Alan Turing, Natural Law & Homosexuality
The Philosophical Justification Of The United Kingdom’s Past Moral Norms On Sexuality And The Law
December 31, 2014 Picture: Ian Usher/Flickr.
This article is part of The Critique’s exclusive series on the Alan Turing biopic The Imitation Game
Turing was charged with “Gross Indecency contrary to Section II of the Criminal Law Amendment Act of 1885,” more commonly known as the Labouchere Amendment. The penalty was two years in prison, with or without hard labor. Oscar Wilde had been prosecuted under the same law. Yet even while under questioning and facing time in prison, Turing displayed no sense of shame. The police noted that he came across as “a real convert…he really believed he was doing the right thing.”[i] At his trial, counsel for prosecution likewise noted the lack of contrition or shame, even while he pled guilty. It is likely, however, that Turing’s particular difficulties with interpersonal interactions, which today would often result in a diagnosis of Asperger Syndrome, contributed to his lack of shame.
Natural law theory persecuted Alan Turing for his homosexuality. Putting it thus is an exaggeration, but only a slight one, since to the extent that anti-homosexual laws and persecutions have had an intellectual defense in the modern West, they have most often been grounded in this theory. The language incorporated into British criminal and colonial laws came straight from this theory, with references to ‘crimes against nature,’ and unnatural acts.’ To this day, natural law theorists defend the unequal legal treatment of gays and lesbians,[ii] even to the point of submitting amicus curiae briefs in support of anti-sodomy laws, testifying as an expert witness in defense of a state anti-gay initiative, and making extended arguments against gay marriage.[iii] This article will lay out the central elements of natural law theory, emphasizing its arguments against homosexual sex. It will then describe some of the criticisms of that theory.
Natural Law Theory
Thomas Aquinas offered the most important historical formulation of natural law theory. Even contemporary natural law theorists, such as John Finnis, Robert George, and Alasdair MacIntyre (in his later work), see themselves as merely amending a theory presented by Aquinas that remains sound in its central precepts. Fundamentally, it is a theory that marries Aristotelian forms of reasoning, and a number of Aristotle’s own conclusions, to Christian theology. Aquinas clearly did draw on other sources such as Stoicism and the early Fathers of Christianity, however. The most common and influential version of the theory is presented here, but there have been other notable versions.
For Aquinas, a ‘law’ is an authoritative rule of action laid down by an individual or individuals who are responsible for the care of a community. Since God is responsible for the care of the universe, the rules of action He has laid down are thereby ‘laws.’ Natural law is God’s rational plan for the universe and thus it is best understood not solely as a set of religious precepts or rules, but also as the basis for practical reasoning and living a rational life. In this way, to violate natural law strictures, such as by engaging in same-sex relations, is to commit acts that are simultaneously sinful and irrational.
In addition to arguing that all humans are under natural law, just by being human, Aquinas also argued that the natural law can be known by all humans. In fact, all humans have at least an unreflective, partial knowledge of the law, which can be refined and made propositional by reflecting upon human practices. This knowledge points us to the various goods that contribute to the best human life. The rightness or wrongness of actions follows from whether they help bring about these goods. The good is prior to the right, to use philosophical language.
Aquinas emphasized how specific goods, such as friendship, society, and knowledge, are essential to a full human life. Marriage is another core human good, and in fact Aquinas referred to it as the ‘greatest friendship.’ Marriage, for Aquinas, should embody fides, which combines monogamy, love, and mutual regard, and it is in turn oriented towards the goods of procreation and the raising of children. Sex within the confines of marriage (understood as opposite-sex marriage), and which is supportive of the goods of marriage, is permissible and can even be described as a moral good. That is, opposite-sex sex acts that embody love and mutual regard between spouses contribute to real human goods and are thus laudable. Procreation is not the central issue here. Sexual relations between loving spouses where one or both partners is sterile (e.g., due to age) are also morally permissible and even quite worthy in their own right.
Aquinas adds, however, another requirement for sexual acts to be moral: they must be potentially procreative. Hence, only opposite-sex relations involving vaginal intercourse are acceptable; non-‘generative’ sex acts are immoral, even when meeting the various criteria presented above. Aquinas does not explain the reasoning behind his addition of this ‘generative’ requirement. It is a rather central point, as without it natural law theorists would have to admit that same-sex sex acts, as long as they are done between loving spouses, would be permissible and even morally good. Since Aquinas allowed that sexual relations between sterile opposite-sex couples can be valuable, by the same reasoning same-sex sexuality between gay and lesbian partners should also be valuable. Why then the stipulation that acts must be ‘generative’?
Twentieth century natural law theorists sometimes argued that the purpose of the sex organs is reproductive. Hence any sex acts involving non-procreative sex (e.g., because it is a same-sex sex act, or one that uses contraception) are contrary to the purpose of the involved organ and hence are immoral. This view, sometimes called the ‘perverted faculty argument,’ is perhaps implicit in Aquinas’s work, but it has come under sharp attack and contemporary natural law theorists have abandoned it.
Instead, the updated version of the defense of only vaginal sex, and hence the condemnation of ‘sodomitical’ sex acts (whether heterosexual or homosexual) rests on specifically drawn accounts of two human goods: integration of the self and marriage.
The idea of integration of self is that there should be an alignment between one’s intentional self and one’s embodied self. That is, since one is a body, one should not treat one’s (or another’s) body solely as a means to one’s goals. Sex acts engaged in purely for pleasure are immoral, for instance, since one is using one’s own and another’s body in a reductive, instrumental fashion. One could easily reply that gay lovers (perhaps gay married lovers) are doing the same thing straight married couples are, in expressing affection and emotion, sharing pleasure, and cultivating the bonds of their relationship. The crucial natural law claim about this good, at least as far as sex goes, is that unless it is a reproductive style act, it is not truly “unitive” and hence is instrumental in nature. Thus it is ‘dis-integrative’ of the self. At its root, this disallows gay sex by metaphysical fiat. It asserts that one and only one type of sex act—which can only be done by heterosexual couples—truly unites persons. Anything else, regardless of spousal intent or desire, is mere use.
Critiques of Natural Law Theory
Various criticisms of natural law theory can be lumped together as either friendly or unfriendly. The former class of criticisms accepts the broad outlines and structure of the theory but seeks to amend specific accounts of the various central human goods, or to allow for greater cultural variety in how those goods are understood, or to allow for more variation in how those goods apply to specific persons. In many ways, the ‘friendly’ authors are simply putting forward non-traditional versions of the theory. Typically, these views emphasize how Aquinas allowed that there is meaningful variety between persons, which affects how moral rules pertain to individuals.[iv]
In regards to homosexuality, the most common friendly critique focuses on the ‘generative’ requirement for sexual acts, described above. Again, natural law theory endorses the idea that sex acts where one or both partners are sterile can be morally good, as long as various other moral criteria are met. So why not then just allow that the nature of gays and lesbians is sufficiently different that their sex acts are permissible and even morally good, even though they are not of a potentially generative kind? Some mainstream contemporary natural law theorists do allow that heterosexual sex acts need not always solely involve vaginal intercourse, but even they argue that the male orgasm must only occur in the vagina of one’s loving spouse.
The arguments as to why this should apply even in the case of non-fertile couples seem weak (and are perhaps no stronger in regards to fertile ones).
In order to rule out the possibility of moral ‘non-generative’ sex, natural law theorists emphasize procreation in their account of marriage and sexuality. As many point out, this strongly implies that the marriages of infertile couples are impoverished. Some defenders of the theory deny this, although it is difficult to take that denial at face value as procreation and the type of sex act needed for it do such heavy lifting in their theory. Natural law theorists of a more theological bent contend that couples should be open to the possibility of a ‘miracle,’ that their infertility may be overcome during a specific coupling. Yet since a miracle is a miracle, presumably this reasoning should apply to the possibility of a same-sex act leading to conception as well.
What is clear is that the requirement that sex acts must be ‘generative’ (that is, heterosexual and involving vaginal intercourse) in order to be moral is a common point of criticism. Leading contemporary natural law theorists have allied themselves with the Catholic Church and its orthodoxy, and hence in their more recent writings one finds allowances that a homosexual orientation in itself is not immoral; it is only acting upon it that is impermissible. If, however, the Catholic Church changes its position and embraces same-sex marriage, it will place natural law theorists in a bind, forcing a choice between staying with the traditional position and thus being out of alignment with the church, or altering a view that has been held for centuries. If they modify their position to stay aligned with the Church, it almost certainly would result in a stronger philosophical position. Since it would then also accord with most academics’ view that gay marriage is on par with opposite-sex marriages, it would likely help natural law theory play a larger role in contemporary moral and philosophic debates.
As far as ‘unfriendly’ critiques go, that is, those that seek to dispense of natural law theory root and branch, there is again a broad gamut. Any argument in favor of atheism or agnosticism is, intentionally or not, an argument against most versions of natural law theory, since at the core of this theory is a God who has laid down an authoritative set of rules for mankind.[vi] Similarly, any account of morality that denies objective reality to moral rules is anti-natural law. A Nietzschean or post-modernist viewpoint is incompatible with one derived from Aquinas and his heirs, for example.
Nietzsche-derived theories are not merely opposed to natural law, however. Works such as Nietzsche’s On the Genealogy of Morals, and the French philosopher Michel Foucault’s Discipline and Punish and The History of Sexuality, have been very effective at showing the deep variety and incompatibility of rival conceptual schemes of morality, punishment, sexuality, and other areas of human action and knowledge. Cumulatively, such works make it difficult to hold onto an account of ethics premised on a God-given, immutable, determinate good that is also (imperfectly) known by all humans. From this perspective, natural law theory is yet another example of an historically contingent account of morality attempting to masquerade as timeless truth. More broadly, the temper of postmodernist and genealogical investigations, even for those who do not subscribe to their relativistic or nihilistic moral stance, fuels wide-spread skepticism about ethical theories based on specific and very ‘thick’ accounts of the good.
From a different direction, one of the most prominent contemporary critiques of the theory takes issue with how it structures ethics, by placing the good prior to the right. Deontological theories reverse this relationship and start with principles that place limits on permissible action. The pursuit of goods is constrained by these principles. Relatedly, liberal political theories (understood as a broad range of approaches with roots typically in the work of Locke, Kant, or Mill) generally eschew any comprehensive account of the good in establishing the framework of basic social institutions. Instead, basic principles of fairness (e.g., Rawls) or fundamental rights (e.g., Nozick) should provide the fundamental basis of social order. Liberals contend that the natural law approach is based on a very particular and deeply contested notion of the good. By basing legal systems on accounts of those goods, rather than on rights, there is no principled basis for limiting the scope of laws. As a result, governments may criminalize consensual sex between adults, prohibit the sale of contraceptives, ban pornography, and otherwise act to ‘promote’ virtuous behavior in a manner deeply at odds with mainstream contemporary understandings of the limits of governmental power. A prominent recent title in natural law theory is Making Men Moral, in which the author, Robert George, argues for all the regulations just mentioned.[vii]
My two broad categories of friendly and unfriendly moral criticism miss some other kinds of objections to natural law thinking. For instance, one can criticize natural law theorists’ emphasis on potentially reproductive sex acts for engaging in bad science. Germain Grisez, an important twentieth century proponent of the theory, argued that reproductive pairs are “one organism,” for example.[viii] Greater knowledge of cultural and historical variety, arising primarily from the work of historians and anthropologists, also makes the natural law account of human goods as timeless and immutable seem less credible. In turn, this helps to explain why natural law writings sometimes contain hostile asides about historical and anthropological accounts.[ix]
Natural law theory is not widely defended today within academic circles. In particular, its commitments to a specific conception of God, combined with an ethical viewpoint premised on a robust and even dogmatic account of human goods, has made it a minority perspective in an age where well-educated persons often tend towards various forms of disbelief and moral pluralism. One suspects that those who subscribe to it do so for the social conservatism it is usually made to favor (but arguably should not[x]). As suggested above, a change in Catholic Church doctrine making it more open to gays and lesbians would put natural law theorists in a bind, caught between their respect for hierarchy and official dogma, on the one hand, and their commitment to social conservatism, on the other. The recent synod convened by Pope Francis gestured in this very direction.
Natural law theory has updated itself previously. Most recently, in the twentieth century several writers refashioned it to accommodate it to the modern, liberal order, by allowing for meaningful restrictions on how far the state can promote moral virtue and accepting religious pluralism based on the separation of church and state. In the twenty-first century, the theory could go through another wave of revision, making it accord with contemporary Western societies that are increasingly, albeit it still quite imperfectly, accepting of homosexuality and are willing to treat gays and lesbians as legal and social equals. As outlined above, this would not involve significant theoretical revisions and the result would be philosophically more cogent. It would also allow natural law theory to play a larger role in academic and social debates than it currently does. Of course, such a change, even if it does happen, would not eradicate an ugly history of the persecution of thousands, including Alan Turing.[xi]
Footnotes & References
[i] Andrew Hodges, Alan Turing: The Enigma (Centenary Edition), Princeton: Princeton University Press, 2012, p.457.
[ii] To avoid anachronism, in this article I will use the terminology about homosexuality that is most common for the era I am writing about. For instance, Turing himself most commonly used the word ‘homosexual’ to describe himself, although with friends he would often use ‘queer.’ In a short story he wrote, he did use the term ‘gay,’ but that was certainly atypical. Here, referring to a 1990s legal dispute in Colorado, I use the contemporary terminology of gay and lesbian.
[iii] Gerard Bradley of the Notre Dame School of Law and Robert George authored an amicus brief on behalf of the Family Research Council and Focus on the Family. John Finnis and Robert George testified in the Romer v. Colorado case on behalf of the initiative which would have struck down protections for gays and lesbians. George, Finnis, and other contemporary natural law theorists have been the leading public intellectual proponents of not allowing same-sex marriage.
[iv] Basic Writings of St. Thomas Aquinas, New York: Random House, 1945, p.776.
[v] For example, see Robert George, In Defense of Natural Law New York: Oxford University Press, 1999.
[vi] There are examples of nontheistic natural law perspectives. See, for instance, Philippa Foot, Natural Goodness, New York: Oxford University Press, 2001.
[vii] Robert George, New York: Oxford University Press, 1995.
[viii] Quoted in George, The Clash of Orthodoxies, Wilmington, Delaware: ISI Books, 2001, p.78.
[x] See Brent Pickett, “Natural Law and the Regulation of Sexuality” Richmond Journal of Law and the Public Interest, Vol.8, Issue 1 (Summer 2004).
[xi] I want to thank Patrick Blythe and David Mapel for their comments on earlier drafts of this article.