Law and Justice

...In contrast, modern philosophers tend to stop at this first step of experience, equating the natural law simply and exhaustively with what any human being can apprehend and readily agree upon...

...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...

...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...

...The most insidious feature of the courts' treatment of religion is not its hostility toward it, but its subtle transformation of "religion," with its specific beliefs and practices, into the "religious": "a vague attitude of devotion toward any object whatsoever...

...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...

...On this issue as on others, Hittinger begins on familiar ground but ends where few dare even to look...

...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...

...But even from these essays, this much is clear: Hittinger is a natural-law theorist with a knack for knowing precisely when the conversation needs to back up to fundamental issues and when it needs to be pushed forward to its implications, however unsettling...

...And that hope, argues Hittinger, is the cause of both natural law's popularity and natural law's debasement these days...

...Until then, The First Grace will suffice...

...When the starting points are made the end points, Hittinger observes, the human mind declares independence not only from the deeper order of divine tutoring but also from the tutoring afforded by human culture—including human law...

...Thomas Aquinas suggests that this first experience is an inchoate apprehension of something that needs to be clarified by philosophy...

...Both theologians and philosophers, Hittinger argues, have failed to take notice of a crucial distinction in Aquinas— derived from Aristotle—concerning the difference between the order of learning and the order of being...

...The distinction between the order of learning and the order of being applies to natural law as well...

...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...

...Hittinger notes, for example, the tendency of American courts to define religion as coercive on its face and a form of irrational preju-dice—which has put the courts in the impossible position of trying to discern clear lines between religion and culture, not just church and state...

...And so it is with creation: The order in which we learn about creation runs up to God from the natural, created objects all around us...

...Hittinger's approach moves beyond these endless and insoluble arguments to astute observations about the way the convoluted reasoning of the courts transforms the very nature and meaning of church and state...

...significance...

...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...

...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...

...If individuals have a private franchise in the use of lethal force—as they do in legalized abortion—they are not members of civil society...

...So, "In God We Trust," is deemed acceptable because its "rote repetition" has "divested it of...

...Hittinger thus articulates the basis for a broad, ecumenical recovery of natural law...

...Hittinger proposes that this misses the crucial issue...

...The inference to be drawn from this is at once clear and deeply disturbing: a society that cedes the use of lethal force to private citizens ceases to be a "political society...

...The best friends of judicial restraint are those who hold a substantive natural law view—for the simple reason that natural law involves and fosters a notion of "obedience to properly constituted authority...

...Hittinger reminds us of Locke's account of the origin of the state, whose crucial mark is the state's monopoly over the legal ability to kill...

...instead, natural law represents those "contingent but pervasive aspects of the human predicament which provide background problems and motivations for positive law...

...Once natural law is seen chiefly as an "instrument of persuasion," its truth comes to be measured by its success in achieving consensus...

...One of the dominant modern conceptions sees natural law as neither a higher nor even a lower law...

...What we ought to focus on, he argues, is the conflict between "individual decisional liberty" and the "state's interest in preserving its monopoly over the use of lethal force...

...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...

...Natural law is an intelligible ordering of human beings to goods congruent with, and perfective of, their nature...

...But even our modern theologians have contributed to the diminution of natural law...

...Anyone who has taught children knows the distinction: The first things you teach a child about, say, a foreign language are the last things a formal grammar would contain...

...It is not the raw projection of divine power...

...God exists, creates, but does not rule or legislate...

...What we await from him is the big book that will lay out a theory of natural law in comprehensive detail...

...Nonetheless, the volume has a unifying thread: the attempt to recover the integrity of the natural law teaching of Thomas Aquinas...

...In the work of philosopher Joseph Fuchs, for example, natural law ceases to be a law...

...the order in which God actually created beings runs down from God to those natural objects...

...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...

...The greatest alteration has to do with the state itself...

...But it isn't just religion that has been transformed by the courts...

...The ultimate source of natural law, its intelligible and obligatory ground, is God— but the existence of God is not first in the order in which we experience and come to know the law...

...One might think that Hittinger's robustly theological conception of the natural law would either preclude the use of natural law in the public sphere or force him into some kind of serious entanglement of church and state...

...Or so, at least, claims Russell Hittinger in The First Grace: Rediscovering the Natural Law in a Post-Christian World...

...As a collection of essays, The First Grace is too piecemeal to alter in any fundamental way the contemporary conversation about natural law...

...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...

...Now, contemporary discussions focus on the tensions involved in attempting to balance "decisional liberty and the general interest of the state in preserving human life...

...This tendency is especially evident in the tendency of the court to "privatize the judgments regarding the use of lethal force...

...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 Thomas Hibbs is dean of the honors college at Baylor University...

...The conception of God operative in much of contemporary moral theology is a species of deism...

...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...

...The first apprehension of natural law in human experience is the realization that human nature is ordered to certain goods, the violation of which frustrates human happiness...

...In conservative circles, it has become common to complain that objections to the introduction of natural law into the public sphere reflect hostility to religion...

...But Thomas Aquinas remains Hit-tinger's chief text—the bone that he worries again and again, the source he returns to over and over...

...Natural law becomes an "authority-free zone...

...Confused about the nature and location of sovereignty, "postmodern states tend to relocate sovereignty in the individual...

...But Hittinger counters that there is no tension between allegiance to natural law and the duty of a judge to act in accord with the positive law...

...Natural law is, as Hittinger's title underscores, the first gift, bestowed on human nature in the act of creation...

...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...

...He starts by rehearsing a certain trend in court interpretation, from Justice Brandeis's famous assertion of a right to be left alone to Justice Kennedy's florid postulation of a fundamental right of the individual to determine the meaning of existence...

...morality...