Posts tagged with: higher law


Fourth of July Celebration in Centre Square, Philadelphia (1819)

“Liberty is not the power of doing what we like, but the right to do what we ought.” – Lord Acton

Today, people across the United States will march in parades, set off fireworks, and don red, white, and blue to huge family cookouts, all in celebration of the adoption of the Declaration of Independence. In the years since those first Americans pledged their loyalty to the philosophy of natural rights and the equality of all men, the document has remained a national symbol of pride and freedom.  However, in the years since the founding of the country and the later drafting of the Constitution, the true intentions of the Founders and the spirit of their work has become intermittently lost and misunderstood.

Among the most common and consequential misunderstandings is the idea that the Founders were worshipers of rights for their own sake, radical individualists with the goal only to secure those liberties to which humans believe, through reason or instinct, they are entitled. In truth, even among libertarian heroes like John Locke or Founder Thomas Jefferson, the spirit of the Declaration of Independence and the Constitution were not in pursuit of license.  In fact, many of those who formed and secured the natural rights tradition of the American Founding outright rejected the idea that rights exist for their own sake, without a higher purpose or end.  Our freedoms were thought to exist and were secured for much more than a pleasure-guided exercise of free will. (more…)

In Part 3, we examined why many contemporary Protestants have something of a bad conscience when it comes to natural law. But, of course, the blame for this cannot be laid fully upon Karl Barth. Even a hint of a fuller explanation has to address intellectual currents that begin to gather momentum in the so-called Enlightenment. One popular explanation within the academic mainstream for the demise of the natural-law tradition in modern Protestant theology attributes it to a form of implosion. And this is what I want to take up here.

Why did the natural-law tradition fall on hard times in modern Protestant theology? Many have speculated that the reason somehow lies deeply embedded in the Reformation theology of Martin Luther and John Calvin. However, John T. McNeill, the Reformation historian and editor of Calvin’s Institutes, reached a far different conclusion:

There is no real discontinuity between the teaching of the Reformers and that of their predecessors with respect to natural law. Not one of the leaders of the Reformation assails the principle. Instead, with the possible exception of Zwingli, they all on occasion express a quite ungrudging respect for the moral law naturally implanted in the human heart and seek to inculcate this attitude in their readers. Natural law is not one of the issues on which they bring the Scholastics under criticism. With safeguards of their primary doctrines but without conscious resistance on their part, natural law enters into the framework of their thought and is an assumption of their political and social teaching. . . . The assumption of some contemporary theologians that natural law has no place in the company of Reformation theology cannot be allowed to govern historical inquiry or to lead us to ignore, minimize, or evacuate of reality, the positive utterances on natural law scattered through the works of the Reformers. . . . For the Reformers, as for the Fathers, canonists, and Scholastics, natural law stood affirmed on the pages of Scripture.

The pressure to abandon the teaching of natural law did not stem from the Reformation so much as from post-Enlightenment philosophy, especially Humean empiricism, utilitarianism, and legal positivism.

The post-Enlightenment era can be characterized in terms of a loss of belief, not only in special divine revelation through Scripture and church teaching, but also in the ability of reason to discern a natural moral order in human affairs. These losses become visible in Europe and North America after 1850 and prepare the way for law to become an instrument of power. With the eclipse of natural law, positive law lost its transcendent moorings and soon came to be an instrument of the totalitarian state. Appeals to “higher law” were dismissed as relics of the past, and moral questions were reduced to legal decisions. With the collapse of the religious and metaphysical foundations of justice, the totalitarian state could now manipulate law as a mere function of absolute power. This is the meaning of the famous statement by Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency or the certainty of corruption by authority.” Thus there was no other criterion of validity for the law than the will of those who had the monopoly of force.

The twentieth century has paid a high price in legalized atrocities and crimes against humanity. After World War II, for a brief moment in the wake of the Nuremberg trials, Protestant theologians and ethicists seemed to entertain the idea of a “baseline morality” that all people could be said to know and thus be responsible for. But they were in a quandary about natural law, and found it difficult to move beyond Barth’s objections. Carl Braaten captures well the ambivalence of Protestant theologians during this period: “Natural law came to be seen as a kind of necessary evil, or as an illegitimate child that could not be completely abandoned but whose rights must be severely restricted.”

In Part 5, we will shift our focus slightly and address the two most common Protestant criticisms of natural law.

This has been cross-posted to my blog on natural law, Common Notions.