New Natural Law Theory and Foundational Sexual Ethical Principles: A Critique and a Proposal

Abstract

The New Natural Law Theory (NNLT) argues against the morality (and legality) of same sex-unions on the basis that homosexual (and non-reproductive heterosexual) acts are unnatural, unreasonable, and therefore immoral. In this paper, we explore and critique the foundational principles -biological and personal complementarity, their subcategories, and the interrelationship between them -that the NNLT uses to justify its claim. We propose alternative principles -orientation, personal, and genital-biological complementarity, with a distinct interrelationship -to argue that homosexual couples can engage in sexual acts that are natural, reasonable, and therefore moral. Our study clearly demonstrates that for the NNLT genital complementarity, a subcategory of biological complementarity, is the sine qua non for personal complementarity. In other words, personal complementarity within a sexual act is only possible if there is genital complementarity between male and female. We believe that the NNLT's foundational principles reflect too narrow an understanding of the human person and human sexuality. Instead, we propose ''holistic complementarity'' as the fully human integration of orientation, personal, and genital-biological complementarity. What defines a natural, reasonable, and moral sexual act is not genital complementarity as the foundational principle, but a dialectic between these three principles of complementarity.The New Natural Law Theory (NNLT) 1 argues against the morality (and legality) of same sex-unions on the basis that homosexual (and nonreproductive heterosexual) acts are unnatural, unreasonable, and therefore immoral. In this paper, we explore and critique the foundational principles that the NNLT uses to justify its claim, and propose alternative principles to argue that homosexual couples can engage in sexual acts that are natural, reasonable, and therefore moral. The paper develops in three cumulative sections. First, we present the core teaching of the NNLT, namely, heterosexual marriage is a basic human good and the only legitimate context for moral sexual acts. Second, we critique the foundational ethical principles the NNLT theorists employ to justify their claim that only heterosexual marital acts of a reproductive kind are moral. Third, we propose alternative ethical principles that lead to

Looking for Love in the Legal Discourse of Marriage

“…62 A report by UK Criminal Law Revision Committee in 1984 into marital rape took a similar view, arguing that marital rape was more of a problem for social workers than for the criminal law. 63 In R v L, Justice Brennan argued that the law of marriage is to be found in the ecclesiastical courts rather than the common law courts. He claims that a review of those relevant cases shows that connubial rights are an essential part of marriage but 'do not exhaust, the legal incidents of marriage'.…”

“…Marriage is to be defined by its intrinsic value and this value is to be found in friendship (love) and parenthood. For Finnis then, 'the moral importance of the marital act … is determined by its intrinsic procreative and unitive meanings, not by any instrumental, that is extrinsic meaning', 63 such as procreation.…”

“…These developments paved the way for romantic love. 63 Like courtly love, romantic love cherishes and idealises the love between men and women. It too ennobles lovers and sees love as ritualistic and spiritual, and as a means by which a oneness between lovers is created.…”

“…62 The coming together of love and marriage has been documented by Stephanie Coontz in her book Marriage, a History: How Love Conquered Marriage. 63 Coontz shows that the idea of marrying for love was a highly radical idea, which came to be accepted in the west by the end of the seventeenth century. Before this time, marriage served a variety of social, economic and political purposes.…”

“…She says, 'the High Court has taken judicial notice of a feature of the marital relationship which is highly unusual: a fully competent adult may choose to remain ignorant of her legal affairs without being careless, and this fact is notorious'. 63 58 Trust is discussed as an element of romantic love for another purpose in Delaney, 'Love and Loving Commitment' 342. 59 To date the defence has been very limited, although it has been applied to a child-parent relationship in To be successfully applied, therefore, Garcia requires a fact situation which 'hinges not on wrongdoing but on excusable ignorance' and where that excusable ignorance is a 'notorious feature of the relationship', 64 a 'normal and unremarkable incident' 65 of the relationship.…”