Jacques Maritain Center: Ethics Without God?

Response to Russell Hittinger,

The First Grace:

Rediscovering the Natural Law in a Post-Christian World

(ISI Books, 2003)

Matthew Levering

Commenting upon Dignitatis Humanae, Russell Hittinger points out, "It may prove surprising, if not frustrating, that DH puts to one side theoretical treatment of the issues that directly touch, in American terms, upon establishment of religion. . . . For the Second Vatican Council, it was quite enough to tackle the problem of the religious civil liberties of individuals, communities, and the Church herself." Hittinger's book, however, signals that this approach is no longer enough.

Let me first summarize Hittinger's book. After briefly developing an account of natural law in itself (the first two chapters), which I will describe more fully below, The First Grace focuses upon the role of the judiciary, specifically that of the United States, vis-à-vis natural law (chapters three through eight). Here Hittinger argues that discerning and encoding the natural law (in positive law) is a task that belongs to legislators, but that in the twentieth century this legislative task has been usurped in the United States by the judiciary, particularly the Supreme Court. As Hittinger shows, in case after case (post-World War II), the Court has identified the natural law with rights that originate in the individual, understood as radically autonomous from social bonds. Hittinger suggests that reversing the Court's usurpation of authority depends upon the development of public awareness of a constitutional crisis, similar to that caused by Dred Scott.

The final three chapters of the book contextualize the new understanding of natural law as undergirding radical autonomy. Chapters nine and eleven address the issue in terms of the relationship of Church and state, while chapter ten explores the development of liberalism itself. Importantly, chapter nine shows that this understanding of the radical autonomy of individuals is not ratified by Dignitatis Humanae, as some theologians, overreading the document, have argued. Hittinger shows that Dignitatis Humanae defends religious freedom without taking up the broader topic of Church-state relations. Chapter ten then offers a nuanced exploration of the roots of the contemporary situation in liberal romanticism's ideal of the individual genius, including the individual religious genius, as the engine of cultural development. Following Christopher Dawson, Hittinger suggests that the radically autonomous individual marks the triumph of consumerist techne over against the Victorian Enlightenment's valuation of familial, economic, and political bonds. A radical autonomy fostered by technology represents a vulgarization, in Dawson's view, of the Victorian liberal ideal of the role of the autonomous genius as the formative mediator of culture and of religious experience.

Finally, chapter eleven argues in agreement with Jacques Maritain that the answer is not to return to sacral conceptions of the state, in which the state embodies the temporal common good, in union with the Church as the embodiment of the supernatural common good. For Maritain, along with Popes Pius XII and John Paul II, the "body politic" is not reducible to the state. Instead, the state instrumentally serves the common good by fostering the various societies that compose the body politic. The danger of this view of the state, a danger exemplified by the work of Ernest Gellner, is that once one conceives the state in instrumentalist terms, it becomes difficult to conceive of any society, or societies, ordered to a higher, non-instrumental end. In Aquinas's defense of the mendicant orders, Hittinger finds a way of defending the existence of various societies, ordered to the common good, within the body politic.

Reading Hittinger's book can lead to a profound state of demoralization. Mustering superb erudition and eloquence, he demonstrates that law in Western societies has entered into a dreadful and far-reaching morass. One is inclined to ask the old Russian question, "How then should we live?" Is there anything that can be done to improve the situation?

In my view, Hittinger's work leads toward the answer that the Church, once again, needs to develop her understanding of her relation to states. We might begin by examining more closely Hittinger's teaching on natural law, especially in his first chapter. From his study of Aquinas, Hittinger notes that natural law is located in three "foci": the human mind, nature, and the mind of God. The former two, Hittinger shows, depend upon the latter. As law, the natural law is in the mind of God. In a participated way, the natural law is in human minds (as first principles) and in nature (the providential order). Thus, without recognizing the relation of the created order to the Creator, it is impossible to develop an adequate account of "natural law."

Why is this so? Could not human beings simply recognize first principles, or recognize the order of nature, without ever adverting to the question of God? The answer is no, for two reasons. First, Hittinger points out that "[n]atural law is never (and I must emphasize never) defined in terms of what is first in the (human) mind or first in nature." Were one to avoid the question of God, one could not define natural law, since natural law requires a lawgiver to be law. As Hittinger shows, "Without the order of priority, we have either nature or the human mind as the cause of the law -- not the cause of knowing or discovering, but the cause of the law itself." In both cases, God would be an enemy of the autonomous authority of the "natural law." Furthermore, if nature is the cause, then the natural law seems to be opposed, in Cartesian fashion, to human (rational) freedom; if the human mind is the cause, then the natural law seems to be, at bottom, a human construct (whether articulated in secular positive law or in the laws promulgated by the Church's Magisterium). As Hittinger states, "When the starting points are made autonomous, the human mind declares independence not only from the deeper order of divine tutoring but also from the tutoring afforded by human culture, including human law." Thus by avoiding the question of God, one turns the natural law into its opposite. The natural law becomes variously indicative of human autonomy, whereas in fact the natural law is participated theonomy, in Pope John Paul II's phrase from Veritatis Splendor.

The second reason for the impossibility of separating the natural law from the order of divine providence is not unrelated to the first. Hittinger sets himself apart from some philosophers, though not from Aquinas, by taking sin seriously. Summarizing Aquinas's position, he argues that human beings cannot simply recognize the mind's first principles or the order of nature, since turning away from God distorts the human ability to make judgments about the precepts of the natural law:

"As a law, natural law is not 'in' nature or the human mind, but is rather in the mind of God. The immutability of natural law, he insists, is due to the 'immutability and perfection of the divine reason that institutes it.' Insofar as natural law can be said to be 'in' things or nature, it is an order of inclinations of reason and will by which men are moved to a common good. While the created order continues to move men, the effect of that law (in the creature) is bent by sin-not so bent that God fails to move the finite mind, for the fallen man is still a spiritual creature, possessed of the God-given light of moral understanding, but bent enough that this movement requires the remediation of divine positive law and a new law of grace."

Hittinger goes on to remark that whereas Aquinas does not envision resolving ethical problems solely from the perspective of the natural law abstracted from theology (natural or revealed), modern theorists of the natural law have sought to do so, with results that evidence the necessity of the "remediation of divine positive law and a new law of grace." This modern conception of natural law represents a break, Hittinger demonstrates, with the development of natural law doctrine from at least the 2nd Century A.D., a legal tradition from which the Protestant Reformers did not dissent. The break occurs with the Enlightenment thinkers, Hobbes, Locke, Rousseau, and Kant.

How then might one go about restoring the priority of divine providence in the conception of natural law? Hittinger argues that the autonomous view of natural law has so distorted the concept that employing it in public discourse is counter-productive. He writes, "It seems to me that the expression 'natural law' ought to be avoided whenever possible in the Christian address to the world about worldly things." Instead, in order to express the meaning of "natural law," he suggests using the phrase "higher law," which has been used in important ways by American public intellectuals over America's history. Hittinger also proposes paying deeper attention to two of Pope John Paul II's recent encyclicals, Veritatis Splendor and Evangelium Vitae. Regarding the latter encyclical, he notes that "the Pope vigorously supports the modern experiment in constitutional democracy and human rights. But once he discerned that the rhetoric of natural rights was being used to justify killing the unborn and infirm, he took his readers in Evangelium Vitae back to the book of Genesis." The first chapters of Genesis display how human rationality and morality are inscribed within the order of divine providence. Evangelium Vitae aims at renewing public discourse; Veritatis Splendor, in contrast, works to renew the Church's theology by reintegrating "natural law into the dogmatic theology of revelation and Christology."

But are these two encyclicals enough of a solution? Without disagreeing with the substance of his ideas and proposals, one may reasonably doubt that even Hittinger thinks so. The Pope's superb efforts in Evangelium Vitae and Veritatis Splendor to recover, among other things, the foundations for proper natural law discourse need to be considered in light of what we learn in the concluding chapters, nine through eleven, of The First Grace. In these chapters, as we recall, Hittinger discusses, respectively, Dignitatis Humanae in light of its self-imposed limitation to the problem of religious liberty; Christopher Dawson's theory of the vulgarization of the romantic ideal of the genius in the radical autonomy embedded in consumerist technology; and the difficulty in preserving the notions of solidarity or the common good (i.e., the idea of a unified, non-instrumental telos) once the state is conceived as an instrument fostering the particular goods of the various societies that constitute the body politic.

The central issue might be phrased as follows. First, atomistic pluralism has been generated by understanding the state as a limited rather than absolute temporal entity, despite the gains made by such an understanding. Second, the pretense to radical autonomy is intrinsic to a technology-driven economy and culture. Third, these two stimulants of radical autonomy work together: the state often serves the needs of the technology-driven economy, and the formation of citizens within this culture shapes the state's own conception of citizenship. How should theologians, and the Church, respond to this situation?

I think that Hittinger's book presses toward an answer that goes beyond the Evangelium Vitae and Veritatis Splendor, important as they are, and implicitly calls for a development of Dignitatis Humanae. As Hittinger points out, the Church in Dignitatis Humanae does not advance a neutral conception of freedom. Rather, the "freedom" that the Church claims for herself has its roots in her mission from Christ to bring the blessings of salvation to the world. This raises two questions that bear upon the situation sketched by Hittinger. First, can states recognize the "freedom" that the Church claims for herself, without recognizing the source of such "freedom"? Is it really possible for a state to remain neutral over time about the identity of God, and continue to recognize a "freedom" that is only understandable in light of a claim to a transcendent source? Second, if states simply remain neutral, can states avoid granting eventually that one god is as good as another? Would this not mean that states would eventually grant the notion that "gods" are constructs-technological products-selected and consumed by autonomous individuals with diverse and equally acceptable ends in view?

Depending upon one's answers to those two questions, one might be led to deny that a viable notion of "higher law" or "common good" is actually possible without a state that concretely, and not merely by (easily deconstructed) deist residues, confesses God. Certainly, the example of the United States, and also of the European Union and Canada, suggests that even a large amount of deist, and even Judeo-Christian, residue, cannot hold out against the forces of radical autonomy for very long.

It seems to me, in short, that the conception of natural law rightly required by Hittinger cannot be (re)gained without further exploration of "the question of whether the state should somehow manifest or exemplify the claims of the one true Church." At least, such questions appear to be the direction in which Hittinger's work leads.