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The point at issue for the thirty bishops at Arles was how the human creature is located in an order of divine providence. On the one hand, the bishops wanted to avoid the heresy of Pelagius, who held that man's natural gifts are sufficient for salvation-a position that makes the economy of divine law and revelation superfluous. Thus, Lucidus confessed that humans "were not set free from the original slavery except by the intercession of the sacred blood." On the other hand, the bishops worried that an overly severe doctrine of predestination would imply that God removes some creatures from the gifts of providence, leaving the human race, as Rousseau would later say of the state of nature, as "if it had been left to itself."
The quote from Rousseau indicates the theme of the subtitle of this collection. For, beginning with the state-of-nature scenarios imagined by Enlightenment philosophers, natural law came to mean the position of the human mind just insofar as it is left to itself, prior to authority and law. Natural law constitutes an authority-free zone. The influential jurisprudent H. L. A. Hart accurately summarized the post-Christian estate of natural law discourse:
Natural Law has ... not always been associated with belief in a Divine Governor or Lawgiver of the universe, and even where it has been, its characteristic tenets have not been logically dependent on that belief. Both the relevant sense of the word "natural," which enters into Natural Law, and its general outlook minimizing the difference ... between prescriptive and descriptive laws, have their roots in Greek thought which was, for this purpose, quite secular. Indeed, the continued reassertion of some form of Natural Law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that despite a terminology, and much metaphysics, which few could now accept, it contains certain elementary truths of importance for the understanding of both morality and law.
For Hart, the "core of good sense in the doctrine of Natural Law" need not be entangled in "theocratic" premises. Rather, it is reducible to certain "truisms concerning human nature and the world in which men live, [and] as long as these hold good, there are certain rules of conduct which any social organization must contain if it is to be viable." Reminiscent of Hobbes, Hart's natural law is neither a higher law nor a lower law. It represents those contingent but pervasive aspects of the human predicament which provide the background problems and motivations for positive law.
Hart's assertion that natural law has an "appeal" that is separable from the premises of either natural or revealed theology has its own appeal to many, if not most, contemporary proponents of natural law. The leading American critic of legal positivism, Lon Fuller, who maintained a long-standing debate with Hart over the moral bases of law, certainly did not disagree with his foe on the need to avoid or suppress theological and metaphysical referents in understanding natural law. Fuller insisted that natural law is not a "higher law," but one "entirely terrestrial," and therefore ought not to be brought into the precincts of propositions about "God's commandments." In his famous tract on the "higher law" background of American constitutional law, Edward S. Corwin presents as a "a quaint argument" Sir Edward Coke's oft-cited dictum in Calvin's Case: "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is Lex aeterna, the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed before the law was written by Moses...." Perhaps this would be of mere antiquarian interest were it not for the fact that Coke was trying to make the point that the legal universe neither begins nor ends with the command of the human sovereign. When he referred to the eternal law-to the same law that taught the Jewish people prior to Sinai-Coke did not think of himself as making an argument to authority, but clarifying and concentrating the minds of his colleagues about an authority already recognized by a legal culture tutored by common sense and the Scripures. Such claims today are usually regarded as rhetoric that the moralist or jurisprudent need not, ought not, or cannot make in advancing an argument about the natural law.
The essays in this volume investigate problems that arise once natural law is understood as free-floating with regard to authority, whether human or divine. The first two chapters treat theoretical issues related to the definition of natural law, particularly in the area of theology, which is the historical matrix of natural law doctrines. In these chapters I point out that even contemporary Catholic thinkers who have no aversion to theology as such are reluctant to predicate "law" properly of natural law. For Mortimer Adler and Joseph Fuchs, to mention two examples, natural law is related to a superior cause, but not in the manner of legality. Natural law is neither a higher law nor, strictly speaking, any law at all. I test this position against the older tradition, chiefly (but not only) that of St. Thomas Aquinas, and then draw out some of the consequences for theology once one derogates from the idea that natural law is authentically a higher law. In chapters 3 through 8 I examine theoretical and practical problems that emerge when appeals are made to natural law for or against laws made by civil authority. Given the widespread demand today for justiciable natural or human rights-which is to say, their recognition by courts-the issue of authority often becomes an acute question. At one level, the questions are institutional in nature. Why, for example, should we believe that natural law is best discerned by courts in the context of litigation?
At another level, which is the deeper one, we find functional appeals to a higher law that turns out to be no higher law at all. While retaining the nimbus and residue of an older tradition that really did affirm an order of obligation prior to the positive law, contemporary appeals to natural law often subvert that order. In its most extreme (but not uncommon) form, political institutions are required to recognize and protect the immunity of individuals from any known source of obligation and authority. In the name of authority-the authority of some "higher law"-the individual comes to occupy an authority-free zone in the very midst of civil society.
Although the ecclesiastical and civil spheres are quite different, we should not be surprised that problems in the one look very much like problems in the other. Until recently, the "higher law" doctrine, as divinely grounded, has been accepted by both spheres. This surely was Sir Edward Coke's point. Unless we suppose that there is more than one natural law-one for magistrates and one for churchmen-there will be a strong supposition that what is good for the goose is good for the gander. There are no theological claims completely separate from propositions about what is good for human beings and about the moral norms regulating the choice of these goods. And though sometimes camouflaged, there are no secular claims completely separate from propositions about the ultimate ground of authority. Therefore, while we must respect the differences between church and state, between revealed theology and philosophy, and between the authority of sacred Scripture and that of a human constitution, we cannot fail to recognize that natural law discourse inexorably migrates back and forth. Each of these contrasting pairs is relational, and it is hardly possible to know very much about one without knowing something about the other. Even in our own time this has proved true on issues of human rights, religious liberty, abortion, marriage, and euthanasia.
How can we begin to situate such a protean family of doctrines as "natural law"? Yves Simon has usefully proposed that the theories and ideologies of natural law seek to discover or assert the "prior premises" of human law. Simon further suggests that the answers to "what is prior" to human law tend to coalesce around three foci: order in nature, order in the human mind, and order in the divine mind. Thinkers who defined natural law in light of metaphysical premises much disparaged today-Augustine, Thomas Aquinas, Richard Hooker, even John Austin-also believed that natural law encompasses what is prior in things and what is prior in the human mind. St. Thomas, for example, argued that the human soul receives a knowledge of divine providence in a "general sort of way" by starting "from the things themselves in which the order of divine providence has already been established in detail." From what is first in nature or first in the mind we can infer what is absolutely prior in the order of being. The great tradition of natural law allowed each of these foci to have its own salience, depending on the problem at hand.
We can appreciate why the first two foci have such appeal in our time. Unlike premodern thinkers, we find ourselves immersed in state-made law. The nation-states that emerged after the Napoleonic Wars have proved to have a prodigious capacity and enthusiasm for lawmaking, including constitutional, statutory, and, increasingly, administrative law. As state law becomes more expansive and intricate, and as customary law gives way to legal artifice, the relation of law to a prior moral order becomes an issue of some importance. Generally, the thinkers of late antiquity and the Middle Ages took it for granted that jurisprudence falls under the genus of morals. They thus set out to understand how moral reasoning is set within a cosmological order that has legal properties. Where jurisprudence, however, is by default a positivist account of the powers of the state it becomes all the more necessary to focus narrowly on how to render state law permeable to moral premises. Cosmological inquiry will strike most thinkers, as Hart said, as "grandiose." Paradoxically, at the same time that moral argument is used to limit the law of the state, usually in favor of natural or human rights, the legal culture has the general expectation of what Laurence Friedman has called "total justice." Private complaints and moral desiderata are not regarded as merely private but as things (torts, entitlements) about which the state must take an interest and provide remedies. The simultaneous quest for zones of immunity from law and for the removal of barriers to works of justice on the part of the state creates a potent environment for the moral evaluation and critique of positive law.
Although unhappiness with positive law is favorable to various species of natural law thinking, argument about what is "prior" in morals often proves frustrating, especially when the moral premises are no less disputed than the estate of the black-letter law. Academic and legal professionals, it must be admitted, are of the class least likely to achieve consensus about the morality prior to law. Typically, arguments are expected to obey the (self-imposed) norm of refraining from appeal to controversial conceptions of the human good. Premises or conclusions even remotely theological (natural or revealed) are unacceptable for public purposes. On the assumption that ordinary law ought to be guided by moral theory, the principle of "equal protection" must apply not only to the positive law but also to the moral theory that informs it. Moral theory then must pass the test of being equally facilitative of the life plans and beliefs of everyone subject to the law. While this norm of public reason does not necessarily reduce morality to convention, it does deploy a convention to limit and filter what can count as morals for public purposes. In this political and cultural environment, natural law thinking slips into formalisms that are not entirely false, but not entirely true. In Ethics after Babel, Jeffrey Stout appends a lexicon of terminology used by moral philosophers. Under "natural law," which includes "the moral law" and "realm of values," the entry reads: "fancy names for all the moral truths, known and unknown, that can be formulated in all the possible moral vocabularies." Stout's peevish entry has a point. Almost everyone believes that there is order prior to human law, and that therefore human law ought to be made, criticized, and emended on the basis of morality.
One may doubt that the narrowing of natural law inquiry to the first two foci has made it easier to reach consensus about what is prior to human law. What should not be in doubt is that the term "natural law" historically arose in reference to the third of Simon's foci-order in the divine mind. It is well known that for the ancient Greeks physis and nomos are opposites. In a remarkable essay, "The Concept of Natural Law in Greek Thought," Helmut Koester has shown that the term "law of nature" occurs fewer than six times in the Greek literature of the pre-Christian era. In the work of the Jewish philosopher and exegete Philo of Alexandria (c. 20B.C.-A.D. 50), however, more than thirty occurrences of the term can be found. As a term that meant something more than a comical union of opposites, or a merely metaphorical extension of concepts that properly reside elsewhere, natural law emerged as part of the repertoire of moral and legal thought once the Greek logos-metaphysics was appropriated by the biblical theology of a creating and lawgiving God. Order in things and in the human mind are not laws, but the effect of a law that is not a positive law.
Before the Council of Arles defined natural law as the "first grace," Augustine had spoken of the eternal law impressed in the soul(lex aeterna, impressa nobis est). The human soul is induced to share in the divine law, he explained, not by "locomotion but by a kind of impression...." The human mind can rule and measure a as it is first ruled and measured. Thomas's work diverged significantly from Augustine's account of illumination and created nature, but it did not differ from Augustine's in its neo-Platonic motif of participation allowing natural law to be placed in the genus of law.
[A]s rule and measure, law can be in a person in two ways: in one way, as in him that rules and measures; in another way, as in that which is ruled and measured, since a thing is ruled and measured insofar as it partakes of the rule or measure. Since all things subject to divine providence are ruled and measured by the eternal law ... it is evident that all things partake somewhat of the eternal law, insofar as from its being imprinted on them they derive their respective inclinations to their proper acts and ends. Now among all others the rational creature is subject to divine providence in the most excellent way, insofar as it partakes of a share of providence by being provident both for itself and for others. It has a share of the eternal reason because it has a natural inclination to its proper act and end, and this participation of the eternal law [participatio legis aeternae] in the rational creature is called the natural law. Hence, the Psalmist after saying, "Offer up the sacrifice of justice," as though someone asked what the works of justice are, adds: "Many say, Who showeth us good things?" In answer to which question he says: "The light of Thy countenance, O Lord, is signed upon us," thus implying that the light of natural reason whereby we discern what is good and what is evil and which pertains to the natural law, is nothing else than an imprint on us of the divine light [impressio luminis divini in nobis]. It is evident that the natural law is nothing else than the rational creature's participation of the eternal law.
Excerpted from The First Grace by Russell Hittinger Copyright © 2007 by Russell Hittinger. Excerpted by permission.
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|Section I: Rediscovering the Natural Law|
|Natural Law and Catholic Moral Theology||3|
|Natural Law as "Law"||41|
|Natural Law in the Positive Laws||75|
|Thomas Aquinas on Natural Law and the Competence to Judge||107|
|Section II: Natural Law and the Post-Christian World|
|Natural Rights, Under-Specified Rights, and Bills of Rights||131|
|Privacy and Liberal Legal Culture||153|
|The Supreme Court v. Religion||185|
|A Crisis of Legitimacy (including a Response to Critics)||207|
|Dignitatis Humanae, Religious Liberty, and Ecclesiastical Self-Government||241|
|Technology and the Demise of Liberalism||269|
|Reasons for a Civil Society||293|
Posted January 27, 2004