ONE
Why Natural Law Matters
By invitation from the Étienne Gilson Chair and Dean Philippe Capelle, whom I thank for his confidence in me and for his encouragement, I have thus undertaken, without consulting my capacities, to treat a notion—natural law—that is distinguished for having been radically discredited by modern philosophy and for now being the object of unanimous contempt by enlightened opinion.1 This opinion excludes it from public debate as supposedly archaic and because it is supposed to pose an obstacle to the recognition and implementation of human rights. It cannot be said that it is left absolutely without honor, because it is the object of scholarly, historical, and systematic studies, and certain sectors of Catholic thought continue to recur to it as a relevant or even indispensable notion for orienting ourselves in the human world.
In any case, rejected as a thing of the past or confined to a unique and singular, though venerable, tradition, it is absent from the moral and political debates in which it once played a central role. One might say without paradox that it is by its absence, or by the decree of illegitimacy under which it suffers, that it contributes today to shaping the public debate, or what takes the place of such a debate. This, then, is how I would sum up, perhaps a little cavalierly, the role assigned among us to the natural law, to the very notion or principle of natural law.
The Great Contradiction, or the Knot That Cannot Be Untied
Nevertheless, even if all that is credible and authoritative would dissuade us from taking the smallest step in the direction of the question of natural law, this question comes to us—in a form, to be sure, that is hardly recognizable—in a very public contradiction that embarrasses us more each day. What is this contradiction? It seems that, depending on the direction of our interest and of our intention, we sometimes recur without hesitation to a universal criterion that demands and obtains the adherence of anyone possessing reason, and sometimes we dismiss all thought of such a criterion and congratulate ourselves equally on this resolution. In effect, depending on whether we look “elsewhere” or “here,” either we utterly reject the very idea of a universal norm, or we eagerly appeal to it. When I say “we,” I have in mind the citizens of modern democracies insofar as they adhere to the idea of justice that the progress of the Enlightenment seems to have validated, the idea that finds its canonical expression in the philosophy of human rights. When I say “here,” I designate a bit hastily the West as a whole, and thus, by “elsewhere” I consider what is external to the West. More precisely, “here” is the human domain where enlightened citizens—that is, citizens informed of their rights and more generally of human rights—act; “elsewhere” is the human domain where these same citizens look and where they neither live nor act regularly, not being citizens there.
Now, depending on whether we are acting or looking, whether we are citizens or observers, it seems that our mind takes on different forms, proceeding with the same confidence in opposite directions. When we look “elsewhere,” in the direction of “cultures,” or “civilizations,” external to us or “exotic” in the proper sense of the term, in the direction of those that have provided material of infinite diversity to the ingenious theorizing of ethnologists, and which continue to excite the curiosity of tourists, we make it a duty and a point of pride not to judge them; we flatter ourselves that we are not shocked by practices observed there that are sometimes quite shocking and that, according to us, in keeping with our guiding philosophy, find a meaning that is reasonable, or acceptable, or in any case innocent, in this ordered and coherent whole that is the “culture” under consideration. On the other hand, when we are dealing with the domain in which we act, where we are citizens, we leave no stone unturned; our reforming zeal is indefatigable and the judgment that we bring to bear on our social and moral arrangements, which in our eyes are always in some way wrong, irrational, and unacceptable, is implacable in its severity. “Elsewhere,” we would blush to claim to change anything in “their ways”; “here,” the disapproval of dominant opinion, the point of view that makes the rules, comes down on those who might wish to preserve something of “our ways.”
“Elsewhere,” we suspend judgment concerning “exotic” ways of life, since we must by all means avoid suggesting or implying in any way that our way of life might be superior to theirs; “here,” we are under constant pressure to reform, and it would be unacceptable to let things be, since nothing is more urgent or more right for men and women like us than to recognize, declare, and demand our rights, all our rights, our human rights.
This divided state of mind is characteristic of the progressive posture we have adopted as the power of the West has begun to ebb. It continues to dominate public thinking even as it produces a growing malaise—since people from “elsewhere” have arrived “here” in large numbers—and as “their ways” are adopted in the space where we act rather than characterizing only the space that we observe or visit. To be sure, what we call globalization has effaced the line separating “us” from “them” and thus encouraged the extension of our criteria to the world’s population as a whole. In particular, nongovernmental organizations and international institutions lead very active campaigns throughout the world for the rights of women or the rights of children, campaigns that very explicitly and even emphatically address all human beings wherever they may live. And yet the division of which I speak is not overcome; indeed it is enhanced and made still more troubling. In effect, on the one hand, we hold that human rights are a rigorously universal principle, valid for all human beings without exception; on the other, we hold that all “cultures,” all ways of life, are equal and that any tendency to judge them in the full sense of the term, or any tendency that would even consider the possibility of ranking them according to some moral standard, would be a form of discrimination, and thus that any judgment in the full sense would be an attack on human equality. On the one hand, all human beings are equal; on the other, all “cultures” have a right to equal respect, even those that violate human equality—for example, as happens in many cases, by keeping women in a subordinate position. All cultures are equal because they are made up of human beings and it is human beings who give them life; if I belittle a given culture because that culture belittles women, then I belittle all the human beings that are members of that culture, and thus by my judgment I exhibit the very inequality that I had reproved and proposed to fight. It is not a rare occurrence to see the same person become indignant over the condition of women under a Muslim regime and in the same breath condemn any pejorative reflection or criticism leveled against Islam as a human community and a way of life.
Thus we recognize a universal criterion, and we proclaim its validity and render judgments according to this criterion not only “here” but “elsewhere.” At the same time, we strangely restrict the scope of this judgment—we “hold ourselves back”—when there is any question of applying this judgment “elsewhere,” even when this “elsewhere” is one of “people from elsewhere” who are in fact “here.” We fear that, in judging the conduct of our fellow citizens of another “culture” according to the universal criterion that we claim, we might be introducing some inequality, contrary to our criterion, between “them” and “us.” Not only is this criterion fully applicable only “at home,” but it in effect applies only to “us,” that is to say, to citizens who do not come from “elsewhere.” An eminent sociologist who is a recognized specialist of Islam reproves Christians who publicly express reservations about “LGBT rights,” since by this they set themselves in contradiction with “common European values,” but he declares the “not necessarily liberal” Islam of “new Muslim elites” to be “compatible with our modern societies.” Thus Olivier Roy explicitly reproves where Christians are concerned what he abstains from judging in Muslims.2 It is indeed not only “at home” but also only “to us” that the criterion of human rights applies without precaution, reservation, or attenuating circumstance. Thus we wield a universal criterion of human rights, a criterion by which we pass judgment; and at the same time this criterion either commands that we judge or forbids judgment according to the point of application. The now exclusive authority of human rights simultaneously stimulates and constrains our faculty of judgment. More precisely, it stimulates our desire to judge while at the same time constraining our faculty of judgment. It is at the root of this contradictory double injunction, one that contributes in no small way to the confusion that characterizes our public debates concerning the best way to bring about social cohesion and civic friendship.
The philosophy of human rights derives its superior—and, in the end, exclusive—validity from its universality; it is “the most universal”; it is valid for each and every human being. At one and the same time, as we have just seen, this philosophy both confronts the obstacle of the diversity of human customs and yet paradoxically encourages this same diversity: the very conduct it would reprove in the name of human rights it is brought to justify, or at least to abstain from judging, since the judgment would risk leading to the conclusion that this way of life is inferior, which goes against the principle of equality that lies at the heart of the idea of human rights. How can the philosophy that demands the greatest freedom and equality among human beings be so favorable to human diversity, to the great number of ways of life that give little place to freedom and equality? I would like to make this suggestion: the almost unlimited diversity of ways of life demonstrates the almost unlimited capacity of humanity to produce itself—to produce itself according to no rule or criterion, whether such a rule or criterion derives its power from human nature or from human reason. Considered from this angle, the most barbarous law is seen as very remarkable evidence of this freedom, that is, of the free production by human beings of their way of life. Such a law thus calls for a special kind of admiration on our part, an admiration that refers not to the barbarous custom itself but to the plasticity of the human form of which this custom is evidence.
What we call “barbarous” indeed presents a double nature. On the one hand, it is in fact barbarous; its customs, for example, are contrary to women’s rights, and we can by no means approve them; on the other hand, this very barbarism is proof that human nature, or the nature of human things, involves no principle of power or of goodness capable by itself of ordering the human world; the aberration of customs is testimony of the unpredictability or weakness of human nature as concerns any quest for the rule of our life. Thus, if we were to condemn the “culture” of a “barbarous” people, with no quotation marks, then we would be supposing that human nature provides a rule or an order—we would be supposing, that is, that there is such a thing as human nature—and at the same time that human beings can exempt themselves from it and even go directly against it. We would be supposing that barbarism results from human beings’ bad use of their freedom, which is impossible because barbarism is the very form that their freedom has taken or that it has given itself. If “barbarians” were simply barbarians without quotation marks, that would mean that human beings are at once free and under a law, that they have a nature and that they do not follow it. And this would mean that the human condition is determined as freedom under law. But it is precisely this possibility above all that the philosophy of human rights intends to dismiss. By requiring that “barbarous” be put in quotes, our governing doctrine maintains a negative proposition with extensive—one might almost say infinite—implications: to be human is not to be free under law. The barbarism of the “barbarous” is empirical proof of the principle upon which the philosophy of rights intends to construct a new order. The unlimited plasticity of “culture” is the empirical proof of the weakness of the law in human life, the empirical proof that law, the rule of action, is not given along with the fact of being human, with human nature. This is the same ontological weakness of the law that the philosophy of human rights presupposes or postulates by founding the organization of the human world on the exclusive principle of human rights: since law has no intrinsic substance, we must look elsewhere for a principle of order; we must look toward human rights, in whose service the law will have to put itself, thus finding the only function consistent with its ontological weakness.
As we observe human beings who obey the rule of their culture, even the most absurd or shocking in our view, we understand that they are not free and that there is no law valid for all human beings, a law that they would be free to obey or to disobey. We understand at the same time that we can and we must practically order collective life not according to a natural law, which does not exist or in any case has no power, but by taking as our foundation a freedom to which all human beings are entitled and of which they are capable once we have renounced imposing some law on them, once we have resolved to concern ourselves exclusively with their “rights.”
This division of the mind between human rights that we must put into effect and the diverse cultures that we are obliged to declare equal entails uncertainty and finally a weakness of judgment. Caught between the diversity-without-rule of cultures on the one hand and, on the other, the lawless freedom of human rights, we no longer have a solid basis for exercising practical judgment. The arrangement that brings together the affirmation of the equality of human rights and the affirmation of the equality of “cultures” or ways of life throws the faculty of judgment into an insurmountable perplexity that tends to paralyze collective action.
The State of Nature and Nature’s Nakedness
Thus laws that are exotic or barbarous and our limitless freedom come together on this point: the former implicitly refute and the latter explicitly rejects the idea of a natural law, that is, the idea of freedom under law—under a law not made by freedom but that finds its support and its reason in human nature. The argument that the philosophy of human rights is constituted in opposition to the idea of a natural law, and particularly in opposition to the way this idea developed in a Christian context, finds sufficient proof in the philosophical construction that was the basis and the matrix of the doctrine of the rights of man, that is, the notion of the state of nature. The Christian or biblical idea of humanity as beginning under the law and, whether obedient or disobedient, as remaining under the law, is replaced by that of a humanity that begins in a freedom that ignores all law and that, once forced by necessity to give itself laws, will do so only under the condition and with the intention of preserving its freedom whole without law: the modern citizen, by putting himself under the law that he has produced, means to remain, according to the formula of Rousseau’s Social Contract, “just as free as before.”3 In other words, the law henceforth has validity or legitimacy only if it aims to guarantee human rights and limits itself to this purpose.
One might argue that, although the philosophy of human rights was elaborated and refined in a Christian context in opposition to the philosophy or doctrine of natural law nourished in this context, these conditions surrounding its production—which, it is easy to show from the history of philosophy, were intensely polemical—take nothing from the intrinsic legitimacy of this philosophy. The idea of an original condition of freedom and equality in which the rights of man are rooted seems at first to offer enough consistency and meaning, enough clarity and motivation, for the citizen to be able and even obliged to forget the history of philosophy. No doubt the idea of human rights speaks to us directly and powerfully enough that we do not feel the need to inquire concerning its genesis. Still, even if we consider the notion of the state of nature to be scaffolding that is no longer needed once the edifice of rights has been constructed, a little attention to the stones of this edifice will force us to admit that we cannot speak of human rights without referring implicitly but directly and concretely to “nature.” And however repugnant we may find it to consider that “nature” in any sense plays a role in the principles by which we organize the human world, we must concede that the modern doctrine of rights depends upon a specific understanding of the human being that is nothing if not “natural.” The doctrine of human rights derives from a “right” that is nothing if not “natural.”
In effect, the rights bearer—or, in any case, the basis of human rights—is the individual considered as distinct and separate by nature itself from other individuals, the individual as individuated by his biological nature, his nature as a living being; it is this unit of life and quantity of being that wants to continue to live and to persevere in being. Such an individual may then be enriched by all the determinations or qualities that stem from social life, but it remains that these hold together and thus constitute his individuality as a moral fact because they are all connected with this natural unit of life. It is one’s nature as a living being, and this alone, that has the specific power to make each human being a distinct and separate individual, and so a possible subject of rights.
The expressions “biological nature” and “living being” are nevertheless imprecise or too precise. A fundamental characteristic of biological nature, of the living being, is sexual difference, which is essential to this being’s reproduction, and thus to the difference of generations. But the nature that keeps human beings separate and available for equal freedom is the nature that, void of any quality that might indicate a bond and exempt from any difference of age, sex, or capacity, is strictly the same for all members of the species. This nature, stripped of all complexity or inner fullness, has nothing to teach us concerning the human being that we are—indeed it has quite little to tell us regarding ourselves as animals. This nature may leave us all equally free, but only for the negative reason that it bears no properly human characteristic, no binding characteristic. By reducing us to the most impoverished common denominator, it offers itself as a basis indifferently available for all imaginable human possibilities in their infinite variety.
Such an elemental and impoverished “nature” seems to be compatible with all possible or imaginable human “cultures.” By itself it tends toward nothing that is properly human, but one can add to it mentally everything that reason, imagination, or human experience can observe or produce. This unit of life—sexless and ageless, with no distinct capacities—has been isolated as the basis of human rights; everything experienced by human beings can appear as a human construction devoid of foundations or natural motives. By gathering all that is natural in humanity in the separate individual—that is, in the fact of separation itself, by condensing the force and the meaning of nature into its separating power—we void the whole of the human phenomenon of all other natural determinations except for its separation into individuals, thus radically “denaturalizing” this phenomenon. Once the validity or the authority of nature has been limited to the brute fact of radical separation, what is properly human can be constructed and deconstructed as we wish, since it is devoid of the natural basis whose determining or inspiring force we should recognize. Regarding any human characteristic we can now say that it is “constructed” and that it is therefore possible or even urgent to “deconstruct” it. This approach, which transforms the human world into a Transformers toy that requires nothing but ingenuity to be understood, is founded on the mute compactness of a nature that is enclosed in the individuality of the not-even-animal-living-being. This nature involves no meaningful relations with properly human dispositions, purposes, or institutions. Its imperious silence proclaims that nothing is natural that is located beyond the separated living-individual.
We see then how different is this natural right, born by an individual so defined, from natural law. While natural law issued commands in the name of a teaching implicit in human nature, in a tendency of human nature to society and to knowledge, or in a natural difference among ages, sexes, and capacities, a tendency or difference that reason once made explicit and on the basis of which it founded its commandments and recommendations, modern natural right begins with a proposition concerning nature that reduces it to identity and separation: the bearers or bases of rights are sufficiently or even exhaustively defined by the fact that they are identical, or similar, and separate. From this identity or similarity, repeated for every separate individual we can count, it is impossible to derive any directly practical commandment or recommendation. On the other hand, one may derive—and in fact we have derived—from this identical separate self a redefinition of law whose consequences have transformed the way we understand and organize our social, political, and moral existence.
Natural inclinations or natural differences, if they exist, constitute a kind of language of nature. At the very least they engage us and, as it were, force us to speak. How many words spring from sexual differences or the differences of age! Nature understood as without inclination or difference is equality, an equality that tends toward confusion with identity or similarity, since it neither recognizes nor nourishes any differences. Thus modern natural right is disappearing before our eyes as a natural right, since it presents itself as an equal right, or simply as equality. To be sure, this equality is still considered natural, or according to nature, or according to a certain separate individual-living-being. It is because human rights are attached ultimately to a nature without qualities, because they promote an equality that ignores differences, that such rights are the moving force of an indefinite social, moral, and political movement that ceaselessly sets an undefinable and ever-deferred equality at odds with the inclinations and differences that human beings experience. In any case, by speaking of equality and rights rather than of natural equality, we benefit from nature’s authority—albeit, once again, a most impoverished nature—while avoiding calling attention to the question of nature at the risk of having to open or reopen the debate over what is “natural.” The declared rejection of all reference to a natural criterion is inseparable from this clandestine appeal to the authority of nature.
Naturalization and Denaturalization
The authority of nature has not, then, really been abolished for us where the organization of the human world is concerned. It is just that this nature, which is still at work among us, does not appear as such and, as it were, hides its power. It is a fact of similarity and of separation that neither carries with it nor promises any positive cause of action, that opens up no course of action that might be judged or evaluated qualitatively, but only an equal right to an indeterminate number of actions or rather of indeterminate “things.” At the same time, since, once again, this nature reduced to a minimum continues secretly to contain the power of nature itself, it motivates and nourishes the desire for life that, even though it cannot quite be called “natural,” would be experienced as such, since it conforms to the idea of nature that is at the origin of our rights. But what can be the character of a life “according to nature” when this nature bears no properly human traits? Let us at least try to conceive such a life.
Such a form of life would not understand itself as one “culture” among others, or along the lines “our ways are as good as their ways,” since, as I have emphasized, this life is under the authority or the reforming norm of a certain idea of nature. Nor would it be able to understand itself as “the good society” or “the best regime,” because discriminating or evaluating judgment no longer disposes of any criterion of humanity, to the point that, as we have seen, citizens have trouble passing serious judgment on things they nonetheless are inclined to condemn. This form of life would understand itself rather as the seat of an unceasing effort to authorize and encourage the individual-living-being to recompose all the significant elements of the human world in order to make them conform to the idea that he has of himself. And this presupposes that these elements or determining factors of our being-human are treated as so many artifacts that are held together by nothing but their connection with the individual-living-being. The power of nature so understood issues into the open-ended process of rendering the human world artificial. There is nothing natural but this germ of life, the separate individual-living-being, a postulate that issues into the denaturalization of all characteristics distinctive of the human being, whether it is a question of sex, age, capacities, or forms of life. Public rules as well as private conduct are required to recognize and to make it clear that none of these characteristics either results in a natural determination or can claim the authority of nature. This recomposition of the human world is presented as the concretization of human rights in their full consequences, and of course as the ultimate fulfillment of freedom, since each individual is henceforth authorized and encouraged freely to compose the bouquet of characteristics constituting the humanity he has chosen.
This free recomposition nevertheless remains ever incomplete; it always risks stalling because the preliminary effort of deconstruction encounters the resistance or the opposition of a renaturalizing tendency, a tendency represented by at least a part of social opinion and one that finds support in the subject himself whenever, summoned to choose his identity, he experiences the pressure or the attraction—which may be quite persuasive—of forces he has not chosen. Whether this resistance is interpreted as the weight of prejudices or as the spontaneous self-defense of human nature, the society of deconstruction-recomposition according to human rights presents this difficulty: a spontaneous movement of the soul is inherently and, as it were, logically impossible, since the subject always confronts the obligation to signal that his movement, whatever it may be, is not simply natural or spontaneous, but that it arises only as authorized or condemned by the idea of human rights. What movement of a man toward a woman, or a woman toward a man, can escape this mutilation, this denaturalizing power, included in the “preliminary authorization” of each of its steps? What sincere movement of the soul, in whatever aspect of life, can still be possible as the extension of rights continually extends the domain in which an explicit authorization in conformity with a “guaranty of equality” is required at each moment? Such a society necessarily carries on a ceaseless battle against the “common sense” in which a thousand centuries of human experience have deposited the reference points of human life, “naturalizing” them in the process in one way or another. So now these reference points of common sense indicate not what we should follow but instead what we should flee, not what it is well to aim at but rather what must be avoided.
This would not be so serious if new reference points were instituted, but every new “form of humanity” that might attract human aspirations, supposing that such aspirations could be produced, would immediately be subject to deconstruction or denaturalization in the name of human rights. At the same time as we make sincerity practically impossible by subjecting the slightest movement to the obligation to be explicitly authorized in the name of equality, we throw members of society into a boundless perplexity. We are still obliged, in order to live, to follow at least some indications of common sense—but which ones, when we are summoned from all parts and first of all by the law to distrust any such indication as an arbitrary imposition and a humiliating stereotype? It is thus only weakly, timidly, and not without remorse that we resign ourselves to follow such indications of humanity as have guided us until now, and thanks to which there is still something like a human existence.
One might argue that the movement that carries us forward, and that a powerful segment of public opinion promotes constantly and even fiercely, is less clear or less unified than I maintain. It is true that, while certain constitutive elements of the human world are now radically denaturalized and deprived of any foundation, meaning, or natural purpose (as is particularly the case with the replacement of sex by “gender”), other elements receive the opposite treatment. One thinks first of all of homosexuality. Under the old regime of natural law, homosexuality was considered a “disorder” or a “deviation,” that is, a behavior or disposition that ultimately involved the person’s choice or the way a person, at the deepest level of the will, orients his or her powers of desire, a choice that was judged to be contrary to the rule inscribed in the physical and moral nature of humanity. Now we demand that this behavior or disposition be regarded as just as “natural” as the heterosexual orientation, as a fact of nature over which the subject has no power and which thus must be regarded and respected as a constitutive part of the very being of the subject. The dominant view of homosexuality seems indeed to go in an opposite direction from the denaturalization that I have invoked. Whereas sex is denaturalized to “gender,” homosexuality is naturalized as “sexual orientation”: a person is not born woman, but one may be born homosexual, or in any case one discovers oneself as homosexual. Thus, among us, the denaturalization of sexual identity and naturalization of sexual orientation have arisen together.
We can easily see why these two movements are not only simultaneous but in fact are one, each a function of the other. The more sexual difference is naturalized, the more the homosexual orientation seems to go against what nature commands or suggests. Inversely, the more the homosexual orientation is naturalized, the more it diminishes the power or the authority of sexual difference. If homosexual behaviors are judged to be as “natural” as heterosexual behaviors—that is, if sexual orientation is judged to be a matter of indifference—something that makes no difference in the life of the person and in the intimate order of his or her powers, then certainly the difference between the sexes undergoes a major loss of authority, a diminutio capitis.
The same correlation appears if we start from the opposite hypothesis. In effect, if the difference between the sexes considered as humanly meaningful is shown to be some kind of “social construction,” then sexual desire no longer finds its movement or its destination inscribed in the sexed nature of human beings; it is no longer essentially determined by the sexual difference between the desiring subject and the desired object, but is determined in a random or unpredictable way according to the particular nature of each subject. It is still nature that commands or prevails, but now the nature proper to each individual and no longer human nature understood as representing an order that is valid for all members of the species, with the purely contingent exception of a small number whose individual nature departs from the direction indicated by the common nature. Common nature is henceforth neither trustworthy nor powerful; on the other hand, there is no consideration that can weigh against the nature proper to each individual, which is its own foundation and justification. More precisely, sexual orientation is made a fact of individual nature, and this status not only preserves it from all censure but also removes it from the conversation concerning human things and their complexity: all one can say is that there is nothing to say, since it is a matter of indifference. While the naturalization of sexual difference opened up a great flood of human speech, eliciting the need and nourishing the desire for words and thoughts capable of connecting and, as it were, weaving together the two versions of humanity, the naturalization of sexual orientation removes it from the vital question of humanity.
“Marriage for All”
These remarks may contribute to explaining the prodigious success that the demand for “marriage for all” has had among us of late. How can a demand that has arisen so recently and that concerns only a minority of a minority of the population not only prevail so rapidly with our country’s lawmakers but also exercise a power of intimidation and of dismissal of those who are opposed or undecided such as we have not seen in all the history of the movement for human rights? Though the law opening marriage to same-sex couples immediately concerns only a limited number of our fellow citizens, the spiritual stakes of this question are of the greatest importance for all of us. Whereas the demand for tolerance or respect for homosexual couples derives its legitimacy from ordinary sources in our moral nature, the demand for the right to marriage on behalf of these same couples must be considered a metaphysical demand, that is, a demand that bears on the meaning and the whole of human life. Let me explain this somewhat solemn proposition.
Once homosexual orientation is recognized as a fact of nature that is so compact and so “indifferent” that it has nothing to do with reasoned discourse, it becomes the manifest proof that human nature provides no indication concerning the best way to conduct a human life. Considered in this light, homosexuality is nature crying out that there is no natural law. And this is a cry that must be heard but that has too often been smothered by the weight of prejudices or left inaudible in the noisy confusion of human evaluations. Here nature demands the help of positive law. This law must show in the clearest possible manner that all sexual behaviors are equally legitimate and deserve equal respect, or that the equality of sexual behaviors follows analytically from the equality of human rights. What better way is there to demonstrate and to recognize this principle than to open to homosexual couples the very institution that has forever organized sexual difference? Tolerance and social respect are not sufficient, since they leave homosexual couples incapable of marriage, and thus deprived of the public recognition associated with this institution.
When marriage was reserved to heterosexual couples, positive law found support in the natural difference between man and woman and at the same time confirmed and consecrated this difference. The common sense of the species had little need for doctrinal elaboration, but, since the institution of marriage was reserved to heterosexual couples, it implicitly sustained and solemnly manifested that human life is ordered by a natural law. The law opening marriage to same-sex couples is a positive law whose intention targets the very meaning of the human order: the point is to require members of society to recognize by word and deed that there is no natural law, or that the human world can and must be organized without reference to a natural law. Insofar as marriage was the crucial institution of a human world organized according to natural law, the law of which we are speaking aims to overturn or abolish this very order. Henceforth societies living under this law are involved in an experiment that is equally crucial and whose consequences yet to come, public as well as private, will no doubt be commensurate with the audacity or imprudence of what has been done.
This legislation, which directly concerns only a very small portion of society and which has taken hold in our country so fast and, as it were, irresistibly, owes this ascendancy to the ambition I have called metaphysical, the claim to inscribe into positive law the thesis according to which the just or legitimate human order excludes all reference to a natural norm or purpose. But why is it that, although they are for the most part not moved by any personal demand, a great number of our fellow citizens embrace this thesis as a truth so evident and so salutary that it must be imposed by the secular force of the positive law? What is the source of this passionate shared opinion in favor of a proposition that is finally purely philosophical? What is the source of this passionate refusal, which no victory either satisfies or diminishes, to recognize that the meaningful elements of human life are in some way connected with what we call human nature? We will pursue such questions in the next chapter, on the roots and the beginnings of this powerful movement, a movement that aims to organize the human world independently of any reference to a natural order or to the nature of man.