Making Men Moral: David Novak on Law, Morality, and Universal Moral Arguments

moral11The biography of David Novak, the conference’s fourth speaker: “David Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of the Study of Religion and Professor of Philosophy at the University of Toronto since 1997. He received his A.B. from the University of Chicago in 1961, his M.H.L. (Master of Hebrew Literature) in 1964 and his rabbinical diploma in 1966 from the Jewish Theological Seminary of America. He received his Ph.D. in philosophy from Georgetown University in 1971. Professor Novak is the author of thirteen books, the latest being The Jewish Social Contract: An Essay in Poltitcal Theology (Princeton University Press, 2005).


His fourteenth book, The Sanctity of Human Life: Three Essays, was published by Georgetown University Press in falldavidnovak-150 2007.  His book, Covenantal Rights: A Study in Jewish Political Theory (Princeton University Press, 2000), won the award of the American Academy of Religion for “best book in constructive religious thought in 2000.” He has edited four books, and is the author of over 200 articles in scholarly and intellectual journals.”


The following represents a heavily edited version of Dr. Novak’s remarks from “Robert George on Natural Law: Commonalities and Differences,” which were deeply interesting, highly philosophical, and beautifully stated. 

1. Disagreement: Theoretical and Practical

We have come together here and now to celebrate the fifteenth anniversary of the publication of Making Men Moral, a brilliant book by our colleague, our teacher, and above all, our enlightened and enlightening friend, Robert George. This book engages in what the German-Jewish philosopher Hermann Cohen (1842-1918) called Theorie der Praxis. It is a work that connects the theoretical and the practical in the realm of distinctly human action. Prof. George’s book makes that connection by showing how a theoretical perspective enables us to understand how and why authentically human action differs from the behaviour of other animals and from the creative acts of God. Therefore, we might best call Prof. George’s book a work of “practical reasoning.”


Though he is willing and able to civilly engage them in public discourse (especially at Princeton), at a conference like this we can relieve him and ourselves of the burden of having to argue with those whom “Robby” George sometimes calls (verbally rather than in writing) “the bad guys” (lots of laughter at this point)– as we so often have to do – that is, arguing with those whom we share neither theoretical nor practical commonality. Even when we do have theoretical differences among ourselves, we are still able to speak the same philosophical language together. Thus we can still talk about truth, right, good, justice, obligation – in fact, we can even talk about God; if not at the level of revealed theology, then still at the level of philosophical ethics.


The question before us now, after this initial confession of mine, is: How can theoretical difference not lead to practical difference? Or, how do we get ourselves out of the conclusion that theory is only a rationalization of praxis, and that correct morality (orthopraxis) being the primary phenomenon doesn’t really need theory (orthodoxy) that is, after all, only an epiphenomenon?


One need not be a Marxist to sometimes agree with Marx that our task as the political activists Prof. George and some of us are is not to understand the world, but to change it. Or, as we so often heard from our so recently departed teacher and lamented friend, Fr. Richard John Neuhaus (who was originally scheduled to be with us in this conference), isn’t our primary moral-political task, our work in the world, “to turn this thing around”? And to do this well, aren’t good moral instincts and good moral experiences enough?


No, praxis and theory are both done by mindful bodies/embodied minds. Praxis is not done by the body without the thoughtful mind; theory is not done by the mind without the acting body. On that point of philosophical anthropology, Prof. George and most of us here today are more Aristotelian in our outlook than we are, let us say, Platonists or Cartesians. Therefore, we must pursue the indispensable need for theory and praxis to be correlated, and yet deal with the question of how practical agreement need not presuppose total theoretical agreement.


2. Theoretical Divergence

We now need to look at how Prof. George and I diverge theoretically, especially in how we diverge in our interrelation of the concepts of good and right in our respective views of what practical reason or ethics is meant to do.

          In Making Men Moral, Prof. George writes as follows:

                    Authenticity and other basic goods are powerfully served by individual

                    liberty and autonomy . . . This natural law theory of individual rights

                    and collective interests has the advantage . . . of providing a rational

                    account of the moral foundations of rights by understanding them

                    as implications of intrinsic human goods and basic moral principles

                    which rationally guide and structure human choosing in respect of

                    such goods. . . .  Moral rights [are] . . . constituents of the common



In my book, Covenantal Rights (published seven years after Making Men Moral), the following assertion is made:

                   [G]ood seems to many to be a more basic moral term than right, either

                   in the classical sense (“it is right to do that”) or in the modern sense

                   (“he or she has a right to do that”). Nevertheless, it is still insufficient

                   to structure morality . . . for goods are neither states of being from

                   which persons derive norms, much less states of being generated

                   by the human will. Instead, they are the measures of how adequate

                   to the nature of the claimant and the respondent, between whom the

                   claim operates, that claim really is. Hence these claims/rights are

                   the true criteria of justice. Justice as the order of rights is the more

                   basic ethical-political term than good or the Good. . . .

                             The proper fulfillment of a right is what is good – that is, the

                   duty elicited by the right has been done well. . . . The good to be done

                   for someone is for the sake of the one who holds the right, who makes

                   the claim. The justice of the claim is what makes the content of the

                   claim good.

When looking at these two divergent views of the relation of good and right, it is important to notice that Prof. George and I are using the same vocabulary.


One could say, in a more Aristotelian way, that our theories have generic commonality and only specific difference. Indeed, this reminds me of the way Aristotle (in the beginning of the Politics) assumes that we are communal beings because we are linguistic beings, just as we are linguistic beings because we are communal beings. Thus language and community are two sides of the same coin. Accordingly, it could be said that Prof. George and I are both neo-Aristotelians, broadly speaking in the way we conduct philosophical discourse.  These points should be kept in mind when we return to the question of theory.


3. Practical Commonality

When it comes to our practical commonality, especially on the question of the inviolability of all innocent human life, it is important to ponder: Did Prof. George and I come to that practical agreement because of our respective ethical theories, or did our respective ethical theories result from our respective retrospection as to what makes our practical commitments intelligent choices rather than blind obedience?


It is clear that Prof. George and I came to praxis first, then we engaged in theoretical reflection, and we then brought some of the fruits of that reflection back to the practical judgments we have tried to make in the political realm, each in his own way.  From earliest childhood, we saw the ritual practices of our respective Catholic and Jewish traditions that welcomed new life into the world, cared for it during its journey through the world, and mourned the passing of old life from the world.  Thus we were both well trained in the habits that Aristotle saw as being the necessary precondition for ethical reflection, for the Theorie der Praxis which Hermann Cohen struggled to constitute.


That is why each of us was bewildered, even shocked, when we entered the secular worlds of the university and public affairs and found people, who had either been deprived of a true culture of life altogether in childhood or who had thrown behind themselves any such culture, who looked upon human life as some sort of commodity, either a commodity to be discarded as a worthless burden or a commodity to be pursued irrespective of how that single-minded pursuit might violate other rights or other goods.


Neither Prof. George or I have ever accepted the liberal myth that culture, along with the traditional moral praxis inherent in it, can be created by human design ab initio rather than being inherited post factum. And once one realizes the true limits of human invention, one begins to think through one’s culture de novo, especially its universally significant moral content, that aspect of one’s historical culture that readily speaks to all rational, morally earnest (that is, decent) decent human beings. Indeed, it is because of that moral bridge between historical culture and secular society that we have been able to belie the simplistic dichotomy that limits one’s locus in the world to either the “naked public square” or a ghetto.


4. Reasons Are Not Rationalizations

If our moral positions are not constructs but inheritances, we then need to answer the charge that our respective ethical theories are nothing but rationalizations of our respective moral theologies.


Now the term “rationalization” usually means giving an irrelevant or superficial reason for doing what one is doing.  It would also be a rationalization were I to say that the reason I am opposed to abortion is because the birthrate in Canada is too low to be able to support social insurance (the Canadian equivalent of U.S. social security).  The true reason for opposition to abortion, however, is that every human life has the right not to be harmed (killing being the most extreme type of harm there is) because he or she is a person created in the image of God. That means the human creature most uniquely reflects the ultimacy of the Creator-God, ultimacy that makes a claim on our respect, minimally on our restraint.


Lethally claiming an innocent life is like killing a prince when one’s true intent, one’s real reason, is to kill the king, whose kingship is most directly reflected in the prince who most clearly bears the likeness of the king. But the king himself seems to be beyond the reach of any of his subjects. Nevertheless, since the king loves his child, who is his very image, has not the king made himself vulnerable in the way love makes anyone who loves vulnerable? And couldn’t Cain’s killing of his brother Abel be Cain’s revenge on God for having favoured Abel over himself? As W. H. Auden famously put it in his poem “September 1, 1939″: “For the error bred in the bone of each woman and each man craves what it cannot have, not universal love but to be loved alone.” Therefore, an assault on a human person is meant to be an assault on God, perhaps because I feel so unloved by God.


Those unaware or who refuse to consider their metaphysical or existential reason for committing feticide frequently rationalize their act by presuming that it is morally neutral. They do this by denying human personhood to the fetus to be killed or who has been killed already. They usually say something like, “fetuses are nothing but tissue.” Accordingly, for them, abortion supposedly has no more moral significance than getting a haircut. But isn’t that the grossest rationalization possible, that is, to make abortion a choice having no moral grounds or consequences? Yet one can refute thus type of rationalization by arguing that inasmuch as the person making this kind of rationalization himself or herself began their life as just such a fetus, would they have wanted to be treated as a piece of tissue rather than as a person?


There is another type of rationalization that is not just a diversion, but which is misleading. That is when reasons are given that are not just inessential, but which are false. Such a false reason would be to say that abortion is to be proscribed because women should be forced to bear children as their punishment for having indulged their sexual desires, especially if they are unmarried. To the contrary, one could say that bearing the child so conceived rather than aborting it lessens the earlier sin by not allowing it to lead to the far greater sin of abortion. Unfortunately, though, too many religious people have fallen for this rationalization of the prohibition of abortion.


On the issue of abortion, though, we are not making a strictly theological point, that is, a point based on the authority of a particular revelation and the particular tradition of its transmission and interpretation. We are making a universal moral point.


Furthermore, we need to carefully differentiate such true reasons for universally immoral practices from the type of historically particular reasons that are invoked to explain such strictly religious proscriptions as the Jewish prohibition of eating or even possessing leavened bread (hamets) during the eight days of Passover, or the Catholic prohibition of treating a consecrated host as if it were an ordinary piece of bread. This is important to show when we are accused by our enemies of attempting to “impose our religion on everyone.” When we are so accused, we need to show what we do see as a moral law to be enforced even by a secular society, what we do not see as such a moral law, and how and why we differentiate between these two different kinds of law.


5. How Much Theoretical Difference?

We have seen how Prof. George and I differ on the theoretical question of the relation of right and good, and that it is a relation that must be seen as hierarchal (even though Prof. George regards basic human goods themselves to be incommensurate, that is, non-hierarchal). Either right is assumed to be for the sake of good, or good is assumed to be for the sake of right. Nevertheless, a theoretical difference like this between Prof. George and myself only needs to lead to a practical difference if our theoretical differences were more than divergent, but if they were truly contradictory. So, Prof. George would not say that my assertion that every human life has the right not to be harmed, thus entailing the practical duty not to kill it, is wrong, anymore than I would not say that his assertion that human life is an irreducible, non-instrumental good could ever be an evil to be eliminated.


But if this is true, why bother with such theoretical pluralism? Isn’t it a needless divergence from the type of political unanimity needed for our battles on behalf of what is evidently right and good in practice? Why not simply adopt one theoretical approach according to political criteria, namely, whose approach is likely to get the largest hearing, often based on the personal status of the one who formulated it and proclaimed it?


The reason for not succumbing to this political temptation is that adoption of such a practical stance would turn our arguments of principle (ad rem) into arguments based on personal – often professional – authority (ad hominem). (One might even say they would becomes like John Rawls’ notion of “overlapping consensus.”) That would turn our rational arguments into political slogans, the type of political slogans like “a woman’s absolute right over her own body,” for example, that require prima facie acceptance and attempt to silence any further debate (“conversation stoppers” in the words of the late Richard Rorty). Therefore, there is an intellectual necessity for continuing theoretical reflection and debate, both apart from and part of immediate consideration of which theoretical view leads to the most coherent practical conclusion.


There are times when Prof. George and I have to differ on what is the better theoretical approach to the representation of an agreed upon practical norm: his or mine. Nevertheless, that will not mean either of us should dismiss the other permanently or even temporarily. For there are times when I might well have to admit that his theory provides a better explanation for the norm at hand than mine, just as he will have to admit that my theory provides a better explanation for the norm at hand than his. And the fact that neither of us can be so theoretically conclusive so as to exclude the other, even temporarily, keeps Robert George and I and many of you here today within the same intellectual community – and, God willing, may that continue for many more years to come. 


My Take

The speaker is a rabbi and interwove commentary from the Hebrew Scriptures in his talk.  I particularly enjoyed his connection of the greater philosophical ideas with contemporary moral discourse.  Novak was not content to lay out his theoretical views on rights and goods, but linked his views to practical discussions.  Particularly helpful were his direct suggestions on how to counter hobbyhorses trotted out in discourse over questions of life, namely, abortion. 


It has been invigorating to hear a variety of speakers from a wide range of backgrounds defend the unborn.  Those who waver on the question of whether evangelicals may act as cobelligerents with Catholics, Jews, and others would benefit from a careful consideration of Novak’s words.  As one can see, he lays out a pretty convincing case on this point.


The discussion continued for a number of minutes as respondent Patrick Lee of Franciscan University of Steubenville interacted with Novak’s talk, and various audience members asked questions of Novak.  At the end, Robby George himself commandeered the microphone and proceeded to clarify his stance on Plato, Aristotle, and his understanding of rights and goods.  His comments alone were worth the session.

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2 responses to “Making Men Moral: David Novak on Law, Morality, and Universal Moral Arguments

  1. Pingback: Making Men Moral: Closing Thoughts and Conference Audio « owen strachan

  2. Pingback: Making Men Moral: All Posts « owen strachan

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