This important and substantial book from Jean Porter, a distinguished Professor of Theology at the University of Notre Dame, forms an impressive and worthy contribution to the fine series of Emory University Studies in Law and Religion, assembled by the skilled editorial hands of John Witte Jr.
Professor Porter draws upon her careful study of the early Scholastics (Gratian and Aquinas in particular) and her enviable grasp of contemporary legal philosophy (Raz, Hart, Fuller, Rawls, Dworkin) to produce ‘an essay in systematic theological jurisprudence’ (p 7), ‘a constructive account of legal authority as a natural relation, taking my starting points from early scholastic legal and political thought and developing these in conversation with contemporary philosophy of law and political theology’ (p xv). Her goal is a theory that ‘will be responsive to a widely expressed need for normative standards by which laws might be evaluated and interpreted, while also doing justice to the independence and integrity of the law as it exists in modern Western societies’ (p 5).
In a legal climate of secular liberalism it is refreshing to come to a conspicuously serious work addressing natural law theory from an explicitly theological standpoint. It seemed, until recently, as if the rigours of the mid-twentieth-century English positivists might have all but seen natural law off. Not so. For all its bad reputation and the caricatures that implied that all legal pronouncements derived more or less directly from immutable principles (Justice Holmes in the United States famously derided in a judgment the ‘brooding omnipresence in the sky’), natural law is enjoying something of a principled revival, with its best exponents (Finnis, Grisez, George, Bradley and, here, Porter) addressing questions of the authority of the law in terms that might leave sceptical liberals pleasantly surprised. Indeed, Porter's support for legal recognition of same-sex unions as marriages and the granting of legal recognition to some forms of plural marriages (p 287) might well dismay more conservative natural law enthusiasts and give rise (as she readily recognises) to ‘the suspicion that my account of rights is essentially a baptised version of secular liberalism’ (p 337). Despite her protestations, the suspicion may, at times, be justified.
Having said that, her wider analysis is welcome, for she is surely right that ‘in recent times, Christian theologians have had surprisingly little to say about formal law as such; certainly, compared to the extensive body of theological writings on social justice, contributions to a theology of law have been meagre and under-developed’ (p 3). This book is a scholarly attempt to redress the balance.
The title, Porter explains, is taken from an expression recurring throughout early scholastic literature: ‘the judge, these writers say, acts as “a minister of the law”, in the name of and on behalf of the law itself rather than as a private individual’ (p xvi). In a full, skilful and nuanced exposition in the opening two (lengthy) chapters, she surveys the roots of the natural law tradition. Taking her cue from the scholastic accounts that ground the authority of the law in natural aims that include the sustenance of a communal life, the need for social co-ordination, the importance of protecting the weakest in society and the promotion of common peace, which in turn reflect the capacity for self-determination that is grounded in the dignity of the human person as a being in the image of God, Porter aims to demonstrate to secular jurists and philosophers that a theologically informed account of legal authority may convincingly address their practical concerns, and at the same time to reassure her fellow Christians that ‘we have a stake in safeguarding and promoting ideals of due process and the integrity of the law, and reflecting on what this might mean, concretely, in contemporary societies’ (p xv).
In the third chapter, Porter looks at political authority, recognising its ‘distinctive and necessary role as an expression of the community's foundational authority over its own members’ (p 221). She does not avoid recognition of the perennial challenge facing the natural lawyer of shaping a ‘fully fledged social ethic’ (p 148). That will require the need ‘first, to determine independently what fulfilment as a human being means, and then to resolve hard questions about the access and distribution of the social goods sustaining individual fulfilment’ (p 148). The fourth chapter looks in greater detail at legal authority, the purposes of law and the complementarity of judicial and legislative functions; the fifth discusses (in a slightly more rudimentary way) authority within and beyond the state, outlining the beginnings of a theory of international law based on natural law principles.
No brief summary can do justice to the sheer detail of Porter's highly original text. The arguments, analysis and qualifications pile up relentlessly and wordily. That is perhaps the book's strength – and its weakness. It is not an easy read, though it unquestionably grapples with themes of great importance and contemporary relevance. Natural law may rightly appeal to universal justice, equality, human dignity, rights and responsibilities; giving effect to those requires a society to answer questions about what is good for human beings. That in turn poses the more profound (theological) question: what does it mean to be human?
One leaves Porter's book with an overwhelming sense that law matters, that the very authority of God underlies it, that the historic Christian contribution to Western jurisprudence has been profound and that even those of us who are mere minor functionaries in the system are indeed privileged to be ‘ministers of the law’.
