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The Higher Law That Undergirds Virtue, Liberty, and the Government

R&L: You have done extensive research and written books on the subject of natural law. What is natural law?

Hittinger: The history of philosophy, theology, and jurisprudence is replete with different definitions. Some definitions emphasize the first principles of practical reason— principles which are implicit whenever we reason about conduct. We can call this order in the human mind. If we emphasize the order of nature, then we bring into view human nature itself as a standard for what ought or ought not to be chosen. We can call this order in nature. While Stoic thinkers of antiquity defined natural justice in relation to divine providence, it was Christian theologians who carefully defined natural law as lex indita, a law imprinted on our being by the Creator. The most famous definition is that of Thomas Aquinas: “This sharing in the Eternal Law by intelligent creatures is called natural law.” Thomas, of course, did not mean the entirety of the Eternal Law, but rather that part of it we can know naturally. All three definitions—order in the human mind, order in nature, and order in the divine mind—are correct, though Thomas was especially adept at harmonizing the three foci.

R&L: One of your recent books on natural law is The First Grace: Rediscovering the Natural Law in a Post-Christian World, published by ISI Books. Why do you consider the natural law to be the first grace?

Hittinger: The title of this book is taken from the letter of a presbyter named Lucidus who taught that after the sin of Adam no work of human obedience could be united with divine grace, that human freedom was not weakened or distorted but totally extinguished, and that Christ did not incur death for all human beings. At the Second Council of Arles (473), Lucidus retracted his position. In the letter of retraction, the natural law is mentioned twice. The natural law is said to be the “first grace of God” (per primam Dei gratiam) before the coming of Christ (in adventum Christi). Lucidus also affirmed that, according to Romans 2:15, the natural law is “written in every human heart.” This did not suggest that, after sin, and without the restoration of the human soul by grace, that mankind know the natural law in every detail, or with perfect clarity. Nor did it suggest that what remains of human moral responsibility after sin is sufficient for the righteousness communicated by Christ. But it did mean that the early church rejected Lucidus’ position that human beings are unable to do any moral good.

R&L: Why must the natural law be “rediscovered?”

Hittinger: Natural law is always “discovered,” at least in the sense that it is not constructed or “made” by the human mind. The sub-title of my book, however, bids us to understand once again that the fundaments of morality constitute a “higher law.”

R&L: How does or should a proper understanding of the natural law affect the political and social institutions of society, if at all?

Hittinger: One of the questions that haunts the modern mind is whether moral judgment is bereft of any note of authority save the private estimation of the individual subject. In my view, no one expressed the question, with all of its ramifications, better than Thomas Hobbes. To be sure, individuals make judgments; but whose judgments have public authority? Slowly, but inexorably, modern culture posited a dichotomy between individual judgment and public authority. Natural law could no longer be reckoned a higher law, expressing a supra-public order of law. In our country, we were fortunate indeed that at the time of our founding, natural law still was deemed a higher law that rendered individuals and societies subject to a divine bar of authority. Disagreements or skepticism about matters of revealed theology and ecclesiology did prevent the founders from affirming a transcendent source of moral norms. James Madison’s Memorial and Remonstrance (1785) argues very explicitly that the ground of religious liberty is the antecedent duty of every human soul to the Creator of the natural commonwealth.

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe.

R&L: Many commentators contend that the reigning philosophy of law within the courts of the United States is positivism. Would you agree? How is the positivist philosophy of law different than the natural law?

Hittinger: Positivism can mean different things. On the one hand, there is a kind of lawyerly positivism that insists that the descriptive task of saying what the law “is” is analytically separate from what the law “ought to be.” This kind of positivism allows a moral critique of human law. On the other hand, there is what I call a “cosmological positivism,” according to which all norms of conduct are imposed, posited by the human mind. The great myth of Prometheus, told in Plato’s Protagoras, is still the best example of cosmological positivism. On this view, there is no separation of law and morality, for civic morality is entirely a creature of human law.

I propose that although our legal culture sometimes seems to hover between these two kinds of positivism, we still exhibit a deep and persistent expectation that human law satisfy moral norms. Americans believe that human commands ought to comport with moral rights. Every nook and cranny of human law is litigated, as though law must fall in line with natural justice. In ways that are truly astonishing, Americans demand not only that law be just, but also that society be just. At the same time, Americans are reluctant to impose “morality.” From one point of view, this is a contradiction. From another point of view, it indicates how difficult it is to shake ourselves loose of natural law. The most controversial Supreme Court decisions—on religion, sexual conduct, marriage and family, affirmative action—bear the marks of dissatisfaction with legal positivism. Typically, both sides in these disputes appeal to something like natural law and natural rights.

R&L: In Casey v. Planned Parenthood, The United States Supreme Court has defined individual liberty as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Is this definition of liberty consistent with the natural law? If not, what definition of liberty would be consistent with the natural law?

Hittinger: Clearly, this dictum does not appeal to the black-letter law of the United States Constitution. Rather, it appeals to a transcendent notion of justice—transcendent, in the sense that there are norms more fundamental than the rules imposed by human legislators. Our Court routinely “discovers” (rather than claiming to “make”) natural standards of justice. The reader of my book will not be in doubt that I believe that the Court’s discoveries are very flawed. For one thing, the Court often asserts liberties which subvert law itself. The Casey dictum, literally understood and applied, would cancel out obligation to obey the Court’s own verdicts.

R&L: What role should religion play within the formal process of lawmaking within a society, if any?

Hittinger: This is difficult to answer abstractly because “religion” can mean so many different things. Some Supreme Court decisions have gone so far as to say that “religion” means the conviction that there exists transcendent sources of morality; religion can mean the merely subjective “religious” state-of-mind of the legislator; religion can also mean the religious-historical sources of custom and common law relating to matters of marriage and family, crime, civil associations, and so forth. Thus, “religion” has become an artificial category, sometimes expanded, sometimes cut and trimmed, for the purpose of winning legal, political, and policy arguments. Because ordinary human beings tend to make judgments according to standards that transcend mere human rules, and because relatively few of us have a highly articulated super-structure of philosophy or theology, religion is a rather foggy and elusive target. An extreme version of First Amendment jurisprudence interprets the establishment clause in such a way as to forbid the state from recognizing the specifically religious content and importance of the free exercise clause. To recognize specifically religious conscience is to establish religion. The danger here is that the right of free exercise of religion is drained of content, and then tends to be collapsed into an all-purpose right of free-speech or self-expression. Although academic legal literature abounds with efforts to define religion, the issue remains unsettled. At the national level, all kinds of religious discourse is in evidence, and courts rarely try to intercept it on First Amendment grounds; yet, at the level of a local public school, even a moment of silence can be struck down as a violation of the establishment clause.

R&L: Is it appropriate for religion to have any impact on the development of law within a society, such as the United States, that places a high value on individual liberty?

Hittinger: We are a free society. Society is not a creature of the state. So long as people are religious, religion will have at least an indirect bearing upon public policies and laws through society itself. A state would have to either destroy religion or destroy society for it to be otherwise. Compared to other political cultures, Americans tend to enjoy a very vivid sense of social liberties distinct from the institutions of the state.

R&L: Does a person need to be a Christian before he or she can accept the principles of the natural law?

Hittinger: No, of course not. Read the Meditations of Marcus Aurelius.

R&L: Do you think that Christianity—and any other theistic religion for that matter—is currently being excluded from public policy debates? If so, what effect do you think this has on societal norms and values?

Hittinger: Increasingly, truly believing Roman Catholics and Protestant Evangelicals are regarded by the elite culture as having no sense of public justice, as having a private lust to impose their religion. This cartoon-like view is especially apparent whenever one gets into the precincts of public law and academia. It is much less true in the world of business, sports, civic associations, and in the day to day life of municipal culture.

R&L: As a scholar and professor, how does your faith inform your studies and teaching?

Hittinger: You carefully phrased the question “as a scholar and a professor.” Taken in just this way, let me say that I am very inclined to look for the good sense in our western habits and institutions. I view even the most adamant secularist positions as part of our common culture. A Christian can take a more inclusive view of the quest for truth. Christ is our redeemer by the cross, but he is also the second Adam, and hence the consummator of human history.

R&L: Does your contact with university students leave you optimistic or pessimistic regarding the rediscovery of natural law within society?

Hittinger: Speaking generally, I do not think that students are very well formed in their respective theological traditions. Over some twenty years of teaching, I have seen more students arrive at the university with an amorphous sense of religion accompanied by a therapeutic sense of morality. By way of exception, I often find that orthodox Jews and some Reformed tradition students are more attentive to their traditions at the intellectual level. Catholics are usually somewhere in between. Students mature very rapidly in their 20s, and therefore it is a crucial time in their lives. Usually, by the age of 25 or so it is clear whether a young man or woman will develop an intellectual curiosity about the big questions of morality, the soul, and God. Every generation is a work in progress.