{"id":4659,"date":"2020-07-29T19:43:02","date_gmt":"2020-07-29T19:43:02","guid":{"rendered":"https:\/\/thejosias.net\/?p=4659"},"modified":"2020-07-29T19:57:17","modified_gmt":"2020-07-29T19:57:17","slug":"the-new-natural-law-theory-as-the-source-of-bostocks-error","status":"publish","type":"post","link":"https:\/\/thejosias.net\/2020\/07\/29\/the-new-natural-law-theory-as-the-source-of-bostocks-error\/","title":{"rendered":"The New Natural Law Theory as the Source of Bostock\u2019s Error"},"content":{"rendered":"\n

by James Berquist<\/strong><\/p>\n\n\n\n

\n\n\n\n

Bostock vs. Clayton<\/em>: The Arguments of Gorsuch and Alito in Brief<\/h3>\n\n\n\n

If you have ever wondered what practical significance the understanding or misunderstanding of the natural law presented by the New Natural Law (NNL) theorists might have in public life, look no farther than the strange arguments presented in the majority\u2019s opinion in Bostock vs Clayton<\/em>.<\/p>\n\n\n\n

Neil Gorsuch, a student of John Finnis (a founder and chief proponent of NNL theory), argues the following:<\/p>\n\n\n\n\n\n\n\n

If the employer intentionally relies in part on an individual employee\u2019s sex when deciding to discharge the employee\u2014put differently, if changing the employee\u2019s sex would have yielded a different choice by the employer\u2014a statutory violation has occurred\u2026 An individual\u2019s homosexuality or transgender status is not relevant to employment decisions. That\u2019s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.[1]<\/a>
\u2026 Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer\u2019s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee\u2019s sex, and the affected employee\u2019s sex is a but-for cause of his discharge.[2]<\/a><\/p><\/blockquote>\n\n\n\n

He completes his argument by means of another example:<\/p>\n\n\n\n

A model employee arrives and introduces a manager to Susan, the employee\u2019s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer\u2019s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual\u2019s sex.[3]<\/a><\/p><\/blockquote>\n\n\n\n

So, to sum it up: to discriminate on the basis of sexual orientation necessitates that one discriminate on the basis of sex, because if\u2014in a thought experiment\u2014the same inclination were present while the sex of the employee were changed, then the reason for discrimination would appear or disappear, respectively. Robert loves Susan (and openly lives in accordance with that inclination), and the employer is fine with that, but if Robert were actually Roberta, then the employer would fire her. It is all about the sex of \u2018Robert(a).\u2019<\/p>\n\n\n\n

Alito is more than surprised at this line of argumentation and, in particular, the last example cited:<\/p>\n\n\n\n

This example disproves the Court\u2019s argument because it is perfectly clear that the employer\u2019s motivation in firing the female employee had nothing to do with that employee\u2019s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex against her, rated her a \u201cmodel employee.\u201d At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge.[4]<\/a><\/p><\/blockquote>\n\n\n\n

Yes, but Gorsuch would say that while the information was new, it was only relevant because <\/em>of the sex of the employee. So, Gorsuch would say, it all comes down to the sex, and is therefore in violation of Title VII.<\/p>\n\n\n\n

The key question, as both Alito and Gorsuch understand it, is what motivates <\/em>the firing of the employee. Alito says it is the sexual orientation that motivates the firing, Gorsuch says that it is the sex plus <\/em>the orientation that so motivates, and all that is needed (to be in violation of Title VII) is a \u201cbut-for\u201d condition. Even while the employer focuses on the same sex orientation, the fact remains that if the sex of the employee had been different, so also would the employer\u2019s attitude.<\/p>\n\n\n\n

Alito backs up his explanation with the following argument:<\/p>\n\n\n\n

The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement.[5]<\/a><\/p><\/blockquote>\n\n\n\n

So, Alito is saying, the difference between a man attracted to women (erotically, and acting from that attraction) and a woman so oriented is not simply that one is a man and the other a woman, but rather that one is erotically inclined to members of the same sex, and the other is erotically inclined to members of the opposite sex. Gorsuch, Alito is implying, is treating the \u2018erotic inclination to women\u2019 as if it is predicated univocally of both men and women, but it is not. Thus, the motivation is not about the sex, it is about the different kinds of erotic orientation.<\/p>\n\n\n\n

Alito\u2019s charge is absolutely correct. It would be helpful, however, to explain more clearly why <\/em>one cannot predicate the particular orientation univocally of men and women. Gorsuch\u2019s mistake, which is absolutely typical of the NNL theorists in general and Finnis in particular, is that he attends to reality as if things existed in reality in the same way they exist in thought. In our thoughts, we can abstract and separate things that cannot be separated in reality. The NNL theorists and, again, Finnis in particular tend to treat of things separated in thought as if they could be separated in reality. This can be a danger in speculative understanding, to be sure, but it is deadly in questions of motivation, action, and practical reasoning in general. For we can separate good things in thought and then treat of their goodness or desirability as if they could also be parceled out, as it were, according to the separations or abstractions in our mind.<\/p>\n\n\n\n

This must be further explicated. I do so by analyzing Gorsuch\u2019s particular error, and then showing the same kind of error in the principles of the NNL theory, and Finnis\u2019 work on fundamental human goods specifically. Finally, I show the danger to any judicial theory subject to these errors.<\/p>\n\n\n\n

Gorsuch\u2019s Particular Error Examined<\/h3>\n\n\n\n

Let me give an example parallel to Gorsuch\u2019s \u201cfateful party\u201d example. Let us suppose that Robert invites his boss to his home for a party and introduces his boss to his \u2018spouse,\u2019 x. Is x male or female? The fate of Robert depends upon the answer. To use Gorsuch\u2019s mode of interpretation, this means that the action of the employer\u2014and thus the motivation of the employer\u2014will spring from the sex of the spouse. If \u2018x\u2019 is Susan, the employer will be fine and happy. If \u2018x\u2019 turns out to be Charles, the employer will be motivated to fire Robert. Thus, but for the sex of x, Robert would be fine. It seems that the motivation for firing depends upon sex, specifically the sex of the spouse.[6]<\/a><\/p>\n\n\n\n

I don\u2019t offer this example facetiously, or to score any cheap points. I am sure Gorsuch\u2019s response would be that the sex of Robert was just as informative of the situation. But in reframing the example slightly, I am pointing out the kind of argumentation that Gorsuch is employing. He is saying that the motivation of the action on the part of the employer comes down to the information that leads to the understanding of the situation. The employer learns of the orientation of his employee by understanding the sex of his employee plus coming to know the sex of his employee\u2019s \u2018spouse.\u2019<\/p>\n\n\n\n

This is true as stated, but the point in question is not what information leads to an understanding of the whole situation, but rather what is the reality of the situation, and in particular what is the reality of the love<\/em> that is being talked about. I may say that I do not understand that a person is living a homosexual lifestyle until I see that he is erotically inclined and acting upon that inclination to individual men. I thus see that <\/em>he is homosexual when I consider his sex plus his erotic inclination and action upon this inclination to other men. But at that moment, my understanding of \u2018attracted to men\u2019 is differently said of this situation than it would be in the case of a woman \u2018attracted to men.\u2019 And that is because I hold that erotic love is only naturally ordered when it is between men and women. Thus, while my understanding of the reality comes from the putting together of terms in the way Gorsuch sets out, my understanding of the terms themselves changes as they come together. I cannot predicate\/say \u2018attracted to men\u2019 in the same way of men and women unless I am merely attending to the reality according to the abstraction and separation in my mind. Thus, the employer really can be motivated by the orientation as opposed to the sex, to complete Alito\u2019s argument because it is not important whether the employee is a man or woman; what matters to the employer is the reality of erotic love, and he wants his employees to live in accordance with that reality.<\/p>\n\n\n\n

Gorsuch is doing something the NNL theorists do consistently (if usually more broadly) and especially in their accounts of the principles of human agency. He is analyzing a situation abstracted from concrete reality, separating terms, and then saying that the agent is motivated according to this abstraction and separation of terms. Gorsuch thus considers a situation wherein a man is attracted to men (in the relevant ways) and separates the terms \u201cman\u201d and \u201cattracted to men\u201d as if the understanding of what it means to be \u2018attracted to men\u2019 is something that can be understood so abstracted and applied univocally in reality. But \u2018attracted to men\u2019 does not exist in a vacuum; it only exists in this or that individual, or you can say it exists in the mind of one considering it abstractly. However, the point is that it does not exist in reality in the same way that it exists in the mind. In the latter, it is predicable of either men or women, and thus it exists in the mind abstracted from proper or improper orientation. By itself, it indicates neither. That is why <\/em>it can be said of both. But it exists in men (and in this <\/em>man) as an improper orientation\u2014i.e. not in accordance with nature, and in women (and in this <\/em>woman) as a proper orientation\u2014i.e. in accordance with nature. It is therefore the inclination as it exists in the subject<\/em> that is pertinent. The employer is concerned not about the sex, but the proper <\/em>or improper <\/em>orientation of the individual employee regardless of sex.<\/p>\n\n\n\n

To get technical,[7]<\/a> this is why logic and metaphysics (and also natural philosophy) are not the same science\u2014in the scholastic sense\u2014and why logic is an art rather than a science. Logic concerns the existence things have in the mind and the production of intentions, statements, and syllogisms, while metaphysics considers being as such <\/em>(and natural philosophy considers natural <\/em>being specifically). For the logical intentions exist in the mind and we incline to the reality through logical intentions. And thus while we use them in every science, we must recognize when we are considering the reality in itself, or considering it according to the logical abstraction through which we incline to the actual subject. It is not bad to do the latter as we do it of necessity as the above examples indicate, but we must not confuse the abstraction\u2019s existence with the reality\u2019s existence, or the kind of predication that works univocally in <\/em>abstraction with the analogical or equivocal predication that obtains in reality. This is the case in both speculative and practical matters, but perhaps there is a special urgencyin practical matters where what is important to the agent is what his action is about in reality<\/em>.<\/p>\n\n\n\n

Gorsuch\u2019s argument is practical (in kind) inasmuch as he is talking about the way reason shapes action. Again, he argues that because <\/em>the employer would act differently based upon whether or not the employee is a man or woman who lives out an erotic attraction to women or a man, therefore the reason <\/em>for the employer\u2019s action in part comes down to sex. But this is to claim that action <\/em>is rooted not in being as it is in things, but rather as it is in the<\/em> mind<\/em>. While it is true to say that we cannot desire what we do not know, and to this extent it must be in our mind, it is foolish to say we want things according to the existence they have in the mind. When we incline to a thing, we want it, <\/em>not the thought of it. When we make something (and this the NNL is better about), we want the being of the thing in reality and not merely in our mind. But the being that we want (or don\u2019t want) is always the existence outside of the mind. As Aristotle and Thomas consistently say, goodness is in things.<\/p>\n\n\n\n

So, to close off this section on Gorsuch\u2019s error, we should emphasize that the employer who is concerned that his workplace respect the natural order, and therefore wishes to prevent any scandal in regards to the true ordination of erotic love, is not concerned with the sex of his employees even in part. He is focused upon the good of the natural law and order regardless of a person\u2019s sex. Whether or not the employee is a man or a woman, the employer simply requires the same reality be respected.<\/p>\n\n\n\n

John Finnis and the (lack of a) hierarchy of goods<\/h3>\n\n\n\n

In the next section, I detail the general version of Gorsuch\u2019s error that permeates the most basic principle of the NNL theory. To do so, let\u2019s first examine an identical mode of argumentation and confusion in John Finnis\u2019s work. In his influential book, Natural Law and Natural Rights<\/em>, John Finnis argues that there is not an intrinsic hierarchy amongst the basic or fundamental goods of human life.<\/p>\n\n\n\n

To understand his position adequately, we should first explain what is meant by \u201cbasic\u201d or \u201cfundamental human goods\u201d in NNL theory. Inasmuch as something can be listed as desirable for its own sake such that one need not reference anything further in order to explain its desirability, that something is called a basic or fundamental human good. Christopher Tollefsen gives a nice summary of the basic goods position of the NNL theorists:<\/p>\n\n\n\n

\u2026 practical reason, that is, reason oriented towards action, grasps as self-evidently desirable a number of basic goods. These goods, which are described as constitutive aspects of genuine human flourishing, include life and health; knowledge and aesthetic experience; skilled work and play; friendship; marriage; harmony with God, and harmony among a person\u2019s judgments, choices, feelings, and behavior. As grasped by practical reason, the basic goods give foundational reasons for action to human agents. Moreover, they are recognized as good for all human agents; it is equally intelligible to act for the sake of the life of another as for one\u2019s own life.[8]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

The actual list of goods has been something the NNL theorists have gone back and forth on, but they remain consistent in claiming that the basic goods are those that can be reasons for action all by themselves. Anything that is desirable for its own sake (such that one need look no further for a reason for action) is a basic good or the instantiation of one.<\/p>\n\n\n\n

John Finnis argues, in line with the rest of the NNL theorists, that these goods have no intrinsic <\/em>order amongst themselves, since they can all be \u2018good for their own sakes.\u2019 And here is how Finnis defends the position in a critical passage in Natural Law and Natural Rights<\/em>:<\/p>\n\n\n\n

If one focuses on the value of speculative truth, it can reasonably be regarded as more important than anything; knowledge can be regarded as the most important thing to acquire; life can be regarded as merely a precondition, of lesser or no intrinsic value; play can be regarded as frivolous; one\u2019s concern about \u2018religious\u2019 questions can seem just an aspect of the struggle against error, superstition, and ignorance; friendship can seem worth forgoing, or be found exclusively in sharing and enhancing knowledge; and so on. But one can shift one\u2019s focus. If one is drowning, or, again, if one is thinking about one\u2019s child who died soon after birth, one is inclined to shift one\u2019s focus to the value of life simply as such. The life will not be regarded as a mere precondition of anything else; rather, play and knowledge and religion will seem secondary, even rather optional extras. But one can shift one\u2019s focus, in this way, one-by-one right round the circle of basic values that constitute the horizon of our opportunities.[9]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

It all depends on what one focuses on in the moment or a given set of circumstances. Each basic good can be seen to be more important than the others, or perhaps one set over another. To present a parallel example, if one witnesses another person drowning, in that moment, the goodness of life will seem more important than the goodness of knowledge. But in a moment of persecution, one might recognize that one should be willing to stand up for the worth and goodness of truth even if it means risking or losing one\u2019s life.<\/p>\n\n\n\n

But this mode of argumentation\u2014while presenting the truth in part\u2014is exactly <\/em>like Gorsuch\u2019s insofar as he tries to make a conclusion about the order of goodness by an analysis according to the existence things have in the mind. His example\u2014where one\u2019s analysis of the situation rests upon certain concepts separated from others in thought (health and the further perfection of truth)\u2014shows that one thinks about the situation through these concepts, and then concludes that in the given situation under consideration, one\u2019s desire and motivation for action is in accordance with that separation. In the struggle for life that occurs when one is drowning, one aims at the goodness of life, and probably doesn\u2019t even think about the goodness of knowledge in any explicit way. Yet, if I take a step back, is it not evident that even the drowning man desires life and health for what it is in reality<\/em> and not according to the kinds of separation that occur in his mind? He may not attend to the fact that being alive and healthy makes him able to pursue the truth (or any number of other goods\u2014indeed, all of them!) but what he wants in reality is <\/em>a condition for the pursuit of these other more perfect goods, for that is what life is<\/em>. If we recognize, as we should, that man is ordered to the contemplation (knowledge and love) of the supreme truths\u2014for it is man\u2019s intellect and rational will that distinguishes him from all other creatures in the visible world\u2014then we see that life and health are ordered to the knowledge and love of truth. There is an order in reality<\/em>, and we desire goods according to that reality.<\/p>\n\n\n\n

Whatever Finnis makes of Gorsuch\u2019s argument (and I suspect that NNL theorists could still object to Gorsuch\u2019s argument on other grounds, such as claiming that this sort of ruling violates the human ordination to all the basic goods\u2014especially to the good of marriage\u2014and also the genuine political harmony required for pursuing the basic goods), it is evident that Gorsuch is falling prey to the same kind of confusion found in the Finnis example.<\/p>\n\n\n\n

The broader confusion in NNL principles<\/h3>\n\n\n\n

To be clear, the problem here is not what I will call the \u2018logical analysis\u2019 of the situation. Our actions are rooted in such analysis inasmuch as we come to know the situation in light of these separations in thought. This is what makes the NNL approach potentially more dangerous than most errors; it is so close to the truth in a certain respect. For it is true that in a moment of decision the agent will categorize and compare his options through such separations in thought. If I am thinking about eating some ice cream, I will likely in some respect weigh the good of health over against the good of sweetness and pleasure, etc. In that moment, the desirability of health can be considered apart, as Finnis says, from the goodness of knowledge or marriage or harmony amongst my inner passions, etc. But none of this analysis actually explains the motives of action, for it does not address the kind <\/em>of desire. I may desire health itself for all sorts of reasons, or at least three, finally.[10]<\/a> I may desire it because it is useful for many other activities, as Finnis first intimates. Or I may desire it because it is pleasurable (for instance, when one feels ill and in pain, the desire for health may be mostly about a desire to be free from pain). Or, I may recognize that my life according to my nature\u2014and thus also all human life\u2014and all other life in its own measure is a share in the divine, as Aristotle puts it,[11]<\/a> and thus something to be loved for its own sake. The point is that the kinds <\/em>of desire are not identical with distinctions in the kinds <\/em>of things. We desire many things and can desire them for diverse reasons. The basic goods are rooted in a division of things<\/em>, but diverse motivations for action are finally explained according to a proper division of goods<\/em> as such.<\/p>\n\n\n\n

As one becomes more familiar with the NNL theory, there is a kind of irony here. For the NNL theory is predicated upon the division between the speculative order (knowledge for its own sake) and the practical order (knowledge ordered to action).[12]<\/a> From the beginning, the key NNL point has been that the practical order has its own first principles that are parallel to the speculative first principles and totally underived.[13]<\/a> One does not act except insofar as something is seen to be good<\/em>. We only move toward something insofar as we are focusing upon its goodness. Thus, they argue continually, and with some real truth, that a good explanation of action must remain in the realm of practical truths which are all about the good<\/em> that moves desire. And yet, the kind of analysis we see above is not in the practical realm, for it abstracts from an account of goodness as such. I do not incline to health according to the separation made in my mind, or knowledge cut off from life. To desire the truth presupposes <\/em>the goodness of life. Even when I think it worth sacrificing my life for the truth, I am desiring in my final acts to adequate my mind to the reality, and that adequation presupposes my life. Desire does not follow the separations in thought and get cut off from what\u2014in reality\u2014is not separate.<\/p>\n\n\n\n

And this allows us to see the broader error in the principles of the NNL theory. Consider its beginning. The NNL began as an interpretation of Aquinas\u2019 article on natural law in the middle of his discourse on law in the Summa Theologiae<\/em>.[14]<\/a> The first precept of the natural law, which is also the first principle of all practical reasoning, is that good is to be done and pursued<\/em>, and evil shunned<\/em>.[15]<\/a> This good is the end<\/em> or goal <\/em>of action inasmuch as in practical things the end or goal is the principle of action and thus reasoning about action.<\/p>\n\n\n\n

Here is how Grisez interprets this in his foundational article. He holds that the first precept directs man to his ultimate end\u2014which Thomas is absolutely clear about\u2014but argues that this end is nothing definite:<\/p>\n\n\n\n

The will necessarily tends to a single ultimate end, but it does not necessarily tend to any definite good as an ultimate end. We may say that the will naturally desires happiness, but this is simply to say that man cannot but desire the attainment of that good, whatever it may be, for which he is acting as an ultimate end. The desire for happiness is simply the first principle of practical reason directing human action from within the will informed by reason. Because the specific last end is not determined for him by nature, man is able to make the basic commitment which orients his entire life. The human will naturally is nondetermined precisely to the extent that the precept that good be pursued transcends reason’s direction to any of the particular goods that are possible objectives of human action.[16]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

In other words, Grisez is making the same general sort of error we saw in Gorsuch and Finnis. The beginning of practical reasoning, he is arguing, is not goodness as it is in reality, but rather a non-determined \u2018goodness,\u2019 a logical concept of goodness that is open to all kinds of goods precisely because it is in fact none of them. There is a separation in thought, a separation that allows for universal predication, so that the principle of action is in things insofar as \u2018good\u2019 is predicable<\/em> of them. Gone is the notion that the principle of action is the source <\/em>of all goods, God Himself.[17]<\/a> The NNL bases action on the conceptual <\/em>good rather than the final cause<\/em>. The good that grounds action is the good abstracted.<\/p>\n\n\n\n

Aquinas explicitly rejects this notion of the end when he talks about how the final cause of any law is the common good. When considering the objection that law must order particular actions, Aquinas responds:<\/p>\n\n\n\n

Operations indeed pertain to particular matters: but those particulars are referable to the common good, not as to a common genus or species, but as to a common final cause, according as the common good is said to be a common end.[18]<\/a><\/p><\/blockquote>\n\n\n\n

Aquinas sees that actions are not ordered to generic <\/em>good, but the actual common good. Action is all about ordering our lives to the ultimate final cause. For a rational creature, this must be, finally, God Himself.[19]<\/a> Grisez thinks of the good of the first precept as a mere generic orientation, not as the actual good itself. For him the ultimate end must be something constructed and based upon a vague orientation. For the NNL theorists, goodness is in the mind, not in things. Not because they think anything so silly as that we want things merely to exist in the mind, but rather because the desirability that motivates action follows the rational operations rather than preceding them.<\/p>\n\n\n\n

One can see in all this the NNL\u2019s need for the basic goods, since the \u2018good\u2019 of the first precept is insubstantial. And in the spelling out of these goods, we see the same general, logical error brought to fruition in the notion that there is no longer an intrinsic hierarchy of goods because all analysis of action and goodness comes down to the predictability that is rooted in the abstract separation of \u2018good.\u2019 Actions and things that are in reality ordered to one another are no longer so ordered, because their goodness is considered according to a separation in thought that allows for universal predication precisely because it refrains from precision.<\/p>\n\n\n\n

In sum<\/h3>\n\n\n\n

This kind of error is by no means unique to the NNL theorists.[20]<\/a> And, indeed, because the NNL theory is rightly grounded in the absolute importance of truth, its supporters avoid many erroneous conclusions about human life. Grisez for instance saw the problematic character of contraception before it was clearly understood by many.[21]<\/a> And in general, because they are so focused upon the logical analysis, the NNL theorists do an admirable job, often, of breaking a situation down into its parts.[22]<\/a> But they never explain the actual agency of the agent, for they do not consider goodness as such<\/em>. Rather they remain in the realm of \u2018things that can be called good.\u2019<\/p>\n\n\n\n

But while I suspect that most of the NNL theorists themselves would find ways to avoid the conclusions of Gorsuch, we see in his opinion the same fundamental error of logical analysis. It\u2019s a perfect example of how this kind of reasoning\u2014which orders desire and motivation according to the separation of concepts in the mind as opposed to the reality being analyzed by such separations\u2014leads to absurdities in practical application. One loses sight of the real.<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> See p. 9 of the majority opinion. This \u2013 along with the dissents of Alito and Kavanaugh \u2013 can be found at  https:\/\/www.supremecourt.gov\/opinions\/19pdf\/17-1618_hfci.pdf<\/a><\/p>\n\n\n\n

[2]<\/a> See pp. 9-10 of the majority opinion.<\/p>\n\n\n\n

[3]<\/a> See p. 11 of the majority opinion.<\/p>\n\n\n\n

[4]<\/a> See pp. 11-12 of Alito\u2019s dissent \u2013 found in the same pdf file linked to in footnote 1.<\/p>\n\n\n\n

[5]<\/a> 14-15 of Alito\u2019s dissent.<\/p>\n\n\n\n

[6]<\/a> One could push the original example further in other directions, though. For example, as pointed out to me by Richard Berquist, could not one make the same kind of argument that Gorsuch suggests with reference to a man (not a transgender man, to be clear) being \u2018discriminated\u2019 against because of his sex when he isn\u2019t allowed into a women\u2019s locker room? I presume Gorsuch would distinguish the examples, but one would have to say by the same line of reasoning that he presents in the majority opinion that the sex of the man is a \u2018but-for\u2019 condition. Take the same example and change the sex of the individual, and no one has a problem.<\/p>\n\n\n\n

[7]<\/a> To see a more technical account of the sort of distinctions that Gorsuch and the NNL theorists tend to miss, see Aristotle\u2019s distinction between the subject genus and the predicate genus in his Metaphysics<\/em> (Book 5, 1024b 1-20) as well as Aquinas\u2019 commentary on these passages (Sententia Libri Metaphysicae<\/em>, Lib. 5, lect. 22, no. 6-9 (Marietti). Also, in the de Ente et Essentia<\/em>, Chapter 3 (Leonine ed., vol. XLIII, pp. 374-375) Aquinas details the way essence is in the logical intentions, and thus also the ways in which a logical definition is helpful but not sufficient for science. The logical intentions always treat according to a certain level of imprecision, and this why they can be predicated univocally, because the differences between things are explicitly left out. Gorsuch is bringing logical intentionality to a fight over the nature of things, you might say. (Note: you can find a nice online transcription of Aquinas\u2019 commentary using the Marietti text as a basis here<\/a> (and an English translation here<\/a>), and a nice Latin and English version of the de Ente <\/em>here<\/a>, though you should look at numbers 50-64 inasmuch as the chapters do not line up with the Leonine edition.)<\/p>\n\n\n\n

[8]<\/a> Christopher Tollefsen, “The New Natural Law Theory,” Lyceum <\/em>X, no. 1 (Fall 2008): 2.<\/p>\n\n\n\n

[9]<\/a> John Finnis, Natural Law and Natural Rights<\/em> (Oxford: Oxford University Press, 2011), 92-93.<\/p>\n\n\n\n

[10]<\/a> The useful, the pleasant, and the honest<\/em>\/honorable<\/em> good. See Aquinas\u2019 Summa Theologiae <\/em>(henceforth ST<\/em>), I, Q. 5, A. 6, c<\/a>.<\/p>\n\n\n\n

[11]<\/a> See in particular his De Anima<\/em>, Book II, Chapter 4 (415a26-415b2) where Aristotle reflects that the preservation of the individual and the species is the way in which each material life inclines towards the divine, since it is that share in immortality and life that is possible to the material being\u2019s activity. Rational beings have a higher participation, as one sees in the Nicomachean Ethics<\/em>,Book, X, Chapter 7, (1177b26-1178a9) and the Eudamian Ethics<\/em>, Book 8, Chapter 3 (1249a22-1249b25) in particular.<\/p>\n\n\n\n

[12]<\/a> For an introduction to this notion, one could look directly to ST<\/em>, I-II, Q. 94, A. 2, c. But I suspect a more worthwhile introduction could be found in ST, <\/em>I, Q. 79, A. 11, which, along with much more (such as I-II, Q. 3, A. 5), Aquinas expects the reader to have under his belt, so to speak. Practical reason is reason ordered to action<\/em>, and thus practical truths are truths that are or can be the basis of the reasoning that goes into setting one\u2019s course.<\/p>\n\n\n\n

[13]<\/a> Again, see Tollefsen (“The New Natural Law Theory,” 2-3) for an excellent summary of this point.<\/p>\n\n\n\n

[14]<\/a> ST<\/em>, I-II, Q. 94, A.2, c.<\/p>\n\n\n\n

[15]<\/a> \u201cHoc est ergo primum praeceptum legis, quod bonum est faciendum et prosequendum, et malum vitandum.\u201d<\/p>\n\n\n\n

[16]<\/a> Grisez, \u201cFirst Principle of Practical Reason,\u201d 199-200.<\/p>\n\n\n\n

[17]<\/a> See, for example, Questiones Disputatae<\/em> de Veritate<\/em>, 22, 2, c. (Leonine ed., v. 22, 617, 54-71). God is sought in every action implicitly because just as he is the first efficient cause that grounds all other causes, so is he the last end that grounds all other ends.<\/p>\n\n\n\n

[18]<\/a> I-IIae, Q. 90, A. 2, ad 2. \u201c\u2026operationes quidem sunt in particularibus, sed illa particularia referri possunt ad bonum commune, non quidem communitate generis vel speciei, sed communitate causae finalis, secundum quod bonum commune dicitur finis communis.\u201d<\/p>\n\n\n\n

[19]<\/a> See ST, <\/em>I-II, Q. 3, A. 8, c. in particular.<\/p>\n\n\n\n

[20]<\/a> Perhaps the single best illustration of this error is seen in the Epicureans and the Utilitarians. They confuse the pleasurable and the honest good throughout all their treatises. They implicitly see that both are delightful, but are then unable to see that there is a fundamental difference in each case with respect to where <\/em>the will rests. They thus confuse the motive of action with the predication that can be common even though in reality there is a fundamental difference of motivation.<\/p>\n\n\n\n

[21]<\/a> See his comments to Fr. Ford<\/a> (who was on the commission set up by John the XXIII and continued by Paul the VI before Humanae Vitae<\/em>). In particular, note his first set of responses<\/a>.<\/p>\n\n\n\n

[22]<\/a> Robert George, In Defense of the Natural Law<\/em>, (Oxford: Oxford University Press, 1999), 46-48.<\/p>\n","protected":false},"excerpt":{"rendered":"

by James Berquist Bostock vs. Clayton: The Arguments of Gorsuch and Alito in Brief If you have ever wondered what practical significance the understanding or misunderstanding of the natural law presented by the New Natural Law (NNL) theorists might have in public life, look no farther than the strange arguments presented in the majority\u2019s opinion … <\/p>\n

Continue reading “The New Natural Law Theory as the Source of Bostock\u2019s Error”<\/span><\/a><\/p>\n","protected":false},"author":16,"featured_media":4660,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"spay_email":"","jetpack_publicize_message":""},"categories":[3],"tags":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/podcast.thejosias.net\/2018\/Deverell_Walter_Howard_A_Scene_from_As_You_Like_It.jpg?fit=2042%2C1396&ssl=1","jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9yLvQ-1d9","jetpack_likes_enabled":true,"jetpack-related-posts":[{"id":3776,"url":"https:\/\/thejosias.net\/2018\/07\/25\/an-approach-to-natural-law\/","url_meta":{"origin":4659,"position":0},"title":"An Approach to Natural Law","date":"July 25, 2018","format":false,"excerpt":"By Thomas Storck Moral discourse in the United States tends to be difficult and usually fruitless as there is little agreement not only about particular moral precepts, but about the foundations of morality. 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In\u2026","rel":"","context":"In "Blogposts"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4143,"url":"https:\/\/thejosias.net\/2019\/11\/08\/introduction-to-natural-law-jurisprudence-part-2\/","url_meta":{"origin":4659,"position":5},"title":"Introduction to Natural Law Jurisprudence (part 2)","date":"November 8, 2019","format":false,"excerpt":"By Professor Brian M. McCall Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition\u00a0(Notre Dame Press 2018). Part 1 can be found here. THE DEFINITION OF LAW AS A DIALECTIC AMONG REASON, COMMAND, AND CUSTOM Harold Berman once described three modes of jurisprudence: positivist\u2026","rel":"","context":"Similar post","img":{"alt_text":"","src":"https:\/\/i0.wp.com\/podcast.thejosias.net\/2018\/forum1.jpg?fit=1200%2C784&ssl=1&resize=350%2C200","width":350,"height":200},"classes":[]}],"_links":{"self":[{"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/posts\/4659"}],"collection":[{"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/comments?post=4659"}],"version-history":[{"count":5,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/posts\/4659\/revisions"}],"predecessor-version":[{"id":4665,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/posts\/4659\/revisions\/4665"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/media\/4660"}],"wp:attachment":[{"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/media?parent=4659"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/categories?post=4659"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thejosias.net\/wp-json\/wp\/v2\/tags?post=4659"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}