Law needs theology

Pierre Manent, in his Natural Law and Human Rights, offers a straightforward diagnosis of western societal ills. He asserts, “I believe that the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is; we have lost the intelligence of law.”

Among other things, “rights” and “self-interest” as abstractions have been elevated above the human person who asserts them. That is, the nature of man himself. Law is no longer intended to serve that metaphysical, objective reality. Anything that confronts this progression is met with charges of anachronism, theocracy, and the like.

An illustration of this protection of progressive pieties was on display lately in America’s paper of record.

Linda Greenhouse, writing for the New York Times, decried a recent ruling from U.S. District Judge Matthew Kacsmaryk that imposed a nationwide ban on the abortion drug mifepristone and castigated the FDA for having improperly approved the drug.

The winding procedural path subsequent appeals and stays have taken is not important; it is not central for Greenhouse either. A more basic inquiry is in play. In a strained hypothetical, Greenhouse equivocates between Tylenol and the abortifacient. The only explanation for a court distinguishing between the two drugs is simple: “In one word, religion.”

“The basis for the belief that a fetus in the first 10 weeks of pregnancy—the time limit the FDA has set for medication abortion—is the moral equivalent of a baby is theological.” Greenhouse says. Judges are “entitled to their beliefs” but as judges they are not entitled to “project those beliefs onto the rest of us.”

The evidence of said projection? Kacsmaryk’s and the Fifth Circuit panel’s repeated use of “unborn human” or “unborn child” language, the language of the pro-life, Christian theology. Or, in other words, a challenge to an unfettered “right” to abortion on the basis of human personhood derived from outside the subjective, “rights” clamant. Greenhouse breathlessly declares all this “a religious complicity claim run amok.”

An obvious question emerges here. Is the recognition of basic human anthropology tantamount to sectarian declarations from the bench? Or we might ask, is a just legal regime feasible without it?

The foundation of law is moral philosophy and, specifically, anthropology. Another term for this is natural theology. For an ordinance of reason to be established and applied for the good of man, lawmakers—those with care for and authority over the community—must first know what man is and what good is. All law is a manifestation of morality in this sense. It is concerning, then, when judges cannot or will not define the basics of human nature, the distinction between male and female or the humanity of the unborn, for example.

Such was not always the case. The nature of man used to be the starting place for American jurisprudence. Judge Kacsmaryk is in good company.

James Kent (1763-1847) told his students at Columbia in 1794 that the “mere Mechanical Professors of our Laws” were wrong to discard “doctrines of Moral Philosophy” as the “foundation of Human Laws,” which he considered an “essential part of Juridical Education.”

For Kent and his contemporaries, the science of jurisprudence began not with abstractions but with “the nature and moral character of Man.” Modern, psychological man is not in view here, but rather man as he was created, body and soul.

Citing Jean-Jacques Burlamaqui’s Principles of Natural Law (1747), a ubiquitous text in the founding era, James Wilson (1742-1798) declared it a “solemn truth” that God, as “our creator” is “the true source of all authority” including over the nature and telos of mankind. Other typical fundamental principles repeated regularly by judges in the early republic were man’s inescapable, ingrained sociability and religiosity. He is not made to live alone, and he possesses a natural sense of divinity; he cannot flourish alone, and he will be restless until he finds his rest in God, to paraphrase Augustine.

And, of course, William Blackstone (1723-1780) included in his Commentaries, once read by every lawyer of the British and American traditions, that “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” That is, as soon as its existence is made known. A baby in the mother’s womb “is supposed in law to be born” for the sake of homicide, inheritance, guardianship, and the like.

All this was once standard legal fare, as much as Greenhouse might dismiss it as a superstitious, theocratic imposition in violation of some unwritten procedural norm of moral recusal. To make and adjudicate law, such presuppositions are inescapable and necessary—at least law that serves human beings. Indeed, Greenhouse’s own equivocation between a mild, over-the-counter painkiller and mifepristone exhibits its own form of theology. It is the same degraded theology that defies the authority of the created order, of human biology, but rather subjugates that order to the whims of subjective self. It features the same feigned ignorance of Genesis 3.

At this point we must adjust Aleksander Solzhenitsyn’s maxim. We have forgotten both God and man. That is why all this has happened. What else could explain such moral confusion?