Law and Justice
Russell Hittinger on the laws of nature and nature's God.
Jul 21, 2003, Vol. 8, No. 43 • By THOMAS HIBBS
The First Grace
THE WAY WE TALK about natural law is "abundant" but "terribly degraded." Or so, at least, claims Russell Hittinger in "The First Grace: Rediscovering the Natural Law in a Post-Christian World." Many intellectuals--of a wide range of philosophical schools--hoped that serious public talk about natural law could provide a basis for a public consensus about the foundations of law and morality. And that hope, argues Hittinger, is the cause of both natural law's popularity and natural law's debasement these days. Once natural law is seen chiefly as an "instrument of persuasion," its truth comes to be measured by its success in achieving consensus.
Hittinger's "The First Grace" is a collection of occasional pieces, and it shares the weaknesses of the genre: abruptness in the transition from one essay to another and a sense that an important investigation is just getting started when it ends. Nonetheless, the volume has a unifying thread: the attempt to recover the integrity of the natural law teaching of Thomas Aquinas. Hittinger is at his best precisely on the issues that most natural law theorists overlook: the obstacles to our modern attempts to understand and apply premodern natural law. One of the dominant modern conceptions sees natural law as neither a higher nor even a lower law; instead, natural law represents those "contingent but pervasive aspects of the human predicament which provide background problems and motivations for positive law." Natural law becomes an "authority-free zone." The meaning of natural law has become so attenuated that one contemporary philosopher defines it as "fancy names for all the moral truths, known and unknown, that can be formulated in all the possible moral vocabularies."
One expects that natural law would not remain what it was for Aquinas, given our modern philosophers' doubts about whether human nature has a natural goal or telos. But even our modern theologians have contributed to the diminution of natural law. In the work of philosopher Joseph Fuchs, for example, natural law ceases to be a law. God's contribution to natural law is merely to set up the material conditions to which the human intellect supplies the crucial and definitive concrete norms. The conception of God operative in much of contemporary moral theology is a species of deism. God exists, creates, but does not rule or legislate. In an argumentative style that has become standard for contemporary theology, Fuchs labels the suggestion that scripture and revelation might supply a "categorical and determinate norm" as--what else?--"fundamentalism."
In place of the traditional Christian understanding of God as providential ruler, Fuchs substitutes a conception that has more in common with the modern Kantian insistence on the autonomy of practical reason. As Hittinger makes clear, a wide gap separates Kant's conception of the autonomy of human reason from Aquinas's decidedly theological definition of the natural law as the "participation of the rational creature in the eternal law." Natural law is, as Hittinger's title underscores, the first gift, bestowed on human nature in the act of creation. Natural law is an intelligible ordering of human beings to goods congruent with, and perfective of, their nature. It is not the raw projection of divine power.
What modernity lacks is the philosophical concept of "participation," which avoids the twin errors of making human reason either purely passive with respect to the divine law or utterly autonomous from it. On Aquinas's view, the human intellect is an active participant in the articulation of the natural law--and such articulation is itself a clarification of the eternal law. Human reason is thus a "measured measure," which means that natural law is not merely a personal norm or a private judgment but the working out of a "supra-public law," as is the case, for example, in Martin Luther King Jr.'s appeal to a law that transcends human convention in his "Letter from a Birmingham Jail."
AS THE REFERENCE to King indicates, Hittinger's account of the natural law draws upon sources other than Aquinas, including Protestant theologians such as Karl Barth, the neo-Calvinist Abraham Kuyper, and nineteenth-century Lutheran theologians who crafted the term "theonomy"--a term that John Paul II has recently adopted--to counter the Kantian dichotomy of autonomy and heteronomy. Hittinger thus articulates the basis for a broad, ecumenical recovery of natural law.