Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
The first 40 pages of The Natural Moral Law: The Good After Modernity are exceptional; it’s obvious to me why Cambridge decided to publish it. The book has many admirable qualities: it is daring, encyclopedic, and thought-provoking. Taken as a whole, though, The Natural Moral Law is uneven. Owen Anderson’s “interdisciplinary approach” should have been supplemented with more explicit, rigorous argument. The ideas he considers are too important to leave The Natural Moral Law as his final book on the subject; my hope is that Anderson will write a companion book to this one that is less historical and more theoretical.
Now, to the book itself. Anderson believes that “[t]he good provides a means to unify the many disparate definitions of the concept law.” Yet Anderson rejects the idea that natural law by itself can do the work. That’s because natural law is “a philosophically ambiguous concept” and so “can be—and has been—used to support both sides of competing issues.” One cannot defend natural law generally, as though it is just one thing. “Rather, one must defend a specific natural law nested within specific beliefs.” In particular, one most offer an account of the good.
Anderson believes that “the good is knowledge of God, which is clearly seen in what has been created so that there is no excuse for failing to know God” (266). Anderson offers an argument to show that “only God is eternal and self-maintaining” because, contra Aquinas, reason can demonstrate that “matter is not eternal.” We can know these things without special revelation.
So, according to Anderson, you can’t get law without the good, and the good that you need is the knowledge of God. (As I’ve already said, this book is daring!) Given his position, Anderson self-consciously rejects the following five attempts to avoid connecting law and the good: 1) the command of an authoritative will; 2) the power to change behavior; 3) positivism; 4) prediction, and 5) noncognitivism, emotivism, and anti-intellectualism.
Anderson prosecutes this thesis—that law requires an account of the good—through a comprehensive historical analysis from Socrates to contemporary theorists. I found Anderson’s arguments about modernity and postmodernity persuasive, though I do have serious reservations about his analysis of individual historical figures.
Anderson’s goal is to show that differences in metaphysics (specifically, competing conceptions of the good) lead to differences in law. Modernity, for example, doesn’t dispense with Plato’s insight that “the good for a thing is based on the nature of a thing, and that the nature of a thing involves accomplishing its end.” Instead, “formally, these insights remain, but they were given new content. That is, human nature has been reduced to the needs of the body, and the end of human nature is simply to satisfy these needs.” According to Anderson, “although the secular state does indeed have metaphysical presuppositions (often naturalism), these have been given a free pass as either nonexistent or neutral.” Anderson uses postmodernity to show that “the naturalism of Modernity is not neutral.” Consequently, “the change to Modernity marks a shift not away from metaphysics, but from one set of metaphysical assumptions to another.”
Anderson makes a persuasive case for his belief that “divisions about law are based on divisions about the good and what is real,” especially if one takes “the good” as words that describe more than the natural knowledge of God. But Anderson makes less progress towards his stronger claim that “[p]hilosophical ambiguity about the metaphysical absolute must be cleared up if there is progress to be hoped for in law,” i.e., that we need to arrive at a natural knowledge of God before we can talk about anything else. To see why, we’ll turn to his account of the relationship between church and state and then to his thoughts on marriage and abortion.
Anderson believes that “[r]esponsibility is relative to how much a person can know,” so “holding persons accountable for the natural law requires also holding them accountable for knowing the eternal.” He recognizes that his beliefs “might be heard to argue that the government should somehow force us to know what is good,” but he denies this interpretation explicitly. Instead, he writes, “My hope is to redirect the cultural debates about law to more basic beliefs presupposed in those debates but left unaddressed.”
I think that Anderson is being sincere when he says that the government should not force us to know the good, but I don’t know how this position follows from, or is consistent with, the beliefs articulated in The Natural Moral Law. Take the following sentence: “The state is only one of these institutions and should not be permitted to become total over the other institutions, nor should it be disconnected from the good in how it determines what is and is not legal.” The first half of this sentence reminds me of Abraham Kuyper’s sphere sovereignty or the Roman Catholic principle of subsidiarity. The second half does not. Here’s why: Anderson believes that “the good is knowledge of God” and that “holding persons accountable for the natural law requires also holding them accountable for knowing the eternal.” If the state should determine what is and is not legal in a way not disconnected from the good, then the most plausible inference is that the state should hold people accountable for the natural knowledge of God.
How can a government hold people accountable for the natural knowledge of God without forcing them to know God (or at least pretend to know God)? Anderson may think that the state can articulate and publicly defend the natural knowledge of God, speaking against those that deny such knowledge. Anderson does say that “humans can be held responsible … through the use of reason,” so he could be making, in his own mind, a distinction between holding someone accountable through the use of force (which he denies) and holding someone accountable through rational discourse (which he affirms). This distinction avoids the charge that he wants the government to force people to know God, but it doesn’t sit well with his claim that government should frame laws by the light of the good, understood as the knowledge of God. If there should be laws against murder, because of the good, then why shouldn’t there be laws against blasphemy, too, especially when the good is the knowledge of God? Furthermore, if the state punishes murder, then why shouldn’t it punish blasphemy as well? Given the importance of these questions, I wish Anderson had made clear what he believes, and why.
Now let’s leave this talk of church and state behind us and turn toward home. Anderson contrasts the definition of marriage as “an agreement between any two people about personal and private love,” on the one hand, and “a union between male and female instituted by God to reveal the relationship between God and humanity,” on the other. I think Anderson favors a genuine resolution in favor of a definition of marriage that includes God. But here’s the problem: how does a natural knowledge of God entail the institution of marriage by God to reveal God’s relationship to humanity? Moving from a natural knowledge of God to the claim that the world was created seems fairly straightforward to me. Moving from a natural knowledge of God alone to a particular conception of marriage seems more problematic (cf. an appeal to special revelation, e.g., Ephesians 5).
Anderson shifts the terms in the abortion debate in a similar way. On one side, we have those that think “human life is only present once personality traits can be recognized or value is assigned by others.” On the other, we have those that believe—as Anderson presumably does—that “human life begins with an individual who is different from both parents and valuable because revelatory of God apart from others or level of current development.” Here, again, I think God does the work: the belief that human life is “valuable because revelatory of God” settles the matter. Though the phrase has some poetry to it, I’m not quite sure what it means. Do human lives contribute to a natural knowledge of God, for example? I don’t think that’s what he means. Instead, I think he’s appealing to God’s own delight in or care for humanity—a humanity made in his image, and so revelatory of him in a certain way. But, again, this position sounds less like natural revelation and more like special revelation (e.g., Genesis 1:27). That’s a problem if the natural knowledge of God is supposed to answer our thorny political debates.
This book is thought-provoking. Candidly, I haven’t worked out some of my own beliefs in the face of the wide-ranging positions Anderson defends. So let me end by reiterating my hope thatThe Natural Moral Law has a sequel.