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  • William S. Brewbaker (a1)

Theological explorations of law have sometimes followed a “prophetic” model in which scripture or theological ethics serves as the primary norm for human law. After all, if God has spoken his Law into the world, especially a world beset by sin and oppression, should not human law answer to that Law? Moreover, is not law more authoritative when it is “found” or “discovered” within the framework of divine revelation than when it is “made” autonomously by fallen human beings?

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1 O'Donovan Oliver, The Ways of Judgment (Grand Rapids: William B. Eerdmans, 2005), xv.

2 Consider, for example, the famous Body of Liberties adopted by Puritan settlers in Massachusetts in 1641. On one hand, as John Witte has demonstrated, the document is shot through with Puritan theological concepts rooted in the biblical narrative of covenant; on the other, it is at least as heavily influenced by the tradition of English liberty rooted in Magna Carta, the achievements of the common law, and the political concerns of the English Revolutionaries: see Witte John Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), 277–88.

3 It is not my purpose in using the term systematic theology to take sides at this point in debates over theological method. I mean merely to identify a constellation of learning marked out by familiar biblical and credal themes such as creation, fall, the human person, covenant, eschatology, and the Trinity.

4 One might start elsewhere—with the doctrine of God or with anthropology, for example. Indeed, the doctrine of creation cannot be neatly sealed off from these other topics. For example, to say that a human being is a creature implicates all of the above.

5 The discussion that follows is drawn in part from two previously published works: Brewbaker William S. III, “Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory,” Journal of Law and Religion 22, no. 1 (2006): 255–86; and Brewbaker William S. III, “Theory, Identity, Vocation: Three Models of Christian Legal Scholarship,” Seton Hall Law Review 39, no. 1 (2009): 1761 .

6 Gunton Colin E., The Triune Creator: A Historical and Systematic Study (Edinburgh: Edinburgh University Press, 1998), 9.

7 Ibid.

8 Ibid.

9 Ibid.

10 Ibid., 10.

11 In a full treatment, an additional layer of complexity must be added. The “shape” of the created order must be understood through a biblical lens that resists “false abstractions.” For further discussion, see generally Welker Michael, Creation and Reality, trans. Hoffmeyer John F. (Minneapolis: Augsburg Fortress Publishers, 1999).

12 Aquinas Thomas, Summa Theologica, trans. Fathers of the English Dominican Province (New York: Benziger Brothers, 1947–48), 1–2.95.2.

13 See ibid.

14 One can, however, get some indications from Aquinas's discussion of justice and related virtues in the Summa Theologica 2–2.57–122. Other contributions to this roundtable likewise suggest some possible approaches to these questions, although at a more general level than Aquinas seems to have in mind. See Welker Michael, “What Could Christian Theology Offer to the Disciplines of the Law?,” Journal of Law and Religion 32, no. 1 (2017) (this issue); Enlow Eric, “Mosaic Commands for Legal Theology,” Journal of Law and Religion 32, no. 1 (2017) (this issue).

15 See, for example, Fuller Lon L., The Morality of Law (New Haven: Yale University Press, 1969), 96:

What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as “the enterprise of subjecting human conduct to the governance of rules.” These natural laws have nothing to do with any “brooding omnipresence in the skies.” … They remain entirely terrestrial in origin and application. They are not “higher” laws; if any metaphor of elevation is appropriate they should be called “lower” laws. They are like the natural laws of carpentry, or at least those respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it.

See also Waldron Jeremy, “Torture, Suicide and Determinatio,” American Journal of Jurisprudence 55, no. 1 (2010): 129 (suggesting possible further specification of Aquinas's methodology).

16 See 1 Kings 3:16–28. This point may be further illustrated by reference to the important role of custom in law, and its relation to the physical world in which law operates, see, for example, Ghen v. Rich, 8 F. 159 (D. Mass. 1881) (addressing legal relevance of customs for hunting finback whales), or with reference to the particular frame of inquiry that courts use in fashioning procedural rules, see, for example, United Public Workers v. Mitchell, 330 U.S. 75 (1947) (explaining why US courts do not render advisory opinions).

17 See, generally, Genesis 1:26–28.

18 O'Donovan Oliver, Resurrection and Moral Order (Leicester: InterVarsity Press, 1986), 52.

19 Ibid.

20 Rawls John, Political Liberalism (New York: Columbia University Press, 1996), 140–44.

21 Genesis 1:31.

22 Cf. Hays Richard B., “Whose World, Which Law?Journal of Law and Religion 32, no. 1 (2017) (this issue) (“[T]here is no such thing as a law that has normative force and validity outside of … a particular story.”).

23 Of course, such laws may be particular and mutable and may also be unjust or unwise.

24 Genesis 1:31.

25 But cf. Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992), where the Court notes,

Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.

26 See, for example, Exodus 31:3–4. I am not suggesting that law can be reduced to technological considerations.

27 See, for example, Gunton Colin, The One, the Three, and the Many (Cambridge: Cambridge University Press, 1993).

28 See VanDrunen David, “The Two Kingdoms: A Reassessment of the Transformationist Calvin,” Calvin Theological Journal 40, no. 1 (2005): 165–76; Dawn Marva J., Powers, Weakness and the Tabernacling of God (Grand Rapids: William B. Eerdmans, 2001), 134 ; Stringfellow William, An Ethic for Christians and Other Aliens in a Strange Land (Waco: Word Books Publisher, 1973), 7794 .

29 O'Donovan Oliver, Finding and Seeking (Grand Rapids: William B. Eerdmans, 2014), 151–52.

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Journal of Law and Religion
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  • EISSN: 2163-3088
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