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Chapter 7: Natural Law and the Fundamental Principles of Morality

Appendix 3: Natural law, the magisterium, and dissenting theologians

Dissenting theologians often criticized the magisterium’s references to natural law. Such criticism was especially prevalent after Humanae vitae. Charles Curran and his associates rejected “some of the specific ethical conclusions contained in the Encyclical. They are based on an inadequate concept of natural law: the multiple forms of natural law theory are ignored and the fact that competent philosophers come to different conclusions on this very question is disregarded.”37

In fact, the moral teaching of Humanae vitae is not based on any concept of natural law or any philosophical argument at all. It is received teaching in the Church, and it originated (probably before Christ) before there was any natural law theory to articulate and defend it. Natural law theories are theology; the Church’s moral teaching is part of the Judeo-Christian heritage.38

Curran and his associates also attacked what they called “biologism” in Humanae vitae: “Other defects include: overemphasis on the biological aspects of conjugal relations as ethically normative; undue stress on sexual acts and on the faculty of sex viewed in itself, apart from the person and the couple . . ..”39 Richard A. McCormick, S.J., urged that the moral criterion must be the whole person, not part of the person, and reported that many held similar views; they often cited Vatican II’s statement that the moral criteria for birth regulation must be based on “the nature of the human person and his acts” (GS 51).40

The argument about biologism can be taken as an expression of self-body dualism. In the Birth Control Commission, proponents of contraception implicitly asserted such dualism by saying that biological fecundity “ought to be assumed into the human sphere and be regulated within it.”41 This implied that the fecundity of human persons is in itself outside the human and personal, since one need not “assume” what one already is. I have treated this matter elsewhere.42

The dissenting theologians could grant that human sexuality is personal of itself, yet claim it is only one part of the person, whose fulfillment can be outweighed by other parts. This move was made by talking about the whole person and by referring to Vatican II. The Council teaches that there must be objective criteria for birth regulation, and it does say these should be based on the “nature of the human person and his acts.” But it adds immediately that these acts must “preserve the full sense of mutual self-giving and human procreation in the context of true love” (GS 51). This last phrase, with its reference to procreation, was regularly omitted by dissenting theologians. They likewise omitted what the Council immediately adds about the need to cultivate the virtue of marital chastity and to conform one’s conscience to the teaching proposed by the magisterium. In short, dissenting theology built its argument on a selected phrase from the Vatican II document.43

Correctly interpreted, what the Council teaches cannot support the approval of contraception unless one reads into the Council a proportionalist theory of moral judgment. If one does, one can suppose that the full sense of procreation in conjugal acts can be preserved in marriage as a whole while being excluded from some of its acts, on the supposition that this exclusion is a premoral evil outweighed by the overriding value of the contribution regular orgasms make to marital love. Again, since proportionalism is indefensible, the argument collapses.

37. Charles E. Curran et al., Dissent In and For the Church: Theologians and “Humanae Vitae” (New York: Sheed and Ward, 1969), 25. Rejection of radical dissent by no means precludes recognition of a need for a more integrated mode of fulfilling the prophetic responsibility of the Church; see, for instance, Philippe Delhaye, “La collaboration de la Hiérarchie et de tous les chrétiens dans la formulation des normes morales,” L’Année canonique, 22 (1978), 43–60.

38. With respect to the morality of sex and innocent life, one can confirm the antiquity of the norms very easily by comparing Catholic teaching with the beliefs of Orthodox Jews. Curran, Contemporary Problems in Moral Theology, 105, recognizes that Catholic teaching antedated its theological explanation: “Many erroneously believe that Catholic theology is committed to a particular natural law approach to moral problems. In practice, however, the vast majority of Catholic teaching on particular moral questions came into existence even before Thomas Aquinas enunciated his theory.” Curran, however, tries to argue from the teaching’s independence of any particular theory of natural law to the acceptability of theories inconsistent with the received teaching. The conclusion does not follow. What does follow from the teaching’s priority to theory is that criticism of the theory (even if it were telling) would not call into doubt the teaching itself.

39. Curran et al., Dissent In and For the Church, 25.

40. McCormick, Notes, 678–79 and 806–7.

41. This revealing phrase is found in the so-called majority report as published: Robert G. Hoyt, ed., The Birth Control Debate (Kansas City, Mo.: National Catholic Reporter, 1968), 71. The leaked documents are not precisely what they were purported to be, but the document in question does represent the view of the proponents of contraception. The very expressions, “majority” and “minority” presuppose a conception of the Commission very different from that of Paul VI, who made it clear that he wanted a thorough study of the question and who appointed to the study group a number of moralists who were convinced at the outset that in some way they could make a case for contraception. It seems clear he was anxious to find out if anyone in any way could make a convincing case that the received teaching is not binding on the Church—at least that a different view might be true with respect to oral contraceptives. But virtually the entire Commission agreed that there was no morally significant difference between oral contraceptives and barrier methods. Thus, not having obtained from the Commission what he expected, Paul VI finally came to the conclusion that nothing he could find put the received teaching in any doubt whatsoever.

42. See Germain Grisez, “Dualism and the New Morality,” Atti del Congresso Internazionale Tommaso d’Aquino nel Suo Settimo Centenario, vol. 5, L’Agire Morale (Naples: Edizioni Domenicane Italiane, 1977), 323–30. Cf. Georges Cottier, O.P., “La conception chrétienne de la sexualité,” Nova et Vetera, 52 (1977), 1–21; summarized: “The Christian Conception of Sexuality,” Theology Digest, 26 (1978), 218–22.

43. An example: Louis Janssens, “Artificial Insemination: Ethical Considerations,” Louvain Studies, 8 (1980), 3–29. He detaches the phrase “objective standards which are based on the nature of the person and his acts” from its context (4), takes proportionalism for granted (16), preempts the title of “an ethics of responsibility on a personalist foundation” by pretending that the only alternative is a formalistic type of scholastic natural-law ethics (13–19), and reaffirms a dualistic conception of the person in attacking “biologism” (20): “. . . nature, both in and outside of us, is rather the material which we must deal with in a human way.” On this basis, Janssens goes on to defend, subject to various conditions, the moral acceptability of artificial insemination, whether by husband’s or donor’s semen, and in vitro fertilization (17–29). While Janssens comments on the final amending of the text of Gaudium et spes, 51 (4), he ignores the much more significant development by which the May 1965 draft was amended to introduce references to objective moral criteria and the magisterium into the version approved in principle 16 November 1965. See Francisco Gil Hellín, ed., Constitutionis Pastoralis “Gaudium et Spes”: Synopsis Historica: De Dignitate Matrimonii et Familiae Fovenda, II Pars, Caput I (Pamplona, Spain: EUNSA, 1982), 110–16.