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NEW DIRECTIONS IN NATURAL LAW

  • Vincent Lloyd (a1)
Abstract

Notoriously, natural law means many things to many people. Natural law is discussed quite differently in the fields of ethics, law, and theology; it is employed quite differently in the spheres of political rhetoric, churches, and academia; it has been used quite differently in the eras of ancient Rome, medieval Europe, the Enlightenment, and the postmodern West; and something akin to natural law appears, with quite different associations, in the religious traditions of Christianity, Judaism, Islam, and Hinduism. In some contexts natural law refers to God's moral law. In other contexts natural law consists of norms that can be discerned solely through human reason. In still other contexts natural law describes rules that are naturally embedded in the physical world.

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1 I am ignoring the second-order normativity involved in the claim that one ought to obey the law, in the traffic-light case.

2 Finnis John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980); Hart H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961).

3 John Finnis taught at Oxford from 1966 to 2010; he remains an honorary fellow at University College, Oxford. From 1995, Finnis has also held a faculty appointment at the University of Notre Dame.

4 George has served on the United States Commission on Civil Rights, the President's Council on Bioethics, the United States Commission on International Religious Freedom, and as a Judicial Fellow of the Supreme Court of the United States, among other positions.

5 Also closely aligned with the position of Finnis and George is the work of Catholic theologian Germain Grisez. For Grisez's comprehensive statement on moral theology, see his The Way of the Lord Jesus, 3 vols. (Chicago: Franciscan Herald Press, 1983–1987).

6 Finnis John, Aquinas: Moral, Political, and Legal Theory (New York: Oxford University Press, 1998).

7 Hart H. L. A. addresses these issues directly in his early essays “Are There Any Natural Rights,Philosophical Review 64, no. 2 (1955), 175–91, and Positivism and the Separation of Law and Morals,Harvard Law Review 71, no. 4 (1958), 593629 . Among the notable works developing legal positivism in Hart's wake are Raz Joseph, The Authority of Law (Oxford: Clarendon, 1979); Gardner John, “Legal Positivism: 5 ½ Myths,American Journal of Jurisprudence 46, no. 1 (2001): 199227 , Marmor Andrei, Positive Law and Objective Values (Oxford: Oxford University Press, 2007); Leiter Brian, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007); Green Leslie, “Positivism and the Inseparability of Law and Morals,New York University Law Review 83, no. 4 (2008): 1035–58.

8 There have been critiques of Finnis's position from the law school world, ranging from Weinreb Lloyd, Natural Law and Justice (Cambridge, MA: Harvard University Press, 1987), to Bamforth Nicholas and Richard David A. J., Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law (Cambridge: Cambridge University Press, 2008); see also the work of philosopher Hittinger Russell, especially A Critique of the New Natural Law Theory (Notre Dame: University of Notre Dame Press, 1987).

9 Murphy Mark, Natural Law and Practical Rationality (Cambridge: Cambridge University Press, 2001); Murphy Mark, Natural Law in Jurisprudence and Politics (Cambridge: Cambridge University Press, 2006); Murphy Mark, God and Moral Law: On the Theistic Explanation of Morality (Oxford: Oxford University Press, 2011).

10 For example, George and George Duke co-edited the forthcoming Cambridge Companion to Natural Law Jurisprudence (Cambridge: Cambridge University Press).

11 For a historical account of natural law in the context of Catholic moral theology over the past century, see Keenan James F., A History of Catholic Moral Theology in the Twentieth Century: From Confessing Sins to Liberating Consciences (London: Continuum, 2010).

12 For reflections on this general problem of interpretation and authority, see Jordan Mark D., Rewritten Theology: Aquinas after His Readers (Malden: Blackwell, 2006). For a spectrum of responses to Finnis's and George's work from theologians and Christian philosophers, see Biggar Nigel, ed., The Revival of Natural Law (Aldershot: Ashgate, 2000).

13 Bowlin John, Contingency and Fortune in Aquinas's Ethics (Cambridge: Cambridge University Press, 1999).

14 Hall Pamela, Narrative and the Natural Law: An Interpretation of Thomistic Ethics (Notre Dame: University of Notre Dame Press, 1994).

15 Porter Jean, Nature as Reason: A Thomistic Theory of Natural Law (Grand Rapids: William B. Eerdmans, 2005).

16 Traina Cristina, Feminist Ethics and Natural Law: The End of the Anathemas (Washington, DC: Georgetown University Press, 1999).

17 Tuck Richard, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979); Tierney Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997); Oakley Francis, Natural Law, Laws of Nature, Natural Rights: Continuity and Discontinuity in the History of Ideas (New York: Continuum, 2005).

18 Of course another way to challenge the foundations, in addition to contesting Aquinas' interpretation, is to turn to the Bible itself. See Levering Matthew, Biblical Natural Law: A Theocentric and Teleological Approach (Oxford: Oxford University Press, 2008).

19 Novak David, Natural Law in Judaism (Cambridge: Cambridge University Press, 1998).

20 For example, Menski Werner F., Hindu Law: Beyond Tradition and Modernity (Oxford: Oxford University Press, 2009).

21 See the Emory University Studies in Law and Religion book series, especially VanDrunen David, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (Grand Rapids: William B. Eerdmans, 2010); Witte John, The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2008); Neil Daniel Arner, “Theological Voluntarism and the Natural Law: The Integrated Moral Theories of John Duns Scotus, John Calvin, and Samuel Pufendorf” (PhD diss., Yale University, 2012).

22 Moyn Samuel, The Last Utopia: Human Rights and History (Cambridge, MA: Belknap Press of Harvard University Press, 2010); Moyn Samuel, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015).

23 Smith Caleb, The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War (Cambridge, MA: Harvard University Press, 2013); Smith Ted, Weird John Brown: Divine Violence and the Limits of Ethics (Stanford: Stanford University Press, 2014).

24 For George's expansive view, see George Robert P., The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington: ISI Books, 2001). Strauss's view is advanced in Natural Right and History (Chicago: University of Chicago Press, 1953) and applied to the American context by Zuckert Michael P. in The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame: University of Notre Dame Press, 1996). The most recent and comprehensive development of the Straussian position on these issues is Seagrave S. Adam, The Foundations of Natural Morality: On the Compatibility of Natural Rights and the Natural Law (Chicago: University of Chicago Press, 2014).

25 “[A]ction, which is rooted in the body, is always already oriented to the meaning that is inscribed in human nature by the Creator. It finds its beginning in passion, which is precisely that reaction which reveals to man the possibility of a new and greater fullness that freedom is called on to acknowledge and embrace in the light of reason” (Melina, Searching for a Universal Ethic, 299).

26 Most notably, Anver Emon argues that the International Theological Commission is particularly careless in its treatment of Islam because it points to the Mu‛tazilite theological school to demonstrate the Islamic interest in natural law, but the Mu‛tazilite school is now generally considered heterodox (Emon, Searching for a Universal Ethic, 128–29).

27 For an intellectual-historical rather than constructive engagement between these three traditions, see Brague Rémi, The Law of God: The Philosophical History of an Idea (Chicago: University of Chicago Press, 2007); originally published in French in 2005. Reference to Brague's compelling work is nearly absent from Natural Law; this absence is another reminder of the insularity of Anglophone natural law debates.

28 Novak, Jewish Natural Law; Emon Anver, Islamic Natural Law Theories (New York: Oxford University Press, 2010). See also Emon Anver, ed., Islamic and Jewish Legal Reasoning: Encountering Our Legal Other (London: Oneworld Publications, 2016).

29 But see Finnis, Natural Law and Natural Rights, chapter 13, for an argument for the necessary role of God in such a natural law theory.

30 See especially the development of “reasons fundamentalism” in Scanlon T. M., Being Realistic about Reasons (Oxford: Oxford University Press, 2014); see also Parfit Derek, On What Matters (Oxford: Oxford University Press, 2011).

31 Finnis John, “Prudence about Ends,” in Reason in Action: Collected Essays, vol. 1 (Oxford: Oxford University Press, 2011), 173–86. In general, Finnis is much more open than is George to appreciating the role of the virtues and to resisting reasons fundamentalism.

32 See, for example, Nussbaum Martha, Political Emotions: Why Love Matters for Justice (Cambridge, MA: Harvard University Press, 2013); Hordern Joshua, Political Affections: Civic Participation and Moral Theology (Oxford: Oxford University Press, 2013); Frazer Michael L., The Enlightenment of Sympathy: Justice and the Moral Sentiments in the Eighteenth Century and Today (Oxford: Oxford University Press, 2010).

33 It is essential to the biblical story that God is angry, jealous, suffering, and loving, to take but four examples.

34 Though note how VanDrunen sees the Christian church as a site where a higher, pre-eschatological moral order is enacted.

35 Feuerbach Ludwig, The Essence of Christianity (New York: Harper, 1957).

36 Turner Denys, “Marxism, Liberation Theology, and the Way of Negation,” in The Cambridge Companion to Liberation Theology, ed. Rowland Christopher (Cambridge: Cambridge University Press, 1999), 229–47.

37 Geuss Raymond, Philosophy and Real Politics (Princeton: Princeton University Press, 2008).

38 This is an unusual case because of the role of the Supreme Court Justice as part-judge, part-intellectual; it is likely untrue for lower court judges. Clarence Thomas wrote about natural law theory before he joined the court, causing a controversy at his confirmation hearings. See, for example, Thomas, “The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment,Harvard Journal of Law and Public Policy 12, no. 1 (1989), 6370 .

39 Kaveny Cathleen, Prophecy without Contempt: Religious Discourse in the Public Square (Cambridge, MA: Harvard University Press, 2016); Shulman George, American Prophecy: Race and Redemption in American Political Culture (Minneapolis: University of Minnesota Press, 2008).

40 Lloyd Vincent W., Black Natural Law (Oxford: Oxford University Press, 2016).

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
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