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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, March 10, 2005 ::
    Ten Commandments side-argument: religion = natural law?

    The Pittsurgh Post-Gazette's Michael McGough doesn't quite understand natural law. Well, few do -- I certainly don't, and I've been at it for a while -- but one really ought not commit the traditional floater of equating natural law with religion. Writing in Slate, McGough highlights these words used by Justice Scalia at the oral argument in the Ten Commandments case:
    "It's not a secular message. I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law is—and our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself."
    For McGough, these words indicate (with due allowance made for the fact the oral argument is often play-time for the Justices) a departure from Justice Scalia's "usual preference for a 'positivist' rather than a natural-law approach to constitutional interpretation."

    So, ummm, "natural-law approach" = theistic, and "postivist" = non-theistic?

    I'm afraid that is what McGough believes. He cements the connection further when he adds (referring to a brief by the Christian Legal Society in the Pledge of Allegiance case, but not distancing himself from this particular view):
    References and monuments to God are not merely secular or historical; they are the fundamental building blocks of natural law.
    There it is again: "secular" is on one side (along with "historical"), and "natural law" is on the other. On "historical," this antinomy may be correct: as John Finnis maintains, natural law, properly so-called, is timeless and therefore not historical.

    But "secular"? Why is that opposed to natural law? Because the leading theorists of natural law have also been theologians? But that is to misunderstand gravely what those theologians were saying. For Thomas Aquinas, to take the most obvious example, a certain category of law was "natural" in contradistinction to "divine" and "eternal." Some aspects of law can only be known by revelation, i.e., by super-natural means; others, in contrast, are "natural," meaning they can be known by "natural" means. "Natural," in "natural law," is understood in contrast to "super-natural," not in contrast to "secular." On the contrary, it is secular.

    Oh I know, I know: for some players in the jurisprudence game, including too many in academia, the most distinctive feature of the natural-law tradition is its historic connection to Christianity, and to Roman Catholicism in particular, and that gives such players a handy way to dismiss it out of hand. But Finnis and others have been fighting an increasingly winning battle against such laziness (at best) and such bigotry masked as academic hauteur (at worst). Time for Slate and the Pittsburgh Post-Gazette to catch up.

    (Note to hardcore natural-law buffs: I'm not taking sides here between the Finnisites and the Hittingerians. I'm just citing Finnis for the timelessness point.)

    :: David M. Wagner 5:18 PM [+] ::

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