Natural law jurisprudence seems to be our only salvation—the only way to re-establish the proper hierarchy of laws, the only way to put the prudence back in American jurisprudence…

The First Grace russell hittinger

The First Grace: Rediscovering the Natural Law in a Post-Christian World, by Russell Hittinger (ISI Books, 2002)

As a professor of political science, I am often approached by students seeking letters of recommendation for law school. My first response is to try to talk them out of their ambition to be a lawyer on the grounds that there are too many lawyers and too many lawsuits in this country for our own good. When this appeal fails, I follow up with an attempt at humorous engagement by asking which type of law school they are interested in—natural law school or human law school. If they have taken a course with me that included Thomas Aquinas, they chuckle nervously at my joke; if not, they just give me that look which says that professors are from another planet but their bizarre ways must be tolerated to get the desired letter of reference.

My humor, however, has a serious purpose. I am trying to see if students have any inkling of how narrow and unreflective American law schools are in the way that they teach about law. The philosophical and theological grounding of law—the ultimate explanations for why law is binding and should be obeyed—are taken for granted or are considered unanswerable in most law schools today. The “higher law” background of the U. S. Constitution may be noted from time to time because people still read the famous essay by Edward S. Corwin on that subject. But most law schools do not include in the science of jurisprudence the systematic study of the connection between higher law, such as divine law and natural law, and human law, such as constitutional law and statute law. The underlying premises of our entire legal system are therefore left unexamined.

It is the great merit of scholars like Russell Hittinger to bring the complacently held prejudices of our law professors out into the open and to force people to discuss them critically and rationally. The present volume does so in a collection of essays that lays the foundation for what might be called a theory of natural law jurisprudence. That itself sounds frightening to many legal scholars because it forces one to ask: Can constitutional and statute law really be guided by the norms of natural law without leading to the most irresponsible forms of judicial activism as well as to interminable philosophical disputes about what is “natural”? Hittinger’s answer is that the subject is unavoidable because everyone at some level is a “natural lawyer”—a label he is fond of using, for its jarring effect.

As Hittinger observes, the famous Harvard professor Lawrence Tribe once objected to the natural law jurisprudence of Clarence Thomas; but then Tribe wrote in his own work American Constitutional Law that when interpreting the Bill of Rights, the judiciary “has elaborated from the spare text an idea of the ‘human’ and a conception of ‘being’ not merely contemplated but required.” As Hittinger notes, “most scholars would regard this as not just a nod toward judicially cognizable natural law, but a summary statement of it.” In other words, natural law is inescapable because every constitution or legal code is based on a notion of justice that people accept as morally binding because it accords with their notion of the natural order of being and of human nature.

Once we admit that everyone practices natural law, however, we must also acknowledge the intellectual difficulties involved in natural law jurisprudence. As Leo Strauss once said, “Natural law is as indispensable as it is open to grave objections.” Hittinger is aware of many of the difficulties and has spent much of his scholarly career trying to address them. In his first book, A Critique of the New Natural Law (1987), he criticized John Finnis and Germaine Grisez for claiming that the moral precepts of natural law could be derived from “practical reason” instead of from the nature of man. Hittinger argued that natural law makes no sense without a notion of natural ends or natural teleology as Thomas Aquinas argued; hence, the interpretation developed by Finnis and Grisez takes the “nature” out of natural law.

In the present volume, Hittinger continues his project of defending Thomistic natural law against misguided interpretations by clarifying the relation between natural law and the eternal law of God. He also discusses the modern applications of Thomistic natural law by explaining the relation between natural law and the human law of legislators and judges. His project is certainly an ambitious one in claiming that Saint Thomas Aquinas can come to the rescue of the modern legal establishment.

In making his case, Hittinger divides his collection of essays into two parts. Section One, subtitled “Rediscovering the Natural Law,” consists of four chapters on natural law in recent Catholic moral theology and how natural law might be applied to constitutional law without producing judicial activism. Section Two is subtitled “Natural Law and the Post-Christian World.” It consists of six chapters which expose the errors of judicial activists in promoting irresponsible freedom (reaching its height in the Supreme Court cases of Planned Parenthood v. Casey, 1992, and Boerne v. Flores, 1997); Hittinger’s goal in these chapters is to bring judges back to responsible freedom under God, natural law, and under the written text of the U.S. Constitution.

The rediscovery of natural law in Section One involves Hittinger in a careful analysis of Pope John Paul II’s encyclical, Veritatis Splendor. There, the Pope’s intention is to clarify the meaning of freedom for those in the modern world who have confused it with radical autonomy and moral relativism. As Hittinger notes, the Pope does so by restating the Church’s position that authentic freedom must serve the truth about God and man as expressed in divine law as well as in the natural moral law. Most of the encyclical focuses onnatural law in order to show that the Catholic view overcomes the false dualism between biological naturalism and Kantian autonomy. Its moral teaching is summed up in the phrase, “the dignity of the human person,” where the person is understood as a rational creature made in the image of God who combines body, mind, and spirit in a unified whole.

The point that Hittinger emphasizes is the grounding of the natural law: “The Pope makes use of a number of authorities to express the idea of natural law as ‘participated theonomy.’” This is obviously a daunting theological term, and Hittinger does his best to explain it. Literally, it means that natural law shares (participates) in God’s law (theonomy). More precisely, it means that God is the author of the natural law by making man a rational creature in God’s image and giving man the use of reason to tell right from wrong. Hittinger’s claim is that the Pope uses the phrase “participated theonomy” to reaffirm the teaching of Thomas Aquinas, who defined natural law in his Summa as “the participation of the rational creature in eternal law.” The importance of reaffirming the connection to eternal law is to make sure that we do not think that natural law is something made by man or that reason can be separated from God’s providential ordering of the natural universe. Natural law is therefore God-given but accessible to natural reason and leads to moral precepts that are objective and morally absolute (including prohibitions on actions that are “intrinsically evil,” regardless of intentions and circumstances).

Hittinger provides a valuable service in reminding us that the Pope is reaffirming traditional Thomism, but he neglects two important points. First, the Pope has added a moral dimension to natural law in The Splendor of Truth that derives from modern Catholic “personalism.” When the Pope defines the content of the natural law as respecting the “dignity of the human person” and lists the many intrinsically evil acts prohibited by the natural moral law (not only abortion and euthanasia but also social policies such as “degrading conditions of work”), we find a more categorical statement of morality and a greater restriction on the sphere of prudence than one finds in original Thomism.

Second, Hittinger makes little or no attempt to explain the term “participation” in “participated theonomy.” Participation is a term derived from neo-Platonic metaphysics, according to which a lower order of being exists by being connected to a higher order of being through some mysterious process of sharing, like a copy or image sharing in something more perfect. What does it mean to say that the natural law “participates” in the eternal law of God? Hittinger acknowledges that “modern philosophy abandoned the metaphysics of participation and thus wrestled with the problem of whether law belongs properly to physical states of affairs or mental constructs.” But where does Hittinger stand on neo-Platonic participation metaphysics? He seems to affirm it mainly to avoid reducing natural law to biological naturalism: “Natural law is not an order embedded in the species as though individuals are moved by a kind of physical necessity. Rather, it is the communication of moral necessities to a created intellect.”

I agree with Hittinger that participation metaphysics is necessary for any conception of the hierarchy of being; but I do not agree with Hittinger that natural law works only through the intellect rather than through all of the “natural inclinations” that Thomas described—inclinations which include self-preservation, procreation in the family, social life, and the desire to know God. Thomas combines biological, psychological, intellectual, and spiritual inclinations in a kind of continuum that makes up the specific nature of man as created by God. Hittinger thus saves the “participation” of natural law in God’s eternal law by giving an overly intellectualist account of how natural law operates in man. In his own way, therefore, he slights some of the “naturalness” of natural law. Why not acknowledge that biology explains part of man’s nature, along with psychology and metaphysics? There is no reason why genetics and socio-biology should not be brought in (where appropriate) to defend natural law against modern critics who deny the nature of man or the distinction between natural and unnatural acts.

In addition to discussing the grounding of natural law, Hittinger shows how it can be applied to jurisprudence. Several of his chapters, especially “Natural Law in the Positive Law” and “The Crisis of Legitimacy,” are powerful and should be required reading in law schools to expose the unwarranted claims of judicial supremacy by American courts. Hittinger’s principal claim is that “there is nothing contradictory in arguing, on the one hand, for a natural law basis for government and positive law itself, while at the same time holding that judges ought, whenever possible, to be bound by written law.” Thus, conservatives like Robert Bork and Gary McDowell should not feel threatened by natural law jurisprudence and should reject the view that only legal positivism promotes respect for the written text and the original intent of legislators. At the same time, liberal judicial activists like Lawrence Tribe should not see natural law as an excuse to ignore the written text of the constitution to achieve spurious rights to privacy or an abstract equality.

Hittinger’s argument against the critics is Thomistic. There exists a hierarchy of laws—from eternal law to divine law to natural law to human or positive law (including constitutional law). But the higher order of law does not negate the lower order. Rather, the higher order allows the lower order to carry out its special function and preserves its integrity. The purpose of human law is to apply the general principles of natural law (such as promoting virtue or the rights and dignity of the human person) to particular situations. Human law makes those general principles effective through specific determinations about the best form of government and best institutions in a given circumstance. But, as Hittinger says, “once the natural law is made effective in the form of positive laws (ordinarily written), the judge, having no natural law jurisdiction to begin with, must judge according to the dictates of whoever has authority to make law. To depart from this discipline is to subvert…the natural justice that positive law sought to make effective.” In other words, natural law is fulfilled through positive law precisely by delineating the proper authority for judging; hence, a natural law judge, more than any other judge, would not by-pass positive law because he prudently recognizes the dependence of natural law on positive law to be effective in the real world.

I hope that Hittinger is right about this conclusion, because he documents in compelling detail the heights of arrogance that American judges have reached in asserting judicial supremacy. He explains how the Supreme Court in the Casey and Boerne cases has articulated a notion of unbounded liberty as the fundamental right to define the mystery of existence. He shows how the Court has arrogated to itself the authority to re-write the Constitution according to its will and the authority to settle all great moral debates for the people of this nation. In particular, Hittinger demonstrates how the Boerne case involves an audacious power grab by the Court—the striking down of the Religious Freedom Restoration Act on the grounds that Congress cannot decide how to enforce the Fourteenth Amendment, despite that amendment’s explicit provision for congressional enforcement. Hittinger’s is driven to conclude that the Court has thrown off all constraints on its power by the other branches of government and by the text of the Constitution. The Court now claims that it is “free to change its case law at will, and thus to make the Constitution a mere by-product of its shifting opinions, [and] the other branches must submit to the case law as though it were the Constitution.” If Hittinger is correct in this assessment, then we have no reason to fear that a Thomistic natural law jurisprudence would be more arrogant or irresponsiblethanthe Court’s present practices. On the contrary, natural law jurisprudence seems to be our only salvation—the only way to re-establish the proper hierarchy of laws, the only way to put the prudence back in American jurisprudence.

Republished with gracious permission from The Intercollegiate Review (Spring/Summer 2003).

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