Rediscovering the Natural Law

Russell Hittinger’s «First Grace» Inspired by an Encyclical and a U.S. Abortion Decision

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TULSA, Oklahoma, SEPT. 12, 2003 ( Recent Supreme Court decisions, the decline in public morality and an increase in rights rhetoric have prompted many legal scholars and philosophers to invoke the natural law.

In his latest book, «The First Grace: Rediscovering the Natural Law in a Post-Christian World,» (ISI Books), Russell Hittinger investigates the problem of the natural law and natural rights tradition dividing against itself.

Hittinger is the Warren Chair of Catholic Studies and a research professor of law at the University of Tulsa.

Q: Why did you write «The First Grace,» and what is the meaning of the title?

Hittinger: «The First Grace» is a collection of essays, for the most part written over a five-year period from 1992 to 1997. The polemical thrust of the book was shaped by my reading and analysis of the U.S. Supreme Court abortion decision Planned Parenthood v. Casey in the summer of 1992, and Pope John Paul’s encyclical «Veritatis Splendor» the following summer.

One couldn’t find two more diametrically opposed understandings of the morality of human liberty. But I was especially intrigued by the fact that both appeal to a justice that transcends the positive law, thus raising the problem of the natural law and natural rights tradition divided against itself.

When speaking of natural law, I use the definition given in the Catechism of the Catholic Church, in No. 1954: «Man participates in the wisdom and goodness of the Creator who gives him mastery over his acts and the ability to govern himself with a view to the true and the good. The natural law expresses the original moral sense which enables man to discern by reason the good and the evil, the truth and the lie: ‘The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin. … But this command of human reason would not have the force of law if it were not the voice and interpreter of a higher reason to which our spirit and our freedom must be submitted.'»

The essays in the first part of the volume are of a more theoretical character. I attempt to show what is historically, philosophically and theologically distinctive about the Christian tradition of natural or higher law.

The essays in the second part explore more concrete issues concerning the role and limits of courts in adjudicating the natural law and human rights.

The title «The First Grace» is taken from the Second Council of Arles, which affirmed the existence of a natural law that is given and never rescinded by God. At Arles, the natural law was called the «prima gratia,» the first grace or gift of the Creator.

The council wished to counter certain hyper-Augustinian theses, including the idea that sin abolishes the law from the human heart. Catholicism has never held that the rule of God communicated by creation is ever rendered completely ineffective by depravities on the part of the creature.

Q: Some legal philosophers believe natural law does not require theological or metaphysical foundations. How would you respond?

Hittinger: Our rudimentary grasp of the natural law is not caused by theories about foundations. One must already know something to have a theory about it. Yet the origin of moral norms is a question that has always interested philosophers and theologians.

We can think, for example, of the Promethean myth recounted in Plato’s dialogue with Protagoras, where Protagoras contends that the norms of civic justice are invented, or constructed, by each city. Of course, Genesis tells a much different story. Adam in Genesis 2:17 is permitted to participate in, but not to usurp, the original measures of moral good and evil.

We can hold that our first data about morality are drawn from experience, understanding and judgment of what might be called moral phenomena. But the philosopher and theologian want to know something more: namely, how moral phenomena are grounded. Are they grounded in an impersonal scheme of nature, in the human mind itself, or in a source transcending both nature and the human mind?

Historically speaking, most scholars would agree that the phrase «natural law» arose once the world of the Jewish scriptures began to intellectually interact with the logos metaphysics of the Platonist and Stoic philosophies. Gradually, the idea of a higher law began to replace the notion of justice according to nature.

There is nothing contradictory in these two ideas. The natural or higher «law» expressed the origin of natural standards of justice according to a metaphysic shaped by Scripture. And this development was not merely Christian, for in the great Jewish scholar Philo of Alexandria we already find a quite vibrant version of a natural «law.»

As in so many other areas, Christians did not invent these ideas, but used and refined the philosophies and theologies inherited from late antiquity. In «The First Grace,» I hold up this tradition not merely in terms of its ancient pedigree but also as a coherent and powerful account of the origin of morality.

To be sure, there are proponents and critics of natural law who agree that natural law ought not to be complicated by metaphysical and theological questions.

In brief, my response is that this is exceedingly naive not only historically, but also in light of the very disputes we so often engage over natural law. The U.S. Supreme Court and the papal magisterium are not just divided over the issue of abortion or euthanasia, but also over the situation of human practical reasoning in a larger order of things.

Q: What prospects do you see for a recovery of natural law jurisprudence in the law schools and judicial chambers today?

Hittinger: I believe it is important to understand that many of the most pressing problems today in jurisprudence cannot be fairly described as natural law vs. positivism. Both of these theories, or ideologies, are amenable to quite different — and often very sophisticated — renditions.

Our problem is that we are awash in natural law and natural right theories. And it is not difficult to understand why this is so.

Because of the experience of the 20th century, in which 200 million or more men, women and children have been killed either as direct military casualties, or as civilians shot, beaten, tortured, knifed, burned, starved, frozen, crushed, worked to death, buried alive, drowned, hanged and bombed on direct order of state authorities, there is a profound expectation that state law abides by natural principles of justice.

Throughout the Western world, legal systems have had to acknowledge not merely the right of a citizen but the rights of man.

Even legal systems that were not responsible for the grotesque violations of human justice — and I am thinking here of the United States and Canada — allowed constitutional courts to discover and apply natural or human rights.

One of the chief questions discussed in «The First Grace» is whether the project of justiciable natural rights has really anchored natural law more firmly in our positive law. I discuss in some detail how the quest for a natural law jurisprudence has tragically produced the very opposite result.

One of the things I try to help the reader understand is the background of Pope John Paul II’s «Evangelium Vitae,» in which he speaks ominously of a «conspiracy» against human rights and observes that certain states have reversed the «long historical process leading to the discovery of the idea of human rights,» even to the point of violating the «principles of their own constitutions.»

Q: We live in what has been described as a very un-philosophical age, yet natural law requires the exercise of public reason. Can natural law jurisprudence survive our times?

Hittinger: In my view, the natura
l law pertains not only to individual conduct, but also to the public project of erecting and maintaining a rule of law. In «The First Grace,» I examine how we ought to consider a conflict between the two.

One of the things that readers might find most interesting in «The First Grace» is my interpretation of how St. Thomas Aquinas dealt with such a conflict.

In any system of human law we can expect artificial but important constraints upon what can count as evidence, especially in judicial proceedings. In the context of a trial, for example, the rule of law really does require constraints upon the admission and testing of evidence.

One of my complaints is that «public reason» has become so identified with the work of courts that the natural law tradition has been reduced to a curiously abstract, even fictional, account of what human beings might believe as hypothetical citizens — despite what they believe as concrete human knowers.

Hence, we begin to reduce the natural law to what can pass the test of consensus in a judicial environment. As Pope John Paul II points out in «Evangelium Vitae,» those who hold a richer moral anthropology become branded as traitors to the rule of law by the simple fact that they make public their best considered judgments about the human good, its origin and its claims upon the civic community.

In some versions of «public reason,» this is regarded as contrary to the standard of natural justice. Undoubtedly, we should sometimes avoid, or exercise forbearance in, philosophical and theological disputes. A thousand times every day, a polity must make specific judgments about the common good without immediate support of a complete philosophical consensus.

What I criticize in «The First Grace» is the conception of «public reason» that actually outlaws a vigorous discussion of the philosophical, anthropological and theological issues. The ordinary and often quite messy deliberations of legislatures and municipal assemblies are constitutionally prevented from exploring what is good and worthy of adoption in the laws.

Q: Why do you believe natural law is important in a «post-Christian» society?

Hittinger: Catholic Christianity does not need to impose a curriculum of natural law theory upon the peoples of the world.

I know that many philosophers and public intellectuals will disagree with me, but I believe that the imposition today arises mainly from secularists who peremptorily censure public discussion of the great issues and themes of natural law.

One aspect of natural law is completely immune to such censures. Human beings, by nature, will continue to interpret and judge their experience according natural law regardless of what they call it.

However, we should never underestimate the social, cultural and institutional publicity of judgments about natural law. Only the most heroic souls habitually abide the law «written on the heart,» bereft of public support and ratification.

A civic culture is not to be measured only by the fidelity of its heroes, but also by what the average man and woman can readily affirm and live. Thomas More was recognized as a great man; but it was, after all, his own culture that knew this was true.

The task of Catholicism is always to provide the theoretical and practical education for what is «written on the heart.»

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