Natural Law today

[Dr. Kent Lasnoski, Assistant Professor of Theology at Q.U., suggested that I read the introductory chapter to the following book and give my reactions.] 


I am responding to the introductory chapter of The First Grace: Rediscovering the Natural Law in a Post-Christian World, by F. Russell Hittinger, William K. Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa, Department of Philosophy and Religion.

I approach the question from my own undergraduate philosophy background focused on Duns Scotus and William of Ockham, and from my graduate education in sociology.

The Franciscan tradition sees both Scotus and Ockham as developing the insights of Thomas Aquinas, even to the point of what Thomistic opponents call "nominalism." We accept Leo XIII's "baptism" of Aquinas as meaning that Aquinas's methodology needs to be taken seriously, especially his melding of his faith with his speculation, but that we should challenge Aquinas's theories just as Aquinas challenged earlier thinkers.

One version of history has it that nominalism led to bad consequences, such as the Reformation. A different version would say that it was the first step in the direction of what is generally accepted today in social science.

From the standpoint of sociology, norms arise from the expectations that people have for each other's behavior. When norms rise to a certain level, society (a government) reinforces them with a penalty, and the result is what we call "law." So a law is just a norm with a punishment attached. Which norms become law is a matter of politics. The persons in charge of making laws determine what laws shall be drafted.

Which laws should be drafted? The law-makers base their law-making on their personal beliefs about what is good and what is bad for society. There is no "natural law" that we can use as a criterion for what is a good law or what is a bad law. This makes my position the same as that of Justice Taney, and of the Court today that the author cites on page xxxii (32): the Court is "the basal or 'root' power, functioning as a vicar of public opinion."

This does not lead to total anarchy. It took societies hundreds of years to come to the conclusion that slavery is morally wrong, but societies have come to accept that principle. Popes ever since the 1500s made statements against slavery, but their voice had little effect on Spain or Portugal or England or Brazil until those societies came to the conclusion, without natural law theorizing, that slavery needed to be abolished. Our own society today is deluged with new laws and expectations, which is hardly a symptom of anarchy.

I have confidence that human communities eventually arrive at a more sensitive appreciation of the good and the bad, based on their experience. There is no natural law that those communities can use as the criterion. Sometimes they are wrong, just as societies were wrong about slavery. But eventually they will come to the "truth" about morality.

Saying that morality is determined by a consensus of societies over time is to me very congruent with my favorite statement of Scotus: "In processione generationis humanae, semper crevit notitia veritatis." "Over the course of human generations, the knowledge of truth steadily grew." (Ordinatio IV, d. 1, q. 3, n. 8 -- Ed Vives XVI, 136a) (This edition is available in the Q.U.Brenner Library archives.)

Therefore, the criterion for good and bad laws resides in the minds and hearts of the people in society--a nominalist position. Christians should argue for what they judge as good or bad on the basis of their Christian values. But Christians should not claim that non-Christians are being irrational if they do not have the same perception, and therefore Christians should not expect society's laws to reflect their own judgment. Christians are entitled, like everyone else in a democratic society, to work to shape secular law in the light of their faith, but democratic government requires that the majority must be persuaded of the justice of the Christian position. When Christians such as John Brown go outside the realm of civil discourse, discourse which acknowledges the human dignity of the opponent, the result is fanaticism. A Christian approach must be nonviolent, and nonviolence aims to convert the opponent.

It is true that law teaches, and that bad law teaches bad things. But law that is not accepted by society ends up being ineffective. Our experience with Prohibition shows us the unintended consequences of having a minority moral opinion enshrined in law.