Thank you for this privilege of sharing some points for reflection. The title of this speech is “Towards a Philosophy of Law” because it is about the need to be clear on fundamentals, the need for a clarity that digs below the surface of mere routine or even of technical competence, in answering the question “What is the task of the legislator” and its even more fundamental companion, “What is law?” We are, of course, referring to human positive law, the “law of the land”, the laws of our legal system.
Philosophy, after all, cannot belong exclusively to professional philosophers (nor is this representation such a one, notwithstanding my family name). Indeed, philosophy is the knowledge of things according to their ultimate causes. Namimilosopiya na tayo sa pagsisikap nating alamin ang puno at dulo ng mga bagay-bagay; at kailangang magmuni-muni tayo nang ganito paminsan-paminsan upang alamin ang ating pinatutunguhan at nang hindi tayo maligaw ng landas.
Any philosophy of the legal system must, as a matter of course, define “law” according to its “ultimate causes”. To the school of Legal Positivism, law is simply “the command of the sovereign”; to the Historical school of jurisprudence, law is to be “found (not made)” in historical tradition; to the Sociological school, it is simply the “balancing of social interests” or “social engineering”; and to the so-called “Realist” view of Justice Oliver Wendell Holmes, Jr., it is “what judges in fact do”. But the most comprehensive school of legal philosophy is that which is sometimes referred to as the Classical School or the Natural-Law School. It is this approach that gives us the well-known definition of law, or the norms of the legal system, as “ordinances of reason for the common good promulgated by the political authority”.
Natural law thinking in jurisprudence teaches the existence of a set of norms (the natural moral law) as higher than the norms of the legal system (or human positive law) and to which these latter must conform. Thus, the legal system is a participation (by society through its political authority) in the natural moral law. The norms of the natural moral law derive from the truths of human nature and are discernible, albeit with difficulty, by human reason.
Law must conform with morality; and the norms of the natural moral law constitute the objective bases of morality. These norms are “objective”; that is, they have an existence outside the consciousness of the individual human person. Whether one agrees or not, whatever surveys may show, murder, theft, and so on, are immoral. They run counter to our authentic human nature. And laws that are immoral cannot be binding or cognizable as law. To cite a specific area of conduct, this representation cannot see how a law that promotes contraceptive sex can be valid law, because contraceptive sex is immoral.
Contraceptive sex is immoral because it is the use of the human sexual power in denial of the “procreative purpose” of the marital act. Indeed, reason tells us that the purpose of sex is procreation and the union of the spouses, and any exercise of this faculty in rejection of the procreative or unitive purpose is an abuse, a moral disorder.
It is not for nothing that the term “reproductive system” is applied to the collection of body parts involved. Sex is for reproduction; and it is therefore an abuse, a moral disorder, to utilize the human sexual faculty in denial of its procreative end, which is what contraceptive sex is all about.
Contraceptive sex is immoral just as it is immoral to eat for the sake of satisfying the appetite, in denial of the end proper to the “digestive system”, which is the nourishment and preservation of the individual's life. The pleasures involved in eating, and for that matter, in sex, are nature's ways of helping man to achieve necessary ends he might otherwise neglect to his injury. To place these pleasures above the purposes they are only supposed to facilitate would be like a bridegroom choosing the bridesmaid over his bride.
On the other hand, sex is, of course, different from eating: “For, unlike food, which is necessary for every individual, procreation is necessary only for the species, and individuals can dispense with it.” Indeed, the capacity to enjoy food is directly oriented to the good of the individual, while the capacity for sex is oriented to the good of the family and society (preservation of the species) rather than the need of the individual. This is a truth affirmed by those who have lived holy celibacy.
This divergence in ends would explain why the immorality of contraceptive sex is perhaps less obvious (to the individual) than that of gluttony (or the unbridled appetite for food and drink, in which induced vomiting, to allow one to continue eating or drinking, is roughly the moral equivalent of contraception). The undesirable consequences of the disorderly use of the sexual faculty (on family and society) may not directly affect the individual actor or agent, unlike those arising from over-eating or drunkenness.
The different purposes of the appetites for sex (for the good of society) and food (for the individual) would also explain why the pleasure in sex is more intense than in eating, This would be nature's way of compensating the individual for serving the social purpose. It is obvious that most people would still eat, knowing they need to in order to live, even with only the gentle prodding of the apetite. On the other hand, far less would think of marriage and raising a family without the greater incentive and strong urge therefor accompanying the marital act. Even so, the analogy stands: gluttony leads to the death of the individual; sex in denial of its procreative purpose leads to the death of the family and society.
Proponents of the notion that contraceptive sex were morally licit would argue that the purpose of the human sexual faculty is served already in the loving union of the partners; that there is no need to advert to the procreative end. On the contrary, however, to deny the procreative end of sex would also remove the rational basis for the very existence of the institution of marriage. Indeed, an indissoluble marriage is necessary precisely because sex is intended by nature for procreation, which includes the upbringing and education of the offspring; and because human life, in its totality, is so fragile in its developing stages. The good upbringing and education of the human offspring requires a lasting partnership of the father and mother; that is, lasting independently of the changeable preferences and circumstances of the parties. Thus, if sex is not for procreation, the institution of marriage would be meaningless.
It is precisely because of the obvious procreative purpose of sex that even primitive cultures have some sort of mariage. The common good requires a social “mechanism” to ensure the welfare of the offspring. Thus, to hold that the conjugal act may be separated from its procreative purpose, so as to justify contraceptive sex, is also to justify divorce (because there would be no need for permanence in the partnership of the spouses) and homosexuality (in which procreation is inherently impossible), and so to open the floodgates for the unwholesome scenarios arising from a prevalence of these (broken homes, juvenile delinquency, the AIDS epidemic, and so on), not to mention the problems of shrinking or aging populations in those nations that have early on adopted birth-control policies, confusing issues of social-justice and economics, with supposed over-population.
Contraception is the active removal of the procreative end from the sexual encounter by human action. On the other hand, sex during the infertile periods involves nothing of that sort: even if foreseen or availed of by the spouses, the impossibility of achieving the procreative purpose of the sexual encounter is “independent of their will”. Indeed, even during the fertile periods, “new life is not the result of each and every act of sexual intercourse.” Thus, sex during the infertile period is morally good in so far as it serves the unitive purpose (alone) of marriage, since it is not by human intervention that the procreative purpose is removed from the sexual encounter. It helps also to consider that “recourse to the infertile period” is actually, essentially, abstention or the non-use of sex during the fertile periods, in which case there is no abuse (no wrongful use) of the sexual faculty; hence, no moral disorder.
One last point. Much is often made of the idea of contraception as the only way to check population growth which supposedly condemns families to poverty. But this proposition unduly shifts the blame on the poor (for reproducing); whereas the causes of poverty lie elsewhere. Moreover, population control programs assume an authority to determine (by arbitrary, subjective criteria) who (or which economic classes, ethnic groups, or sectors) may multiply and who should eventually become extinct as a group. But the State has no such authority. To hold otherwise would justify the totalitarian state’s “one-child policy”, forced sterilization, even genocide or ethnic cleansing. Thus, right reason demands that society leave “the proper regulation of the propagation of offspring” to the right consciences of married couples, in accordance with the principle of subsidiarity; that is, without the undue influence of propaganda and other inducements or coercive measures, whether state-sponsored, foreign funded or financed by big business, and certainly without “legitimizing” immoral acts through legislation.
Much more can and would need to be said on the matter, but, for the moment, this representation feels that he has said enough.