After Natural Law

I have never read Comment magazine, but I couldn’t help but wander over there to catch the first part of James K.A. Smith’s interview with Joan Lockwood O’Donovan on law and political institutions. Early on in the exchange, O’Donovan makes the following statement:

[I]t seems to me that two generalizations are beyond dispute, even among scholars: first, that until the seventeenth century, the theories [of law] and their associated practices largely developed within a biblical and theological matrix; and second, that they have subsequently become progressively detached from this matrix or fabric, in academic and political as well as popular circles—at least outside of ecclesiastical and theological circles.

The first generalization O’Donovan articulates is a bit murky. What exactly is a “biblical and theological matrix”? Justinian’s Corpus Iuris Civilis, arguably one of the greatest juridical achievements in Western history, may have originated in Christian Byzantium, but it is not self-consciously theological or biblical. The same can be said for second-millennium Christian treatments of law which were centered on reason, not revelation (at least not always). Of course, no one thought that what was right by nature contradicted what was right by revelation, nor did thinkers of the pre-Reformation period feel all that compelled to combat “secular theories” of law with “religious theories.” Of course, positive law need not follow natural or revealed law at all — a brutal fact we are only too well aware of at this stage in the game. A Christian society — arguably — would be more inclined to enact and uphold laws which conform to natural and revealed law, however, and this reality — as simple as it may seem — may be what O’Donovan is acknowledging in a roundabout manner. Then O’Donovan goes a bit further:

I would just say that the contemporary political and social ideology of unbounded egalitarian pluralism is the terminus of a long evolution of natural law and natural right theories in the West, insufficiently informed by sound theological doctrine, and so increasingly captive to rationalism, individualism, voluntarism, and finally subjectivism, and that this ideological culture has very little understanding of the social nature of human goods, and of the spiritual practices necessary to maintaining them.

There is certainly a ring of truth in these words, but it’s not entirely clear what O’Donovan is ultimately driving at. O’Donovan doesn’t appear to differentiate between the premodern and modern natural-law tradition nor accounts for how the various ideologies which emerged out of the Enlightenment radically reshaped the philosophical conception of “nature.” It is simply not plausible to hold that premodern natural-law thinkers such as St. Thomas Aquinas, Francisco Vitoria, or Francisco Suarez were “insufficiently informed by sound theological doctrine” even though they understood well the distinction between reason and revelation. It seems that O’Donovan is trying to promote a theo-legal approach to law and order, one which only makes sense in a definitively Christian socio-political context.

This, it seems to me, is a mistake, though one that is commonplace in contemporary Christian social thinking. The denigration of the natural, and with it natural law, comes packaged with a worldview where only those who accept the “Christian narrative” (however interpreted) can embrace a Christian social framework — albeit one that has to fit snugly within a pluralistic political context. Rules and regulations cannot be judged by the light of reason; they must be evaluated only by the express terms of revelation (again however interpreted), leading to a sort of relativism whereby what is good “for Christians” may not be good “for Muslims” or “for Jews” or “for atheists.” In the end it seems as if the only outcome is cultural surrender to pluralism or, on the opposite end of the spectrum, a sort of “long for escape” into a ghetto ruled by “Christian thinking” (of a sort) while detached from the “outside world.” Not only does this shift undercut the capacity for cross-cultural or pan-national evaluation and dialogue, it downplays reason altogether, leaving some to believe that the “Christian worldview” is fundamentally fideistic.

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