The Founders & Individualism

As a fellow law professor and Catholic, I agree with many of the things Mary Ann Glendon says about modern law, modern individualism, and the contemporary Catholic Church’s teachings in relation to both (“Looking for ‘Persons’ in the Law,” December 2006). But I disagree strongly with her to the extent that she traces the “hyper-libertarian, ultra-individualist” tendencies in modern America back to Locke and the American founders.

Glendon portrays founding America’s political culture as an uneasy mix of religious local cultures (grounded in “families and tight-knit communities”) and a rationalistic and individualizing national order (with “greater emphasis on the dangers human beings pose to one another than on the human capacity for cooperative living”). This portrait simply does not pan out as a matter of history. At least through the New Deal, the national government did not hesitate to legislate on morality in the rare cases when the Constitution allowed it to do so. The Confederation Congress and the first constitutional Congress both established schools in the Northwest Territories specifically to promote religion and morality. After the Civil War, Congress used its territorial powers to condition Utah’s eligibility for statehood on its agreeing to extinguish Mormon polygamy. Also, after the Civil War, as the American economy grew, Congress used its interstate-commerce powers not only to regulate railroads but also to legislate interstate commerce in alcohol, lottery tickets, and prostitutes.

Nor can Glendon’s portrait be sustained with The Federalist Papers . If one reads The Federalist in its entirety, Publius balances his discussion of faction with subtle but comprehensive appeals to man’s social and political sides. Rivaling Tocqueville, No. 49 diagnoses how comprehensive political opinions shape and steady the soul of the democratic citizen. Papers 52 through 84 appeal to the specific and rare political virtues appropriate to particular offices in the new Constitution. When these passages are considered, No. 52’s appeal to republican virtues is nowhere near as anomalous as Glendon makes it seem. Publius soberly worried that man’s vicious tendencies make republican self-government next to impossible. (We are now relearning the reasons why in Iraq.) But it is not fair to interpret Publius’ sobriety as libertine economic individualism.

As for Locke, his thought simply cannot be reduced to a series of “vivid pictures of man as free and solitary in an imaginary ‘state of nature.’” This is not Locke; it is either an exaggeration of the sections of the Second Treatise on property or a simplified version of Rousseau and the Romantics’ criticisms of Locke. Locke portrays family life very intimately in Some Thoughts Concerning Education . He strongly defends Christianity (on moral grounds, not theological, to be sure) and its role in moral formation in On the Reasonableness of Christianity . Even in Two Treatises , Locke is not afraid to use the law as a tool of moral formation: At one point, he recognizes that “law, in its true notion, is not so much the limitation, as the direction of a free and intelligent agent to his proper interest.”

Rather than take my word for it, interested readers should read Locke’s writings in their entirety and then consult secondary scholarship by Nathan Tarcov, Peter Myers, and Michael Zuckert.

Glendon’s portraits are especially unfortunate because they are counterproductive. Locke and the founders could be powerful resources against the radical individualism that Glendon and I both deplore. Inasmuch as Glendon is a labor lawyer, I can understand some of her hostility. It makes it easier to support New Deal and European welfare laws if such laws seem a necessary communitarian response against Locke and the founders’ economic selfishness. But inasmuch as Glendon is a Catholic public intellectual, I am at a loss to understand why she makes Locke and the American founders into enemies in today’s culture wars.

Eric R. Claeys
Saint Louis University
Saint Louis, Missouri

Mary Ann Glendon replies:

I would not disagree with much of what Professor Claeys says about the writings of Locke and the authors of The Federalist . However, what has migrated from those sources into law, and from law into contemporary popular culture, was not the thought of Locke, Madison, Hamilton, and Jay in all its richness and complexity. Nor do I blame political theorists of a bygone day for the hyper-individualistic tendencies in modern law and culture. Obviously, there are many factors at work in determining which themes of great thinkers are lifted up in the law and which are neglected over the course of time. (“Whatever law is after, it is not the whole story.”) My concern, as I wrote in the article, is that in our pluralistic society law increasingly promotes ultra-individualistic ideas that are not conducive to the maintenance of a free republic.

Since Professor Claeys is under the impression that I am a labor lawyer (I did practice in that area many years ago), I should probably add, for the record, that I teach and write in the fields of property, human-rights, and comparative law, with emphasis on the migration of legal ideas and the intersections between political theory and law.

Reforming Natural Law

J. Daryl Charles’ analysis of Protestants and natural law is spot-on (“Protestants and Natural Law,” December 2006). I conducted a thorough review of John Calvin’s writings on natural law and, like Charles, concluded that Calvin made free use of the classical natural-law tradition with, however, a clear acknowledgment of the limits of natural-law practice among its non-Christian proponents. And I also concur that, for Calvin, the natural law, implanted by God in human nature (and largely tracking the Decalogue), combined with the faculty of conscience, inescapably reveals the divine order and thus renders humanity liable to God’s judgment.

Charles does an excellent job of locating the errors of Barthians and contemporary radical Anabaptists toward natural law. Yet, whether owing to his limited space or their limited numbers, he neglects to confront another orthodox party for whom the natural law is also anathema-the theonomists. Emphasizing the antithetical approach of Cornelius Van Til popularized among conservative Presbyterians in the decades following the Second World War, but with seemingly little regard for Van Til’s balancing comments, epigones such as Rousas Rushdoony, Gary North, and Greg Bahnsen held that natural law was nothing more than a capitulation to the spirit of human autonomy. Only God’s law, derived primarily from the Mosaic covenant rather than the Sermon on the Mount, could provide a God-centered (theonomic) foundation for Christian ethics and politics.

The error of the theonomists is not that they give too little regard to law as part of the created order but that they truncate the sources of God’s law. Disregarding Scripture’s own references to sources of knowledge outside its corpus (including knowledge of the law), the theonomists try to erect a platform for ethics on only one of God’s forms of revelation. Calvin would not have agreed. General (or natural) revelation is as much from God as is special (or biblical) revelation.

Yet Calvin would have agreed with the theonomists that God’s enscripturated revelation is a valid source of law even in the public square. Christians today must not place all their eggs in the natural-law basket. If, as the saying goes, all truth is God’s truth, then it is equally true that all God’s truth is true.

C. Scott Pryor
Regent University School of Law
Virginia Beach, Virginia

Karl Barth argued “vehemently for a rejection of natural-law thinking,” writes J. Daryl Charles, and was therefore an example of those who answer incorrectly the question “whether human beings can be held accountable for their actions.”

When that issue of FIRST THINGS arrived, I had been reading Barth’s The Christian Life , which collects final fragments of Church Dogmatics that Barth did not complete owing to his retirement and death. In section 77, Barth acknowledges that God is well known in nature, citing Romans 1:19. “He is already as its Creator the God who is objectively well known.”

Barth admittedly draws a line. “These impressions should not be generalized and systematized along the lines of natural theology, but when they lay hold of us with serious force, they cannot be denied.” People have a choice to make: whether or not to acknowledge subjectively the God who in nature is objectively known. “Man, not God, is at fault if a subjective knowledge of God on man’s side does not correspond to God’s objective knowledge.”

Barth thus seems to me less vehement, and more ready to hold people accountable, than Charles characterized him as being.

Andy Saylor
Elizabethtown, Pennsylvania

Professor Charles brings out the continuation of natural-law thinking by Luther, Zwingli, and Calvin, but one gets the impression from his article that Protestant natural-law theory ended in the era of late Scholasticism. Hugo Grotius is briefly mentioned, but Richard Cumberland and Samuel Pufendorf also made considerable worthwhile contributions to natural law during the seventeenth century. The definitive break in natural-law thinking by twentieth-century theologians such as Barth, Hauerwas, Yoder, and others was also preceded by significant philosophical breaks in the seventeenth and eighteenth centuries. For one thing, interest in natural law began to morph into consideration of natural rights in the writings of Hobbes, Locke, and Rousseau.

And, prior to Kant’s very nuanced portrayal of natural law and the “self-legislating” aspect of morality, which Charles mentions, the ethical system of David Hume threw a wrench into traditional ethics in general, decreeing that no “ought” can ever be deduced from an “is” (and natural law, being rooted in human nature, qualifies as an “is”). Various misapprehensions about natural law are gradually being overcome in contemporary ethics, and it is gratifying to see Protestants gradually joining forces in promoting what has unnecessarily been tagged as a Catholic fixation.

Howard P. Kainz
Marquette University
Milwaukee, Wisconsin

Daryl Charles replies:

I am grateful for Prof. Pryor’s kind words. What he, too, discovered in Calvin, I would venture to guess, would shock most Protestants and, I dare say, many Reformed folk. But he is correct, as Stephen Grabill’s most recent book, The Natural Law in Reformed Theological Ethics, makes amply clear.

I have no worries that Christians today will “place all their eggs in the natural-law basket”; among the theologically orthodox, I have not yet encountered such. What not infrequently does need pruning-or rebuking-is a secularist or naturalist perversion of natural-law thinking, which bears little resemblance to its authentic antecedent as found in the historic Christian tradition.

Upon reading Mr. Saylor’s opening remark, one might get the impression that I view Barth as morally indifferent, obtuse, or imperceptive. This is certainly not the case. What is at issue, at least with Barth and his followers, is how we are held morally accountable as human beings. Saylor does well to direct us to Barth himself. In Church Dogmatics , Barth writes that any theological or philosophical concept that is rooted in “nature” is to be viewed as not merely deficient but also “heretical” and therefore a “radical departure” from Christian faith. Likewise, any moral theology that “tries to deny or obscure its derivation from God’s command” and “set up independent principles in the face of autonomies and heteronomies” and that aims “to undertake the replacement of the command of the grace of God by a sovereign humanism or even barbarism” is to be “utterly rejected.” Whether Barth was burying the wrong corpse is worth debating. Whether Barth is “vehement” or casual in his rejection of the natural law, I leave for the reader to decide.

But lest readers think that I underappreciate Barth, permit me to say that I have high esteem for this Barmen confessor who against the Hitler regime “confessed with fresh devotion historic Christian commitments in the light of their immediate political situation” (from the introduction to The Church and the War ). Because he courageously stood his ground, not for nothing was he removed from his university teaching post in the year following the Barmen synod.

I am appreciative that Prof. Kainz would spotlight Grotius, Cumberland, and Pufendorf. In the end, alas, I was operating under editorial constraints of space and therefore chose to place emphasis on sixteenth- and twentieth-century Protestant thinkers, given their relative influence. The philosophical break that preceded the nineteenth century of which Kainz speaks is well characterized by Barth in Protestant Theology in the Nineteenth Century , as I attempted, albeit in meager fashion, to show.

With Kainz I am encouraged at the prospect for ecumenical dialogue on the natural law. As both John Paul II and Lutheran theologian Carl Braaten have well observed, moral relativism combines with political activism in our day to sabotage the very metaphysical foundations on which our culture rests, preparing the way for the moral collapse of social institutions that we have taken for granted. For this reason, then, we are constrained to agree with John Courtney Murray that, as a metaphysical concept, the natural law is timeless and therefore, in our own day, quite timely.

Left-Behind Lutherans

In assessing Pastor Frank Senn’s apologia, “I’ll Stay Here, Where I Stand” (“While We’re At It,” December 2006), Richard John Neuhaus argues that, in accounting for his decision to stay put, Senn is “implausibly elevating the ecclesiological status of a reforming movement that transmogrified in some places into established churches.” While Neuhaus honors “the sincerity of Pastor Senn and others similarly situated,” he regards Senn’s argument as bogus. Far better it would have been to cite the “family and other obligations [that] quite rightly enter into [one’s] reflections about whether or not to become Catholic”—obligations of an essentially nontheological character.

Neuhaus ignores the one obligation that cannot be relegated to the category of the miscellaneous “other”: the obligation of the shepherd to his flock, an obligation solemnly undertaken at one’s ordination into the Holy Ministry. Far from being just one of many “other,” however valid, reasons, this is “of the very essence” of the Church.

Pastor Senn’s fidelity to this obligation is exemplary in both his ministry in Evanston, Illinois, and his ministry to us who, with him, have subscribed to the Rule of the Society of the Holy Trinity. Pastor Senn’s ministry embodies the fullness of the church where Christ gives himself ever and again to his own.

I do not presume to judge the decision of Phillip Max Johnson to leave his devoted flock in Jersey City and his equally devoted brothers and sisters in the Society of the Holy Trinity to convert to the Catholic Church. However, I do not think it an overstatement to say that we are all deeply saddened and that our sense of loss will not soon depart. Meanwhile, it would be nice if Neuhaus would leave off chiding us “left-behind Lutherans” for our “defective” ecclesiology. We heard you the first time, Richard, and again, and again, and . . .

Richard J. Niebanck, S.T.S.
Delhi, New York

Martyrology Today

I was pleased, as I always am, to be instructively rebuked by Fr. Neuhaus in the December issue of FIRST THINGS (“While We’re At It”). But can he really mean it when he says that Christians should not be ready to shed their own blood in the service of, and as a sign of solidarity with, other Christians? Does he forget the martyrs?

Among the points I was making, ineptly no doubt, in the Christian Century essay he criticized was that martyrdom is a properly ecclesial death and that willingness to accept it is a properly ecclesial act. This means (among other things) that willingness to shed one’s own blood in this way is a sign of deep solidarity with other Christians, past and present, living and dead. We American Christians, I argued, have been taught to make our fellow citizens the only proper recipients of such a sign, and thus to displace martyrdom from Church to state. Surely Fr. Neuhaus would agree that something is wrong here?

Paul J. Griffiths
Arthur J. Schmitt Professor of Catholic Studies
University of Illinois at Chicago

RJN replies

Prof. Griffiths’ letter marvelously clarifies what he intended to say in his reflection on the letter of President Ahmadinejad of Iran. Of course, we are in complete agreement in honoring martyrs who place their allegiance to Christ and his Church above the demands of the state.

Articles by Austin Stone