Given the controversy surrounding David Bentley Hart's article on natural law in last month's issue of First Things (here), I thought for certain that some sort of response to his critics in the next issue would be in order. The controversy even spread to Ethika Politika. We had two responses to Hart's original article: one (mixed but mostly negative) from myself (here) and one (positive) from Thaddeus Kozinski (here).

[caption id="attachment_7311" align="alignright" width="211"]423px-Davidson_Black Davidson Black[/caption]

Yet instead of responding to his critics, this month Hart offers an examination of the work of paleoanthropologist Davidson Black in his article, "Si Fueris Romae." He tells the story of how Black, though he wanted to study evolutionary history through fossils near the Chinese village of Zhoukoudian, spent considerable time studying anatomy in general through cadavers provided by the Chinese criminal justice system instead. However, as the typical means of execution was beheading, the bodies were damaged and placing the right head with the right body was a struggle. This odd story, I argue, serves as a response to Hart's critics, and I contend---regardless of whether it is an intentional response---that Hart tries, unsuccessfully, to "have it both ways" when it comes to natural law.

In response to his predicament (too many bodies, too few heads), Hart records that Black asked whether he could receive fully intact cadavers, to which he received an unexpected reply:

The very next day a consignment of condemned prisoners, in chains and under guard, arrived at the college, accompanied by a letter graciously inviting Black to put them to death in any manner he thought might best suit his purposes.

Hart continues,
It was a generous offer, I think we would all agree; but Black was scandalized all the same. He refused the gift and sent the prisoners back to the police (and to their deaths, of course). Thereafter, he took no further deliveries of convicts, dead or alive, and chose instead to avail himself only of the more irregular supply of corpses he could obtain from the city morgue.

While this story may appear to have nothing to do with his previous, controversial article on natural law, I contend otherwise. The crucial point comes in Hart's evaluation of the above story:
[W]hat made Black recoil from the killing of those prisoners may have been in part some vague superstition regarding the unique legitimacy of properly exercised jurisprudential violence, but it was almost certainly in greater part an intuition inscribed on his soul by a long process of cultural formation, both personal and historical. He was in the moral habit, so to speak, of believing that an individual human life is never wholly devoid of moral significance, no matter what its legal status, and that therefore any violence he might commit against any person would have some sort of determinate consequence for his own moral identity. That intuition—that particular way of understanding the meaning of each human being—is not a universal property of human society; it is a result of a particular cultural and (inevitably) religious tradition.

Now, I would not defend the idea that Black's intuition, as Hart imagines it, ought necessarily be understood as a testimony to a universally accessible moral law. However, this story---while it beautifully illustrates Hart's perspective that what those who affirm natural law reasoning in public discourse presume to be matters of universal morality are, in fact, culturally and religiously conditioned---does not itself prove that what many perceive to be the tenets of such a moral law are, in fact, a pia fraus.

To refresh our memories, Hart wrote the following last month:

It is, after all, simply a fact that many of what we take to be the plain and evident elements of universal morality are in reality artifacts of cultural traditions. Today we generally eschew cannibalism, slavery, polygamy, and wars of conquest because of a millennial process of social evolution, the gradual universalization of certain moral beliefs that entered human experience in the form not of natural intuitions but of historical events. We have come to find a great many practices abhorrent and a great many others commendable not because the former transparently offend against our nature while the latter clearly correspond to it, but because at various moments in human history we found ourselves addressed by uncanny voices that seemed to emanate from outside the totality of the perceptible natural order and its material economies.

One certainly may believe that those voices in fact awakened us to “natural” truths, but only because one’s prior supernatural convictions prompt one to do so. To try then to convince someone who rejects those convictions nevertheless to embrace those truths on purely “natural” grounds can never be much more than an exercise in suasive rhetoric (and perhaps something of a pia fraus).


The story of Black would appear to be a prime example of Hart's point here. But is it?

The problem with Hart is that he makes the logical leap from the particular to the general. Just because some particular cultural mores may be confused for tenets of universal morality, does not mean that all tenets of natural law are, therefore, products of culture, religion in particular. Or, formally speaking, just because some A's are B's, does not mean that all A's are B's---it is a classic non sequitur.

The fact remains that the moral imperatives of "do not murder the innocent," "do not take what belongs to someone else," "do not deceive the trusting," and so on, transcend cultures and religions and consistently resound in the human heart through the conscience. The specific applications of these imperatives may vary, people may through sin suppress them, and people may be otherwise mistaken about them, but that does not render them non-existent or useless.

National_Emblem_of_the_People's_Republic_of_China.svgIronically, Hart concludes his most recent article with a criticism of our relations with China today that depends upon the concept of natural rights, even while claiming such a concept is culturally bound:

Really, though, it is hard to judge [Black] very harshly, given the far more conscious compromise our government and (more broadly and deeply) our culture of insatiable consumption has reached with the current government of the People’s Republic. Decade upon decade, we hear of the arrest, imprisonment, torture, and murder of China’s religious minorities (house-church Christians, Tibetan Buddhist monks, and so on), of the cruel measures taken to enforce the nation’s one-child policy, and of countless other chronic atrocities, but our response consists in little more than a sporadic susurrus of disapproval, just loud enough to flatter ourselves that we have principles but not so loud as to allow those principles to interfere with fiscal or trade policy. We try to shame the ruling party with pious panegyrics on “human rights,” as though the concept had any appreciable weight outside the cultural context that makes it intelligible, but we buy and borrow from the party, and profit from its policies, without hesitation or embarrassment. I think the government of the PRC might be pardoned for concluding that our actions, and not our words, indicate where our true values lie.

Hart may be right to criticize our culture for failing to act in accordance with its principles---I make no comment there---but he concedes far too much. If the concept of human rights has no "appreciable weight" outside of our own context, then for what does Hart criticize the Chinese? After all, "the arrest, imprisonment, torture, and murder of China’s religious minorities" and "the cruel measures taken to enforce the nation’s one-child policy" and "countless other chronic atrocities" are (according to Hart) only atrocities within a cultural context in which human life and dignity are inviolable rights of human persons! How can Hart criticize the Chinese? Upon what grounds?

Having misunderstood natural law, traditionally conceived, Hart has backed himself into a contradiction by discarding its universal validity through the voice of conscience. Either human rights are universally knowable in accord with natural law, and China, too, despite cultural and religious differences, is wrong to violate them, or else human rights are wholly dependent upon our Western worldview and he errs to condemn the Chinese for what they could not have known, given their context. But he cannot have it both ways.