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CHAPTER 8: Justice, Natural Law, and Reformation Theology * - Paul Heyne, “Are Economists Basically Immoral?” and Other Essays on Economics, Ethics, and Religion 
“Are Economists Basically Immoral?” and Other Essays on Economics, Ethics, and Religion, edited and with an Introduction by Geoffrey Brennan and A.M.C. Waterman (Indianapolis: Liberty Fund, 2008).
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Justice, Natural Law, and Reformation Theology*
The “crisis in law” is almost axiomatic today. The apparent impotence of positivistic conceptions of law in the face of the totalitarianisms of our generation has brought fresh urgency to discussions of natural law. There is general agreement that ancient or classical conceptions of natural law cannot simply be summoned back to life in the twentieth century. But theologians and, with increasing frequency, jurists are insisting that some way must be found to deal with the “lawlessness of law,” to recover a “natural rule of justice,” to establish a criterion of legality which “everywhere has the same force and does not exist by people’s thinking this or that.”1
Wilber G. Katz, Professor of Law in the University of Chicago Law School, has been an influential figure in the continuing conversations of theologians and jurists. He asks:
What is it that the Christian lawyer asks of the theologian? He is seeking primarily for help in dealing articulately with a widely held legal-ethical philosophy which he senses is inconsistent with Christianity. This is the philosophy of legal positivism (which attempts to insulate law from morals) and ethical relativism (which reduces morals to a matter of personal opinion and cultural history). The lawyer Christian rejects this position; he knows that law is not merely a means by which the powerful impose their wills upon the remainder of the community. He insists that criticism of rules of law is not merely expression of subjective preference. . . .
But the Christian lawyer runs into difficulty when he looks for satisfactory terms in which to declare his belief in the moral foundations of the law, when he seeks for the meaning of objectivity in legal criticism and for criteria in terms of which law may be criticized.2
In what terms can the Christian lawyer declare his belief in the moral foundations of the law? That is the principal question. But let us be clear about the question: Why should he want to?
And the answer is that the Christian lawyer believes right and wrong are not merely conventional, that they are in some sense rooted in the nature of things, that certain acts would be wrong though no law condemned them, and that laws themselves are capable of being illegal or, to avoid the apparent contradiction, unjust.
Thus the Christian lawyer asks for the standard of justice. He finds himself driven toward the conception of a law beyond the law, a higher law by which positive law may be judged.
Here, then, is the question with which this paper begins: Does Reformation theology have any answer for the jurist who asks for the standard of justice? In stating the question thus we do not intend to be bound by the specific declarations of the sixteenth-century reformers. But we do declare our theological starting point: the principle of justification by grace through faith, as understood in the Lutheran Reformation.
Lutheran theology has historically been guided—some would say obsessed—in its theological method by the distinction between law and Gospel. The Formula of Concord declares:
Nachdem der Unterscheid des Gesetzes und Evangelii ein besonder herrlich Licht ist, welches darzu dienet, dasz Gottes Wort recht geteilet und der heiligen Propheten und Apostel Schriften eigentlich erkläret und verstanden: ist mit besondern Fleisz über denselben zu halten, damit diese zwo Lehren nicht miteinander vermischet, oder aus Evangelio ein Gesetz gemacht, dardurch der Verdienst Christi verdunkelt. . . .3
God has two distinct ways of dealing with men, through the law and through the Gospel: this is the methodological presupposition. This schematization of God’s activity is in turn the basis for the doctrine of the two realms. The Christian is alleged to live in two kingdoms, one characterized by law, the other by grace.4 The kingdom which God rules by law is the kingdom of this world, the kingdom to which all men belong by virtue of their creation. But God also rules by the Gospel, in the kingdom not of this world, the kingdom to which only the Christian belongs and that by virtue of his redemption.
The inference drawn from this schematization of God’s activity is that the Christian lives by two different sets of lights, under two sets of imperatives, with two largely independent concerns. In the kingdom of law he pursues the goals of order, minimization of conflict, reasonable equity, and the preservation of physical life by preservation of the necessary conditions of life. This is justice. In the kingdom of the Gospel, however, mere justice gives way to the life of love. The Christian does not resist evil, forgives all, and is prepared to sacrifice his life or to risk the loss of the conditions of life.
Emil Brunner, though not a Lutheran, is the best-known of contemporary theologians employing this approach. It informs somewhat the fragmentary Ethics of Dietrich Bonhoeffer, though we would hold he has definitely emancipated himself from the system. And it dominates the ethical treatises of Lutherans generally.5
These two realms are not, of course, to be thought of as separate and unrelated. They are always united in the person of the individual Christian. And rather than being an attempt to keep the world at arm’s length, this is a view designed to hold civilization and Church together—without permitting either to interfere with the proper autonomy of the other. It is the view which H. Richard Niebuhr ably describes under the heading “Christ and Culture in Paradox.”
For Luther there was simply no way to gain knowledge of statecraft from the Gospel; nor was it necessary to do so, since another source of such knowledge was available. Similarly, there was no way to extract the spirit of service, humility, and confident hopefulness from political principles. These areas had to be distinguished sharply, for the failure to do so would lead to a perversion of both. If rules for the political community are drawn from the Gospel, we are in danger not only of destroying the political community, but also of confusing the Gospel with human efforts, of substituting human self-righteousness for the righteousness of God, and thereby making the Gospel void and without effect.
Christ deals with the fundamental problems of the moral life; he cleanses the springs of action; he creates and recreates the ultimate community in which all action takes place. But by the same token he does not directly govern the external actions or construct the immediate community in which man carries on his work.6
This is the point to be emphasized: For Luther the rules to be followed in political life were independent of Christian or of church law.
But to say this is to seem to say too much. For Luther did not contend that the State was free to do as it pleased, that there was no higher law by which positive law could be judged. The law of the State was to be judged, not by the Gospel, but by the law of nature.
In recognizing the existence of a natural law all the reformers, with the possible exception of Zwingli, simply preserved continuity with the Middle Ages. The natural law is not a conclusion but an assumption of their thought. There is, according to Luther, a law of nature “inhering in the conscience,” “naturally and indelibly impressed upon the mind of man.” Even if God had never given the Decalog, Luther asserts, the mind of man would naturally have the knowledge that God is to be worshipped and our neighbor loved. Though Luther’s view of reason was more pessimistic than that of Aquinas, so that he was less confident of man’s ability truly to perceive the law of nature and to act upon it, he was nevertheless not willing to give up the assumption that all men had some knowledge of the natural law sufficient to provide a basis for human law.7
The Lutheran Confessions echo this view, speaking of “das natürliche Gesetz . . . in aller Menschen Herzen angeboren und geschrieben ist,” of “das Gesetz Gottes ihnen in das Herze geschrieben, und dem ersten Menschen gleich nach seiner Erschaffung auch ein Gesetz gegeben darmach er sich verhalten sollte,” and again of marriage as a “creatio seu ordinatio divina in homine” which is “ius naturale,” for which reason “sapienter et recte dixerunt iuris-consulti coniunctionem maris et feminae esse iuris naturalis.”8
As Lutheran theology began to systematize its differences with Rome and Scholastic theology, the concept of natural law gradually gave way to that of the orders of creation. Brunner defines them as
those existing facts of human corporate life which lie at the root of all historical life as unalterable presuppositions, which, although their historical forms may vary, are unalterable in their fundamental structure, and, at the same time, relate and unite men to one another in a definite way.9
Werner Elert speaks of “forms of existence” which “represent God-given realities. This structuralization of society does not create order, it is order.”10
Much of Continental theology has continued, consequently, to discuss justice under the doctrine of Creation. Emil Brunner’s Justice and the Social Order is probably the best-known example of this theological approach, illustrated also by his The Divine Imperative and the two-volume work on Christianity and Civilization. Brunner is not willing to concede to the positivists that there is no “law above the law.” Nor will he grant that justice, the criterion of positive law, can be known only by the regenerate. Justice is the demand of God as Creator, and it therefore sets standards for all human action, also in the secular state.
The doctrine of Schöpfungsordunungen is thus an obvious Protestant (more specifically Lutheran) counterpart to the Roman Catholic use of natural law. It would seem to differ only in the theological insight which it seeks to preserve: the distinction between law and Gospel and the doctrine of justification by grace through faith which that distinction is meant in turn to preserve. By placing their natural law teaching in the context of God’s twofold activity, as Creator and Redeemer, and thus developing an explicit or implicit doctrine of the two kingdoms, Lutheran theologians have meant to provide a social ethics without diminishing the radical tension between law and grace.
This paper in its effort toward the construction of a social ethics also wishes to preserve the tension between law and grace, insofar as the preservation of that tension is essential to the explication of the fundamental and determinative article of belief: justification by grace through faith. We are not convinced, however, that the doctrine of the two kingdoms is necessary to this end, nor that it succeeds in accomplishing today the purpose for which it was evolved, nor that it is even true to its own controlling and shaping insight.
Let us return to the concept of justice, a concept which we obviously hold to be fundamental for social ethics. Now no discussion of Reformation theology and justice can possibly ignore the Biblical message of the “righteousness of God.” It was Luther’s gradually clearer appreciation of the nature of God’s righteousness, referred to in both Old and New Testament, which eventually led to what is sometimes called the rediscovery of the Gospel. This is history that does not require retelling. Nonetheless, it is customary for Lutheran theologians to discuss the problem of justice without mentioning the Old Testament tsedeqah or the New Testament dikaiosune.
English usage distinguishes by a terminological convention the dikaiosune (or tsedeqah) of God and the dikaiosune (or tsedeqah) of men. Such a distinction via terminology, between the righteousness of God and the justice of men, may be rooted in a more basic distinction. But it may also serve to conceal a deeper unity. We have chosen to translate dikaiosune, tsedeqah, and their variant forms along with the German Gerechtigkeit and its variants with the single word justice. We feel this aids rather than retards understanding.
We would begin, then, by asking the question: What light is thrown by the Biblical message as a whole on the problem of law and justice?
The Third Ecumenical Study of the World Council of Churches states that
the Christian integrity of the Biblical teaching about law and justice can only be appreciated and safeguarded provided we acknowledge from the outset that the Bible’s first word to us concerns God’s justice which actively secures justice for men by the justification wrought in Christ.11
The value of starting at this point may certainly be questioned. But it must be remembered that we are concerned to relate Reformation theology to a problem of contemporary society. We may finish constructing the bridge and then find that the actual terminus ad quem is not the one we had intended. We may find that the bridge is too shaky to support more than a minimum of traffic, and then only adventuresome travelers at that. But at least we shall not find, at the conclusion of our task, that in attempting to build a bridge from here to there, we didn’t even start here. The terminus a quo is Reformation theology and, therefore, the Biblical description of God’s justice.
Justice, as the Bible speaks of it, is not best conceived as a quality of some persons or of some action taken in isolation, but rather as a personal contribution made within a concrete relationship. It is directed towards maintaining the security and the right of the parties involved, and toward rectifying the relationship where it has been damaged or broken. The relationship which is always in view when the Bible speaks of God’s justice is a covenant which he has made with human partners; a covenant by which he committed himself to establish mankind in an existence which secures the honor of both parties. This existence is a life for man in community with God and with his fellow-men which rests on the basis of self-giving love.12
The New Testament is especially clear that man’s status over against God and over against his fellow man has been re-created and secured against assault by God’s intervention, the justice of God.
The Ecumenical Study from which we have been quoting concludes:
There is a divine answer to man’s craving and man’s quest for justice. There is the justice of God. But this justice of God is active in his works and ways. It has a strangely “historical” character. It is expressed in particular acts of salvation which are indeed the very foundation of all history. It cannot be reduced to some abstract quality inherent in these acts, nor to some hidden mystery which these acts suggest. It is justice clothed in action and vested in power. All that enters into human experience under the names of law and justice stands related to it. . . . This conviction is one with which faith must wrestle, not only in theory but also in practice.13
It seems to me that this account necessitates a considerable departure from the two kingdoms doctrine. For it abandons the assumption traditional within Lutheranism (and much of Protestantism) that the basis for justice in human life is to be found by exclusive reference to the first article of the Creed. It abandons the notion of Schöpfungsordungen in order to treat the Christian concern for justice within the context of the Christian life, as a concern vitally related to God’s redemptive activity. While it undoubtedly runs the risk—this would probably be the orthodox Lutheran objection—of confusing law and Gospel, and therefore eo ipso of obscuring the cardinal principle of justification by grace through faith, it does have considerable merits even within the theological circle which it appears to threaten.
These may be detailed briefly. First of all, it strikes at the roots of the ethical schizophrenia which seems to characterize much of Lutheranism. It was indeed no part of Luther’s intention that his followers should live in two worlds, in one of which their faith was totally irrelevant. But this is what seems to happen. To fulfill one’s vocation in love has come to mean simply to fulfill one’s vocation, that is, to do whatever is normally done by persons stationed similarly. The alternative here suggested at least recreates tension where the doctrine of the two kingdoms had the effect of alleviating all tension.
Secondly, this view, however skimpy the guidelines which it eventually provides, at least does not suggest that the Christian has no peculiar direction in his political life. At minimum it allows room for such a notion as the Christianizing of the law or the re-structuring of society in accord with Christian ideals. These remain elusive and treacherous slogans, but the doctrine of the two kingdoms simply left the ordering of society exclusively to those, Christian or non-Christian, who happened to possess the best scientific information. Again, this outcome was not part of Luther’s intention.
Thirdly, the proposed view seems to take seriously the faith of the Reformation itself. We confess ourselves at a loss to explain the readiness of orthodox Lutheranism to limit and circumscribe so sharply its own controlling insight: the conviction that there is ultimately no justice save the justice of God. God’s justice has been deemed adequate to rectify the broken relationships of individual men. It has somehow not been deemed adequate to the needs of a community of men (in spite of the Old Testament witness). This emasculation of the controlling idea has gone so far as to deny the ability of God to justify entire classes of actions which Christians might feel compelled to take as they sought, in one of Luther’s favorite expressions, to “let faith be active in love.”
Finally, the doctrine of the two kingdoms compelled the development of a theory of natural law, one which took the specific form of the doctrine of created orders. Lutheranism does not seem ever to have asked whether this doctrine could itself be an integral part of Reformation theology. The answer seems to me to be a clear “no,” though a somewhat unusual kind of “no.” But in trying to show why this is so, we must examine the whole question of natural law and its relation to Christian theology.
Assuming as we do that the doctrine of created orders is just a special form of natural law teaching, we may ask: Is the Christian committed to some version of natural law theory?
What kind of evidence can be adduced in favor? Amos Wilder has called attention to “natural law equivalents in the teaching of Jesus.” He finds Jesus accepting common ground with pagan ethics and the ethics of the Old Testament. He finds him making appeal to or recognizing an existing “natural” goodness in his hearers, or voicing a protest against its absence. Jesus’ appeal, Wilder offers in conclusion, is “to the moral discernment of men” in his teaching. It is allegedly because the soul of man is naturaliter Christianum that natural law can prepare him for the ethic of the kingdom.14
Wilder argues persuasively, but he only establishes that Jesus was an effective teacher who took advantage of existing moral valuations to present his own teaching.
The classical conception of natural law, a universal standard of justice binding on all men and discernible by unaided reason, was early accepted by the Church. Romans 2:14, 15 was the sedes doctrinae which permitted natural law to become “a normal part of the mental furniture of Christendom.” It was, of course, accorded extensive treatment in medieval theology. And, as has already been pointed out, the sixteenth-century reformers made no break with medieval theology at this point. They were not only willing, they were anxious to retain the notion of a universal standard of right and wrong, binding in the absence as well as the presence of revelation.15 Thus the concept comes to us hallowed by long usage.
The argument from antiquity will not be dismissed lightly by anyone skeptical of the opinion that darkness reigned until now, but light came in this generation. We hope to show later, however, that antiquity is no argument in this case.
It must be noted that the decline of natural law in Protestant theology cannot be attributed to any mere theological tendency. The concept gradually came to seem untenable, irrelevant, or perhaps even unnecessary and embarrassing under the hammering of legal positivists. Protestant theology developed in the late nineteenth century in an intellectual climate captivated by the distinction between matters of fact and matters of value. It became the mark of contemporary wisdom to admit that no list of descriptive statements, however long, was sufficient to permit the legitimate deduction of a single value proposition. What is simply does not tell us anything of what ought to be. A philosophical argument which had been waged for centuries was finally settled in the Age of Science by popular vote.
The general thrust of twentieth-century philosophy has been to make the distinction between is and ought even more clear, the gulf more impassable, and any notions of natural law, as a consequence, increasingly untenable.
This is the point in history at which Protestantism has chosen to reaffirm the doctrine of natural law. In doing so it joins the small corps of Lutherans who have been affirming it all along, in disguised form, of course, with little enthusiasm, and to a somewhat captive audience. The reason for this renaissance is clear. The dramatic events of recent history, especially the rise of Nazism and of totalitarianism, have convinced many that, however difficult the task, some way must be found to recover the achievements of natural law. Civilization is threatened by legal positivism and ethical relativism.
It must be conceded by anyone who has inspected the literature of the past fifteen or twenty years that the efforts at effecting a renaissance have not been very successful. Theologians have spoken of the doctrine of creation, of the image of God in man, of the Eternal Logos and human reason—but none of these attempts has been satisfactory, for they all derive from theological premises. Grant a different theology (or no theology at all) and the argument collapses. If the term natural law is not a mere playing with words, the Christian must be able to discuss the moral foundations of the law in terms which non-Christian jurists can also appropriate.
Now if it were to be established that this cannot be done, then much of the current theological interest in natural law would evaporate. It is precisely our contention that it cannot be done, that there is no possible way to provide a more than positivistic theory for modern law, and that the joint efforts of theologians and jurists to do so rests upon a mistake. Let us see if this is not so.
We begin with a formulation of the question: Is there a foundation for law which can provide us with objective criteria for determining the justice or injustice of positive legal enactments?
What is asserted in this question? First, that the existence of such a foundation has not yet been established. There is no presently known way of discovering, to the satisfaction of both religious and non-religious jurists, such criteria.
Second, and most important, the question implicitly asserts a definition of “objective.” Objective criteria are those to which assent must be given, which make differences in opinion, if not impossible, at least rather odd. A man may assert that the sun goes around the earth. But we all agree on how to deal with such a person. We first learn whether he means to be serious. If we find that he does, we call his attention to the observations and experiments of scientists, especially astronomers. If he nonetheless persists in his opinion, or if he fails to see that the observations and experiments have definite bearing on his opinion, we scratch our heads and give up. He won’t accept objective evidence.
A convinced Roman Catholic may shake his head at a Protestant’s inability to “see” the natural immorality of contraceptive devices. He may think the Protestant morally obtuse. But he will not think him “odd” in the way we would almost all regard the twentieth-century Ptolemaicist as “odd.” The Roman Catholic does not accuse the Protestant of refusing to accept “objective evidence.” And this is in fact what we mean by the existence or non-existence of objective criteria. We are not content that we have located truly objective criteria until we can feel perfectly easy about ignoring as “peculiar” anyone who finds these criteria simply irrelevant.
It should not be necessary to go into metaphysics to gain acceptance for the proposition that the meaning of “objective criteria” will vary with culture, both in time and space; or, in other words, that the meaning of objective evidence is not everywhere or at all times the same. Anyone reading the first book of Plato’s Republic must be struck by this fact in the dialogue between Socrates and Thrasymachus. Arguments are concluded on grounds which we today find anything but conclusive. The arguments are only conclusive, of course, if the metaphysical presuppositions of the disputants are accepted. The vague sense of discomfort which we feel at Socrates’ tactics is an objection to his metaphysics, not to his debating technique. Socrates (or Plato) could only have established his argument within a certain framework of presuppositions.
Now the simple, undeniable fact is that most of us in the second half of the twentieth century do not share the metaphysics of Plato, nor of Aristotle, Thomas, Luther, Calvin, or the eighteenth-century philosophers in quest of the heavenly city. Yet we persist in asking questions which can only be answered within a metaphysics which these men held but we do not. We ask for the moral foundations of law, moral foundations which can be expressed in purely natural terms. But the question as asked has no meaning. It is logically absurd. It is like a blind man’s asking for a visual criterion of color.
Perhaps our age is metaphysically naive. Perhaps our metaphysics is intolerable to any man of broad discernment. To call for metaphysical reconstruction in such a case might be a hopeless plea, but it would not be self-contradictory. To ask, however, for an objective standard for positive law consistent with the metaphysics of our day is to ask for something inherently impossible.
It is impossible for Protestantism to reaffirm the theory of natural law at this point in history.16
There is great reluctance in many circles to accept this conclusion. Hands are wrung in dismay. Is there then really no difference between right and wrong? Were Hitler’s laws to achieve racial purity no more or less just than American laws forbidding sibling marriage? Is the definition of justice merely that which has been enacted into law? Is morality nothing but a matter of subjective preference?
These are the kinds of questions which the natural law devotees persist in asking. And because they cannot stop asking these questions, they do not stop searching for the natural law. Therefore, we cannot expect the search to cease until the absurdity of the questions has been recognized. We cannot (a) grant the assumption that normative propositions cannot be deduced from objective data, and then (b) prove on the basis of objective data that one ought not to persecute Jews.
But is this cause for despair? The Christian who is tempted to flirt with natural law ought to be aware of history. The Greeks found slavery in accord with natural law. So did the American South before the Civil War. And Martin Bormann, head of the Nazi party organization in 1942, wrote:
We National Socialists set before ourselves the aim of living . . . by the light of nature: that is to say, by the law of life. The more closely we recognize and obey the laws of nature and of life, the more we observe them, by so much the more do we express the will of the Almighty.17
James Luther Adams, in an instructive article written near the beginning of the current renaissance efforts, called attention to the tremendous ambiguity which natural law has always displayed. The conception has frequently been invoked in support of directly opposing contentions. After pointing to the varied history of the word “nature” and to the almost equally varied history of the word “law,” Adams comments: “The possibilities of confusion are legion; and—it should be added—all these possibilities would seem to have been realized.”18
Suppose for a moment that we secure a general metaphysical conversion which enables everyone to grant the premise of a genuine ontological status for Laws of Nature. Now how do we go about acquiring knowledge of these laws? Well, reason tells us that good is to be chosen, evil to be avoided. So far so good. That dictum would seem to be logically entailed by the very concept of natural law. The proposition is purely analytic. Reason has indeed told us. But just what things are good and which evil? How does reason go about putting flesh on the barebones of “choose good, avoid evil”?
Many would prefer to proceed by the a priori method, positing some kind of correspondence between the Eternal Reason which created the universe and the reason of man. But the apriorists have never been very successful in locating a body of natural laws which can actually be applied to positive law. At the crucial moment they generally abandon the postulated correspondence between the minds of Creator and creature and lean on some kind of revelation. We have no objection to revelation. But revealed law is not natural law.
The a posteriori method has yielded better results, if by better we mean more intelligible. But again it turns out that the laws discovered, the laws in this case which are found among all societies everywhere and at all times, furnish no practical guidance. The effort to move from this kind of comparative jurisprudence to the evaluation of existing laws has almost always involved a theological leap of some sort. To repeat: theological leaps are not forbidden. But where they occur, law is not natural.
Combining the two methods, perhaps in the manner of Aquinas or Hugo Grotius, has also not proved to be a satisfactory mode of procedure. We simply do not get any clear, generally agreed-upon, practical content.
Gerhard O. W. Mueller has probably summed up the case for most students of contemporary jurisprudence in his “answer of a positivist.” Why insist, he finally asks, “that morality and with it positive law have some immutable substantive ingredient—in the light of all the history that shows us the contrary?”19
Are we implying, then, that the Church must stand mute in the face of legal lawlessness? I doubt that this follows from what has been said. The proclamation of the justice of God is itself more than silence. But let’s turn the question around and ask whether the Church, relying on natural law, has historically had much to say (that was relevant) in the face of legal lawlessness. History seems to indicate that the Church might as well have kept its peace completely.
Why mourn the loss of a useless weapon? A formal burial of natural law is not, after all, an execution. The burial is only an act of charity when the patient is already dead.
But there may even be positive gains which would accrue from such a burial. Injustice, stubbornly defended, is bad enough. Injustice defended in the name of God’s Eternal Law becomes intolerable. In an age such as ours, where conflicting ideologies threaten to tear humanity apart and consign us all to a new barbarism, ought the Church to add further ideological faggots to the fire? Did Luther make a contribution to the cause of justice when he invoked the natural law and called on the princes to butcher the peasants? Did Calvin advance the cause of justice when he approved, as in agreement with natural law, the burning of Servetus? The Inquisition, let us remember, was carried on in the name of natural law. And today the Roman Catholic Church opposes some forms of totalitarianism, supports other forms, and creates its own ecclesiastical totalitarianism—all in the name of the law of nature.
In 1948 Emil Brunner consulted the law of nature and then addressed an open letter to Karl Barth, urging him to condemn Communism as he had once condemned Nazi-ism. It is difficult to find fault with Barth’s reply, from its opening “You do not understand” to its concluding reminder that there are times to speak and times to keep silent. The Church’s obligation, Barth answered, does not lie in fulfilling the law of nature, but in obedience to its living Lord. The Church for that reason never thinks, speaks, or acts “on principle.” It rather judges spiritually and by individual case, judging each new event afresh. Whereas Nazi-ism in the 1930’s had posed an insidious temptation, was a “spell with power to overwhelm our souls,” who in the Western world is tempted by Communism and needs to be warned away? It is not the duty of the Church, Barth comments tartly, to give theological backing to what every citizen can read in his daily paper or learn from President Truman and the Pope. If the Church witnessed against Communism, “whom would it teach, enlighten, rouse, set on the right path, comfort and lead to repentance and a new way of life?” The question is obviously rhetorical. No, Barth insists, for “when the Church witnesses it moves in fear and trembling, not with the stream but against it.”20
We seem to learn little from history. Each assured pronouncement delivered from the Olympian heights of natural law turns out eventually to be a product of time-bound man’s time-bound estimate of his own nature, generously mingled, more often than not, with extensive rationalization of his current behavior. Yet we persist in believing that our next effort to read off the content of the natural law will penetrate to the true essence of things. Christians should learn to evaluate positivism more highly than they have been accustomed to do. Positivism represents an ideological suspension of judgment, a refusal to overcome the plurality of values in public life by any kind of value monism or imposed value hierarchy. A church which proclaims the justice of God and of God alone ought to be able to make some common cause with a secular movement so keenly aware of man’s propensity to define justice in terms of his self-interest, given half a chance.
But if Christians continue to maintain that the idea of natural law is somehow a Christian one, let us finally ask for its Christian credentials. How is it related to the heart of the Christian faith? It must be related, if it is to be baptized, in some way more vital and dynamic than the Thomistic architectonic way or the neo-Lutheran compartmentalized way. That way has not yet been suggested. We doubt that there is any.
Once natural law is abandoned, of course, the traditional method of both Catholicism and Lutheranism for dealing with social ethics becomes impossible. Catholicism may be able to hang on: it has the metaphysics which natural law requires. But Catholicism runs the risk of irrelevance if the official metaphysics and the actual metaphysics of the faithful do not agree. Lutheranism, however, possessing no metaphysics of its own, has no choice but to abandon the doctrine of the two kingdoms and to work out once again, on the basis of the theology (rather than the metaphysics) of the Reformation, its answer to the question of justice in human society.
The direction in which we feel this reconstruction must move has already been indicated. Justice must ultimately be defined as the justice of God who was in Christ, reconciling man to God and man to himself. Whether such a beginning will be able eventually to provide much more than largely formal directives cannot now be predicted. But this is not necessarily an argument against the approach suggested. Even the formal relevance of the historic Lutheran social ethics can be doubted. We are not willing to despair at the outset of an effort toward reconstruction which takes seriously the central theme of the Reformation: the justice of God. And we believe it can be done—pia sententia—without prejudice to “the proper distinction between law and Gospel.”
[* ] Unpublished typescript, provenance unknown, reprinted by permission of Mrs. Juliana Heyne.
[1. ]Nicomachean Ethics, V, 7. Representative of the literature are the following: Gustaf Aulen, Church, Law and Society (1948); A. R. Vidler and W. A. Whitehouse, eds., Natural Law: A Christian Reconsideration (1946); Arthur L. Harding, ed., Religion, Morality and Law (1956); Heinz-Horst Schrey et al., The Biblical Doctrine of Justice and Law (1955); Nathaniel Michlem, Law and the Laws (1952); articles in the Journal of Religion, April 1945, April 1946, and July 1946, on various aspects of natural law; an issue of The Christian Scholar, September 1957, devoted to theology and jurisprudence and including articles by Wilber Katz, William Stringfellow, and Samuel Enoch Stumpf; an article by Jacques Ellul continuing the discussion in the June 1959 Christian Scholar; Richard V. Carpenter, “The problem of value judgments as norms of law,” 7, Journal of Legal Education, 163ff.; much of Karl Barth’s shorter post-war writings, included in Against the Stream (1954); and, of course, a voluminous literature from the pen of Emil Brunner, including Justice and the Social Order (1945), Christianity and Civilization (2 vols., 1948-49), etc.
[2. ] Wilber G. Katz, “Law, Christianity, and the University,” Christian Scholar (September 1957), pp. 164-65.
[3. ]Konkordienformel, Solida Declaratio, V, Die Bekenntnisschriften der Evangelisch-Lutherischen Kirche.
[4. ] See, for example, Werner Elert, The Christian Ethos (1949, translated 1957), with its major divisions, “Ethos under Law” and “Ethos under Grace.”
[5. ] The work by Elert is perhaps the clearest example.
[6. ] H. Richard Niebuhr, Christ and Culture (c. 1951), p. 174 (Harper Torchbook).
[7. ] John T. McNeill, “Natural Law in the Teaching of the Reformers,” Journal of Religion (July 1946), pp. 168-72.
[8. ] The quotations from Die Bekenntnisschriften are respectively from Apologie, IV; Konkordienformel, Solida Declaratio, VI; and Apologie, XXIII. In the first quotation cited the Latin version differs from the German.
[9. ]The Divine Imperative (1932), p. 210.
[10. ] Elert, op. cit., p. 18.
[11. ] Heinz-Horst Schrey, Hans Hermann Walz, and W. A. Whitehouse, The Biblical Doctrine of Justice and Law (1955), pp. 41-42.
[12. ]Ibid., p. 51.
[13. ]Ibid., p. 185.
[14. ] Amos Wilder, “Equivalents of Natural Law in the Teaching of Jesus,” Journal of Religion (April 1946), pp. 130-35.
[15. ] McNeil, op. cit., passim.
[16. ] The writer wishes to acknowledge at this point the crucial jog to his thinking provided by S. I. Hayakawa, “The Great Books Idolatry and Kindred Delusions,” ETC XVII, 2, pp. 133-48. For the benefit of the suspicious, indebtedness to contemporary “Oxford philosophy” is also freely admitted. Cf. especially Stephen Toulmin, Reason in Ethics (1950) and R. M. Hare, The Language of Morals (1952). Obfuscations are original. While the use in these pages of the word metaphysics does not correspond to that of R. G. Collingwood, being more akin to the customary somewhat loose usage of the term, Collingwood’s Essay on Metaphysics (1940) has supplied much of the framework of these pages.
[17. ] Quoted by William Stringfellow, “The Christian Lawyer as a Churchman,” The Christian Scholar (September 1957), p. 232, footnote.
[18. ] James Luther Adams, “The Law of Nature: Some General Considerations,” Journal of Religion (April 1945), p. 92.
[19. ] Mueller, “The Problem of Value Judgments as Norms of Law: The Answer of a Positivist,” 7 Journal of Legal Education 571.
[20. ] Barth, Against the Stream (1954), pp. 114-16.