Natural Law Liberalism by Christopher Wolfe
(Cambridge, UK: Cambridge University Press, 2006)
The author of this important volume
writes with the awareness that political
liberals and natural law theorists seem
highly unlikely bedfellows. The former,
tracing their roots to Hobbes, Locke and
Mill, are by nature skeptical of the possibility
of both recognizing and agreeing
on a range of objective human goods. As a
result, the essence of political life for them
is to defend the rights of individuals to pursue
their own ideas of the good. Proponents
of natural law, by contrast, proceed on the
assumption that human beings indeed can
recognize objective human goods and that
these goods constitute a moral fund that
must regulate civil society.
Christopher Wolfe believes that both
positions can be wed to the extent that
this “marriage” is based on shared conviction
and a complementarity of perspective.
While the differences between the
two may breed certain tensions, the marriage
nevertheless holds great promise.
The nature of this wedding, of course, is
not without its difficulties, as the political
narrative of the last 250 years indicates
well. During this period, natural law and
political liberalism appeared to grow distant,
skeptical of one another, and in the
end incompatible. But, Wolfe reminds
us, the two were originally “married” in
the classical liberal political philosophy of
John Locke. It is high time, then, that the
two partners be reconciled, particularly
given the “crisis of liberalism” in our own
dayâa crisis that, in Wolfe’s view, is fundamentally
intellectual and moral in nature.
Unquestionably, liberal democracy
offers people a measure of freedom, fulfillment
and well-being that no other form
of government would appear capable of
producing. At the same time, it is foremost
procedural in character and cannot in and
of itself renew or replenish the character of
its practitioners and beneficiaries. The very
goods that democratic liberalism claims to
fosterâfor example, liberty, equality, and
toleranceâbecome shibboleths at best and
vices at worst when they are emptied of
their moral content. When basic human
goods requisite to civil societyâfor example,
truth, piety, justice, neighbor-love, and
self-sacrificeâare neglected, no form of
government will be sufficient to the task.
Wolfe is acutely aware that for the last
three centuries political liberalism and
natural-law theory have been perceived as
opponents, even enemies. But this perception,
in his view, is rooted in a mistaken
understanding of each by the other. To
facilitate a reunion of the two traditions,
Wolfe contends that both are in need of
moderation. Liberalism must be moderated
in such a way as to be compatible
with “important intellectual and moral
goods,” with “faith and reason,” and with
“the moral virtues that regulate the passions
and promote individual and social
well-being.” At the same time, classical
natural-law theory needs to be “separated
from its original historical, political, and
social context, purified of elements that
are inconsistent with its most important
principles, and adapted to modern circumstances.”
The initial task, as Wolfe sees it, is to
identify key inadequacies of contemporary
liberalism as advanced by its chief theoreticians.
This undertaking constitutes
Part One of the volume. Part Two, then,
is devoted to exploring how political liberalism
and natural law theory intersect
and interact. Such requires a thorough
examination of basic definitions, operating
assumptions, goals and vision, not least
of which is identifying precisely what human
and moral goods are to be pursued and preserved.
Only then can a viable public philosophy
be propounded.
For Wolfe, the inability of liberalism’s
major theorists to establish a plausible
doctrine of public reason and liberal
autonomy should raise serious questions
and cause us to explore alternative explanations.
The lack of plausibility is exemplified in the work of the late John Rawls,
arguably liberalism’s most influential
exponent, as expressed in A Theory of Justice
(1971)1 and Political Liberalism (1992).2
Rawls’s invention was to claim a certain
“neutrality” with regard to basic “comprehensive”
views of polity. However, on
Wolfe’s account, “Rawls was unable to
vindicate this claim.” The reason for this
is that Rawls’s political liberalism excludes
traditional religious and moral views that
qualify as “comprehensive.”
The “first principles” of political liberalism
are thought by Rawls to be constitutive
of our political cultureâamong these,
the freedom and equality of citizens and
fair terms of social cooperation. Justice as
fairness, in Rawlsian thought, embodies a
baseline conception of the good. But how
does society arrive at what is just, particularly
when any number of comprehensive
views might clash in the wider culture?
Rawls’s answer is an appeal to public reason.
Political liberalism assumes the fact of
a pluralism of comprehensive frameworks,
whether they are religious or non-religious,
wherein “reasonable” people cooperate
along the lines of a ” just” society.
Because Rawls has few rivals in shaping
late-twentieth-century political theory,
the weaknesses in his system are worthy
of attention. Supremely problematic, for
Wolfe, is the internal inadequacy of Rawls’s
notion of “public reason.” It matters very
much to Rawls that political liberalism be
“neutral” with respect to the philosophical
question of what society should tolerate,
what behavior should be discouraged, and
why reasonable people should cooperate.
But Rawls refuses to acknowledge the illusory
character of a liberal neutrality.
Wolfe rightly observes that both our definition
of tolerance and the particular form
of tolerance are decisive in the recognition
of political rights and individual autonomy.
According to one notion of tolerance, ideas
should not be suppressed by force. A second
understanding holds that persons have
an inherent right to believe what they
want about the human good. The problem
with the second is that it easily fades into
a subjectivism that undermines the common
good. But political liberalism chafes
under the idea that, according to religious
or moral truths, some things are inherently
“wrong.” What matters, then, is not
whether something is “true or false” or
“right or wrong,” but rather whether members
of society cooperate with one another.
Public reason, according to Rawls, is the
supra-moral agency that permits “reasonable”
people to achieve social cooperation,
whereas comprehensive views only tend to
divide. A further criticism leveled by Wolfe
against Rawls’s political philosophy is that
it is powerless to addressâat both the theoretical
and practical levelâthe “totalitarian
temptation.” How do relatively free societies
evolve into totalitarian regimes, and
what is to prevent this tendency?
Similarly, in Liberal Virtues3 Stephen
Macedo argues that liberalism is constituted
by principles of justice that are
impartial. This requires an environment of
pluralism in which arguments can be publicly
stated, debated, and accepted. Logically,
this means that those arguments cannot
be private, complex, or of a nature that
is rejected by otherwise reasonable people.
And religious belief, because it is viewed
by Macedo as a private phenomenon, is
automatically disqualified from the realm
of “public reason.”
Wolfe finds weaknesses in Macedo’s
argument akin to that of Rawls. Macedo’s
position, which rejects natural-law reasoning,
is unable to proffer an argument against,
say, slavery or abortion. Historically, both
issues have been divisive, and opposition to
both at any given point might be viewed as
a minority position. And on neither issue is
it possibleâlet alone plausibleâto achieve
a “reasonable” middle ground. Macedo’s
assumption that religion is private is equally
problematic for Wolfe, since religion claims
to be both rational and public in its manifestation.
In the end, “liberal public reason”
is not a plausible doctrine. Its assumptions
are philosophically flawed, it measures are
unclear, and its program is susceptible to
partisan manipulation.
Another form of excluding moral
argument from public debate is found in
Amy Gutmann and Dennis Thompson’s
Democracy and Disagreement.4 One of the
requirements for democratic deliberation,
according to Gutmann and Thompson,
is the principle of reciprocity: that is, the
capacity to seek mutually fair terms of
social cooperation. This means, theoretically,
that each citizen must offer reasons
in public argument that are acceptable to
others, which in turn depends on their
commonality and their verifiability. Such,
of course, would exclude claims made by
religious fundamentalists.
But the argument from “reciprocity,”
too, suffers from the illusion of objective
neutrality. Moreover, morality is ultimately
not necessarily empirically verifiable, nor
will it necessarily be shared by most citizens.
Indeed, people can find public justifi-
cation for what they wish rather than what is
right. Wolfe, quite properly, suggests broadening
Gutmann and Thompson’s definition
of reciprocity so that it “asks people to
direct reasonable arguments to their opponentsâ
with reason being defined broadly,
not in Rawlsian termsâand to be willing
to listen and respond to their arguments
with civility.” For Wolfe, the problem with
the Gutmann-Thompson thesis, as with
Rawls and Macedo, is that public argument
can rule “out of order direct appeals
to many people’s deepest moral and religious
convictions in political discourse and
decision making.”
Central to most conceptions of contemporary
liberalism is the notion of autonomy.
The state’s purported “neutrality” is typically
thought to maximize the autonomy
of individual citizens, and hence, their freedom
to choose whatever lifestyle they wish.
Such, therefore, invites a critique of Ronald
Dworkin, whose work in Taking Rights Seriously5
and Sovereign Virtue: The Theory and
Practice of Equality6 exemplifies for Wolfe the
contemporary “purification” of “paternalistic”
aspects of classical political thought.
This unenlightened paternalism, which for
Dworkin must be rejected, manifests itself
in a variety of ways but errs fundamentally
in assuming that some objective standard of
the good life might transcend any circumstances
in which people find themselves.
In Wolfe’s view, Dworkin ultimately errs
in assuming that no transcendent ethical
standards exist whereby human behavior
is to be evaluated. Wolfe is cognizant
of the fact that all people draw the ethical
line between acceptable and unacceptable;
the difference is where that line is drawn. In
the end, the goal of “paternalism” properly
construed, according to Wolfe, is to facilitate
free choice of the good, not merely to constrain
people externally. This, of course, presupposes
that a shared notion of the “common
good” exists.
In this vein, Wolfe believes that Joseph
Raz’s appraisal of “moral paternalism” also
needs comment. What distinguishes Raz
from most liberals is that he does not assert
autonomy as an unqualified good. What Raz
in principle opposes is the idea that, as long
as other people are not directly “harmed”
by an individual’s behavior, government
should coercively restrain personal autonomy.
Not surprisingly, the test-case for
Raz is how society responds to homosexuality.
Raz worries that homosexuals do
not enjoy full “citizenship” when they face
public and private discrimination, resulting
in “homophobic prejudice.”
Here, as Wolfe correctly perceives, two
clarifications are necessary: an alternative
definition of coercion and the rationale
for government’s preserving the common
good. So, for example, a person deprived
of the opportunity to murder has not lost
“autonomy”; nor can coercion be thought
the equivalent of being “manipulated.”
Rather, intention and the common good
must inform a society’s understanding of
“coercive” restraint. Thus, in restricting
homosexual acts via public policy society
gives tangible expression to its commitment
to uphold the well-being of all citizens.
To the extent that Raz is preoccupied
with forms of “bigotry,” Wolfe believes
that his understanding of liberalism “may
be an invitation to a form of liberal tyranny.”
For on Raz’s account, parents and
public schools and civic organizations all
must tolerate homosexuality; to do otherwise
would be “intolerable.” In the end,
Raz’s attempt to delegitimize discrimination
on grounds of sexual orientation,
without recourse to assumptions about the
moral rightness or wrongness of related
acts, is for Wolfe “a failure.”
Having assessed the contours of contemporary
liberalism, Wolfe seeks to broaden
the definition of “liberalism” as “a tradition
of political thought extending over
 centuries.” Liberalism, he maintains, is no
single, seamless political philosophy. Yet,
it is characterized by several defining featuresâ
among these, the notion of human
dignity and equality, political rule by consent,
the protection of rights, limited government,
and the rule of law. These core
values, alas, happen to correspond with the
natural-law and Christian moral tradition.
Following a brief history of the naturallaw
tradition that extends from Aristotelian
thought through Stoicism to Augustinian
and Thomistic thought, Wolfe identifies several core elementsâobjective value,
human nature, the natural order of ends,
and human flourishingâthat inhere in
natural-law thinking. These combine with
the common ground shared with classical
liberalismâhuman dignity, consent, the
centrality of rights, limited government,
and rule of lawâto maintain and fortify
civil society. Where the natural-law tradition
serves as a corrective to contemporary
liberalism is its moral realism (over against
the latter’s optimism), its reversing of the
priority of freedom over truth, its openness
to (rather than rejection of ) revealed religion,
and its concern to protect the family
as a social unit.
But how does “natural law liberalism”
cash out? A useful test-case, in Wolfe’s
view, is its approach to religious liberty,
since it is thought to protect “a broad form
of religious liberty while maintaining a
firm belief in the existence and intelligibility
of religious truth.” Undergirding
Wolfe’s overall thesis is the presupposition
that reason has an important role to play
in claims to divine revelation. Hence, religion
cannot merely be relegated to the private
sphere, for to inquire about the meaning
of life, about human nature, and about
human goods is very much a public matter.
After all, social policy proceeds on certain
assumptions about each of these questions.
What is distinctive about natural-law reasoning
is that it seeks to preserve the common
good, whereby both the individual
and the community are safeguarded.
Ultimately, in Wolfe’s view, “natural
law liberalism” is more respectful of the
social nature of human beings as well as the
importance of the moral ecology affecting
their development. While attendant to
the strengths of liberalismâfor example,
equality and human rightsâit helps alleviates
contemporary liberalism’s problematic
tendencies, which tend to truncate the
intellectual and moral underpinnings of
the very tradition from which it springs.
Doubtless some readers will initially
come to this volume somewhat skeptical
of the “wedding” being proposed by the
author. A fair reading of Wolfe’s argument,
however, should convince the reader not
only of the plausibility of his thesis but of
the necessity of the “marriage.” For if we
assume as our basis, with Wolfe, the classical
liberal political philosophy of Locke rather
than contemporary versions thereof which
have jettisoned the intellectual and moral
underpinnings of the broader tradition that
birthed them, we indeed discover common
ground with the natural-law tradition that
is necessary to safeguard “civil society.”
And in the post-consensus cultural climate
pervading the West, this wedding needs to
occur sooner rather than later.
NOTES
- A Theory of Justice (Cambridge, MA: Harvard University
Press, 1971). - Political Liberalism (New York:
Columbia University Press, 1993). - Liberal Virtues
(Oxford: Clarendon, 1990); cf. also Diversity and Distrust
(Cambridge, MA: Harvard University Press, 2000). - Democracy and Disagreement (Cambridge, MA: Harvard
University Press, 1996). - Taking Rights Seriously
(Cambridge, MA: Harvard University Press, 1977). -
Sovereign Virtue: The Theory and Practice of Equality (Cambridge,
MA: Harvard University Press, 2000).