Natural Law: A Universal and Rational Basis for Morality in a Pluralistic World

I

Martha Nussbaum proceeds in a distinctively ‘essential’ manner concerning social justice, while avoiding many objections to essentialism. In so doing, she provides a path that allows for natural law to remain a part of the conversation in issues of social justice. Since Nussbaum’s appeal to natural law is indirect, the connection between a Catholic notion of natural law and her work will need to be a bit illuminated. To illuminate Nussbaum’s similarities with a Catholic notion of natural law as it pertains to social justice, this essay will rely heavily on the work of Jacques Maritain.  This essay intends to show the similarities in the approach to social justice between these two interlockers.  The main aim of the essay is to show that both philosophers assert certain essential requirements of respect for human dignity. In addition, both philosophers assert that practical political consensus on these universal requirements are possible, and that both see social justice as society’s implementation of these universal requirements for all human persons despite the pluralist world they live in. This essay will also seek to show that although Maritain and Nussbaum differ greatly on the theoretical basis of these universal requirements, their disagreement does not place their accounts in conflict; thereby, they providing a model for future discussions of social justice between secular and Catholic intellectuals that may differ on a theoretical basis, but together point to the potential and need for social justice.

The essay will begin by presenting Nussbaum’s context of the Capabilities Approach, and then articulating her own account of social justice. The essay will then turn to developing Maritain’s account of human rights as rooted in the natural law, and demonstrate how Maritain’s notion of natural law asserts an essentialist view, but also assumes pluralism in society. The essay will then explain in greater detail the main points of similarity between the two interlockers and discuss certain fundamental differences regarding metaphysical underpinnings. The essay will argue that these theoretical differences do not entail a fundamental conflict between the two theories, and that very fact points to the real potential for consensus between faith and reason when working with issues of social justice. I will conclude by discussing what the similarities reveal about the contemporary relevance of natural law and the relationship between natural law and human rights.

Nussbaum’s Capability Approach

Martha Nussbaum’s theories of basic social justice is part of a wider capabilities approach tradition. The capabilities approach starts with the question: “What are people actually able to be and to do?” This approach is characterized by Nussbaum and her colleagues as a necessary counter theory to development economics approaches that focus on economic growth, utility, or equality of resources. Proceeding in an inductive, common-sense approach, she presents a “thick vague conception of the good,” and asserts the “Aristotelian essentialist’’ claim that a life that lacks any one of what she called “central capabilities…will be lacking in humanness.”^[1]

In her work Creating Capabilities, she reaffirms this claim and clearly defines a theory of social justice rooted in an essentialist view of the human person. Nussbaum asserts that her version of the capabilities approach “uses the idea of capabilities as the core of an account of minimal social justice and constitutional law,” and needs to defend a specific list of central capabilities.^[2] Thus, considering the various areas of human life in which people move and act, she asks, “What does a life worthy of human dignity require?” She answers with a clearly articulated claim of basic social justice: Respect for human dignity requires that citizens be placed above a specified threshold of the central capabilities, “areas of freedom so central that their removal makes a life not worthy of dignity.”^[3]

The central capabilities that she outlines are as follows:

1. Life
2. Bodily Health; including adequate nourishment and shelter.
3. Bodily Integrity; including freedom of movement and security from assault and violence.
4. Senses, imagination, and thought; including, “but by no means limited to, literacy and basic mathematical and scientific training.”
5. Emotions; “supporting this capability means supporting forms of human association that can be shown to be crucial in their development.”
6. Practical reason; including protection for the liberty of conscience and religious observance.
7. Affiliation; being able to live “with and toward others” and “having the social bases of self-respect and non-humiliation.” This also entails “provisions of non-discrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin.”
8. Other Species; “being able to live with concern for and in relation to animals, plants, and the world of nature.”
9. Play; including recreational activities
10. Control over one’s environment; including political and property protection and being “able to work as a human being.”^[4]

In enumerating this list, Nussbaum takes “each person as an end,” making it clear that the goal is to “produce capabilities for each and every person, and not to use some people as a means to the capabilities of others or of the whole.” Thus, the list is not about existing preferences; rather, it “considers each person worthy of equal respect and regard, even if people don’t always take that view about themselves.”^[5] Nussbaum proclaims the capabilities to be irreducibly diverse in content.  “All are distinctive and all need to be secured and protected in distinctive ways.”^[6]

Her ultimate assertion is that if “a capability really belongs on the list, then governments have the obligation to protect and secure it, using law and public policy to achieve this end.” A long argued tradition, beginning with Plato and Aristotle, tells us that “a key task of government, and a reason for the existence of government, is to secure to people their most central entitlements.”^[7] According to Nussbaum, her list of central capabilities can serve as “a potential object of an overlapping consensus among all the reasonable comprehensive doctrines” that may exist in a society. More specifically, she envisages “the account of central capabilities and of the threshold as a source of political principles that can be translated into a set of just political institutions.”[8] For example, connecting the list of central capabilities to part of a nation’s written constitution, or unwritten principles “that elaborates” the fundamental entitlements of its citizens.

Maritain’s Natural Law

Maritain’s philosophical project can be characterized as attempting to unite Thomistic and Aristotelian traditions with the human rights movement that emerged in political modernity.[9] He was reacting against what he saw as misrepresentations of both the natural law and the idea of natural rights. He argued,

Through a fatal mistake, natural law—which is within the being of things as their very essence is, and which precedes all formulation…was thus conceived after the pattern of a written code…supposedly prescribed by nature and reason, but in reality arbitrarily and artificially formulated.[10]

Maritain asserts that the understanding of what natural law is was disordered in modernity, and thereby adversely affecting the idea of natural rights.  After Rousseau and Kant, the idea of natural rights tended toward “treating the individual as a god and making all the rights ascribed to him the absolute and unlimited rights of a god.”[11] Thus he declared,

How could we understand human rights if we [have] not a sufficiently adequate notion of natural law? The same natural law which lays down our most fundamental duties, and by virtue of which every law is binding, is the very law which assigns to us our fundamental rights.[12]

In developing his notion of essential human rights, Maritain returned to Thomas Aquinas who “alone grasped [natural law] in a wholly consistent doctrine.”[13] Maritain distinguished two elements in natural law. The first is the ontological. The ontological is the “normality of [a human person’s] functioning, the proper way in which, by reason of [their] construction, it demands to be put in action.”[14]  It is an “ideal order relating to human actions, a divide between suitable and the unsuitable, the proper and the improper, which depends on human nature or essence and the unchangeable necessities rooted in it.”[15] In other words, the ontological element of natural law is grounded on the human essence and its unchangeable structure:  and therefore, firmly rooted in this element are all the “natural obligations or rights of which we perhaps have no idea.”[16]

This leads us to the second element of natural law, the gnoseological, or the ‘as known’ element.  Because natural law is not a written law, the human person knowledge of it develops “little by little as [the human person’s] moral conscience has developed,” and becomes aware of it “with greater or less difficulty, and in different degrees.”[17] This awareness does not occur in an “abstract and theoretical manner”; rather, it becomes known “through the guidance of [the] inclinations of human nature.”[18] The point that Maritain is making is that if our understanding of natural law must develop from an inarticulate grasp to a more coherent understanding of the demands of natural law, then rights, derived from natural law, the fundamental obligations or requirements for what is needed for a fully human life, are also slowly realized in different cultural and temporal settings. Despite these variations, Maritain believed we can come to practical agreement on the fundamental conditions for human flourishing.

There is a need at this point to clarify Maritain’s understanding of rights.  Maritain makes clear that the “human person possesses rights because of the very fact that it is a person, a whole, a master of itself and of its acts, and which consequently is not merely a means to an end, but an end, an end which must be treated as such.”[19] But it is also important to understand Maritain does not understand human rights as solely “zones of protection for personal autonomy… but more fundamentally as the inviolable claims the person may take to protect or secure the conditions of her flourishing.”[20] Therefore, Maritain’s idea of rights must also be linked to obligations. As he states, “A genuine and comprehensive view [of human rights] would pay attention both to the obligations and the rights involved in the requirements of natural law.”[21]

So, what are the rights Maritain thinks are the claims to protect or secure flourishing, rooted in natural law, and gradually discovered and articulated? Maritain sets forth a full spectrum of rights, enumerated in three heuristic categories; “the rights of the human person as such; the rights of the civic person; and the rights of the social/working person.”[22] Maritain lists three fundamental elements of human dignity; “rights of freedom, rights that secure basic needs, and rights of political and economic participation.”[23] The rights of freedom include the right to existence, to personal liberty, to religious liberty, to free choice in choosing work, and to the freedom and integrity of the family. The rights that secure basic needs include those to property, work, a just wage, unemployment insurance, and social security. And the rights to participation include political participation, equal suffrage, free expression, and freedom to join political parties and labor unions.[24]

It is also important to pay attention to what Maritain declares about the rights of the civic person and political participation. He states,

When you come to the right of the civic person, in other words political rights, these spring directly from positive law and…they depend indirectly upon natural law…because the manner in which this completion takes place corresponds…to an aspiration inscribed in [the human person’s] nature.[25]

Maritain understands the rights of civic and economic participation as depending “indirectly on natural law” because they complete what natural law leaves “undetermined” and so “spring from positive law and from the fundamental constitution of the political community.”[26] These categories of rights have developed “as persons living in community have responded to the dynamic impulse of natural law within themselves, have asserted to one another their dignity as citizens and workers, and have arranged their institutions to respond to this dignity.”[27] Thus, he also recognizes there has been and will be variation among various cultures and societies depending on the economic and social conditions of a given political community.  But this variation that has occurred between societies does not mean Maritain does not believe that an agreement on the essential rights for all human persons cannot be reached.

During one of the meetings of the French National Commission of United Nations Educational, Scientific and Cultural Organization, when discussing the rights of man he stated

Agreement…can be achieved, not on common speculative notions, but on common practical notions, not on the affirmation of the same conception of the world…but on the affirmation of the same set of convictions concerning action.[28]

He acknowledges that agreement can be met despite speculative conceptions of the world will not be held in common.  In postmodern terms, Maritain is acknowledging a pluralistic reality in the world; yet, he still believes that common agreement can be met; namely the establishment a minimum of human rights as the basic requirements of social justice. His list being enumerated by an appeal to natural law.

So, in review, Maritain thinks that human beings possess basic social rights by virtue of being human. These rights are expressions of the human essence (ontological elements) rooted in the natural law, which, though a transcendent reality, is also one known and expressed gradually (gnoseological element). Maritain also sees that given the great plurality of philosophical and religious traditions, there will be different theoretical conceptions and underpinnings, but that despite these differences, there can be practical agreement on what is due human beings. For Maritain, coming to such agreement on fundamental rights are a fundamental task of society. This task will involve disagreement within societies and variation among societies, but he does believe that practical agreement on the fundamentals is possible, and that conflicts are not impossible to overcome.

Similarities & Differences among Both Philosophers

Both philosophers are enumerating a conception of a basic just society based on what is required for respect for human dignity, for what human beings, in fact, are. Basically, both think that certain qualities pertain to human beings and that certain entitlements and freedoms are thus due to them, and both maintain that people from different philosophical, religious, and cultural perspectives can agree on what this specific content of respect for human dignity is. Furthermore, both see it as a fundamental task of society to come to such agreement and, having done so, to ensure those central entitlements and freedoms are available to all; ensuring basic social justice consists in doing precisely that.

The fundamental requirements of respecting human dignity enumerated by each are remarkably similar. Nussbaum characterizes her version of the Capabilities Approach as a “human rights approach’ and elucidates an overlap in content, covering “the same terrain as that of the so-called first generation rights (political and civil rights) and the so-called second generation rights (economic and social rights).”[29] Maritain also acknowledges the full spectrum rights (human rights, civic rights, social/worker rights).[30] Therefore, they both are concerned with the three elements of human dignity identified in the discussion of Maritain: respect for freedom, basic needs, and participation in the community.

Two points of overlap in content are especially worth highlighting. To begin, both recognize the rights of persons pertain to them as social beings. Nussbaum places special emphasis on “affiliation,” and Maritain propounds a highly communitarian understanding of rights. Rights are for participation in the community, not solely to be left alone or unimpeded. In addition, both recognize the rights of persons as persons of “conscience,” as capable of transcendence and of formulating and acting on a conception of the good. Nussbaum’s sixth central capability addresses this, and Maritain, saw the capacity for coming to know and love God as paramount.

Perhaps the most important point of congruence is that neither author is saying there must be agreement on a metaphysical or ontological level in order to achieve practical political agreement on some specific minimum requirements for protecting and enabling dignified human lives. Nussbaum’s theory is itself not a comprehensive doctrine. She describes it as a “module” that can be “endorsed by people who have very different conceptions, both religious and secular, of the ultimate meaning and purpose of life.”[31] In fact, Nussbaum acknowledges that the Capabilities Approach is “like the Universal Declaration of Human Rights” in that it deliberately “avoids commitment on the deep divisive issues about God, the soul, the limits of human knowledge, and so on, that divide people along the lines of doctrine.”[32] Maritain affirms precisely this agreement, as in his strong approval of the consensus that occurred in the drafting of the Universal Declaration of Human Rights. And although he has a different goal for society, he certainly has a place for the type of practical political consensus envisioned by Nussbaum. Both also see the fundamental requirements as directing political priority in society. Nussbaum is quite explicitly hopeful that her list of central capabilities in her terms can be the object of consensus on what should be given special political priority. In other words, she thinks that her list can be the object of overlapping consensus, not just on what the fundamental requirements are, but on what should be prioritized by governments. Maritain seems to have had the same hope for the spectrum of rights affirmed in the Universal Declaration; such rights would be agreed upon and protected in the ‘democratic charter’ of a society.

Finally, they both bring together essentialism and pluralism through their shared acknowledgment that there is not one necessary manifestation of what human dignity requires in every culture and time. Nussbaum recognizes that “there is room for nations to elaborate capabilities differently to some extent, given their different traditions and histories.”[33] And to recall a central point made above, Maritain grounds human rights in the natural law; yet, he also considers knowledge of the natural law to be developmental and dynamic and to be appropriated by people’s practical and not theoretical reason. Thus, the natural law comes to fruition differently in different cultures, and there will be different specific expressions, levels of awareness, and applications—better known in postmodernity as pluralism.

This, of course, is not to say that there is no division between these two philosophers. There is a clear separation on the theoretical underpinning of each account. Nussbaum’s theory purposefully does not rely on any metaphysical backing. The Capabilities Approach itself has been influenced by many ethical doctrines; Stoicism and Aristotelianism to name just a few. These influences undergird the ideas of equality and dignity that are central to the theory. However, such ethical doctrines are not being putting forward. What is made clear is that the theory is “not a theory of what human nature is”’ and “does not read off norms from innate human nature.”[34] In contrast, Maritain takes for granted that that there is a universal human nature, and insists that the content of human rights is rooted in the ontological element of the natural law. He also gives a further account that relates the human person to God, and thinks that only when “the Gospel has penetrated to the very depth of the human substance, will natural law appear in its flower and its perfection.”[35] And to put a fine point on it, he insists that his “way of justifying the belief in the rights of man and the ideal of freedom, equality, and fraternity is the only one which is solidly based in truth.”[36]

There are other differences as well. Maritain is not offering an account of basic social justice in the same way that Nussbaum is.[37] Also, Maritain’s democratic charter and Nussbaum’s overlapping consensus and political liberalism are not exactly the same. Maritain sees the charter as including the development of civic virtue; whereas, Nussbaum does not make appeal to virtues and values necessary for the political principles and structures of society. Nevertheless, on what is entailed in basic social justice they substantially concur; namely, securing for all citizens a full spectrum of fundamental requirements of human dignity.

Both see it as a task of an individual society if it is to be minimally just, to secure the basic human rights or central capabilities. But this prompts the question, what if a given society is unable to do so? Nussbaum asserts that when governments of poor nations fail to do so, governments of rich nations have obligations to assist the poorer governments in “giving people what they are entitled to have, by virtue of their humanity.”[38] She posits that we need “an institutional solution to global problems” but claims that a world state “is probably a bad idea.”[39] Maritain had in mind a “global common good” and cautioned against a “merely governmental theory” of world order, preferring instead “the universal or integral consideration of the body politic or political society.”[40] How this works out is unclear. Nussbaum rightly insists that further work on the implementation of global justice “remains of the utmost importance for the future.”[41]

Can they be Allies?

Do these differences at the fundamental level mean that the two theories are in fundamental conflict on basic social justice? At this point, this essay hopes that the answer to this question is clearly no. The difference in the theoretical underpinning is anticipated in that both seek practical agreement without theoretical agreement. Maritain may want to put forward more universal claims about human nature, and he surely holds different views about the basis for the fundamental requirements. Nevertheless, he does not think that there will be any easy agreement on these, and is willing to let the theoretical agreement wait in favor of practical agreement on the minimum required for respecting human dignity. Likewise, Nussbaum might not agree with Maritain on the source of natural rights, or on what ultimate good is, but such agreement is unnecessary. What is primary for basic social justice is agreement that certain basic entitlements, whether you call them central capabilities or natural human rights, are necessary for human beings to live human lives and that society should ensure these for all.

In addition, Maritain’s account of ultimate flourishing is allowed for and specifically protected in Nussbaum’s theory. Her sixth central capability, practical reason, includes “protection for liberty of conscience and religious observance.”[42] Further, she claims that a central aim of her theoretical approach is respecting the “diversity of religious and secular doctrines that all modern nations contain.”[43] Therefore, comprehensive doctrines are certainly allowed for, even if no one else has much confidence in these commanding the approval of a wide range of citizens.

Truth to be told, Maritain did not have all that much confidence in theoretical agreement. He makes this quite clear speaking about the practical agreement at the Universal Declaration. Note his words,

If theoretical reconciliation, a truly philosophical synthesis, is desired, this could only come about as a result of a vast amount of probing and purification, which would require higher intuitions, a new systematization, and the radical criticism of a certain number of errors and confuse ideas which for these very reasons, even if it succeeded in exerting an important influence on culture, would remain one doctrine among many, accepted by a number and rejected by the rest, and could not claim to establish in actual fact universal ascendency over men’s minds.[44]

It is that in coming to agreement on the fundamental requirements for human dignity, Maritain sees practical agreement as paramount, and Nussbaum concurs.

Conclusion

This essay began with the presentation of a dilemma for the Catholic intellectual who seeks to appeal to natural law in their efforts to develop a contemporary theory of social justice. The fundamental similarities between Maritain and Nussbaum may open the door for a renewed look at the use of natural law in the discussion of social justice. Natural law need not be employed or understood as a static deduction from timeless truths. Maritain reveals that natural law can be used to open up and place on solid ground what is required for greater flourishing based on what human beings essentially are despite living in a pluralist world. Seeing the similarities between the two, contemporary social philosophers might be led into a different understanding of the natural law as potentially quite beneficial when undertaken as a practical endeavor. Further investigation of the similarities also opens possibilities for renewed and widened discussion of the relationship between natural law and human rights. Again, given the contemporary appeal of Nussbaum, a further exploration of their similarity could revive anew the claim made by many contemporary Catholic philosophers; namely, that the many human rights doctrines asserted today is a perfected version of the natural law doctrine, and that natural law and natural rights are quite compatible.

The practical agreement between the two could provide the beginning for a constructive discussion about what such agreement might imply about human nature, metaphysics, and even God. Granting that agreement about metaphysics is not necessary to arrive at practical agreement, it is still possible that the fact of such agreement can in fact reveal something about metaphysics. It certainly prompts the question: Is there a reason behind this overlap? Has the discussion lead to the acknowledgment that there is something more fundamental?

This conversation would have to involve, as Maritain recognized, “a vast amount of probing and purification,”[45] but it seems reasonable to suggest that the overlap between Maritain and Nussbaum does warrant asking whether this consensus is itself revelatory.

In any case, it should be stressed that regardless of whether or not their similar projects reveal something about the natural law or metaphysics, both authors provide a highly valuable way of proceeding in the contemporary milieu of pluralism; providing a model for all involved in the discussion of social justice today. David Hollenbach explains, agreement about practical ideas such as human rights “does not have to be either because consensus has been achieved on ultimate metaphysical issues or simply because fortuitous circumstances have led to an accidental convergence of incommensurable ways of thinking.”[46] The overlap does not have to be either “accidental” or professedly an “expression of the natural law.” As Nussbaum asserts, people “can start from the intuitive idea of a being who is neither a beast nor a god,” and should be treated accordingly.[47] We can arrive at, in the words of Maritain, “beliefs for guidance in action.”[48] And there is perhaps no greater need than guidance in action for basic social justice. The challenge for individual societies and globally, then, is to determine whether the specific requirements of respect for human dignity, the central capabilities or human rights, are practically reasonable. Maritain thought that they were and Nussbaum still thinks so.

This essay’s intention was not to equate Nussbaum’s theory of social justice with Maritain’s account of human rights. However, the aim of this essay was to show that the two converge on what is entailed in basic social justice. This work has contended that each author offers an account that entails both the establishment of certain fundamental requirements of respect for human beings as they are, and the claim that basic social justice consists in meeting those fundamental requirements for all persons. Further, this project has argued that both authors seek practical political consensus on the minimum fundamental requirements despite the existence of differing theoretical bases, and that Maritain’s own comprehensive doctrine is allowed for in Nussbaum’s account of political liberalism. The fact of these similarities could both foster renewed interest and understanding of natural law and invite further discussion about what such practical agreement might imply about metaphysics. In short, this essay has revealed that natural law is capable of finding a place in an undeniably pluralistic world.

Bibliography