Tag Archives: Natural Law

Rogers, “Aquinas and the Supreme Court”

This May, Wiley will publish Aquinas and the Supreme Court: Biblical Narratives of Jews, Gentiles and Gender by Eugene F. Rogers, Jr. (University of North Carolina).  The publisher’s description follows.ebook_k

This new work clarifies Aquinas’ concept of natural law through his biblical commentaries, and explores its applications to U.S. constitutional law.

  • The first time the use of Aquinas on the U.S. Supreme Court has been explored in depth, and its applications tested through a rigorous reading of the biblical commentaries
  • Shows how key judgments in the Supreme Court have rested on medieval natural law, and applies critical gender theory to discuss problems with these applications
  • Offers new research data to give a different picture of Aquinas and natural law, and a fresh take on Aquinas’ biblical commentaries
  • New research based on passages in the biblical commentaries never before available in English

Richard Epstein to Lecture on Natural Law (March 21)

I’ve always thought of natural law and law and economics as opposing schools of thought. Like Rick in Casablanca, I must have been misinformed. On March 21, law and economics scholar Richard Epstein will deliver the Spring 2013 Natural Law Colloquium Lecture at Fordham. Details are here.

Covington, McGraw, & Watson (eds.), “Natural Law and Evangelical Political Thought”

This month, Lexington Books will publish Natural Law and Evangelical Political Thought edited by Jesse Covington (Westmont College), Bryan McGraw (Wheaton College), and Micah Watson (Union University). The publisher’s description follows.

Natural law has long been a cornerstone of Christian political thought, providing moral norms that ground law in a shareable account of human goods and obligations. Despite this history, twentieth and twenty-first-century evangelicals have proved quite reticent to embrace natural law, casting it as a relic of scholastic Roman Catholicism that underestimates the import of scripture and the division between Christians and non-Christians. As recent critics have noted, this reluctance has posed significant problems for the coherence and completeness of evangelical political reflections. Responding to evangelically-minded thinkers’ increasing calls for a re-engagement with natural law, this volume explores the problems and prospects attending evangelical rapprochement with natural law. Many of the chapters are optimistic about an evangelical re-appropriation of natural law, but note ways in which evangelical commitments might lend distinctive shape to this engagement.

Ross on Mosaic Law in Early Protestant Jurisprudence

From the beginning, Christian jurisprudence has tried to distinguish the “moral” elements of the Mosaic Law, which continue to bind Christians, from the “ceremonial,” which do not. Richard Ross (University of Illinois) has written what looks to be a fascinating essay, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses,  on the efforts of Protestants in early modern Europe and New England to grapple with this distinction. He ties their work  to similar efforts by natural law theorists of the period to differentiate between eternal and merely local principles. The abstract follows.

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law Continue reading

O’Brien & Koons on A Hylomorphic Critique of the New Natural Law Theory

Matthew B. O’Brien (Rutgers U.) and Robert C. Koons (U. of Texas, Austin) have posted Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory. The abstract follows.

The “New Natural Law” Theory (NNL) of Grisez, Finnis, Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from the NNL’s planning theory of intention coupled with an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. Pace the NNL collaborators, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either essential to human nature or acquired through participation in social practices.

Jacobs, “Reason, Religion, and Natural Law: From Plato to Spinoza”

This month, Oxford University Press published Reason, Religion, and Natural Law: From Plato to Spinoza (OUP Sept. 2012) by Jonathan A. Jacobs (Institute for Criminal Justice Ethics). The publisher’s description follows.

This edited volume examines the realizations between theological considerations and natural law theorizing, from Plato to Spinoza.

Theological considerations have long had a pronounced role in Catholic natural law theories, but have not been as thoroughly examined from a wider perspective. The contributors to this volume take a more inclusive view of the relation between conceptions of natural law and theistic claims and principles. They do not jointly defend one particular thematic claim, but articulate diverse ways in which natural law has both been understood and related to theistic claims.

In addition to exploring Plato and the Stoics, the volume also looks at medieval Jewish thought, the thought of Aquinas, Scotus, and Ockham, and the ways in which Spinoza’s thought includes resonances of earlier views and intimations of later developments. Taken as a whole, these essays enlarge the scope of the discussion of natural law through study of how the naturalness of natural law has often been related to theses about the divine. The latter are often crucial elements of natural law theorizing, having an integral role in accounting for the metaethical status and ethical bindingness of natural law. At the same time, the question of the relation between natural law and God-and the relation between natural law and divine command-has been addressed in a multiplicity of ways by key figures throughout the history of natural law theorizing, and these essays accord them the explanatory significance they deserve.

Upcoming Lectures on Catholic Jurisprudence

For East Coast CLR Forum readers interested in Catholic jurisprudence, here are a couple of events to put on your fall calendar. Next Friday, September 14, Villanova Law School will host the seventh annual Scarpa Conference on Law, Politics, and Culture. This year’s theme is “Living the Catholic Faith in Public Life.” Speakers include Helen Alvaré (George Mason), Gerard Bradley (Notre Dame), Patrick Brennan (Villanova), and Peter Steinfels (Fordham). The following Friday, September 21, the Thomistic Institute NYC will kick off a series at NYU’s Catholic Center, “A Public Right to the Truth: A Series on the Natural Right to Religious Freedom,” with a lecture by Russell Hittinger (Tulsa) on “The Catholic Magisterium and Religious Freedom.” The series will continue throughout the fall. Details are here.

Finnis on the Philosophy of Law and the Relevance of “Common Custom”

This is a short and highly accessible essay by the eminent John Finnis entitled, “What is the Philosophy of Law?”  Readers of CLR Forum will know that Finnis is the author of one of the most important books of jurisprudence of the last century, Natural Law and Natural Rights, which represents the keystone in the revival of natural law thought in contemporary times. 

In this short piece, Finnis explains in summary form what the philosophy of law (or jurisprudence — he believes the terms are synonymous, for reasons he discusses) is and what its tasks are to be.    Why is this relevant to religion?  Well, grossly oversimplifying (and I mean really grossly and highly incompletely), though it does not appear in this essay, one of the basic common goods described by Finnis in NLNR (see pp. 89-90 and 371-410) is the good of religion (obliquely adverted to in this essay at page 4 as one of the common goods “of other associations of society”).  And inasmuch as a society provides for freedom of religion, the philosophy of law “consider[s] precisely how far choices made today for one’s political community should be determined or shaped by choices made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.”

Two little noteworthy items in Finnis’s new piece.  First, Finnis gives a very clear and easily digested explanation for why the statement “an unjust law is no law” is true (he has done this before, and this essay does it succinctly).  Again, I am oversimplifying, but the criticism has been: well of course an unjust law is a law — in fact, whether a law is really a law has nothing to do with its morality or ultimate justice.  Finnis says:

Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense.  Indeed, it is not unreasonable to see such a distinction at work in the famous tag — “An unjust law is not a law.”  Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: “an insincere friend is not a friend”; “a logically invalid argument is no argument”; “a quack medicine is no medicine”… So too in the famous tag or theorem: “unjust law” (lex iniusta) here refers to an intra-systemically valid legal rule or order, and “not law” (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e., legitimacy) and thus, as such, lacks moral obligatoriness.  (8-9) (footnotes omitted)

The second item to note is the conclusion, in which Finnis is discussing the philosophy of law’s tasks and its future.  I was especially struck by Finnis’s emphasis of the importance of “common custom” in maintaining a healthy legal system. 

Continue reading

Ching on Bonhoeffer, Church, and State

Kenneth Ching  (Regent U. School of Law ) has posted Would Jesus Kill Hitler? Bonhoeffer, Church, and State. The abstract follows.

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus, of course, did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who, while trying to “live the life of Jesus,” conspired to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) tradition. The NL2K tradition runs through St. Augustine, William of Ockham, Martin Luther, John Calvin, and many others. Some argue that Bonhoeffer rejected this tradition. This article’s descriptive thesis is that Bonhoeffer was part of the NL2K tradition. Also, a problem in the tradition is identified. Sometimes, the church has had too much influence on the state (theocratic Geneva and Puritan Massachusetts); sometimes, it has had too little (the antebellum South and Nazi Germany).

This article describes and assesses Bonhoeffer’s developments of and deviations from the NL2K tradition both theoretically and in the context of his opposition to Hitler and the Nazis. Using Bonhoeffer, this article also offers an answer to the problematic question “how much influence should the church have on the state?” The normative thesis of this article is that the state must remain religiously neutral, but the church must oppose a state that acts illegitimately.