Natural Lawyer Jokes, Part III

‘Give your evidence,’ said the King.

‘Shan’t,’ said the Cook.

—Lewis Carroll, Alice’s Adventures in Wonderland

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Returning to my analysis of Dr Feser’s piece, I’m going to move backward a little from my last post, because the arc of the argument is fairly extended. The first important set of premises begins under the heading General Sexual Ethics, and addresses the new dimension given to human behavior by the fact that, in addition to our animal bodies, we possess rational souls.

Now these latter, higher, rational activities do not merely constitute distinctive goods; they also alter the nature of the lower, animal goods. For example, both a dog and a human being can have a visual perception of a tree. But there is a conceptual element to normal human visual perception that is not present in the dog’s perception. … That perception in our case participates in our rationality makes of it a different and indeed higher sort of good than that of which non-human animals are capable. Other goods we share … with animals similarly participate in our rationality and are radically transformed … Thus, meals have a social and cultural significance that raises them above mere feeding; games have a social import and conceptual content that raises them above the play of which other mammals are capable … Our sexual faculties are no different.1

Illustration of tea ceremony from 17th century Japan

So far, so good (and a valuable rejoinder to most anthropologists, who seem to have carefully trained themselves to be unable to recognize the non-animal reasons people do things). He continues his treatment of the merely animal aspect of sex thus:

Giving pleasure is not the end of sex, not that for the sake of which sex exists in animals. Rather, sexual pleasure has as its own natural end the getting of animals to engage in sexual relations, so that they will procreate. … So, sex in animals exists for the sake of procreation, and sexual pleasure exists for the sake of getting them to indulge in sex, so that they will procreate. And we’re built in such a way that sexual arousal is hard to resist and occurs very frequently, and such that it is very difficult to avoid pregnancies resulting from the indulgence of that arousal. The obvious conclusion is that the natural end of sex is (in part) not just procreation, but procreation in large numbers. … Apart from the Aristotelian jargon, everything said so far could be endorsed by the Darwinian naturalist … whether or not such a naturalist would agree with the moral conclusions natural law theorists would draw from it.2

A plausible assertion. But not, I think, quite so certain as Dr Feser believes. Permit me a brief zoölogical detour.

As I mentioned in my first post of this series, homosexual behavior is well-known in the animal kingdom, and in some species, such as giraffes, is far more prevalent than heterosexual behavior. Bonobos form a particularly interesting case, since (along with chimps3) they are the living primates most closely related to humans: 60% of all sexual activity among bonobos is lesbian, and sexual activity, of whatever kind, is frequently used to defuse tension and reconcile after conflict. Now, the mere existence of homosexual behavior among animals really isn’t a threat to Natural Law Theory; the idea is not that whatever happens is natural, but that there is a pattern built into nature by its Creator, and deviations can be measured from that pattern, not just by man-made convention. But—I may be mistaken, and if so I’m sure a Natural Law theorist or six will emerge from the æther to correct me—the normal test proposed for finding out what’s natural is to look at what effect nature usually brings about. And if, in at least some cases, sex appears to have far more to do with social bonding than with procreation even on a strictly animal level, and that among some of our closest animal relatives—well, it rather sounds like the Natural Law theorist has some mansplaining to do.

If this were SMBC, the alt-text drawing thingy would be a giraffe hooker fluttering her eyelashes.

That said, one of the basic tenets of Catholic Christianity is that we live in a fallen world: i.e., a world that does not wholly fulfill the design of its Maker, not only in being as yet incomplete, but in active distortion and corruption. No Christian, on seeing that something exists, must necessarily approve of it in principle; unlike the pantheist who considers all being a manifestation of divinity, or the Buddhist who considers the world as we know it fundamentally illusory, the Christian insists that imperfection and evil are real, and that they matter. The problem for the Natural Law theorist, then, is to sort out the design that nature (imperfectly) strives for, from the evil that diverts and weakens it, and to set forth a principle by which to do the sorting. But a simple study of what usually happens is not a satisfying technique for such sorting, because you then need another rubric for determining which results count and which don’t. I mean, does the behavior of bonobos demonstrate a legitimately non-procreative purpose of sex even at an animal level, especially given that they so strongly resemble humans, or does that not count? And if not, why not—because most other animals aren’t like that (even if a surprising number are)? Well, which animals count and which don’t, for the purpose of determining what nature usually does? Do bacteria, for whom sex is always non-reproductive?

To at least some degree, Dr Feser recognizes the epistemic4 problem here. In seeking to justify a fully Catholic moral outlook on sex on grounds of Aristotelian-Thomist philosophy, he raises some important distinctions:

Since the natural ends of our sexual capacities are simultaneously procreative and unitive, what is good for human beings vis-à-vis those capacities is to use them only in a way consistent with these ends. … It cannot possibly be good for us to use them in a way contrary to those ends, whether or not an individual person thinks it is … This is true whatever the reason is for someone’s desire to act in a way contrary to nature’s purposes—intellectual error, habituated vice, genetic defect, or whatever—and however strong that desire is. … A clubfoot is still a clubfoot, and thus a defect, even though the person having it is not culpable for this and might not be able to change it. … What has been said so far clearly supports a general commendation of confining sexual activity to marriage and the having of large families, and a general condemnation of fornication, adultery, contraception, homosexual acts, bestiality, masturbation, pornography, and the like. …

But this might still seem to fall short of establishing the absolute moral claims made by Catholic teaching. Consider a devout Mormon couple who have a large family of nine children, but who have occasionally used contraception so as to space their children evenly … It would certainly seem strained and even unjust to accuse them of having a ‘contraceptive mentality’ … insofar as their attitude toward sex is obviously different from those who regard sex as mere recreation and children as an inconvenience to be avoided. … It may also seem to have proved too much. For if it is good for us to pursue the procreative and unitive ends of sex and bad for us to frustrate them, wouldn’t it follow that it is wrong to refrain from marrying if one had the opportunity to do so? [Or that] it is wrong for sterile and aged married couples to have sexual intercourse? … If there is to be an absolute prohibition on contraceptive acts, masturbatory acts, and the like as such, even though there is no such prohibition on merely refraining from sex or on sex between sterile spouses, then there must be something about the nature of the former acts that makes them inherently contrary to the good for us[.]5

To this, modern readers—myself among them—will readily add homosexuality. For even a casual acquaintance with gay culture and people shows that we’re as likely as anybody to want children, and (to some degree) apt to lament the fact that we can’t have biological children with our preferred partner; the prevalence of both adoption and surrogacy suggest how strong the desire can be. In other words, from the point of view of intention alone, plenty of LGBT couples are in exactly the same position as infertile straight couples.

The ‘perverted faculty argument’ into which Dr Feser moves from here seems to be quite well constructed, and when I write about it I may do little more than agree with him. But the epistemic problem of how to evaluate the evidence doesn’t seem soluble to me on the Thomist axiom that Nihil est in intellectu quod prius non fuerit in sensu, ‘Nothing is in the understanding which was not in the senses first.’6 The problem with that is: how the hell do you get a standard for evaluating evidence out of the evidence you’re evaluating? I plan to deal with this problem, as best I can, in my next.

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1Neo-Scholastic Essays, p. 388.

2Ibid., pp. 389-390.

3Chimpanzees (Pan troglodytes) and bonobos (Pan paniscus) are very closely related to each other; evidence obtained by genetic and anatomical studies suggest that the two species only became distinct from each other about a million years ago, and that the latest common ancestor of the two split off from the hominid line (e.g. Homo habilis, Homo erectus, Homo sapiens) only six or seven million years ago. The commonality is close enough that some scientists assert that the Pan and Homo genera should be treated as one, though this is controversial.

4I.e., a problem of epistemology, the branch of thought that studies how we know things—not in the physiological sense of how information is stored in the brain, but in the philosophical sense of how we can have confidence in our premises and the conclusions we draw from them.

5Ibid., pp. 396-398.

6St Thomas Aquinas, De Veritate II.3.xix.