Leff’s point: No one can say Ethics, and Law is not from "nature". Thus, when it comes to morality that a particular thing should be done or not done, “Who sez?”
Since I am running out of time, let me cut directly to the chase. The key to my critique of Leff is precisely the title which is really saying what Leff really wants to say. His real point - and mine - is that ethics is not reducible to propositional knowing [sensation and abstraction], and law is not reducible to "nature" [thingness"]. Leff’s final “Nevertheless: Napalming babies is bad….” is known not by the propositional ethics of a someone who sez concepts and precepts, but by the ontological, metaphysical and real tendency of precisely who we are as persons. The awareness is not concept but consciousness, and it accrues to the experience of that real tendency in us. We do not have that tendency, but are it. Imaging the Trinity of relations of Father, Son and Spirit, we are the ontological tendency and we are that consciousness. As long as we do not damage that tendency to the Absolute, we will have that consciousness which we call “natural law.”
Leff dabbles in the present-day reduction of ethics to spoken precepts by supposed sources of authority be they God, “Godlets” (little Gods) or Constitutions. I offer Leff because of his daring clarity in presenting the irreducible conundrum that obtains when the reality of good and evil is itself reduced to sensible-conceptual knowing. It has been asked for the last 5 centuries since Descartes how “ought” could possibly be derived conceptually from “is?” How can obligation come from “facts” unless the “facts” contain within themselves a “tendency” to this or that kind of action? Leff is so good, because after exhausting the possibilities solving the conundrum, he mumbles: All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us "good," and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us, could law be unnatural, and therefore unchallengeable. As things now stand, everything is up for grabs."
And then, kind of turning around before leaving the stage, he shouts out the truths that surge from within him:
"Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot-and General Custer too-have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[All together now:] Sez who?
God help us."
My point: Ratzinger: Moral obligation does not come from conceptual precepts but from a consciousness of good or evil. That consciousness is pre-conceptual and pre-moral. It comes from what Ratzinger calls the ontological tendency that we are (not just what is in us). “Here we read (in St. Basil): ‘The love of God is not founded on a discipline imposed on us from outside, but is constitutively established in us as the capacity and necessity of our rational nature.’ Basil speaks in terms of ‘the spark of divine love which has been hidden in us,’ an expression which was to become important in medieval mysticism. In the spirit of Johannine theology Basil knows that love consists in keeping the commandments. For this reason, the spark of love, which has been put into us by the Creator, means this: ‘We have received interiorly beforehand the capacity and disposition for observing all divine commandments… These are not something imposed from without.’ Referring everything back to its simple core, Augustine adds: ‘We could never judge that one thing is better than another, if a basic understanding of the good had not already been instilled in us.’
“The means that the first so-called ontological level of the phenomenon conscience consists in the fact that something like an original memory of the good and true (both are identical) has been implanted in us, that there is an inner ontological tendency within man, who is created in the likeness of God, toward the divine. From its origin, man’s being resonates with some things and clashes with others. This anamnesis of the origin, which results from the godlike constitution of our being is not a conceptually articulated knowing [concepts and principles by a someone, be it God, other or a Constitution, who “sez”…], a store of retrievable contents. It is so to speak an inner sense, a capacity to recall, so that the one whom it addresses, if he is not turned in on himself, hears it echo from within. He sees: That’s it! That is what my nature points to and seeks.”[2]
Karol Wojtyla does the philosophy of this. He says: “I maintain that morality as a value has objective meaning in and through the human being and that there is no way to apprehend this meaning apart from the categories of being and becoming: esse and fieri [Ratzinger’s ontological tendency that produces the consciousness that that particular action is “good” or “evil”]. In other words, moral good is that through which the human being as a human being becomes and is good, and moral evil that through which the human being as a human being becomes and is evil. This becoming (fieri) resides in the dynamism of human action (actus humanus); it cannot be properly objectified on the basis of consciousness alone, but only on the basis of the human being as a conscious being. It follows, too, that good or evil as a property of a conscious being is itself also a being and not just a content of consciousness. This does not, however, obscure the fact that it – good or evil – is, at the same time, a content of consciousness that it is given in lived experience as a specific value, namely, moral value. Proceeding from the two different orientations in philosophy, it seems that we can arrive in the theory of morality at a complementary view of this same reality. Moral value points directly to that through which the human being as a human being is good or evil.”[3]
Besides, As John Paul II, he said in “Veritatis Splendor” #9: "‘There is only one who is good’ (Mt. 19,17)… Jesus brings the question about morally good action back to its religious foundations, to the acknowledgment of God, who alone is goodness, fullness of life, the final end of human activity, and perfect happiness.” His point is: If God alone is “good,” then man, the image of God, becomes “good” in the act of imaging Him which is achieved by becoming relational as the divine Persons are relational, i.e. self-gift. Therefore, all ontological actions that are self-transcending as gift of self are “good.”
Psychologically: Conrad Baars: The “I” comes to the experience of this value of “good” only after being related to by a significant other such as parent, spouse, friend. Ratzinger says:
“How does one go about affirming, assenting to, one’s I? The answer may perhaps be unexpected: We cannot do so by our own efforts alone. Of ourselves, we cannot come to terms with ourselves. Our I becomes acceptable to us only if it has first become acceptable to another I. We can love ourselves only if we have first been loved by someone else. The life a mother gives to her child is not just physical life; she gives total life when she takes the child’s tears and turns them into smiles. It is only when life has been accepted and is perceived as accepted that it becomes acceptable. Man is that strange creature that needs not just physical birth but also appreciation if he is to subsist… When the initial harmony of our existence has been rejected, when that psycho-physical oneness has been ruptured by which the ‘Yes, it is good that you are alive’ sinks, with life itself, deep into the core of the unconscious, then birth itself is interrupted; existence itself is not completely established.”[4]
Conrad Baars comments: “At the root of Emotional Deprivation Disorder lies an absent or inadequate feeling of self-worth [“good”]. The source of this feeling of self-worth [being “good”] is always another person – the ‘significant other’ – who can either give or withhold it. The process whereby a person receives his or her feeling of elf-worth from the ‘significant other’ is for every human being a bonum fundamentale. IN a very special relationship with the significant other, the person is seen and experienced by the other as good, worthwhile and lovable. The pleasure of the approving and loving other is perceived in such a manner that the person literally feels this throughout his or her entire being.
“This emotionally felt experience of being good and lovable engenders an inner sense of goodness and worth, together with a deep feeling of peace and tranquility, and is the condition sine aqua non for the person’s future self-love and self-esteem. It is the fundamental prerequisite for the child who enters life isolated and enclosed within himself, to open and grow toward what he is supposed to become uniquely himself. What opens the child to the significant other is the fact that the child experiences the other as good, and that he may be what he is in the growing joy of the other’s – and later their mutual – love and affection. It is only when a human being has been opened to a significant other that he or she can also be open to the good of all creation and to the Creator Himself. Only then can the person experience the world and the Creator with love and joy.”[5]
See the unaffirmed person: “They are like prisoners – locked in, lonely and self-centered – waiting for someone to come and open the door of their prison, waiting to be opened to their own goodness and that of others. No measure of success in business, profession or otherwise can adequately compensate for their feelings of inferiority, inadequacy, uncertainty and insecurity. Both the married life and the celibate life accentuate the fundamental loneliness of these persons and their inability to relate to others as equals. Their spiritual life suffers as time goes on, and their basically joyless way of life changes more and more to a state of depression until death seems the only way out.
“Most importantly, unaffirmed persons have only one concern and need: to become affirmed, to be loved for who they are and not for what they do. They are literally driven to find someone who truly, unequivocally loves them. This is n marked contrast to affirmed individuals who look for someone with whom they can share their love, who can give love as well as receive, who can wait and are not hurried, driven, or compelled to find someone who will love them. If affirmation by a significant other is not forthcoming, many unaffirmed persons will use their talents, intelligence and energy to try to convince themselves and the world in a variety of ways that they are worthwhile, important and significant, even though they don’t feel that they are. The most common ways of doing this are by the acquisition, display and use of material goods, wealth, power, fame, honor, status symbols, or sex.”[6]
It is not precepts, either of God, “Godlets” (us), or constitutions but an experience of the tendency to the absolute that we are, and/or the relational act of self-giving. It is the experience of our relational being as selves, that gives us a consciousness of the values of good and evil. But the beings who we are made of the same “stuff” as the Creating God Who is a triple tendency of Father, Son and Spirit.
Moral obligation has its source within us, and we are autonomous insofar as we decide about ourselves. Good and evil is same for all of us since we are all being, as God is Being, i.e. relationally. But we are free in mastering ourselves to act in accord with that consciousness or not.
[1] The Brainerd Currie Memorial Lecture at the Duke University School of Law. Leff is Southmayd Professor of Law, Yale Law School. B.A. 1956, Amherst College; LL.B. 1959, Harvard University.
[2] J. Ratzinger, “On Conscience,” The National Catholic Bioethics Center, Ignatius (2007) 31-33.
[3] K. Wojtyla, “The Problem of the Theory of Morality,” Person and Community Land (1993) 159.
[4] J. Ratzinger, “Principles of Catholic Theology,” Ignatius (1987) 79-80.
[5] Conrad W. Baars, M.D. “I Will Give Them a New Heart…” St. Pauls (2008) 12.
[6] Ibid 190-191.
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