1 Introduction
The default mode of thinking about law today supposes that law is an empty vessel into which policy preferences can be poured and given social effect without regard to their justice, rightness, or goodness. This “instrumental view of law—the idea that law is a means to an end—is taken for granted in the United States, almost a part of the air we breathe.”1 Understood as merely an instrument, law can be manufactured as desired and then invoked, threatened, manipulated, enforced, and utilized, with force if necessary, in furtherance of endless ends.
The dominance of the instrumental understanding of law was not inevitable. It succeeded a conversation in which “law was widely understood to possess a necessary content and integrity that was, in some sense, given or predetermined. Law was the right ordering of society binding on all.”2 To be sure, there was never a time in which there was just one version of the noninstrumental understanding of law; there were always many ways of understanding human law’s relation to natural law, natural right(s), the common good, the Logos, divine law, the Ten Commandments, the Great Commandment, and so forth. Nor did the noninstrumental understandings of law preclude consideration of whether laws were workable in practice.3 What the noninstrumental versions, variously expressed, had in common that categorically distinguished them from the instrumental view, however, was the judgment that “law was not entirely subject to our individual or group whims or will”4 because, definitively,
John Witte’s wide-ranging work engages questions about the purpose of human law at many points, but especially in its resuscitation of the Reformed Protestant doctrine of “the uses of the law.” This chapter begins by setting out Witte’s historical analysis of the uses of the law and proceeds to his application of the doctrine to contemporary criminal law. With the uses model of law thus in view, the chapter then asks in a sustained way what we are to make of Witte’s programmatic contention that “human rights and their vindication help the law achieve its basic uses in this life.”5 One coauthor (Brewbaker) offers a qualified Protestant agreement with Witte’s analysis of uses of law as a vindicator of human rights, while the other coauthor (Brennan) advances a qualified disagreement with the claim that law is rightly understood as an instrument for settling contests between human rights and the right of the state.
This chapter’s critical engagement of Witte’s way of situating rights vis-à-vis law in the long arc of the Western conversation welcomes Witte’s judgment that “secular political philosophy does not and should not have a monopoly on the nurture of human rights.”6 It embraces also his judgment that “avowedly secular values are not inherently more objective, in an epistemological sense, than their religious counterparts.”7 It draws appreciatively, furthermore, on his argument that rights emerged from Christian and other religious reflection on fundamentals of human dignity, human community, and the freedom of individuals and groups to form and act upon their beliefs about the divine.8 Respecting Witte’s judgment that “rights and liberties depend upon fundamental beliefs for grounding, limitation, and direction,”9 and discerning and navigating characteristic differences between Protestant and Catholic understandings of individual and group liberties in relation to the common good, we press the question of what room and substance Witte gives to the “common good,” a term he uses frequently, in the “human rights regime[s]”10 he commends. Having done so, we conclude by asking in a suggestive way whether Witte might agree that establishing friendship, which Thomas
2 The Protestant Doctrine of the Uses of the Law
The theology of the Protestant Reformation is sometimes summarized under five headings: (1) sola scriptura—scripture alone as the ultimate authority; (2) sola fide—salvation by faith alone; (3) sola gratia—salvation by grace alone; (4) solus Christus—salvation through Christ alone (affirming the priesthood of the believer); and (5) soli Deo gloria—the glory of God as the sole goal of life. Although this formulation came along hundreds of years after the Reformation itself, it remains a helpful summary of Reformation distinctives.
It is no surprise that the question of the uses of the law would arise in the context of a Christian theological system bearing these emphases. The question of how to rightly interpret Old Testament law in the New Testament era was, of course, an old one. That said, the Reformation’s “new” teaching that one’s own works were not a cause of one’s justification before God raised new questions. Granted, all agreed that the “law was a tutor to lead us to Christ” (Galatians 3:24), but if one’s works play no part in one’s justification, and, indeed, if “all who rely on the works of the law are under a curse” (Galatians 3:10), the question whether and, if so, how the law had any continuing use in the life of the believer took on great urgency. The doctrine of the uses of the law provided an answer—or rather, a family of answers—to that question.12
In a well-known essay, Witte provides a fine summary of the Reformed doctrine of the uses of the law, including a historical survey that shows the various points of disagreement among its interpreters. Witte’s summary first addresses the question of what law we are talking about when we speak of the uses of the law. As Witte argues, the law in question is the divine moral law, which, the reformers believed, God “has written … on the hearts of all persons, rewritten … in the pages of Scripture, and summarized … in the Ten Commandments.”13 The uses of this law, as summarized by Witte, are as follows: “First, the law has a civil use to restrain persons from sinful conduct by threat of
The moral law’s second use is theological. The moral law serves as a mirror into which the sinner can look, as Luther put it, “to reveal his sin, blindness, misery, wickedness, ignorance, hate, contempt of God.”17 The law provides sinners with an accurate picture of themselves and their hopelessness apart from Christ’s grace. As Calvin puts it, “[A]fter [the sinner] is compelled to weigh his life in the scales of the law, he is compelled to seek God’s grace.”18
Finally, the moral law has an educational use. It “teach[es] those who have already been justified ‘the works that please God.’”19 We have seen that the civil law helps reinforce public morality by threat of divine punishment. To be sure, the law’s educational function does something similar with respect to these same basic expectations of external morality. However, for the Christian, the use of the law goes even further, teaching believers “not only the ‘public’ or ‘external’ morality that is common to all persons, but also the ‘private’ or ‘internal’ morality that is becoming only of Christians.”20
Witte’s contribution in the essay noted above is to connect the Reformed “uses” doctrine to contemporary legal thought by making a claim about Anglo-American criminal law: “The new theological doctrine of the uses of moral law that emerged out of the Reformation had a close conceptual cousin in the new legal doctrine of the purposes of criminal law that [later] came to prevail in early modern England and America.”21 Like the theologians’ teaching about the uses of the law, the account of the purposes of the criminal law that gradually emerged also found three purposes: “(1) deterrence or prevention; (2) retribution or restitution; and (3) rehabilitation or reformation—the classic purposes of criminal law that every law student still learns today.”22 Not only are there three purposes, but Witte argues further that “[t]he definition of the deterrent, retributive, and rehabilitative purposes of the criminal law bears a striking resemblance to the definition of the civil, theological, and educational uses of the moral law.”23 Like the civil use of the divine law, deterrence involves the criminal law’s role in “coercing persons to adopt … an external, public, or civic morality.”24 Like the theological use of the divine law, state punishment “can induce the sinner to repent from his evil, confess his sin, and seek God’s forgiveness.”25 Indeed, Witte notes, this aspect of criminal law was “one of the principal early rationales for the establishment of penitentiaries in England and America—to give prisoners the solitude and serenity necessary to reflect on their crime and seek forgiveness for it.”26
Finally, Witte argues, criminal law’s oft-mentioned rehabilitative function resembles the educational use of the divine moral law. Criminal law can “restore in the community a knowledge of and respect for the requirements
To be clear, Witte is not arguing “that the Protestant theological doctrine of the three uses of moral law was the source of the modern Anglo-American legal doctrine of the purposes of criminal law,”31 merely that “the close analogies between the structure and content of these theological and legal doctrines reflect ample doctrinal cross fertilization between them.”32
4 Contemporary Applications
Witte’s historical claim is relatively modest. Nonetheless, it leads him to notice some important theological continuities between the Reformed theologians and the early modern jurists who formulated the threefold purposes of criminal law. These continuities stand in stark contrast with contemporary assumptions about the nature and purposes of laws in general.
The ideas that Witte sees as holding the older system together are: (1) “the theory of natural and moral law,” (2) “the traditional anthropological assumption that human beings and human communities are at once saintly and sinful, simul iustus et peccator,” and (3) “the traditional moral theory of government
In later writings, Witte broadens his approach to the uses of the laws. Rather than make the limited historical claim recounted above in connection with the criminal law, he suggests a more direct link between the old Reformed accounts of the uses of the [divine moral] law and the functions of [civil] law more generally. In a recent book, he notes in passing that the “basic uses” of the [civil] law include “the civil use of keeping peace, order, and constraint among its citizens even if by force; the theological use of driving one to reflect on one’s failings and turn to better ways of living in community; and the educational use of teaching everyone the good works of morality and love that please God, however imperfect and transient that achievement inevitably will be in the present age.”38
Even more striking is his argument, to which we will direct primary attention, that “human rights and their vindication help the law achieve its basic uses in this life.”39 Rights and their recognition, Witte seems to suggest, help
5 Why Witte Is Right: a Protestant Endorsement (with Reservations)
5.1 Why Witte May Be Wrong
Before discussing why Witte may be correct in his claims about rights and the uses of the law generally, let us begin by noting some possible objections to Witte’s thesis about human rights and the uses of the law. A first objection relates to the rhetorical invocation of the uses-of-the-law framework in the context of modern law. Recall that the framework was first developed to describe the functions of the divine moral law in the life of a community (the civil use) and in the lives of individual believers (the theological and educational uses). One might doubt whether the theologians who formulated the uses doctrine would be confident that insights about how divine moral law functions can be assumed to apply equally to the laws human beings make.
Witte’s original article does not present this question. As discussed above, Witte’s earlier works merely make the modest historical claim that early modern jurists’ understanding of the purposes of criminal law was a “close conceptual cousin” of the Reformed understanding of the three uses of the divine moral law. From there, as recounted above, Witte makes a number of compelling observations about the criminal law’s implicit dependence on extralegal norms about government authority and human conduct.40
The more recent assertions about the uses of civil law, however, are not qualified in the same way. Rather, Witte assumes there is at least an analogical relationship between the purposes of civil law generally and the uses outlined in the old Reformed doctrine. This argument is least controversial with respect to the civil use of the law. Few would deny that one of civil law’s most important functions is to safeguard a degree of social peace and stability. The reformers argued that fear of divine punishment was the active agent in securing peaceful social life. Of course, they might well have expected that state authorities would be the most likely agencies of divine punishment (at least in this life), so there might be little practical difficulty in arguing for the validity of a civil use of the civil law. Still, even this extension of the doctrine becomes less plausible as applied to laws other than those dealing with crimes and, perhaps, torts.41
The biggest challenges to extending the uses doctrine to civil law arise with the educational use of the law. We have already seen that, at least on some accounts, the divine moral law is intended to teach the believer a higher gospel morality that would not be expected of unconverted sinners. Civil law, however, is usually seen as an expression of the external morality that conduces to public order, not a set of aspirational norms for living the most virtuous possible human life. Even so, it may be fair to say that the civil law may serve as a guardrail that helps keep persons from gross sins and thus please God more than they otherwise might.
Perhaps the fairest reading of Witte’s more recent use of the uses of the law is simply as a broad categorical gesture meant more as an observation about the effects laws generally have than as an extension of divinely revealed truth. Following the Reformation jurists, Witte’s earlier characterization of the three uses extended the meaning of “law” from its primary meaning (divine moral law) to a secondary meaning (civil law). Perhaps the concept of theological use could similarly be extended from the reformers’ primary meaning (leading the sinner to seek God’s grace) to a more secular secondary meaning (“turn[ing the citizen] to better ways of living in community”).43 Similarly, its educational use may be merely teaching the “good works of morality and love.”44
Regardless of how we understand Witte’s intentions, however, he clearly assumes some degree of correspondence between the norms of any given state’s civil law and the divine moral law. This creates an important difficulty. The problem is not just that the demands of moral virtue may be greater than the law’s requirements, but, more fundamentally, that the laws of any given real-world government are likely to be perverse in some, and perhaps many,
One need not look far for examples of laws that pretty much everyone agrees taught the wrong thing. Whether or not they deserved to be called law or actually constituted law in some metaphysical sense, laws authorizing some human beings to enslave others in the American South and elsewhere, Jim Crow laws in America and apartheid laws in South Africa, and—most famously in law school jurisprudence courses—Nazi laws, helped build a cultural context in which pernicious norms could be maintained and rationalized.
Saint Augustine gives us reason to believe that even though these examples may be aberrations, that the disconnect between law and (true) morality will always be a question of degree and not kind. On one hand, the natural law is written on the heart of human beings and cannot be entirely erased. Therefore, laws in general usually reflect norms approximating genuine justice in many if not most cases. On the other hand, the laws of any given community are shaped by its loves, which are disordered to the extent that they are not ordered by the love of God. The more disordered the loves, the more we may expect the laws to miss the mark; the less disordered the community’s loves, the better the laws are likely to be.
So the best we can say about the educational effects of any system of real-world civil laws is that it will teach a vision of the good life that is ordered by the community’s loves. No community—not even the church, says Augustine!46—has its loves entirely in order this side of heaven. The more misshapen those loves are, the worse the laws, and the worse the ensuing education will be.
5.2 Why Witte Is (Mostly) Right
Witte not only claims that civil law serves a threefold purpose analogous to the Reformation’s three uses, but he also makes a more specific claim for human rights: ‘“human rights,” he argues, “and their vindication help the law achieve its basic uses in this life.”47
My coauthor [Brennan] will argue later in this chapter that Witte is mostly wrong about this claim for a number of familiar reasons that might be summarized under the familiar theoretical heading “the priority of the good over the right.” I [Brewbaker] argue here that even if Witte is arguably wrong in theory, he may nevertheless be right in practice.
I agree with Christian skeptics who criticize the utopian idealism of some modern rights advocates, the reduction of rights claims to groundless and self-interested wish lists, the monopoly of rights language in public debates about morality and law, and the dominant liberalism of much contemporary rights talk.… I further acknowledge that some rights and liberties recognized today are more congenial to scripture, tradition, and Christian experience than others.48
At the same time, however, he argues that “a good number of contemporary … rights have deep roots in the Western Christian tradition and remain worth affirming and advocating.”49 He also notes that “Christians from the start have claimed their rights and freedoms first and foremost in order to discharge the moral duties of the faith.”50
Most relevant to the point at hand, he asserts that “[r]ights claims can reflect and embody love of God and neighbor” and can provide “the opportunity and accountability necessary to learn and discharge … moral duties.”51 Rights claims call our attention to the respect that is due our neighbor: “To insist on the rights of self-defense and the protection and integrity of one’s body or loved ones, or to bring private claims and support public prosecution of those who rape, batter, starve, abuse, torture, or kidnap you or your loved ones is, in part, an invitation for others to respect the divine image and ‘temple of the Lord’ that each person embodies.”52 While Witte acknowledges that rights may sometimes be acknowledged in form but denied in substance,53 he notes that rights-conferring enactments, such as the U.S. Civil Rights Act of 1964 and the Voting Rights Act of 1965, have served important educational purposes as well as providing means of redress.54
That said, what grounds Witte’s project? If he is unwilling to offer a thick theoretical/theological defense of human rights, what gives him the confidence to urge his fellow Christians to include rights claims in their moral, legal, and political discourse and to “remain part of broader public debates about human rights”?60
Witte has not (to my knowledge) answered this question in express terms, but I will offer three possible justifications. Witte is, among other things, a Reformed exponent of the natural law tradition.61 Legal academics often focus, understandably enough, on natural law jurisprudence and its ongoing attempts to refine our understanding of the details and implications of the natural law. On this understanding, natural law looks like the development of a set of arguments from first principles. However, natural law can also be seen as a fact about human nature. It just is the case that the moral law is written on the heart,62 and if that is true, this fact provides hope (though by no means any guarantees) as we engage in the process of political and legal deliberation about our common life. We can expect our discourse to produce some quantity of true “middle axioms” (statements that occupy space somewhere
Witte’s intellectual background is also worth noting at this point. Witte is a graduate of Calvin University, which is affiliated with the Christian Reformed Church and is known for its insistence that faith commitments ground intellectual and cultural life. Calvin’s tradition draws perhaps most famously (though by no means exclusively) on the Dutch Reformed tradition, whose most famous representative is probably Abraham Kuyper.
God’s common grace is to be seen at work in the inward life of humankind wherever “civic virtue, a sense of domesticity, natural love, the practice of human virtue, the improvement of the public conscience, integrity, mutual loyalty among people, and a feeling for piety leaven life.” It is to be seen at work in the outward existence of humankind “when human power over nature increases, when invention upon invention enriches life, when international communication is improved, the arts flourish, the sciences increase our understanding, the conveniences and joys of life multiply, all expressions of life become more vital and radiant, forms become more refined and the general image of life becomes more winsome.”65
Something like this confidence in God’s ultimate vindication of the world he has made may be underwriting Witte’s insistence that “rights should remain part of Christian moral, legal, and political discourse,” even in the face of the difficulties with rights talk that he forthrightly acknowledges.67 Kuyper sees a world in which human life involves centuries of “constant change, modification, [and] transformation in human life.”68 At the same time, unless human life is merely “an endless, unvarying repetition of the same things,” these developments must be directed toward something: “Though it pass through periods of deepening darkness, this change has to ignite ever more light, consistently enrich human life, and so bear the character of perpetual development from less to more, a progressively fuller unfolding of life.”69 Witte’s confident admonition toward Christian engagement in human rights discourse and advocacy may owe something to a Kuyperian faith in God’s sovereign action in the world.
Witte also seems to think that Christians have an important role to play in disciplining debate about human rights. Even though human beings “just know” something about the moral order because, whether they acknowledge it or not, the natural law is written on their hearts, Witte also argues that Christians have theoretical contributions to make. According to Witte, Protestant thought “avoids the limitless expansion of human rights claims by grounding [human rights] norms in the creation order, divine callings and covenant relationships.”70 Human rights’ origins stem from built-in features of the natural order like family, church, and state and the nature of the human person as one who has a distinct vocation of service to fulfill. Grounding human rights in
Finally, like it or not, rights talk is the dominant mode of political discourse in the contemporary West. Jefferson Powell has argued persuasively that, as a practical matter, American society is unlikely to be rendered more just by abandoning its focus on rights. The American political community, Powell claims, is “constituted by the very individualism expressed in rights talk.”71 As a result, rights talk is the natural political vernacular of our political discourse and, thus, the natural vocabulary for expressing concerns about social justice and social peace. Witte’s argument appeals to something very much like Powell’s insight. The fact that rights imply correlative duties permits rights discourse to be seen as a conversation about what we owe to each other—that is, what it means to work out our love of God and neighbor in public.
6 Why Witte May Be Wrong: a Catholic Critique (with Important Points of Agreement)
6.1 Law’s Nudging and Teaching
Witte has asked us to think of civil or human law in part in terms of its educational use. The opposing view, as Witte appreciates, is the idea of law as a policeman, an idea that has been in English-language jurisprudential circulation since Hobbes proposed a law-giving Leviathan that maintained public order by threats indifferent to any positive view of human living. When Oliver Wendell Holmes Jr. popularized his “bad man” view of law, he was drawing on, even as he criticized, John Austin’s jurisprudential thesis that law just is the command of the sovereign backed by the threat of force. Under this view, law serves “to keep people from acting in ways that harm others (or their property); in operating as a negative constraint, law is not concerned with inculcating a positive view of the way people should live and flourish together.”72
By marking out certain types of agreement as privileged—contracts in general, marriage in particular, corporations and trusts in Anglo-American law—the legal system affords ways in which human energies and material resources may be pooled and increased. In [H. L. A.] Hart’s amendment of Austin, this function is performed by power-creating rules. But his emphasis is wrong. The human beings attracted, by the legal privileges attached, to enter a contract or form a marriage are not so much given power to have legal consequences follow their agreement as they are brought to enter cooperative relationships where almost everything will depend not on power and sanction but on reciprocal trust and good will; the legal system has not provided power so much as directions for acting in harmony—a musical script, not a set of batons.74
Trusts, estates, and even simple contracts for the sale of goods exemplify law’s channeling function, but marriage does so in a most salient way because, on all accounts, “marriage is a keystone of our social order.”75
The laws of marriage and the family have long been one of Witte’s principal areas of scholarly focus, and, as he has shown, the law of marriage continues today to channel human choices and preferences: “The modern Western state does not require its citizens to get married, but it does ‘nudge’ in that direction. It provides state marital licenses, tax and social security incentives, spousal evidentiary and health care privileges, and hundreds of additional federal and state benefits and incentives.”76 The state’s nudge toward marriage does not purport to set out a template for living the most virtuous life possible, but, by incentivizing choice in the direction of a particular form of cooperative relationship, it does inculcate through “a musical script, not a set of batons,” a positive view of the way people should live and flourish together.
This latest call for a legal redefinition of marriage has in turn called forth considerable resistance from Witte in 465 pages of dense history and argument in The Western Case for Monogamy Over Polygamy. Although his argument leads him to conclude that “The constitutional case for polygamy is weak compared to the cases supporting the liberalization of other traditional sex, marriage and family laws,”79 Witte acknowledges with resignation that “There may come a time that the West will more readily accept polygamy as a valid marital option that is licensed and regulated by the state.”80 We return to this possible eventuality and Witte’s response to it below.
Addressing both Holmes’s bad man (a real but not very typical representative of the population) and also the larger audience made up of the uncertain, the confused, the conforming, and the aspiring, the documents composed by constitution writers, legislators, and judges are educative. Their success is far more by persuasion that they are right than
by coercion. To think of law as a science of power, unlocked by a key, badly obscures this function.82
The documents teach, as do the practices of enforcing them, and together these teachings carry the authority of the state.
The teaching function of law is a two-edged sword, however, because duly ratified constitutions and procedurally proper statutes alike are sometimes very useful instruments in teaching “the wrong thing.”83 “Always and everywhere the law teaches,” but “What, then, should be its lessons?”84
A perverse pedagogy of law to which Noonan devoted instructive analysis is slavery, which existed, Noonan shows, not just by the brute power of negative constraint but also by what law taught. “Control statutes and status statutes together were indispensable to the creation and maintenance of the institution”85 of slavery, and while enforcement of the statutes with the strong arm of the state sometimes occurred, of course, Noonan’s insight was that the institution depended on a world of concepts controlled by lawyers who used them to teach the public a doctrine: “[T]he legislators and courts of Virginia presented a doctrine on the morality of slavery. They taught that it was good. In the pedagogy of the law, slaves were identified with the soil—the literal foundation of prosperity in the colony—or, generically, with property. As long as the teaching of the lawgivers was accepted, slavery could not be criticized without aspersion on the goodness of wealth itself.”86
What Noonan called “the teaching of the lawgivers” about the goodness of slavery is no longer accepted, but its repudiation, like the laws that entrenched what needed repudiating, was not effected by turning an on-off switch to off. There have been questions to be asked and answered at every turn, from Dred Scott, the Civil War, and the Reconstruction Amendments through Brown v. Board of Education, Cooper v. Aaron, the Birmingham jail, the Civil Rights Act of 1964, and Selma, down to the present and continuing debate about the propriety of race-based affirmative action in higher education. In his “Letter from Birmingham Jail” (1963), Rev. Dr. Martin Luther King Jr. quoted Saint Augustine for the proposition that “an unjust law is no law at all,” as he urged and defended peaceful disobedience of statutes still in force that taught a
But if procedural pedigree cannot guarantee legal status—that is, if due process and specifically legislative process as such cannot create law, but only what Justice Samuel Chase in Calder v. Bull (1798) referred to as “An ACT of the Legislature”—in the morally serious matter of race, can it nonetheless do so in the morally serious matter of marriage? Writing in the context of marriage and possible legal recognition of polygamy, Witte observes, “In a democratic polity, the judgment of whether the state should nudge for or against certain behavior—let alone outright prescribe or proscribe it—rests ultimately with the people.”87 Perhaps, but the story is more complicated because sometimes “the people” in a democratic polity are overruled by judges giving effect to constitutional “rights,” some of them not even enumerated in the text of the Constitution, as Witte appreciates. Because the Supreme Court in Obergefell has found a right, indeed a “fundamental right,” to same-sex marriage, it is timely to ask whether by parity of reasoning it ought to find a right, indeed a fundamental right, to polygamous marriage?88 As we emphasized above, it is Witte’s pointed contention that “human rights and their vindication help the law achieve its basic uses in this life.”89
6.2 Rights Conflicts?
With respect to racial discrimination by law, “the people,” we now agree, were “morally wrong,” dead wrong. With respect to marriage, though, Witte does not argue that legalized polygamy would be morally wrong; instead, he rests on the following comparison, quoted above, to areas in which the courts have reached liberalizing conclusions: “The constitutional case for polygamy is weak compared to the cases supporting the liberalization of other traditional sex, marriage, and family laws; there are just too many serious concerns about harms and rights on the other side.”90 Witte thus concludes The Western Case for
In the courts of the United States, however, such an answer will not suffice. When litigants attacking legislative limitation of marriage to two-person unions press the question in properly presented cases, one of which the Supreme Court will eventually need to take, the existence of the law being challenged will be the starting point, not the end point, for as Chief Justice John Roberts wrote in dissent in Obergefell: “Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification.”92 The history and tradition of limitation of marriage to two-person unions will then be subject to judicial analysis according to familiar precedents, and those precedents, for their part, structure the judicial inquiry in terms of whether the right in question is fundamental, in which case the legislative restriction will stand only if it meets the demanding requirements of strict scrutiny, in which case the availability of a mere rational basis will be enough for the courts to sustain the law against challenge.
Under this familiar judge-made body of law, it is the job of courts to recognize individual rights, on one hand, but also, on the other hand, to allow them to be trumped or overridden when (1) there is a “compelling governmental interest” and (2) the government can show that the challenged law is the “least restrictive alternative.” The familiarity of this line of analysis can obscure the startling fact that what are said by the courts to be “rights” sometimes turn out not to be rights full stop at all; they collapse (or are suppressed) when government can establish to the court’s satisfaction its own countervailing and prevailing right. On this judicial way of proceeding, which we owe above all to Holmes, both sides have rights, with the result that conflict, between individual rights and the right of government, is baked in from the start.93 This mode of analysis that takes conflict as given, in a way redolent of the starting points of social contractarian analysis from Hobbes and Locke to Rawls and his disciples, is so familiar to American lawyers as to seem almost inevitable.
Jamal Greene’s recent work is a telling recent case in point. It takes the conflict for granted, calls for the multiplication of rights claims, and concludes
Adrian Vermeule thinks not, in work that has been garnering much critical attention and merits consideration for the light it can shed on Witte’s understanding of law as a vindicator of rights.96 On the familiar view sketched above, “[t]he implicit premise,” Vermeule observes, “is that the interests of ‘government’ as representative of the political collective, on the one hand, and the rights of individuals, on the other, are opposed and must be balanced against each other. It is,” Vermeule continues, “implicitly but unmistakably, a utilitarian and aggregative conception of rights.”97 To this, Vermeule proposes an alternative which he styles the common-good or classical approach. This approach lays claim to the latter title, on Vermeule’s account, because it was the way the courts usually reasoned about rights until Progressivism rather successfully entrenched the conflict model bequeathed to us by Holmes. On the classical model, according to Vermeule, rights do not arise in a way that can put them essentially at odds with the interests rightly to be defended by the state, and this is because “rights exist to serve, and are delimited by, a conception of justice that is itself ordered to the common good.”98
On the classical, common-good model, as Vermeule explains, “[r]ights, properly understood, are always ordered to the common good and that common good is itself the highest individual interest. The issue is not balancing or override by extrinsic considerations, but internal specification and determination of the right’s proper ends and, therefore, its proper boundaries or limits.”99 When the common good enters into the very definition of rights themselves and guides their determination, there looms no moment of conflict at which any true rights of persons can be overridden or trumped. “[T]he classical legal tradition has a rich account of rights, rooted in the basic idea of ius as what is
On the classical view developed since the twelfth century and drawn upon by Vermeule, what is due to each includes a limited realm of freedom or liberty, and each of these little realms is what is sometimes called a subjective right.101 Correctly understood, as Dominic Legge asserts, such subjective rights “are not set over against the common good, as if an increase in the common good necessitated a diminishment of individual liberty. Rather,” as Legge elaborates, “that individuals be secure in their liberties as citizens—that they ‘possess rights’—is precisely an aspect or dimension of the common good, and the protection of those rights in law is a means for securing the common good of a just republic.”102 Questions about how broad these zones of liberty should be will be the foci of political disagreement and decision-making, but the distinctive mark of the classical approach is that the common good will provide the ultimate criterion of judgment.103
Taking the common good as the end to which all law is rightly ordered, the classical view allows for a range of institutional allocations of decision-making authority. Unlike the regnant Holmesian model, the classical view does not make public authority intrinsically suspect, a constant threat to individual rights; such authority is, instead, presumptively at the service of the common good in which the individual’s flourishing in part consists.104 On one hand, then, the classical view takes no a priori position on the proper scope of judicial review; on the other, “the political morality of the common good itself includes role morality and division of functions.”105
[R]ights (as ius) are intrinsically ordered to the common good, but the common good is not given in a fixed, identical form for all polities at all times.… The common good, then, is itself subject to public determinatio or concretization, as are the rights that flow from the common good. Because of the basic structure of determination, judges would defer to the legislative specification within broad boundaries of reasonableness.… Judges, in this framework, ask whether the public determinatio has transgressed the broad boundaries of reason and become ‘arbitrary’—a word frequently invoked in the caselaw. The closest analogue in modern law is probably to (forgiving versions of) arbitrariness review under the Administrative Procedure Act.106
Administrative lawyers today tend to associate arbitrariness review under the Administrative Procedure Act (APA) with Overton Park and “hard look” review, but arbitrariness review under the APA as originally understood “was a sort of lunacy test.”107 On the classical account of the role morality of courts vis-à-vis legislatures as constituted in our system, then, it would be fair to say that courts should defer to legislative determinations of rights unless they are fairly describable as lunatic.108
6.3 Why Witte May Be Wrong
The classical, common-good understanding of rights recently popularized by Vermeule is just as contestable as the competing understandings against which it contends, whether Holmes’s, Greene’s, or anyone else’s. It remains, then, to situate Witte’s work on the use of law to vindicate rights in the contest among competing versions in which the common-good version is now receiving so much attention, and Witte’s own methodological reflections provide a starting point.
acts become behaviors; behaviors become habits; habits yield customs; customs produce rules; rules beget statutes; statutes require procedures; procedures guide cases; statutes, procedures, and cases get systematized into codes; and all these forms of legality are eventually confirmed in national constitutions, if not in regional conventions and international covenants.112
Acknowledging that this “bottom-up approach to [rights] sometimes produces blurrier lines of reasoning; more slippage between principles, precedents, and practices; [and] provisional and sometimes messier recommendations and prescriptions for church, state, and society,” Witte expresses the hope that “it also makes for an account and defense of human rights and religious freedom that is more realistic, rigorous, and resilient over time and perhaps even across cultures.”113 Resisting the claims and criticisms of philosophically and theologically motivated critics of human rights who “often have one or two key definitions or forms of rights in mind—sometimes with labels such [as] ‘natural,’ ‘universal,’ ‘human,’ ‘fundamental,’ or ‘unalienable,’ rights,”114 Witte criticizes
On the ground where lawyers and legislators work, though, it is not only possible but characteristically human to ask about any assertion, “Is this true? Is this right? Or, when warranted, is this at least probably true, probably right?” The ability to answer “probably” precludes any excuse for trying not to answer at all, especially when laws of general applicability are being made on the basis of the answer.
On the Catholic understanding of the human person (articulated here by Bernard Lonergan), “every person is an embodiment of natural right. Every person can reveal to any other his natural propensity to seek understanding, to judge reasonably, to evaluate fairly, to be open to friendship.”117 So, unless and to the extent we interdict such questions, we can seek understanding by asking and answering the questions, “Do individuals (and groups) sometimes have rights that must be limited by government on the basis of government’s interests that are somehow inimical to those antecedent human rights? Or, instead, do individual (and group) rights, subjective rights, emerge only as determinations of justice ordered to the common good, such that any apparent conflict between government and the governed is only contingent (the result of incorrect understanding or judgment) and not intrinsic and necessary (as it was for Holmes)?”
Witte denies that “rights constitute a freestanding system of morality” and denies also that they “render Christian moral and religious teachings superfluous,” contending instead that “human rights are ‘middle axioms’ of political discourse. They are a means to the ends of justice and the common good.”118 The italicized terms bring Witte’s approach within the broad rhetorical ambit of the classical approach, and on the classical understanding, as we have seen, the common good was the flourishing of a political community and itself the
Although Witte laments “the libertarian accents that still too often dominate our rights talk today,”120 and asserts that “[w]e need not accept the seemingly infinite expansion of human rights discourse and demands,”121 what remains programmatically unclear in Witte’s work is the criterion (or criteria) of judgment being brought to bear to justify excluding some rights claims from legal vindication. The closest he seems to come to an answer leaves a hole—to be filled in, but by whom?—in the center: “[T]he norms that rights instantiate depend upon the visions and values of human communities for their content and coherence—or, what the Catholic philosopher Jacques Maritain described as ‘the scale of values governing [their] exercise and concrete manifestation.’”122 Is it enough that the resulting legal apparatus be in “dialectical harmony”123 with its informing sources? As Stuart Hampshire observed, the age’s dominant political liberalism, largely accepted by Witte, tends to admit as reasonable and harmonious only what is judged to be so by the standards of liberalism itself.124
Witte the historian is correct that there were rights and liberties before liberalism, and he is also correct that (pace Samuel Moyn) Christians contributed mightily to the development of subjective rights of individuals and of groups in the Western legal tradition.125 When the courts finally decide whether the Constitution of the United States should be interpreted to invalidate state limitation of marriage to two-person unions, the Supreme Court will not speak in terms of morally good and morally bad; it will speak in terms of whether there is a fundamental right that trumps legislation to the contrary. What Chief Justice Roberts wrote of the majority opinion vindicating those seeking same-sex marriage in Obergefell will be true of polygamists in some such future case: “The majority’s driving themes are that marriage is desirable and petitioners desire it.”126 If the Supreme Court were to defer to legislative resolution against polygamists’ desires (unless such resolution could be said to be arbitrary in the sense of lunatic), it would be content to deny polygamists their desire because the classical approach does not imagine that it is law’s duty to liberate people “from the unchosen bonds of tradition, family, religion, economic circumstances, and even biology.”127 A Supreme Court operating according to the classical account would not let desire cloaked as a right trump legislative judgment, in the form of an exercise of the police power, of what is good for the populace. Refusing to relegate the good to private judgment128 and refusing, moreover, to “instrumentalize[] law in the service of the relentlessly liberationist project” and “use it as a tool for extrinsic ends that warp its true nature,”129 the classical understanding would put law in service of marriage understood as a naturally given institution in need of legally adequate specification by the legislature. “A civil specification that distorts the essence of the natural institution would be unreasonable and arbitrary, from the standpoint of common good constitutionalism.”130
Neutrality about the good is an illusion that should fool no one, as Witte himself attests: “Serious public and political arguments about the fundamentals of
As a Christian, however, Witte knows that the highest ideal is not doing justice by enforcing rights, however that might look, and so Witte’s rights talk, as he repeatedly acknowledges, is only penultimate as it leaves room (in Noonan’s expression) for “Augustine’s sublime fusion in which … justice is defined as ‘love serving only the one loved,’”134 perhaps in terms of friendship, a concept never thematized in Witte’s work. Openness to friendship was one aspect of the natural right of which Lonergan said “every person is an embodiment.”
7 From “Uses” and “Rights” to Friendship?
In asking whether the Old Law contains moral precepts, Thomas Aquinas answers, in language we quoted in part in the introduction, that “just as the principal intention of human law is to create friendship between man and man, so the chief intention of the Divine law is to establish man in friendship with God.”135 For Thomas, friendship is an analogical term, and the sort of friendship he has in mind for human law to establish is civic friendship, about which Aristotle wrote, “It also seems that friendship holds cities together and that legislators take it more seriously than justice.”136 Aquinas does not say very much about civic friendship, but it seems to occupy a place not far removed
If Catholics sometimes feel a visceral aversion to the individualism of rights talk, Protestants may experience similar feelings of aversion to the collectivist overtones of common-good talk, especially given their emphasis on human fallenness. Introducing the notion of friendship may provide some space for common ground. Colin Gunton has written that freedom is “something we confer … on each other by the manner of our bearing to one another.”139 Presumably it is the gift of not expecting that every action any one person takes will be for the (perceived) benefit of every other person; there need not be congruence at every moment between individual action and the interest of the group; common-goodism is not collectivism. Friendship includes the conferral of a zone of independence and freedom within which to respond to one’s own understanding of who God is calling one to be. As we know from personal experience, the respect that friends show to each other includes the grant of this sort of freedom.
Law, including legal rights, is at least in part about establishing this sort of freedom. Law is modest in its ambitions because lawgivers and judges cannot read the hearts of their fellow citizens, because lawgivers and judges are also fallen creatures, because laws must be calibrated to the moral capacities of the communities they govern, and so on. Civic friendship is reinforced when citizens are appropriately protected from oppression and wrongdoing,140 when there is general public order, and when citizens are left to live “each man under his own vine and his own fig tree.”141 The Catholic, more than the Protestant, will characteristically affirm that it is of the essence of friendship that the friend
Even just in finding ways to talk together about law, rights, community, and God, as Witte has magisterially invited us to do, we are engaged in what Witte’s mentor, Harold Berman, called “communification,” the working out of sympathetic bonds of community through mutual understanding of our sameness and similarity amid difference.143 And that process of communification, in which each person can show himself or herself open to friendship, is one in which we can discover that we are one another’s equals. Our attentiveness to human equality, an attentiveness that runs through Witte’s work,144 provides in turn an opportunity to recognize that goods, sometimes vindicated in law through rights claims, are “realizable as much in the lives of other human beings as in my own life.”145
Brian Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge: Cambridge University Press, 2006), 1.
Ibid.
See Thomas Aquinas, Summa Theologiae [hereinafter ST] I–II, q.94, a. 5, trans. English Dominican Fathers (New York: Benziger Bros., 1947–48) (“additions” to natural law); ibid. at q. 96, a. 2 (need for law to be “possible … according to the customs of the country”); ibid. at q. 95, a. 1 ad 2 (discussing comparative institutional competence of judges and legislators).
Ibid.
John Witte, Jr., The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition (Cambridge: Cambridge University Press, 2022), 298.
Ibid., 300.
Ibid., 301.
Ibid., 6–7.
Ibid., 11.
Ibid., 300.
ST I–II, q. 99, a.2.
See John Witte, Jr., “The Three Uses of the Law: A Protestant Source of the Purposes of Criminal Law?,” in Witte, God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Grand Rapids: Eerdmans, 2006), 268–76, for a summary of various forms the doctrine took.
Ibid., 264.
Ibid., 265.
Ibid., 265.
Ibid., 265 (quoting Calvin). It is worth noting that this aspect of law helps “establish friendship” in the sense discussed in the final section of this chapter.
Ibid., 266 (quoting Luther).
Ibid., 266 (quoting Calvin). Witte’s account includes an additional, less familiar, aspect of the theological use of the law: “[T]he moral law has a theological use to condemn sinful persons for their violations of the law. Such condemnation ensures both the integrity of the law and the humility of the sinner” (ibid., 265). What Witte means by the “integrity of the law” is somewhat unclear. He says “The violation of the law is avenged, and the integrity—the balance—of the law is restored by the condemnation of those who violate it” (ibid., 266). Perhaps he means something similar to what he quotes Melanchthon as saying later in the essay, when Melanchthon is speaking about the “reasons for criminal punishment.” Melanchthon says: “God is a righteous being, who out of his great and proper goodness created rational creatures to be like him. Therefore, if they strive against him[,] the order of justice requires that he destroy them. The first reason for punishment then is the order of justice in God” (ibid., 277).
Ibid., 266 (quoting Calvin).
Ibid., 266 (citing Calvin: “As a teacher, the law not only coerces them against violence and violation, but also cultivates in them charity and love. It not only punishes harmful acts of murder, theft, and fornication, but also prohibits evil thoughts of hatred, covetousness, and lust.”)
Ibid., 276–79.
Ibid., 280.
Ibid., 280.
Ibid., 281.
Ibid., 284.
Ibid., 283. As noted above, note 20, Witte argues that the theological use also involves offenses against the integrity of the divine law. This point connects more closely to the idea of retribution in the criminal law, but less clearly to the standard treatments of the Reformed three uses doctrine. Witte makes a point of the connection between retribution and this sort of justice. See God’s Joust, God’s Justice, 282–83.
Ibid., 284.
Ibid., 284.
See ibid., 284.
See John Witte, Jr., The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007), 64–65.
Ibid., 286.
Ibid., 287.
Witte, “Three Uses,” in God’s Joust, God’s Justice, 289. Regarding the third item, “the state is seen solely as a representative of the people, not a vice-regent of God.… The cardinal teaching of liberalism … is that government should be morally neutral, showing no preference among competing concepts of the good” (God’s Joust, God’s Justice, 288–89). See also ibid., 290 (discussing the rejection of the formative state and John Stuart Mill’s harm principle.)
Ibid., 289.
Ibid., 290.
Ibid., 290.
Ibid., 290.
The Blessings of Liberty, 298.
Ibid.
See supra text accompanying notes 26–34.
For example, the “secondary rules” that H. L. A. Hart identifies in The Concept of Law. See H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012), 79–99.
The Blessings of Liberty, 298.
Ibid., 298.
Ibid. The full quotation, however, refers to “pleasing God” in a way that undercuts this reading: “Rights and their vindication help the law achieve its basic uses in this life—[including] … the educational use of teaching everyone the good works of morality and love that please God, however imperfect and transient that achievement inevitably will be in the present age” (ibid).
See, for example, Cass R. Sunstein, “Law’s Expressive Function,” The Good Society 9, no. 2 (1999): 55–61.
See Herbert A. Deane, The Political and Social Ideas of St. Augustine (New York: Columbia University Press, 1963), 99–100 (citing sources).
The Blessings of Liberty, 298.
Ibid., 296.
Ibid., 296 (mentioning family laws that confer rights on spouses, parents, and children; social welfare rights, free speech rights, contract rights, criminal procedural rights, freedom of conscience, and free exercise of religion). See The Blessings of Liberty, 296–97.
Ibid., 297.
Ibid.
Ibid. (citing 1 Cor. 3:16).
See Witte’s discussion of Robert Franklin in The Blessings of Liberty, 294.
Indeed, Witte opens The Blessings of Liberty by calling the Civil Rights Act of 1964 and the Voting Rights Act of 1965 “some of the most remarkable human rights documents [the world] had ever seen” (ibid., 1).
See the next section herein.
The Blessings of Liberty, 299–300.
Ibid., 296.
Ibid., 12.
Ibid., 11–12.
Ibid., 296.
See, for example, ibid., 76–104.
See Romans 2:15.
See Romans 1:18 (“For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men, who by their unrighteousness suppress the truth”).
Nicholas Wolsterstorff, “Abraham Kuyper,” The Teachings of Modern Christianity on Law, Politics, and Human Nature, vol. 1, ed. John Witte, Jr. and Frank S. Alexander (New York: Columbia University Press, 2006), 311 (quoting Kuyper).
Ibid. 311, quoting James D. Bratt, ed., Kuyper: A Centennial Reader (Grand Rapids: Eerdmans, 1988), 181.
Bratt, Kuyper: A Centennial Reader, 175.
The Blessings of Liberty, 296.
Bratt, Kuyper: A Centennial Reader, 174.
Ibid.
John Witte, Jr., introduction to John Witte, Jr. and Frank S. Alexander, eds., Christianity and Human Rights: An Introduction (New York: Cambridge University Press: 2010), 32.
H. Jefferson Powell. “The Earthly Peace of the Liberal Republic,” in Christian Perspectives on Legal Thought, ed. Michael W. McConnell, Robert F. Cochran Jr., and Angela C. Carmella (New Haven, CT: Yale University Press, 2001), 85–86.
Cathleen Kaveny, Law’s Virtues: Fostering Autonomy and Solidarity in American Society (Washington, DC: Georgetown University Press, 2012), 19.
John T. Noonan Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (Berkeley: University of California Press, 1976), 12.
Ibid.
Obergefell v. Hodges, 576 U.S. 644, 669 (2015).
John Witte, Jr., The Western Case for Monogamy Over Polygamy (Cambridge: Cambridge University Press, 2015), 463.
Obergefell, at 666.
The Western Case for Monogamy, 6–8, 19–20, and 444–46.
Ibid., 464.
Ibid., 465.
Noonan, Persons and Masks, 13.
Ibid.
See discussion at IV.A.
Kaveny, Law’s Virtues, 29.
Noonan, Persons and Masks, 35 (emphasis added).
Ibid., 41. Interestingly, lawyers creating and enforcing law that protected property, even where the “property” was human, seemed to enjoy the support of Locke’s teaching that a purpose of government was to protect property. See Noonan, Persons and Masks, 35.
The Western Case for Monogamy, 463.
“All of [the] traditional natural law arguments against same-sex relations are seriously disputed today, and their erosion has helped topple traditional Western laws against sodomy, same-sex unions, and in some places same-sex marriage. But none of these traditional natural law arguments applies to polygamy”: The Western Case for Monogamy, 452.
Text at note 7.
The Western Case for Monogamy, 464–65.
Ibid., 465.
Obergefell, at 698 (Roberts, C. J., dissenting).
Jamal T. Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Boston: Mariner, 2021), 56–57, 85–86.
Ibid., 86.
Tamanaha, Law as a Means, 218.
Criticism of Vermeule’s work in this area tends to be passionate, as in Leon Wieseltier, “Christianism,” Liberties: A Journal of Culture and Politics 2, no. 3 (Spring 2022): 326, at 356–63.
Adrian Vermeule, Common Good Constitutionalism (Boston: Polity, 2022), 166.
Ibid., 24.
Ibid., 167.
Ibid., 24.
Witte, introduction to Christianity and Human Rights, 18–19.
Dominic Legge, OP, “Do Thomists Have Rights?,”Nova et Vetera 17 (2019): 127–47, at 146. Witte stresses the error of thinking that subjective rights as such were a modern invention. See Witte, Blessings of Liberty, 14–75. On Aquinas’s defense of subjective rights as required for the sharing of goods vital to the common good, see Russell Hittinger, The First Grace: Recovering the Natural Law in a Post-Christian World (Wilmington, DE: ISI Books, 2003), 270–71.
The difficulties of determining the common good and zones of individual liberty were familiar to premodern Christian political theorists. See, for example, James Hankins, Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (Cambridge, MA: Belknap Press, 2019), 342–50.
Vermeule, Common Good, 29.
Ibid., 43.
Ibid.
Martin Shapiro, Who Guards the Guardians: Judicial Control of Administration (Athens: University of Georgia Press, 1988), 56.
The use American courts traditionally made of the natural law (law of nature) was not to the contrary, as Richard Helmholz, on whom Vermeule relies, has demonstrated. See Richard Helmbolz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge, MA: Harvard University Press, 2015).
The Blessings of Liberty, 11.
Ibid., 11 (emphasis added).
Witte, introduction to Christianity and Human Rights, 41 (emphasis added).
The Blessings of Liberty, 11–12.
Ibid., 12.
Ibid.
Ibid.
Ibid., 11.
Bernard Lonergan, “Natural Right and Historical Mindedness,” in A Third Collection: Papers by Bernard J. F. Lonergan, SJ, ed. Frederick J. Crowe (New York: Paulist Press, 1985), 170, 182. Witte’s work follows the standard narratives according to which, roughly, neo-Thomist developments culminated in the Second Vatican Council’s “transform[ing] the Catholic Church’s theological analysis toward human rights and democracy”: Witte, introduction to Christianity and Human Rights, 24. The opposing or at least complexifying views are developed in Russell Hittinger, “Two Modernisms, Two Thomisms: Reflections on the Centenary of Pius X’s Letter against the Modernists,” Nova et Vetera 5 (2017): 843–80; and John Rao, Removing the Blindfold: Nineteenth-Century Catholics and the Myth of Modern Freedom (Kansas City, MO: Angelus Press, 2014), 155–76.
The Blessings of Liberty, 300 (emphasis added).
On the classical view, “Human flourishing, including the flourishing of individuals, is itself essentially, not merely contingently, dependent upon the flourishing of the political communities (including ruling authorities) within which humans are always born, found, and embedded. This is not at all to say, of course, that the individual should be absorbed into the political community or subjected to it; that is the opposite error of the one the libertarian commits. The end of the community is ultimately to promote the good of individuals, but common goods are real as such and are themselves the highest goods for individuals”: Vermeule, Common Good, 29.
God’s Joust, God’s Justice, 111.
The Reformation of Rights, 343. Nigel Biggar, What’s Wrong with Rights? (Oxford: Oxford University Press, 2020), 150, questions the basis on which Witte accepts some “liberal” rights claims but rejects others.
The Blessings of Liberty, 300 (internal citation omitted).
God’s Joust, God’s Justice, 5.
Michael J. White, Partisan or Neutral? The Futility of Public Political Theory (Lanham, MD: Rowman & Littlefield, 1997), 168.
The Blessings of Liberty, 14–44.
Obergefell, at 699 (Roberts, C. J., dissenting).
Vermeule, Common Good, 22.
On the reduction of what is good to private judgment, see Alasdair MacIntyre, “The Privatization of the Good,” Review of Politics 52 (1990): 344–61.
Vermeule, Common Good, 120.
Ibid., 132. The civil specification would develop subjective rights in part on the basis of natural human powers. See D. C. Schindler, The Politics of the Real: The Church Between Liberalism and Integralism (Steubenville, OH: New Polity, 2021), 132–37.
John Witte, Jr., Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties (Cambridge: Cambridge University Press, 2019), 362 (quoting Lenn Goodman).
Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), 368.
The Blessings of Liberty, 299. See also The Reformation of Rights, 342, on the place of the “transcendent principles of the ius naturale” in informing this ius gentium.
Noonan, Persons and Masks, XX.
Aquinas, Summa Theologiae, I–II, q. 99, a. 2.
Aristotle, Nicomachean Ethics, trans. C. D. C. Reeve (Indianapolis: Hackett Publishing, 2014), 1155a.
Compare ST I–II q.90, a. 2 ad 3 (the “last end” of the law is the common good), with ibid., q. 99, a. 2 (“the principal intention of human law is to create friendship between man and man”)
See John Finnis, “Reason, Authority, Friendship,” in Reason in Action: Collected Essays Volume I (Oxford: Oxford University Press, 2011), 110, 122; James V. Schall, “The Totality of Society: From Justice to Friendship,” The Thomist 20 (1957): 1, 16–24.
Colin E. Gunton, The One, The Three, and the Many (Cambridge: Cambridge University Press, 1993), 64.
The Blessings of Liberty, 297–98.
See Micah 4:4: “[T]hey shall sit every man under his vine and under his fig tree, and no one shall make them afraid.” (ESV). This phrase was famously quoted in the letter from George Washington “To the Hebrew Congregation in Newport, Rhode Island,” August 18, 1790.
In addition, the Catholic will be quick to specify the supernatural virtue of charity as that by which those receiving and possessing that grace may achieve its proper ends; see Patrick McKinley Brennan, “The Forgiveness of Love in Charity: Getting Conversationally Opened Up,” in Christianity, Ethics, and the Law: The Concept of Love in Christian Legal Thought, ed. Zachary Calo, Joshua Neoh, and A. Keith Thompson (New York: Routledge, 2023), 198, 230–33.
John Witte, Jr., introduction to Harold Berman, Law and Language: Effective Symbols of Community, ed. John Witte, Jr. (Cambridge: Cambridge University Press, 2013), 16.
Witte develops the Protestant basis of human equality in God’s Joust, 60–61; see also The Blessings of Liberty, 33, and John Witte, Jr., foreword to John E. Coons and Patrick M. Brennan, By Nature Equal: The Anatomy of a Western Insight (Princeton: Princeton University Press, 1999), XXIII.
John Finnis, “Discourse, Truth, and Friendship,” in Reason in Action: Collected Essays Volume I (Oxford: Oxford University Press, 2011), 48.