The Good Society 12.3 (2003) 43-49
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The Relation of Utilitarianism to Natural Law Theory1
At first glance, especially if we have in mind the history of utilitarianism as it has descended from Bentham, it must seem that the relation of utilitarianism to natural law theory is adversarial. Philosophers will think of Bentham's scorn for natural rights ("nonsense on stilts"2 ) and its backing in the scornful references to natural law in his review of alternatives to utilitarianism.3 Moreover, is not utilitarianism a secular doctrine, in which God plays no part, and natural law theory a religious one, in which God's part is essential?
Yet whatever we make of Bentham's scorn, the doctrines are not opposed on this point. For the most part forgotten now, the name of Paley may still have, besides some resonance as a proponent of the argument from design, a resonance, though fainter, as a proponent of a Christian utilitarianism, which sprang up in his writings and in the writings of others about the same time as Bentham's Introduction.4
Moreover, more important, at its core natural law theory is a secular doctrine, and was such for St Thomas as well as for Hobbes, Locke, Rousseau, and Hume. Hume is the key author. To class Hume as a natural law theorist as well as what he is more commonly ranked, a utilitarian or proto-utilitarian, will astonish many students of philosophy. Commonly, the passages in which he seems emotivist in tendency get undue weight, even in comparison to the passages in which he approaches being a utilitarian. They commonly quite overshadow the central passages in which "correct" and "uncorrect" figure as analogues of "true" and "false," indeed as surrogates for them. The passages in which he ascribes "true" and "false" themselves to moral judgments get forgotten entirely. If these passages get the weight that they deserve,5 Hume takes on the defining characteristics of moral realism, which he has to be in order to be a natural law theorist. He does more, however, than meet this necessary condition He says (even if he is speaking ironically) that what he is propounding on the subject of justice are natural laws.6 They are established as such by what is visibly an entirely secular argument, in which he makes no mention of God and draws no inference from God's will.
Setting aside Rousseau, who ranks as a natural law theorist in spite of himself, mainly because of his illuminating contribution to the conception of the Common Good,7 all the other authors do have God present in the perspective in which they set forth their natural law theories; but for none of them is any professed inference from the will of God indispensable to arriving at the content of natural law. One does not need to think about God to identify the social rules that foster the thriving of human societies and of the people who belong to them. When St Thomas cites Cicero on the utilitas (mark that word!) of the natural laws8 he comes close to this position.
Bringing imperative force behind that content is another matter. Only Hume is entirely clear about God not needing to be invoked in this connection,9 either, though Hobbes, in substance if not in form, comes close. Indeed, insisting that laws must have a law-giver, and invoking God as such, may bring more trouble than help.
God is traditionally called upon not only to give the laws but also to enforce them. At least one theistically-inclined natural law theorist of the present day holds that AIDS is God's punishment for defying the natural law for sexual activity. This theorist acknowledges that the punishment is not certain; and that it may be delayed by a generation or two. He does not seem troubled either by the gross disproportion between the savagery of the punishment and the trivial nature of the offence, e.g., putting one's weenie in an unauthorized place, when there are no complications...