Why We Need Natural Law More Than We Need a Theory About It
Protestants are currently experiencing revival of interest in natural law. For a long time most Protestants dismissed natural law as a Roman Catholic concept, one that carried with it all sorts of semi-Pelagian assumptions about human nature and the powers of reason. Even worse, they associated it with the Enlightenment and its Deistic abandonment of orthodox Christianity.
Even today many conservatives and liberals alike find their reasons to reject natural law. For conservatives the concept serves as a Trojan horse for the rejection of scripture, a dangerous elevation of human reason and autonomy. For liberals the captivity of natural law thinking to the concerns of “pelvic ethics” suggests that it is simply a way for religious conservatives to pretend they are using public reason, when in fact they are simply expounding traditional Roman Catholic attitudes toward sexuality, marriage, and birth control.
Both of these dismissive views share a common confusion about natural law, one well summarized by the French Reformed sociologist and theologian Jacques Ellul in his 1946 The Theological Foundations of Law, written just after World War II had destroyed law in Ellul’s native France:
“Too often … natural law is defined as a doctrine, as an interpretation of legal facts, as a philosophy of law… Yet natural law is not primarily this philosophy. It is first of all a phenomenon which exists not as an idea, but as a concrete event in history… As such, it cannot be disclaimed any more than the fact of religion or the fact of the state can be disclaimed.” (14)
Ellul identifies the philosophy of the Stoics and the theologies of Aquinas and Calvin as examples of relatively sophisticated natural law theories that had virtually no impact on actual law. Real natural law, he insists, is something on which we reflect, not something that we construct.
Ellul thinks natural law arose at a point in human history shortly after religion and magic became differentiated from law and morality. At that stage
“Law is established by custom or legislation, independently of the religious power, as if it were a spontaneous creation of society under the impact of economic, political, and moral factors. It is not dictated and created in one piece by the state. It is not imposed from outside. It springs directly from within society, from the common sentiment and the common will. These may not of necessity be consciously intended to result in a juridical creation, but they are certainly consciously experienced as a habit and obedience. This law rests on the adherence of the people who brought it into existence. This adherence is won because the law is merely the expression of the conscience of these people and of the circumstances in which they live. There is no alternative to adhering to this code.” (18-19)
By the time theories of natural law arise, Ellul argues, the phenomena is already in its decline. “It is indeed the moment when man ceases to be spontaneously ‘within the law.’ He places himself outside the law and examines it. Law becomes an object of speculation and interpretation.” (19)
It is but a short step from the systematic analysis of natural law to its replacement by positive law. “It does not take long for this view to reach the jurist, who in turn tries to organize law in a rational way.” Soon law becomes becomes a creation of the state.
“[A] juridical technique is worked out which is increasingly precise, increasingly rational, and increasingly removed from spontaneity. At this point the code hardens. It becomes a consecrated abstraction, always trailing behind social and political evolution, always in need of being brought up to date by arbitrary innovations, more or less adapted to the conditions of society. Law becomes the affair of jurists, receiving authority and sanction from the state.” (19)
No longer is law viewed primarily as the expression of an organic public consensus concerning justice, but it is viewed as an alien imposition on the part of those who have power. No longer are laws enacted as general rules of justice to be applied and enforced with prudence and equity, but law is seen as a mass of particular rules and regulations designed to foresee every possible circumstance and eventuality. Law becomes ruthlessly logical and systematic, yet blind to justice itself. “It is adequate for all material interests, yet inadequate for justice.” (32)
Here we are faced with the specter of tyranny, no matter what our system of government, as law becomes simply a means by which the powerful exploit the weak. After all,
“juridical technique is at the disposal of whoever wishes to take advantage of it… it may be utilized by any kind of power in history. When this happens, a definite purpose is ascribed to this intrinsically neutral technique. The technique is manipulated according to new and arbitrary criteria, substituted for the ideas of justice and natural law.”(32)
Having been a leader in the French resistance, Ellul identifies Nazism and Communism as the phenomena that he has in mind. In both cases the natural law of justice was abandoned and law was manipulated as a flexible tool for a new and greater purpose (i.e., ideology). The inevitable byproduct of this development is the collapse of the rule of law itself. The state is raised above the law and those under its rule know it. Why should they voluntarily submit to rules that have no grounding in right or justice? The power of the law now simply consists in fear and coercion, and people will disobey it when they get the chance and when it suits their interests.
Ellul describes these developments as history. Natural law, he thinks, has been lost, and no amount of theorizing or theologizing can recover it. The only hope for humanity is a revival of civilization on the part of God himself. I get the sense this sentiment would resonate with many American Christians today. Why even bother reasoning about politics or the law? Things are too far gone for that.
I think Ellul’s analysis of natural law and its history has much to be said for it, but I think he wrongly reduces history to an inevitable evolutionary process over which humans have little control. I also think that he – and many contemporary Christians – are too quick to dismiss the moral sensibilities of a world that remains under the common grace of God. Ellul wrote in the shadow of a shattered Europe, with millions of the dead able to testify to what law had become in the hands of dictators and soldiers, guerrillas and criminals. But even in the late 1940s and 1950s Americans were much more optimistic (witness the baby boom) because they realized that the European experience was not the whole story.
Indeed, it was out of the ashes of World War II that a system of international law and human rights emerged that can only, only be explained as an example of natural law at work. It is true that this system is codified and enforced to varying degrees around the world. It is also true that while it approximates certain Christian moral sentiments better than did the laws of traditional societies, it largely ignores others. But this is nothing new under the sun. Anyone who tells you there was a golden age of morality and law hasn’t read much history.
Ellul rightly characterized the dangers facing a society that has lost its allegiance to justice (i.e., to natural law), but if the West has received another lease on life, Christians would do well to engage in the hard work of strengthening and rebuilding moral consensus rather than seeking to overcome it with the use of brute force (all the while complaining about its demise). Jesus is still Lord, the sun continues to shine, and rain continues to fall on the just and the unjust alike. That suggests there is still something to be said for the world after all.
Posted on July 1, 2014, in Law, Natural Law, Rights and tagged Aquinas, Calvin, Communism, Jacques Ellul, Nazism, United Nations. Bookmark the permalink. Comments Off on Why We Need Natural Law More Than We Need a Theory About It.