by Ken Niemann

“There is a true law, right reason, agreeable to nature, known to all men, constant and eternal, which calls to duty by its precepts, deters from evil by its prohibition … Nor is there one law at Rome and another at Athens, one thing now and another afterward; but the same law, unchanging and eternal, binds all races of man and all times” -Cicero

Cicero is herewith describing Natural Law. The salient features of Natural Law include self-evident truth, correspondence to a real, theory independent world, immutability, universality, accessibility by all men, and is grounded in reason and human nature. Peter Angeles further describes natural law as a:

“Description of what should be or what ought to be binding on all humans [i.e. universal] discovered by rational examination of human nature and successful human relationships. It’s the moral rules of conduct, the sense of justice and fairness, which humans possess by the pure activity of their reason and which is obligatory independently of, and in spite of, what other forms of law prescribe.”

In other words, it’s a law above the law (i.e. transcendent) which informs us as to whether our laws are true and just. This is a claim that there exists a moral authority independent of and greater than the state, subjugating it to the force of reason and entailing specialness about human nature that ought not be violated. For decades since the founding of our country this was the predominant philosophical view though our nation often failed miserably at holding its ideal. The U.S. Constitution, for example, draws heavily from John Locke’s understanding of natural law, particularly as it speaks of inalienable rights. However, at about the time of the Wilson presidency, a shift away from this position took place. Hadley Arkes remarks that

“…it was evident that the ethics of “social science” was taking hold in American Universities and bringing with it the premises of relativism. There was the distinction, most notably, between ‘facts’ and ‘values’: the insistence that we can have no rational knowledge of right and wrong, as we can of empirical facts… They came, curiously, from German Philosophy. Strauss remarked then, in Natural Right in History (1953), that “this would not be the first time that a nation, defeated on the battlefield…, has deprived of its conquerors of the most sublime fruit of victory by imposing on them the yoke of its own thought.”

Thus the human rights violations that took place in Germany and Russia in the last century did not occur as a blinding flash of violence and thoughtless frenzy. Rather, for decades prior and just like here in the United States currently, the philosophical foundations were put in place such that Hitler, Stalin, Mao, and others were only taking the initial premises of moral relativism to their logical conclusions (despite moral relativism not being inherently logical). The ideas of those such as Nietzsche, Marx, Weber, and the commitment to Philosophical Naturalism by the medical and scientific community in Germany in earlier years made the unthinkable thinkable and even rational if one buys into the (soon to be delineated) initial premises. Regrettably, these ideas of moral relativism were imported by leading American thinkers concomitant with the denial of a natural law. The influence of these ideas persists today in public policy of which public health has a strong representation.

Writing in Social Justice: The Moral Foundations of Public Health and Health Policy, Powers and Faden offer that the “relativist position is that once we concede that there are no universally applicable standards then we must also concede that any social practice, institution, or social structure is as just as any other”. In contrast to Natural Law approaches, relativism is non-cognitivist. That is, it holds that questions about morality cannot be answered as true or false; there is no moral knowledge. For example, the statement “It is wrong to torture babies for the fun of it” holds no real truth or falsity. It denies the moral realism which holds that moral statements can make objective truth claims about the real world “out there”. What follows is that there are no Human Rights, no Human Dignity, no Human Nature, and nothing true about the way human beings ought to be treated. Rephrased by Arkes:

“In the understanding of the postmodernists, there is no objective “nature” of human beings, and no settled moral truths that arise from that nature: What we call “human nature” is “socially constructed” from one place to another according to the vagaries of the local culture.”

Thus, in their view, ontological distinctions in human nature are blurred and, with that, so are the (now arbitrary) rights that arise out them. Rights become a value judgment with no truth or falsity, rights become preferences. We are thus left with a morally ungrounded Volksgeist of the same hue that gave us the holocaust. This is highly problematic for those concerned about paternalism, true justice, and underscores just how important Bioethics is to Public Health Ethics. There exists no moral protection from the state in the absence of Natural Law, no hedge against limitless paternalism & exploitation and no justified limits to violations of autonomy. Flowing from this is the doctrine of legal positivism which is regarded by Shestack as the “most serious attack on natural law”. He describes legal positivism as a view which denies

“an ‘a priori source of rights and assume[s] that all authority flows from what the state and officials have prescribed…By divorcing a legal system from the ethical and moral foundations of society, positive law encourages the belief that the law must be obeyed, no matter how immoral it may be, or however it disregards the world of the individual.”

Legal positivism was actually put forth as defense at the Nuremberg trials- defending Nazi atrocities as impervious to external, international judgment.

Moral relativists level several criticisms against Natural Law. For one, they frequently offer that we need to be tolerant of other cultures or even subcultures and accept differences in moral preferences. People, cultures, societies, etc. do disagree on moral values, the relativist might argue, and therefore, how could it be the case that Natural Law applies to all? We cannot have a universal law if it’s not universally agreed upon. Further, Natural Law is too foundationalist in its approach.

However, tolerance is a moral value in itself, presumably even a universal, transcultural moral value that may, in turn, be used to criticize some cultures for not being so. What the relativist is asking us to believe is either that the two statements “tolerance is a virtue” and “tolerance is not a virtue” are both true and false depending on what culture one resides or that both statements are devoid of meaning and intellectual content. Neither position is compelling. Put more simply, “no intolerance allowed” is intolerant of intolerance and itself making a moral judgment. If the virtue of tolerance only applies to, say, Americans and not Germans, it forces the question “What is the moral difference between an American and a German?” Geography and culture seem irrelevant compared to a commonly shared human nature.

Further, it is a non-sequitor that just because people disagree one cannot be right or more right than another. After all, people certainly disagree in their views about moral relativism. It is by no means universally agreed upon. The paternalist certainly seems comfortable legislating in the absence of consensus. Relatedly, the very idea of justice becomes nonsense if there is no real standard that was violated other than what has been arbitrarily (in the end analysis) decided by a given culture.

Finally, foundationalism means that there are ideas so fundamental to intelligibility that they are undeniable and do not need to be proven. An example would be Logic. Logic does not need to be proven because if it is not assumed up front no intelligible dialogue can take place. For example, if we deny the law of non-contradiction then moral relativism would be both true and not true. The law of non-contradiction cannot and need not be proven. Moral foundationalism exists in the same way. If some moral principles or laws are not assumed ‘a priori (i.e. humans have inherent value), then no meaningful moral discussion can even take place. This understanding also rescues us from an infinite regress of proofs.

How is all this important to Public Health Ethics? The salient point is that the state is not the highest moral authority. The ethical state must recognize that individuals are entering into a social contract with the state as equals and with a set of natural rights which include intrinsic value and self-determination or as Locke entrusted “life, liberty, and property”.

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