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From the September, 2005 issue of Touchstone


The True Scales of Justice by J. Daryl Charles

The True Scales of Justice

The First Grace by Russell Hittinger

The First Grace: Rediscovering the Natural Law in a Post-Christian World
ISI Books, 2003
(334 pages, $24.95, hardcover)

reviewed by J. Daryl Charles

St. Thomas Aquinas would have rolled in his grave. Natural lawyers from Cicero to Grotius to John Courtney Murray would have been mortified. The occasion? The 1991 Senate hearings on the nomination of Clarence Thomas to the US Supreme Court. The speaker? Senator Joseph Biden of Delaware, who was grilling Judge Thomas to find out whether Thomas held to a “good” or “bad” theory of natural law.

The “bad” view, as Biden lectured both Thomas and the nation, was one that violated the sacred space of “individual choice” by dictating a particular code of morality. A “good” understanding of natural law, we learned from Senator Biden, would preserve individual “rights” to abortion and personal sexual preference.

Biden’s performance made one thing clear: Gone was the moral world of our nation’s founders, a world that expressed itself in the language of “Nature and Nature’s God” and “self-evident truths.” Nature had clearly changed, and no “truth” could possibly be self-evident. It could be only a matter of perspective. Gone was any shared belief in a law that preceded and justified the laws.

The Book’s Burden

With the source of goodness removed from the laws, legality has descended into legalism (if it’s legal, it’s good) and inhumanity (some inhumane acts, like abortion, are now legal). How can we possibly re-constitute public moral discourse in a culture that is so morally confused? Such is the burden of The First Grace: Rediscovering the Natural Law in a Post-Christian World, an exceedingly important book by Russell Hittinger, who holds the William K. Warren Chair of Catholic Studies and is Research Professor of Law at the University of Tulsa.

The author shows unusual dexterity in demonstrating the political and legal implications of natural-law thinking for society, all the while tethering those convictions to historic Christian reflection. And this compelling book, accessible to orthodox Christians of all backgrounds, offers those readers who require a history of the rise, decline, and current recovery today of natural-law thinking a useful primer.

The Thomas hearings demonstrated how utterly distorted modern understanding of natural law has become. Once upon a time, as natural lawyer J. Budziszewski has noted in his recent book What We Can’t Not Know, everyone believed that the foundational moral principles were the same for all. What the Chinese call the Tao, what Plato and Jesus describe as the Golden Rule, what the Ten Commandments embody, what St. Paul refers to as the “law written on the heart,” and what Christian thinkers throughout the ages have called natural law—one could look to a consensus in the human race regarding right and wrong. Once upon a time.

Today, however, our philosophers and legal experts tell us that foundational moral principles are not the same for all. There is no such thing as a person “endowed by their creator with certain unalienable rights,” but personhood is a matter of utility and degree, and all humans do not possess inherent dignity and worth because personhood is not a matter of natural law but of individual perspective and choice. Neither aberrant sexuality nor abortion nor euthanasia nor infanticide is intrinsically wrong, because nothing is intrinsically right or wrong.

But Hittinger, who does not suffer legal or moral fools gladly, will have none of it. In The First Grace, he mounts a compelling argument in two parts. Part one is devoted to the rediscovery and recovery of the natural law—a recovery, specifically, of (1) its proper theological content by which we discern what is “prior” to human laws, (2) reason as that vehicle by which we intuit the natural moral law to which all are universally accountable, and (3) the rich Christian moral and philosophical tradition in which natural-law theory has been embedded.

Part two then builds on this reasoning to explore several critically important issues, including our “rights”-laden social priorities, assisted suicide, religion in the public square, the legitimacy of the judiciary and the Supreme Court, and technological society with its dehumanizing tendencies.

Everyone’s Question

Hittinger is at his best in this book, whether he is probing natural-law thinking in the Christian tradition, exploring John Paul II’s encyclicals on the pressing moral-cultural issues, or mounting a sustained attack on secularized versions of “natural law.” Moreover, one need not be a Roman Catholic—I write as a Baptist—to appreciate and profit from his penetrating analysis of Catholic moral theology over the last century.

The First Grace is indispensable reading for the way in which the author clarifies the three foci of natural-law thinking. Natural law (1) concerns first principles, that is, moral first things that are prior to human experience; (2) it furnishes a proper epistemology and logic by which to understand human nature; and (3) it roots moral thinking, moral intuitions, and moral “laws” in divine providence.

Morality, as Hittinger deftly argues, is not ultimately a question for lawyers. It is acknowledging and responding to moral “first things” that precede the written or “positive” law. Certain acts can never be made right, and no human laws can render them right.

This is not an abstract question, for only obedience to moral first principles furnishes the beginning of what it means to be human. Hittinger offers a useful analogy:

The point of learning . . . musical scales is not to engage in mindless repetition; the point is to prepare to make beautiful music. A piano teacher who taught only the scales would be a legalistic simpleton. But a piano teacher who neglected to teach these rudiments would be unworthy of the name teacher. Musical order cannot begin solely with human spontaneity and creative improvisation. And the same is true in the domain of moral action.

Christians—indeed, all people of good will—contend in civic life and the body politic for what is enduring, for the natural law that remains the law even when people deny it. Hittinger is decidedly a Christian realist in his understanding of human nature, but he suggests that in the end, even a “post-Christian” culture may prove open to recognizing and recovering the “first grace” of natural law. As the author sees it, there are no other grounds for re-constituting the public moral order.

J. Daryl Charles —a contributing editor of Touchstone—teaches in the Chattanooga Fellows Program and is an affiliated scholar of the John Jay Institute. He is author, most recently, of Natural Law and Religious Freedom (forthcoming, Routledge) and co-editor (with Mark David Hall) of America's Wars: A Just War Perspective (University of Notre Dame Press, forthcoming). He contributed "Regensburg Left Behind: Christians Responding to Muslim Invitations Haven't Been Listening to Benedict XVI" to the September-October 2009 issue of Touchstone.

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“The True Scales of Justice” first appeared in the September 2005 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue. Support the work of Touchstone by subscribing today!

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