Russell Hittinger’s “The First Grace” deals mightily with the crisis of our time—namely, the failure of those who make, enjoy, and judge the constitutionality of laws to appreciate the dire consequences of denying the place of natural-law considerations in the ordering of public life.
The First Grace: Rediscovering the Natural Law in a Post-Christian World, by Russell Hittinger (380 pages, ISI Books, 2002)
Few are better qualified than Russell Hittinger to expound the divine communication of moral necessities to human intellect. Hittinger is the former William K. Warren Chair of Catholic Studies at the University of Tulsa, where he is currently Research Professor of Law and Professor Emeritus in the Department of Philosophy and Religion. What recommends him more than anything else, though, is his membership in the Pontifical Academy of Saint Thomas Aquinas. Hittinger is well acquainted with the Angelic Doctor of Aquino, upon whose writings the Christian understanding of natural law has been solidly based for over seven centuries.
In The First Grace Hittinger traces Thomas’s natural-law suppositions back to the Council of Arles (AD 473), where the natural law was defined as the “‘first grace of God’ (per primam Dei gratiam) before the coming of Christ (in adventum Christi).” Thomas subscribed to this definition and, in accordance with the thirty bishops at Arles, affirmed Saint Augustine’s belief that the eternal law is impressed in the soul. Thomas strongly emphasized, however, that natural law is an exclusive function of the divine intellect. To locate natural law in either nature or the human mind is a fundamental mistake, Hittinger explains, because, although the “order of nature and the order of the mind are law-abiding,” they are not laws in themselves.
Since the birth of Cartesian man, Thomistic formulations of natural law have lost their wide application. Nonetheless, they remain essential to Christian orthodoxy. Even after the Reformation, when non-Catholic theologians began scrutinizing the efficacy of natural law in human affairs, the definition of natural law as “higher law” continued to inform Protestant thinking. As a case in point, Hittinger invokes Richard Hooker, an Elizabethan theologian who iterated that the “voice of nature” is but the instrument through which God imparts “whatsoever in such sort we learn.” Nature, in other words, is not the seat of natural law (in spite of what Rousseau would later declare); it is but the medium through which natural law is known.
Hittinger shows that the American founding cannot be fully understood without appreciating the erstwhile influence of higher-law assumptions. Regardless of what theological doubts he may have harbored, Thomas Jefferson believed that the “Laws of Nature” must be considered in the light of “Nature’s God.” Alexander Hamilton proclaimed that the “Sacred Rights of Mankind are… written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.”
In the religious parlance of the 19th century, “and in every legislative assembly” then convened, “the higher law,” writes Hittinger, “was a familiar coin of discourse.” Indeed it was invoked in debates over slavery, especially in the wake of the Fugitive Slave Act of 1850. That the United States had placed above themselves a “higher law,” that they had not subordinated moral principles to human desires, that they made of government neither a facilitator of individual caprice nor a final arbiter of the good, were reasons to “boast,” said the ever-sapient Orestes Brownson.
Hittinger’s is not a book on the prominence of natural-law thinking in earlier centuries, however. Its focus is chiefly on the past fifty-five years, a period in which a disordering Zeitgeist has militated against the natural-law tradition and obscured its vital importance to a proper understanding of moral theology and to the making of positive laws. (According to Hittinger the Supreme Court’s truckling to the disorienting spirit of the age began, in 1947, with Everson v. Board of Education, before which case “the First Amendment’s prohibition of ‘an establishment of religion’ applied only to laws passed by the U.S. Congress.”) What Hittinger makes positively clear is that (except in the case of Pope John Paul II’s encyclical Veritatis Splendor) the idea of natural law has been so irresponsibly misappropriated in recent history by unqualified interpreters and ethical relativists that it has become virtually impossible to advert unambiguously to what the thirty bishops at Arles acknowledged as God’s first gift to man.
To exemplify the corruption of natural-law thought as a basis for a coherent public philosophy, Hittinger recalls the Senate hearings on the nomination of Clarence Thomas to the Supreme Court. On this unprecedented occasion, then-Senator Joseph Biden, having been apprised of Judge Thomas’s extensive writings on natural law, insisted that the Judiciary Committee determine whether the judge espoused a “good” or “bad” theory of natural law. In Biden’s words, a bad theory of natural law would espouse “a code of behavior… suggesting that natural law dictates morality to us, instead of leaving matters to individual choice.” A good theory, Biden argued, would defend the rights of individuals to make their own decisions regarding, in particular, sexual conduct and abortion.
Senator Biden’s is a theologico-political problem that, in their “state-of-nature” scenarios, the Enlightenment thinkers solved by imagining men to be subject to no authority other than individual intelligences. Sundry authorities around which societies organize themselves are seen by Hobbes and Locke to derive, as Hittinger reminds us, not from God but from “covenants of individuals constrained to reach a consensus on the basis of what is (or seems) self-evident.” The “state-of-nature” myth, or what Hittinger calls “a secular substitute of Genesis,” would sever all connections between the positive law of man and the positive law of God. The difficult notion that remains a stumbling block for a mind like Biden’s is impeccably expressed in a sentence Hittinger quotes from the 12th-century summist Johannes Faventinus: “The streams of natural rectitude flow into a sea of natural law, such that what was lost in the first man is regained in the Mosaic law, perfected in the Gospels, and decorated in human customs.”
Biden’s resistance to law from highest heaven handed down is symptomatic of two larger concerns: the elevation of the individual to the status of a sovereign and the question of legitimacy in the courts. These two issues come to a head in Planned Parenthood v. Casey, a watershed case to which Hittinger returns in chapter after chapter. While Roe v. Wade gave women the right to determine the fate of the unborn, Casey went much further in removing the trimester scheme. In the language of the opinion that prevailed in the latter case, the state may impose no “undue burden” on a woman’s choice to abort. Moreover, although the Fourteenth Amendment does not say precisely what constitutes “liberty,” the prevailing opinion defined it broadly so as to include “the right to define one’s own concept of existence, or meaning, of the universe, and of the mystery of human life.”
There is not room enough here to rehearse what Hittinger sees as the many and troubling implications of this bizarre definition. The connection between what was argued in Casey and what proponents of assisted suicide are arguing now, however, should be underscored. Hittinger illuminates the connection by revisiting a 1991 lawsuit that sought to overthrow a Washington law forbidding one from causing or aiding another to commit suicide. Chief Judge Barbara Rothstein, of the District Court for the Western District of Washington, found in favor of the plaintiffs (members of the organization Compassion in Dying), whose case rested on the claim that the Washington law violated the “due process” and “equal protection” clauses of the Fourteenth Amendment. Building her decision in large measure on the language of Casey, Judge Rothstein wrote, “Like the abortion decision, the decision of a terminally ill person to end his or her life ‘involv[es]… [a] choic[e] central to personal dignity and autonomy.’” It would seem, writes Hittinger, that “many Americans believe… they have more to fear from the social contract and traditional criminal codes than they do from private decisions made by physicians, insurance companies, and families.
The First Grace deals mightily with the crisis of our time—namely, the failure of those who make, enjoy, and judge the constitutionality of laws to appreciate the dire consequences of denying the place of natural-law considerations in the ordering of public life. America, which is fast elevating self-interest above all else and making the judiciary the final authority of right and wrong, ignores Hittinger at her peril. What Sophocles said on the Aegean nearly 2,500 years ago is relevant to our post-Christian world: “Haughtiness and the high hand of disdain / Tempt and outrage God’s holy law; / And any mortal who dares hold / No immortal Power in awe / Will be caught up in a net of pain; / The price for which his levity is sold.”
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