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Equal rights versus Natural Law. An ongoing duel (Giulia Sissa)

Normativities are indeed moving in the contemporary world. The domain of “life issues” is especially concerned with the emergence of new existential choices, new manners of living the body, new configurations of familial and parental sociability. Novel forms of agency require new norms. Contemporary individuals of all genders claim legal recognition for their liberty to marry their beloved, their decisions to procreate and educate their children in a radically egalitarian fashion. In the same logic, women want not merely the opportunity to exercise the same rights as men, but also the full acknowledgement of their ability to do so. But these dynamics of modernization clash with a strong paradigm of immobilism. Rights, understood as protected faculties claimed by responsible citizens on behalf of equality and liberty, collide with the categorical imperatives of Natural Law. The recent decision of the Supreme Court of the United States on abortion (Dobbs versus Jackson Women’s Health Organization, 2022), bears testimony to this collision.

A prevailing theory of the Law, from Thomas Aquinas to Samuel Pufendorf (routinely taught in major European Universities, for centuries), Natural Law is gaining traction today. Joseph Ratzinger, Pope Benedict XVI, stands as a highly authoritative reference for the appeal to a renewed, deep commitment to Lex Naturalis. In the United States of America, vocal supporters of Natural Law (also called “jusnaturalists”) are such legal scholars, philosophers and political theorists as John Finnis, Robert George, Hadney Arkes, Adrian Vermeule. These thinkers plead for a return to the precepts of Natural Law. What do they advocate? They reassert the principle that any positive law must be grounded in a dual foundation: Nature and God. No human norm may escape Natural Law, especially when sexuality is concerned. Why?  God has created Nature and engraved a few basic natural inclinations in our body and our soul, which we can discover thanks to our reason. The line of thought is the following: since the end of God’s creation is the Good; since the conservation of Life is good; and since procreation safeguards Life, especially Human Life, then any legislation on matters of sexuality must reinforce the very scope of Natural Law. Marriage frames the only sexuality intended by Nature, which is heterosexuality aimed at the propagation and, crucially, at the moral education of humankind. By the same reasoning, homosexuality is not a natural propensity, but goes against Nature, therefore it is by principle incompatible with marriage; abortion is the killing of a nascent human being; the relationship between woman and man, which becomes the relationship between wife and husband, must respect the so-called "complementarity" of the genders. These arguments align in a teleological vision of the world.

On account of the very principle of Natural Law, today’s Jusnaturalists claim that we are able to understand all this by ourselves, simply by reasoning. But two thinkers from the remote past can help us: Aristotle and St. Thomas Aquinas. It is these authorities that such theorists of Natural Law as Hadley Arkes, in his Natural Law Manifesto, or John Finnis in his many interventions on marriage and against same-sex love, place at the foundation of legal thought. In my paper, I intend to present the dramatic political struggle that opposes equal rights and Natural Law today, while placing this timely battle in its longue durée. I will argue that the resurgence of Catholic jusnaturalism in the North-American world, far for representing a marginal anomaly, is an existential threat to the ongoing -- and always contested, more than ever unfinished --, project of modifying agencies and moving normativities.

Freie Universität Berlin
Humboldt Universität zu Berlin
Universität der Künste Berlin