The Anglican Communion, including the Episcopal Church, considers itself the via media (“the middle way”) between the rest of Protestantism and Roman Catholicism. Richard Hooker, an Anglican priest and theologian, cleared this path from a theological and philosophical perspective through his book Of the Laws of Ecclesiastical Polity, published in two sections in 1593 and 1597. But in the process of becoming the first great theologian of Anglicanism, Hooker – along with John Locke a century later – created a middle way in political theory between a Calvinist theocracy and an absolute monarchy. In so doing, Hooker and Locke brought Thomas Aquinas’s medieval natural law understanding into England’s early modern period and made it available for the American Founders. The sixteenth century argument for a Calvinist theocracy and the seventeenth century argument for an absolute monarchy were opposite extremes that rejected at least three medieval notions: the existence of a natural law by which a community may judge positive law and the rulers who propagate or enforce them, the existence of a civil society that predates a political one, and the proposition that all men are created equal.

Crown under LawMost of my information comes from reading Locke’s Second Treatise of Government as well as Alexander S. Rosenthal’s book Crown Under Law: Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism, published in 2008. Rosenthal doesn’t describe Hooker’s and Locke’s philosophies as a middle way, and he doesn’t look for similarities between Hooker’s opponents and Locke’s as I do here, but he demonstrates the almost complete similarity among the natural law theories of Aquinas, Hooker, and Locke. Most of what some writers have found dissimilar among the writers has more to do with emphasis, which in turn has to do with the historical time frame in which each wrote and the particular audience and arguments each was addressing.

Hooker believed that the Calvinist conception of law threatened to overthrow English law and government. Hooker wrote his Laws as part of a pamphlet war with Puritans (English Calvinists) who were disappointed that Elizabeth’s settlement, while outlawing the practice of Roman Catholicism, retained several Catholic practices, such as the use of priests’ vestments, and more importantly for my purposes, asserted Parliament’s authority over the Anglican church’s ritual and government. The Puritans didn’t believe the state should have any say over church affairs, even over “things indifferent” – the designation Elizabeth’s backers used to describe church practices which the Scriptures seem to neither condemn nor condone. As Calvinists, Puritans believed that God was indifferent to nothing in his church; if a practice could not be discovered in Scripture, then it was anathema to God (18 – 20). This Calvinist argument was often applied to both civil and ecclesiastical government. Hooker’s chief opponent, Thomas Cartwright of Cambridge University, argued that “the positive enactment of Scripture alone should be the guide of all civil and ecclesiastical affairs and whatsoever is without explicit warrant in Scripture is without warrant at all,” according to Rosenthal. Hooker feared that the Puritans would effect in England what the Anabaptists effected on the continent: “From this they proceeded unto public reformation, first ecclesiastical, and then civil,” he pointed out (88).

Hooker argued that the Scripture was only one of three forms of law binding on men (as opposed to God or beasts). In doing so, he was asserting what had been the basis of English law up until that point, taken from Thomas Aquinas:

In the Thomistic theory of law, man is not only under the divine positive law, but under a “three fold” subjection to the three orders of law – the divine positive law revealed in Scripture and known by the supernatural light of faith, the natural law discerned by reason and founded upon human nature itself, and finally the human positive law enacted by the civil authority. (20)

The middle of these three orders – the natural law – is best known to us from references to it in the Declaration of Independence, but it has been out of vogue since the end of the American Civil War. Aquinas discovered “first principles” of natural law, which he called “self-evident truths” available to all mankind through reason. An example would be that all things seek after good, that is, that all things seek to actualize how they were designed. “Second principles” are not as self-evident, he wrote, and people may need Scripture (for instance, a lot of the Decalogue) or the teaching of the wise to assist their reason in order to apprehend them. Examples of secondary principles are honoring parents, not stealing, and not committing murder.

According to Aquinas, natural law is discernible chiefly through man’s ability to reason, but reason is an ability that Calvinists believed man lacked after Adam’s fall. It is therefore the Calvinists’ pessimism concerning human nature that led them to reject natural law. From Crown Under Law:

Thus Calvin wrote that:

It cannot be doubted that when Adam lost his first estate he became alienated from God. Wherefore, although we grant that the image of God was not utterly effaced and destroyed in him, it was, however, so corrupted, that any thing which remains is fearful deformity.

With this conception of post-lapsarian man, it is not hard to imagine why the older conception of natural law – where man is able to discern certain ends within nature by his natural powers – comes under increasing skepticism among the Calvinists. (47)

Aquinas’s view of post-lapsarian human nature was more optimistic:

A central Thomistic motif is . . . Grace strengthens and perfects nature but does not destroy it. The natural powers of human reason and will, though affected and disordered by the Fall, but [sic] still retain some of their natural potency and goodness. Man in Aquinas has two lights to guide him, the natural light of human reason, and the supernatural light of faith. (49)

Calvin’s pessimism is linked not only to his understanding of post-lapsarian man but also to his famous views on predestination, which in turn colored his followers’ views on whether a civil society existed before a political one and whether all men are created equal. Predestination, of course, is kind of a “Can God make a rock so big that he himself can’t lift it?” controversy, but it was never considered to be reducible to such a simplistic formulation. Nevertheless, at the heart of the controversies surrounding predestination have always been the theological problems associated with either a yes or no answer to whether God ordains some souls to eternal damnation:

To answer in the negative might seem to question God’s providence over all events and omniscience, since God being omniscient would certainly foreknow from before the moment of their creation that some persons would be lost . . . . But to answer yes might seem to call God’s beneficence and justice into question, as well as God’s desire to save all men . . . (24)

Aquinas nevertheless answered the question in the negative, threading the needle somewhat by reasoning that reprobation is “a consequence of the free rejection of God’s grace and not of God’s antecedent will for the reprobate. On the other hand, Aquinas does not hold that predestination to eternal life is conditional, but rather absolute, meaning that God’s election of the predestined occurs without consideration of his foreknowledge of their merits.” God compartmentalizes his foreknowledge so that people have a choice.

Calvin, however, answered the question unequivocally in the positive:

All are not created on equal terms, but some are preordained to eternal life, others to eternal damnation; and, accordingly, as each has been created for one or other of these ends, we say that he has been predestinated to either life or death. (25)

Calvinist views on predestination and the complete depravity of man after the Fall colored the Puritan understanding of law. To the extent Calvinists believe in a natural law, it takes on a strain of natural law called voluntarism developed by fourteenth century Franciscans such as William of Ockham. A voluntarist view of law emphasizes the superiority of the lawgiver over the law. Therefore, the divine will expressed in natural law is more important than its teleological purpose. Rosenthal summarizes the debate:

If then the natural law proceeds from divine reason, then a given act may be good or evil in virtue of its own intrinsic nature. Since goodness belongs to the very nature of the divine essence, God could not will that an intrinsically evil act be good. If however the natural law proceeds solely from divine will, then there is nothing intrinsic to any given act to make it good or evil – it derives its moral character solely from the divine command. (290)

In contrast to Ockham’s, Aquinas’s and Hooker’s notions of law start with God’s divine nature and not with his superiority over the law. Under Hooker’s expression of natural law, “the first law eternal lies within the divine nature and is that by which God determines His purposes and binds Himself to them. The second law eternal consists in the eternal law as mirrored in the purposes of nature and mediated through the hierarchy of being” (55). For Aquinas and Hooker, natural law is teleological as it was for Aristotle: its primary purpose is to allow each kind of being under its purview – human, animal, and plant – to become what it was designed to become. And God binds himself by his law – he creates the rock so big that he himself can’t, or at least won’t, lift it.

But for Calvinists such as the Puritans, natural law, at least this essence of natural law as it was developed by and handed down from Aristotle, Aquinas, and Hooker, was not possible. Man in his natural state is too depraved, and his reason is too much under the influence of sin, for him to have been guided by it.

Closely associated with the existence of natural law was the rights and responsibilities of the government enforcing the law. For political theorists in the sixteenth and seventeenth century, man’s state before government determined whether rulers served with the consent of the governed or whether they ruled by right. Hooker and Locke believed that man was in civil society by nature and moved into political society by choice. In other words, civil society preceded government and is not coterminous with it. Rulers therefore serve by the consent of the governed and not by right.

Aquinas and Locke recognized a right of resistance when a ruler violates natural law. Hooker never addressed a community’s right of resistance against a ruler because, in his pamphlet war with the Puritans concerning the extent to which the Crown could govern ecclesiastical affairs, the issue never came up. Like Hooker, Locke worked out his most important ideas on political theory as part of a tract war, but unlike Hooker, the issues Locke addressed directly bore on the extent of royal power over society as a whole. (Despite their different purposes for writing, however, Locke quoted Hooker extensively in his two treatises; well over ninety percent of the quotations he included to support his material was from Hooker.) Locke’s two Treatises on Government were in response to arguments by patriarchalists that rulers served by right as descendants of Adam. Patriarchalists applied the metaphor of a father’s right to rule his children to a king’s right to rule his people. (King James I was, more than any English monarch before or since, enthralled with patriarchalism.) Patriarchalists believed that men were not born free or equal since some were born to rule and the rest weren’t. While Aquinas, Hooker, and Locke all acknowledged that people are not equal in the sphere of their talents, all three asserted that people were born with equal political rights. Although Aquinas’s theory wasn’t worked out in the direction of whether rulers served at the consent of the governed, he acknowledged a populace’s right to resist its ruler if his positive law or his execution of that law violated natural law. Locke’s Second Treatise of Government is in agreement with Aquinas’s views concerning a people’s right to resist its ruler but offers a lot more hypothetical situations to flesh out how that right would work in practice.

The recent Supreme Court decision in Citizens United v. Federal Election Commission reminds us that conservative forces can alter tradition and precedent as easily as progressive forces, and such was the case with patriarchalist theory as well as the idea of absolute monarchy that it supported. In the pamphlet war in which he was engaged, Locke and the core of his natural law teaching were backing tradition, and his opponents were seeking to establish a modern innovation.

Contrary to a popular misconception, the absolutist conception of government where the sovereign or king is both the source of law and above the law is much more a product of early modern thinkers (e.g., Bodin) than the medieval tradition. The medieval political order rested on a delicate balance between kings, feudal princes, and the Roman Catholic church, with the whole structure conceptualized as a loose unity under the Pope as spiritual head and the Emperor as temporal head. By the sixteenth century, the Royal authority tended to gain in relative position – the federation of Christendom was giving way to a Europe of nations ruled by kings. On the level of practical power, the consolidation of the national monarchy in, for example, Spain, France, and England undermined the older feudal structure with the rise of centralized professional bureaucracies and armies. In England, Scandinavia, and elsewhere we see also the effort to bring ecclesiastical affairs under royal jurisdiction. The new power of kings made an absolutist system a practical possibility in the early modern period. (89)

Although on opposite sides of the ecclesiastical (and, therefore, political) spectrum, Puritans and absolute monarchists had some similar basic elements in their political theories: people were not born free, people were not created equal, and rulers served by right and not by consent of the governed.

Medieval natural rights theory, as it expanded slowly over the centuries, had to defend itself against single-order, positive law systems in the eighteenth and nineteenth centuries just as it did in the sixteenth century against the Puritan notion of a theocracy and in the seventeenth century against the patriarchalist notion of an absolute monarchy. Many ideas in the American Constitution, including freedom of religion and freedom of the press – not to mention something close to pure representative democracy – were real innovations in European and American history. However, natural law, natural rights, and the equality of man enshrined in the Declaration of Independence were recognized aspects of political theory from at least medieval times. In some sense, the American Revolution was not a revolution but a war to apply rights under the English Constitution and medieval natural law to Americans.

The American Civil War, too, was a struggle between a conception of law that included natural law and one that involved only positive law. As I’ve discussed elsewhere, John Calhoun, the political theorist behind Southern secession, argued that men were not born free, that men were born into a political state by nature, and that men were not created equal in any sense. And Stephen Douglas, Lincoln’s opponent in both 1858 and 1860, argued for his doctrine of “popular sovereignty” by putting the natural-law notion of man’s equality up for a territory-by-territory vote as if natural rights didn’t exit or could be overturned by popular vote. (While natural law detractors – at least as natural law was applied to Americans – were royalists during the Revolutionary War, they were sometimes proponents of majority rule before and during the Civil War.) As the Gettysburg Address makes clear, Lincoln saw the war’s central issue as whether a government dedicated to a central natural law proposition could endure.

Most people, I think, believe our nation is better off as it is now with only one order of law – positive law. I think we’re worse off for it. I’ll address four arguments I’ve heard against the idea of natural law. The first is the Christian-nation argument. Because we receive much of our understanding of natural law in Christian terms from the likes of Aquinas, Hooker, and even Locke, some believe that a return to natural law would be tantamount to becoming a Christian nation with a government dedicated to living out someone’s or some group’s understanding of the Bible. I believe a system of only positive law would run the greater risk of that happening. It was Hooper’s notion of multi-ordered law – a system of law that included medieval natural law – that countered the Calvinists’ single-order, positivist system of law. And today’s adherents of something like a Christian nation see human nature, law, and government much more like Calvin than Aquinas.

Besides, self-righteous movements such as the Communists, Nazis, and Islamists that toppled governments over the past hundred years were rarely later accused of doing anything illegal under their own systems of law – systems offering no recourse from unjust positive laws. The Nuremberg trials faced this dilemma at their outset (Rosenthal 249).

A second argument concerns our national values. Some people think that never having to decide on the values that animate our laws and Constitution would serve to unite us, or at least, unlike natural law, not do anything more to divide us. But positive law cannot long be a means of uniting us, if the experience of the last twenty or thirty years is any indication. One group’s legislation always seems to be another group’s injustice and outrage – often an outrage not based on reason, facts, or history.  Much of today’s outrage has its origins in poorly-thought-through sets of values discovered or developed not by national debate but within intellectual ghettos – echo chambers where points of view are always reinforced and never challenged. Perhaps a national discussion of natural rights might help us look back to clarify our nation’s values again – values not voted upon but discovered in the political philosophy our Founders chose to enshrine in some our chief founding documents. Looking to history as a source of the Framers’ political philosophy instead of only as a source of legal precedent sounds healthy, too.

A third argument against natural law is the perceived vagueness of the terms used by the likes of Aquinas, Hooker, and Locke – the end of man, happiness, life, liberty, and equality, for instance. I’m not sure if this vagueness is a good or bad thing. There’s something via negativa about the via media – something that courts can’t pin down the way they can the constitutions, statutes, regulations, and case law of the lex positiva. On the other hand, perhaps the jurisprudence of our liberal republic is well suited to apply such concepts in specific cases, having grappled over the years with rather vague notions such as due process, interstate commerce, and the establishment of religion.

A related argument is that courts would have to construe philosophical – yea, even theological – texts in order to flesh out natural law. As a trial lawyer in Virginia – the state with the least number of printed appellate opinions per year of its existence – I was sometimes in the position during property rights disputes of having to argue state supreme court opinions construing masters’ ownership rights in their slaves. Surely philosophy and theology aren’t as bad as that. Besides, as someone who has studied a little philosophy, theology, and law, I think the study of philosophy and theology might have a salutary effect on our jurisprudence.

Lincoln argued for the ascendency of natural law when he argued that the Declaration of Independence was the “sheet anchor of American republicanism.” We would do well to examine Lincoln’s call for a “political religion” – not one involving just the adherence to positive law, as he seemed to emphasize when he first used the term in 1838 – but one that involves the mature political religion he developed over the last dozen years of his life. Few people today would understand Lincoln’s political theory as calling for anything like a Christian nation.

I question whether a Constitutional convention – even one that would, upon its conclusion, be recognized by most as wildly successful – would go far to solve the fundamental problems of our republic. We’d still be left with a constitution and with only flawed strategies such as “original intent” and “living constitution” for interpreting it. Natural law, on the other hand, was recognized early on as a natural means of judging the validity of positive law.

I’m just beginning to work some of this stuff out, and I look forward to learning more about natural law and rights as time permits. As emphatic as I sound, I’m really just laying my thoughts’ keel here. I haven’t launched them, and I certainly haven’t commissioned them.

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Crown Under Law crystalized for me three misconceptions under which I believe many of my fellow citizens labor. The first – the misconception that reason is antithetical to faith – is mostly among Christians, though I believe they have managed to persuade many of their non-Christian neighbors that it is a tenet of Christianity. In fact, reason was far more prominent in medieval Christianity’s cosmology than it is in Protestant Christianity’s. The failure of many Protestants to acknowledge man’s ability to reason about what matters most probably led to the cession of reason to more secular concerns. “The Age of Reason” may have been instituted in part by the Reformation’s overall rejection of reason as a means of apprehending God’s eternal law. Indeed, “reason” is still a naughty word today in many Protestant strands. For most pre-Reformation Christian theologians, though, faith was never opposed to reason; instead, faith and reason were means of comprehending different orders of God’s law – faith for Scripture, and reason for natural law. Proper Christian theology has never left an “Age of Reason.”

The second misconception is the lasting notion that Locke and some other Enlightenment figures such as Thomas Hobbes invented natural law and natural rights – or at the least they put an entirely new secularist understanding on an already-outmoded medieval theory – permitting the Americans the necessary cover from the standpoint of political theory to rebel against English rule. Instead, the absolute monarchy is the modern innovation which threatened a balanced system of English government. Absolute monarchy is the modern innovation, and not the lion’s share of the natural law explicated by Hooker and Locke.  As Locke himself put it in his Second Treatise:

Though they [the earliest societies] never dreamed of monarchy being iure divino, which we never heard of among mankind till it was revealed to us by the divinity of this last age; nor ever allowed paternal power to have a right to dominion, or to be the foundation of all government.

The last misconception is similar to the second one, I think. It’s this: Locke’s natural law and natural rights theories are somehow a godless bastardization of classical or Thomistic natural law – a radical departure from the past and one that has led to a less virtuous American citizenry and nation. For this misconception I blame the twentieth century philosopher Leo Strauss’s book Natural Right and History more than anything else. (I hope to blog about Strauss’s negative impact on the struggle to understand natural rights before too long.) In truth, the nation’s all-too-brief reconciliation with Locke’s natural law and natural rights theories just before and during the Civil War helped to save the Union and led to a more just society.

 

Posted July 1, 2010.