Category: Religious Legal Theory

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 VI, and here are links to Part I, Part II, Part III, Part IV, and Part V.

Are Neurobiology and Theology Both Right About Free Will?

If the theological category of “sin” appears to resonate with neurobiology, only on reflection to exist in some tension with it, the category of “responsibility” seems in conflict with neurobiological accounts of the will, only on reflection to find more commonality.

The Christian Tradition’s treatment of “freedom” and “responsibility” seems to conflict at a basic level with neurobiology.  “Responsibility” in Christian theology is not merely a human construct.  Rather, it flows out of our relationship to God as created beings.  We are “responsible” for our actions because we belong to God.  God’s law proceeds from God’s transcendent character and will, which does not depend on human social constructs. 

Christian moral theology thus emphasizes human responsibility.  As Catholic moral theologian William Mattison notes, “Moral theology is all about understanding and evaluating free actions, the things we do intentionally in our quest for happiness in life.”[1]  For Mattison, responsibility and freedom go hand-in-hand:  “when people act freely,” he says, “they are responsible for their actions, and we may praise or blame them depending on the sorts of actions they perform or the purposes they hold.”[2]  This connection between freely chosen intentionality and moral responsibility seems alien to neurobiology.  At least for neurobiological reductionists, intentionality is illusory, a ghost in the machine, and responsibility is a social construct shaped by evolutionary history. 

Yet, the Christian tradition’s efforts to grapple with the relationship between “freedom” and “responsibility” resonates in many respects with the same dynamic in neurobiology.   When we dig deeper into the Christian Tradition, we notice that our “folk” conceptions of “freedom” and “intention” do not entirely cohere with theological categories.  As political scientist Larry Arnhart notes, the notion of “‘free will’ as uncaused cause is a Gnostic idea that treats the human will as an unconditioned, self-determining, transcendental power beyond the natural world . . . .  Such a notion contradicts biblical religion, because the only uncaused cause in the Bible is God.”[3]

St. Augustine wrestled directly with how the relationship between God’s sovereignty and human freedom impacts our understanding of the purposes of law.  In the Book V of the City of God, he summarizes the stoics’ argument against divine foreknowledge:

If there is a certain order of causes according to which everything happens which does happen, then by fate, says he, all things happen which do happen.  But if this be so, then is there nothing in our own power, and there is no such thing as freedom of will; and if we grant that, says he, the whole economy of human life is subverted.  In vain are laws enacted.  In vain are reproaches, praises, chidings, exhortations had recourse to; and there is no justice whatever in the appointment of rewards for the good, and punishments for the wicked.[4]

 Augustine responded to this critique by referring in Aristotelian fashion to the order of causality: 

it does not follow that, though there is for God a certain order of all causes, there must therefore be nothing depending on the free exercise of our own wills, for our wills themselves are included in that order of causes which is certain to God, and is embraced by His foreknowledge, for human wills are also causes of human actions; and He who foreknew all the causes of things would certainly among those causes not have been ignorant of our wills.[5]

 Similarly, in characteristically stark terms, the Reformer Martin Luther stated in On the Bondage of the Will that

This, therefore, is also essentially necessary and wholesome for Christians to know:  that God foreknows nothing by contingency, but that He foresees, purposes, and does all things according to His immutable, eternal, and infallible will.  By this thunderbolt, ‘Free-will’ is thrown prostrate, and utterly dashed to pieces.[6]

 We might change Luther’s first sentence to refer to the brain instead of to God and attribute it to a modern neurobiologist.

Yet Luther also famously proclaimed that “[a] Christian man is the most free lord of all, and subject to none; a Christian man is the most dutiful servant of all, and subject to everyone.”[7]  How did Luther reconcile these notions of predestination and freedom?  He refers to spiritual freedom, in contrast to bodily slavery:

Man is composed of a twofold nature, a spiritual and a bodily.  As regards the spiritual nature, which the name the soul, he is called spiritual, inward, new man; as regards the bodily nature, which they name the flesh, outward, old man. . . .  The result of this diversity is, that in the Scriptures opposing statements are made concerning the same man; the fact being that in the same man these two men are opposed to one another; the flesh lusting against the spirit, and the spirit against the flesh.[8]

 True “freedom” results only in the inward man when a person receives justification by faith in Christ.  “Freedom” is not libertarian free will, but rather the uniting of the person’s inward nature with God through faith, which produces the ability to do good works in accordance with God’s will.  As the Catechism of the Catholic Church puts it:   

“The more one does what is good, the freer one becomes.  There is no true freedom except in the service of what is true and just.  The choice to disobey and do evil is an abuse of freedom that leads to the ‘slavery of sin.”  (cf. Romans 6:17 ) .  . . . By deviating from the moral law man violates his own freedom.”[9] 

 “Freedom,” then, is not libertarian freedom — the freedom to do anything at all — but the increasing flourishing of the human person who pursues the good.  Once again, there is consistency here with neurobiology – we are not “free” in terms of folk psychology – but there is divergence in that the Christian concept of “freedom” seems to  require a much richer metaphysic than materialism offers.

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 V, and here are links to Part I, Part II, Part III, and Part IV.

Neurobiology, the Soul, Moral Agency, and Law

The notion of “moral agency” is precisely what many legal theorists interested in neurobiology are challenging.  Martha Farah notes with some understatement that “[t]he idea that behavior is determined by physical causes is hard to reconcile with the intuitive notions of free will and moral agency on which our legal systems are based.”[1] “Free will” – at least “libertarian” free will – is an illusion, they argue.  Among their most compelling bits of evidence for this claim are studies suggesting that the brain signals the body to engage in actions before we become consciously aware of the action we will take.[2]  This “precognition” suggests that our actions are automatic responses to stimuli and that our conscious “decisions” are really merely ex post determinations not to “veto” what the brain has already signaled its readiness to do.  We have, at best, “free won’t” rather than “free will.”[3]  Therefore, “according to neuroscience, no one person is more or less responsible than any other for actions.  We are all part of a deterministic system that someday, in theory, we will completely understand.”[4]  The notion of “responsibility” is only a “social construct,” law is an instrumentalist tool useful for engineering of the society we are constructing, and the society we are constructing ultimately is reducible to the evolutionary history embedded in our brains.

Sin:  Parallel or Orthogonal to Neurobiology?

The neurobiological account of personhood and responsibility implies some obvious dissonances with theology, but we might focus for a moment on a possible area of congruence.  In one sense, neurobiology confirms St. Paul’s cri de coeur:  our wills are not our own.  Human beings are bent towards conduct that we label “violent,” “selfish,” “antisocial” or “sinful.” 

Evolutionary sociobiology also trades in cooperation and altruism, or at least the appearance of “altruism” through “group selection.”[5]  The game theoretic coordination of group activity is a lynchpin of sociobiological theory.  For sociobiology, like St. Paul, we often find that we are at war with ourselves, and like St. Augustine, we can discern self-serving motives even behind our most seemingly benevolent actions.  In a practical sense, whether we say that positive law is an expression of selection for social traits that promote group survival, or that positive law is necessary to curb the influence of sin, we appear to be saying much of the same thing.  The ultimate “good,” whether it is a biological imperative or a Divinely appointed eschatological goal, is human flourishing.

But of course, in some ways the similarity is only superficial.  The Christian account of sin is that it is alien, an invader introduced into creation by cosmic evil forces, human will, or both.[6]  The Biblical story of the temptation of Adam and Eve must be an imaginative literary portrait if the scientific account of human origins is even close to true, but nevertheless, for Christian theology to have coherence, the story must be ontologically true at some basic level.  From the perspective of Christian theology, our essential created nature is “very good” (Gen. 1:31).  Humans are God’s image-bearers, created for wholesome relationships with God, each other, and the rest of creation.  If the inclinations and brain-mind mechanisms we have inherited from our evolutionary past are called “sin,” is the image of God itself sinful, and is God then the author of sin?[7] 

The Christian account of how sin disrupts human “flourishing” also offers a different horizon than that of sociobiology.  From the perspective of sociobiology, “flourishing” is simply and only the survival of genes, and the survival of genes is simply and only a material and historical drive.  Sociobiology can speak of what “works,” but it cannot speak of what is “good.” 

For Christian theology, human “flourishing” derives ultimately from God’s goodness.  The telos of creation is peace, the harmony of right relationships and the full flowering of all the gifts God has bestowed on the creation.  This teleology of creation derives from  the perichoretic relationality of the Triune God Himself.  The creation, Christian theology asserts, is “contingent,” in that it depends on God’s creative, sustaining will for its existence.  However, the creation is not arbitrary.  It had to be and it will be consistent with God’s own loving character because God is love.  The telos of creation, including that of human beings, therefore is ultimately eternal and eschatological.   The material and historical nature of humanity, although corrupted, is not elided, but is transformed proleptically by the eternal and eschatological. 

A Christian account of law and neurobiology in relation to the problem of sin and human flourishing, then, can incorporate the findings of the neurosciences but can never permit human ontology to be reduced to those findings.  Whether a nonreductive physicalist Christian anthropology is in this sense truly “nonreductive” remains an open, indeed difficult, question.

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 IV, and here are links to Part I, Part II and Part III.

Neurobiology and the Reported Death of the Soul

Neuroscience suggests that “the brain is a physical entity governed by the principles and rules of the physical world”,” and that “brain determines mind.”[1] Contemporary neuroscience thereby claims to elide the soul and the mind – what many neuroscientists call “the ghost in the machine.”[2] All of the faculties attributed in Scholastic Christian theology to the “sensitive soul” (“locomotion, appetite, sensation, and emotion”), as well as the intellectual faculties attributed to the human “rational soul,” can or will be accounted for by brain functions.[3] As Martha Farah of the University of Pennsylvania’s Center for Neuroscience & Society puts it, “as neuroscience begins to reveal the mechanisms of personality, character, and even sense of spirituality dualism becomes strained. If these are all features of the machine, why have a ghost at all? By raising questions like this, it seems likely that neuroscience will pose a far more fundamental challenge to religion than evolutionary biology.”[4]

Some contemporary Christian theologians have responded to this challenge by doing away with the soul.  Protestant theologian Nancey Murphy, for example, argues for “nonreductive physicalism” over against traditional notions of the soul.[5] Her colleague at Fuller Seminary, Joel Green, agrees with Murphy, and argues that the Biblical witness tends towards anthropological monism rather than dualism.[6]

For Murphy, Green, and other nonreductive physicalists, “mind” emerges from “brain” in a way that allows “mind” to exercise “downward causality” – the traditional category of the “will.”[7] Thus, the human person is dependent upon, but not wholly determined by, the brain.  Murphy acknowledges that she attempts this non-reductionist move for “theological reasons” having to do with the importance of free will.[8] She notes the concern that reductionists in the neurosciences threaten to “overthrow cherished elements of our self-conceptions,” including notions of “rationality, free will, and moral accountability.”[9] As to the persistence of the person after death, nonreductive physicalists such as Murphy and Green tend to reject any notion of an “intermediate state” of disembodied “soulish” existence.  There is only, to the extent the Christian eschatological hope allows for it, a final resurrection, albeit not one that necessarily involves any continuity with the pre-resurrection body.[10]

Other Christian theologians and philosophers continue to hold to more traditional forms of dualism.  For some, such as philosophers J.P. Moreland, Stewart Goetz, and Charles Landesman, this involves old-fashioned Cartesian substance dualism.[11] In a recent book, Keith Ward draws on philosophical idealism and process philosophy to offer an alternate version of Cartesian dualism.[12] For others, including John Cooper, as well as for many Catholic theologians, it is reflected in a softer “holistic dualism.”[13] Holistic dualism is the teaching of the Catechism of the Catholic Church:  “The unity of soul and body is so profound that one has to consider the soul to be the ‘form’ of the body:   i.e., it is because of its spiritual soul that the body made of matter becomes a living, human body; spirit and matter, in man, are not two natures united, but rather their union forms a single nature.”[14] Still others prefer a notion of “dual aspect monism” to suggest that humans are of one substance (the physical) with two different “aspects,” one of which corresponds to the concept of the “soul.”[15] In holistic dualist or dual aspect monist views, the “soul” is intimately involved with the body, and the intermediate state after death and before resurrection is something less than complete.[16]

As this brief survey suggests, Christian theologians and philosophers seeking to grapple with neuroscience must account for a variety of sources in addition to the scientific, including scripture, tradition, and experience.  They disagree on whether scripture and the Christian tradition, including the important question of disembodied existence after death and prior to resurrection, require dualism of some sort.  They seem to agree, however, that Christian theology requires at least that human beings be understood as possessing some degree of moral agency.

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.

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 II, and here is a link to Part I.

Sin, the Soul, and the Need for Secular Law

If the rational soul inclines human beings to God, why do we end up with the chaos of Judges 19 when “everyone does as he or she sees fit” and gross violence ensues?  The answer – or at least a significant part of the answer, particularly in Western Christian theology – is sin.  Augustine, in particular, connected the need for a King – secular law – to sin.  Without sin, man would live by the divine law and would not become subject to other men.  Because of sin, men need the scourge and penalty of human law:

And beyond question it is a happier thing to be the slave of a man than of a lust; for even this very lust of ruling, to mention no others, lays waste men’s hearts with the most ruthless dominion. Moreover, when men are subjected to one another in a peaceful order, the lowly position does as much good to the servant as the proud position does harm to the master. But by nature, as God first created us, no one is the slave either of man or of sin. This servitude is, however, penal, and is appointed by that law which enjoins the preservation of the natural order and forbids its disturbance; for if nothing had been done in violation of that law, there would have been nothing to restrain by penal servitude. And therefore the apostle admonishes slaves to be subject to their masters, and to serve them heartily and with good-will, so that, if they cannot be freed by their masters, they may themselves make their slavery in some sort free, by serving not in crafty fear, but in faithful love, until all unrighteousness pass away, and all principality and every human power be brought to nothing, and God be all in all.[1]

The rational soul’s natural inclination towards God and the good, then, is corrupted and must be disciplined by positive law.  The extent of this corruption remains a lively debate in the Christian tradition.  Is reason erased or merely limited by sin?  Catholic, Reformed and Eastern Orthodox thinkers disagree with each other, and often among themselves.[2] Yet all agree that human beings, absent divine grace, are bound to, or at least (in the Eastern tradition) are deeply influenced by, sin.  Indeed, we find this theme embedded in the heart of St. Paul’s theological anthropology in Romans 7:

So I find this law at work: When I want to do good, evil is right there with me. For in my inner being I delight in God’s law; but I see another law at work in the members of my body, waging war against the law of my mind and making me a prisoner of the law of sin at work within my members. What a wretched man I am! Who will rescue me from this body of death? Thanks be to God—through Jesus Christ our Lord!
So then, I myself in my mind am a slave to God’s law, but in the sinful nature a slave to the law of sin.[3]

The interplay of reason, sin, and law is ingrained in the Western legal and ethical tradition.  As Harold Berman traces the trajectory of Western jurisprudence, in the interplay of Roman law with Biblical sources, the canon law came to focus on the role of positive law in preparing the soul for life with God after death.[4] Initially, the Christian theology had little use for temporal law.  Christ was expected to return within the Church’s founding generation, and  “[a]s long as the Last Judgment was understood solely as the inauguration of divine rule in the world to come, imminent or already present, it did not inspire the creation of parallel legal institutions for the interim period on earth.  The vision was essentially apocalyptic rather than prophetic.”[5]

Western Christian thinking began to shift toward the end of the first millennium, however, when it became clear that Christ’s return would not be immediate.  Elaborate doctrines of purgatory and penances were developed by the Church to deal with “ordinary” life in the absence of Christ’s return.[6] Under this system, “sin” took on a legal character, “as specific wrongful acts of desires or thoughts for which penalties must be paid in temporal suffering, whether in this life or the next.”[7] The hierarchy of sins and punishments “was to be established primarily by the moral law revealed by God first in Scripture (divine law) and second in the hearts and minds of men (natural law); but it was to be further defined by the positive laws of the church.”[8]

The resulting legal system heavily emphasized notions of human culpability.  Penitential works became identified with punishment that would expurgate the sinner of taint so that time in Purgatory could be remitted.[9] Penance was a means of God’s vengeance against human rebellion.[10]

These connections between soul and will, and law and penance, led to detailed canon law rules for assessing a criminal’s mental state so that the appropriate punishment could be meted out.[11] The canon lawyers required “a specific inquiry into the mind and heart and soul of the accused.”[12] The canon law required proof of both an intentional act and proof that the external act “revealed a depraved mind and heart and soul,” thus anticipating modern criminal law’s categories of actus rea and mens rea.[13] They developed defenses for wrongful acts committed without requisite malicious intent, for example, as a result of mistake or pursuant to a just reason such as self-defense.[14]

Although the ferment of the Age of Anxiety and subsequently of the Protestant Reformation broke down the explicitly ecclesial and salvific functions of positive law, the tradition that positive law serves to punish and correct intentional behavior persisted.  In the Reformed traditions, law was no longer understood as serving any purgative function.  Indeed, particularly in the Lutheran tradition, “law” was considered antithetical to “grace” in the economy of salvation.[15] Sin could be expurgated only by God’s grace in applying the merits of the Christ’s atoning death to the sinner.  Nevertheless, particularly in Reformed traditions influenced by Calvinism, positive law was understood as part of the sanctification of the elect within the covenant community.[16] John Witte summarizes the Calvinist-Puritan view of positive law as follows:

Every person is a prophet, priest, and king, and responsible to exhort, minster and rule in the community.  Every person thus stands equal before God and before his or her neighbor.  Every person is vested with a natural liberty to live, to believe, to love and serve God and neighbor.  Every person is entitled to the vernacular Scripture, to education, to work in a vocation.  On the other hand, every person is sinful and prone to evil and egoism.  Every person needs the restraint of the law to deter him from evil, and to drive him to repentance.  Every person needs the association of others to exhort, minister, and rule him with law and with love.  Every person, therefore, is inherently a communal creature.  Every person belongs to a family, a church, a political community.[17]

In both the Catholic and Protestant traditions, then, positive law served a penal and restorative function.  Law ultimately was designed to bend the will towards God and to lead the inner person, the “soul,” into fellowship with Him.

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.  Here is Part I.

Towards a Critical Realist Theology of Law, Neurobiology and the Soul

The neurosciences present fundamental challenges to traditional religious conceptions of the nature and functions of positive law.  These challenges stem from the deep revolution the neurosciences promise for our understanding of the nature of the “self.”  For many neurobiologists, the “self” is reducible to natural history, physics, and brain chemistry.  We are nothing more than the impulses of our brains.  At most, human “will” is an emergent property of the brain that allows us to choose among some set of evolutionary strategies.

Some contemporary legal theorists seek to tie the neurobiological understanding of the “self” to theories of positive law.  In their view, positive law is entirely a social construction shaped by sociobiology.  Normative notions of “justice,” “intent,” and “retribution,” for them, are somewhat archaic.  Positive law is best understood as an instrumentalist tool for calibrating behaviors that are construed by various social groups to benefit the group.  Any notion of a deeper ethical basis for law is elided as superfluous.  As noted philosopher Michael Ruse succinctly frames this view, “Ethics is a collective illusion of the genes, put in place to make us good cooperators.  Nothing more, but also nothing less.”[1]

This paper summarizes the challenges neurobiology presents to Christian theories of positive law, and suggests a way forward.  It begins by summarizing the Western Christian tradition’s tight linkage between theological anthropology and theories of positive law.  It next discusses the contemporary Christian theological engagement with neurobiology, which is surprisingly diverse.  The discussion then turns to points of convergence and divergence between Christian and neurobiological accounts of law and personhood.  It concludes with an outline of a methodological proposal for constructive engagement between Christian theories of law and the neurosicences.

Christianity, the Soul, and the Functions of Positive Law

The Soul in the Patristic Tradition

Throughout the Christian intellectual tradition, the “self” historically has been conceived of as multivocal and persistent.[2] The “soul” or the “spiritual” nature of human beings distinguished human from animals and rendered humans eternally accountable to God.

For Athanasius, for example, the soul was the seat of rationality and the nexus between the human person and divine law.  As Athanasius said in his early fourth century treatise Contra Gentes, “the rational nature of the soul is strongly confirmed by its difference from irrational creatures. For this is why common use gives them that name, because, namely, the race of mankind is rational.”[3] Because of the  rational soul, human beings, and only human beings, become amenable to law.  Athanasius notes that

the body is not even constituted to drive itself, but it is carried at the will of another, just as a horse does not yoke himself, but is driven by his master. Hence there are also laws for human beings to practise what is good and to abstain from evil-doing, while to the brutes evil remains unthought of and undiscerned, because they lie outside rationality and the process of understanding. I think then that the existence of a rational soul in man is proved by what we have said.[4]

Likewise, Augustine emphasized the link between the rational soul and Divine law.  For Augustine, as for Athanasius, the rational soul distinguished humans from brute animals, enabling humans to seek transcendent knowledge.  Yet the soul requires discipline.  “[O]wing to the liability of the human mind to fall into mistakes,” Augustine warned, “this very pursuit of knowledge may be a snare to him unless he has a divine Master, whom he may obey without misgiving, and who may at the same time give him such help as to preserve his own freedom.” [5] Therefore, a mortal person “walks by faith, not by sight,” and “refers all peace, bodily or spiritual or both, to that peace which mortal man has with the immortal God, so that he exhibits the well-ordered obedience of faith to eternal law.”[6]

These examples from Athanasius and Augustine reflect a broad theme in the Christian tradition:  the rational soul is the seat of the intellect and the will, and it naturally impels human beings towards God’s law.  Human beings, however, do not obey God’s law.  The familiar refrain of the Biblical Book of Judges highlights what happens when the legitimacy of secular law is eroded:  “In those days Israel had no king; everyone did as he saw fit.”[7] As modern people, we are inclined affirm this as good, but as the story of the Levite and his concubine in Judges 19 makes clear, the fruits of this circumstance are betrayal, rape, oppression and violence.[8]