grounding them in a broader normative theory in which those considerations have moral force. He does the same, as we will see, on necrophilia and bestiality.

At first glance, Wollen seems like to like natural law’s analysis of bestiality: “This is pretty cool! Point scored.” But here and elsewhere, he tries to manufacture an intuition rather than a justification for the condemnation at hand. Put differently, he argues that “it’s not clear to me that the species boundary is what explains the intuition.” Notice that explaining why we have an intuition is a desiderata, but if the result of explanation is psychologically reductive—particularly if fails to justify what seems clearly to be a Moorean fact—something has gone awry. It becomes something close to a debunking story. Ideally justification and psychological explanation coincide, but the former offers far greater theoretical advantage when it comes to facts like these. Wollen seems to think that, if the natural law explanation of the wrongness of bestiality were true, we should be equally disgusted by sex, say, with one’s pet dog as with a humanoid (presumably rational) extraterrestrial. But that’s a mistake. For natural law, species itself doesn’t matter, procreation does, and procreation can be achieved across species. Take the delightful Grolar Bear (yes, it’s real), a fertile Grizzly/Polar hybrid. Passing on a shared rational nature seems conceptually contained in the notion of procreation, making sex with humanoid extraterrestrials a conceptual, and thus intuitive, possibility. Looking very much like us increases the presumptive odds of procreative compatibility, where the ultima facie permissibility depends on the empirical details. Natural law would in no way predict equivalent moral intuitions between sex with a dog and sex with a humanoid alien.

Much the same might be said about his prediction that, if natural law is right, our intuitions about sex with a toy should be equally strong as sex with a corpse. This hardly follows, for many of the reasons that Wollen himself points out, namely that in necrophilia there is also a failure to show “respect for the dead, posthumous wronging, posthumous harm, the symbolic wrong of desecrating a humanoid object, violating the wishes of living relatives, the vices expressed by such activity, the brutalising effect it would have on the necrophiliac in light of their psychology.” Again, what natural law has, and what Wollen lacks, is a cohesive way to make sense of all these considerations in a normatively grounded way. Philosophers are rarely contented by such handwaving, and for good reason.

Enter blog post number two: “Catholic Sexual Morality: A New Theory.” I consider this post to be fantastically interesting for what appears to be its massive concessions. In it, Wollen essentially develops a classical law theory whereby flourishing considerations—the same considerations he seems to have treated with great condescension in other settings—operate entirely in a pro tanto way for God, who as it were compiles them to generate absolutist commands. Turns out his biggest worry with natural law comes from intrinsic wrongness. Intrinsic wrongness only comes from violating divine commands—presumably even in the face of Really Bad Consequences. What we have appears to be equal parts Thomas Aquinas, W.D. Ross, R.M. Hare, and Robert Adams. Fascinating. Now while Wollen and others who appear hostile to natural law may expect me to act the grouchy gatekeeper, I enjoy intellectual diversity and welcome interesting new varieties of natural law. All the same, I find it entirely unconvincing, as I shall briefly explain.

Wollen dislikes natural law’s egoism. I think that both Aristotle and Aquinas saw what Bernard Williams later pointed out, even if the latter never saw its connection. In brief, on my view, there can never be a practically rational amoralist. Moral motivation is ultimately grounded in the will which is teleologically oriented to its own happiness, and happiness is in turn constituted centrally by the proper orientation of our person, which natural law codifies. Motivational internalism on the cheap with no spooky external reasons required. This is highly desirable metaethical package for the realist, and one that does not come at high costs: the sort of objections that Wollen and others often trot out quickly slide between the metaethical nature of moral motivation and its psychological correlates. At no point does natural law predict that individuals are reasoning about themselves while saving their own children. It’s as if any theory that grounds motivation in the individual is functionally equivalent to the calculated selfishness of Ayn Rand’s John Galt. Hardly. But more importantly, Wollen’s theory ostensibly “avoids” (in Wollen’s words) egoism precisely because it leaves moral motivation ungrounded. I could play that game too, but leaving questions unanswered is just ignoring the problem, not providing an alternative solution.

The second desiderata Wollen’s theory is supposed to deliver on would be absurd were it not apparently asserted in earnest. While Wollen wants to know about the ethics of chewing, he also wants to know—and here I must quote, lest the reader think I tilt at windmills—what’s wrong with the following:

Call me old fashioned, but when a guy starts telling other guys he wants to fellate them to “know what it’s like from my girlfriend’s POV,” he’s torched his “extremely straight” card and declared war on the factory that printed it. Equally so for anyone who acts like that’s a legitimate reason to let a man pleasure him. If any these perverts indeed had girlfriends before participating in this debauch, and if these girlfriends had a single degree of self-respect, they would never speak to these degenerates again. Indeed, they would act for all the world like they didn’t know they exist.

Natural law is supposed to walk a tightrope here, but the dilemma is absurd (as I pointed out repeatedly to Wollen in our last discussion, hosted by Pat Flynn). Whereas there are a few ways to understand the powers involved in chewing, there is utterly no (plausible) parallel to sodomy. These are quintessentially sexual acts, which is why they involve penile erection and ejaculation if continued. (It’s hard to believe this even needs stating.) Wollen’s solution, alternatively, seems to accept the intrinsic permissibility of this kind of unspeakable frat guy “knowledge.” God simply willed it wrong by fiat.

Wollen third motivation seems the weakest, namely that it allows modal possibilities of immoral sex—he focuses on gay sex, but the same considerations apply to anything, including the violent torture and rape of one’s own mother—to avoid Really Bad Consequences. One could do that, on his view, but not violate the smallest iota of a divine command to avert similar catastrophe. Not the most impressive tradeoff. As I pointed out many years ago in a discussion with Dustin Crummet, we’re all going to have to bite some bullets when facing these sorts of doomsday dilemmas. But as hard cases make bad law, so too do these kind of consequentialist thought experiments lead to implausible moral theories. The only theories that fare pretty well—at least as measured by the intuitions of those who push them—are consequentialist theories, which are arguably the most counterintuitive moral theories on just about every other measure. I must report I have never shared these intuitions about doomsday dilemmas, but hey, I’m also the sort of guy who intuitively thinks “extremely straight” guys don’t jump in bed on such extremely thin pretexts when propositioned by other men.

A last advantage is briefly mentioned. Given natural law’s explanation of wellbeing, doing wrong—even small wrongs—appears worse than being tortured. Wollen talks about being tortured “for a billion years”—which seems to require theism, and hence be as easily solved by a plausible form theistic axiarchism (truth be told, so can all the doomsday dilemmas). On this, I think Wollen is right and maybe that’s a bullet bit. For I do think that reason is more central to our wellbeing than pleasure, and hence chosen evil a greater wellbeing harm that physical pain. I think this because it seems true on its own and because it’s essential to securing a moral commonplace, namely the wrongness of alcohol and drug abuse for pleasure (if reason and pleasure are of equal value, then PDE could justify the loss of reason for the gain of a proportionate good, namely pleasure).

But there is room for finesse, even within these natural law commitments. After all, I am not aggregating wellbeing harms in the comparison. Although I am not personally inclined to make an aggregationist move, at first glance one might accept the same wellbeing claims that I am committed to and yet try to work out an aggregationist position on harm that could accommodate Wollen’s intuition, while securing functional moral absolutes by denying some wellbeing aggregate thresholds—those sufficient to upend moral norms—are ever met, given axiarchism. To me, this is God of the gaps, but others may more strongly share Wollen’s intuition, which would make the move worth the cost. It’s an option.

Where I am far more inclined to aggregate is in the goodness of one’s character and in the merit of a well-lived life. While Wollen thinks natural law should be in favor of quick innocent death, given the possibility of future wrongdoing, this fails to see that continued life allows one the opportunity for growth in goodness and in deserved reward. This is growth in happiness. The orientation of our nature toward flourishing is not one and done; it grows and matures like the organic object that it is. Picking fruit prematurely, even when it looks promising, is to take a lesser good. The ripening of a soul ordinarily takes a lifetime. While good people cut down in their prime will, one may hope given the goodness of God, be rewarded congruously to the life they would otherwise have led, real condign merit requires reality. And that reality is a life well-lived, even if it is not uniformly perfect.

More generally, Wollen’s view lacks nearly all the theoretical virtues by which philosophical (and scientific, for that matter) positions are normally evaluated: it is massively more complicated than natural law, it lacks the scope—natural law, as seen above, fittingly answers important questions in metaethics, among many others—and it seems largely ad hoc, at least on the part of God, whose calculations—like R.M. Hare’s archangel—are simply to be trusted. For these reasons, and for those which the reader may find elaborated at greater length in Sex in Theory, I’ll stick with the OG.

*I wish to thank Amos Wollen for his feedback on an earlier draft.

About Dr. Brian Besong

Dr. Besong joined the faculty at Saint Francis in 2022. His research pertains to philosophical theories of morality and knowledge as well as how they intersect. Along with numerous journal articles, Dr. Besong published a monograph introduction to Natural Law moral theory in 2018 with Cascade press and coedited a collection of essays on professional philosophers converting to Catholicism with Ignatius Press in 2019. He has appeared several times on the international TV network EWTN, discussing his own conversion to Catholicism and related issues of faith and reason.

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