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THEOLOGY AND LAW DIVORCED AND RECONCILED: AQUINAS, LUTHER, RAWLS, AND US

  • Timothy P. Jackson (a1)
Abstract

      What is divinity if it can come
      Only in silent shadows and in dreams?
    —Wallace Stevens
Let me tell an absurdly brief story about part of the history of theology and law. In this story, I take Thomas Aquinas, Martin Luther, John Rawls, and us as signposts. The tale is overly simple, but it can help situate and challenge us. We are at the end of the long decline into legal positivism; a new era of “political agape” beckons.

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References
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1 Stevens , “Sunday Morning,” in Wallace Stevens: Collected Poetry and Prose (New York: The Library of America, 1997), 53 . Stevens would replace the transcendent God of traditional Christianity with nature, even as he denies humanity access to reality beyond its own imaginative creations. I find both of these moves unpersuasive, but Stevens asks the right question about divinity. His answer is hyper-romantic, even solipsistic—vide his announcement in Adagia: “The world is myself. Life is myself,” ibid., 910—but he was correct to suggest that the theology of the twentieth century faced a crisis. I try in this essay to point beyond that crisis.

2 Aquinas, Summa Theologica, trans. the Fathers of the English Dominican Province (Westminster: Christian Classics, 1981), 1-2.90–108.

3 Aquinas, Summa Theologica 1-2.94.

4 Battaglia Anthony, Toward a Reformulation of Natural Law (New York: Seabury, 1981), 49 .

5 Aquinas, Summa Theologica 1-2.94.2.

6 Ibid.

7 Aristotle , Nicomachean Ethics, trans. Ross David (Oxford: Oxford University Press, 1980), 3.3.

8 Aquinas, Summa Theologica 1-2.94.4.

9 I am indebted in this section to Witte John Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), especially chapters 3–5. See also Witte, “Law, Politics and Legal Reform,” in Oxford Encyclopedia of Martin Luther, ed. Hinlicky Paul and Nelson Derek (New York: Oxford University Press, forthcoming). The chapters of the Oxford Encyclopedia of Martin Luther are also currently available online through the Oxford Research Encyclopedia of Religion, http://religion.oxfordre.com/page/martin-luther.

10 Aquinas, Summa Theologica, 2-2.2, arts. 1 and 2.

11 Luther Martin, “The Freedom of a Christian,” in Martin Luther: Selections from His Writings, ed. Dillenberger John (Garden City: Anchor Books, 1961), 85 .

12 Martin Luther, “A Commentary on St. Paul's Epistle to the Galatians,” in Dillenberger, Martin Luther, 128.

13 Martin Luther, “Secular Authority: To What Extent It Should Be Obeyed,” in Dillenberger, Martin Luther, 400–2.

14 Martin Luther, “Two Kinds of Righteousness,” in Dillenberger, Martin Luther, 88–89.

15 Luther, “The Freedom of a Christian,” 75, 79.

16 Luther, “Two Kinds of Righteousness,” 89.

17 Martin Luther, “The Bondage of the Will,” in Dillenberger, Martin Luther, 188.

18 Luther, “Secular Authority,” 368.

19 Luther, “A Commentary on St. Paul's Epistle to the Galatians,” 139.

20 Ibid., 140.

21 I owe clarity on this point to John Witte, in conversation.

22 Luther's condemnation of the German Peasants' War of 1524–1525 amounted to a preferring of human law to natural law, de facto rule over de jure (that is, moral) right, at least for the fractious lower classes. Luther judged the peasants in revolt “faithless” “blasphemers” worthy of death at the hands of princes, thus he betrayed his own (later) best self. See Luther Martin, “Against the Robbing and Murdering Hordes of Peasants,” trans. Jacobs Charles M., rev. Schultz Robert C., in Luther, Selected Writings of Martin Luther 1523–1526, ed. Tappert Theodore G. (Philadelphia: Fortress Press, 1967), 345–55.

23 The early Rawls of A Theory of Justice (Cambridge: The Belknap Press of Harvard University Press, 1971) bases political-legal conclusions on ontological and anthropological premises, especially on a Kantian conception of human agency. In his later writings, Rawls insists that public deliberation repudiates this metaphysical dimension.

24 Rawls, Political Liberalism (New York: Columbia University Press, 1996), especially Lecture 3, “Political Constructivism.”

25 Ibid., especially Lecture 4, “The Idea of an Overlapping Consensus.”

26 Ibid., 19.

27 See, for instance, ibid.

28 Ibid., 216–20.

29 Ibid., 6–7.

30 Ibid., 11.

31 See Jackson Timothy P., Political Agape: Christian Love and Liberal Democracy (Grand Rapids: William B. Eerdmans, 2015), chapters 3 and 4.

32 See ibid., chapter 2.

33 Holifield Brooks, Theology in America: Christian Thought from the Age of the Puritans to the Civil War (New Haven: Yale University Press, 2003), 494504 .

34 Writing for the majority, Harry Blackmun claims, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” See The Ethics of Abortion: Pro-life vs. Pro-choice, ed. Baird Robert M. and Rosenbaum Stuart E. (Amherst, NY: Prometheus Books, 2001), chapter 7, 68. But then Justice Blackmun and his like-minded colleagues effectively decide exactly this question: the conceptus and pre-viable fetus is not a human life for legal purposes. Such judicial fiat masquerading as metaphysical neutrality threatens civil conversation and democratic governance.

35 Marshall Ellen Ott, “Theological Humility in the World of Law,” Journal of Law and Religion 32, no. 1 (2017) (this issue).

36 See Tierney Brian, The Idea of Natural Rights (Atlanta: Scholars Press, 1997).

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
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