A Mistake of Natural Law: Sir William Blackstone and the Anglican Way
Craig A. Stern †
(This article was originally published at 4 University of Bologna Law Review 325)
1. Introduction
“[P]erhaps the most important single book . . . in the history of the common law” is Sir William Blackstone’s Commentaries on the Laws of England (hereinafter Commentaries).[1] No other book but the Bible had a greater role in generating American institutions[2] and the nineteenth century alone saw about one hundred American versions.[3] It is said that the Commentaries led early American courts to decide from principles, not precedents.[4] But it is said also that the Commentaries is of questionable merit,[5] with aspects of it downright incoherent.[6]
The most fundamental element of the Commentaries to attract this disparaging characterization is its discussion and use of what it usually calls “the law of nature.”[7] “Natural law” is the term more frequently used these days for a transcendent legal order to which human law necessarily bears some relationship. Because Blackstone’s concept of the “law of nature” is similar to that of contemporary “natural law,” this article often will use the latter term instead. In this parlance, the concern becomes the charge of incoherence in Blackstone’s discussion and use of natural law. Does the Commentaries perpetrate a mistake — actually many mistakes — of natural law?
This article proposes that it is not the Commentaries, but rather its critics that perpetrate mistakes of natural law. The mistakes arise from the expectation that Blackstone’s natural law would take after Thomas Aquinas’s[8] (or even Christopher St.German’s)[9] natural law. As Blackstone disappoints these expectations, he has met with criticisms that his treatment of natural law is a sloppy pro forma performance that even he himself does not take seriously. But readers of the Commentaries who allow Blackstone his own way with natural law will find it a valuable treatment that animates the whole of the Commentaries.
Blackstone’s natural law owes much to two influences. The first is Roman law, especially as captured in the Corpus Juris Civilis.[10] The second is the Anglican church,[11] which is the more distinctive and guides Blackstone’s response to the first. Both led Blackstone to view the natural law as an order immanent in human law, an order especially prominent within the common law. Seen in this light, natural law provides the foundation for the Commentaries. While doing so, it also provides a foundation for understanding law even today, a foundation actually in use far more than some might think.
2. The Commentaries and the Commentators
After unproductive struggles to develop a successful practice at the bar, Blackstone’s professional life began to flourish with his Oxford lectures on the common law.[12] The Commentaries is not these lectures merely recast, delivered as they were to an audience of mere teenagers.[13]
Nevertheless, the Commentaries is designed to teach and Blackstone wanted his readers to learn.[14] The readers for whom he wrote were “young nobility and gentry,”[15] the leading laymen of the realm.[16] Chief among these were those who were or would become legislators, and Blackstone was determined to instruct them not to harm by statute the liberties of Englishmen.[17]
Blackstone’s aim to instruct lay readers shaped the Commentaries. This aim trained the focus of the Commentaries upon substantive rules of law, lending the Commentaries both its pathbreaking distinctive and also the daunting obstacle to its creation.[18] Blackstone’s object was to teach laymen the laws of property, crimes, torts, and such — not how to draft legal instruments or plead at bar.[19] Beyond teaching the substance of the law to laymen, this substantive-law focus gave “lawyers a new vision of the law.”[20] The Commentaries imposed order and a clarifying system on the jumble that was English law.[21] This arrangement was a key to its success.[22] It is Blackstone’s use of natural law that undergirds this arrangement.[23]
Near the beginning of the Commentaries is Blackstone’s introductory discussion of law.[24] Law is “a rule of action dictated by some superior being,” and laws considered as rules for human conduct are “the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior.”[25] The obligation to obey law derives from dependence upon the lawgiver, “[a]nd consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will. THIS will of his maker is called the law of nature.”[26] In its scope, Blackstone’s law of nature reminds one of Aquinas’s natural law.[27]
The voluntaristic stamp of Blackstone’s law of nature — it is the will of God — diminishes somewhat in the next words of the Commentaries. God’s wisdom leads him to prescribe only what corresponds to the nature of things and in this he conforms to “the eternal, immutable laws of good and evil.”[28] Human reason is able to discover these laws, and God’s goodness leads him to link our happiness with obedience to the law of nature. “For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be obtained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.”[29] This link between the law of nature and human happiness “is the foundation of what we call ethics, or natural law.”[30] Natural law comprises articles that “amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature.”[31]
Blackstone then renders explicit the supreme authority of the law of nature:
THIS law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.[32]
Again, Blackstone’s law of nature brings to mind Aquinas’s natural law.[33]
But Blackstone’s approach to what he calls natural law differs profoundly from that of Aquinas. We already have noted that the Commentaries describes natural law as a set of demonstrations that certain human conduct leads to human happiness and consequently comports with the law of nature.[34] This description is nothing like Aquinas’s description of natural law as the participation of human beings in the eternal law, or perhaps vice versa.[35] This difference between Blackstone and Aquinas becomes yet clearer in the former’s comparison of divine law with natural law.
Although human reason before the Fall sufficed to discover the precepts of the law of nature, human reason after the Fall “is corrupt, and [human] understanding full of ignorance and error.”[36] Therefore, God of his compassion has informed us of the law of nature “by . . . immediate and direct revelation.”[37] “The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”[38] So the natural law and the divine law both bespeak the law of nature.
Yet undoubtedly the revealed law is (humanly speaking) of infinite more authority than what we generally call the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.[39]
Natural law is “only what . . . we imagine to be” the law of nature.[40]
The Commentaries continues with further observations on the relationship between these laws and human law:
UPON these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former.[41]
Two elements of this excerpt warrant special notice. First is Blackstone’s usage of the “law of nature” and the “natural law.” As mentioned above,[42] his usage sometimes seems to depart from distinguishing the two, with natural law as a merely human construct thought to resemble the actual law of nature. On one reading, such a departure appears in this passage. The second element is the connection between matters indifferent — matters for which the law of nature does not prescribe a specific rule — and human law. While there is a firm link between the laws of nature and human law, it appears that human law largely concerns itself with matters indifferent. Whereas Aquinas casts human law essentially in the position of providing determinations that apply rules of the natural law in particular contexts,[43] Blackstone sees human law having greatest play where the law of nature appears mute. This significant role in his analysis for things indifferent owes a major debt to Blackstone’s Anglican point of view.[44]
Blackstone’s introductory remarks on law and their relation to the rest of the Commentaries (and, for that matter, Blackstone’s entire project) have drawn sharp criticism. It is reported that no less an authority than Dr. Johnson remarked that Blackstone “thought clearly, but he thought faintly.”[45] The Commentaries “is widely believed to rest on silly, ponderous, formal, conceptual, outdated, deductive, mechanistic, naive and hopelessly unrealistic jurisprudence,”[46] to be lacking in rigor,[47] and apparently riven by inconsistencies.[48] Especially for his effort to satisfy the customary requirement of supplying his treatise with a general introduction on the law,[49] Blackstone has received much criticism.[50]
Beyond this, Blackstone seems largely to ignore the introductory doctrine he supplies once his introduction is behind him.[51] H.L.A. Hart has argued that Blackstone does not use the law of nature to support English law, and that his natural law test of the validity of positive law is vacuous in any event.[52] Although these arguments have not gone unanswered,[53] they actually point not to defects but rather to the very natural law technique Blackstone uses in his discussion of English law in the Commentaries, the technique based upon his Anglican understanding.[54]
The Commentaries has suffered at the hands of some commentators. The introductory explanation of the law of nature and natural law has been a popular target of criticism. So has Blackstone’s use — or rather non-use — of these elements when he develops his commentaries on the laws of England proper. Nevertheless, a more liberal appreciation of his work will notice a highly developed and broadly used natural law approach in those commentaries. This appreciation, however, must be attuned to discerning a use of the natural law that Blackstone’s own introduction may not have foretold for his readers today.
3. Blackstone and Justinian
Before seeing Blackstone as an Anglican it helps to see him as a civilian —a master of the Corpus Juris Civilis, the body of Roman law assembled under the Byzantine Emperor Justinian in the early sixth century.[55] Blackstone’s own studies at Oxford made him well acquainted with Roman law.[56] This acquaintance primed him for cultivating his Anglican approach to the natural law, an approach that ends up looking very much like that of Justinian.
As noted already, the Commentaries presents the laws of England primarily as a body of substantive law.[57] This approach enabled Blackstone to present the laws as a system, arranging them conceptually by categories.[58] In this, the Commentaries resembles the Roman law treatises of the ancient jurisconsult Gaius and of Justinian, whose Institutes is a component of the Corpus Juris Civilis.[59] The Commentaries has been likened to Justinian’s work in both content and effect.[60] Like the Commentaries, the Corpus Juris Civilis presents abstract introductory discussions of natural law[61] and manifests its actual use of natural law in the body of the work, the treatment of the law of Rome.
Drawing on the universal and supreme authority of natural law, Justinian used it to support and explain Roman law. Intent on promulgating law for the entire Roman world, Justinian hoped to justify Roman law as universal by demonstrating that it reflected universal principles of law. Of course, the Emperor looked to support his own legal regime, not to supply arguments to criticize or attack it. The dignity and universal authority of the natural law lay ready to lend dignity and universal authority to Roman law.[62]
Beyond lending this support, the natural law helped explain the rules of Roman law. Natural and Roman law were viewed as intertwined, so much so that natural law was best seen through existing Roman law, the celebrated simplicity and harmony of which derived from this relationship.[63] As in classical Greek thought on natural law, natural law was understood to be from the “aboriginal design of nature,” but Roman thinking also understood actual, positive Roman law to approximate the ideal natural law, gradually conforming to it more fully.[64] Far from a revolutionary doctrine, the Roman natural law approach encouraged Roman lawyers to find the natural law in positive law.[65]
In actual operation, Roman natural law concerned itself with conforming legal rules to the nature of things.[66] It sought the intrinsic character of legal subjects, applying natural reason to the facts of the matter at hand.[67] A master of both natural law theory and Roman law likens this work to developing rules for preparing flaky piecrust.[68]
The Commentaries makes use of natural law in much the same way.[69] Far from using natural law to trump the law of England,[70] and only rarely using natural law to criticize English law,[71] Blackstone follows the Roman natural law tradition in explaining why English law is as it is.[72] This use is in keeping with Blackstone’s practical rather than theoretical bent.[73] Like the natural law of the Roman lawyer,[74] Blackstone’s natural law unites is with ought, seeking norms from the nature of things,[75] but with more warrant.[76]
A good example of this technique is offered by Blackstone’s explanation of the law of property. As Professor Graham has explained, the Commentaries does not present irrational support of old ways but rather a studied focus on the physical nature of things.[77] From nature and the natural order in physical context, for example, Blackstone evolves a “natural history” of property to rationalize English property law.[78] Natural law inheres in the nature of things, and the law of England, like Roman law, developed in light of this natural law.[79]
The Commentaries holds many instances where Blackstone explicitly explains that English law is true to the nature of things — sometimes presented as fulfilling the obligation of the law to reflect “necessity.” This, after he notes that the law of nature inheres in the nature of things,[80] and that sound Roman laws took “the nature of things for their guide.”[81] Some examples: Blackstone establishes the obligation of allegiance to civil government upon the nature of civil government.[82] The legal relationship between husband and wife is founded in nature.[83] Necessity has given rise to the law of property,[84] and laws on personal property take into account their transitory nature.[85] The laws of civil wrongs derive in several respects from the nature of things, often human nature,[86] and criminal laws likewise derive from the nature of things or reflect the nature of things.[87] In these instances, Blackstone seems to hark back to the Roman law, rooted as it was in the nature of things.
Roman law makes its appearance in the Commentaries in at least two other general ways that support Blackstone’s Anglican approach to the law. First is its concept of the jus gentium, the law of nations. If the natural law truly is universal, one would expect it — or projections from it — to be found in the laws of all nations. The law of nations, understood as the body of laws to be found widespread among the nations of the earth, therefore becomes a window on natural law, as the Romans believed.[88] This value of the jus gentium is evident in Blackstone’s use of comparative law. He looks to law outside England not so much to disparage non-English law as to find points of commonality. Those points support English law by suggesting that it rests upon natural law foundations.[89] A similar cast in Anglican theology could therefore offer a link and support to Blackstone’s approach to the law.
Beyond its content, another aspect of Roman law that influenced the Commentaries and would harmonize well with an Anglican understanding of the law is the process of the development of Roman law. Roman law developed over hundreds of years, largely case by case.[90] In this respect, its development paralleled that of English common law. While Roman law came to repose nearly exclusively in the Corpus Juris Civilis,[91] English law rejected such codification in favor of its commitment to the method by which Roman law developed.[92] Some have noted that Blackstone took the view of a practicing lawyer and judge in the Commentaries,[93] and though it was famously said that, “In England less attention is paid to natural law than anywhere else in the world.”[94]
Blackstone used natural law arguments successfully at the bar.[95] The common law — the law of cases — required barristers and judges to consider cases with an eye to their context. This technique largely provided the materials Blackstone assembled in the Commentaries. It is a technique that befits the Anglican way, a technique that developed law that itself befits the Anglican way. It also was the way of Roman lawyers. If common law judges in deciding cases were making law up, they were making it up to fit.[96]
Blackstone, student of Roman law, reflected a Roman law approach to the natural law in the Commentaries. Beginning, like the Digest and Institutes of the Corpus Juris Civilis, with an abstract exposition of natural law and related formulations, the body of the Commentaries puts natural law most to use in explaining and justifying particular rules of law. Seeking the dictates of reason and the guide of reasonableness, Blackstone rests rules of law upon the nature of the matter at hand — a typically Roman technique. In this and other respects, Blackstone’s use of natural law fits well with the Anglican stance on natural law that he adopts in the Commentaries.
4. BLACKSTONE AND THE CHURCH OF ENGLAND
No surprise that Sir William Blackstone, Oxford don, justice of both the King’s Bench and Common Pleas, was an Anglican. What may surprise is how serious an Anglican Blackstone was, and how deeply his Anglicanism influenced the jurisprudence of his Commentaries. Blackstone’s deep and pervasive Christian faith was manifest.[97] As a young man he took a serious interest in religion,[98] and made a careful investigation of Anglicanism[99] before committing himself wholeheartedly to orthodox Anglicanism.[100] He celebrated his commitment in a poem, a vision of diverse faiths in which he praised the Church of England for its moderation, liberty, support of science, reforming influence, and virtue.[101] Although a committed Anglican, Blackstone was not so committed that he could brook no Dissenters,[102] going so far as to alter the Commentaries in light of Dissenter reaction to an earlier edition of the work.[103] The general Anglican understanding of providential development from primitive sources[104] and the important role reason plays in perceiving truth[105] would support Blackstone’s construction of the Commentaries.
The substantial alignments between Anglican theology and the Commentaries are the focus of the next pages of this article.
4.1. RICHARD HOOKER
Key to the Church of England is the work of the Elizabethan divine, Richard Hooker.[106] Beyond helping to shape the contours of Anglicanism as a whole, Hooker’s influence on legal theory was especially pronounced.[107] Blackstone’s Anglican understanding of the law necessarily reflects Hooker’s understanding.
Hooker held law in high esteem:
[O]f Law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world: all things in heaven and in earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power: both Angels and men and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.[108]
Law for Hooker is fundamental.[109] Furthermore, his treatment of law is no incidental matter but derives from his theology.[110] Law, as one might gather from the excerpt just quoted, reigns over politics. In this, Hooker departs from an Aristotelian view,[111] and follows, as elsewhere, the magisterial reformers rather than Augustine or Aquinas.[112] Hooker goes so far as to hold that God himself works according to law,[113] and for at least one commentator, Hooker holds that God is law.[114] A famous apothegm of Hooker states that “the being of God is a kind of law to his working.”[115]
In some respects, Hooker’s general discussion of the fundamental types of law adumbrates that of Blackstone. Hooker explains that, in his usage, both the law of nature and divine law reveal eternal law to humankind.[116] At the same time, however, Hooker holds divine law to be positive law, a creature of God’s reason and will both, whereas for Blackstone it is simply a revelation of the law of nature.[117] Likewise, Hooker sees some human law as an adaptation of natural law, and other human law as an ordinance “merely human,” reasonable and convenient for the time and place.[118] A similar formulation of human law will find its way into the Commentaries.[119]
The line from Hooker to Blackstone is more clearly traced along particular elements to be found in the works of both. One is the role of human reason in the development of law.[120] Like other Reformation theologians, Hooker asserts that Scripture and reason both convey to humans the knowledge of God and of his eternal law.[121] “It was part of God’s nature to work in an orderly and reasonable way . . . .”[122]
Consequently, “God’s own creation also worked in an orderly and reasonable way,”[123] a way ruled by law. God acts to accomplish his “rational purpose.”[124] So for Hooker, the appeal to reason becomes key.[125] The law of reason is for all humans,[126] endowed as they are with “a natural practical wisdom.”[127] Humans find themselves ruled by the law of reason, divine law, and human law[128] — the last resting upon rational human nature[129] and either resolving “probable matters” or “clarify[ing] and enforc[ing] the necessary precepts of reason.”[130] The authority Hooker grants to human reason, a touchstone of Anglicanism, holds sway in the Commentaries, as shall appear.[131]
A second major influence of Hooker upon Blackstone is his endorsement of the authority of custom. Against the Puritan threat of “singularity,” lack of consensus,[132] Hooker counterpoised consent,[133] a distant consent presumed to continue.[134] Custom, modified appropriately by customarily legitimate written law, is authoritative and likely to induce obedience.[135] This appreciation for custom fits well with Hooker’s view that God teaches through human experience.[136] It also supports Blackstone’s hailing custom as the common law, a move that enabled him to capture the advantages of both primitive sources and traditional developments.[137]
Third is the related matter of Hooker’s use of history. For Hooker, Scripture supports the value of experience.[138] Joined with his notion that God delivers law providentially,[139] these views support Hooker’s position that attaining truth is a gradual affair played out in history.[140] Humans may make laws, but in a sense those laws are God’s as he works his providential will.[141] History as the unfolding of gradual development[142] is normative for Hooker.[143] Consequently, Harold Berman has found in Hooker a key to English historical jurisprudence and its continuing influence[144] as well as an emphasis on historical continuity.[145] For Blackstone, history is the key to understanding English law.[146]
The last marked influence of Hooker on Blackstone is the importance of the concept of things indifferent, matters not conclusively ordained by transcendent law but rather left more to human determination.[147] Positive laws may resolve matters that God leaves to human liberty.[148] So, while some human laws are based upon natural law,[149] its necessary tenets are few, leaving most matters to public authority.[150] Blackstone takes a similar tack[151]: Daniel Boorstin has discussed the remarkable degree to which Blackstone holds that private property itself is a creature of civil law.[152] Crimes not mala in se but rather those “with regard to things in themselves indifferent . . . become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper.”[153] “Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other.”[154] Regarding the jurisdiction of courts, “[e]very nation must and will abide by it’s [sic] own municipal laws; which various accidents conspire to render different in almost every country in Europe.”[155] Apart from these specific observations regarding indifferent matters, Blackstone’s chief use of natural law paradoxically guides the resolution of matters that, in a sense, are indifferent.[156] More on this use later.[157]
The teaching of Hooker was not lost on the English legal theorists that followed. Edward Coke viewed the law as reason in history — reason in the sense of reasonable, not rationalistic — and understood that natural law was incorporated into human law.[158] Even more than Coke, Matthew Hale especially influenced Blackstone in the Commentaries.[159] Like Hooker, Hale saw natural law and divine law as authoritative but also as speaking only to a limited set of questions.[160] Likewise, Hale understood history as providence,[161] with positive law accordingly developed through time.[162] This historical focus finds its way from Hale into the Commentaries.[163] Also, both Hale’s locating reason within a particular object (in addition to its being a human faculty) and his debt to natural science and empiricism[164] seem reflected in the Commentaries.[165]
The Anglicanism of Hooker, Coke, and Hale, and their emphasis on reason and history alongside the authority of natural law and Holy Writ, are to be seen in Blackstone’s Commentaries. An even clearer influence on Blackstone, however, is Anglican thought closer to his own time. It is to that thought that we now turn.
4.2. THE LATITUDINARIANS
The Anglican Church faced the Age of Reason and Deism with Latitudinarianism.[166] Though standing in opposition to those two developments, the Latitudinarians, as their name implies, embraced tolerance as their major theme.[167] This theme in no way compromised their commitment to God and the Christian faith. The Latitudinarians believed that God holds an absolute claim on humanity and that all our powers depend upon his will.[168] Christianity is to govern all of life.[169] Education for moral and spiritual reformation is especially important.[170] With these tenets Latitudinarianism was a major force in seventeenth century Anglicanism.
It also was in important respects a movement in continuity with the work of Hooker, a continuity that would support the work of Blackstone. The Latitudinarians in their tolerance relied upon Hooker’s emphasis on things indifferent.[171] They also shared Hooker’s endorsement of strong laws.[172]
Beyond these particulars, the most important influence of Latitudinarianism to be seen in the Commentaries, and well within the trajectory Hooker set for the Anglican Church, was its appreciation for reason as a guide in human affairs. Latitudinarian thought was well suited to the development of science[173]: it is no accident that Isaac Newton was an Anglican.[174] The Latitudinarians understood that human reason did not survive the Fall unimpaired.[175] At the same time, however, some power of human reason persists.[176] Human reason under God is able to understand nature, itself existing under the Sovereign God.[177] This human reason is not the reason of rationalism, but instead more like common sense.[178] And just as reason is an aid to understanding the Bible,[179] so is the Bible a necessary aid to the use of reason.[180]
Latitudinarians favored reason and the philosophical explanation of reality,[181] but more important to Blackstone’s jurisprudence was their view that reason was useful especially for discerning natural law.[182] One who could be viewed as the leading exponent of Latitudinarianism in the next century, the century of Blackstone, is Bishop Joseph Butler.[183] Butler published his most important work, The Analogy of Religion Natural and Revealed, in 1736 and it became hugely influential in the middle of the century during the height of Blackstone’s career and the writing of the Commentaries.[184] Relying on the same principles that served Hooker,[185] Butler aimed to refute the deists on the grounds of natural theology.[186] As Blackstone would argue,[187] the creature owes a duty to the creator, and design proves a designer.[188]
Likewise, general laws govern nature,[189] with the nature of things giving rise to right and wrong, thus determining God’s will.[190] Humans are able to discover their duties through reason — more the reasonable dictate of God’s will than the deliverances of logic.[191] Blackstone would also endorse Butler’s view of civil government as an agency of God’s government concerned with social consequences.[192] Two major aspects of Butler’s theology to lodge in the Commentaries command attention here. The first is emphasis on experience. We have noted Butler’s emphasis on reason, that is on reasonableness more than cold logic.[193] Nevertheless, humankind cannot by speculation judge what leads to human perfection or happiness.[194] Hooker had held that the degree of certainty we attain is relative to the nature of things.[195] Like him, Butler held that we should not expect to plumb the depths of all knowledge and understanding, but rather follow the light we do have.[196]
That light largely is the product of experience. The laws by which God governs are known to us by reason along with experience.[197] As science and medicine developed by progressive advances,[198] so ethics depends upon empirical evidence and common sense, and morality itself is a science of human action with attention paid to the facts of results.[199] God uses our experience to teach us duties.[200] As with physics, so with human laws, experiment, inductive method, and judgment based upon the generality of observations are sound guides.[201] Experience, resting upon God’s governance by punishment and reward,[202] is a surer guide than abstract reason.[203]
Blackstone suited the Commentaries to his readers, enlightened eighteenth-century Anglicans.[204] He himself was committed to English enlightenment principles[205] and Butler’s welcome to progress, knowledge, and experience[206] suited Blackstone well. Like Edmund Burke,[207] Blackstone embraced Latitudinarianism and the work of Joseph Butler.[208] He subscribed to the test of probability rather than certainty,[209] reasonableness as a touchstone of truth,[210] and common sense coupled with experience.[211] The large role in the Commentaries played by history may be ascribed, at least in part, to this regard for experience.[212]
A second aspect of Butler’s theology that helped shape the Commentaries is the importance and function of human happiness.[213] God governs mankind by reward, by the consequences of human actions.[214] Therefore, true happiness directs us towards doing God’s will.[215] This happiness (supplemented by conscience[216]) defies certain demonstration, but does make itself known with “practical proof.”[217] To pursue virtue is to pursue happiness, and to pursue happiness is to pursue virtue.[218]
Again, Blackstone concurs with Butler in his argument that God has ordered human affairs so that we need only pursue our own happiness to find ourselves pursuing the law of nature that God has established for the right ordering of our affairs.[219] For both Butler and Blackstone, reasonable self-love motivates us to adhere to God’s rule.[220] So here too, Blackstone shows himself in the Commentaries aligning with the work of Butler as he aligns with other elements of the Anglican tradition.
Blackstone had every reason to write the Commentaries from an Anglican point of view. It was good rhetoric for reaching his intended audience. It was true to his own convictions. We have seen thus far particular elements of the Commentaries signaling Blackstone’s Anglican approach. The main topic of this article, however, is his use of natural law—the concept and body of transcendent law—and the degree to which Blackstone’s Anglican understanding shapes this use.
5. THE ANGLICAN BLACKSTONE AND THE NATURAL LAW
As we have seen, Blackstone’s Commentaries bears the impress of its author’s Anglican faith. This impress shapes the appearance of natural law in the Commentaries, but by no means minimizes the role of natural law. To be sure, if using natural law means using it as Aquinas used it, Blackstone does not use natural law.[221] In fact, Anglican Blackstone lodges criticism at the scholastic tradition.[222] But the use of natural law, a transcendent norm that guides human law, may transcend Aquinas’s use.
In fact, the Commentaries more than anything takes the common law back to natural law, to first principles,[223] portraying the common law as blended with the natural law into one body.[224] Its use of natural law is not muddled or unnecessary.[225] After its conventional introductory treatment of natural law[226] it frequently adverts to natural law principles when discussing the common law itself.[227] Blackstone held that the natural law was the only sure guide to English law.[228] Desiring not just to understand but also to admire,[229] he sought beauty in the law, a beauty lent to English law by God’s design in natural law.[230] The Commentaries continuously pursues this project and shapes its discussion from principles,[231] being structured to align positive law with natural law[232] and organized to demonstrate order in the English law from divine simplicity.[233] While it melded law and equity together into one overall, integral system,[234] it treated not the whole of the common law, but rather only what was susceptible of rational appreciation.[235]
The integral connection in the Commentaries between English law and natural law constituted English law a handbook on natural law. As the spirit of law is a product of natural law,[236] so natural law can be seen from the laws of England.[237] At the same time, English common law contained a strong cultural component,[238] adapted as it was “to the genius of the English nation.”[239] Taking liberty as the signal English virtue led, as we shall see, only to emphasizing all the more the importance of natural law to the laws of England.[240]
The Anglican context lent Blackstone’s natural law an empirical cast akin to Sir Isaac Newton’s physics.[241] His approach was descriptive, not deductive.[242] Blackstone was not unaware of the dangers of arguing from particular to general,[243] but he nonetheless endorsed the scientific approach.[244] The Commentaries is a quest for reasonableness, for the rational principles — the natural law — undergirding the positive particulars of English common law.[245] Because law is a rational science, natural law suffuses the text.[246] In this commitment to empirical science for fleshing out the natural law embedded in English law, Blackstone treats law much as Butler treated theology.
Hooker more than Butler animates Blackstone’s emphasis on history, but that emphasis likewise demonstrates an Anglican approach to natural law.[247] It is in progressive human experience that Providence gradually works the natural law into human law.[248] As with Burke’s view, natural law makes itself known in history.[249] But history is no sure guarantee that the human law has taken on its shape from natural law. Blackstone held that awkward complexity too comes from history,[250] and history must bow to reason if found to contradict it.[251] Nevertheless, Blackstone held history both descriptive of the law and prescriptive,[252] obviating the need to distinguish “historical explanation” from “moral justification.”[253] The providential, historical development of the law enabled Blackstone to portray law as possessing both the appropriate degree of fixity and the appropriate degree of change. On the one hand, common law and justice itself are fixed and uniform.[254] On the other hand, natural law leads to growth and change in the law,[255] and it is susceptible of diverse interpretations.[256] Far from his being an uncompromising apologist for the status quo,[257] Blackstone’s very commitment to history also committed him to progress.[258] Correction and improvement — in continuity with historical development — are welcome.[259] Accordingly, the Commentaries ends with this charge:
We have taken occasion to admire at every turn the noble monuments of antient simplicity, and the more curious refinements of modern art. Nor have it’s [sic; i.e., that of the body of English law] faults been concealed from view; for faults it has, lest we should be tempted to think it of more than human structure: defects, chiefly arising from the decays of time, or the rage of unskilful [sic] improvements in later ages. To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom, as are delegated by their country to parliament. The protection of THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and noblest inheritance of mankind.[260]
As the common law embodies and expresses the natural law, it is to be reformed when lapses from that transcendent standard appear. Blackstone calls English law of “human structure.” Though eighteenth-century English lawyers may have called their law “the perfection of reason,”[261] Blackstone acknowledges it to be a somewhat faulty human application of natural law,[262] sometimes more honored in the breach.[263]
One means of developing the law with both Anglican continuity and an eye to the principles of natural law is by legal fiction.[264] Blackstone held that legal fictions permit the law to do justice in changed circumstances,[265] as in bypassing Norman errors.[266] In the Commentaries, fictions, along with history, ground the law.[267] Legal fictions enable the common law to embody the principles of the natural law.[268]
Of course, statutes also might help the law embody the principles of natural law.[269] To some degree, the Commentaries portrays statutes as declaring the natural law,[270] lending necessary correction to the common law while simultaneously rooted in the common law.[271] But statutes present a danger:
THE mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy of the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it’s [sic] symmetry has been destroyed, it’s [sic] proportions distorted, and it’s [sic] majestic simplicity exchanged for specious embellishments and fantastic novelties.[272]
Architecture was important to Blackstone.[273] As a “rule-bound art,” it attracted his keen interest.[274] He used architectural metaphors in the Commentaries,[275] and elsewhere portrayed the old common law as a well-designed building.[276] Damning accusation it was, then, for Blackstone to picture some statutes as monstrous add-ons.[277] But the fault of such statutes is that they are in a sense ahistorical — they reflect “visionary schemes” and “have not the foundation of the common law to build on.”[278] Statutes that bring the law closer to the natural law will find their basis not in imagined exploits but rather in the principles already to be found in the common law itself, the generally trustworthy, if imperfect, presentation of the natural law.
Blackstone’s commitment to the common law as holding within it immanent natural law reflects both the Roman law and also the Roman notion that the jus gentium, the law of nations, is a sound guide to the content of the natural law.[279] While the common law may embody the natural law more perfectly than do other systems of human law, those other systems may shed light on the natural law to be found within the common law. Blackstone subscribed to the uniformity of human nature and God’s purpose, to the consequent uniformity of natural law, and to the expectation that the laws of all nations, past and present, would reflect these truths.[280] Comparative law illuminates the universality of English legal principles, the deposit of natural law.[281] The Age of Reason looked for the natural law in the jus gentium,[282] and the Commentaries looks to other legal systems to help find reason in the English law.[283] In the spirit of Hooker, Blackstone found natural law principles behind the diversity of laws even on aspects indifferent under the natural law. And in the spirit of Butler, he found marks of reasonableness in the similarity of English law to the law of other nations. (The dominant role of reasonableness in the Commentaries occupies our attention soon.)
The Bible itself often found its way into the Commentaries under the aspect of comparative law — again, this was similar to the approach of Hooker.[284] Blackstone kept the Bible close to him while writing the Commentaries,[285] and he considered the divine law to be found therein the authoritative source on what he called the “law of nature”[286] and on the development of legal rules and doctrine.[287] Most typically, however, he used the Bible as a source of comparative law, a source presenting a body of law perfectly devised to embrace the natural law for a specific people at a specific time.[288] Natural law then was to be found within biblical law and not to be identified with it in its particulars.[289]
In these diverse ways — from finding natural law embedded within the common law, to the use of science, history, and comparative law — the Commentaries takes account of natural law in its treatment of English law, all in keeping with an Anglican understanding of natural law and its application to human affairs. But the most distinctively Anglican feature of how the Commentaries treats the natural law has escaped for the most part our attention until now. That feature is the testing and justification of the law of England by its reasonableness. Hooker, and especially Butler and the Latitudinarians, lent to Anglican theology its distinct emphasis on reasonableness. It is in this aspect of his jurisprudence that Blackstone most shows himself an Anglican.
For Blackstone, natural law does not dictate the content of most human law.[290] It supplies a few core principles, and those few do not fundamentally overbear human law.[291] Furthermore, the state of civil society itself modifies primordial natural law, introducing a context where natural law principles take on a different cast or a subservient role.[292] For Blackstone, the application of natural law is not so much a matter of tracing specific precepts in human law. Rather, it is more like the practice of Roman lawyers, finding reasonable and appropriate legal norms suited to the situation at hand — the nature of the thing. The Commentaries presents the common law as a “rational, integrated” system, but also consistently traces its reasonableness, the reasons behind its details.[293]
The quest for life in accordance with nature, and therefore with reason, was a mark of the Age of Reason.[294] But Blackstone sought reasons for the law as a mark of God’s own perfection, to be discerned through human experience.[295] Blackstone derived his passion for “reasonableness” in the law, and the consequent searching out of reasons for the law, from his Anglican theology.[296] The very core of the Commentaries is this essential use of natural law, this examination of reasonableness in light of the way things are. Reasons for the law, reasons resting upon on fundamental principles, animate the Commentaries.[297]
Throughout the Commentaries, Blackstone weighs law against the standard of reasonableness.[298] The weighing is not rigorous. Fallen humans cannot understand all by reason, and the reason for some law may now evade our discovery.[299] It is enough that the law not be contrary to reason:[300]
[W]hat is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.[301]
Most often, however, the Commentaries highlights the place of reason in the formulation of the law and supports the reasonableness of its rules.[302] Furthermore, the Commentaries endorses reasonableness in interpreting laws according to their equity, reason, and justice.[303] This overall emphasis on reasonableness in the law, seeking sound reasons for rules and for their proper application, largely shapes the Commentaries.[304]
Blackstone thought human law most significant on matters indifferent, taking full advantage of the Anglican tradition regarding such matters, an essential contribution of Hooker.[305] But though “indifferent” may describe a matter not dictated by a precept of natural law, it does not describe a matter to be determined by human will undirected by reason. Support for this proposition derives from Blackstone’s theory of natural rights. We already have noticed the emphasis Blackstone placed upon liberty as a mark of English culture.[306] Liberty — personal freedom — is so important that only reasonable constraint upon it is licit.[307] “[L]aws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of our liberty.”[308] Rights therefore play a fundamental role in the Commentaries, and help support the natural law test of reason even in matters indifferent according to the more limited reach of explicit natural law precepts.
And Blackstone does make much of the notion of matters indifferent, a mark of Hooker’s theology and the Anglican tradition.[309] His frequent use of the test of reasonableness supplies a natural law standard in the absence of precise precepts themselves drawn from nature.[310] In a sense then, the Commentaries presents most human law as prescribing rules for matters indifferent.[311] In another sense, however, Blackstone’s insistence upon the reasonableness of human law supplies a standard and justification much like that of the Roman law, a standard and justification from natural law assuring that human law is suited to the reality of things.[312]
The reality of things can become clouded by human artifice, so the primitive state — and primitive law — offer a useful corrective.[313] For Blackstone, Saxon law stood for law based upon reason, not authority,[314] he himself esteeming primitive law the most rational and therefore most true to nature.[315] The corruption of Saxon law by “Norman subtlety”[316] left it an ideal to be recovered by progress under the hand of Providence.[317] The law is to conform to reason, and Saxon law points the way to reasonable law untainted by later human error.
Likewise, Blackstone’s emphasis on the reasonableness of the law helps make sense of his theory of judging. A judge is “sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.”[318] This declaratory theory of judging has come under wide-ranging attack,[319] and some doubt has been cast on whether Blackstone himself really subscribed to it.[320] Though judges even now may pay lip service to the theory,[321] it may seem unlikely that the development of the common law and the decision of difficult questions proceed simply from the declaration of pre-existing principles and rules, and not from judicial invention.[322] But the matter might be less puzzling if, rather than thinking that the theory entails some preexistent code of natural-law rules ready to fill gaps in the previously declared common law, one could see instead that the question in any case is governed either by principles marked in precedent or by whichever of the rules proposed by the parties is the more reasonable in the light of precedent and the facts of the instant case.[323] The judicial resolution of otherwise uncertain questions of law demands the application of reason and not ex post legislative will.
As we have seen, Blackstone does take natural law seriously, but in an Anglican sense. The common law reflects the natural law, understood as the rule of reasonableness, a norm that aligns the law with the realities of the situation at hand, much as the Roman law is celebrated for doing so well. That is the natural law as the Commentaries most often applies it.
6. CONCLUSION
After the spread of the Benthamite positivism, the sense of the natural law enterprise was forgotten and (despite the eclipse of Bentham’s epistemology) it has remained usual to believe that the heart of any theory of natural law is, not the problem of the varying derivation of positive from natural law, but the thesis that positive law is “for all purposes” void if it contradicts natural law. Thus Blackstone’s introductory discourse and definition of municipal law have standardly been interpreted on the assumption that any discussion of the relation between natural and positive law must be headed for an assertion or denial of that crude slogan, lex iniusta non est lex.[324]
Readers of the Commentaries committed to a narrow understanding of natural law — often so committed only to reject the concept of natural law altogether — find Blackstone at best an epigone of natural law thinkers. He pays his natural-law lip service and then goes about his merry (and disguised) positivist way.[325] Ignoring the relation of law to morals as well as historical normativity,[326] we lack eyes to see Blackstone’s use of natural law in explaining, justifying, and criticizing English law.
At the same time, how strange to think that human law somehow exists apart from reasons for its existence, reasons that connect it to the world it is to govern. Holmes supplies such reasons.[327] Posner supplies such reasons.[328] Blackstone does too. His reasons, his general recursion to reasonableness, is not simply a platitudinous reference. Within his Anglican context, reason and reasonableness are notes of God’s order and providence. They are notes of natural law.
The concept of law without values is incoherent. The “reason” and “reasonableness” peppering the Commentaries are meant to supply the link between the laws of England and the values that developed and undergird them. Blackstone’s Anglican approach to systematizing and explaining English law — the systematizing and explaining that made his Commentaries such a success — renders this link a natural-law enterprise.[329] And this enterprise should strike lawyers, and especially law students, as something familiar. They may not share Blackstone’s theological commitments, but when they strive to make sense of the rules of law, to see the rules as reasonable, to find reasons for the rules, they follow a course not unlike the course Blackstone famously set for his celebrated Commentaries, a course marked by natural law.
† Professor, Regent University School of Law (US). B.A. Yale University, J.D. University of Virginia. The author thanks Mark Cartledge, Doug Cook, Alyson Crisbie, Lou Hensler, Mike Hernandez, Timothy and Meredith Pettman, Paul Shakeshaft, the good people of the Regent University Law Library, and his wife Kelly for their help.
[1] DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW, at vii (Peter Smith 1973) (1941); see also Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1, 2 (1996). The Commentaries was hugely popular in the eighteenth and nineteenth centuries. See WILFRID PREST, WILLIAM BLACKSTONE 307 (2008).
[2] See BOORSTIN, supra note 1, at iii; see also Alschuler, supra note 1, at 5-9; Joseph W. McKnight, Blackstone: Quasi-Jurisprudent, 13 SW L.J. 399, 411 (1959). The present article happens to highlight elements of the Commentaries that commended it to Americans of the Founding: “Even those who rejected Blackstone’s anti-republican emphasis on parliamentary omnipotence . . . had no difficulty in accepting the validity of Blackstone’s exposition of English common law as founded on custom, divine law, and the law of nature, hence providing an entirely appropriate legal foundation for the incipient USA.” Wilfrid Prest, General Editor’s Introduction to 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, at vii, xiv (Wilfrid Prest ed., Oxford Univ. Press 2016) (1765) (footnote omitted).
[3] See Wilfrid Prest, Blackstone as Architect: Constructing the Commentaries, 15 YALE J.L. & HUMAN. 103, 107-08 (2003).
[4] McKnight, supra note 2, at 401.
[5] See Emily Kadens, Justice Blackstone’s Common Law Orthodoxy, 103 NW. U. L. REV. 1553, 1566 (2009).
[6] See infra notes 45-54 and accompanying text.
[7] Sometimes the Commentaries seems to use “natural law” or some similar term for the law of nature. See infra text accompanying notes 41-42. This seeming lack of uniformity and rigor in terminology certainly does not foster coherence in the Commentaries. On the other hand, Aquinas seems to do likewise. See infra note 33.
[8] See infra notes 34-44 and accompanying text.
[9] In the early sixteenth century, St. German wrote Doctor and Student, “the first major law book published in English,” “also the first purely analytical English law book,” a work of “analytical theology and philosophy.” DANIEL R. COQUILLETTE, THE ANGLO-AMERICAN LEGAL HERITAGE: INTRODUCTORY MATERIALS 187-88 (2d ed. 2004). He drew in part upon Aquinas. CHRISTOPHER SAINT GERMAN, ST. GERMAN’S DOCTOR AND STUDENT, at xxiii-iv, li, lvi (T. F. T. Plucknett & J. L. Barton eds., 1975).
[10] See infra notes 55-96 and accompanying text.
[11] See infra notes 97-329 and accompanying text.
[12] See Douglas H. Cook, Sir William Blackstone: A Life and Legacy Set Apart for God’s Work, 13 REGENT U. L. REV. 169, 172-173 (2000-01).
[13] See McKnight, supra note 2, at 400.
[14] See John H. Langbein, Blackstone on Judging, in BLACKSTONE AND HIS COMMENTARIES: BIOGRAPHY, LAW, HISTORY 65, 77 (Wilfrid Prest ed., 2009).
[15] DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN EIGHTEENTH-CENTURY BRITAIN 65 (1989).
[16] See Robert C. Berring, The Ultimate Oldie But Goodie: William Blackstone’s Commentaries on the Law of England, 4 J.L. 189, 190 (2014). This is not to say that Blackstone disregarded the education of lawyers by means of his Commentaries. See David Lemmings, Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth-Century England, 16 LAW HIST. REV. 211, 215, 251-52 (1998); Prest, supra note 2, at ix.
[17] See LIEBERMAN, supra note 15, at 56, 66.
[18] See S. F. C. Milsom, The Nature of Blackstone’s Achievement, 1 OXFORD J. LEGAL STUD. 1, 4, 6 (1981).
[19] See id. at 2, 5, 12.
[20] Id. at 10, 12; see also Lemmings, supra note 16, at 243, 252.
[21] See Jessie Allen, Law and Artifice in Blackstone’s Commentaries, 4 J.L. 195, 195 (2014).
[22] See LIEBERMAN, supra note 15, at 33-36.
[23] See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 37 (The Legal Classics Library 1983) (1765-70) (quoting with approval John Fortescue’s endorsement that lay students “trace[] up the principles and grounds of the law, even to their original elements”). Blackstone’s use of natural law in the Commentaries may also reflect his own introduction to the law. It was St. German’s Doctor and Student, a work integrating theological and legal thought, that drew Blackstone to the law. Cook, supra note 12, at 170. Perhaps for similar reasons, the Commentaries turned students from theology to law. McKnight, supra note 2, at 401.
Note that the pagination of the various editions of the Commentaries has become more or less standardized. This move is not without its problems, however. See Alschuler, supra note 1, at 3 n.4; cf.Carli N. Conklin, The Origins of the Pursuit of Happiness, 7 WASH. U. JURIS. REV. 195, 200 (2015)) (selecting for use the first edition, as does the present article); Alan Watson, The Structure of Blackstone’s Commentaries, 97 YALE L.J. 795, 801 (1988) (same).
[24] See 1 BLACKSTONE, supra note 23, at 38-62. Blackstone’s approach reflects Christian and classical roots. Conklin, supra note 23, at 246. It owes a debt to Burlamaqui,HENRY SUMNER MAINE, ANCIENT LAW 94 (Oxford Univ. Press 1931) (1861).; McKnight, supra note 2, at 406-07, but not in its definition of law, J. M. Finnis, Blackstone’s Theoretical Intentions, 12 NAT. L.F. 163, 171 (1967). Blackstone’s definition of municipal law follows his organization of the Commentaries. See id. at 167-69.
[25] 1 BLACKSTONE, supra note 23, at 39.
[26] Id.
[27] See THOMAS AQUINAS, THE SUMMA THEOLOGICA 209 (Daniel J. Sullivan ed., Fathers of the English Dominican Province trans., Encyclopaedia Britannica 1952) (1265-73). (I-II, 91, 2, observing, “Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Therefore it has a share of the Eternal Reason, by which it has a natural inclination to its due act and end; and this participation of the eternal law in the rational creature is called the natural law . . . [T]he natural law is nothing else than
the rational creature’s participation of the eternal law”).
[28] 1 BLACKSTONE, supra note 23, at 40.
[29] Id.
[30] Id. at 41.
[31] Id.
[32] Id.
[33] See 2 AQUINAS, supra note 27, at 227-28 (I-II, 95, 2, observing, in an article on the relation of “human law” to “natural law,” that “every human law has just so much of the character of law as it is derived from the law of nature. But if in any point it differs from the law of nature, it is no longer a law but a corruption of law.”).
[34] See supra text accompanying note 31.
[35] See supra note 27.
[36] 1 BLACKSTONE, supra note 23, at 41. For discussions of Aquinas’s approach to the impact of the Fall upon the operation of the natural law, see also CHARLES E. RICE, 50 QUESTIONS ON THE NATURAL LAW 159-63 (1993) and Russell Hittinger, Natural Law and Catholic Moral Philosophy, in A PRESERVING GRACE 1, 7-8 (Michael Cromartie ed., 1997). Hittinger finds that Aquinas, “[i]n his last recorded remarks on the subject of natural law,” said:
Now although God in creating man gave him this law of nature, the devil oversowed another law in man, namely, the law of concupiscence. . . . Since then the law of nature was destroyed by concupiscence, man needed to be brought back to works of virtue, and to be drawn away from vice: for which purpose he needed the written law.
Id. at 7 (citing Thomas Aquinas, Collations in Decem Praeceptis (1273)).
[37] 1 BLACKSTONE, supra note 23, at 42.
[38] Id. In tension with his formulation here, elsewhere in the Commentaries Blackstone will write of “divine law, either natural or revealed,” 2 id. at 420, and “divine law both natural and revealed,” id. at 455. In these two instances, it appears that he uses “divine” to denote the divine origin of the law of nature rather than to denote divine law proper. So, in yet a third place, he writes of “those laws which the creator has given us; the divine laws, I mean, of either nature or revelation.” 4 id. at 177.
[39] 1 id. at 42.
[40] Id.
[41] Id. Examples of Blackstone’s references to the divine law include his discussion of the law of nuisance as enforcing “that excellent rule of gospel-morality, of ‘doing to others as we would they should do unto ourselves,’” 3 id. at 218, and of the criminal law, 4 id. at 11, 30, 42, 43, 60, including laws against homicide, id. at 177, dueling, id. at 199, and sodomy, id. at 216. John Finnis has noted that Blackstone’s endorsement of the role divine law is to play in the formulation of human law does not lead him to confuse crime with sin. See Finnis, supra note 24, at 177.
[42] See supra note 7.
[43] See 2 AQUINAS, supra note 27, at 209-10 (I-II, 91, 3, observing that, “it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particular determination of certain matters. These particular determinations, devised by human reason, are called human laws . . .”). The Commentaries is not wholly lacking this approach. For example: “And sometimes, where the thing itself has it’s [sic] rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct.” 1 BLACKSTONE, supra note 23, at 55.
[44] The significant role in the Commentaries for human law to supply rules for matters indifferent does not preclude a role for the law of nature (or natural law) in supplying specific rules for human law. See, e.g., 1 BLACKSTONE, supra note 23, at 435-36, 441 (discussing parents and children); 2 Id. at 390, 392-93 (discussing property in animals); 4 Id. at 11 (discussing capital punishment), 29 (discussing wife’s defense of duress), 30 (discussing self-defense), 42 (discussing guilt from crime), 67, 117 (discussing international law).
[45] Richard A. Posner, Blackstone and Bentham, 19 J.L. & ECON. 569, 570 (1976) (quoting C. HERBERT STUART FIFOOT, LORD MANSFIELD 26 (1936)). The early classic effort to debunk the Commentaries is JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT (London, Thomas Payne et al. 1776), but Bentham’s target is as much the notion of natural law as the Commentaries itself. Posner’s article explains that Bentham’s is a “fundamentally misconceived attack on the Commentaries.” Id. at 569.
[46] Alschuler, supra note 1, at 2.
[47] See BOORSTIN, supra note 1, at 189.
[48] See Posner, supra note 45, at 571.
[49] See McKnight, supra note 2, at 402.
[50] See Michael Lobban, Blackstone and the Science of Law, 30 HIST. J. 311, 311 (1987); McKnight, supra note 2, at 402, 404. Lobban’s criticisms are answered in Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 437, 490 n.107 (1996).
[51] See supra notes 41 and 44 for instances where the Commentaries explicitly draws upon specific rules of the law of nature, natural law, or divine law.
[52] H. L. A. Hart, Blackstone’s Use of the Law of Nature, 1956 BUTTERWORTHS S. AFR. L. REV. 169, 169-71.
[53] See Finnis, supra note 24, at 171-74.
[54] McKnight concurs in Hart’s view of Blackstone’s treatment of the law of nature and sees it as making way for Blackstone’s focus on indifferent matters. See McKnight, supra note 2, at 405. McKnight’s understanding also supports, if ironically, the argument that Blackstone thereby paves the way for his own brand of natural law analysis. See infra notes 309-12 and accompanying text.
Two other criticisms of the Commentaries deserve scant mention here. First, the radical critique of Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 BUFF. L. REV. 205 (1979), that finds Blackstone “supremely unconvincing.” Id. at 211. Kennedy’s critique itself has been found supremely unconvincing. See, e.g., Alschuler, supra note 1, at 45-46; Berman & Reid, supra note 50, at 492 n.108; John W. Cairns, Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State, 4 OXFORD J. LEGAL STUD. 318, 350-52 (1984); Watson, supra note 23, at 795, 802. Second, some commentators criticize Blackstone on his discussion of absolute rights, as if his use of “absolute” means incapable of diminishment or compromise. See, e.g., Lobban, supra note 50, at 329-30; McKnight, supra note 2, at 401 n.16. This criticism falls aside upon paying more careful attention to Blackstone’s usage:
THE rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other.
1 BLACKSTONE, supra note 23, at 119. “Absolute” means apart from social context, not sacrosanct. See Watson, supra note 23, at 803.
[55] For an introduction to Justinian and his work, see Craig A. Stern, Justinian: Lieutenant of Christ, Legislator for Christendom, 11 REGENT U. L. REV. 1 (1998). Helmholz has remarked that Blackstone was perhaps one-fifth a civilian, R.H. Helmholz, Natural Law and Human Rights in English Law: From Bracton to Blackstone, 3 AVE MARIA L. REV. 1, 5 (2005), not so small a fraction considering how imbued Blackstone was with the common law.
[56] See Cook, supra note 12, at 170-72.
[57] See supra text accompanying note 18.
[58] See Berring, supra note 16, at 191; Watson, supra note 23, at 810. It may be that Blackstone came to this method owing to his “academic persona.” Wilfrid Prest, The Religion of a Lawyer?: William Blackstone’s Anglicanism, 21 PARERGON 153, 158 (2004).
[59] See Milsom , supra note 18, at 10-11; Watson, supra note 23, at 810 (finding the Commentaries to be a “direct descendant of Justinian’s Institutes”); see also Cairns, supra note 54, at 320, 340, 350, 359 (finding the Commentaries to be largely an “Institutional” work).
[60] See BOORSTIN, supra note 1, at 3. Others have written that Blackstone’s work is fundamentally unlike Justinian’s, Berman & Reid, supra note 50, at 492-96, or failed fundamentally by forcing the content of the common law into an unwelcoming structure from Roman law. Lobban, supra note 50, at 312, 321-23.
[61] See ALEXANDER PASSERIN D’ENTRÈVES, NATURAL LAW 24-25, 27-33 (Transaction Publishers 1994) (1951).
[62] See id. at 23-24, 31-32.
[63] See MAINE, supra note 24, at 60, 63-64.
[64] Id. at 44-45, 60-63.
[65] See id. at 63, 73.
[66] See BARRY NICHOLAS, AN INTRODUCTION TO ROMAN LAW 57 (1962).
[67] See id.
[68] See D’ENTRÈVES, supra note 61, at 148; see also McKnight, supra note 2, at 406 n.67 (agreeing with Maine on the somewhat utilitarian cast of Roman natural law).
[69] Although it may be that Blackstone never explicitly asserted that one could discover the law of nature from English law, or vice versa. McKnight, supra note 2, at 403 n.33. At least one commentator has written that the common-law tradition reflects the notion that innate reason has led the positive law to hold within itself the natural law. Lobban, supra note 50, at 314. Similar to this link is the one Blackstone approvingly found to be advanced by Aristotle: learning positive law is a good way to learn ethics. See Conklin, supra note 23, at 205.
[70] See LIEBERMAN, supra note 15, at 49-55.
[71] See id. at 46.
[72] See Langbein, supra note 14, at 77.
[73] See PREST, supra note 1, at 310; see also Posner, supra note 45, at 576 (pronouncing Blackstone “better at particulars than at generalization”).
[74] See D’ENTRÈVES, supra note 61, at 151.
[75] See BOORSTIN, supra note 1, at 60. One commentator has tagged Blackstone a “natural law maverick” for constructing a “pastiche” of natural law and his own views. McKnight, supra note 2, at 407. Perhaps the link of is with ought in his romanesque approach invites such criticism.
[76] See infra notes 290-97 and accompanying text.
[77] Nicole Graham, Restoring the “Real” to Real Property Law: A Return to Blackstone?, in BLACKSTONE AND HIS COMMENTARIES, supra note 14, at 151.
[78] See id. at 154-55, 160.
[79] The Commentaries suggests that natural law inheres in the nature of things in such language as, “when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.” 1 BLACKSTONE, supra note 23, at 38. If Blackstone tags the law of property as governing things indifferent, see infra note 152 and accompanying text, he does not thereby hold that property law is wholly without natural law principles. See infra notes 309-12 and accompanying text.
[80] See 1 BLACKSTONE, supra note 23, at 40.
[81] See id. at 58.
[82] Id. at 354, 358.
[83] See id. at 410.
[84] See 2 id. at 4, 7.
[85] See 3 id. at 146.
[86] See id. at 4, 22, 116, 379, 434.
[87] See 4 id. at 20-21, 27, 74, 186, 216.
[88] See D’ENTRÈVES, supra note 61, at 32-33; MAINE, supra note 24, at 46; NICHOLAS, supra note 66, at 55.
[89] See infra notes 279-89 and accompanying text.
[90] See NICHOLAS, supra note 66, at 28-32.
[91] See 2 EDWARD GIBBON, THE DECLINE AND FALL OF THE ROMAN EMPIRE 80 (Encyclopaedia Britannica Inc. 1952) (1788).
[92] See 2 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 585 (Liberty Fund, Inc. 2010) (1898). So the English were “more Roman than the Romanists,” those who received as authority the Corpus Juris Civilis rather than adhering to the method by which Roman law developed. Id. at 705.
[93] See Berman & Reid, supra note 50, at 503. But see infra note 235.
[94] Helmholz , supra note 55, at 20; see also D’ENTRÈVES, supra note 61, at 119 n.1.
[95] McKnight, supra note 2, at 407-09.
[96] See Milsom, supra note 18, at 11-12. Milsom here speaks of fit according to patterns of legal rules, but the notion of judges in a sense creating rules that at the same time are seen as compelled by antecedent norms is apropos.
[97] See Cook, supra note 12, at 169.
[98] See Prest, supra note 58, at 163.
[99] See Cook, supra note 12, at 174.
[100] See PREST, supra note 1, at 309; Prest, supra note 3, at 123; Prest, supra note 58, at 161.
[101] See WILLIAM BLACKSTONE, THE PANTHEON 27-32 (photo. reprint, Gale ECCO Print Editions 2010) (1747). Prest has called Blackstone a “comparative theologian.” Prest, supra note 3, at 110.
[102] See Prest, supra note 58, at 153, 165-66.
[103] See id. at 155-56.
[104] See BOORSTIN, supra note 1, at 74-75.
[105] See Raymond D. Tumbleson, “Reason and Religion”: The Science of Anglicanism, 57 J. HIST. IDEAS 131, 133, 151 (1996).
[106] See NIGEL ATKINSON, RICHARD HOOKER AND THE AUTHORITY OF SCRIPTURE, TRADITION AND REASON, at ix (1997). Though such, his work earned surprising approval from the leader of the Roman Catholic Church. See RUSSELL KIRK, THE ROOTS OF AMERICAN ORDER 246 (1974).
[107] Harold Berman highlights Hooker’s influence as to political authority and consent, the importance of history, and the large role played by matters indifferent—those not determined by transcendent sources of law. See Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 YALE L.J. 1651, 1665-66 (1994).
[108] 1 RICHARD HOOKER, OF THE LAWS OF ECCLESIASTICAL POLITY 232 (J.M. Dent & Sons, Ltd. 1907) (1594, 1597).
[109] See W.J. TORRANCE KIRBY, RICHARD HOOKER, REFORMER AND PLATONIST 48 (2005). “Perhaps the most influential Anglican thinker to make explicit use of natural law is the Elizabethan divine, Richard Hooker . . . .” Will Adam, Natural Law in the Anglican Tradition, in CHRISTIANITY AND NATURAL LAW 58, 63 (Norman Doe ed., 2017).
[110] See id. at 55.
[111] See ROBERT K. FAULKNER, RICHARD HOOKER AND THE POLITICS OF A CHRISTIAN ENGLAND 114-16 (1981).
[112] See KIRBY, supra note 109, at 52, 58-78.
[113] See W.J. Torrance Kirby, Reason and Law, in A COMPANION TO RICHARD HOOKER 251, 253, 255 (Torrance Kirby ed., 2008).
[114] See KIRBY, supra note 109, at 51; Kirby, supra note 113, at 251.
[115] 1 HOOKER, supra note 108, at 150.
[116] See Kirby, supra note 113, at 265. Elsewhere, Kirby notes that the question of Hooker’s doctrine of natural law is controversial. See KIRBY, supra note 109, at 57.
[117] See L.S. THORNTON, RICHARD HOOKER 32, 107 (1924). In this context Hooker calls law “positive” if express revelation is necessary to know it. 1 HOOKER, supra note 108, at 220 n.1. Also, apparently unlike Blackstone, Hooker observes that the evidence of the senses is clear and strong while that of revelation is complicated and complex. THORNTON, supra, at 16. At the same time, however, the object held out in the Scriptures is more certain than that in the senses. Id. at 18.
[118] NIGEL VOAK, RICHARD HOOKER AND REFORMED THEOLOGY 117 (2003); see also FAULKNER, supra note 111, at 114 (reading Hooker to state that human law is discovered naturally, but that the authority to do so is from God); Rowan Williams, Foreword: Of the Lawes of Ecclesiastical Politie Revisited, in A COMPANION TO RICHARD HOOKER, supra note 113, at xv, xviii-xix (distinguishing in Hooker laws for humanity from laws for particular societies, with both legitimate and binding).
[119] See infra notes 305-12 and accompanying text. Also finding its way into the Commentaries is Hooker’s usage of the term lex gentium to mean international law rather than something like the Roman usage of jus gentium discussed above at notes 88 to 89. Finnis, supra note 24, at 177.
[120] Of course, some role for human reason is found in standard views on the making of law, with perhaps the classic being that of Aquinas. See, e.g., supra note 43. Nevertheless, the uses to which Hooker and Blackstone put reason bear a special affinity, as discussed below. See infra notes 305-12 and accompanying text.
[121] See KIRBY, supra note 109, at 74; see also KIRK, supra note 106, at 243.
[122] ATKINSON, supra note 106, at 13.
[123] Id.
[124] KIRBY, supra note 109, at 51.
[125] See THORNTON, supra note 117, at 13; see also Adam, supra note 109, at 63 (Hooker “often uses the term ‘law of reason’ as synonymous with ‘natural law’”), 73 (Hooker took “the explicit doctrine of natural law of the Thomistic tradition and repackaged it as the law of reason”), 76 (“The concept of natural law, and its derivative—the law of reason, played a central role in the thought of Richard Hooker . . . .”).
[126] See FAULKNER, supra note 11, at 63, 72.
[127] KIRBY, supra note 109, at 55. And reason shows the good, THORNTON, supra note 117, at 37, presumably the key to the happiness all humans seek. See KIRBY, supra note 109, at 75; THORNTON, supra note 117, at 38. This idea too finds its way into Blackstone. See supra notes 28-31 and accompanying text.
[128] See ATKINSON, supra note 106, at 14.
[129] See THORNTON, supra note 117, at 36-37.
[130] FAULKNER, supra note 111, at 115.
[131] See infra notes 305-12 and accompanying text.
[132] ATKINSON, supra note 106, at 50.
[133] See FAULKNER, supra note 111, at 103, 111.
[134] See id. at 112.
[135] See 1 HOOKER, supra note 108, at 422; see also ATKINSON, supra note 106, at 55; KIRK, supra note 106, at 244.
[136] See KIRK, supra note 106, at 244-45; Williams, supra note 118, at xix.
[137] See BOORSTIN, supra note 1, at 73.
[138] See THORNTON, supra note 117, at 17.
[139] See FAULKNER, supra note 111, at 114.
[140] See THORNTON, supra note 117, at 45-46.
[141] See id. at 37. Such a commitment to historical development, adapted to local conditions, lies at the core of Hooker’s chief aim—to explain and defend the ecclesiastical polity of the Church of England. See ATKINSON, supra note 106, at 58.
[142] See ATKINSON, supra note 106, at 47.
[143] See id. at 54.
[144] Berman, supra note 107, at 1664-66.
[145] See id. at 1666.
[146] See BOORSTIN, supra note 1, at 36; LIEBERMAN, supra note 15, at 42; Conklin, supra note 23, at 218. Lobban finds in Blackstone a commitment to authority and history over deductive reasoning, see Lobban, supra note 50, at 328, and views the Commentaries as intertwining theory with history. Id. at 330. And Boorstin finds a telling example of Blackstone’s commitment to history in his treatment of the Revolution of 1688. BOORSTIN, supra note 1, at 26.
[147] See ATKINSON, supra note 106, at 59-60.
[148] See 2 HOOKER, supra note 108, at 363.
[149] THORNTON, supra note 117, at 32.
[150] See FAULKNER, supra note 111, at 113; see also id. at 100 (observing that, after the law of reason, human law holds prominence for Hooker), 112 (observing that, once natural necessity calls for a rule, nearly any rule will do).
[151] While for Blackstone “indifferent” can mean diverse things, Finnis, supra note 24, at 172-73, Blackstone imitates Hooker on biblical law, for example, acceding to its authority but finding its still-obligatory moral law pertinent to very few issues. See D. SEABORN DAVIES, THE BIBLE IN ENGLISH LAW 20 (1954). As to one such instance, it is both intriguing and relevant to note that Blackstone observes that blood guilt—a concept harking back to biblical standards—would adhere to Parliament were it to over-extend capital punishment. 4 BLACKSTONE, supra note 23, at 11. The Bible also speaks specifically of blood guilt for over-extension of capital punishment. See DEUTERONOMY 19:4-10. See generally Craig A. Stern, Torah and Murder: The Cities of Refuge and Anglo-American Law, 35 VAL. U. L. REV. 461 (2001) (demonstrating the influence of the biblical law of homicide upon the Anglo-American law of homicide).
[152] BOORSTIN, supra note 1, at 170-74, 179-80. See 1 BLACKSTONE, supra note 23, at 185; 2 Id. At 2, 210-11, 491 for pertinent passages from the Commentaries.
[153] 1 BLACKSTONE, supra note 23, at 55.
[154] Id. at 185.
[155] 3 id. at 87.
[156] So, as for Hooker, such human law is “grounded upon the Word,” 1 HOOKER, supra note 108, at 309, but not dictated by it.
[157] See infra notes 305-12 and accompanying text.
[158] See Berman, supra note 107, at 1690-93.
[159] See Berman & Reid, supra note 50, at 443, 489-94; Cairns, supra note 54, at 340, 352; Finnis, supra note 24, at 164-65; Watson, supra note 23, at 810-12.
[160] See Berman, supra note 107, at 1709.
[161] See id. at 1722.
[162] See id. at 1708, 1711-14.
[163] See id. at 1733.
[164] See id. at 1715, 1729.
[165] See infra notes 241-46, 291-93 and accompanying text.
[166] See W. M. SPELLMAN, THE LATITUDINARIANS AND THE CHURCH OF ENGLAND 1600-1700 10-83 (1993).
[167] See ERNEST CAMPELL MOSSNER, BISHOP BUTLER AND THE AGE OF REASON: A STUDY IN THE HISTORY OF THOUGHT (1936).
[168] See SPELLMAN, supra note 166, at 120.
[169] See id. at 7.
[170] See id. at 4, 61, 128.
[171] See id. at 157.
[172] See id. at 70. Other Latitudinarian notions to find their way into the Commentaries are the endorsement of strong civil government, id. at 122, and self-interest as sound motivation, see id. at 118-19, 122.
[173] See James R. Jacob & Margaret C. Jacob, The Anglican Origins of Modern Science: The Metaphysical Foundations of the Whig Constitution, 71 ISIS 251, 258 (1980); SPELLMAN, supra note 166, at 6-7.
[174] See Jacob & Jacob, supra note 173, at 254, 262, 265. The Anglican mix of authority from the Bible, reason, and the senses—a mix hospitable to science—is one of its distinctives. See id. at 256; Tumbleson, supra note 105, at 134-35, 139, 148, 151-53, 156.
[175] SPELLMAN, supra note 166, at 111.
[176] See id. at 74-77.
[177] See id. at 87-88, 160.
[178] See id. at 4.
[179] See id. at 156.
[180] See id. at 83-86.
[181] See id. at 106-07.
[182] See id. at 8, 66, 76-77, 81-82. The association of reason with natural law is typically English. Helmholz, supra note 55, at 12, 21.
[183] See Conklin, supra note 23, at 213.
[184] See MOSSNER, supra note 167, at 178-87.
[185] See THORNTON, supra note 117, at 103.
[186] See BOORSTIN, supra note 1, at 15. The project of natural theology itself received impetus from Hooker. See Kirby, supra note 113, at 270-71. Butler also aligned himself with the empiricism of Locke and Newton. MOSSNER, supra note 167, at 82.
[187] See supra notes 24-27 and accompanying text.
[188] See JOSEPH BUTLER, THE ANALOGY OF RELIGION NATURAL AND REVEALED 245 (J.M. Dent & Co. 1906) (1736).
[189] See id. at 105.
[190] See id. at 243. So, for those designed for society God’s laws prescribe justice and charity. Id. at 245.
[191] See MOSSNER, supra note 167, at 14. Butler did not suppose that all elements of moral government are clear to humans. Id. At 90. Mossner also discerns some sleight of hand in Butler’s treatment of the matter of law and will. Id. at 102.
[192] Compare 1 BLACKSTONE, supra note 23, at 45, 54, with BUTLER, supra note 188, at 37-38, 41, 98.
[193] See supra text accompanying note 191. Again, this emphasis reminds one of Hooker, ATKINSON, supra note 106, at 13, as does Butler’s division of the precepts of religion into moral and positive according as the reasons for the precept are seen or not seen, MOSSNER, supra note 167, at 92, and the acknowledgement that reason needs support from God’
inspiration, id. at 123-24.
[194] See BUTLER, supra note 188, at xxx.
[195] See ATKINSON, supra note 106, at 91-92, 98.
[196] JOSEPH BUTLER, FIFTEEN SERMONS PREACHED AT THE ROLLS CHAPEL AND A DISSERTATION UPON THE NATURE OF VIRTUE 237-38 (G. Bell Sons 1914) (1726).
[197] See BUTLER, supra note 188, at 143.
[198] See id. at 152-53.
[199] See MOSSNER, supra note 167, at 105, 117.
[200] See id. at 96.
[201] See BUTLER, supra note 188, at xviii, xxx, 79.
[202] See id. at 25, 180.
[203] See id. at 104, 143-44, 148. As Blackstone would remark regarding the changing of human laws, see infra notes 272-78 and accompanying text, Butler observed that we hazard unknown effects by changing the regime God has instituted for his rule. See BUTLER, supra note 188, at 101, 106, 108-09. With the results yet to be experienced, we cannot assess the outcome of such a move.
[204] See Crane Brinton, Book Review, 55 HARV. L. REV. 703, 703 (1942) (reviewing The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries (1941)).
[205] See PREST, supra note 1, at 308; Graham, supra note 77, at 152; Tim Stretton, Coverture and Unity of Person in Blackstone’s Commentaries, in BLACKSTONE AND HIS COMMENTARIES, supra note 14, at 111, 125.
[206] See BUTLER, supra note 188, at 162.
[207] See MOSSNER, supra note 167, at 189.
[208] See Conklin, supra note 23, at 213-15. Conklin points out especially the affinity in epistemology and the role of happiness.
[209] See Blackstone’s probabilism here, for example: “But this [move of the Restoration Parliament] was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace.”
1 BLACKSTONE, supra note 23, at 147 (emphasis added). And here: “So that it is morally impossible to trace out, with any degree of accuracy, when the several mutations of the common law were made . . . .” 4 id. at 402 (first emphasis added). The probabilism in this use of “morally impossible” finds an explanation from Blackstone’s contemporary, Samuel Johnson:
He thus defined the difference between physical and moral truth: “Physical truth is, when you tell a thing as it actually is. Moral truth is, when you tell a thing sincerely and precisely as it appears to you. I say such a one walked across the street; if he really did so, I told a physical truth. If I thought so, though I should have been mistaken, I told a moral truth.”
JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 510-11 (C.P. Chadsey ed., Doubleday 1946) (1791).
[210] See BOORSTIN, supra note 1, at 23.
[211] See id. 55, 117-19. In these last commitments, Blackstone owed a debt also to Locke, id. At 31, and the Common Sense school of philosophy, Conklin, supra note 23, at 216-17.
[212] See BOORSTIN, supra note 1, at 31-40, 55.
[213] Blackstone’s crucial use of happiness has been noted already in these pages. See supra notes 29-31 and accompanying text.
[214] See BUTLER, supra note 188, at 93, 238.
[215] See id. at 26, 236, 271.
[216] See BUTLER, supra note 196, at 68.
[217] MOSSNER, supra note 167, at 100. So probabilism is the method for pursuing happiness. See BUTLER, supra note 188, at xxv-xxvii.
[218] See Butler, supra note 188, at xxx, 36, 56, 61, 72, 93, 112, 268-70; BUTLER, supra note 196, at 240. At the same time, God has given us some power over the happiness of others. BUTLER, supra note 188, at 42.
[219] See supra notes 29-31 and accompanying text; see also BOORSTIN, supra note 1, at 92; Alschuler, supra note 1, at 52.
[220] Compare BUTLER, supra note 196, at 68 (for Butler) with BOORSTIN, supra note 1, at 53 (for Blackstone). Conklin also finds that the pursuit of happiness is a linchpin for Blackstone, Conklin, supra note 23, at 224, 260, but she places his approach also within the Common Sense school, id. at 215-17. She attributes the phrase “the pursuit of happiness” in the Declaration of Independence to Blackstone. Id. at 200-02. But see Craig A. Stern & Gregory M. Jones, The Coherence of Natural Inalienable Rights, 76 UMKC L. REV. 939, 973-74 (2008).
[221] While Blackstone does subscribe to the notion that natural law bounds the validity of human law, see supra text accompanying notes 32, 41; Posner, supra note 45, at 605, his use of natural law embraces far more, Finnis, supra note 24, at 183.
[222] See BOORSTIN, supra note 1, at 78; see also 2 BLACKSTONE, supra note 23, at 58 (describing the “ingenuity” of the middle ages as one “which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon”); 4 id. at 410-11 (bemoaning the scholastic intricacies of Norman jurisprudence). Blackstone’s approach avoided the complexities of the scholastics. See Conklin, supra note 23, at 224. At the same time, while some note Blackstone’s modern emphasis on individual rights rather than on the classic common good, Finnis, supra note 24, at 181, and on peace as the end of civil society, BOORSTIN, supra note 1, at 179, and his “social” rather than philosophical consistency, Brinton, supra note 204, at 704, Blackstone does hold that society has a “moral purpose,” BOORSTIN, supra note 1, at 190, and shares also with Aquinas, see, e.g., 2 AQUINAS, supra note 27, at 213-14 (I-II, 92, 1), 232-33 (I-II, 96, 3), the belief that law has moral content, teaches right and wrong, and improves human beings. See 1 BLACKSTONE, supra note 23, at 27, 45; 2 id. at 8; 3 id. at 162.
[223] See Conklin, supra note 23, at 211.
[224] Cf. Helmholz, supra note 55, at 21-22 (noting that English lawyers traditionally assumed that the common law and natural law “complemented each other”). But see Allen, supra note 21, at 196-98 (questioning the impact of natural law upon the Commentaries).
[225] See LIEBERMAN, supra note 15, at 38-55.
[226] See Lobban, supra note 50, at 323.
[227] See LIEBERMAN, supra note 15, at 37; Finnis, supra note 24, at 175-76 (listing scores of references in note 94).
[228] See BOORSTIN, supra note 1, at 142.
[229] See id. at 30.
[230] See BOORSTIN, supra note 1, at 85. In like manner, Maine has remarked the importance of simplicity, harmony, and elegance as guides to Roman jurisconsults. MAINE, supra note 24, at 65.
[231] See BOORSTIN, supra note 1, at 28.
[232] See Finnis, supra note 24, at 176.
[233] See BOORSTIN, supra note 1, at 92.
[234] See id. at 98.
[235] See Lobban, supra note 50, at 332-33. Emily Kadens has emphasized that Blackstone’s approach to the law differed in its systemization and generalization from that of the practitioner. Kadens, supra note 5, at 1559; see also id. 1563 (stating that the Commentaries was said to depart from the common law as practiced), 1575 (stating that even in practice Blackstone acted as if legal questions held one correct answer without doubt), 1605 (stating that Blackstone even as judge knew the law, but not the “legal mind”).
[236] See BOORSTIN, supra note 1, at 58.
[237] See id. at 53, 60. Following Hale, Blackstone in the Commentaries treats the general phenomenon of law under the guise of the law of England as an example historically considered. Id. at 35-36. The experience of generations of wise men had rendered the common law the nearest human approach to the natural law. KIRK, supra note 106, at 371.
[238] See Watson, supra note 23, at 795.
[239] 1 BLACKSTONE, supra note 23, at 17; cf. 4 Id. at 256 (rooting a legal principle in “the genius and spirit of the law of England”).
[240] See infra notes 306-08 and accompanying text. Blackstone emphasized English civil freedom, LIEBERMAN, supra note 15, at 39-40, and liberty, BOORSTIN, supra note 1, at 154, giving rights a central position in his analysis, id. at 162; see also Allen, supra note 21, at 196-97.
[241] See supra notes 173-74 and accompanying text; Berman & Reid, supra note 50, at 498-500, 511.
[242] See Lobban, supra note 50, at 333.
[243] See 1 BLACKSTONE, supra note 23, at 59.
[244] See id. at 34; 2 id. at 2.
[245] See BOORSTIN, supra note 1, at 11-12, 20-23.
[246] See LIEBERMAN, supra note 15, at 37. Blackstone’s dedication to the scientific approach to the common law did not rule out what Boorstin calls “mystery” when needed to supplement science, much as Edmund Burke called upon mystery in aid of his arguments. BOORSTIN, supra note 1, at 25. Similarly, the Commentaries has been tagged as “formalistic, in the sense of describing the nominal power relationships, while failing to acknowledge what he and other lawyers of his day knew to be the actual division of power and influence.” Langbein, supra note 14, at 70.
[247] Hooker’s use of history is treated above at notes 138 to 145.
[248] See BOORSTIN, supra note 1, at 62-64, 78.
[249] See id. at 72-73; RICHARD TUCK, NATURAL RIGHTS THEORIES 84 (1979). One is reminded also of Maine’s characterization of the Roman law as aspiring to an “indefinite approximation” to perfect law. See MAINE, supra note 24, at 63. Here again, Blackstone’s roots in Roman law complement his Anglicanism.
[250] See BOORSTIN, supra note 1, at 104.
[251] See LIEBERMAN, supra note 15, at 45. Boorstin writes that Blackstone employs a fiction that English law expresses both “the perfection of reason” and “the fullness of experience,” BOORSTIN, supra note 1, at 135, but Blackstone asserts that legal customs, while often rooted in natural law, are not always reasonable and so may stand in need of correction. Compare, e.g., 1 BLACKSTONE, supra note 23, at 251 (suggesting that a custom “seems dictated by nature herself”) with id. at 280 (observing how an ancient rule of common law “was consonant neither to reason nor humanity” and so endorsing its later alteration).
[252] See BOORSTIN, supra note 1, at 63.
[253] LIEBERMAN, supra note 15, at 49. This approach was typical of English eighteenth-century treatment of the law. Berman & Reid, supra note 50, at 438.
[254] See 1 BLACKSTONE, supra note 23, at 137 (asserting that the law of England “is permanent, fixed, and unchangeable, unless by authority of parliament”); 3 id. at 429 (observing that “truth and justice are always uniform”). Langbein suggests that Blackstone himself viewed the fixed and settled character of the law as a myth. Langbein, supra note 14, at 68.
[255] See BOORSTIN, supra note 1, at 57.
[256] See 1 BLACKSTONE, supra note 23, at 226 (opining that the terms of the theoretical social contract are “only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ”).
[257] See PREST, supra note 1, at 307-08. Elsewhere Prest notes Blackstone’s Tory opposition to the Whig establishment. Prest, supra note 58, at 154.
[258] See Alschuler, supra note 1, at 37-38.
[259] See BOORSTIN, supra note 1, at 81; LIEBERMAN, supra note 15, at 43-44.
[260] 4 BLACKSTONE, supra note 23, at 436. Other passages urging modification of English law include id. at 3-5, 88-89, 165-66, 175, 239, 278-79, 349, 353, 381-82, and 409.
[261] MAINE, supra note 24, at 64.
[262] See BOORSTIN, supra note 1, at 111, 145.
[263] See id. at 146-50.
[264] The classic discussion is to be found in MAINE, supra note 24, at 17-36.
[265] See LIEBERMAN, supra note 15, at 47.
[266] See BOORSTIN, supra note 1, at 69.
[267] Allen, supra note 21, at 202-05. Allen would have this use of fictions establish that the Commentaries sees the law as a fabrication that does not reflect the way things really are. Id. at 205. Fabrication the law may be, see supra text accompanying note 260, but the point of fictions is to shape this fabric more accurately to reflect the way things really are notwithstanding formulations of the positive law that otherwise would depart from the way things really are. After all, that is the driving force behind fictions. See MAINE, supra note 24, at 17-36.
[268] See, e.g., Stretton, supra note 205, at 119-20, 122, 126-27 (casting Blackstone’s (?) “one person” theory of marriage as a legal fiction to serve his “scientific organizing principle” though, according to Stretton, not directly dictated by natural law).
[269] Again, the classic discussion is to be found in MAINE, supra note 24, at 17-36.
[270] See Lobban, supra note 50, at 325.
[271] See 1 BLACKSTONE, supra note 23, at 86, 353; 3 Id. at 328, 410; 4 Id. at 431-33. Blackstone presupposed and endorsed ameliorative legislation in his charge quoted above at note 260.
[272] 1 BLACKSTONE, supra note 23, at 10.
[273] See Conklin, supra note 23, at 220-24.
[274] Prest, supra note 3, at 115-18.
[275] See id. at 118-21.
[276] See id. at 104.
[277] See Cook, supra note 12, at 175-76 (noting Blackstone’s preference for the common law over statutes); Kadens, supra note 5, at 1561 (discussing Blackstone’s imagery of the law as a house deformed by statutes).
[278] 1 BLACKSTONE, supra note 23, at 353.
[279] See supra text accompanying notes 63-65; MAINE, supra note 24, at 41-43.
[280] See BOORSTIN, supra note 1, at 47.
[281] See generally Alschuler, supra note 1, at 27; McKnight, supra note 2, at 404.
[282] See MOSSNER, supra note 167, at 26.
[283] See BOORSTIN, supra note 1, at 43. Blackstone reflects upon comparative law several times in the Commentaries. See 1 BLACKSTONE, supra note 23, at 5, 21, 35-36; 2 id. at 258; 3 id. At 108; 4 id. at 181, 237, 241.
[284] See supra notes 116-18 and accompanying text.
[285] See Cook, supra note 12, at 175.
[286] See supra text accompanying note 39. Again, this paper uses the term “natural law” for what Blackstone usually called “the law of nature.” He himself defined “natural law” to be human theorizing about the law of nature, see id., though his actual usage seems not to be uniform on this point, see supra note 7.
[287] See Wilfrid Prest, William Blackstone’s Anglicanism, in GREAT CHRISTIAN JURISTS IN ENGLISH HISTORY 213, 231-32 (Mark Hill & R. H. Helmholz eds., 2017).
[288] See DAVIES, supra note 151, at 16, 21.
[289] In keeping with its comparatist approach, the Commentaries with seeming approval notes within or alongside the common law itself a diversity of sources and even of rules of law.
See 1 BLACKSTONE, supra note 23, at 63-64, 74-78; 4 Id. at 403.
[290] See Alschuler, supra note 1, at 2, 24-27.
[291] See id. at 26.
[292] See 1 BLACKSTONE, supra note 23, at 410, 423; 2 id. at 8-13, 258, 293; 3 id. at 145, 168, 208, 327; 4 id. at 3, 9-12, 42, 375.
[293] Posner, supra note 45, at 579, 590. The Commentaries is so dedicated to this tracing of reasons that at least one commentator tags the reasons as “often shallow, formalistic, indeed sometimes plain dishonest.” Langbein, supra note 14, at 77.
[294] See MOSSNER, supra note 167, at 25.
[295] BOORSTIN, supra note 1, at 121.
[296] See Berman & Reid, supra note 50, at 502. Although reasonableness became a hallmark of Butler and the Latitudinarians, reasonableness figures in Hooker’s work also. See VOAK, supra note 118, at 137. Perhaps in some distinction from “reasonableness,” “reason” had longed served as a touchstone of English law. See NORMAN DOE, FUNDAMENTAL AUTHORITY IN LATE MEDIEVAL ENGLISH LAW 83, 106-31, 153, 176-77 (1990). Blackstone no doubt draws upon this tradition as well as upon post-Reformation Anglicanism.
[297] See Lobban, supra note 50, at 334; Posner, supra note 45, at 572. Posner discovers the maximization of welfare in Blackstone’s approach, Posner 573-74, much as Maine found “utilitarianism” in the Roman law, McKnight, supra note 2, at 406 n.67. Finnis notes that Blackstone in some respects bases even the human institution of rights upon reason. Finnis, supra note 24, at 166.
[298] Lobban describes this as supplying a natural law “external test of reasonableness of the
law.” Lobban, supra note 50, at 333.
[299] See BOORSTIN, supra note 1, at 27.
[300] See id.
[301] 1 BLACKSTONE, supra note 23, at 70 (footnote omitted); see also id. at 77-78, 91.
[302] See id. at 47, 146, 148, 150, 163, 165, 185-86, 211, 226-27, 238, 246, 280, 287, 411, 443, 446, 449-50, 464; 2 id. at 4, 8, 10 15, 68, 128, 162, 210-11, 228, 230, 385, 390, 401, 411- 12, 453-54, 486; 3 id. at 31, 158, 161, 176-77, 188, 219, 226, 241, 244, 271, 379-80, 385, 430, 434; 4 id. at 14-16, 32, 51, 103, 105, 186, 216, 237, 248, 280, 364, 382-81, 409-12, 416, 425, 428-29.
[303] See 1 id. at 61; 3 id. at 192, 207, 226, 392, 429; 4 id. at 423.
[304] This search for sound reasons is not for Blackstone an individual affair; he distrusted individual reason. See BOORSTIN, supra note 1, at 50, 103, 117; Posner, supra note 45, at 603.
[305] See supra notes 147-56 and accompanying text.
[306] See supra note 240 and accompanying text.
[307] Social contract theory plays a role in Blackstone’s development of natural law, see Finnis, supra note 24, at 178-79, and even property rights are contingent, developed in the context of society, see supra note 152 and accompanying text; Allen, supra note 21, at 197. Natural liberty yields to social convention, but only for good reasons.
[308] 1 BLACKSTONE, supra note 23, at 122.
[309] See, e.g., id. at 54-55, 185; 2 id. at 2, 211, 491; 3 id. at 87; 4 id. at 238; see also supra notes 147-56 and accompanying text.
[310] See Finnis, supra note 24, at 181; David Lemmings, Editor’s Introduction to Book I of 1 BLACKSTONE, supra note 2, at xvii, xxxi. H.L.A. Hart has suggested that Blackstone’s presentation of natural law is expressly to provide gaps to be filled by human law settling matters indifferent, Hart, supra note 52, at 174, but Finnis has demonstrated the difficulty with Hart’s view. See Finnis, supra note 24, at 171-74.
[311] See Lobban, supra note 50, at 324; McKnight, supra note 2, at 404-06.
[312] Again, it bears repeating that “the reality of things” speaks not only of mere physicality but also of the norms appropriate to the situation at hand. The reality of things holds as much ought as is. See supra notes 66-76 and accompanying text.
[313] See BOORSTIN, supra note 1, at 65, 68.
[314] See Posner, supra note 45, at 604.
[315] See BOORSTIN, supra note 1, at 70.
[316] Id. at 69.
[317] See id. at 83-84; McKnight, supra note 2, at 403; Posner, supra note 45, at 583; cf. MAINE, supra note 24, at 60 (noting that Roman lawyers respected the natural law within their own law for its “descent from the aboriginal reign of nature”). Presumably, Blackstone melds his endorsement of both Saxon primitivism and historical development in the notion of sound development upon Saxon principle.
[318] 1 BLACKSTONE, supra note 23, at 69; see also 3 id. at 327 (“For though in many other countries every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law”). This understanding of the work of the judge is in keeping with Blackstone’s view of the use of reason in law to discover, not to invent. See BOORSTIN, supra note 1, at 51, 123. So law apparently created by human beings has also a divine quality. Id. at 59.
[319] See, e.g., JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 59-64 (David Campbell & Philip Thomas eds., Dartmouth Publ’g 1997) (1921); William S. Brewbaker III, Found Law, Made Law and Creation: Reconsidering Blackstone’s Declaratory Theory, 22 J.L. & RELIGION 255 (2006).
[320] See Alschuler, supra note 1, at 4, 37, 42.
[321] See, e.g., Frankland & Moore v. Regina [1987] 1 AC 576, 585, 594 (PC) (appeals taken from Isle of Man).
[322] At the same time, however, Helmholz has noted the traditional role for natural law in adjudging cases, Helmholz, supra note 55, at 18, and one may wonder how the rule of law could be respected were judges to invent rules to apply to cases before them but arising from facts long past. See STEVEN D. SMITH, LAW’S QUANDARY 61-64 (2004).
[323] Apparently, on the bench Blackstone himself adhered to the declaratory theory and faithfully applied precedent. See Kadens, supra note 5, at 1556-58, 1578, 1580, 1583, 1586, 1590, 1598, 1600-01. That Blackstone does not subscribe to judicial review, see 1 BLACKSTONE, supra note 23, at 91; Helmholz, supra note 55, at 14, in no way compromises his commitment to natural law. Finnis, supra note 24, at 169-70.
[324] Finnis, supra note 24, at 182-83 (footnote omitted).
[325] See Alschuler, supra note 1, at 54; cf. Allen, supra note 21, at 198 (stating that “the Commentaries is a checkerboard of natural law and positivist perspectives”).
[326] See Berman & Reid, supra note 50, at 521.
[327] See OLIVER WENDELL HOLMES, JR., THE COMMON LAW (1881).
[328] See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (9th ed. 2014).
[329] This approach bears a resemblance to the natural law of Roman law, “smuggling” into the law values under the guise of a merely “technological” approach. See D’ENTRÈVES, supra note 61, at 151. Also, Lon Fuller’s explanation of the development of the common law case-by-case comes to mind: he described each case presenting to the court the opportunity to discern the necessary implications of the enterprise the law at issue is to govern. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 357-77 (1978).
Reformed Natural Law and the Christian Magistrate [1]
Simon P. Kennedy
The initial paragraph of the 1646 version of the Westminster Confession of Faith begins with the statement that “the light of nature,” along with the “works of creation and providence,” do the following: they “manifest the goodness and wisdom, and power of God.”[2] The light of nature is said to manifest these things in such a way as to “leave men inexcusable,” a clear reference to Romans 1:20 that is corroborated in the Confession’s footnotes.[3] From this, we can deduce that the Assembly divines understood “nature” had an important, instrumental, and constructive role in revealing the nature and will of God. Indeed, the Confession continues to deploy this idea of the “light of nature” in various ways, including the self-evident requirement to worship God and the fact that people can order their lives, worship, and conversation by the “light of nature.”[4]
This same Confession also states that the civil magistrate’s “duty” is to protect and promote true religion.[5] The Assembly even said that the civil magistrate had the power to call church synods, or assemblies.[6] The magistrate ought to “take order, that unity and peace be preserved in the church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly-settled, administered, and observed.”[7] In other words, the Confession mandates what some people now call “Constantinianism.” This term, “Constantinianism,” is for many a dirty word. It implies an unhealthy, unbiblical, unwise mixing of church and state interests and activities. The Divines would probably respond to accusations of “Constantinianism” by pointing to the good the Emperor did for the church. Just as Constantine, also known as “The Great,” assisted the Christian church in her mission to attain pure doctrine and preach the gospel to the nations, so can the political authorities at other times in history.
Today, many in the Reformed community are rediscovering the utility and beauty of the Christian natural law tradition. Some of these same people also reject the possibility, and certainly the necessity, of a Christian magistrate – they prima facie reject “Constantinianism.” Some natural lawyers would join these two conclusions together, arguing that theories of natural law support the anti-Constantinian position. My argument here is that modern natural law political theory is deficient in that it rejects natural law arguments for a Christian magistrate. I will also argue that it is decidedly un-Reformed to conclude that natural law does not touch on the civic promotion of religion.
To build my case, I will briefly walk through early Reformed thought, from Calvin to the Westminster Assembly, showing the rough shape of Reformed conceptions of natural law in the early period of the Reformed tradition. Second, I will show how this tradition held to what I call “theistic political naturalism” – that is, that the early Reformed all understood politics to be according to nature, according to the order of creation, and not an impure postlapsarian imposition. And finally, I will suggest that this framework shows that what the Westminster Divines articulated in the Confession makes perfect sense – the affirmation of a natural law or “light of nature” and a Christian magistrate can go together. Indeed, Christian natural law implies Constantinian politics and a Christian magistrate.
I – Early Reformed natural law and the origins of politics
Calvin’s natural jurisprudence is laid out in Institutes of the Christian Religion, book 4, chapter 20, sections 14–16, where he affirms the existence of the natural law, differentiates between the moral, ceremonial and judicial laws, and then states that “the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon the minds of men.” The fundamental basis upon which we measure the justice and goodness of civil laws is how they compare with the equity laid out in the natural law. This has been well-covered by various scholars. The question for us is whether civil government is linked to the natural law in Calvin’s thought.
Calvin’s stance on the place of civil government in the creation order becomes clear in Institutes 4.20.4. In this section, Calvin is arguing against the Anabaptists, who took a decidedly dim view of civil government, and his goal is to establish the credibility and necessity of the civil magistrate. He says: “it has not come about by human perversity that the authority over all things on earth is in the hands of kings and other rulers, but by divine providence and holy ordinance.” In other words, the Anabaptists are wrong to say that civil government is sinful in origin as well as in its exercise. God created it and it is good.
Calvin makes a similar argument in his commentary on Romans 13:1, where he says that “[civil] powers are from God, not as a pestilence, and famine, and wars, and other visitations for sin, are said to be from him.” Here, Calvin is distancing himself from the Anabaptists, but also from the Augustinian view of the origins of politics; that is, that politics is an imposition on human affairs, instituted primarily to restrain sin. I have argued elsewhere that this implies that Calvin is also suggesting that civil authority would have existed whether the Fall had occurred or not – i.e. it is natural and a part of the creation order.
Franciscus Junius (1545–1602) is more Thomist in his natural law theory than Calvin. In The Mosaic Polity, Junius adopts the natural law theory of Thomas Aquinas, though in an adumbrated form. Again, we have to infer from indirect statements his views on the origins of politics. But we can safely infer a fair amount, for two reasons. One is that, as a Thomist, Junius is Aristotelian in his method and in his understanding of the political nature of humans. Humans live in political community “by nature”. Calvin argues something similar when he says that humans are “social animals,” in his case echoing Seneca rather than Aristotle.[8]
Junius states that the natural law is the participation by humans, through the exercise of reason, in the eternal law.[9] The eternal law can be summarized as the divine mind ordering reality.[10] As a part of this (and despite the Fall and the effects of this on the exercise of our reason), humans know they are obliged to encourage and cultivate justice.[11] This fact implies that we know something about what justice is. It also means we want to enact this drive for justice through political order, an order which is governed by human laws. Junius states that these human laws are produced when humans “proceed by reason from those other preceding laws” (that is, the eternal, natural, and divine laws).[12] There is no suggestion in all of Junius’s complex discussion on law that human laws would have been unnecessary if there was no Fall.[13] For Junius (as for other Reformed Thomists like Girolamo Zanchi, and Johannes Althusius), human law proceeds from the exercise of human reason qua reason, not qua reason impaired by sin. Again, this all implies a theistic political naturalism, which advocates for a Aristotelian view of human nature insofar as humans are naturally political.
Girolamo Zanchi (1516–1590) provides a further example of Reformed thought that bends in this same direction.[14] Zanchi’s view of human nature is more pessimistic than Junius or even Calvin. Humans were, before the Fall, capable of imbibing and obeying the eternal law through participation by reason perfectly: “the natural law had been perfectly instilled in human beings.”[15] Furthermore, “reason” was “perfectly placed inside human beings.”[16] Seemingly, for Zanchi, there was no barrier between human reason and God’s reason built into the created order. Does that mean there would have been no need for civil laws and, therefore, civil government before the Fall? Zanchi is ambiguous on this point. Like any Reformed Thomist, he agrees with Thomas that human laws are derived from natural law.[17]
One could infer from this that Zanchi held that civil laws would have existed prior to the Fall, but he makes no clear statement on this point. Civil laws, he says, are mutable because they change with circumstances. However, the underlying principles of civil laws, or what Calvin calls their “equity,” is from the natural law and does not change.[18] Does this provide any insight into the question of prelapsarian political order? Not especially. However, Zanchi does seem to imply that civil laws would be necessary given different circumstances, and those circumstances could conceivably vary in a prelapsarian condition. But this is speculative. Perhaps the most we can say is that Zanchi emphasizes the way civil law mitigates the effects of sin, whilst leaving open the possibility for a civic polity before the Fall.
To finish this survey, I will deal very briefly with Johannes Althusius (1557–1638). Althusius is consistent with Zanchi and Junius on the question of natural law, and he affirms with Calvin that the order of creation bears in it a perspicuous moral order that is witnessed to in the conscience (as in Romans 2:14-15). Althusius also argues in a straightforward Aristotelian fashion about natural law and the role it plays in the ordering of a civic polity – that is, he says that civic laws ought to reflect the divinely-mandated ius natural.[19] He also says that nature is a cause of political community.[20] Why? Two reasons. One is that natural law has been implanted in all men by God, and therefore people have a natural knowledge of justice through this. Secondly, people are naturally intertwined, and by nature live a “symbiotic” life – we are made for political life because we need each other to enjoy an ordered social life where we gain the goods for a happy and just existence.[21]
II – Political Naturalism and Christian Politics
How does a belief in natural law work itself out into Constantinian political theory? Calvin, Junius, and Althusius, and some of the Westminster Divines like Samuel Rutherford and George Gillespie, bear some of the marks of Thomism in their theory of law. Indeed, the early Reformed tradition, up until the time of the Westminster Assembly, held to a view that I call “political naturalism” – that is, that politics is natural and man is a zoon politikon (political animal).[22] The “political animal” or “social animal” motif occurs across the Reformed tradition during the 16th and 17th centuries. This political naturalism is connected to natural law theories: man is, as per the order of creation, a political being who would have been in political community whether the Fall had occurred or not. Politics does not exist because of sin, which is a theory closely aligned with Augustine. Politics does help to mitigate some of the social effects of sin, just like the natural family does. But this does not mean there would have been no politics without the Fall, just as the family would necessarily have existed without the Fall.
The question remains as to why there might be a connection between natural law, political naturalism, and a conviction that a Christian commonwealth with Christian rulers is the proper order of things. In one sense, it’s quite simple, and to conclude, I will draw a connection between these themes of political thought that are rarely, if ever, connected in normative and historical discussions about politics.
Allow me to move away from the history of ideas, and into normative political theory. First, Protestants can and should affirm that grace perfects nature. But there is more to this than first meets the eye. Grace not only perfects nature, but is also the telos of nature. Nature exists to bring about and maintain natural goods, to be sure. But nature also exists to point to, and support, grace. The grace held out to people in the gospel of Jesus Christ is a matter separate to the good order of a political community. But if a political community exists by nature and according to nature, and this natural order of things has been instituted, through creation, by a God who wants to see all people come to a knowledge of Himself, it follows that the political nature of man has its telos in grace. Therefore, the magistrate, being God’s minister in the political sphere is called to order that sphere towards that grace.
My suggestion is that natural law and the Christian magistrate are theoretically connected, and that one necessitates the other. Politics has a higher end than mere social order, as fine as social order is. This is because politics was made by a God who created us to know and worship him. Althusius notes that consociatio, which is the word he uses to explain the purpose of politics, is a symbiotic sharing of goods, and one of the goods shared in a political community is spiritual.[23] God, Althusius argues, made us to live in symbiotic relationship with one another in political community; we are political animals.[24] This community is ultimately to be directed to the highest goods that can be shared – meaning that the magistrates who have authority and power over said community have a responsibility, indeed a duty, to rule in favour of Christian truth and Christian institutions.[25]
In summary, then, the Westminster Divines were perfectly consistent to hold to a natural jurisprudence and a Constantinian political theology. Divine origins implies divine ends – a divine creation implies a divine telos. A theistic natural law implies a theistic origin for politics, which in turn implies a divine purpose to political life. A key break in the Reformed tradition occurred when people began arguing that natural jurists were only entitled to theorise about the second table of the Decalogue as part of the natural law. But this is, in the end, an entirely arbitrary limitation on natural law theory. No one in the Reformed tradition seriously argued this until civic reality pushed theorists to re-shape their legal theory according to the needs of a pluralistic confessional state.[26] No one believed the first four commandments were juridically off-limits until it was politically expedient to do so. Confessional tensions in England, the Holy Roman Empire, and France, all led to a de-theologising and desacralising of the natural law. The end point of this process was a secularization of politics due to a secularization of natural law.[27] Given our secular liberal politics across the West, it is little wonder that we find it difficult to see Constantinian political theory as anything more than the mere assertion of raw Christian political power.
However, as this historical survey shows, Constantinian political theory is deeper and more robust than that. Calvin was not pro-Christian politics because he wanted more power. Neither was Junius, nor Althusius. Obviously, the same goes for the Westminster Divines. They were for Christian politics because they knew that the origin of politics was divine and the highest end of politics is communion with the Triune God. None of these thinkers believed that this communion could be achieved through a Christian state or by the rule of a Christian magistrate. The Church is the primary vehicle for the ministry of the gospel. But what role for the State? There is nothing in the early Reformed tradition that precludes a Christian magistrate. Indeed, according to Calvin, the vocation of the civil magistrate is the highest of all callings, and we can certainly see why. If you were a natural law thinker in the early Reformed tradition, you were necessarily a Constantinian. Perhaps the same should go for today.
Simon P. Kennedy is a Senior Research Fellow at the T. C. Beirne School of Law at the University of Queensland, and a Non-resident Fellow at the Danube Institute.
[1] Author’s note: This paper was prepared for verbal presentation and will be expanded with further argumentation and references in the future. My thanks to the participants at the Hale Institute Symposium for their feedback.
[2] Westminster Confession of Faith (1646), 1.1. Quotes from the Confession are from the Westminster Confession of Faith (Free Presbyterian Publications, 1985).
[3] Ibid.
[4] Ibid, 21.1, 10.4, and 20.4. An excellent study on natural law and the confession is topic is Benjamin B. Saunders, “Hidden in Plain Sight: Natural Law and the Westminster Confession of Faith,” Westminster Theological Journal 82, (no. 2, 2022): 177–202.
[5] Westminster Confession, 23.3.
[6] Ibid, 23.3 and 31.2.
[7] Ibid, 23.3.
[8] John Calvin, Commentary on Genesis, 2:18; Calvin, Institutes, 2.2.13.
[9] Franciscus Junius, The Mosaic Polity, trans Todd M. Rester (CLP Academic, 2015), Thesis 4.
[10] Ibid, Thesis 2.
[11] Ibid, Thesis 4.
[12] Ibid, Thesis 7.
[13] The only possible qualification is in Thesis 4, where Junius notes that the Fall altered mode of human participation in the eternal law through the natural law. Junius argues that the natural law was a more direct communication of the eternal law in the prelapsarian state. Sin has altered this and marred our participation in the eternal law through the natural law. It is, therefore, possible that Junius held that civil law would not have been necessary in the prelapsarian state. But this seems unlikely, given his proceeding argument.
[14] Citations will be from Girolamo Zanchi, On the Law in General, trans. Jeffrey J. Veenstra (CLP Academic, 2012).
[15] Ibid, Chapter 2, Thesis 7.
[16] Ibid.
[17] Ibid, 3:2.
[18] Ibid, 3:6.
[19] Johannes Althusius, Politica, trans. Frederick Carney (Liberty Fund, 1995), chapter 9, section 21.
[20] Ibid, 1:32–34.
[21] Ibid, 1:1–4.
[22] Cf. more generally Simon P. Kennedy, Reforming the Law of Nature: The Secularisation of Political Thought, 1532–1689 (Edinburgh University Press, 2022).
[23] Althusius, Politica, 1:1.
[24] Ibid, 1:26 & 1:33.
[25] Ibid, 9:28–45.
[26] See, for example, Ian Hunter, The Secularisation of the Confessional State: The Political Thought of Christian Thomasius (Cambridge University Press, 2007) and
[27] Cf. Kennedy, Reforming the Law of Nature.
Continuity or Discontinuity in the Christian Moral Tradition? The Magisterial Protestant Reformers on the Natural Law
J. Daryl Charles
Contemporary Protestants, who otherwise have much in dispute, share common ground in their general opposition to natural law thinking. This opposition, moreover, encompasses both revisionist and orthodox thinkers and has been with us for several generations. Across Protestantism one can find a broad consensus that rejects the natural law as a metaphysical reality through which God reveals himself to all, apart from special revelation and applying to everyone, at all times, and in all places.
Among more theologically orthodox Protestants, this opposition arises from a cluster of related—and perhaps understandable—concerns. They worry
· that natural law thinking fails to take seriously the condition of human sinfulness;
· that misguided trust is placed in the powers of human reason, which has been debilitated by the fall;
· that the ethical norms as mirrored in the OT and NT, as well as the means of fulfilling these norms, are distinct;
· that natural thinking is insufficiently Christocentric and grace-centered;
· and that natural law is therefore autonomous to the center of biblical ethics.
When not long ago, in the context of a discussion of faith and culture and moral law, I suggested to a Presbyterian (PCA) pastor the place of natural law ethics as a means to establish common ground with unbelievers, this pastor seemed blindsided, unable either to affirm the place of natural law thinking in the historic Christian tradition or to acknowledge the propriety of arguing on the basis of human nature and human design.
Happily, there are signs in more recent years that Protestants are beginning to rethink their understanding of the natural law. Perhaps the collapse of moral norms here in the West is a significant factor in this development. For me, that rethinking occurred while I was doing public-policy work in criminal justice in Washington, DC, before entering the university classroom full-time. During this season of life I was led to ask, Why does one find such vehement opposition to natural law thinking especially among very influential theologians—for example, Karl Barth, Helmut Thielicke, Paul Lehmann, Jacque Ellul, John Howard Yoder, and Stanley Hauerwas (to name but a few)? In examining the writings of the magisterial Protestant Reformers of the 16th century, I discovered that they do not share the opposition to or neglect of natural law characteristic of late-modern Protestants. Although it is true that they championed a particular understanding of grace, faith, and justification that took issue with their Roman Catholic counterparts, they maintained continuity with the wider Christian moral tradition as to the natural law and the moral revelation of the created order. The 16th-century Reformation controversies were foremost soteriological and ecclesiological, not ethical.
To the surprise of some, Luther, Calvin, and company affirmed the natural law, though it was not a major focus of their writings. Indeed, most of the magisterial reformers do not develop natural law analysis in any sort of systematic way, but simply take it for granted. One exception to that abstention from systemic development of natural law thinking is Philip Melanchthon, Martin Luther’s university colleague at Wittenberg, about whom I’ll have more to say.
Let us begin with Luther, in whose theological framework natural law thinking is firmly ensconced. In his writings Luther describes the innate awareness of right and wrong behavior in two ways. He speaks both of Naturrecht (“natural justice”) and natürliches Recht (“natural law”), and has this to say about the latter:
“Thou shalt not kill, commit adultery, steal, etc.” are not Mosaic laws only, but also the natural law [natürliches Recht] written on each man’s heart, as St. Paul teaches (Rom. 2). Also Christ himself (Matt. 7) includes all of the law and the prophets in this natural law.[2]
Referring to the awareness of the so-called “Golden Rule” in all people, Luther writes, “By nature they judge that one should do to others what one wants done to oneself.” Luther is well aware of the misperception among the religiously-minded that the natural law is the common fund of only Christian societies. To the contrary, he insists, it is demonstrated by human experience that all nations, cultures, and people-groups possess this rudimentary knowledge. The natural law, he insists, “is written in the depth of the heart and cannot be erased.”[3] It, therefore, exists as a common moral standard among non-Christian people-groups; Luther writes: “Natural law is a practical first principle in the sphere of morality; it forbids evil and commands good . . . The basis of natural law is God, who has created this light, but the basis of positive law is civil authority.”[4]
In his 1525 treatise How Christians Should Regard Moses, Luther distinguishes between the law of Moses, with its historically conditioned components and stipulations for theocratic Israel, and the natural law. “If the Ten Commandments are to be regarded as Moses’ law, then Moses came too late,” Luther quips somewhat wryly, because “Moses agrees exactly with nature” and “what Moses commands is nothing new.”[5] What’s more, Luther adds,
then Moses . . . also addressed himself to far too few people, because the Ten Commandments had spread over the whole world not only before Moses but even before Abraham and all the patriarchs. For even if a Moses had never appeared and Abraham had never been born, the Ten Commandments would have had to rule in all men from the very beginning, as they indeed did and still do.[6]
The law that stands behind the Ten Commandments, Luther notes emphatically, was in force prior to Moses, from the beginning of the world, and also among all the Gentiles. So far as the Ten Commandments are concerned, “there is no difference between Jews and Gentiles.”[7]
Luther allows little room for misunderstanding: “We will regard Moses as a teacher, but we will not regard him as our lawgiver—unless he agrees with both the New Testament and the natural law.”[8] And: “Where . . . the Mosaic law and the natural law are one, there the law remains and is not abrogated externally.” By contrast, those aspects of the Mosaic code that were temporal and confined to theocratic Israel are “null and void” and “not supported by the natural law.”[9]
In his treatise on temporal authority, Luther deliberates over particular situations that require Christians to participate intelligibly with non-Christians in the public sphere. Two such potential situations are the unlawful seizure of private property and resolving financial debts. Luther exhorts his readers to use both “the law of love” and “the natural law.” However, when charity has no observable effect, the latter is to be our guide, since natural law is that “with which all reason is filled.”[10] And where the two parties are not Christians, “then you may have them call in some other judge, and tell the obstinate one that they are acting contrary to God and natural law.”[11]
It should be emphasized that Luther is perfectly content to allow faith or revelation and the natural law to stand side by side. The natural law was presumed to be at work in all people and thus to be lodged at the core of Christian social ethics. Were this not the case, Luther reasons, one would have to teach and practice the law for a long time before it became the concern of conscience.
Philip Melanchthon, Luther’s colleague at the University of Wittenberg, is in many ways the “quiet reformer”[12]—even the “forgotten reformer,” given how he tends to be overlooked in most discussions of the magisterial reformers, disappearing in Luther’s shadow. This is most unfortunate, since Melanchthon was “the chief teacher and instructor, the scholarly publicist, and the theological diplomat” of the Lutheran Reformation.[13] He wrote the very first Protestant systematic theology, 51 editions of which were published during his lifetime. And during his lifetime, not posthumously, he had earned the reputation Praeceptor Germaniae, “The Teacher of Germany.”
Melanchthon understands natural law in much the same way as Luther. And he devoted more attention to law and moral philosophy than any other Protestant reformer. There are several reasons for this. First, such focus was part of his integrated thinking as a true “Renaissance man” devoted to the liberal arts. Second, as “the ethicist of the Protestant Reformation,”[14] he saw the need to keep theology and philosophy wed; and on this score, not Luther but Melanchthon had it right.[15] In addition, he constantly wrestled with finding a middle way between the poles of antinomianism (or law-denying, as found among the “radicals” and the Anabaptists, for example) on the one hand and works righteousness on the other. The events of the 1520s and 1530s—for example, the peasant uprisings and the radical Anabaptist experiment in the north-central German city of Münster to establish the “New Jerusalem” by force—well illustrated for Melanchthon the tragedy of a “lawless” view of Christian faith. Melanchthon worried much throughout his career about antinomian tendencies that often accompanied new outbreaks of religious enthusiasm. Melanchthon’s response, similar to that of Luther, was that both law and gospel continually need to be preached. Law is not only a necessary preamble to the gospel of Christ by awakening within human beings the reality of human fallenness, but it also furnishes the foundation for true piety and virtue, that is, the moral life.
Melanchthon joins Luther as well as Calvin in distinguishing between three types of law—ceremonial, judicial, and moral. Concerning moral law, all three reformers insist that the two former types have passed away while the latter, as the Decalogue illustrates, is abiding.[16] Melanchthon’s defense of the natural law proceeds from his reading of Romans 2:15—awareness of the natural law has been “grafted into the nature of man,” thereby mirroring the image of God.[17] His understanding of natural law is shaped by two theological premises. One is his understanding of human beings created in the image of God. Hence, humans possess “the natural knowledge of God and of the governance of our conduct”—an awareness that has been “grafted into the nature of man” as part of “the likeness of God.” A second premise is that natural law has a pedagogical role in society. That is, moral law both serves as a restraint, thereby having a civil function, and it guides, protects, and assists us in cultivating virtue; thus, it functions internally and externally. A feature unique to Melanchthon among the reformers is his development of the three purposes of natural law for civil use and criminal justice: it is retributive, deterrent, and rehabilitative in its character and function.[18]
Given the emphasis in Calvin’s theological system on divine sovereignty and human depravity, one might assume that the reformer would have a dim view of natural law, yet he acknowledges the argument of St. Paul, that the Gentiles “show the work of the law written on their hearts” (Rom. 2:15). Calvin’s description of natural law agrees with that of Luther and Melanchthon: “the very same things that are to be learned from the Two Tables [of the Ten Commandments]” are “written, even engraved, upon the hearts of all.”[19] In Calvin’s understanding, the activity and moral insights of conscience represent the mode and language by which the natural law is operative in the human person. An unchangeable “rule for the right conduct of life,” the natural law for Calvin is the “apprehension of the conscience” and thus a common law among all people.[20]
Calvin shares the Thomistic assumption that the human person is “by nature a social animal,” and because of this anthropological reality, human beings are disposed “through natural instinct to foster and preserve society.” The consequence is that “every sort of human organization must be regulated by laws,” without which there would be no civil order.[21] Since the “seeds” of just laws (his words) “have been implanted in all men,” they are unchanging despite the vicissitudes of life. Neither war nor catastrophe nor theft nor human disagreement can alter these moral intuitions since nothing can “nullify the original conception of equity” that is implanted within.[22]
We noted the element of human depravity for which Calvin is well known. How corrupt is the human heart? Thoroughly. Is there any realm that has gone untouched by human fallenness? Emphatically not. But to acknowledge the pervasiveness of our fallen nature is not to obliterate the rudimentary moral sense in each person: Calvin writes:
When men grasp the conception of things with the mind and the understanding they are said “to know” . . . In like manner, when men have an awareness of divine judgment adjoined to them as a witness which does not let them hide their sins but arraigns them as guilty before the judgment seat—this awareness is called “conscience.”[23]
This inner awareness, notes Calvin, “pursues” the person to the point of “making him acknowledge his guilt.” This, he observes, agrees with St. Paul’s teaching in Romans 2, namely that “their thoughts accuse or excuse them in God’s judgment.”[24]
Among the Swiss reformers, both the restraining as well as the directing functions of natural law are presupposed. Additionally, the threefold use of the law—ceremonial, judicial, and moral—for which the Protestant reformers are well known finds a supplemental use in the Swiss Reformational emphasis on covenant and is imported into the judicial realm. Covenant not only provides a theological basis for understanding divine work in history, but conjoined to natural law it furnishes the basis for communal and civil obligations that are thought to be binding on all people and societies.
In the thought of Huldrich Zwingli (1484–1531), the natural law serves as a bulwark and primary vehicle by which to resist injustice and political oppression. Zwingli is in agreement with other reformers that all human laws should conform to the natural law, which has been implanted in the hearts of all people, but he goes beyond Luther in asserting that the natural law is the equivalent of “true religion, . . . the knowledge, worship, and fear of the supreme deity.”[25] In contrast to the Lutheran position and in keeping with the Swiss Reformational distinctive, Zwingli believes that due to the imperfection of reason, only those rulers and magistrates who are God-fearers properly know natural law.
Heinrich Bullinger (1504–1575), perhaps best known for his role in drafting the Second Helvetic Confession of 1566, in even more pronounced ways affirmed the “law of nature” as “an instruction of the conscience, and as it were, a certain direction placed by God himself in the minds and hearts of men, to teach them what they have to do and what to eschew.”[26] Have moral norms—and thus the requirements of human societies—changed at all in the period of the New Covenant? Bullinger answers emphatically in the negative. We are still to regard basic moral truth, respect parents, live out the Golden Rule, and keep the Ten Commandments, for the natural law reminds us that there exists an objective moral order in which human laws are said to inhere. The moral law is that which teaches men right conduct and sets down the nature of virtue. What distinguishes Bullinger from Zwingli is his ability to avoid the theocratic tendency, even when both share a high view of the magistrate. For Bullinger, oversight of the Church and the authority of the state (Romans 13) are not to be conflated.
In conclusion, the contention of one notable Roman Catholic theologian that “the sixteenth-century Protestant Reform championed grace and faith to the practical exclusion of all other instruments of divine agency” [27] is shown quite simply to be false. The magisterial reformers uniformly affirmed the role of general revelation and the natural law, even when the accent of their teaching was faith and grace. They were one with their Catholic counterparts in the conviction that Christian social ethics presupposes—and stands on—the bedrock of the natural law.
Permit me to affirm the significance of a sturdy theology of creation. Properly understood, natural theology is anchored in divine creation and our design; it is both a theological and philosophical notion. General revelation is not “autonomous”; it, too, is grace from the Creator. Special revelation and general revelation do not stand in opposition. Therefore, natural law serves as a bridge between believer and non-believer. Why? Because there exists a shared human nature.
It has been said that every generation finds a new reason to rediscover the natural law. Often that happens as a result of global disruption or socio-cultural upheaval. Perhaps in the present hour we stand in need of rediscovering the foundations of law, politics, and civil society in light of the collapse of moral foundations around us. Natural law ethics can help us. Those foundations are pre-political and pre-legal; they are intuited, in St. Paul’s words, through the law “written on the heart.” Theologically, ethically, and apologetically then, natural law needs to be a part of our repertoire as we seek to interact—faithfully and creatively—with persons in the surrounding culture.
[1] J. Daryl Charles, PhD, is a 2024/25 visiting Elshtain fellow, Institute on Religion and Democracy, as well as a senior fellow of the Center for Religion, Culture and Democracy, and serves as a contributing editor of Touchstone and Providence: A Journal of Christianity and American Foreign Policy. He is the author of twenty-three books, including, most recently, The Idea and Importance of Natural Law: Fifty Questions and Answers (Stone Tower Press, 2025), Our Secular Vocation: Rethinking the Church’s Calling to the Marketplace (B & H Academic, 2023), and (with Eric Patterson), Just War and Christian Traditions (University of Notre Dame Press, 2022).
[2] Against the Heavenly Prophets, Luther’s Works [hereafter L.W.], vol. 40, ed. Conrad Bergendorf (Philadelphia: Fortress Press, 1955), 97.
[3] Ibid.
[4] “Table Talk no. 3911: Difference between Natural and Positive Law,” in L.W., vol. 54, ed. T.G. Tappert (Philadelphia: Fortress Press, 1967), 293.
[5] How Christians Should Regard Moses, in L.W., vol. 35, ed. Theodore Bachmann (Philadelphia: Muhlenberg Press, 1960), 168.
[6] Against the Sabbatarians, L.W., vol. 47, ed. Franklin Sherman (Philadelphia: Fortress Press, 1971), 89.
[7] Ibid., p. 94.
[8] Luther, How Christians Should Regard Moses, supra n. 5, 165.
[9] Luther, Against the Heavenly Prophets, supra n. 6, 97.
[10] Martin Luther, Temporal Authority: To What Extent It Should Be Obeyed, in L.W., vol. 45, ed. Walther I. Brandt (Philadelphia: Muhlenberg Press, 1962), 128.
[11] Ibid., 127.
[12] Clyde Leonard Manschreck, Melanchthon: The Quiet Reformer (New York and Nashville: Abingdon, 1958).
[13] Robert Stupperich, Melanchthon, trans. R.H. Fischer (Philadelphia: Westminster Press, 1965), 151.
[14] The German historian Wilhelm Dilthey, Gesammelte Schriften, vol. 21:193, is cited as the source of this depiction of Melanchthon by John Witte, Jr., Law and Protestantism (Cambridge: Cambridge University Press, 2002), 122.
[15] Luther’s view of Aristotle is mixed. On the one hand, in his earlier writings Luther is quite critical—as mirrored in his well-known statement that Aristotelian thinking is to theology as darkness is to light (thesis no. 50 in his 1517 Disputation Against Scholastic Theology)—and yet, doubtless as a consequence of Melanchthon’s teaching Aristotle at the University of Wittenberg, Luther was able to express a level of appreciation for the philosopher.
[16] Melanchthon’s discussion of law and the natural law are found chiefly in Locus 6 of his magisterial work Loci Communes.
[17] Melanchthon, Loci Communes, Locus 6, 70. I am dependent on the 1543 edition of LC, translated by J.A.O. Preus and published in 1992 by Concordia Publishing House.
[18] Hereon see John Witte, Jr., and Thomas C. Arthur, “The Three Uses of the Law: A Protestant Source of the Purposes of Criminal Punishment?” Journal of Law and Religion 10, no. 2 (1993/4): 433–65.
[19] Institutes of the Christian Religion 2.8.1. Where I am citing Calvin, I am reliant on the translation of Institutes found in the LCC series, vols. 20 and 21, ed. John T. McNeill and trans. Ford Lewis Battles (Philadelphia: Westminster Press, 1960).
[20] Ibid. 2.2.22; cf. 4.10.3–4.
[21] Ibid. 2.2.13.
[22] Ibid.
[23] Ibid. 4.10.3.
[24] Ibid.
[25] Zwinglis sämtliche Werke, ed. Melchior Schuler and Johann Schulthess (Zürich: Schulthess, 1828–1842), 4.243 (my translation).
[26] The English translation is drawn from sermons of Bullinger collected and edited by Thomas Harding. See The Decades of Heinrich Bullinger (4 vols.; Cambridge: The Parker Society, 1849) 2.194 (sermon 1).
[27] Romanus Cessario, Introduction to Moral Theology (Washington, DC: Catholic University of America Press, 2001), 69 (emphasis added).
Eternal Law, Revealed Law, and ‘Natural’ Law: Grasping the ‘Natural’ on the Margins of Creation
Thomas A. Price, DPhil Oxon.
I. Theological Ethics and Natural Law
Natural law approaches have been fashionably on the increase in the field of theological ethics over the past few decades after a significant time of being ‘on holiday.’ During their ‘long vacation,’ figures such as Karl Barth and Stanley Hauerwas among others (especially in the modern Protestant and Reformed worlds) had hoped that such approaches would have not merely gone on a long holiday but rather on a ‘permanent vacation.’ Many Christian ethicists today, especially in the Reformed world, agree with Barth and others about rejecting natural law approaches, doing so for a wide variety of theological reasons. They have no interest in finding a place for such approaches to moral life at all, as they deem them simply unable to address substantively the moral complexities of late modernity in a robustly Christian way.
Further complicating the matter is that natural law comes in a host of varieties, in some cases incommensurable with each other. Whilst such varieties might in some sense derive from a shared tradition of natural law, such a tradition itself, like all intellectual traditions, is ‘long, rich, varied, and subtle.’[1] Within this span of richness, variety, and subtlety, there is no one approach or set of definitive characteristics that represent everything that goes under the name of natural law.[2] Furthermore, natural law approaches take on differing shapes and contours as they are remapped to address the contextual challenges within which each sets out to make its contribution. This variety only adds to what is often seen as ‘the ambiguities and problematics of the natural law tradition’.[3]
I will not pursue here the encyclopedic endeavor of detailing the variety among the natural law claimants. My aim is more modest. I show, first, that many of the criticisms made by theologians about modern natural law thinking are well founded. ‘In the modern era,’ notes Russell Hittinger, ‘the theology of natural law was moved to the periphery and was usually eclipsed altogether.’[4] Unmooring natural law thinking from its biblical and theological roots and embedding it within the metaphysical assumptions of modernity has radically recast its fundamental character. Its heavy investment in the modern conceptual world with its secular reasoning is theologically problematic. Especially problematic is the notion of ‘natural’ which is severed from the classical metaphysics of creation and recast into a quasi-autonomous tier that is assumed to be independent of God and self-standing. Theological ethics properly rejects natural law thinking invested in such radically altered notions of the natural.
But my second aim in this essay is to show that classic natural law approaches are not guilty of the modern errors mentioned above, nor guilty of other errors for which many Barthians and some Reformed have indicted them. Indeed, classic natural law approaches incorporate well into a comprehensive moral theology because they are biblically and theologically embedded and richly anchored in a Christian metaphysics of creation. The ‘nature’ and ‘the natural’ in classical understandings are not about ‘independent’ self-standing realities autonomously grasped, but are fundamentally about creatures dependent upon and directed by God in deeply participatory ways. Such a ‘participatory theonomy’ is basic to natural law ethics and worthy of retrieval today. Particularly so because it allows human reasoning (and imagination) to grasp truth about creaturely natures and purposes. Such truth contributes to a comprehensive vision of the Christian moral life, discerning how divine wisdom displays itself within the created and moral order. Hence, there is a place for classic natural law reasoning in a comprehensive moral theology and its contributions should be embraced by theological ethicists.
I. The Background Problematic of Modern Variations of Natural Law
Natural law thinking morphed into problematic variations after it began reconceiving itself within the thought paradigms that took root in the fourteenth century. For our purposes here, three fundamental alterations are worth mentioning, along with their ramifications. These three alterations set the groundwork for a radically creature-centric and anthropocentric vision unmoored from the theocentric vision which preceded them. First, there was a shift towards a radical theological voluntarism. Second, there was a domestication of divine transcendence: from an understanding of the Creator/creature relationship which was analogous in character instead to one that was now univocally conceived. Thereby both God’s being and creaturely being were understood within the same ontological index. Third, metaphysical nominalism replaced a theologically underpinned realism, leading to a conception of creatures and nature as fundamentally self-standing and autonomous.[5]
The shifts toward voluntarism and metaphysical nominalism that took hold in Western theology around the fourteenth century shattered the former consensus. The radical theological voluntarism was a step backwards for Christianity, positing a view of divine transcendence more akin to pagan notions than Christian. God here was viewed as transcendent in a quantitative rather than a qualitative way. Divine being and creaturely being were therefore placed on the same plane of being, with God merely at the top of this plane in terms of power and agency. Here God is not infinite existence itself as classical theology understood the divine, but is viewed as one more kind of being that may or may not be. He thus is no longer the transcendent source of being encompassing everything. Most problematically, it radicalized divine will and pitted it over against the other attributes of God so that divine wisdom and goodness were understood as instruments of the will rather than the will being an expression of the full divine nature and wisdom. God here was viewed as absolute will whose sovereignty is deemed preserved only if it is not constrained by other aspects of His nature, like divine wisdom and goodness. Ripped from the divine will was divine reason. Ripped from the creation was its participation in forms of divine reason known by the two forms of divine illumination: one discerned in the intelligibilities in-forming the created order, and the other discerned in the primary revelation of Holy Scripture. Reason and Revelation after this shift are pitted against each other rather than the former purified and perfected by the latter.
The result of this shift spawned a revolution in the West which continues to upend the riches of the Christian past, radically redefining God, humanity, nature, history, reason and logic, language and reality, morality and law, and all else. This shift too created the conditions for the contradictions, conflicts, and incoherences of the visions of human being and purpose that make up our contemporary world.
Nominalism was the metaphysical result of this shift that cut the cord of intelligible creation as teleologically ordered. Creation was no longer the result of divine wisdom at the core of God’s willing but was seen as the imposition of form ungoverned by anything other than arbitrary divine choice. Consequently, creation becomes understood as radically individual. Whatever similarities we might find from one creature to the next, even from one human to the next, these are not grounded in the nature of a reality analogous to divine wisdom. Also because of this shift, our language is redefined. It no longer refers to universal natures intelligibly formed and sustained by God, but becomes a subjective way of generalizing things, a mere convention or fashion. In this shift, no ‘natural’ norms or laws can encompass radically individual things. Each individual human, for example, does not share in a common human nature with a common teleology. So no ‘norms’ or ‘laws’ which pertain to humans in general could ever be more than mental constructs.
This radical shift also entailed that God, humans, nature, and history are considered and distinguished within the same matrix of being. At the root of the modern world is a competition for who or what shall have primacy. Note the disharmony. God’s being and action, now on a shared plane with everything else, does not occur in a realm wholly transcendent and thus immanent to all things, supplying being and form and direction even as it allows creation to unfold in accord with its endowment. It instead occurs on the same order, being distinguished by its relative power. This deity thus needs cooperation for its will to be done. This deity too can be hindered by creaturely opposition because this god, however powerful, is not the only agent on the playing field. This conflictual order between divinity, humanity, nature, and history sets the agenda for the various proposals that make up the modern project.
The path to modernity can be seen as a host of conflicts and struggles over which competing participant within reality would be central to it. The debates between the Renaissance Humanists and certain Reformation and Catholic theologies were often struggles over whether the will of God or of individual humans are at center stage. Once that contest failed to resolve itself, it splintered into contradictory anthropologies. One emerging theme was to make ‘nature’ the dominant center to which God and humanity had to be understood in relation, a proposal inconceivable to the earlier Christian consensus. But the new model viewed the creaturely and natural as autonomous, self-standing, individual, and secular—i.e., with its own this-worldly ends. Nature becomes increasingly understood as ‘a center of properties and source of activity strictly delimited and enclosed within its own’ mundane order. Louis Duprè sums up the history and result:
At the end of the Middle Ages . . . nominalist theology effectively removed God from creation. Ineffable in being and inscrutable in his designs, God withdrew from the original synthesis altogether. The divine became relegated to a supernatural sphere separate from nature, with which it retained no more than causal, external link. This removal of transcendence fundamentally affected the conveyance of meaning. Whereas previously meaning had been established in the very act of creation by a wise God, it now fell upon the human mind to interpret a cosmos, the structure of which had ceased to be given as intelligible. Instead of being an integral part of the cosmos, the person became its source of meaning. Mental life separated from cosmic being: as meaning-giving ‘subject,’ the mind became the spiritual substratum of all reality. Only what it objectively constituted would count as real. Thus reality split into two separate spheres: that of mind, which contained all intellectual determinations, and that of all other being, which received them.[6]
As a result of these fundamental alterations, the biblical and theological vision that originally underpinned natural law ‘was moved to the periphery and was usually eclipsed altogether.’[7] Thus, as Russel Hittinger notes, ‘the epistemological and natural foci became architectonic.’[8] Increasingly, the epistemological posited an ‘autonomous reason’ grounded in the thinking or experiencing human self as the ‘foundation’ of knowledge and the ‘natural’ was understood as ‘autonomous, individual, self-standing- and dominated by merely this-worldly ends. Natural law, therefore, if it was appealed to at all, was now one more doctrine being fundamentally altered and redefined.
The varieties of modern natural law theories that resulted from the shifted theology and metaphysics of the West are largely marked by the egocentric or anthropocentric turn that the shifts eventually produced. Here, the anthropological emphasis is read within a material order largely defined by secular, this worldly-ends. Even within strands of Neo-Thomist natural law theory, where classic divinity is assumed and the supernatural is affirmed, there is an altered understanding of nature and human nature as pure, relatively autonomous, and self-standing enough to posit a reserve of territory buffered from the supernatural.
Late medieval and early modern natural law approaches remapped themselves within the anthropocentric turn. Although there were a wide variety of approaches to natural law that developed within this remapping, they shared this fundamental alteration. Duprè sums up a much more narrow and constricted vision of the doctrine:
Once the human self becomes detached from its cosmic and transcendent moorings, the good can hardly be more than what Hobbes calls it: ‘the object of any man’s appetite or desire’....What previously had given meaning to human life precisely because it surpassed individual aspirations, now came to be conceived in terms of personal need or fulfillment. Isolated from the totality from which it drew its very content, the self had nowhere to turn but to itself.[9]
This could only happen when the new starting point of the natural human was reconceived within a territory independent from God, now called the ‘state of nature’ (the secular substitute of the story of Genesis). What developed was a notion that human reason, nature, meaning, and purpose were all ‘pure’; that is, self-standing items which did not depend on a higher reality to make them intelligible and meaningful. They were ‘solid’ realities such that they could ground and supply everything necessary for their flourishing and fulfillment individually, socially, politically. One’s own natural and rational endowments, directed by one’s appetites and will, become a sufficient authority replacing the divine wisdom economy of classic natural law theory.
II. Classical Christian Natural Law: Reconsiderations and Retrieval
Natural law approaches that are indebted to the legacy of radical voluntarism and metaphysical nominalism are incompatible with Christian theological ethics. Radical autonomy and voluntarism at their core are not only incoherent and heretical but lead us into moral chaos and even destruction. Reinhard Hütter put it thus:
After Kant, Fichte, and Nietzsche on the one hand and Marx, Darwin, and Freud on the other, we find ourselves as late moderns caught between a manic-depressive roller-coaster ride between the ghost of the Promethean daydream of freedom, by now turned desperate and therefore dreaming of auto creativity—that is, of designing our own bodies, choosing our own gender, our values, and our destinies freely according to our idiosyncratic likings and longing—and the Hades-like nightmare of endless victimization by ‘the system’—by anonymous economic, political, and cultural power structures, by our own genetic makeup, and by the will to power of everyone around us.[10]
The problems we discern in the modern forms of natural law, whether secular reworkings of natural law within the modern metaphysical constrictions (Descartes, Hobbes, Kant, and Hegel are examples) or religious variations expressed within the conditions set by the shifts we noted earlier (Scotus, Ockham, Baroque Scholastics, two-tier Thomism, some Reformers), were not present in classical Christian natural law proposals or others indebted to classical Christian theology, even when developed after the voluntarist turn.[11]
Classical Christian approaches to natural law were first anchored in biblical exegesis and theology proper. Scriptural reasoning supplies the groundwork from which Christian theological reflection unpacked classical notions of natural law. Take, for example, the theological setting of natural law in the 12th and 13th centuries, as Jean Porter has expounded.[12] At the center of natural law reflection during this time, the central source of unpacking its nature and meaning was the Ordinary Gloss, that is, running commentaries on Holy Scripture compiled over generations. Immersed in biblical exegesis and reasoning, such thinking supplied the authoritative reality-vision which incubated robust thinking on natural law as a theological ethics with a universal applicability. At the heart of this reality-vision were the biblical doctrines of the Trinity and Incarnation. From these biblical teachings sprouted a notion of ontological transcendence that radically altered the existing Hellenic and Hebraic understandings, however much it borrowed grammar from each. This ontological transcendence illumined the metaphysical implications of the biblical doctrine of creation.
From this grounding, the universality of natural law thinking, its appeal to the creaturely endowments of reason and intuition and innate sense, was anchored in theology proper. This provided an economy of illumination from within a sapiential context, whereby all sound reasoning is a creaturely participation in divine wisdom. The very exercise of natural law reasoning represents a human reflection on the divine image, and it provided, as Porter notes, both a benchmark for identifying human sin and a basis for human restoration.[13]
In contrast to some modern natural law approaches, which appeal to unaided reason as the ground of illumination of the natural law, classical natural lawyers were reliant on the divine revelatory economy and therefore authoritative texts. Supremely authoritative was Holy Scripture in the context of the Church’s history of engaging that text as divine revelation. There was also a range of lesser but still significant authorities. Various teachers of the Church as well as some non-Christian sources were deemed sound contributors understanding creaturely life and moral wisdom. In all cases, the human mind and its grasping of the moral law is not first in the causal order. Nor is the moral law in nature first in the causal order. Of the three foci that make up natural law discourse classically (the natural law grasped by the human mind, the law in nature, and the Eternal law in the mind of God) only the Eternal law in the mind of God has causal precedence in the order of knowing as well as in the order of being. Aquinas, for example, ‘defines the law from the standpoint of its cause origin (in God), not in terms of a secondary order of causality through which it is discovered (the human intellect).’[14] Here, natural law is nothing other than sharing in the eternal law by intelligent creatures. The eternal law illumines ‘the rational order of creation in the divine mind which human reason then participates in and mediates through acts of the will and through particular actions.’[15] To be sure, because of human sinfulness this illumination is eclipsed, distorted, and of limited value on its own. But divine law was given as a remedial aid for that condition, and ‘also as a new form of participation in the eternal law.’[16] It is a revelation of God’s governing of all things, including the arena of moral matters. Finally, in Christ ‘the light of grace’ heals and ‘illumines the created intellect such that the creature’ becomes conformed to the eternal law in the deepest way a creature can participate in it.[17] The new law of Christ supplies the greatest participation in the eternal law because He is One with it in His divinity. This ‘theonomous participation’ allows our fallen minds back into the light that illumines all things and allows even our human reasonings to grasp again the inherent meaning and order stamped on the creation by its participation in the Eternal Logos. This, at least, is how the Anglican divine Richard Hooker explicated the classic doctrine.
III. Concluding Reflections
My modest aim in this essay was to show that Karl Barth and other Reformed critics of natural law were often on target in their criticisms of certain strands of natural law thinking. For example, they correctly challenged the anthropocentrism of many modern approaches. They also rejected the radical autonomy that undergirded their understanding of human reason or experience. As I noted, these free-standing elements owed their conceptual roots to the shifts in theology and metaphysics beginning in the 14th Century. Most radical was the development of a notion of nature as self-standing and able to ground and explain itself. This hyper-focus on autonomy led, furthermore, to an embrace of wholly this-wordly ends as of chief significance in the moral life. Each of these modern emphases are fundamentally at odds with classical Christianity and natural law.
Theological ethics today would be enriched by retrieving the wealth and wisdom of classical approaches. These approaches stand in contrast to the nihilism and radical voluntarism of our contemporary world, and have much to offer by way of Christian counter and alternative. Christian ethics today should be involved in retrieving their riches. This retrieval would include several key elements: a thorough immersion in the biblical reasoning that gave rise to Christian natural law; a deep investment in the doctrines of the Trinity and Incarnation which supplied classical visions of transcendence and metaphysics; and a renewed attention to Christian thinkers such as Tertullian, Gregory of Nyssa, Augustine, Aquinas, Calvin, and Hooker. After exposure to such riches, one may see that the Barthian and Reformed criticism of natural law does not apply to the classical visions. And furthermore, one would begin to see, I would hope, the much richer offering in the classical approaches than the voluntarism some today offer as the Christian alternative.
[1] David Bentley Hart, Is, Ought, and Nature’s Laws in First Things. March 2013.
[2] Bruce Baugus, The Roots of Reformed Moral Theology. (Grand Rapids: Reformed Heritage Books, 2022).
[3] Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Grand Rapis: Wm. Eerdmans, 2005), 45.
[4] Russel Hittinger, Natural Law and Catholic Moral Theology in A Preserving Grace: Protestants, Catholics, and Natural Law, ed. Michael Cromartie (Grand Rapids: Wm. Eerdmans, 1997), 9.
[5] This history of these shifts and their significance for modern understanding and culture has been told many times. Here three works are helpful in tracing out the core lines of theses shifts, even if some of their details are not as precise as they could be, or accurate on every detail. See Louis Duprè, Passage to Modernity: An Essay in the Hermeneutics of Nature and Culture (Yale University Press, 1993), Michael Gillespie, The Theological Origins of Modernity (University of Chicago Press, 2008), and Nihilism before Nietzsche (University of Chicago Press, 1994). Each of these sources, as well as many of the interpretations of modernity which note this break and shift, are in many parts on track, but they often sell a vision in which Protestant theology was the product of and exemplification of the breakdown of the Classic Christian theological and metaphysical vision, embracing and contributing to the radical views of transcendence, voluntarism, and nominalism which characterized this fundamental break (known as the via moderna). The history is far more complex than this. But good historical and retrieval work has shown that neither the first generation nor their scholastic Protestant heirs embraced the via moderna of this sort. Rather they show a large-scale commitment to embracing, retrieving, and developing more richly the Classical Christian vision and its participatory view of creation and redemption. Further, they largely assumed and affirmed the rich analogy of being which defined the classical Christian vison. For a critique of those narratives of modernity which label Protestant theology nominalist and radically voluntarist see Seth Jacob Snyder, Protestant Nominalism: An Analysis of Post-Reformation (1555-1662 Protestant Philosophical Theology (Unpublished Doctoral Dissertation, University of Cambridge, UK 2023).
[6] Dupré, Passage to Modernity, supra n. 2, at 3.
[7] Hittinger, Natural Law and Catholic Moral Theology, supra n. 4, at 9.
[8] Ibid.
[9] Ibid., 143.
[10] Reinhard Hütter, Bound to be Free: Evangelical Catholic Engagements in Ecclesiology, Ethics, and Ecumenism. (Grand Rapids: Wm. Eerdmans, 2004) p. 123.
[11] My point here is not that moral theologians should avoid learning from any of these approaches, however constricted they are due to their theological and metaphysical limits (or even problems). Critical engagement is the key. Also, not all natural-law approaches indebted to the voluntarist and nominalist shifts are problematic to the same degree or in the same way. Neo-Thomism retains much more classical Christian insight than Hobbesian ‘state of nature,’ and so will have to take that into its consideration and engagement.
[12] Jean Porter, Nature as Reason: A Thomistic Theory of Natural Law. (Grand Rapids: Wm. Eerdmans, 2005), pp. 7-24.
[13] Ibid., 16.
[14] Hittinger, Natural Law and Catholic Moral Theology, supra n. 4, p. 6.
[15] Paul Dominiak, Richard Hooker: The Architecture of Participation (London: T&T Clark, 2020), p. 40.
[16] Ibid.
[17] Ibid.
The Mountain and the Plain: Prolegomenon to a Physics of Genesis
Peter Leithart
Biblical topography implies a metaphysics and a politics. God dwells on the high places – Eden, Sinai, Zion, the high mountain of Ezekiel and John, the mountain of Jesus’ sermon. On the mountain, the Lord reveals heavenly patterns in word and vision, but these heavenly patterns are intended to be replicated on earth. He speaks Ten Words, which Israel, gathered at the base of Sinai, is to obey. He reveals the tabnit of the tabernacle to Moses in the cloud (Exod 25:9, 40), a blueprint for building the sanctuary in the camp. The earthly city of God is always a city conformed to the disclosures on the mountain.
What happens when earth doesn’t conform to the pattern of heaven? Genesis presents two paradigmatic cases. Babel is erected on the plain of Shinar, an attempt to construct an artificial mountain, a man-made earthly heaven. We can be certain the Creator-God would not speak from that mountain; it would only amplify and divinize the word of man. Lot settles near Sodom, one of the cities of the plain in the region of the Jordan (Gen 19:29). Both are experiments in a politics of the “immanent frame.” Neither is successful, for they cannot escape the God of the mountain. Yahweh descends to see and scatter the men of Babel and rains fire and brimstone on Sodom.
The metaphysics of the mountain assumes communication between heaven and earth. The politics of the mountain seeks to shape life on the plain to the words and visions of the mountain. This is the City of God. The metaphysics of the plain is detached from heaven, if there is any. politics of the plain is immanent, ignores or persecutes messengers from the mountain. This is the City of Man, which will be scattered and destroyed. This biblical topography is relevant in our evaluation of different forms of “natural law” ethics and politics. Insofar as natural law presents an ethics and politics of the plain, which closes itself off to the words and visions of the mountain, it is unChristian and doomed. For no account of the politics of God can refuse to reckon with the God of the mountain.
My paper unfolds in three movements. First, and most briefly, I will address the question of natural law, especially the fairly recent atheological forms of natural law theory that exclude appeals to written revelation. Second, I will take up the notion of “nature,” asking whether it is a theologically compelling concept. This discussion will circle back to “natural law,” since moral and political theories concerning natural presume some notion of nature. Finally, the third movement resolves with a consideration of the biblical account of “nature.”
I. Natural law.
John Courtney Murray’s mid-century We Hold These Truths has loomed large in my imagination for decades. Natural law, Murray argues, arrives at its understanding of moral and political truth solely from a consideration of man as man, without any consideration of revealed truth.[1] Murray’s account is, effectively, a Christianized politics of the plain.
Classic accounts of natural law are, fortunately, not of this sort. Thomas Aquinas cites Scripture to justify his appeals to natural law and theological principles pervade his account. Thomas does not, in my view, have a theory of natural law at all. In the Summa theologiae, he presents a theory of law, which includes eternal law, natural law, positive human law, as well as the old and new law of the Scriptures. And this account of law is embedded within an even larger account of human action, habit, and virtue and vice. He devotes only one question of the Summa to natural law, while giving eleven questions to the old and new law.
In Thomas’s account, all of these forms of law are theologically rooted and none makes sense without the others. Eternal law exists because the Creator “stands as the artificer to the products of his art” and “governs all the acts and movements that are to be found in each single creature.” As the pattern for creation, the “type of the Divine Wisdom” has the character of “art, exemplar, or idea”; insofar as Divine Wisdom moves all things toward their intended ends, it “bears the character of law.” Eternal law is, then, “nothing else than the type of Divine Wisdom, as directing all actions and movement.”[2] Eternal law, the paradigm and root of all law, depends on an explicitly biblical understanding of creation as a work of a divine Artist.
Natural law is man’s participation in the eternal law. As rational beings, men are not moved passively toward their end simply by the governance of providence. We are agents who can discern our ends and deliberately move toward them. The precepts of natural law derive from observation of human inclinations toward various goods – toward life, toward procreation and raising of offspring, toward knowledge, including the knowledge of God. But these inclinations would have no prescriptive force at all except that natural law shares in the Divine Wisdom of the Creator.
Natural law, further, is drastically limited. Even discounting the issue of sin, natural law gives only the most general guidance for human life and must be supplemented by positive law. Once sin is introduced, natural law is no longer adequate to guide human action or political decisions. Thomas’s theology of law is shaped, like the entire Summa, by the redemptive- historical movement of exitus and reditus, or, in more contemporary terms, by the narrative of creation, fall, redemption, glory. Though Thomas cites Romans 2:14-15 in support of a natural law, he does not think Paul teaches that Gentiles untouched by grace can know and do God’s will; that would be Pelagian! And, though the abstract “most general principles” cannot be expunged from the human heart (e.g., good is to be done), yet the “secondary and more detailed precepts” can be blotted out by concupiscence and evil persuasion, or by “vicious customs and corrupt habits,” so much that “among some men, theft, and even unnatural vice . . . were not esteemed sinful.”[3] Revelation embodied in the old and new law of the Scriptures is absolutely necessary if fallen human beings are going to know their duty and do it.
Faux Thomistic accounts that extract natural law from this theological framework are biblically insupportable. Direct verbal revelation is not a postlapsarian corrective; God spoke to sinless Adam in the garden. Verbal revelation is necessary to human life as such, for Adam could not have known his duty apart from God’s specific word. The New Natural Law attempt to construct an ethic by attending to basic goods, without input from revelation, misconstrues the character of basic goods. Is it a basic good to acknowledge Jesus as Lord? Are baptism and the Eucharist basic goods? If natural law is an attempt to describe the basic goods of human life as such, the question surely is: What business do Christians have justifying the shape of human life as such – without reference to the Sources of life in Word and Spirit?
More abstractly, we may ask whether the historical experience of humanity provides material for natural law reasoning. It must needs, or else we are reasoning about an ahistorical and non-existent human nature. Once we introduce history as a factor in natural law reasoning, we then have to ask whether or not that history includes acts of God – flood, exodus, Sinai, conquest, the Davidic dynasty – and the words of God’s chroniclers and prophets who recount and interpret those events. Excluding this “data” from consideration is not a scientifically neutral position, but unbelief, and so is treating this data as just another mass of historical data. Once God’s historical acts and His written records are accepted as material for moral reasoning, we are no longer working in the framework of modern natural law theory.
Some might accept the bulk of this argument and still suggest natural law provides an effective rhetoric for public engagement in a pluralistic world. Following the lead of John Rawls and Jurgen Habermas, we translate our convictions into publicly acceptable categories. To this, I have two main objections. First, anyone with an ounce of theological savvy (Andrew Sullivan) will recognize and expose disguised theological claims for what they are. Second, and more importantly, the fundamental Christian political convictions do not admit of translation. “Jesus is Lord” does not mean “An unnamed prophet of an unspecified religious tradition rules.”
II. Nature.
Nature seems to be a natural concept. There needs no philosopher come from Stagira to tell us that ducks lay duck eggs that produce ducklings, that all normal ducks have feathers and flat bills, and swim and waddle and survive on a diet of worms, bugs, slugs, and snails. We do not need a theory; that things have natures, that they reproduce according to natural kinds, that their nature determines the kinds of things they are – all this stares us in the face as soon as we open our eyes.
All of these observations are, of course, true, but they do not constitute a concept of nature. “Nature” is not a set of observations but an explanation of the world’s regularities. It is not merely the claim that we form abstract names to designate groups with common characteristics; that is nominalism. A theory of nature claims ducks have webbed feet because they all share some non-physical nature or essence of duckness. Ducklings grow into ducks because (on an Aristotelian account) they have an inner principle of movement and change that drives them toward the telos of full ducky development. “Nature” is not an observation about appearances, but a way of saving appearances.
Everyone tries to save the appearances, but these efforts are always relative and partial. There are always other ways of to save appearances. Materialists attempt to explain the same phenomena by reference to genetic or chemical or environmental factors. Occasionalists will say there is no causation but divine causation, and so, as Malebranche put it, “the nature or power of each thing is nothing but the will of God . . . all natural causes are not true causes but occasional causes.”[4] Fire does not cause heat; rather, God (usually) causes heat in the presence of fire (cf. the exceptional case of Daniel 3). “Nature” is not a natural idea that was discovered; it has to be constructed or, as G.E.R Lloyd put it, “invented.”[5] To suggest that “ducks beget ducks” entails the claim that “nature is what makes ducks beget ducks” is not a piece of logic, but a rhetorical trick.
According to Lloyd, physis makes its first appearance on the stage of Greek thought as a skeptic, a tool of demythologization, weaponized against supernaturalist accounts of the world. Greek medical writers insist, for instance, that all disease have a natural explanation, never ab effect if of offending the gods. The “natural” mode of discourse systematically excludes divine causation. Even if medical writers get the causal factors wrong, they set a methodological criterion: Rational explanation must rigorously exclude appeal to extra-natural forces and actors. Their theory is not, Lloyd argues, disinterested. While offering natural explanations for medical phenomena, they simultaneously attack traditional “quack” medicine men who prey on the superstitious. For Greek medical writers, “nature” is a matter of branding and a bid for market share.
Aristotle does not use physis to eliminate the divine, but his theory does eliminate particular accounts of God’s relation to the world. Ancient thinkers assumed a homology between the origin of the world and the way the world is currently governed. If a personal being(s) is responsible for the original ordering of things, that order must be maintained and those things governed by a personal being(s). At least in the Timaeus, Plato portrays the order of universe as a work of such a divine craftsman, the demiurge, who, taking his cues from eternal forms, shapes the pre-existing chasm into a good world, as good as it can be, given the fact that it is not the perfect world of forms.
Aristotle agrees with the premise: The same principle explains both the origin and perpetuation of world order. But Aristotle turns Plato upside down. He does not believe the world came into being, nor does he believe it is directed toward its end by a personal God. Rather, the cosmos and everything in its is driven by a desire to emulate God, the unmoved mover. Far from being a meddlesome ruler of the cosmos, the unmoved mover is not even conscious of the world’s existence. Ze lives a life of contemplation so pure that it is not even contemplation of anything but only self-reflective contemplation of contemplation.
This, David Sedley suggests, is the motivation for Aristotle’s shift from Platonic personalism. He perceived a dissonance between the perfect human life of contemplation and the busy practical lives of the gods. He departs from Plato for Platonic reasons, positing that God is the perfect divine philosopher, resting in eternal detachment. As the supreme object of desire, the mover moves everything; he is the supreme explanatory principle that keeps this changing world swirling on its merry way. Ze does this while remaining utterly detached in his leisurely nowhere, controlling everything without having to lift the finger ze of course does not have.[6] It’s what the kids call a neat trick. For my purposes, what is noteworthy is the specific form of demythologization at work here: Not an elimination of God at all, but the elimination of a certain conception of deity and its transformation into an impersonal, all-pervading power.
Aristotelian physis fits into this theological framework. Substances are hylomorphic, composites constituted by forms informing prime matter. This is arguably a craft account of the world, with “form” playing the role of artificer. And Aristotle does indeed work out his fourfold account of causation with a craft analogy. He justifies the analogy by repeating the axiom that art follows nature, but the argument actually goes in the opposite direction. The four causes are easier to discern and distinguish if we examine a bronze sculpture or a machine than if we examine a lichen, but there are presumed to be more occult causes in nature that correspond to the sculptor, the bronze, the shape, and the purpose. Given Aristotle’s theological commitments, though, no natural cause can literally correspond to sculptor; there are no personal natural causes. To push the analogy through, Aristotle must insist that even the causes of artifacts are not personal. What forms the house is not the builder but the skill of building that resides in him.[7] Persons are effectively erased from the order of the world.
It is not easy to pin down where physis fits in this account. Forms and prime matter possess physis, that is, these principles have distinguishable qualities. At the same time, the form-matter complex constitutes the physis or ousia of a thing, determining its properties and setting its trajectory toward perfection. The form of duck informs prime matter to produce the living duck whose webbed feet and bill and waddle, growth and realization as a duck, are determined by its physis, by the way a particular form has stamped itself onto propertyless matter. The duck’s physis is moved by love, by desire for the unmoved mover, such that the duck’s growth as a duck is a bid for ducky deification.
There is an indisputable grandeur to this picture: Neither a swirling Heraclitean chaos, nor a frozen Parmenidean stasis, but a world of stately grace, each thing moving toward its place, each thing valued as good because each thing grows toward its particular perfection. Yet it is more in continuity with the demythologizing efforts of medical writers than with the mythologizing tendency of Aristotle’s teacher. Despite its theological frame, it is finally a metaphysics of the plain.
Like nearly every medieval thinker, of course, Thomas tries to make a place for nature. Thomas stuffs Aristotelian nature into a creationist framework, but it is a difficult fit. The point of Aristotelian nature was precisely to fill the gap left by the evacuation of personal, supernatural actors. But Thomas’s God is precisely that. It would seem there is no place for natura to rest. Earlier medievals made sense of the quasi-personal, quasi-volitional quality of natura by positing a goddess, subject to the Creator’s control but a distinct agent in the cosmos.[8] That has the advantage of coherence, the disadvantage that it brushes close to idolatry.
Thomas does not endorse this viewpoint, but his use of nature leads him into some conundrums. Nature is a contrast term,[9] taking its significance from the category to which it is opposed. Nature is what is not-art; natural movement is what is not-violent; natural causation is what is not-supernatural. For Thomas as for Aristotle, nature is an intrinsic principle of motion, change, and coming to rest. This stands in contrast to art, which exists first as a form in the mind of the craftsmen and then is imposed extrinsically on natural material. Natural movement stands in contrast also to violent change, change forced on a natural object by some external power, change that diverts the object from acting naturally. Made of earth, rocks naturally descend to find their proper place in the hierarchy of the universe, but I can launch a rock from a trebuchet, “violently” causing the rock to fly. Of course, the rock still seeks its place and will eventually come to rest.
As soon as we introduce human innovation, though, we face difficulties. It is not in the nature of steel to fly, but steel airplanes fly for hours and hours all over the world. Of course, the steel flies because of the “natural” explosive properties of jet fuel, but on Aristotle’s account the harnessing of fuel to make metal tubes fly across oceans has to be classified as “violent” movement. And from here it is difficult to escape the sense that technology is itself an act of violence inflicted on the world, insofar as it diverts natural things from the actualization of their natural potencies. We might say that techne is natural to man, but that seems to mean only that man “naturally” does violence to the world.
Aristotle and Thomas leave artifacts in an ambiguous position. Aristotle denies artifacts are substances at all. Thomas’s position has some subtleties, but in the end he appears to conclude that artifacts are fragile assemblages of natural things, rather than substances in their own right. A table has no “nature,” though the wood and the screws of the table retain their natural properties. More accurately, they retain some of them, because the wood of the table is not the same as the growing natural wood of the tree. Turning a tree into lumber, and lumber into a table, denatures the tree, at least in part. Like the rock launched from the trebuchet, it prevents the tree from acting according to its nature, to grow, leave and lose leaves, bear fruit, reproduce. I own a table only at the cost of denaturing the tree from which it was made.
The situation is arguably even more dire. After all, we do think of artifacts as things with particular natures. An airplane that can no longer fly does not fulfill the purpose of being an airplane; a grounded airplane is contrary to the nature of airplanes. Metal does not naturally fly, but it is natural for metal formed into a winged tube and equipped with jet fuel to fly. We have, no doubt, equivocated on “nature” here; we have moved from “what is the normal for living things without human intervention” to “what is normal for human artifacts.” But the equivocation is there already, when we talk about the “nature” of the table’s wood, even though the table will never again grow leaves or produce persimmons. Human alterations of the world limit natural potencies, but also create new potencies, a new normal. A metaphysics without a strong explanation of human modifications of the world does not describe the world as it is.
Aristotle proposes two extrinsic forces that modify nature – art and violence. Thomas adds a third, God. Unlike Aristotle, Thomas believes in a personal, active God who acts as an efficient cause, not merely drawing things to Himself as final cause. As Creator, God is the cause of all natural things and of all natural actions, since He gives things the power to act: He “causes all the actions of nature, because he gave natural things the powers whereby they are able to act.”[10] Yet God is, like art and nature, an extrinsic cause. To naturalize God’s causation, Thomas proposes that creatures are given a potentia oboedientialis, an obediential potency, by which all things created are inclined to receive God and obey His will. Thus, what God does is never contrary to nature. It is perfectly natural for an axe head to float whenever God demands it, since the iron is designed to obey its Creator.
This softens but does not resolve the problem, since even on this account the Creator remains an “extrinsic” cause. To say creation is “open” to God implies that it exists and can trundle along, awaiting God’s external interventions. Perhaps it would trundle along in the same way even if there were no Creator. So long as God is pictured as outside creation, His actions will resemble violent modifications or the modifications of an artist.
Exploring the theological coherence of the concept of “nature” is relevant to the question of natural law, because the latter presumes at least a rough homology between the way the world is and the way humans ought to behave. Social Darwinism is viciously consistent: Because nature is red in tooth and claw, and because humans are natural creatures, they are engaged in the same brute struggle for survival as everyone else. Aristotle’s account of nature is teleological. It is a principle of motion and rest that drives things toward their telos, that actualizes potency. What kind of ethics and politics does this imply? Callicles and Thrasymachus offer an ancient anticipation of Nietzsche: Nature is power, so it is natural for the powerful to do what they like with the weak.
Aristotle of course rejects that option. Nature is shaped by virtuous habit. Nature must be pruned for individuals to reach their full realization. “First nature” – the basic human desires for rational reflection, moral action, imitation, knowledge – is too weak to bring human beings to the full realization of their humanity. Education and practice develop virtuous habits. We might say this: Precisely because human beings are, among other things, rational animals, they have a capacity for self-shaping lacking in other creatures. While acorns become oaks kata physin, without conscious intention, human beings do not.
But there are tensions in Aristotle’s account. Contemplation is, he thinks, the highest end of man. That might seem to imply a society ordered to enable all to pursue a life of contemplation; but then who picks the grapes? Perhaps some are naturally suited for grape-picking instead of contemplation. While many slaves are accidentally so, some are slaves by nature. But then we have equivocated again on nature. Nature is no longer about reaching the full human telos; instead, different people have different natural ends.
Besides, if “first nature” contributes so little to the realization of human excellence, why are women, slaves, non-Greeks, and some Greeks not able to achieve virtue by the same process of education that works for male Greek citizens? Why should nature be an obstacle for male slaves when it is not for male freemen? “Nature” no longer describes what all human beings share, but rather names what some individuals or classes of individuals possess. One is tempted to draw a cynical conclusion: Applied as a social principle, nature is a propaganda trick to legitimate whatever form society happens to have taken, to ensure the high they should be high, to pacify the restless low who might clamber to climb higher. The nose of nature begins to appear mighty waxy.[11]
Aristotle also runs into difficulties with respect to the artificial character of virtue and of political and social order. A virtuous man is the product of artifice, not nature. Whatever we might say about man’s natural political inclinations, society too is constructed: Laws are passed, decisions made, communal habits formed, institutions shaped by human action over time. What is the relation between physis and the inescapably nomic order of the polis? Aristotle’s ambiguity about artifacts emerges here. The polis is natural insofar as man is a political animal, but the particular constitution of the polis is the product of art and accident. One might, following Sophists of every age, suggest that nomos is a constraint on nature, and conclude that nature needs to be liberated from its bondage so all can live purely natural lives. The natural law tradition has argued, of course, that artificial laws must conform to nature, they must express the truth about the nature of man. But that runs back into the earlier question: What is this nature? What is the human end?
Thomas does not have these difficulties because, as noted above, he does not develop a purely natural account of ethics or politics. Grace and revelation are essential to the formation of moral individuals and moral societies. But that means, of course, that his theory is no longer a theory of the plain. It is instead a Christian ethics and politics of the City of God. Metaphysically, ethically, politically, Thomas is a mountain man.
III. The Physics of Genesis.
What happens when we take Genesis 1 as fundamental physics? Genesis, of course, does not use any Hebrew equivalent to “nature.” In place of nature, Genesis offers several other categories: heaven and earth, create or make, Spirit, Word.
Contra Aristotle, the world is not eternal. There is a “beginning” of all things, including created time. That beginning is the product of a creative act by the God identified in Genesis 1 as ‘elohim and in Genesis 2 as YHWH ‘elohim, the God of Israel. He is a speaking God, who speaks to and of Himself as “us” (Gen 1:26). As the Bible unfolds, He walks, confronts, curses, provides clothing, hears, sees, regrets, commands, destroys, renews. He is a personal God, personally involved at every moment in the life of every creature. The physics of Genesis is a personalist physics.
The created “whole” is not single but dual, “heaven and earth.” Aristotle has his own version of this duality, but it functions differently in the Bible. Heaven directs earth because heaven is the realm of the Creator, whose decrees govern reality. Heaven is, I have argued, where things happens first.[12] It is where the future is presently realized, where the Lamb reigns and is acknowledged, where “all things in” heaven, earth, and sea offer glory, honor, dominion to the Enthronement and the Lamb (Rev 5:13). The telos of every creature is worship and praise of the Creator and Redeemer.
We might take the formless void as a rough equivalent of pure matter, but what shapes matter is not form but the Spirit and Word of ‘elohim. The Creator’s involvement with creation is Spiritual, that is, by means of His Spirit, identified as the “Spirit of ‘elohim” (Gen 1:2). The Spirit hovers over the face of the dark and empty deep, so as to light and form and fill. As soon as earth exists, the Spirit is face-to-face with it, interior to it, sculpting it from within over time, moving creation to its telos, union with the liturgy of heaven. The interior principle of growth and maturation for the creation is not “nature” but the Holy Spirit. He (not it) is the world Spirit, the source of the liveliness of living things. If trees clap hands and rocks sing, if we live in a world where all things join in praise, it is because we live in a world charged with the Spirit or ‘elohim who is the Lord and Giver of life.
The Spirit is the living Breath whom ‘elohim exhales in order to speak. Creation is by Word. God’s Word is a speech act, an effective Word that brings into being what it speaks – light, a firmament, the gathering of the waters. That Word, we later learn, is not a what but a Who, the eternal Speaking of the eternally speaking Creator. As a product of speech, creation is speech, a dynamic living transcript of what the Word spoke and speaks. Light is not a natural phenomenon to which we attach meanings, but a word of the Radiance who spoke “Let there be light.” If we wish to abstract, “verbalization” and “signification” are more accurate descriptions of the world than “nature.”
Because the speech that creates is the speech of the Lord, it has the character of command. There is a kind of obediential potency here, but it does not imply God as an external power to which the creation is “open.” The Lord’s command is not given to a creation that already exists; His Word is not a reality added to creation. Creation has no existence at all except as obedience to the command of the Creator.[13] Since creation comes to be by the living Speech of God, it rests on and bears the authority of the Creator. This is the truth of Christian natural law theory: There is perfect continuity between what God has spoken in creation and history and what He speaks and writes in human language. There is perfect continuity because both history and Scripture are the explicatio of the Father’s one eternal Word. Creation, as Paul insists, reveals the eternal power and divine nature of God, so that all men inescapably know the living God by what He has made (Rom 1:18-21). Here what Thomas calls the “eternal law” and “divine wisdom” is specifically the Second Person, the decree of the Father.
On the third day of the creation week, ‘elohim begins to enlist creation into the ongoing work of creation. He commands the dry land to produce grains and fruit-bearing trees and vines, and it obeys. On Day 5, He speaks to the sea and it teems with fish, and on Day 6 He summons land animals from the dry land. Earth is fecund only because ‘elohim speaks His empowering that summons the creation to divine work. He does the same with the heavenly lights, to which He delegates the divine task of dividing light from darkness and ruling. Filling is part of the work of creation, and much of the creative filling of Genesis 1 is done by creation itself. Genesis attributes creation’s creativity to the same Word that brought light into being ex nihilo. The power by which heaven and earth came to being is the same power at work in creatures. It is the power of the Word.
This is not a mere deistical kick-start, as if the Word addressed the land and sea then retired to see how the creation responds. According to Hebrews, the Son by whom the world was made “bears” (φερω) all things by the Word of His power (1:3). Grass keeps growing, fish keep reproducing and maturing, ducks keep laying eggs that hatch ducklings, because the Father continues to speak His empowering Word to the creation. The one and only principle (ἂρχη) of all things is the Son who has first place in everything (Col 1:18). Working with the two hands of His Word and Spirit, the Father causes every individual thing to move toward its fulfillment, and moves the whole of creation toward its glorious climax. He is interiorly, personally involved in each and every moment of each and every creature, which move and live and grow in obedience to their Maker. The biblical picture more resembles the childishness of Chesterton’s “do it again” than Aristotle’s Really Very Serious Idea of Nature. The continuity of the world is not located in the world. What keeps the duck a duck does not belong to the duck. Duckiness persists because of God’s continuing work on and in every duck. The duck’s continuity is entirely the fruit of the faithfulness of the Creator.
The physics of Genesis comes to sophisticated expression in the work of Maximus Confessor. He applies the logic of incarnation to creation to formulate an account that does not rely on NeoPlatonic concepts of participation. There is an absolute distinction of nature between God and the creation. God does not modify Himself into new modes of His own nature, as in Plotinus or Proclus. He creates wholly new essences, rather than merely generating finite qualities. Yet, crucially, these created essences are not detached from the Creator, any more than the nature of the incarnate Son is distant from His humanity. Hypostasis grounds a union, even an identity, that is not natural identity.
Maximus explicates this using the concept of logoi, not understood as “divine ideas” but within the context of his Neo-Chalcedonian Christological convictions. Once again, there’s an infinite natural difference between the one eternal Logos and the many created logoi, yet the many logoi are the one Logos, one with Him without confusion. The One Logos is many logoi, not by a natural fusion but by a hypostatic identity. This differs from Plotinian participation because the Logos is not subordinate to a first principle and because the unfolding of the One Logos as many logoi doesn’t weaken the Logos’s identity with creatures. The identity of Logos and logoi is stronger for Maximus than for Plotinus, because the principle of creatures is not an attenuated mode of the one essence but the eternal Logos Himself dispersed as logoi. There is no leakage of divinity in the Son’s union with the world, whether in creation or incarnation. The whole Logos unites with created natures.[14] Because the Logos is One existing as the many, He binds the cosmos into a single universe; Word and world are one as the divine and human are one in Christ, by hypostatic identity. The logoi aren’t separated subsistences participating in ideas or forms, but “the personal Logos crafting all things within himself, within them.”[15] As Wood puts it, the “Logos becomes and is the ‘is’ of both uncreated and created natures.”[16] In Him all things cohere. He is the most intimate interior of all things. To use the language of Nicholas of Cusa, what exists folded in the inexhaustible Word, the Word that contains all words, the Name that includes all names, is explicated in creation and history.
This is why, Cusa says, the inner reality of things remain elusive. We construct categories and frameworks (form, matter, nature, four causes) to help us grasp reality, but they never capture everything or give us transparent access to reality in the raw, so to speak. They are conjectures, more or less useful heuristics that need to be supplemented by other heuristics and perspectives. The singularity as an object, its continuity through time, is an image of the divine unity, in which God contemplates His own perfect Triunity, othered in a plurality of created things. Everything is a “finite infinite,” providing a partial glimpse of the one infinite God. The only thing that is a creature’s own is its otherness from God and from everything else. Its positive reality – its unity, its qualities, its powers – are simply God’s intimate presence and activity within them. For Cusa, it is axiomatic: “Take away God from the creature and you are left with nothing.”[17]
Put all this in the more concrete terms of Genesis 1. God speaks His eternal Word as the sentence “Let there be light.” Light comes to be as a creature, which did not exist before the Creator uttered the sentence. But the interior essence of light, the reality that gives it its mysterious qualities and sustains light in existence, is the Word of the Father. There is no “nature” beneath appearances. There is the Word of the Father dispersed as logoi of creatures, and the animating Breath of that Word. God speaks plants by directing His commanding Word to the ground, and the ground obeys. Still today, God speaks His commanding Word to keep the ground fertile, to make seeds sprout and plants grow.
Genesis 1 elevates “creation” as a master metaphysical category, superior to being, nature, or ideas. Among other things, this resolves the impasses that Aristotle and Thomas fall into with regard to artifacts. Instead of an abyssal gap between natural reality and human creations, there is fundamental continuity, because creation and everything in it is the product of divine artifice. Thus, as Cusa says, “all human crafts are images, as it were, of the infinite and divine craft,” which serves as exemplar of all arts, “their beginning, middle, and end, their rule, measure, truth, and perfection.” For Cusa, “art” encompasses all human making, including humble craftsmanship. Human artifice is not “violence” to the natural qualities of a created thing, but instead “perfects natural shapes.” The mental image of a spoon shines “in the shaped proportions of this wood as in its image.”[18]
IV. Conclusion.
Genesis 1 leaves physis, natura, nature with very little to do. We may employ the concept if we like, but only under the Cusan proviso that it is one conjecture among many others, not the single, unsurpassable key to creation. What we must employ, if we are going to construct a Christian metaphysics, is the metaphysical apparatus of Genesis 1: creation, the speaking God, His Word, and His Spirit.
Such a metaphysic leaves natural law with very little to do. The internal Word drives man toward his telos. The breath of Yahweh makes man a living soul, and directs every action of every man. Impelled by this interior Word, man seeks his fulfillment as the particular individual human being he is. That fulfillment depends on other humans, and non-human creatures, all orchestrated by the same Word and Spirit. But from the beginning, the interior Word is accompanied by an external word, equally necessary if man is to fulfill his eschatological destiny. The physical capacities, forms, and powers that enable man to take dominion over the creation are the capacities, form, and powers of the Word and Spirit, and this internal inclination is accompanied by the external command, coming from the very same Word: “Be fruitful, multiply, fill the earth.” At times, of course, the command is negative, stating a limit on his powers and inclinations: “Of the tree at the center of the garden, thou shalt not eat.” Man cannot reach his eschatological destiny relying only on obedience to the interior Word that is his essence. He must also hear, trust, and obey the vocalized Word of God, the Word communicate in human sounds, words, and sentences. Man cannot be man, nor human politics human politics, if he is a mere man of the plain dwelling in a city of the plain. He must ascend the mountain with ears and eyes open to what the Creator will show and speak.
[1]Murray, We Hold These Truths (London: Sheed & Ward, 2005).
[2]ST I-II, 93, 1.
[3]ST I-II, 94, 6.
[4] Oeuvres complètes de Malebranche (André Robinet, ed.; Paris: Vrin), 2.312, cited in “Occasionalism,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/occasionalism/.
[5] GER Lloyd, “The Invention of Nature,” in Lloyd, Methods and Problems in Greek Science: Selected Papers (Cambridge: Cambridge University Press, 1991).
[6]Sedley, “Teleology,” Aristotelian and Platonic,” in James G. Lennox and Robert Bolton, eds., Being, Nature, and Life in Aristotle: Essays in Honor of Allan Gotthelf (Cambridge: Cambridge University Press, 2010) 5-29.
[7]Sedley, “Teleology.”
[8]George D. Economou, The Goddess Natura in Medieval Literature (Notre Dame: University of Notre Dame Press, 2002). Natura’s function in medieval thought is not unlike that of Sophia in Bulgakovian Russian Orthodoxy.
[9]Robert Spaemann, “Nature,” in A Robert Spaemann Reader: Philosophical Essays on Nature, God, and the Human Person (D.C. Schindler and Jeanne Heffernan Schindler, eds.; Oxford: Oxford University Press, 2015) 22-36.
[10]De Potentia 3.7, quoted in Jan Aertsen, Nature and Creation: Thomas Aquinas’s Way of Thought (Leiden: Brill, 1988) 289-90.
[11]For different answers to these questions, see Richard Kraut, “Nature in Aristotle’s Ethics and Politics,” Social Philosophy and Policy 24.2 (2007) 199-219; Julia K. Ward, “Aristotle on Physis: Human Nature in the Ethics and the Politics,” Polis 22.2 (2005) 287-308.
[12]Leithart, Revelation 1-11 (London: T&T Clark, 2018) 210.
[13]Robert Jenson, Systematic Theology, I: The Triune God (Oxford: Oxford University Press, 2001) 7: “God commands the world to be, this command is obeyed, and the event of obedience is the existence of the world.”
[14]To my mind, this Christo-logic is superior to the Sophianic speculations of Bulgakov and his followers. For a critique of Bulgakov, see my Creator: A Theological Interpretation of Genesis 1 (Downers Grove, IL: IVP., 2023) 133-48.
[15]Quoted in Jordan Daniel Wood, The Whole Mystery of Christ: Creation as Incarnation in Maximus the Confessor (Notre Dame: University of Notre Dame Press, 2022) 71.
[16]Quoted in Wood, Whole Mystery, 72.
[17]This entire paragraph is dependent on Clyde Lee Miller, “Aristotelian Natura and Nicholas of Cusa,” 96 Downside Review (1978) 13-20.
[18]Cusa, Idiota de Mente; The Layman, About Mind (Clyde Lee Miller, trans. and ed.; Abaris Books, 1979).