Seeking Justice and the Common Good
Whatever its genesis and cause—some suggest Karl Barth’s infamous “Nein!” to Emil Brunner—Protestants largely abandoned the natural law tradition sometime amidst the tumultuous twentieth century. It should be noted that this abandonment conspicuously coincided with the advent of a positivist Supreme Court led by Oliver Wendell Holmes, Jr. and his militant campaign from the bench to detach law from a “brooding omnipresence in the sky.”
Unsurprisingly, Protestant-positivist conceptions of law (like theonomy) have filled the void in the interim. Originalism—a sort of first-in-time positivism now generally identified with the Constitution’s original public meaning—albeit popularized by a Roman Catholic, dominates the Protestant jurisprudential posture. Like many American Protestants, Originalists—there are some, heavily qualified exceptions—decry judicial use of the classical natural law tradition as tantamount to so-called living constitutionalism and judicial overreach. But recent social trends evince that this form of originalism is radically insufficient. It inordinately fixates on method to the detriment of a substantive vision of justice.
Consider that two ethical concepts presently captivate the popular political imagination: justice and the common good. One currently serves as the causa belli of the progressive-woke left and the other saturates the rhetoric of the nascent post-liberal right. Both bewilder many observers. Both, in their own way, spring from the demand for a thoroughly moral socio-political regime, a comprehensive vision of life oriented to something higher.
Protestantism, if it is to have a political future, must recover a moral vision that rightly defines, orders, and mediates these contemporary emphases, which–if taken in isolation–drive many to dangerous ideological and political extremes. Rightly understood, the apparent dichotomy between the two is false, one manufactured by recent, shrewd efforts of rhetorical capture. Law is the common denominator of justice and the common good, although such a notion has been lost as of late. As Thomas Aquinas defined it, law is an ordinance of reason, promulgated for the common good, made by one who has care of the community.
In a very real sense, then, justice and the common good are inseparable according to the tradition only lately jettisoned by Protestants. The way back is the way forward. Protestants need to play catchup to remain players. This isn’t demagoguery or pandering. It is about recovering a coherent vision of a moral order and the goods toward which said order must be oriented to be just. It is about rediscovering a proper understanding of law by, inter alia, rejecting Justice Gorsuch’s now (in)famous positivist quip in Bostock, “Only the written word is the law.” For law is more than pure fiat; it must attend to reason and nature and conform to something ethically and metaphysically higher.
Such a recovery project requires an extension of the ad fontes enthusiasm amongst Protestants over the past couple of decades to the Protestant legal thought once firmly planted in the natural law tradition. Scholars like Stephen Grabill and Jordan Ballor have already begun this project. The works of Matthew Hale (1609-1676), Johannes Althusius (1557-1638), and Franciscus Junius (1545-1602), to name a few, are now accessible thanks to these scholars and many others. The Angelic Doctor is increasingly appreciated by Protestants (as he was in the past) as much as the Fat Doctor.
Yet, this is about more than resourcement. Protestants must readopt and embrace the child they once forsook, namely, a classical understanding of law, its source, rationale, and function in society. Shockingly, even at this late hour, by an acquired instinct of recent vintage, much of orthodox Protestantism still shuns, or is ignorant of, the natural law tradition.
Without it the future of political Protestantism is bleak indeed, in part because Protestants will be far less equipped to answer the most pressing ethical questions of the day, and will not be as able to adjudicate all-powerful rights claims like those in Bostock, Obergefell, and Roe. Neither will they be able to offer a positive politics, nor a metaphysically coherent account of human nature powerful enough to bring certain inseparable political themes together, themes such as justice and the common good. (Politics, after all, is but an actionable, lived extension of metaphysics.) They will, rather, remain political infants, tossed to and fro, and carried about with every wind of doctrine, by the sleight of men, and cunning craftiness.
Under a natural law-based jurisprudence, positivist, mechanical, proceduralism is insufficient. Law as law must be reasonable, which is to say, the means law employs to attain its ends must be fitting to the ends themselves. Most importantly, law must be cognizant of, and congruent with, the metaphysical realities of creation, especially an appreciation of the givenness of nature and natural limits.
As Pierre Manent put it recently, “the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is.” The key question is, “If our actions are not to be regulated by law, then what shall regulate them?” Ryan Anderson has identified the same problem plaguing debates within conservatism writ large. Responding to common good skepticism from a (typical) right-liberal (who essentially accepts that government mostly only exists to protect individuals from harm, and to protect their individual rights) Anderson asked how “the scope of […] rights” can be determined “without some account of human flourishing and the common good?” For instance, how can the conflict between the woman’s bodily autonomy and a baby’s right to life be mediated otherwise? What about rights of conscience? All exercise must have limits. A rule of right action must apply else we fall into the chaos of mere competing rights claims without means of adjudication—no lodestar to guide us. That way lies devolution into pure power politics. That way lies madness.
The Danish protégé to Philip Melanchthon (1497-1560), Neils Hemmingsen (1513-1600) defined natural law as,
certain knowledge, imprinted on the minds of men by God, of the principles of knowing and of acting, and of the conclusions proved from these principles that are in agreement with the proper end of man.
God is the author of natural law, and it is a “measuring rod” of action predicated on what is revealed in creation, which is as an expression of God’s own character. Accordingly, Justinian called natural law that which “nature teaches all creatures.”
The light of nature and nature’s law promulgated by nature’s God—the law of creation, as John Owen (1616-1683) called it—is the only viable and proper adjudicator of competing, self-interested, human bids for power. Consideration of law must begin with a consideration of nature. Not so long ago, American (usually Protestant) jurists understood this. Contra the ostensibly Episcopalian Gorsuch, as William Novak discerns, the most important questions for such jurists—those that must inform law—were plainly understood to be moral, metaphysical, and natural. James Kent (1763-1847) told his students at Columbia that the “mere Mechanical Professors of our Laws” were wrong. The science of jurisprudence began not with abstractions but with “the nature and moral character of Man.” Likewise, Nathaniel Chipman (1752-1843) initiated his commentary on government in Aristotelian fashion chastising Hobbes and Locke, and citing the inherent sociability of man—who lived, not in a state of nature, but in a state of communion—as the true basis for society. Chipman championed nothing short of what John Winthrop (1587-1649) had exhorted the passengers of the Arbella to embody in 1630.
That is, man’s social, rational, moral nature is the principle from which all else (in terms of social order) follows, the thing which law cannot violate and remain an ordinance of reason for man’s good. Indeed, it is in man that God has implanted his law, the rule of right action according to the created order that reflects it. It is eternal law, the law of God’s essence, given by divine condescension to the creature for his good, unto his temporal and eternal happiness. Man is meant to live with others; this requires order, which, in turn, requires law—even in paradise this would have been so. In short, man’s nature requires him to participate in God’s law by making law too. That human law must then reflect, respect, and reinforce human anthropology—now under assault—for which it is made, and glorify the God who made it.
From decidedly general, implanted principles, reason must construct secondary conclusions, by good and necessary consequence, from the admittedly general initial principles of jus. Said conclusions are then to be applied for the good of that community in contingent contexts by one appointed to the care of a particular community. This is the province of human law. (Human law is always communal law because, as stated, humans are communal creatures.) Along the way, the hierarchy of law can never be broken. All things must be agreeable to the higher law even in the particulars. Anything contrary to the natural law is per se unjust; it is not law at all but rather violence. True law is always and everywhere “right reason,” and conformable to nature, that is, the book of creation. True law is also derivative of eternal law, which derives from the being of God himself.
Ultimately and at every stage, this implanted law directs men to their highest good, God himself, his standard of justice—though gracious, special revelation is required for salvation. This law tells us that we are first and foremost worshipers of God and, secondarily, inhabitants of a common community under God. Any society that wishes to call itself just must ultimately be oriented to the highest common good, namely, to God himself. All else follows therefrom. As Richard Baxter (1615-1691) reasoned, “The bonum publicum [common good] is the nearer essential end of government [but] Spiritual and eternal good is the chief part of the common good.” Therefore, the full man, body and soul, as well as man’s highest end, falls within the purview of earthly rulers. Laws must contemplate both the spiritual and the temporal existence of man if they are to be truly reasonable and for his good. As the great New England clergyman, Jonathan Mitchel (1624-1668) put it, “Religion is the chief and principal thing, wherein the welfare of a people stands,” therefore, “if Rulers seek the weal of a people they must needs seek the advancement and establishment of this.”
A society cannot be indifferent to the matter of true religion. It cannot be neutral unless it cares not for human beings, those invariably religious and sociable creatures. As a matter of fact, all societies functionally possess a moral core, an orthodoxy that informs law, policy, customs, and norms. Religion is always cultural and vice versa. No other arrangement is tenable. Something must serve as a rule of action; something must comprise law.
Here, again, we see the two contemporary emphases of the political right and left cohere, though the latter may operate upon a bastardized conception of justice and the former is only now fumbling in the dark for a substantive vision of the good. One side insists that moral neutrality is impossible and the other that it is undesirable. Both are correct. Protestants should stop feebly proliferating the tired, counterfeit claim of liberalism: that just, stable, socio-political order is attainable absent shared moral presuppositions and ends; that a polity can be built upon an ever-malleable conception of human nature and relations—sexual and otherwise.
Instead, Protestants should remember that man’s nature and end are fixed by his creator and shared by the species—any law that discards these truths is by definition unjust. In between these two bookends, human prudence operates to the best of its ability to respect and further this nature and end, albeit imperfectly. Outside these parameters, however, just order and the common good cannot be achieved. The past several decades have seen a society dedicated to the systematic erosion of such parameters to the chagrin of Protestants who still comprise the largest religious affiliation in the country. At best they have stood idly by, and at worst they have aided and abetted the erosion—or corrosion, depending on how one looks at it.
Far from entertaining the liberal myth of moral and social neutrality, a myth against which both the new right and the new left chafe, this classical designation of premises and ends of society leads to another pressing inquiry for Protestants: church-state relations. An answer thereto would exceed our scope here, but it must be said that if what has been delineated above is true then the presently dominant relationship of antagonism between church and state which most Protestants impulsively proffer cannot be just, proper, or ideal—indeed, it contradicts what most Protestants believed until the mid-to-late nineteenth century. Only when natural law fell out of favor with Protestant theologians and lawyers alike did this absolute bifurcation between church and state begin to develop. (It is truly amazing how Warren court era dicta passes for timeless Christian dogma these days, but I digress).
So much for our own ethics. What of the “public witness” that so many evangelical thought leaders seem to be concerned with? Should not people of the book be champions of both books, natural and inscripturated?
For too long Protestants have only proclaimed half the deposit of truth entrusted to them, half of revelation, frankly. The book of nature, like the book of scripture, should be dutifully and tirelessly propagated by Protestants. On this point, Craig Carter has rightly insisted that scripture itself is unintelligible absent understanding of the metaphysical foundation it assumes. Both books presuppose one another.
On this issue I must quibble with my friend, Carl Trueman. The contemporary utility of natural law is not limited to catechesis of young Christians in their inherited Biblical, ethical commitments to, for example, marriage and sexuality. By its pedagogical effect, natural law also performs a prepatory work in those yet outside of the church. In part, this is because the natural law is known, but also learned through good human laws and the teaching of the church. At bare minimum, even if it does not lead sinners to finally embrace the gospel, it provides the only coherent moral basis for the right ordering of man unto his natural end of temporal wellbeing, to do justice, and to love kindness, and to walk humbly at least with his fellow man, if not God. It appeals to what is already written on human hearts. If for no other reason than this, the natural law should be preached in season and out of season—and leave the rest to the Holy Spirit—if Protestants want a political future, that is.
*Image Credit: Pexels