Natural Law Meets Judith Butler

"Natural law" in ethics sounds like the very heart of an essentialist program. And the greatest exponent of natural law is supposed to be Thomas Aquinas. Not only Catholic, but even Protestant, Jewish, and non-theistic accounts of natural law cite and claim him.1 Yet a queer natural law it is. It is a natural law of which we can know with certainty only the proposition: do good, avoid evil. It is a natural law in which animals do not properly par-ticipate.2 It is a natural law that no human being fulfills, and one whose presence humans infer in the absence of its effects, in the breach. It is a natural law that occupies only a very small part of the corpus of its supposed chief defender. It is a natural law entirely overshadowed by a theory of the virtues, to the extent that its existence depends upon the virtue of prudence (God's), and knowledge of it depends on the virtue of justice (ours). It is a natural law explicitly subject to social construction. It is a natural law that parallels not physics but narrative. It is a natural law founded not upon experiment but upon interpretation of text.

The present chapter appears in a volume called Queer Theology. Perhaps the most prominent theorist of queerness is Judith Butler. To put Judith Butler into conversation with Aquinas seems a doomed encounter between abstract stereotypes. He's a realist; she's not. But I use "seems" in the way that Thomas does: what "seems" to be the case is always the objection that Thomas disputes.

I write too because I instantiate that encounter in a bipolar reaction to Butler.

Hearing her positions reported, I tend to get annoyed. I don't know what essentialists she has in mind; when I think of Aquinas, the "essentialist" best known to me, the critique seems to sail right past the author. I worry that despite her intention her analysis constructs bodies to the extent that they float away. An Aristotelian standpoint leaves me far enough away to become tone-deaf, so that when I hear about Butler it sounds to me like Kant. In both cases one starts with the things themselves, whether phenomena or hermaphrodites. In both cases one ends with things constructed, whether in the mind or in a community of language users: just more noumena? Kant rendered communal? I find myself clinging to the Aristotelian supposition that either the world and the mind are made for each other, or intelligibility demands that we treat them that way. I find myself impatient with the dualisms of realism and constructivism that I encounter in cocktail references to Butler; Plato versus Aristotle, late medieval nominalists versus high medieval realists; German idealists versus Viennese positivists: haven't we been through all this before, so many times before?

Reading Judith Butler, however, I have a different reaction. I find my objections anticipated and qualified away. I find much to appreciate in her interest in performance, in her observation that matter is what demands more language. For Aristotle and Aquinas, too, matter demands form, is unintelligible without it. I wonder if the essences to which Butler objects are the very ones to which Aristotle objected: Platonic ones, imagined (truly or falsely) as static, unearthly, away in the sky.3 Aristotelian forms are no longer confining shapes or lacks of shape; they are internal principles of change, including changes of shape. And the changes are motivated by desire.4

Consider Judith Butler's anti-essentialist definition of a body:

[W]hat persists here is a demand in and for language, a "that which" which prompts and occasions. . . calls to be explained, described, diagnosed, altered . . . fed, exercised, mobilized, put to sleep, a site of enactments and passions. . . the constitutive demand that mobilizes psychic action. (Butler 1993: 67)

See how Aquinas sums it up, like this:

Forma dat esse materiae.5

Or at greater length:

Materia enim est id in quo intelligitur forma et privatio.6

In irenic moods, Aquinas held that since the truth is one, all things true participated in the First Truth. There was no truth without its source in the Father, its demonstration in the Son, its becoming known in the Spirit. If that sounds too philosophia perennis, I should refer instead to a rapprochement between the philosophical forebears of Aquinas and Butler, namely between Aristotle and Freud. Deep in the background lies Jonathan Lear's Love and Its Place in Nature (1990), an account of how much better sense Freud makes if you try to unpack his actual clinical practice not with the reigning natural-science paradigm of which Freud himself was covetous, but with a little Wittgenstein and a lot of Aristotle. Discovering id, ego, and superego becomes a form working itself out (or per-formance). Without pursuing a critique of Butler, therefore, or making much of necessary distinctions, I shall first deconstruct the received Aquinas on natural law to show its dynamic and performative Aristotelian roots, roots less uncongenial to scholars formed by Butler than one might suppose. I then reconstruct a Thomistic case for coming out, by considering apparent parallels between Thomas's account of the vice against nature and the unnaturalness of lying. For Thomas as for Butler, bodies demand language.7

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