Abstract
Contemporary law departments teach students about ‘Aquinas’, an interpreter of Aristotle, who set out a theory of natural law built around a series of basic goods which everyone recognises by the light of their own reasoning. At the same time, theology faculties are reflecting on the work of ‘Thomas’, a systematic theologian who is no longer understood to have separated nature from grace but instead to have seen humans as already en-graced creatures whose destiny, in Christ and by the Holy Spirit, is to be deified. The problem is, of course, that ‘Thomas’ and ‘Aquinas’ are the same thirteenth-century Dominican monk. The challenge for this reviewer, as both a theologian and lawyer, is what to make of those competing interpretations of the Angelic Doctor.
In a series of provocative essays, Rogers argues that just as ‘Thomas’ would be unrecognisable to any modern law student who had attended classes by either ‘Aquinas’s’ foes or friends within the law faculty, so ‘Aquinas’ would be anathema to the Angelic Doctor.
The present reviewer is in agreement with many of Rogers’s starting points: Aquinas is a theologian all the way down (p. 6), the centre of Aquinas’s thought is to be found in his biblical commentaries (p. 3), the modern reception of Aquinas by lawyers has been distorted by the non-availability in English of a translation of Aquinas’s commentary on Romans (p. 13) and Aquinas’s main moral teaching does not move from the generalities of natural law to the particularities of legal and moral duties but rather from the particularities of virtuous action to a general discussion of the virtues (p. 9). I am, however, less persuaded that Rogers has succeeded in ruling a philosophical argument based on natural law after Aquinas out of court, or, as he specifically intends, out of the US Supreme Court (p. 8).
Rogers’s aim is to attack ‘the peculiar attempt to claim … that … “the law of nature” … somehow escapes the marks of religion, gender, ethnicity, and history’, in defence of Aquinas’s insistence that ‘The law of nature, as discovered by Gentile philosophers, is not for that reason neutral—it is, for Aquinas, marked with the salvation history of Gentiles with Jews’ (p. 299). Rogers hits home insofar as the theory of the natural lawyers is not a recognisable partial and incomplete account of what cannot be denied about human nature but rather a closed system in which Christ appears not even as a deus ex machina but rather as a redundant appendix, with the result that their position ‘looks Pelagian, with the occasional anti-Pelagian codicil’ (p. 78). For Aquinas, even in the Treatise on Law in the Summa Theologiae, appropriates natural law to the Second Person of the Trinity (ST I-II 93.1 ad 2) because the Incarnation was necessary to demonstrate the virtues, to reveal the image of God. What is more, he describes the Holy Spirit as the New Law indwelling the heart who rectifies nature (ST I-II 106.1 and 109.3–4).
Rogers is correct that natural law theory not only goes beyond Aquinas but actually contradicts him if it asserts that the principles of natural law are universally and perennially known irrespective of culture, history and religion (p. 16). Aquinas knows that human beings, both individually and collectively, are in ignorance of aspects of the natural law. Aquinas’s famous example is of the Germans, who he thought had, as an entire culture, forgotten that theft was wrong (ST I-II 94.4). However, Rogers wants to go beyond denying that all human beings know all aspects of the natural law. Rogers argues that natural law itself is subject to change because it regulates a nature which is a ‘dynamic principle of change’ (p. 18). Here he has not made out his case. Epistemological blindness (p. 26) is not proof of ontological malleability. His case stands or falls on his interpretation of Aristotle and on whether Aquinas followed Aristotle in that understanding of human nature (chapter 9).
Rogers’s reading of Aquinas is pointed towards two contemporary questions: that of same-sex relations and that of the use of natural law arguments in legal philosophy and in the courts. The two concerns are linked, because natural lawyers argue that the natural desires to procreate and the natural good of children tell us that homosexual sex is unnatural. At the heart of these issues is that of human nature: what is the truth of our being?
To the theologians, Rogers says: there is an empirical question about whether same-sex marriages are an example of the injustice and ingratitude which Aquinas characterises as human rebellion or whether they are, on the contrary, capable of exhibiting much the same virtues as heterosexual marriage. That question is to be answered using the virtue of wisdom (p. 150), having regard to the findings of the best science available. There is also a question of biblical interpretation. The two questions must be explored together, allowing our understanding of contemporary same-sex relations to challenge our reading of the text and our reading of the text to challenge our understanding of contemporary same-sex relations (pp. 165–71). Perhaps the outcome of this process will be that we dispute whether the scientific and empirical evidence does conclusively show that to live in a same-sex marriage is better than the alternative of suppressing homosexual desires (p. 168). Perhaps it will be that we conclude that the biblical prohibitions are to be read more narrowly, so that same-sex marriages fall outside their scope (p. 171). Rogers believes that he only needs to show that both outcomes are open. Once he has done that, it follows that the question of whether same-sex marriages are unacceptably sinful, are permissible, or are to be celebrated, is a matter for dispute within the Church (p. 172).
If Rogers is right, the natural law argument against same-sex relations (as opposed to a general argument against promiscuity) fails. It fails because there is no independent reading of human nature available to us which, by the power of reason alone, will lead us inexorably to a single set of incontrovertible conclusions, regardless of the cultural conditions to which we are subject and the scientific knowledge to which we have access (p. 165). Nor can we smuggle the results of biblical exegesis into our natural law arguments because the best reading of the Bible on this point is a matter for legitimate dispute.
Where does that leave natural law as a philosophical and legal doctrine?
Rogers is right that the idea that natural law could be used to create a complete ‘catalog of content-rich, prescriptive and obligatory instructions that bind every human law-giver’ (p. 58) has to be rejected. But no serious advocate of natural law theory has ever proposed that. Indeed no serious Christian theologian (pace the theonomists) nor any serious Christian natural law theorist has ever proposed that the divinely revealed laws in the Bible should be used to impose a rigid set of laws regardless of the particularities of geography, temperaments and habits affecting different communities.
Aquinas knows that the wise outside the Christian faith can have at least partial access to the truth of the law of nature. That much remains evident from his use of Aristotle and Maimonides. What is more, Aquinas insists that human beings can know, at least some of the truth, without grace. His reason for this is to establish human culpability (pp. 120, 133). If human beings were irretrievably and totally in ignorance of God’s law they would not be culpable for violating it. Hence, some knowledge of the natural law remains in all, precisely to establish our guilt before God.
Using natural law arguments in court or in a purely rationalist philosophy was not Aquinas’s project. The question is whether the development of natural law arguments, designed to persuade an audience not all of whom yet accept the claims of Christ that what Christianity teaches are the things that are good for human beings, is a legitimate task in the light of Aquinas’s own method, concerns and theology.
In chapter 11, Rogers argues that Aquinas is not interested in (the methodology of) the natural sciences (p. 265) but that he offers a theology for natural science (p. 269). In the same way, although Rogers is right that Aquinas is not interested in developing a philosophy of natural law for use in secular courts, Aquinas offers a theological framework within which such a project might be pursued. Lawyers in the West have learned (whether from the Christian reading of the Old Testament, Augustine, liberalism or experience) that laws cannot impose virtue but they can restrain the more anti-social vices. Law cannot therefore be a comprehensive guide to the good; it needs to be complemented by a theory of the virtues such as the one Aquinas offers. Natural law arguments’ place is in identifying anti-social vices which must be restrained, as well as acting as a fulcrum ‘from which to criticise the whole community’s laws’ as figures such as Antigone, Thomas Jefferson and Martin Luther King needed to do (p. 70).
The project of using natural law arguments in a secular context depends on a notion that Rogers himself deploys repeatedly in his argument, the notion of revealability (p. 283), which is expressed by doctrines of general revelation and common grace (neither of which Rogers explicitly discusses). Knowledge of the natural law may depend on revelation with a small ‘r’, but God is capable of granting such revelation or of withdrawing it in response to human ingratitude and injustice. Such revelation shows part of the truth of human nature and takes place within history and cultures. Advocates of natural law can expect to find at least some common ground with those who have only received revelation with a small ‘r’.
If natural law is always known in some part already and if there is always more of the natural law to know, then natural law theory may be understood, not as a closed system based on a mis-reading of Aquinas but as a project of recovery, whose proponents seek to move those who are not yet prepared to accept the revelation of God in Christ by making reasoned arguments which the Holy Spirit may use to reveal part of the truth of human nature.
Rogers’s book is an excellent work of scholarship, by one who is well-read in both English and German language studies of Aquinas, who has taken the trouble to wrestle with the Latin of the Summa Theologiae, and who, above all, has treated Aquinas seriously as an interpreter of Scripture. It is essential reading for any theologian engaging with Aquinas’s ethics and for any lawyer who wants to reflect on their calling after Aquinas.