Secular? Private? It All Depends on what You Mean

Peter Leithart mentions me in this post, and I can say that I agree with the bulk of it all.  I do still think, however, that there are some terminological problems.

It is true that “secular” is time and not a space, in a way, because the term itself refers to the “temporal kingdom.”  Thus even the visible church exists in the secular.  But for many of these conversations we seem to let the metaphors get away from us.  Secular isn’t physical space, but it does have a sort of “space” of jurisdiction.  There are various “secular” laws (read: temporal kingdom laws) which have no necessary restrictions placed upon them by the spiritual kingdom of God.  These would be areas of adiaphora or theologoumena, and as long as they didn’t violate the more basic law of charity, we could theoretically proclaim “to each his own” and let our neighbors do things the way that works for them.  If Montana is big and flat enough to not need speed limits in rural areas, then so be it.  There’s no positive Biblical command to say otherwise.  And Augustine is clear that there is no set list of Christian laws that apply for all peoples in all places:

This heavenly city, then, while it sojourns on earth, calls citizens out of all nations, and gathers together a society of pilgrims of all languages, not scrupling about diversities in the manners, laws, and institutions whereby earthly peace is secured and maintained, but recognizing that, however various these are, they all tend to one and the same end of earthly peace.  It therefore is so far from rescinding and abolishing these diversities, that it even preserves and adopts them, so long only as no hindrance to the worship of the one supreme and true God is thus introduced.

City of God 19.17

That last line certainly seems to imply some sort of private/public or two-kingdoms distinction.

Leithart does explain the “difference” between Christian and non-Christian “secular” actions by saying:

Even when Christian and pagan rulers do the same thing, however, there are times when they do the same thing differently.  Even when building roads, the pious Christian ruler would engage in the activity for the glory of God and to benefit his subjects, rather than, for instance to win fame.

I agree with this, but I’m not sure that it is really different from the classical inner/outer or private/public distinction, which is what I thought Leithart was critiquing in his previous post.  We don’t want to say that the private sphere has no impact on the public, nor vice versa, but we do want to say that the distinction matters and matters greatly when it comes to law.  We can judge a ruler’s road-building activity.  We can decide if he does so adequately and lawfully.  However, law cannot judge piety or faith.  The law cannot decide whether or not a ruler was seeking to glorify God, and whenever it attempts to do so, tyranny ensues.

That’s why the distinction matters.  To confuse law and grace makes grace a problem (works’ righteousness), but it also makes law a problem.  You have to either not maintain order- as in the case of the Christian school where the parents ask you not to write their kid up for eating in class because they want you to “show a little grace”- or you have to attempt to legislate the heart, seeking to determine someone’s sincerity and faith by external measures.  In both cases you lose both true law and true liberty.

The proper corrective, it seems to me, is not to dismiss the traditional distinctions of natural law, secular order, and public/private jurisdictions, but rather to reclaim them from their (very) recent misinterpretations.  This was the attempted goal of my short paper on natural law, and I would point to the explication of A. P. d’Entreves’s work to illustrate the classic position:

A. P. d’Entreves devotes half of his Natural Law: An Historical Survey to explaining how natural law could both ground law in morality and allow for the freedom of conscience.  He states that a belief in natural law requires “that the identification of law and command be overcome or abandoned.” The command is founded upon the nature, and “the fact that positive law is laid down in the form of a command and proceeds from the will of the sovereign does not mean that the holder of sovereignty is immune from all legal obligation.” There are no “absolute” rulers (only God is such), and any specific legislation is always accountable to a transcendent moral standard. This moralization of law, however, does not necessarily lead to an over-reaching state or ministerial control, but rather, in keeping with reason’s recognition of its own self-limitations, “it is possible to clearly delimit the sphere which is beyond the bounds of State action.”  d’Entreves goes on to cite (you guessed it) Aquinas and Hooker:

Man, the maker of human law, can pass judgment only upon external action, because “man   seeth those things that appear,” as we are told in the book of Kings. God alone, the divine Law-giver, is able to judge the inner movements of the will, as the Psalmist says, “The searcher of hearts and reins is God” (Th. Aquinas, Summa Theol., 1a 2ae, 100, 9).

Wherein appeareth also the difference between human and divine laws, the one of which two are content with opus operatum, the other require the opus operantis, the one but claims the deed, the other especially the mind (Hooker, Eccles. Pol., V, lxii, 15).

Here is the essential message of the Protestant doctrine of the two kingdoms. The jurisdiction of law is that of external affairs and not the heart and mind. The extension of the arm of the state stops prior to the internal affairs of man. A final statement from d’Entreves will do, “The lesson of natural law… would, I suppose, be simply to remind the jurist of his own limitations.”

I agree with Leithart’s penultimate paragraph, but I think his allowance of the secularists to continue to define and own the terms prevents him from consistently explaining and defending his view from those of the Anabaptists against whom he’s also seeking to correct.

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18 thoughts on “Secular? Private? It All Depends on what You Mean

  1. I’ve been wondering how your paper on natural law has been received in Moscow. Sure, they published it, but it’s really not compatible with much of what they’ve written over the years about the role of Scripture in social norming activities.

    At any rate, aren’t both you and Leithart right in how you use Augustine? The City of God is a huge work, and it is not entirely self-consistent. When I spent a semester studying it at UD, the ambiguities and tensions throughout (e.g., Augustine’s dissent from Cicero on res publica on the basis of lack of worshiping the true God contrasted with his advocacy of the just political order in Bk. XIX) did more than anything else ever had to show me why Augustine can be called the “father” of so many diverse opinions.

  2. I don’t think it contradicts them, but rather it helps support their position by properly defining the traditional terms. It was received well by the immediate group of folks I sent it to. I haven’t heard anything beyond that.

  3. I’ve been following this discussion from the shadows (lurking is, I believe what it is called) and have a question. Would you say natural law was in place in the garden? Or is natural law a result of the fall? The reason that I’m asking is that it seems like natural law discovered that the fruit was good for food, pleasant to the eye, etc. Natural law could never discover the only law in the garden. But that is why I’m asking, to see if I’m understanding natural law.

  4. Hey Jason,

    Natural law is not positive law, and thus it doesn’t say either “Do eat” or “Don’t eat.” It says that you should desire the good and abhor the evil, and thus the basic natural law is “Desire God” and therefore “Obey God.”

    The sin in the garden is a case of subordinating the natural law to immediate (sinful) desire.

  5. See. this is where, perhaps my own historical theology is lacking. I have understood natural law to be truth for the organization of society that can be derived apart from revelation. Therefore, “It is good for food” apart from revelation would lead to, “therefore we should eat it.” in a natural law setting. But you are arguing that natural law is truth for the organization of society derived from BOTH special and general revelation? Is that right?

  6. Jason,

    Natural law comes from God, with “nature” being synonymous with “creation.” Thus it is a way of saying “the way things are.” It is mostly “general revelation” in this sense, however it cannot contradict special revelation and it always leads to special revelation (because it will always hit its limits).

    The basic expression of natural law is “Desire the good” (or perhaps tautologically “Good is good”). All particulars, as in whether to eat, when to eat, what to eat, are applications and extrapolations from the basic principle and those particulars depend upon persons and context.

    So, in the garden, you could say that “it is good for food” ought to lead to “therefore we should eat it,” but that would also have to take into account the other (and obvious) truth of “God is good” and “therefore we should obey Him.” If those affirmations seem to contradict, then it would be the job of the thinker to find a solution, but to always seek the highest good, which is always God.

  7. So without special revelation (thou shalt not eat), natural law would lead to a conclusion other than special revelation? But that is OK because it is limited on purpose. Natural law apart from God might lead to significantly different conclusions, but that is the point. Natural law is intended to lead us to our limitations and therefore seek God. Am I reading you right?

  8. Not exactly.

    Natural law, on its own, will lead to incomplete conclusion on certain matters, namely salvific ones. It would not lead to contrary conclusions, however, and when interpreted properly, it will also always point to (and thus necessitate) the truth of Special Revelation.

    Natural law is always and only a set of moral intuitions, as well. It cannot supply positivist commands, nor can it give us the particulars of a religion. It’s one piece of a larger picture.

  9. Ok. So Natural Law, as a set of moral intuitions then, was just plain uneseccary in the garden because of special revelation when God had just spoken to them. Natural Law is, then, something that exists only where Special Revelation is not already submitted to by faith?

    Would natural law, then, be a sort of memory or cultural discomfort with things that are against the image of God in us? There isn’t really content, per se. It isn’t something that a scientist could discover? I’m really trying to understand here. I can see what use it might be in this setting. Not use in the sense of being able to make civil laws. Or use in the sense of being able to establish moral expectations. But use in the sense of being able to expect to find roads of preparation for the gospel of peace. That is what the missionaries to the Anglo Saxons looked for (and discovered). Am I following you now? (Sorry for being both ignorant and thick skulled. I probably need more caffiene).

  10. It wasn’t “unnecessary,” because a moral intuition had to exist in order to recognize the difference between “good” and “not good.” It was present in Eden, as well as afterward, but it was and is incapable of supplying the positive (specific) actions. Those have to be done by human actors with wills, interpreting their setting and the best path which to take to get to the good.

    “Natural law” is just a way to say “morally conscious.” If one lacked this, we would say that they were an imbecile, brute, or sociopath.

    It is “useful” in the making of laws because your laws need to be moral. Natural law feels discomfort when they aren’t. But it cannot itself do anything about that. It’s just a moral compass. Wills have to do the action, and they are inspired by a variety of factors, not all of which are good or helpful.

    Natural law, like the larger notion of “law” in Martin Luther’s theology, will show people that they’ve got a problem. They see that something’s wrong, and they have a sort of notion of what “right” would look like. But natural law cannot give “right” to them.

  11. Ahhhh. Natural Law is just the old way of saying conscience. I am now completely confused how someone could ever say that there are two kingdoms with one governed by natural law the other by God’s revealed law. One is governed by uninformed conscience and one by God’s revealed will.

    But natural law is something that everyone who is not a brute, imbecile, sociopath, or politician will have within them, it is just that, without Christ, they will not be able to follow natural law. So just laws might (in theory) arise out of the conscience of some legislator in an ancient tribe or empire, but the bondage of our will always, inevitably, leads us away from justice.

    So in the garden, natural law was functioning within Adam and Eve. Without revelation, they would have never known the legislated content of the good. A conscience by itself can not inform you what is right and what is wrong. No scientific or philosophical inquiry would have been able to discover the legislated content of the good. They only knew right and wrong because of special Revelation (when God spoke to Adam). It is possible that they could have felt discomfort at the idea of eating the fruit, even if God had never told them, but we will never know.

    So is all natural law (the pull of conscience) cultural memory of special revelation?

  12. I’d say it’s creational, and so in that sense not necessarily a remembering of any one particular moment, but it is also memory of Adamic revelation- God’s Word in the Garden.

    It is not necessarily memory of “the Bible,” per se, and I’d guess that’s where some confusion arises. Also, many of the rationalists and neo-scholastics who opposed natural law to God’s revelation did so because of erroneous views of God (supposing a finite deity of some sort).

    With the Wesminster Cali guys though, you dig deeper and find that they just really don’t believe that God is all that interested in the creation. They’ve got a sort of high-Calvinism (hyper perhaps?) that limits God’s benevolence to the particular elect persons.

  13. But there does seem to be another definition of Natural Law out there in the discussion that appears to be different than the ones that you are explaining out of the reformers. Right? A Natural Law theory that asserts that you can study nature, history, and philosophy from an unbiased perspective in order to discern enough law to get the basic outline of a just society. This, it seems to me, is the ‘natural law theory’ that makes many nervous. This is a basic tenant of ‘secularism.’

    The belief that a secular order can rescue and establish society (which is where the ‘ism’ comes in) depends upon this definition of natural law. This is the natural law that is indefensible, that eventually breaks down into Darwinian categories. The basic natural law of life is “Survival of the Fittest.” That kind of natural law theory is, generally speaking, what I have interacted with, and why I would explain that there is no ‘natural law’ in that sense. I would generally go the book of Ecclesiastes for Solomon’s explication of the limitations of our abilities to find solid knowledge under the sun.

    It sounds like you are interested in wrenching back the very definition of the word because you don’t believe in ‘natural law’ in this deistic sense. Am I reading you right?

  14. Right Jason. That view of “nature” starts somewhere around the time of Rousseau, and thus it does not truly deserve the right to the name and legacy.

    The larger Augustinian/Thomistic/Calvinian tradition is what I’m interested in.

  15. Obviously, in your opinion, it is worth trying to recover the vocabulary. I do wonder if it isn’t a better idea to recast it in new vocabulary in order to be more quickly understood.

    I don’t know though. I might be worth it to slog it out to win back the vocab.

    Thanks for helping me understand though.

  16. Steven,
    I really want to trace out your work on natural law, and the objections of other BH types, but I find sifting through a blog tedious. Therefore I propose that you and PJL write a book together in which you summarize your positions and then maybe do a little back and forth. Maybe you could even bring one of the 2 Kingdom guys like Van Drunen. It would be great to have it all in one place.

  17. Pingback: Positivist Legal Theory :Austin Attorney

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