As the late Bernard Lonergan demonstrated in Insight, acknowledging the human subject’s constitutive role in knowledge is only a halfway house in moving past naïve realism to an authentic realism, although a necessary correction. Escaping the trap of naïve objectivity requires grasping that truth is not in things–not out there–but in intellects, and intellects act, they do, and they constitute our know-ing by acting and doing. Nor is this a threat to objectivity; it is the ground of objectivity when the acting and doing is thoroughly understood.
So too should there be a parallel move in the best accounts of natural law, where the turn to subjectivity supplants any misguided analogies to laws of nature, while admitting the constituting order of reason in an authentic account of natural law.
Martin Rhonheimer’s work is helpful here, particularly in distinguishing the performance of natural law from theories of natural law, and clarifying that difference is no small accomplishment. Too often the claim that natural law is self-evident–that it cannot not be known, or that it cannot be denied without incoherence–sounds very much like intuitionism or poisoning the well against detractors (who must be either wicked or dull not to get the obvious!), especially if the natural law is understood as a collection of statements about morality. Often the statements of natural law theorizing are not particularly self-evident or are formal and mostly empty of content; Rhonheimer, however, and correctly, distinguishes the precepts and commands of natural law from the statements expressed about those precepts, thus moving natural law away from its naïve versions and toward authentic objectivity while also revealing why the natural law cannot be coherently denied.
Taking up arms against the physicalists, Rhonheimer insists that natural law is the rule and governance of reason (ordo rationalis) and not of physical nature (ordo naturae); as he puts it, “reason is the measure itself, and thereby the norm of morality.” But unlike naïve accounts, he specifically means practical reason rather than speculative or theoretical reason, for while theoretical reason may very well offer descriptions about the laws of nature, it provides no precepts or commands for praxis. Nor is practical reason theorizing about praxis–it is not moral philosophy or ethical theory–but rather the practical intention to attain some good, something concretely desired. This is not to beg the question, for no judgment is made that what is desired or intended turns out to be the real good, merely that it appears to the subject as good and thus as something of value, just as Aristotle noted that “every art and every inquiry, and … every action and pursuit, aims at some good.”
Moral philosophy, says Rhonheimer, begins not with some self-evident statements or a theory of human or physical nature, but from “the experience of intentionally striving after a goal that accompanies every human action,” and it is “this experience” which is “the subject matter of ethics.” In our practical reason, we make judgments or commands about our strivings–Seek this! Do that! Avoid this!–and while very often those commands do not rise to the level of linguistic utterance, operating more as conscious seeking or desire, we can experience ourselves commanding and seeking, and then cognitively objectify that experience and the precepts of practical reason. The precepts and commands are known by attending to our own subjectivity, by noting ourselves wanting x or y, avoiding a or b, and insisting upon p or q; we can subsequently reflect upon those strivings and precepts to note and make statements about the precepts. The statements, however, are not the natural law but rather an account or a theory thereof, for it is the precepts and commands as operating within conscious and intentional subjectivity that is practical reason at work, and practical reason, in its weighing and measuring or goods, constitutes the natural law, according to Rhonheimer.
That brief summary does very little in demonstrating the truth of Rhonheimer’s account and nothing toward justifying this or that conclusion about controverted moral issues, but it does point away from the world “out there” with naïve claims that the natural law is rooted in laws of nature or biology. Instead of losing morality in nature, we find ourselves and our free, conscious subjectivity as the starting point of natural law, both as a performance and as a theory–and it really is hard to deny the experience of one’s own practical reason without incoherence.