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Monday, July 26, 2004
The Order of Nature - Parts I–V
My friend Phil Bess is a professor of architecture at Notre Dame and a regular participant in the MetaPhysical Planning sessions at the New Urban congresses. We've been debating Natural Law on the pro-urb and TradArch lists. I've been posting one part at a time his essay on New Urbanism and Natural Law, now all here in one piece. I'll be posting a response, with more coming from Phil.
You'll find some discussion on Natural Law in a different vein in New Urban Post IX, "On the Transect." For an introduction to the Transect, click here.
Abstract:
The Aristotelian-Thomist intellectual tradition’s understanding of natural law — which is the broad pre-modern tradition of western culture — is that there are certain foundational principles of morality that are (according to Thomas Aquinas) “the same for all, both as to knowledge and to rectitude” — in other words, principles of morality that are not only right for all human beings but knowable (and at some level known) to all human beings. These foundational principles of morality, along with their first few rings of implications, are known as the natural law.
The Urban Transect refers to that range of human habitats conducive to human flourishing within which human settlements are part of a sustainable (albeit not necessarily locally bio-diverse) eco-system. These habitats, diagrammatically depicted as Transect-zones (“T-zones”), range from less dense human settlements to more dense human settlements; but each urban T-zone denotes a walkable and mixed-use human environment wherein within each urban zone many if not most of the necessities and activities of daily life are within a five-to-ten-minute walk for persons of all ages and economic classes.
It is the thesis of this paper that, given this understanding and characterization of both natural law and the Urban Transect, the proposition “Human beings should make settlements in accordance with the Urban Transect” is generally valid for all human beings in all times and places — and therefore constitutes a natural law precept. If this is true, such a precept would be binding in conscience for — and acted upon with prudential judgment by — all persons who act in accordance with right (practical) reason; and especially for and by persons who understand themselves to be a part of the Aristotelian-Thomist intellectual tradition.
Introduction
The paper that follows is occasioned in part by a promise I made to New Urbanist theorist and practitioner Andres Duany: that if he would come to the Notre Dame and the Andrews University schools of architecture to speak with authority about the Urban Transect, I would follow his lecture with some much less authoritative considerations of my own about the relationship between the idea of the Urban Transect and what is known as natural law. But Mr. Duany and I may have quite different reasons for wanting to pursue these subjects. I suspect he is most interested in religious believers and believers in natural law (who overlap considerably, albeit not entirely) as part of a larger cultural “power-grid” into which the New Urbanist agenda might successfully be “plugged.” But though I am entirely sympathetic to that enterprise, my primary interest in the subject of urbanism and natural law has first to do with what I have gradually come to think is the truth of natural law as it is understood within a specific intellectual tradition (of which I will say more later); and second with my belief that unless a substantial number of New Urbanist theorists and practitioners come to recognize natural law as New Urbanism’s necessary philosophical and intellectual foundation, then a) New Urbanism is intellectually incoherent, and b) it will be difficult if not impossible for New Urbanists to achieve our own professed urban and cultural agendas of beautiful, free, just and economically diverse traditional towns and neighborhoods.
Since I have just alluded to the professed objectives of the Congress for New Urbanism, perhaps it is best to begin by observing that its foundational document — the Charter of the New Urbanism — is an argument that presents itself as an appeal to reason on behalf of the common good.1 From the Charter I excerpt the following passages2 that concern themselves primarily with the relationship between urban form, long-term sustainable eco-systems that also accommodate human beings and our activities, and a social order grounded implicitly in the virtue of justice:
The Congress for the New Urbanism views disinvestment in central cities, the spread of placeless sprawl, increasing separation by race and income, environmental deterioration, loss of agricultural lands and wilderness, and the erosion of society’s built heritage as one interrelated community-building challenge. [Intro.1]The careful reader will note that in these eleven short paragraphs the word “should” occurs eleven times. Also occurring are the words “deserve,” “require,” “we stand for,” “we advocate,” and “we are committed to.” From these words and paragraphs taken from the foundational document of the Congress for New Urbanism, and also from observing the actions of New Urbanists in the world, I draw the inference that New Urbanists regard traditional urbanism as a genuine human good that human beings ought to pursue. The subject matter of this essay is the nature and the status of that “ought.” Is traditional urbanism really good for all human beings everywhere, or not? Why ought human beings to live in traditional towns and neighborhoods instead of sprawl? Is the promotion of traditional urbanism a mere expression of preference, no different in its moral status than a preference for sprawl (a preference which today certainly seems to be wide-spread)? Or would one be correct in regarding the promotion of traditional urbanism in opposition to sprawl as morally obligatory? These are the kinds of questions I propose to consider here, under the rubric of “natural law;” and I simply note at the outset that both the structure of the New Urbanists’ founding document and the behavior of New Urbanists in the world suggest that New Urbanists do indeed promote a substantive view of urbanism, and do indeed believe it to be a genuine human good. The Charter does not say:We stand for the restoration of existing urban centers and towns within coherent metropolitan regions, the reconfiguration of sprawling suburbs into communities of real neighborhoods and diverse districts, the conservation of natural environments, and the preservation of our built legacy. [Intro.2]
We recognize that physical solutions by themselves will not solve social and economic problems, but neither can economic vitality, community stability, and environmental health be sustained without a coherent and supportive physical framework. [Intro.3]
We advocate the restructuring of public policy and development practices to support the following principles: neighborhoods should be diverse in use and population; communities should be designed for the pedestrian and transit as well as the car; cities and towns should be shaped by physically defined and universally accessible public spaces and community institutions…[Intro.4]
We are committed to reestablishing the relationship between the art of building and the making of community, through citizen-based participatory planning and design. [Intro.5]
Where appropriate, new development contiguous to urban boundaries should be organized as neighborhoods and districts, and be integrated with the existing urban pattern. Noncontiguous development should be organized as towns and villages with their own urban edges, and planned for a jobs/housing balance, not as bedroom suburbs…[I.5]
Cities and towns should bring into proximity a broad spectrum of public and private uses to support a regional economy that benefits people of all incomes. Affordable housing should be distributed throughout the region to match job opportunities and to avoid concentrations of poverty. [I.7]
Many activities of daily living should occur within walking distance, allowing independence to those who do not drive, especially the elderly and the young. Interconnected networks of streets should be designed to encourage walking, reduce the number and length of automobile trips, and conserve energy. [II.3]
Within neighborhoods, a broad range of housing types and price levels can bring people of diverse ages, races, and incomes into daily interaction, strengthening the personal and civic bonds essential to an authentic community. [II.4]
Concentrations of civic, institutional, and commercial activity should be embedded in neighborhoods and districts, not isolated in remote, single-use complexes. Schools should be sized and located to enable children to walk or bicycle to them. [II.7]
Civic buildings and public gathering places require important sites to reinforce community identity and the culture of democracy. They deserve distinctive form, because their role is different from that of other buildings and places that constitute the fabric of the city. [III.7]
The CNU views disinvestment in central cities, the spread of placeless sprawl, increasing separation by race and income, environmental deterioration, loss of agricultural lands and wilderness, and the erosion of society’s built heritage as problems directly related to the triumph of the post-1945 suburban ideal — but we may be wrong. Should you disagree, well, we really can’t say which of us (or whether either of us) might be right. But we really do like traditional cities; and we hope you will too...On the contrary, the tenor of actual New Urbanist arguments is declarative and prescriptive; it is both an ontological and a moral argument, an argument about the way things are as well as an argument about the way things should be. As such, the New Urbanist argument seems on the face of it to constitute an implicitly natural law argument — good or bad — on behalf of traditional urbanism; though I hasten to add that this is a conclusion denied and rejected, often vehemently, by many New Urbanists. Why this is so, and whether such denial and rejection are intellectually coherent, is also something I here intend to at least touch upon. For now though, I want to turn to the question: What is natural law?
Natural Law
I have learned from extensive conversation with fellow New Urbanists the difficulty of achieving consensus upon a definition of natural law. I therefore of necessity must consider self-consciously the idea of natural law from out of a particular tradition of thinking about natural law; in this instance, the tradition of natural law thinking that looks to Aristotle and Thomas Aquinas as intellectual touchstones for a community of intellectual inquiry that operates to this day, not exclusively but most prominently in the intellectual tradition of the Catholic Church. But this tradition is not, as we shall see, the only tradition of natural law theory; and there is currently a widespread revival of interest in natural law theory within both Protestant and Jewish circles, and others as well. Nevertheless, the Aristotelian–Thomist tradition has been particularly important, if not foundational, for natural law thinking throughout the whole of western culture. The methods of this tradition are empirical and rational (i.e., based upon both sense observation and reason); but even so I must acknowledge here a point developed most persuasively and at length by Alasdair MacIntyre,3 viz., that rationality is always rationality within a certain shared narrative structure, within a shared story — what sociologist Peter Berger has characterized as a “plausibility structure” (another name for which is a “tradition”). Nevertheless, the fact that rationality can only be judged as such from within a tradition does not mean that claims made from within an intellectual tradition are not universally true; but it does mean that the truth of such claims may or may not be apparent to those who are outside the intellectual tradition. In other words, considering here the example of the natural law: although a tradition may make a genuinely rational and true argument on behalf of natural law and its universality, and although this argument may be understandable to some people outside the tradition, we nevertheless should not necessarily expect everyone everywhere to understand it. To be understandable is not the same as to be understood; to possess the capacity to understand is not the same as to understand.
This caveat notwithstanding, the broad western understanding of natural law is that there are certain foundational principles of morality that are (according to Thomas Aquinas) “the same for all, both as to knowledge and to rectitude”4 — in other words, principles of morality that are not only right for all persons but knowable (and at some level known) to all persons. These foundational principles of morality, along with their first few rings of implications, are known as the natural law.
The term “natural law” necessarily implies something about both nature and law. Each of these concepts is difficult; but of the two, “nature” seems the more difficult because of the multiple meanings of the word “nature” that we employ even in everyday speech. We speak of “nature” substantively: in the sense of everything that exists (except God and other supernatural beings); or, alternatively, theists can speak of “nature” in the (slightly different) sense of “all created being/s.” We say that it is in the “nature” of rocks to be hard or of turtles to be slow, in the sense of “characteristic of;” or we say that it is in the “nature” of male and female mammals to mate, in the sense of an instinct they possess. Likewise, we say that Michelangelo Buonarroti and Peter Paul Rubens personified the “nature” of a sculptor and a painter respectively, in the sense that they were exemplary of their kind, specimens of the full and appropriate development of a certain kind of artist. In the case of the natural law, we generally mean that law is natural in at least two or three different senses: first, in the sense of referring to something real, as in the judgment “murder is wrong” is not merely a subjective feeling or an illusion, but rather speaks of genuine knowledge about the moral character of a certain kind of act; and second in the sense that the purpose of the natural law is to help guide human beings from the way we are at any given moment in our lives toward our full and appropriate development as human beings, i.e., the achievement of our life’s purpose, the fulfillment of our “nature.” We might also speak of a third sense in which the natural law is “natural:” that such law is knowable by, authoritative for, and binding upon all human beings by virtue of the kind of beings we are (i.e., by virtue of our nature); and that while such law can be ignored or broken, we can do so only at peril to our own well being.
The idea of “law” may be easier to define, though perhaps less easy for some to accept. Thomas Aquinas argued that genuine law has four essential characteristics: Law, according to Thomas, is “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”5 In other words, Thomas argues first that genuine law is rational, something that the mind grasps as right; second, that it necessarily is for the common good rather than the good of a select few; third, that it must be initiated by the person or persons authorized to initiate it; and fourth, that it must be promulgated / announced / made known to those toward whom it is directed. And this is characteristic of all law, not merely the natural law. To further consider the adequacy of this definition of law, as a mental exercise we might consider item by item the negative of Thomas’s definition. Most if not all of us would object to a law that is unreasonable, or be suspicious of a law designed for special interests rather than the common good.6 We would not recognize as law that which is not articulated and enacted; and we would not grant status to “laws” made by individuals who have not the standing to do so (which is but another way of saying that no human being is recognized by others as properly being, having or making a law unto him or her self).
Now Thomas himself, who was a Christian, speaks of several different kinds of law; the relations between which are diagrammed below:
Positive law is man-made law: 60 mph speed limits, life in prison for murder, zoning laws, etc. The natural law is made by God. More specifically, the natural law is that part of the eternal law which is immediately accessible to human reason without special revelation: do not murder, do not steal, etc. So the natural law is discovered by human beings while the positive law is made by human beings — the positive law always with reference to the natural law. When the positive law contradicts the natural law, it is said to be an unjust law (e.g., a law requiring all two-year old boys with red hair to be executed). Likewise, although both natural law and positive law refer to property, the natural law does so in a general way (theft is evil), while the positive law does so in a particular way (car theft will get you ten years in prison). The positive law changes as circumstances change (you can't have a law against cloning until cloning is invented), while the natural law is eternal (deliberate killing of an innocent person is always and everywhere wrong).
Having said this, it is important to add that most of the law that regulates human behavior is in fact positive (i.e., man-made) law; and it obviously varies not only from culture to culture, but even from city to city within the same larger culture. Nevertheless, all of these various positive laws may be regarded as legitimate so long as they do not violate the natural law. Thus it is a mistake to think that in identifying moral limits upon human behavior the natural law is somehow contrary to cultural pluralism. The natural lawyer simply maintains that there are certain behaviors that really are morally wrong for all persons in all places. The contrary view is that there is no natural law, but rather only positive / man-made law. But if this latter point of view is true, its corollary is that there are no human acts that are inherently and intrinsically wrong. If there is no natural law, everything is — at least in principle — potentially permissible.
It is important to say a few things about what the natural law is not.8 The natural law is not “innate.” We are not born knowing it, but rather with the capacity for knowing it and an inclination to it. A child is not born knowing that murder is wrong; but as soon as a child is capable of understanding what is meant by “murder” and “wrong,” he or she is capable of understanding that murder in fact is wrong.9 Natural law is not mere instinct; though it is not unrelated to certain biological realities of human beings as mammals, and the effects of these biological realities upon and their implications for the practical requirements of love and the care for children in the context of families. Natural law is not mere custom; though the customs of almost all times and places more or less acknowledge the natural law. Natural law is not simply a theory; rather it is a reality which theories attempt with greater or lesser success to describe. Finally, natural law is not a “law of nature” in the same sense that gravity is a “law of nature.” Indeed, given Thomas’s previous characterization of law, gravity is a law of nature only by analogy, since falling apples or rocks or other inanimate bodies are not freely and rationally aligning their behavior with a rule they know to be right.
So what are some precepts of the natural law? I have to say “some,” because no one of whom I know has ever proposed a definitive and exhaustive list of the requirements of the natural law. Indeed, Aquinas (and John Calvin as well) argues that one of the reasons that human beings require a specially revealed and specific divine law is because all but the most highly abstract principles of the natural law can be driven from the human mind by ignorance or by the corruption of sin.10 Aquinas also offers as one of the principal justifications for a positive divine law that people reason very imperfectly in matters of natural law.11 And Calvin adds that "the Lord has provided us with a written law [i.e., the Torah, or old law] to give us a clearer witness of what was too obscure in the natural law, [to] shake off our listlessness, and [to] strike more vigorously our mind and memory."12
The preceding caveat notwithstanding, consider ten natural law precepts about which natural law theorists (as well as most ordinary people) more or less agree; and then consider a new and hypothetical eleventh precept relevant to the Transect and the Congress for New Urbanism. These precepts are founded upon the observation-based premise that man is essentially and by nature a social animal who desires to know the truth about himself and the world (even if the latter desire appears uncharacteristic of some individual members of the human species). I reiterate that there are more than ten natural law precepts, and that the list that follows is not exhaustive.13
The first two are commonly regarded as “primary precepts” of the natural law---the moral precepts upon which all other moral precepts are based. These precepts are always right and always known; there are no exceptions.
1) good should be pursued and evil avoided14From these primary precepts are derived more or less by direct inference a whole series of “immediate precepts,” including the following (in no particular order):
2) harm no one gratuitously
3) render impartially what is due to every person (i.e., “be just”)The tenth precept is an example perhaps less widely known, and is an instance of a common natural law precept. A common precept is a more detailed immediate precept, and more remote from the primary precepts. Common natural law precepts are called “common” rather than “immediate” because there may be exceptions to them, and because they may not be so widely known as the primary and immediate precepts. The tenth precept, concerning the principle of subsidiarity, is implicit in much of the Aristotelian–Thomist natural law tradition, but was not really articulated as a natural law principle until the first third of the 20th century:15
4) do not take innocent human life
5) honor marriage and don’t commit adultery
6) care for children and the elderly
7) keep promises
8) don’t steal
9) treat others as you yourself would wish to be treated
10) observe and obey the law of subsidiarity (viz., that it is wrong “to assign to a greater and higher association what lesser and subordinate associations can do;”16 i.e., larger institutions should not attempt to do what smaller institutions do better)I want to suggest here that in its historic specificity the principle of subsidiarity is perhaps not unlike the articulation of the Urban Transect, because prior to the rise of sprawl the Transect was likewise not in need of articulation. So here is my eleventh natural law precept, a new one describing something heretofore understood implicitly, one perhaps best thought of for now as a common precept because it is not inferred directly from the primary precepts of the natural law but rather more circuitously; and because it requires an argument — not least about the Transect — in order to recognize it as a precept. So here it is:
11) human beings should make settlements in accordance with the Urban TransectBefore I go into greater detail however about why and with what corresponding definitions I think this eleventh precept can be considered a natural law precept, I still need to say more about what the natural law can and cannot do with respect to guiding moral behavior, both generally and with regard to the built environment.
Note first therefore the different character of the natural law precepts I have just articulated, specifically this: that some are formulated as positive admonitions (do this!) and some as negative admonitions (don’t do this!) more commonly understood as prohibitions. Now it is a fact that in the modern world, if most of us do not actually think of moral behavior as a matter of following rules, most of us are nevertheless taught to think of moral behavior as a matter of following rules; as in the sense of: “If I don’t break the rules, I am a good person.” But this is not at all the meaning of moral behavior in the natural law tradition, which is more characteristically focused upon the moral life as the development of good character habits (also known as virtues or excellences). It is impossible to overemphasize this point. To the list of ten natural law precepts here cited it would not be at all inappropriate to add any number of other moral virtues, some of which are already implied in my list of ten. One could say, for example, that the following positive admonitions are also declarations of natural law precepts: be courageous; be temperate; be just; make good judgments; be magnanimous; be a friend; be steadfast; be faithful; be hopeful; love your neighbor.
Nevertheless, moral behavior does require prohibitions — as for example against killing the innocent, against theft, and against bearing false witness — because certain acts are intrinsically destructive of those communities within which it is necessary for individuals to discover and realize their good. Still, although obeying the natural law prohibitions is obligatory, in the Aristotelian–Thomist intellectual tradition such rules are nevertheless clearly secondary for the substance of the moral life. It is noteworthy, for instance, that Aristotle has no explicit theory of natural law; though he does have an extensively developed argument that the best life for individual human beings is the life of moral and intellectual virtue lived in community with others, and especially, n.b., in a polis, or city. Likewise, although Thomas Aquinas develops in great detail in his Summa Theologica a theory of natural law, his so-called Treatise on Law follows immediately after his Treatise on Habits — follows, that is, Thomas’s detailed theory of the primacy of place in the moral life of virtues rather than rules.
But perhaps an example from the realm of sports will make this point clearer. Michael Jordan is acknowledged to have been the premier basketball player of his era; and he could not have been so had he not known and obeyed the rules of his game. Nevertheless, what made him the best player of his time was not simply that he followed the rules, but rather that he possessed certain skills and above all character habits that permitted him to succeed in basketball. (Please note that I am not saying that Michael Jordan is a very good person (he may or may not be); only that he was very good at his game.) Michael Jordan was a great basketball player not only because he had the skill to succeed and because he played in such a way as to make his team-mates better; but also because he knew how to exercise good judgment on the basketball court: when to shoot, when to pass, when to speed up the game’s tempo, when to slow it down, judgments all determined by his orientation to the telos or purpose of basketball, which is to win. The result was success at the highest levels of his game: not only the championships that his teams won, but also the standards of excellence he established that have become reference points for anyone who plays the game of basketball. In exactly the same way, success in the moral life — in negotiating our way within and through and on behalf of the communities of which we are necessarily and inevitably part — entails not simply following rules but even more importantly developing the good character habits (i.e., the virtues) that help us to live well both as individuals and as members of communities. Likewise, in the making of good cities, although it may be necessary for urban designers, architects, builders and patrons to obey the natural law precept to build human settlements in accordance with the Transect, this is not even close to being a sufficient condition for good city-making. What is needed to accomplish that objective is the productive reason and ability of the artist (i.e., the urban designers, architects and builders), which is not only a matter of not breaking rules but much more of exercising skill and making good judgments, of knowing and being accountable to the highest standards of the art of urban design.
It is important to note therefore that in the Aristotelian–Thomist tradition discussion of the virtues occurs under the rubric of considerations of practical reason. Virtues are the good character habits that enable human beings to negotiate our way successfully in the world; and “reason” in the Aristotelian-Thomist tradition is not limited to the kind of strict rationality that we in the modern world associate with mathematics, or geometry, or analytic philosophy.17 This latter rationality is only one kind of rationality (an extremely important kind but only one kind nonetheless) that in the Aristotelian–Thomist tradition is foundational for what is commonly called “speculative reason” — the kind of reasoning engaged in by scientists and philosophers and other theoreticians who of necessity have to use language very precisely. But my point here is that there are other kinds of reason, two of which in particular are germane to the subject of urban design.
One kind, as I have just noted, is called “practical reason,” the category under which falls consideration of ethics and morality. What does it mean to say that ethical behavior in the Aristotelian–Thomist tradition is an instance of practical reasoning. What it means is that the concern of ethics is with those forms of behavior conducive to the highly practical matter of individuals and communities living a good life. Indeed, the meaning of a “virtue” in this tradition of thinking is a character habit the exercise of which is conducive to achieving some desired good purpose or end. Thus courage: the willingness to risk discomfort, pain, or danger in pursuit of some important objective. Thus justice: rendering impartially to persons what they deserve. Thus charity: acting generously toward someone out of a sympathetic capacity to imagine their plight, whether or not they deserve generosity. And thus prudence: the habit of making good judgments. So when Andres Duany says publicly, as he often does for rhetorical purposes, that New Urbanists should be more interested in being practical than in being virtuous — as in something along the lines of “New Urbanists work communally in the world to promote environmentally sustainable human habitats (i.e., good urbanism), in the course of which we make pragmatic decisions in order to achieve the best projects we can under the constraints within which we have to work; in contrast to the ‘higher morality’ of environmentalists who care nothing for the human habitat, and/or to high-minded urban theorists and academics unwilling or unable to make such decisions and who therefore get much less good work built in the world”18 — he is in fact making a category mistake; because what he fails either to understand or to acknowledge publicly is that “practicality,” insofar as it is intended toward the realization of some genuine good or goods, is essentially synonymous with “virtue.” The de facto implication of such rhetorical statements employed in defense of the “pragmatism” of New Urbanists — pragmatism being a less precise term in contemporary parlance, alas, than prudential judgment — is that the willingness to make prudential judgments and their concomitant compromises in the course of advancing traditional urbanism in a cultural and legal context of sprawl is actually the better (and hence more “moral”) way to advance the good of traditional urbanism. Or to put the substance of Duany’s argument in a more familiar way: Sometimes prudential judgment requires us to not allow the perfect be the enemy of the good.19
Regardless of the wisdom of any particular prudential judgment, Duany’s most serious intellectual error (at least from the Aristotelian–Thomist perspective) is in professing (if not thinking) that in making a pragmatic decision he is acting outside the arena of “morality.” And this may be partly because Duany is failing to see prudential judgment as a virtue, but even more significantly because I suspect he is thinking of morality in terms of rules rather than virtues. But what makes prudence a virtue in the Aristotelian – Thomist tradition is precisely that good judgment is necessary not so much to decide between good and bad (such choices for most of us are relatively easy to determine; though not always so easy to act upon), but rather especially because good judgment is necessary to make choices that involve a conflict of goods in which no rule or set of rules can guarantee the moral correctness of one’s choice. Indeed, if we think of some popular films from the last twenty years or so, such as “Witness” or “The Fugitive” or “Babette’s Feast,” much of what makes them dramatically compelling is less the conflict between good and evil found therein (and there is genuine evil represented in these stories, particularly in “Witness” and “The Fugitive”), but rather the conflict between goods: the rough justice of the Catholic Philadelphia cop who falls in love with the pacifist Amish woman he is trying to protect; the conflict between the bulldog detective chasing down a fugitive who we (but not the detective) know to be innocent; the conflict between the self-chosen asceticism and good works of two rural Danish Lutheran pietist sisters and the urban Catholic sacramental sensibility of their Parisian housekeeper who unbeknownst to the sisters is a master chef. With whom does one identify and for whom does one inwardly “cheer” in these dramatic encounters? For me, it is hard to avoid identifying with and cheering for all of them; except that we recognize the inherently tragic circumstance that no single and contingent individual can choose and embody all these various goods, and that hard existential choices must necessarily be made — though in a religious framework these tragic choices are redeemed, making the dramatic narrative, in fact, inherently comic (as “Babette’s Feast” exhibits explicitly).
In addition to speculative reason and practical reason, there is yet a third kind of rationality, to which I have already alluded but here can mention only in passing; and this is what we might think of as “productive reason.” To engage in the making of something — which is the very broadest definition of artistic activity — is to exercise “productive reason,” i.e., reason–in–making (which is, n.b., Aquinas’s very definition of “art”). Architects and engineers for well over a century have mistakenly tried to apply the canons of speculative reason to the making of architecture and cities in the attempt to “rationalize” architecture and urbanism in the modern age. But the practices of architecture and urbanism at their highest levels have always been rational; they exhibit the productive reason that is characteristic of any living tradition, that hands down from generation to generation the very best standards of the arts (n.b., not sciences, at least in the modern sense) of architecture and urbanism — the accumulated human knowledge of which in the 20th century was lost within two generations by those who mistakenly alleged to practice architecture and urbanism according to the canons of speculative reason rather than the necessarily less precise but far more efficacious canons of productive reason.
Before returning to the Urban Transect and whether and under what circumstances we might think of it as having natural law implications, I want to say one last thing about the natural law pertaining specifically to its universality. It will not have gone unnoticed that to this point I have been considering natural law in terms provided by a 5th century B.C. pagan Greek and a 13th century A.D. Italian Catholic. The fact that I have been doing so has only to do with the quality of their thinking about the natural law, not with whether the natural law is right for and knowable by all persons. As I mentioned earlier, the foremost institutional exponent of the natural law in the world today is the Roman Catholic Church; but there are very interesting reconsiderations of the natural law currently taking place among Orthodox Jews (see for example David Novak’s recent book Natural Law in Judaism) and among Reformed Christians of the Calvinist tradition, both of whom are looking to resources for natural law thinking from within their own authoritative traditions rather than to Aristotle and / or Aquinas.20 The importance of natural law thinking within any of these religious communions is not to provide a rationalist substitute for the specific authoritative traditions of these several communities of faith. It is rather to acknowledge, identify, and when necessary appeal to a foundational moral sensibility shared by all human beings, even if the natural law is perhaps less perfectly understood by persons whose ability to understand the natural law by virtue of reason has not been supplemented by revelation; and also to understand the natural law as a potential piece of common ground if and when one engages persons from outside one’s own community of faith in civil discourse in the public realm.
Here it is necessary also to note that belief in the natural law — i.e., again, in objective standards of morality that are right for all and knowable to all mdash; is not by any means the prerogative of the Judaeo–Christian culture of the west. Perhaps the very best brief 20th century argument for the reality of the natural law is C.S. Lewis’s slender book The Abolition of Man, in which Lewis refers to the natural law as the Tao, precisely in order to emphasize that even if the implications of natural law theory are theistic, natural law itself is a foundational idea recognizable in cultures which are not necessarily theistic at all. Not the least interesting part of the book is its appendix, wherein Lewis catalogs references to eight different precepts of the natural law drawn from cultures and sources as diverse as ancient Egyptian, old Norse, pagan Roman, ancient Babylonian, Indian Hinduism, native American, the Analects of Confucius, ancient Greek and Anglo-Saxon epics, Australian aboriginal oral traditions, and 17th century English literature — as well, of course, as Hebrew and Christian scripture.
The Transect and Natural Law
I turn now to the subject of the Urban Transect and its relationship to the natural law. The Congress for New Urbanism has undertaken the revival and creation of traditional towns and neighborhoods in a physical context of sprawl and the legal and cultural context that promotes it. One of the intellectual tools increasingly employed by New Urbanists is called the Transect, an idea presented by New Urbanists not only as an intellectual construct but as a discovery and articulation of a general principle of both land use and historic human settlement.
A common New Urbanist diagram of the Transect depicts six distinct Transect Zones (T-1 through T-6). Zones T-1 and T-2 refer to Rural Transect zones in the most general way, insofar as they relate to the development of human habitat. The Urban Transect, strictly speaking, is described by zones T-3 through T-6; and together with the Rural Transect zones constitute the Transect proper. The Transect seeks and purports to describe some general conditions of good human settlements, and can itself be used as the basis for locally particular zoning codes.21
Andres Duany has referred to the Transect as a “natural law,” adopting a dictionary definition of natural law as “a principle derived from the observation of nature by right reason and thus ethically binding in human society” [emphasis added]; and in a footnote likens natural law to Thomas Jefferson’s references in the Declaration of Independence to “self-evident truths.”22 But although I intend to argue shortly for a relationship between a certain understanding of the Transect and the natural law, Duany’s dictionary formulation of natural law seems to me almost but not quite right; and would have been better formulated had it said instead that a natural law is “a principle derived from the observation of nature and recognized by right reason to be ethically binding for individuals and human society.” The big problem with the dictionary formulation employed by Duany is the word “thus,” which blithely purports to leap the huge chasm that in the modern world divides what we believe to be our extensive knowledge of what is from what we believe to be our excessively modest knowledge of what ought to be. But how we get from the “is” to the “ought” depends entirely upon our understanding of human nature: and specifically upon whether or not human beings even have a nature, and if there is a telos or end or good toward which all human beings are oriented.23
Duany’s reference to Jefferson is particularly illuminating. The Declaration of Independence refers at the outset to the separate and equal political station of a people “to which the Laws of Nature and Nature’s God entitle them;” and continues with the assertion that all men are created equal and “endowed by their Creator with certain inalienable rights,” including life, liberty and the pursuit of happiness. But here we must note two things in particular. The first is that although Jefferson is enumerating a list of inalienable human rights, he is careful to anchor them in an account of our divinely created status. In other words, the revolutionary implications of the idea of “inalienable [read “natural”] rights” follow from a traditional (if not here extensively articulated) understanding of natural law. However, it is quite clear that the rights Jefferson enumerates are not (even if true) “self-evident.” If they were, why would it be necessary to enumerate them?24 The second thing to note is the distressing turn in modern culture subsequent to Jefferson where we increasingly are confronted with assertions of “natural rights” independent of their grounding in natural law — an idea of rights once aptly referred to by British Utilitarian philosopher Jeremy Bentham (himself no fan of natural law) as “nonsense on stilts.”
But let me return to an argument for the Urban Transect both consistent with much of the behavior of New Urbanists and that also acknowledges two contentions prominent in the Charter for the New Urbanism itself: first, that conventional post-war sprawl development is unjust; and second that conventional post-war sprawl is culturally and environmentally unsustainable. Taking these factors into account, I would propose the following definition of the Urban Transect:
The Urban Transect refers to that range of human habitats conducive to human flourishing within which human settlements are part of a sustainable (albeit not necessarily locally bio-diverse) eco-system. These habitats, diagrammatically depicted as Transect-zones (“T-zones”), range from less dense human settlements to more dense human settlements; but each urban T-zone denotes a walkable and mixed-use human environment wherein within each urban zone many if not most of the necessities and activities of daily life are within a five-to-ten-minute walk for persons of all ages and economic classes.This definition of the Urban Transect clearly owes much to the larger discussion of the Transect that has been occurring among New Urbanists for several years now. Nevertheless, while I acknowledge my debt to that discussion, the definition of and claims for the Urban Transect that I am here putting forth may or may not find wider support among New Urbanists, in part because I am trying to make more precise what some New Urbanists perhaps prefer to leave ambiguous.25 But while there are surely occasions when prudential judgment warrants ambiguity rather than precision, this seems to me not to be one of them, inasmuch as current New Urbanist ambiguity about the nature of our own claims on behalf of traditional urbanism and the Transect to me seem more to reflect potentially damaging intellectual incoherence than justifiable strategy.
The first thing to note about my definition of the Transect therefore is its generality. The New Urbanist Transect diagrams I have shown above and on page 1 are inevitably culturally specific in their imagery; but the idea of the Transect is general and could be represented in a variety of cultural modes. Indeed, in this understanding, specific places in the world — each presumably reflecting a locally specific climate, within a locally specific culture and economy — relate to the Transect in a way exactly analogous to the relationship of culturally specific positive laws to the natural law.
The second thing to note is that my definition of the Transect is normative: it is intentionally defined not only to include good forms of human settlement but also to exclude bad forms of human settlement.26 Although my normative definition of the Transect acknowledges and leaves room for a wide variety of human settlements — from the single family house of the T-3 zone to the Parisian apartment of the T-6 zone — it nevertheless does not include every form of human settlement. It makes distinctions; it is not the night in which all cats are black. A normative definition of the Transect proposes that we really can distinguish between good and bad human settlements with respect to human flourishing and environmental sustainability. It suggests for example that large parts of 18th century Manchester, England really were bad human settlements, for both human beings and local eco-systems. It suggests, to take another example, that large parts of contemporary Mexico City really are bad forms of human settlement that need to be reclaimed and ought not to be emulated.
And then there is the question of conventional post-WWII sprawl development. Here are some of the problems commonly associated with sprawl, problems that are either direct consequences or unintended byproducts of sprawl’s formal patterns of development:
• sprawl makes it impossible for people of different generations and different incomes to live in proximity to one another, and to work, shop, play, learn and worship in the same neighborhoodThe conclusions I draw are that because the formal patterns of sprawl encourage unjust and environmentally unsustainable human settlements, therefore 1) sprawl development should not be emulated and perpetuated; and 2) sprawl development should not be regarded as part of the Transect.• sprawl effectively de-mobilizes and disenfranchises those without cars and those unable to drive, notably children (whose parents must become chauffeurs) and the elderly
• sprawl injures the common good by concentrating both wealth and poverty; by separating people by income, age, and race; and by failing to provide a genuinely public realm shared by all:
• because sprawl separates housing settlements by class, it promotes extreme inequality of educational opportunity;
• sprawl hastens the loss of agricultural lands and wilderness, and the settlements it creates are not worth the tradeoff;
• sprawl, by its automobile-dependent lifestyle, contributes to unprecedented rates of obesity;
• sprawl is ugly, and produces nothing in the public realm worthy of aesthetic contemplation;
• although suburbia has become a cultural ideal, it is a contradictory ideal because sprawl consumes the landscape that is the very substance of its promise; and finally
• because sprawl cannot deliver on its promise of convenience, mobility, natural beauty, individual freedom and well-being for all, its self-contradictory dynamic is culturally problematic and undermines the common good. This is evidenced in part by the observation that often the persons most recently arrived at the fringes of suburbia are also the persons most vociferously opposed to its continuing extension (the political phenomenon that has come to be known as NIMBYism—“Not In My Back Yard”).
Now, part of my claim that the New Urbanist argument on behalf of traditional urbanism is implicitly a natural law argument is simply the nature of the arguments that New Urbanists ourselves already make on behalf of urbanism: viz, that we appear to be arguing that traditional urbanism is an objective good not simply by virtue of its aesthetics nor simply by virtue of its utility, but by virtue of its promotion of both the good of individuals and the common good as implied in the Charter. But as I have heretofore alluded, this argument meets resistance among some New Urbanists, the nature of which I will describe shortly. Here however I refer to comments by professional theologian and student of New Urbanism Randall Smith of the University of St. Thomas in Houston. Professor Smith writes:
[I]t is sometimes hard to see what the [New Urbanist] problem [with natural law] is. [Perhaps] the problem lies merely with the term "natural law." Perhaps the term should be jettisoned…. [T]he question is: Do New Urbanists think that the kinds of traditional urban neighborhoods they build are actually better in terms of human flourishing than…those built in suburban sprawl zones? Or do New Urbanists favor traditional urban [neighborhoods]… because:So what exactly are the objections I’ve encountered from New Urbanists to my contention that New Urbanists both do and should argue for our objectives from natural law assumptions? Essentially, there are four:a) traditional neighborhoods are more quaint (i.e, it's a purely aesthetic difference);If [New Urbanists] reject rationales a, b, and c as inadequate, and rather believe…that New Urbanism is actually more in keeping with human health and human flourishing -- then they should simply say so... (If they don't recognize that as "natural law"…so be it.) …. [T]he reason I can't understand the problem is that, in everything I read about New Urbanism, all New Urbanists seem pretty certain and convinced that their view of urban design is better and more conducive to human flourishing than sprawl. To me, this appears to be an unquestioned premise of the movement. All [the natural law theorist is] doing is coming along and pointing that out to them, and then giving [their] view a name. Are they troubled by the name or by the fact that they already all hold that view?27
b) traditional neighborhoods are more profitable (i.e., on purely capitalistic grounds: the return on investment is better -- at least in the long run); or
c) traditional neighborhoods are “just what New Urbanists do" (i.e., our approach to urban design is merely one sort among many, and we’re marketing ours).
1) that natural law arguments are “conservative” arguments (and therefore shouldn’t be associated with the Congress for New Urbanism);My reply to these objections must be brief:2) that natural law arguments are used by those who oppose homosexual marriage and abortion-on-demand (and therefore shouldn’t be associated with the Congress for New Urbanism);
3) that natural law arguments presume that human beings have a “nature” (and therefore shouldn’t be associated with the Congress for New Urbanism); and
4) that natural law arguments imply the existence of God (and therefore shouldn’t be associated with the Congress for New Urbanism).
To the first objection I would say that although many if not most persons who hold the Aristotelian-Thomist view of natural law are indeed cultural conservatives, this does not necessarily make them political conservatives. To cite but two counter-examples: Libertarians appear to have little use either for the positive estimation within the natural law tradition of the legitimate authority of government, or for the natural law notion that the common good is something more than the sum of individual desires. And Martin Luther King, Jr.’s famous “Letter from a Birmingham Jail” is an explicit appeal to an eternal if not natural law understanding of justice. But more importantly with respect to this particular New Urbanist objection (and setting aside the interesting if unspoken assumption that political liberals have a monopoly on correct thinking about the relationship of good urbanism to the common good), it is the natural law insistence upon objective standards of justice that offers the only non-theistic intellectual justification for protecting the weaker members of society from the stronger members of society, a concern I have always understood to be a moral cornerstone of the liberal social agenda.
To the second objection I would say first that the Congress for New Urbanism has no need to take any position at all on the issues of homosexual marriage and abortion-on-demand. That said, the more important point is that just because there is disagreement about the implications of the natural law when applied to one issue or set of issues does not mean that there cannot be consensus about the implications of the natural law for another issue or set of issues. Considering the fact that most of the arguments (good or bad) one hears in favor of homosexual marriage are also themselves implicitly natural law arguments (good or bad) from justice, the fact that there are natural law arguments against homosexual marriage clearly does not constitute a persuasive argument that therefore there is no such thing as the natural law.28
The third objection — that natural law theory presumes human beings have a nature — is a much more serious and substantive complaint, because the history of much of the modern era is premised upon the idea that there is no such thing as human nature, and that human beings are both self-made and infinitely malleable. The unfortunate 20th century consequences of that belief for both global politics and the human habitat seem to me plainly evident; and I infer not only from these negative witnesses but also from the positive witnesses of both natural law theory and New Urbanist theory and practice that human beings do indeed have a nature — the existence of which does not in the least exclude the influence and significance of history and culture. If the view of human nature implied in the Charter for the New Urbanism is perhaps less well articulated than it is in natural law theory, rectifying that is both an immediate and long term objective of this essay.
Finally, the fourth objection, which in fact is related to the third — that natural law theory implies the existence of God. I agree that it does: if there is a law there is a law-giver; though the natural law in and of itself gives us a much more generic view of God than that provided by biblical revelation, for example. I hasten to add the obvious: that there should be “no religious test” either for membership in the CNU or for advocating that building in accordance with the Urban Transect is something that human beings ought to do.29 But on this larger objection — that we must not and can not embrace a natural law argument for traditional urbanism because such an argument implies the existence of God — here my differences with my objectors run deep; and it is a dilemma, because I picture them in my mind’s eye, and I have fond regards for them all. Some deny God because they must; to them, God is literally incredible. Others deny God because they appear very much to love being in denial. Still others deny God because they have been wounded, and remain unable to separate thinking about God from some unhappy childhood or adult experiences associated with religion — a circumstance that especially commands the sympathy and patience of religious believers. Nevertheless, the denial of God is a dilemma deeply embedded in the cultural dilemmas of modernity; and can be described as something like this: If human beings have no nature, then we have no natural telos or purpose. And what this has meant in the modern world, where the belief that human beings have no nature is widespread, is that rather than the purpose of an individual life being to discover one’s unique vocation — literally, one’s calling from God; i.e., that work which an individual needs to do both for his or her own gladness and for the world’s — rather than discovering one’s own vocation (which in the modern view is an illusion) one instead makes an artifact of one’s life. One is forced to become an artist because one has no un-chosen obligations. Likewise, the implication of there being no natural law (and eo ipso, no God) is precisely that there are no un-chosen obligations; and therefore that everything — genocide, murder, chattel slavery, cloning, totalitarian politics, abortion-on-demand, sprawl — is in principle permitted, if only as an aesthetic and experiential “choice.”30 In such a cultural context, is it a surprise that therapeutic individualism and artistic self-expression — those preconditions of suburbia, those banes of good traditional urbanism, those foundational assumptions of first-year architecture students (and many of their teachers) — are normative?
Many of the leading architectural figures of the Congress for New Urbanism have worked incredibly hard to overcome the dogmatic modernist architectural and urbanist ideologies they learned in school. But although New Urbanists have begun to wean ourselves away from the ideology of modernist urbanism and to relearn the art of traditional urban design, to the extent that we still recoil from the notion of obligation &mdash even as we evangelize others on behalf of the goodness of traditional urbanism — we have still not weaned ourselves from the individualist and emotivist sensibilities of the modern world. There remains, I fear, a modernist anthropology very near the heart of the CNU that I suspect is in fact incompatible with traditional urban culture and our own professed urban and cultural objectives; and the danger of this, as always, is that an incorrect understanding of human nature has detrimental consequences for the making of our cities. If we mis-understand what cities are for, we will surely make them badly.
The merit of the natural law intellectual tradition is that it allows New Urbanists to argue in good faith for why traditional urbanism is a genuine human good and why suburbia is objectively problematic. By attending to the complex inter–relationship between biology, culture, and human agency (i.e., will) with respect to individual and collective human behavior, and without denying either our social or biological natures, the natural law intellectual tradition draws us away from modernist temptations to social and/or biological determinism by its dogged insistence that character is the key to civilization, not only in terms of social justice and human happiness but also in terms of artistic production and aesthetics. It reminds us that it is a false objective to seek for what T.S. Eliot called “social arrangements so perfect that they will make us good.” And it allows us as architects and urban designers to steer ourselves away from sterile notions of the zeitgeist and personal “authenticity” in favor of the fecund language of craftsmanship and of moral and intellectual and artistic excellence.
Conclusion
I would like to conclude with a set of ten propositions about nature, human nature, and traditional urbanism that condense the preceding argument into a more concise form. Because the language of these propositions is terse and declarative and warrants elaboration, I hope it will be clear why I am offering them here at the end rather than at the beginning; because my intent throughout has been elaborative.
1. "Nature" includes everything that exists, except for God.To clarify briefly how the preceding understanding of nature and human nature takes into account certain key discoveries, themes and insights of the modern world, I offer the following three additional comments:2. Nature exists independently of human beings.
3. Human beings are animals, and "human nature" is part of nature. Human beings are distinguished from the rest of nature by our capacity for productive, practical and theoretical reason; hence man has been characterized traditionally as the “rational animal.” Human membership in nature and the human capacity for reason are what make it both possible and morally obligatory for human beings to be good stewards of nature.
4. The best life for individual human beings is the life of moral and intellectual virtue lived in community with others, typically in a town or city.
5. It is part of human nature to make culture, including physical culture made from found nature transformed by human efforts into cultural artifacts.
6. Human beings are by nature social, and different cultures are the social and historical forms of individual and communal human aspirations for, and understandings of, the very best kind of human life.
7. The cultivated landscape, buildings, and cities in turn are the physical and spatial forms of culture.
8. Arts such as agriculture, architecture, and city making are therefore most precisely understood as cultural interventions in nature (and, n.b., have histories of development) that are also themselves in some sense natural.
9. It is in this sense therefore that Thomas Aquinas means that reason is the tool with and by which man (male and female) participates in nature; and that art — in the broadest possible sense, the making of things, choses, artifacts — is "reason in making."
10. It is also this sense in which Aristotle meant that "art imitates nature," i.e., the human artist acts towards his or her desired ends in a manner analogous to the way nature acts towards her ends; and human beings do so owing to our peculiar place in nature as "rational animals."
1. Both Nature and History are dynamic. Therefore, while our knowledge of them may be true, it is necessarily always incomplete.Penultimately — inspired by a similar small exercise once undertaken by the great art historian Ernst Gombrich — I offer for consideration the following rough draft of a secular New Urbanist “creed,” informed by and viewed through the lens of the Aristotelian–Thomist natural law tradition, but absent the specific references to natural law that might make it anathema to some:2. Traditions are the way human beings make sense of the world; and traditions both maintain continuity and change as they are confronted with changing contingent circumstances.
3. Although debased by the Enlightenment, “progress” is a perfectly good word that nevertheless must always be measured and considered as progress toward a goal.
We believe that individual well–being requires good communities, and that a safe and beautiful public realm is a common good. We believe that individuals have both rights and obligations, and that individuals should have as much freedom as justice allows. We contend that traditional villages, towns and urban neighborhoods have proven themselves to promote and sustain diverse living conditions that both support and are supported by the free exchange of material goods and ideas.Finally, I have no idea how much if any interest there is among New Urbanists —most of whom (thank God) are not theorists — in the subject matter of this essay. If there are some New Urbanists who find my arguments compelling: well, God bless them. For those New Urbanists who don’t: well, God bless them too, with more coherent philosophical arguments for traditional urbanism than I have seen so far. Of equal concern to me however is how these arguments — not only for natural law, but also for traditional urbanism — are received within a variety of faith communities to whom these arguments have also been directed. There is a lot that Catholics and Jews and Calvinists and Seventh–day Adventists can and should learn from New Urbanists about the merits — and especially the formal characteristics — of good towns and neighborhoods. But Catholics and Jews and Calvinists and Adventists also bring with us certain cultural resources of which New Urbanists may be in shorter supply than we realize. I am thinking in particular of the fact that such faith communities (and others as well) are already communities in which membership is not a strict function — either theoretically or “on the ground” — of age, class, or race. It will be interesting to see whether it will be easier for our ever–so–suburbanized contemporary communities of faith to learn and adopt the principles and practices of traditional urbanism, or for New Urbanists to learn and adopt the principles and practices and obligations of mixed–class, mixed–age and mixed–race communities; but salutary, I say, if each can learn to do both.We believe that the Urban Transect as a principle both promotes and accounts for the widest possible variety of free, just and environmentally sustainable human settlements. We therefore profess traditional urbanism in all its manifestations through the Urban Transect as the best way for human beings to organize and make human settlements. We fight for those who desire to live in compact, diverse, walkable communities, in the proximity of open landscape, plazas, squares, and pedestrian–friendly streets. We fight for the legal right to build traditional towns and neighborhoods.
We hope and believe that the merits of traditional towns and neighborhoods, manifest in various specific local forms, will cause traditional urbanism to once again someday prevail as a cultural norm. We work for the common good now, and for the common good of future generations. [“Amen” optional….]
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1. I.e., just to be clear: by “common good” I mean a set of goods implicitly shared by political liberals and conservatives, religious believers and unbelievers, rich and poor, young and old, men and women, heterosexuals and homosexuals, and persons of all racial and ethnic backgrounds.
2. References are to the Charter Introduction; sections I, II, and III; and paragraphs therein.
3. First in After Virtue, developed subsequently at greater length in Whose Justice? Which Rationality?
4. Summa Theologica, Part I of Second Part, Question 94. Article 4 (I-II 94, 4)
5. Ibid, I-II 90, 4
6. This “common sense” of the nature of law as existing for the common good is of course very different from the way contemporary jurists and legal theorists think about the law. Edward Oakes, in his review of Craig Bernthal’s The Trial of Man: Christianity and Judgment in the World of Shakespeare in the June / July 2004 issue of First Things (pp. 45-46) quotes Bernthal’s characterization of law as it is understood in the modern west:
The prevailing theory of law in our time is that the law is rational, utilitarian and secular. Legislators create rules to accomplish policy objectives. Laws are the instruments used to promote the finite material interests of particular groups and individuals. Judges, in reaching decisions, use legal precedents to solve problems, not to propound universal truths or to make the will of God explicit. Laws are not evaluated with respect to any universal standard of right and wrong, but by workability.Oakes contrasts this with the view of law that prevailed in Shakespeare’s England (among both Protestants and Catholics). “For Elizabethans,” writes Oakes
positive law derives from natural law, which itself flows from the divine will. This means above all that a just verdict in a human court must in some way reflect, and be validated by, the divine verdict; and when the two diverge, divine judgment waits in the wings and will not ultimately be stayed or thwarted. For example…the great Anglican [legal theorist and] divine Richard Hooker asserts: “The judgments of God do not always follow crimes as thunder follows lightning, but sometimes the space of many ages comes between…”Few if any New Urbanists of course would describe the Transect (or violations of the Transect) in such Elizabethan terms; the cultural air we breathe is the cultural air we breathe. Nevertheless, New Urbanist arguments for traditional urbanism are not substantially different from Hooker’s: there is hell to pay (so to speak) both environmentally and socially for human beings who habitually and systematically make human settlements in disregard of the Transect. Moreover, as I have already suggested, the Charter of the New Urbanism itself describes its traditional urban objectives not as a special interest but rather in terms of its contributions to the common good. This suggests one of two things: either the Charter is an exercise in bad faith, presenting itself as something it is not; or its objectives are better described in terms of implicit natural law assumptions than by the utilitarian / interest-group understanding of law common to the modern age. New Urbanists will have to decide for ourselves whether we wish to represent ourselves as just another special interest group; and if not, whether we wish to be intellectually coherent.
7. I am indebted to Dino Marcantonio for the succinctness and clarity of these characterizations.
8. Again, I am especially indebted in what follows to Jay Budziszewski.
9. St. Paul writes that there is a moral law distinct from divinely revealed law which is “written on the heart” of every person (Romans 2:15), suggesting there is a correspondence between every individual’s inner capacity for moral knowledge and the objective moral order of the universe. An obvious analogy here is with mathematics, which on the one hand seems purely a product of the human mind, but on the other seems to correspond in ways both observable and yet to be discovered with the physical structure of the universe. The reason this can be so — in the realms of both morality and science — is because human beings are ourselves part of the same universe we are seeking to understand, and share its basic structure.
10. Thomas Aquinas, op. cit., I-II 94, 4.
11. ibid, I-II 91, 4.
12. John Calvin, Institutes of the Christian Religion, Book II, Chapter VIII, Section 1.
13. The fact that I have chosen ten is not an accident; but neither should the fact that some of these ten natural law precepts overlap with the Decalogue be a surprise, in light of Aquinas’s understanding of the eternal character of both the natural law and the old law of the Hebrew scriptures.
14. This is the equivalent in practical reason of the law of non-contradiction in speculative reason: that “a” cannot simultaneously be both “a” and “non-a” at the same time and in the same respect. See Thomas Aquinas, op. cit., I-II 94, 2.
15. Indeed, the historic circumstances of the articulation of the principle of subsidiarity are quite precise, viz., in response to the rise of the totalitarian state, prior to which the articulation of the principle had not been necessary. The principle of subsidiarity was intended to counter that idea of government perhaps most succinctly described by Mussolini as “all within the state, nothing outside the state, nothing against the state.”
16. Pope Pius XI, Quadragesimo Anno, paragraph 79, May 1931.
17. With regard to rational precision, Aristotle’s marching orders remain unsurpassed in their rationality, precision and wisdom: “It is the mark of an educated [person] to look for precision in each class of things just so far as the nature of the subject admits; for it is equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs” (Nichomachean Ethics, Book I, Chapter 3).
18. This, of course, is my paraphrase; a gifted rhetorician, Duany is simultaneously more eloquent and less prolix.
19. On the other hand, sometimes the excellent does have to be defended tenaciously, even in order to advance the good. European architect Leon Krier, the intellectual godfather of New Urbanism and a major influence upon Duany’s work, once famously declared that he did not and would not build buildings in the context of the contemporary world of sprawl precisely because he — Krier — is an architect. Happily, Krier has reconsidered, now that he has the opportunity to design prominent buildings in the context of Duany Plater-Zyberk designed traditional town plans. But ethically speaking, both Krier’s strict position and Duany’s more flexible position can be defended as moral behaviors insofar as they represent exercises of prudential judgment: they are penultimate and strategic positions adopted in the service of good urbanism. My own sense, unavoidably informed by my own Catholic / catholic sensibilities, is that individual prudential judgments are necessarily related to and in part justified by the particular vocation (in the full religious / existential sense of that term) of the individual making the judgment — presuming that the end being sought is a genuine good.
20. An early version of this paper was presented as a talk at Andrews University, which is a Seventh–day Adventist institution. I am not intimately acquainted with the writings of Ellen White, and don’t know whether similar implicit natural law resources exist therein for Seventh–day Adventists; though historic SDA concerns for human health and well–being perhaps provides Seventh-day Adventists an immediate opening to natural law thinking. Regardless, the scriptural resources foundational for Catholic natural law thinkers can also provide a starting point for evangelical Protestant Christian thinking about the natural law — especially verses 14–15 of the second chapter of St. Paul’s letter to the Romans, and the theological implications to be derived from the Genesis account of creation.
21. In this respect the Transect is like the natural law, and particular zoning ordinances are like positive law — except that I am arguing here for identity rather than similitude; i.e., the Transect is a natural law, and particular zoning codes are positive laws.
22. Andres Duany, “Introduction to the Special Issue: The Transect,” Journal of Urban Design, Vol.7, No.3, p. 253.
23. The famous modern difficulty of deriving evaluative judgments from descriptive accounts — that is, to describe something that is as something that is good or is bad — only exists because modernity denies that human beings have a nature. In cultures and/or sub-cultures where there is greater consensus about the purpose of being a human being, there is no more trouble commonly recognizing from empirical observation a “good” human being than sports fans have recognizing that Derek Jeter is a “good” baseball player, or that Tiger Woods is a “good” golfer.
24. The same line of reasoning incidentally applies also to the moral authority of the Urban Transect: it may be true, but is clearly not “self-evident.”
25. The positing here of a normative definition of the Transect in the interest of greater precision is only the most important of several thoughts about the Transect that are perhaps not shared by other New Urbanists. But if this first point seems to me fundamental, the ones that follow may be more like issues about which intelligent people of good will simply disagree. For example: I concur that Transect zones can be regarded as “locally calibrated,” — meaning that what is T-3 (“Sub-Urban”) or T-6 (“Urban Core”) in Italy or Indonesia may not be T-3 or T-6 in the United States. Nevertheless, I think that with regard to absolute density T-zones should be regarded as similar; and also that it is not necessarily the case that every human settlement must have every (or even most) of the urban T-zones within its borders. (The whole point of a T-zone is precisely that it is mixed-use and walkable, and hence potentially capable of standing on its own.) Or to take a second example: Should the Urban Transect diagram include Districts (which are defined as large parcels of land devoted to a single-use)? In my opinion---the diagram on the preceding page notwithstanding — it should not; not because Districts are not to be permitted or because Districts don’t occur or because Districts are not needed, but simply because Districts are exceptional whereas the Urban Transect diagram is typical and normative. Or, to take a third example (with respect to what appears to be the unfortunate temptation of some New Urbanists to view the Transect as the comprehensive organizing principle of all of life) are some rural-to-urban “transects” — e.g., transects of shoes, of hats, of building styles — better understood as embodiments of custom and tradition (i.e., as cultural) rather than as natural? That is: more analogous to positive law than natural law? In my opinion — considering, for example, that there may be Transect zones in which the human occupants don’t even have shoes or hats — absolutely...
26. I realize it is possible to define the Urban Transect descriptively rather than normatively, as a gradation of every conceivable human habitat; but since those of us who are New Urbanists are obviously evangelists on behalf of a normative idea of urbanism, if we don’t use the Transect as an intellectual tool to help us define and promote normative urbanism, then we are going to have to find some other intellectual tool to describe and articulate our normative agenda. I would argue therefore that my proposal here to define the Transect as normative commends itself not least because a normative understanding of the Transect is so eminently practical.
27. Personal correspondence, 9/1/03.
28. I reiterate that the CNU has no need to take a corporate stance on the issues of homosexual marriage and abortion. Nevertheless, the dismissal by some New Urbanists of natural law theory otherwise supremely supportive of New Urbanist objectives on the grounds that forceful intellectual opposition to abortion-on-demand is indeed founded upon natural law arguments is yet another example of how the 1973 Roe v. Wade decision and its aftermath continue to corrupt American political and cultural life generally, and contemporary political liberalism in particular.
29. In contending here that building in accordance with the Urban Transect is properly understood as a moral imperative, it is no part of my contention that individual urbanites are necessarily “more moral” than persons who live in sprawl suburbs. It is my contention that acquiring the virtues necessary to living a good life does require communities of propinquity, which are both more numerous and more accessible in traditional urban environments than in sprawl environments. It is therefore by these criteria that efforts to build more of the former and fewer of the latter, as cultural and institutional conditions permit, should be regarded as morally obligatory to all persons possessing right (practical) reason.
30. I’m not suggesting that those who deny the existence of natural law necessarily favor all of these activities; only that to the extent that such persons regard any of them as intrinsically (as opposed to merely situationally) wrong, they are thereby implicitly affirming the existence of the natural law. Nor is it germane for the non-believers in natural law to point out that some believers in natural law have at times supported some of these activities; because the obvious inference of this criticism is that the believers, by engaging in such practices, have themselves behaved immorally, i.e., in violation of the natural law.