Abstract
This paper argues for the superiority of natural law theory over consent-based approaches to sexual morality. I begin by criticizing the “consenting adults” sexual ethic that is dominant in contemporary Western culture. I then argue that natural law theory provides a better account of sexual morality. In particular, I will defend the “perverted faculty argument” (PFA), according to which it is immoral to use one’s bodily faculties contrary to their proper end.
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Notes
As quoted in Reilly (2014: 113).
Real-world examples of autonomy run amok are not hard to find. Consider the disturbing case of Armin Meiwes, who was sentenced to life imprisonment after he killed and cannibalized a willing victim who responded to an advertisement he placed on an internet forum. Even though his victim fully consented to be killed and eaten, it was clearly wrong for Meiwes to butcher him.
On this, see Kass (1997).
Beauchamp and Childress (2013: 110).
Objection: “Sex is permissible when all the parties consent. This is disanalogous to the property example, since the neighbor has not given his consent.” Reply: This misses the point of the example, which is that valid consent is valid not because of the mere fact of consent, but because one’s consent is empowered by the preexisting right to authorize some course of action. The property owner’s consent to lease his property is valid because he has the preexisting right to administer his property, a right that I do not have.
Excluding, of course, its use in harming other people.
For example, many people think that animals have some sort of intrinsic value, and that this fact generates constraints on the scope of whatever ownership or control rights that we might have over them. If we substitute a watch with a dog, for example, then arguably the intuition that we can do whatever we want to the dog is considerably weakened. In whatever sense we may own the dog, this sense of ownership is considerably different from the sense in which we might be said to own a watch or pencil.
The description “natural law” has unfortunately become associated with a host of moral and political theories, many of which are anti-essentialist and non-teleological. See Lisska (1996) for an overview. For the purposes of this paper, I refer to natural law in the traditional sense, as a moral and political theory rooted in what is befitting for human nature.
See Alexander (2012) for a rigorously argued defense of this claim.
Geach (1956: 34). Emphasis mine.
This argument is inspired by that of Mawson (2008). It also bears some similarities to self-refutation arguments against naturalism and determinism made by Lewis (1960); Hasker (1973); Boyle et al. (1976); Moreland (1988, 2009); Plantinga (1993); Reppert (2003, 2009), and Menuge (2004). While these arguments have been deployed against naturalism, my focus here is more narrow and thus consistent with certain kinds of naturalism.
One might object that it’s inappropriate to stipulate that the list of propositions be true, since on other lists the die might not fare so well. This is true, but it misses the point of the example. In order for us to be justified in accepting beliefs generated by any belief-forming process, the process in question must be truth-apt. It is not enough to get the right answer on accident. The beliefs must have been arrived at because they are true, and not because of other reasons that may regularly (but accidentally) produce true beliefs.
It is tempting to simply dismiss this question by replying that “It’s obvious!” and that any attempt to argue for or against these norms must end up presupposing them. This is quite true, but it is beside the point. The question is not about the truth of these norms, but rather about their ground. That is, given that these norms exist, how do we explain them? Saying that it’s obvious that there are epistemic norms is true, but this answer doesn’t tell us where they come from.
The argument here is not that rational norms imply moral norms (although this inference can certainly be made), but that teleology cannot be rationally denied because it generates the very norms of reason that are presupposed by any such denial.
An anonymous reviewer objects: “It doesn’t seem self-evident—or evident at all, really—that using a power or faculty oriented toward G for the sake of H instead, is necessarily wrong… Using an F that is oriented to G for the sake of another good does not seem in itself unreasonable.” But this simply follows from a species-specific conception of the good. Since is good for some F is determined by its function(s), then it simply cannot be good for F to it to be used for the sake of some other end that is not its proper function. F’s goodness just is a matter of functioning as F should, which precludes there being any other good for F that is not related to its function.
Indeed, for the natural law theorist, human actions are moral actions. The moral life is simply a matter of living well in everything we do. Hence Feser (2015) observes that natural law theory “does not draw the sort of rigid distinction between matters of ethics and matters of practicality, good mental and physical health, etc. that modern moral theorists tend to draw. Ethics, for Aristotelians, Thomists, and other classical thinkers, is a matter of how to live well, in all aspects of life.”
See Jensen (2010).
Thanks to Greg Brown for this point.
For similar reasons, Finnis (1980: 48) says that the PFA “in any form strong enough to yield the conclusions it has been used to defend” is “ridiculous.”
We do not have direct control over the power of hair growth or milk production. One does not consciously will for hair to start growing or for milk to be produced: these are bodily processes that simply happen and that have no definite stopping point. As Feser (2015: 407) notes, “there are crucial differences between, on the one hand, an individual deliberate act of using a bodily faculty and, on the other, an ongoing and involuntary physiological process. Use of the sexual organs is an example of the former whereas hair growth, breathing, perspiring, and lactating are examples of the latter… There is no specific individual event that initiates [them] and there is no specific individual event that culminates in any of them either. It is oxidation in general, hair production in general, sweat production in general, and milk production in general that is their natural end.”
This example comes from Augros and Oleson (2013).
Lee and George (2014: 20).
Objection: “But didn’t you say earlier that it’s not always wrong to frustrate a bodily faculty? If so, what is the harm in engaging in occasional bouts of intrinsically non-procreative sex provided that one does not completely destroy his health or ability to procreate?” (Corvino [2013: 85–86] makes this very objection). Reply: Most of our faculties are proximately purposed towards an immediate function (digestion, pumping blood, oxygenation, etc.), and ultimately towards self-maintenance. Hence, it is not wrong to occasionally interfere with the proximate function of these faculties (say by breathing in helium or chewing sugarless gum) if the act of doing so does not prevent the ultimate function of self-maintenance from occurring. However, unlike our other faculties, the procreative function of sexual faculties is not ultimately ordered towards self-maintenance, but towards a good that is external to us (the generation of new life). All intentionally non-procreative sex necessarily prevents the realization of this function and is therefore immoral. Someone who breathes in helium is still self-maintaining, while someone who engages in non-procreative sex is not procreating in any sense.
This account of bodily union originates from proponents of the “new natural law” theory. See Finnis (1994); Lee and George (2008, 2014), and Girgis et al. (2012). I should note that while I agree with the NNL account of bodily union, my argument here does not depend on the truth of the new natural law theory itself (which I reject).
“Sexual union is a unitary action in which the male and female complete each other and become biologically one, a single organism with respect to this function. Just as an individual’s organs participate in a single biological function that contributes to the good of the system as a whole, and so are biologically united as parts of a whole individual, so too in coitus the male and the female participate in a single biological function performed by the couple as a unit.” (Lee and George 2014: 44–45)
The PFA’s application to sex ultimately depends on the appeal to the procreative function of sex. Hence, even if it turns out that bodily union is not a function of sex or that bodily union is more inclusive than natural law theorists think, the scope of acceptable sexual activities is still constrained by the requirement that sex be open to procreation.
West (1860).
Early versions of what eventually became this paper benefited from feedback by Ryan T. Anderson, Matthew Hoffman, Sara Kolmes, Georgia Rainer, and members of the Thomism Discussion Group. The second half of this paper benefited greatly from comments by an anonymous reviewer.
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Hsiao, T. Consenting Adults, Sex, and Natural Law Theory. Philosophia 44, 509–529 (2016). https://doi.org/10.1007/s11406-016-9705-z
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DOI: https://doi.org/10.1007/s11406-016-9705-z