Jacques Maritain Center: Ethics Without God?

Book Presentation: The First Grace: Rediscovering the Natural Law in a Post-Christian World, Wilmington, DE: ISI Books, 2003, by Russell Hittinger

University of Notre Dame
1:30 p.m., Thursday, July 17, 2003

Grace or Nature First? A Comment on Russell Hitinger's The First Grace
Robert A. Gahl, Jr.
Pontifical University of the Holy Cross

At the end of his introductory essay in “The First Grace: Rediscovering the Natural Law in a Post-Christian World”, Russell Hittinger proposes criteria required to advance natural law theory in today's post-Christian culture. The proposed criteria challenge the common presuppositions for scholarly discussion about natural law. To understand the problem of natural law, Hittinger proposes that we must get beyond arguments pointing to or issuing from moral premises and address the underlying, foundational questions that are presupposed by such moral arguments. What is unusual and provocative about Hittinger's proposal is the foundational depth to which he invites his reader. The future of natural law theory depends upon nothing less than “considerations of anthropology and theology.”(xlvi) The first chapter, entitled Natural Law and Catholic Moral Theology, begins his theological discussion of natural law with the express intent of clarifying current disagreement among Catholic moralists and stimulating ecumenical dialogue by convincing Protestants that the Catholic natural law tradition developed within a context of deeply textured theological considerations. To begin his analysis of the theological presuppositions of traditional conceptions of natural law, Hittinger describes the three dimensions or, as he calls them, foci, of natural law: law in the human mind, law in nature, and law in the mind of God. With the enumeration of these three foci, Hittinger displays the epistemic, anthropic, and theonomic aspects embraced by the traditional understanding of natural law. He then proceeds with an extraordinarily strong emphasis of the importance of the third locus throughout the tradition of natural law theories by making some seven controversial contentions regarding the traditional theological presuppositions of natural law. First, I will list two controversial contentions regarding the divine character of natural law.

  1. Only recently have the epistemic and anthropic dimensions of natural law been regarded as architectonic foci (5).
  2. “As a law, natural law is not 'in' nature or the human mind, but is rather in the mind of God.”(11)
    1. [Granted, Hittinger does then admit that: “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 the common good.”(11) But his unusually strong theological emphasis remains regarding the natural law as law.]
    2. I offer one of Hittinger's contentions regarding the historical paradigm for natural law.
    3. The “time of natural law,” that is, the historical and moral condition from Adam to Moses, “is not normative for Thomas's ethics. And ... the effort to make that condition normative marks the modern project.”(11)

And finally, I offer four contentions that assert the need for salvific grace for the fulfillment of natural law.

  1. It would be Pelagian to interpret Romans 2,14 in such a way that implied that the pagans could fulfill parts of the law without the aid of reforming grace.(10)
  2. The created order is so bent by sin that movement in accord with nature “requires the remediation of divine positive law and a new law of grace.”(11)
  3. While drawing from Pope John Paul II's Veritatis Splendor, Hittinger contends that “human reason, endeavoring to construct the conditions for human fulfillment, needs revelation and grace.”(32)
  4. “[T]the modern, secular construction of natural law is contrary to the Gospel ... [and] as destructive within the house of Catholic moral theology as it was in the Protestant denominations.”(33)

In my commentary on The First Grace, I would like to take advantage of this extraordinary opportunity to challenge the author to clarify and illustrate some of the implications of his reading of Thomas Aquinas for the future of natural law theories in general and in particular for promoting ecumenical dialogue between Catholics and Protestants. I brought to my study of The First Grace great sympathy for the theological concerns brought to the fore by Hittinger and I am in agreement with the majority of his claims. But The First Grace provokes us to go further and to ask even deeper questions about the naturalness and the legality of natural law. My hope is to help induce the author to clarify some of his claims and to further expound upon their implications and that, if I succeed, my success may be some small show of gratitude for all that I have learned from him.

  1. Much of The First Grace, is a sustained argument in favor of divine command as a requirement for the legal character of natural law. If its legal exigencies were not first in God's mind, then the natural law would be no law at all. While carefully avoiding any implications of divine voluntarism, Hittinger reminds us that the natural law may be best defined according to its position within the descending order of being. When we consider things according to that which is first in reality, or according to ontological causes, natural law is first and foremost from God. Since it participates in the eternal law, natural law is somehow first in God's mind. I say somehow first in God's mind because while natural law as law must be from God, I wonder to what extent a faithful interpreter of Thomas can assert, as it seems to me that Hittinger does, that the natural law, qua natural law, is primarily in God's mind. When Aquinas defines natural law, in 91, 2 of the I-II, he specifies that the natural law is a participation of the eternal law in the rational creature. (“Unde patet quod lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura.” ST, I-II, 91, 2) Clearly, if the natural law were not in the creature it would be in no way distinct from the eternal law.

    1. p. xxi, while drawing from a Thomistic study of q. 97, 1, ad 1 by Stephen Brock, Hittinger explains that natural law is not something diverse from the eternal law. Although the two are distinguishable in our minds, the natural law is simply a participation in the eternal law: “Ad primum ergo dicendum quod ratio illa procederet, si lex naturalis esset aliquid diversum a lege aeterna. Non autem est nisi quaedam participatio eius.” In this text, Thomas's intent is to argue against his objector in order to defend the position that there is such a thing as natural law. His point is to keep natural law from being entirely subsumed by the eternal law. It would seem, however, that his defense of the existence of natural law does not preclude its being distinguished in our minds from the eternal law on account of real differences between the two. ]

Moreover, according to the ascending order of names, natural law is first in nature, because in the order of cognition, we first come to know that which is most evident to our creaturely minds. To come to know that we are governed by God's law we must first realize that we are governed. The human first comes to know the good as an object of desire. Only later does the human come to discover that individual and partial goods are ordered among themselves and that they are themselves ordered to a higher and absolutely transcendent good. The primitive understanding of goods as not yet ordered to an absolutely higher one may be classified as practical knowledge, although not yet even close to wisdom and not yet sufficient for human action in the full sense described at ST I-II, q. 89, a. 6 or qq. 6-21. In the order of knowing, we first come to understand ourselves as subjects of divine law by realizing that we are ordered to lower goods.

In the chapter on Natural Law as “Law”, Hittinger states that according to John Paul II's reading of Sacred Scripture, “there is not morality and then the law.”(41) Hittinger reads the Pope's Magisterium in order to claim that morality neither precedes law nor is separable from it. While that may very well be the case for the human race as the people of God in the history of salvation, and therefore coincides with recent Papal interpretation of the fall in the Garden of Eden, perhaps it is not an entirely accurate description of how individual humans come to know the moral law. The first, seminal understanding, although still insufficient for fully human action, capacitates us to rationally seek partial goods as ends.

    1. [Regarding the full cognitive requirements for moral action, see, for instance, ST q. 6, a. 1: “Et ideo, cum utrumque sit ab intrinseco principio, scilicet quod agunt, et quod propter finem agunt, horum motus et actus dicuntur voluntarii, hoc enim importat nomen voluntarii, quod motus et actus sit a propria inclinatione. Et inde est quod voluntarium dicitur esse, secundum definitionem Aristotelis et Gregorii Nysseni et Damasceni, non solum cuius principium est intra, sed cum additione scientiae. Unde, cum homo maxime cognoscat finem sui operis et moveat seipsum, in eius actibus maxime voluntarium invenitur.”]

Only later, although not much later, do we come to understand that, for the sake of attaining personal happiness, we are obliged to order ourselves and everything else to a single end. In addition to the distinction between the order of knowing and the order of being, it is important to remember another distinction within the order of human knowing: that between spontaneous and scientific understanding. Insofar as scientific understanding reflects the causal order of things, the scientific knowledge of professional philosophers and theologians more closely approximates the order of being than the spontaneous understanding by which real human beings really come to know. Awareness of the specificities of scientific knowledge should prevent us from extending the peculiar features of the scholarly mind to the ordinary discovery of the common man. Therefore, natural law theory today ought to maintain the traditional appreciation for what comes first in the order of discovery, even if not yet sufficient for perfect action, or even properly human.

In order to combat common modern moral philosophies with their view of an autonomous human reason, The First Grace continues its discussion of the relationship between morality and law by emphasizing how the human mind is always extrinsically regulated. In human action, rational deliberation must always take into consideration the reality of human possibilities and therefore the nature of both oneself and one's instruments. We are also extrinsically regulated by the divine legislator through our participation in his eternal law. On p. 41, Hittinger remarks that “The notion of participation is restated in the context of Gen. 2: 17 in order to emphasize that the human mind is a measured measure, and that the first principle of its practical activity is its participation in a divinely given law.... the created intellect is not the first measure of the bonum and malum.... creatures share in, but do not constitute the measure of, moral good and evil.” Hittinger's emphasis on the measuring and regulating role of God may seem to conflict with some particular texts of Thomas, like q. 91, a. 1, ad 1, where Aquinas affirms that human reason is a rule and a measure in comparison to human actions which are measured and ruled.

[It is even harder to reconcile with Aquinas a statement made by Hittinger at p. 97: “The human mind is a measured measure (mensura mensurata) not a measuring measure (mensura mensurans).” Every measure must somehow measure. Perhaps here Hittinger simply exaggerates his point about the divine dependency of human reason. Of course, Thomas doesn't use redundant terminology, but I think he would agree with the proposition that the human mind is a mensura mensurans mensurata.]

When the Treatise on Law is read out of context, which despite the important work of scholars such as Servais Pinckaers, O.P. still so often occurs, one notices Thomas repeating that reason is the rule and may ignore the following important point illustrated by Hittinger's development of “participated theonomy”. Moral reason is indeed a rule and measure of human action but only because and insofar as it is ruled by God. (Regarding law's presence in reason, at 95-96, Hittinger develops the topic further but in an entirely different context and without adding nuance to his former claims about natural law being in God's mind.)

Allow me to conclude this first point regarding the relationship between the eternal law in God and the natural law in human nature, with a modest proposal. While The First Grace offers a crucial contribution to contemporary scholarship on natural law by emphasizing its theonomic character, with additional nuance a few of its bolder claims might aquire even greater force by maintaining greater respect for the natural specificity of natural law. Both the knowledge required for full human action and the scientific understanding of the natural law must include the recognition of natural law's causal origin in God. Such recognition of its divine origin does not exclude that the natural law, while being from God and instilled by God, is instilled by God in human nature. Human reason judges and directs but never just on its own authority. The most particular prudential dictamen is authoritative precisely because it is a participation in the divine light. As Thomas writes in q. 94, a. 1, natural law is a kind of knowledge. He compares how natural law is constituted by reason to how a proposition is a certain work of reason. [“Dictum est enim supra quod lex naturalis est aliquid per rationem constitutum, sicut etiam propositio est quoddam opus rationis.”] The knowledge needed to be subjects of natural law according to our human nature requires and includes the recognition that every moral exigency is at once for the good of our nature and willed by God. And now, with this first part of my commentary, I have responded to the first two controversial contentions as I enumerated them above.

  1. The latter five of the seven controversial contentions, all deal with the relationship between nature and grace and are therefore especially important for ecumenical dialogue among Catholics and Protestants. With the third contention, Hittinger holds that the “time of natural law” is not normative for Thomistic ethics. (By the way, to call a historical period “of natural law,” perfectly coincides with Thomas's own usage. See, for example, “Et ideo inter legem naturae et legem gratiae, oportuit legem veterem dari.” q. 98, 6) By this he means that we ought not to look at the condition of humankind, without the aid of the preternatural gifts and without the assistance of either the Mosaic or the Christian divine positive law, in the historical period from Adam to Moses as the paradigmatic period of natural law or as the human condition properly considered by moral philosophy. Hittinger (rightly) emphasizes that, for Thomas Aquinas, fulfillment of natural law requires belonging to a community of virtue and the supernatural aid of sanctifying grace.

Nonetheless, despite Hittinger's focus on natural law within the fullness of revelation, the historical period from Adam to Moses is most relevant for distinguishing between the demands that are proper to human nature according to the order of creation and those demands that are specific to Biblical revelation. This careful distinction, but of course not the separation, between these two complementary sets of demands, those of nature and those of Biblical revelation, permits the theologian to better characterize the ironic pedagogy within God's instruction of his chosen people. The perverse tendencies of fallen nature were medicinally instilled in humankind along with the natural law in order to remind us of our need for salvation. While natural law points us in the right direction, the fomes peccati remind us of the insufficiency of our nature and of our nature's law for human happiness. Of course, by defending the use of the “time of natural law” as a temporal locus for systematic thought experiment in order to distinguish between the natural and the supernatural within us, I do not mean to imply that the demands proper to natural law may be known better without the aid of grace or without the instruction specific to the divine positive law afforded us by the Mosaic and the Christian revelation. Nor do I mean to imply that anyone could fulfill the natural law without also being under the new law of the Holy Spirit. Nonetheless, by examining the existential condition of those who lived in the so-called “time of natural law,” the Thomist can find the light needed to distinguish between the demands of nature and those of divine positive law. I am careful not to imply that anyone in particular could ever fulfill the natural law without also living according to supernatural grace, because St. Thomas affirms that during all times, including the time after Adam and prior to Moses, there were people who lived under the new law on account of their fulfillment of natural law, as indicated by St. Paul in Romans 2, 14, and on account of their faith and hope in a Messiah or Remunerator who would come. (See, for instance, “omni tempore fuerint aliqui ad novum testamentum pertinentes, ut supra dictum est.” q. 106, a. 3, ad 2 See also: See 1 Tim, 2, 4: “Who will have all men to be saved, and to come to the knowledge of the truth.”)

Even if the study of the “time of natural law” is, of itself, more interesting for the theologian than the political philosopher, Hittinger has made such a strong case for the need to take into account the theological presuppositions of natural law, that no proponent of natural law, even if a lawyer or political scientist, can now remain indifferent to this question.

The remaining four contentions offered by The First Grace all deal with the question of the relationship between nature and grace and the implications of this relationship for natural law theory. To my mind, much depends on the anthropology and theology that Hittinger affirmed must be clarified in order that natural law theory may be effectively advanced in our post-Christian world. Nonetheless despite the energy and extension dedicated to analyzing the rational need for recognizing the divine source of natural law, The First Grace does not offer a detailed description of the human requirements for receiving the gift of the new law so as to be able to fulfill the natural law. What difference is there between acting according to one's recognition of God as the source of the law naturally known by the mind and hoping in a superhuman remunerator? Or to put the question more succinctly, what is the difference between the naturally obtained knowledge of the divine legislator, so carefully delineated in this book, and the faith inspired understanding of the Redeemer? Surely, Russell Hittinger did not promise to answer these difficult questions and a good case can be made for their being outside the scope of this book. But they are so deeply related to the issues examined in The First Grace that it would seem that these questions regarding supernatural anthropology need to be resolved in order to effectively advance our understanding of natural law, both within the Church and without. (Hittinger admits as much. See p. 62: “Among secular philosophers and jurisprudents, the theological question became burdensome, especially in political, legal, and professional discourse that has no stake in, or even rejects, the possibility of consensus about matters theological.”)

Robert A. Gahl, Jr.
July 17, 2003