Ministers of the Law
by Jean Porter
Eerdmans, 368 pages, $30
Some years ago, the acclaimed legal theorist Ronald Dworkin volunteered that “no one wants to be called a natural lawyer.” In Ministers of the Law: A Natural Law Theory of Legal Authority, Jean Porter gives the lie to Dworkin’s parochial thesis. A professor of both theology and law at the University of Notre Dame, she establishes how the natural law adequately theorized provides the needed basis of legitimation for the gritty but exalted business of making and enforcing the positive, man-made law we humans live by.
The law definitively narrows the range of available human conduct in order to give effect to the community’s judgment about which goods are to be pursued, and which not, and those who care about the human purposes for which we call laws into existence should study this book. Even as our culture is ever more laden with law, there persists a collective refusal to repent of a pervasive cynicism about law’s integrity, and our failure to make worthy laws imperils the common good.
Writing in conversation with leading analytic jurisprudents such as Joseph Raz and Neil MacCormick, Porter advances her intentionally constructive theory of law against a jurisprudential background dominated by nonsense. Even as law has become the social force that more than any other binds together our otherwise disintegrating society, much of what is said on behalf of law—even by the serious—is risible. In his testimony before the Senate Judiciary Committee, John Roberts likened the judicial role to umpiring: “My job is to call balls and strikes, not pitch or bat.” Most recently, Elena Kagan testified that “you’re looking at the law, and only at law” when you decide as a judge should decide.
These are legal theories nobody believes. Everybody knows that when the Court announces unenumerated constitutional rights—whether to procure an abortion or to educate one’s children—the judges are looking at more than the existing body of law. They are creating new law, but on what basis? A populace whose Supreme Court has declared something approximating a legally enforceable right to be free from a correct anthropology, as the Court did in 2003 in Lawrence v. Texas, has reason indeed to worry about the answer to this question.
Porter’s legal theory refuses to stipulate that schedules of probable meanings of original texts should be cumulated and deemed to be law, the facile, falsely objective “textualism” so popular with many American conservatives. According to the garden-variety theories of lawmaking, lawmakers simply translate the “policy preferences” of the majority’s elected representatives into norms that will bind the community, though they may occasionally enact laws to vindicate what they regard as human rights.
Drawing on the Catholic tradition’s understanding of what it is to be under the divine natural law and thus to be possessed of natural rights that merit specification and application through human lawmaking, Porter shows how lawmakers are engaged in the creative work of ensuring that the natural law—a real and obligating higher law—is given effect in our human living, both collectively and individually. This lawmaking work must be creative, yet it needn’t—and must not—be formless, for, as Porter argues, the form of what it is to be human is given.
Those familiar with her earlier work, especially Nature as Reason (2005), will recognize that in Ministers of the Law she is working with a conception of human nature that is decidedly realist but not brittle: “Human nature . . . is structured in accordance with natural purposes which are properly normative, and therefore imply norms for conduct, albeit not the complete, determinate, and universally valid moral law that is often associated with natural law.”
This commitment to the normativity of nature is countercultural, and Porter appreciates that even the proponents of the “new natural law,” such as Germain Grisez and John Finnis, will resist it. She also notes, however, that while most philosophers until recently would have rejected her approach “out of hand,” more are now accepting the Aristotelian approach, according to which “the proper form of a given kind of living creature can only be adequately understood by reference to some idea of a paradigmatic instance of the form, that is to say, a healthy and mature individual of the kind in question.” For this reason, she writes, “it is possible to form a concept of the kind of creature that we are; and this concept is intrinsically teleological.”
In developing this Aristotelico-teleological account of human nature, Porter draws on the work of, among others, Marjorie Green, Andre Ariew, and Lenny Moss in the philosophy of science, and of James Wallace, Philippa Foot, Rosalind Hurthouse, and Alasdair MacIntyre in moral philosophy. She is thus part of a widening circle of theorists who refuse to banish teleology from the natural world, arguing instead for what Robert Spaemann called “the unrelinquishability of teleology.”
On Porter’s account, when laws are being created, the first thing to be consulted—and never lost sight of—is human nature itself. Such consultation is not, however, epistemically privileged: we hardly know ourselves. Even when it is ourselves that we are trying to know, reason in its practical mode gathers data, interprets them, judges them for their truth or probability vis-à-vis the proposed interpretation, and then decides what is (or is not) to be done.
The process is fallible but not futile: Self-knowledge is possible. “The natural law, properly so called, operates in and through rational reflection, including both speculative and practical reflection operating in tandem,” Porter explains. “These are the processes through which individuals and communities formulate substantive ideals and norms. . . . These processes of rational reflection do not, so to say, emerge from the noumenal void.”
Porter’s argument attends to the layered and dialectical processes by which the norms of human nature are discovered, articulated, and revised, then lost, forgotten, and found again. Realism about human nature, she insists, is not at all “incompatible with the recognition that rational inquiry and knowledge are always situated, in one way or another, in the context of specific traditions of inquiry.” The lawmaker must engage in the hard and sobering work of knowing human nature; he must also understand human culture, including the institutions we create and revise in service of achieving the ends of human nature commanded by the natural law. The natural law is not, as Yves Simon properly insisted, a debate-stopper.
The considerable difficulty we sometimes face in reaching reliable judgment on what the natural law demands requires an account of the role of authority, and the way in which lawmaking transforms the basic and then the political authority of the community into properly legal authority. The law derives its authority from embodying the particular body politic’s collective, contingent, and critical discriminations of the goods of human nature.
Porter warns against treating “the eternal law as if it were a kind of Platonic Form of legality.” It is not clear if she means to deny that the eternal law, of which the natural law is (as she says specifically) our participation, provides the definition of all law. Aquinas would have denied that “law” in the full sense of the term is other than ordinance of reason for the common good, made by him or them who have care of the community, and promulgated. Porter’s answer is elliptical.
I am almost tempted to say that Ministers of the Law is what “Catholic social thought”—too often treated as the great post- Rerum Novarum socio-political encyclicals invariably supplemented by Populorum Progressio and declarations from Medellin—should look like. Porter’s exacting questions and usually sound answers exude the energy and many of the ends of the growing tradition of Catholic socio-legal thought. A reader will reasonably question, therefore, whether the jurisprudential premises she assembles require her particular conclusions in favor of the legal recognition of same-sex marriage and of plural marriage. They do not, of course, and in my view they do not even allow it.
Her conclusions on these issues are the weak points in a book whose natural law starting points are strongly rooted in the tradition of reflection on the natural law. Certainly, her insistence that the positive laws be derived from the divine natural law should be a most welcome addition to a worthy contemporary jurisprudential dialogue. She offers a truly constructive jurisprudence of contemporary salience, thanks especially to her mining and refining of the harvest of the ius commune, a legal tradition in need of recovery on all fronts.
Human lawmaking is not merely a matter of implementing policy preferences: It is a fulfillment of the obligation imposed by the natural law authoritatively to order the community to the common good. No one wants to be called a natural lawyer? I do, and I suspect many of Porter’s readers will as well. The lawyers need to rediscover what the theologians have long known about law.
Patrick McKinley Brennan holds the John F. Scarpa Chair in Catholic Legal Studies at Villanova University School of Law.