Later this week I’m heading to Poland for the “What is Life: Theology, Science, Philosophy” conference. It will be a chance to connect with my dissertation adviser, meet some new people, and take in some interesting presentations (and, I hope, enjoy some good Polish food and drink!). I’m presenting a version of my paper Towards a Critical Realist Theology of Law, Neurobiology and the Soul. This paper in many ways serves as a sketch of my dissertation project, which I’m sure will change and develop as I proceed. I’ll post portions of it in this series of posts. Below is Part III, and here are links to Part I and Part II.
The Enlightenment and Modern Christian Conceptions of Law
Scholastic Catholic and Magesterial Reformed views of law were often challenged, and sometimes coopted, by the revolutionary fervor of the Enlightenment. John Witte notes that Enlightenment philosophers such as Hume, Rousseau and Jefferson “offered a new theology of individualism, rationalism, and nationalism to supplement, if not supplant, traditional Christian teachings.”[1] These impulses led to the legal realist school that attempted to divorce law from broad normative concerns and understand it instead as primarily an instrument of political policy objectives.[2]
Although legal realism, and subsequently the critical schools, came to dominate American legal discourse, the Catholic legal tradition continued to develop into a rich tapestry of social teachings, beginning with Pope Leo XIII in the late nineteenth century and particularly blossoming under the historic leadership of Pope John Paul II.[3] Catholic social theory began to focus less on the penal and purgative aspects of the law, but it continued to emphasize the relation between law and metaphysics, including between law and the “soul.”
Thus, for example, Catholic legal philosopher Jacques Maritain considered materialist-reductionist views of the person, such as those held by Bertrand Russell, to be “nonsense.”[4] Maritain described “natural law” as that which is essential to the normality of any thing’s functioning, “the proper way in which, by reason of its specific structure and specific ends, it ‘should’ achieve its fullness of being either in its growth or in its behavior.”[5] Similarly, John Courtney Murray emphasized the differing purposes of law with respect to persons as individuals and as citizens.[6] The purpose of positive law for Murray is not to discipline individual souls for salvation, but rather to ensure that society moves towards its proper moral end of civic virtue.[7] The foundation of society is the person, and the person functions within various institutions, such as the family, religious organizations, professional groups, and voluntary associations.[8] The principle of subsidiarity holds that the state must respect the boundaries of these institutions, and thereby respect the integrity of the person.[9] Positive law, then, takes on a more minimalist function of maintaining public order and ensuring the integrity of these institutions.[10] The philosophical underpinnings of this view remain committed to a thick metaphysical and theological account of personhood.
Protestant legal thought during this period developed in more piecemeal fashion, with divergent strands including Abraham Kuyper’s notions of “common grace” and “sphere sovereignty,” Karl Barth’s almost fideistic rejection of natural theology, Reinhold Niebuhr’s “Christian realism,” and the potent mixture of revivalism, reconstructionism, and confrontationalism that comprised the fundamentalist-evangelical “religious right.”[11]
Niebuhr’s Christian realism in particular served as a bracing tonic against liberal nineteenth-century Protestant anthropology, which owed its progressively optimistic outlook more to Jefferson and Rousseau than to St. Paul.[12] Niebuhr complained that progressive moralists failed to comprehend “the brutal character of the behavior of all human collectives, and the power of self-interest and collective egoism in all inter-group relations.”[13] Although human beings individually are capable of doing some good, human society always tends towards the violent exertion of power. This creates a fundamental pattern of conflict that cannot be fully overcome, even by those who are influenced by God’s grace.[14] Therefore, societies must use coercive power — the power of government and law backed by force — to achieve rough justice.[15] And because power corrupts, all such exertions of force must be subject to democratic control.[16]
Abraham Kuyper’s ideas about “sphere sovereignty” and “common grace,” meanwhile, offered resources to evangelicals who were seeking by mid-twentieth century to emerge from the foxholes of fundamentalism, as well as to other Christians in the Reformed traditions.[17] Kuyper accepted basic Reformed anthropology, which understood human nature to have been thoroughly corrupted by sin. However, he held an expansive concept of common grace, by which God holds back the corrupting effects of sin.[18] “To every rational creature,” Kuyper said, “grace is the air he breathes.”[19] He thereby held together the Reformed “antithesis” between natural and regenerate people with the need to find some common ground for constructing social order. Like Maritain’s conception of subsidarity, Kuyper argued that human beings are granted authority by God to create social structures, and that such authority inheres in various “spheres” of society such as the family and industry — not only, or even primarily, in the state.[20] In fact, Kuyper viewed the state’s authority as “mechanical,” by which he meant “unnatural.”[21] The state exists only to compel order, which would not have been necessary except for sin.[22] Thus, Kuyper famously stated that “God has instituted the magistrates, by reason of sin.”[23]
Summary
This very brief survey (including Part I and Part II) of Christian theological anthropology in relation to law suggests several enduring themes: (1) human beings are more than physical; (2) human beings are corrupted by sin; (3) “sin” is something other than the “image of God” with which human beings were endowed by the creator; (4) sin affects the interior human life — the “soul” — as well as human social life; and (5) “law” has both interior-personal and exterior-social functions in restraining sin and directing human beings towards God.[24] The next part of this chapter examines how the contemporary neurobiological sciences view the human person, surveys some theological responses to neuroscience, and suggests some resulting points of agreement and points of tension with Christian theories of law.
[1] Id. at 26.
[2] Id. at 27. See also Brian Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge Univ. Press 2006).
[3] See Witte, supra Note 22, at 30. For a discussion of Pope Leo XIII’s influence, see Russell Hittinger, “Pope Leo XIII,” in Witte and Alexander, eds., The Teachings of Modern Christianity on Law, Politics & Human Nature, Vol. 1 (Columbia Univ. Press 2006).
[4] Patrick Brennan, “Jacques Maritain,” in Witte and Alexander, supra Note 26, at 86 (quoting Jacques Maritain, Man and the State (University of Chicago Press 1951), at 85)).
[5] Id.
[6] Angela Carmella, “John Courney Murray,” in Witte and Alexander, supra Note 26.
[7] Id. at 121.
[8] Id.
[9] Id. at 122.
[10] Id.
[11] See id.
[12] See Davison M. Douglas, “Reinhold Niebuhr,” in Witte and Alexander, supra Note 26.
[13] Id. at 418 (quoting Niebuhr, Moral Man and Immoral Society (Scribner 1932), at xx.).
[14] Id. at 421-22.
[15] Id. at 423-24.
[16] Id.
[17] See Nicholas Wolterstorff, “Abraham Kuyper,” in Witte and Alexander, supra Note 26.
[18] Id. at 311.
[19] Id.
[20] Id. at 313-17.
[21] Id. at 317-18.
[22] Id. at 318.
[23] Kuyper, Calvinism: Six Lectures Delivered in the Theological Seminary at Princeton (Revell 1899), at 102.
[24] For a good general summary of these themes, see Charles Sherlock, the Doctrine of Humanity (InterVarsity Press 1996).