THE FIRST GRACE
by Russell Hittinger
(ISI Books, 2003, 334pp, $49.95. Available from AD Books)
"The first grace", the title of this book, refers to the unwritten law written in every human heart, which is the primary guide to good and evil.
Since the great philosophers of ancient Greece, there has been a universal acceptance that fundamental moral truths exist, independent of mankind and religion, which can be discerned and described.
These moral truths are variously described as "the moral law", "natural law", "the law of nature" and a "higher law", and precede both religion and positive law, although, undoubtedly, it has been left to Christians to defend the concept in the secular and individualistic Western societies of the late 20th century.
The respected English jurist of the 1960s, H.L.A. Hart, observed that "Natural law has ... not always been associated with belief in a Divine Governor or Lawgiver of the universe, and even when it has been, its characteristic tenets have not been logically dependent on that belief." He added that "the continued reassertion of some form of natural law doctrine is due in part to the fact that its appeal is independent of both divine and human authority, and to the fact that ... it contains certain elementary truths of importance for the understanding of both morality and law."
Russell Hittinger does not accept this secular view, which leaves open the possibility that positive law can, in some circumstances, override natural law; but rather adopts Thomas Aquinas' view that natural law precedes and overrides all positive law.
He argues that the founders of the American republic, in drafting its Constitution and founding laws, were convinced that there was a "higher law", a set of moral absolutes which lie above every law and custom, and are universally true.
He shows how this idea was undermined in the 19th century, particularly in the case of Dred Scott v Sandford, which effectively interpreted the Fugitive Slave Act of 1850 to mean that a slave was not a "citizen", but "property, to be used in subserviency to the interests, the convenience, or the will, of his owner", and "without social, civil, or political rights."
In the 20th century, judgments have reduced the "higher law" to little more than a rhetorical point to justify the personal preferences of Supreme Court justices.
He applies this to a range of contemporary issues in American law, including the US Supreme Court's decision in Planned Parenthood v Casey, dealing with whether states can make abortion a criminal offence, and Washington v Glucksberg (1997) which dealt with physician-assisted suicide.
This, he points out, has created a "soft despotism of the law", unrestrained by any ultimate principle: a crisis of legitimacy in the law.
Hittinger's solution is based on the application of Thomas Aquinas' exposition of natural law. A weakness here is that it has never been accepted by Protestants, let alone by non-Christians, and has been widely (and unfairly) criticised by many Catholic theologians since the 1960s, principally because it underpinned the Church's teaching on contraception, from which they dissented.
Nevertheless, Hittinger argues that "contrary to simplistic views of either conservatives or progressives in our legal culture, our exposition of Aquinas' position showed that one can at once hold a robust theory of natural law, constrain the adjudicative office to the written law, and recognise that judges will from time to time need to search out the moral intent of laws in order to assist their completion in individual cases."
This book is worthy of careful study. Its attractive layout is marred by the fact that the Index has not been compiled from the author's final draft, and is therefore out by up to five pages.
Peter Westmore is National President of the NCC and publisher of 'AD2000'.