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[COMMENT: There seems to be a growing resurgence
of Natural Law and Godly Law, very late in the game. It will succeed,
however, contrary to Rice below, only if we come to understand that there is a
necessary connection between Natural Law and the Law of God. See
Defining 'Oughtness' & 'Love'.
Without God, there is no morality. And then we are left with
so-called "positive" law, which is just power-struggle with a borrowed halo.
The Winning Side. Questions on Living the Culture of Life, by Prof. Charles E. Rice of Notre Dame Law School, is a magisterial work, covering a wide range of topics relating to the issue of life and doing so with clarity, insight, and conviction. Those of us who have suffered the slings and arrows of outrageous judicial decisions for the past thirty years, from the time of Roe v. Wade (1973), have seen both bibilical principles and natural law battered by federal and state courts last year in homosexuality and “gay marriage” decisions in the U.S. Supreme Court and Massachusetts Superior Court, respectively. There is an innate connection between being pro-abortion and pro-homosexual in that both activities violate the laws of God and of nature. Although the focus of his book is primarily issues directly related to the direct taking of human life, his sections on homosexuality and legal positivism are particularly relevant in the light of what is going on in our courts and legislatures today.
Prof. Rice’s book was published by a small firm, St. Brendan’s Institute in Mishawaka, Indiana, instead of by a university press or one of the larger houses, probably because there is hardly anyone who can be more distinctly non-PC than he. This 350-page book covers a wide range of ethical problems from the viewpoint of the sanctity of human life, made in the image of God. The author is a determined proponent of natural law which requires a shared common understanding on the part of the people, the legislators, and the judges, and implies, although it does not require, that a wise and good Sovereign created nature and, with it, natural law. While one can certainly recognize natural law without faith in a Creator, when Creation and Creator are supplanted by required belief in mechanistic evolution, natural law is effectively destroyed.
This has happened more than once in human history, most strikingly in Nazi Germany. Legal positivism (the law is the law because the “lawmakers” say so) was used by Hitler to lead to the results that were condemned in the War Crimes Trials. Unfortunately, although after the war German jurists recognized the need for principles higher than the will of the “lawmakers,” in America legal positivism still prevails. Rice quotes Pope John Paul II that “obedience to universal and unchanging moral norms is essential for genuine democracy (Veritatis Splendor, no. 85).” Where objective norms are not affirmed, there will be no moral limits to what the state can do, and the eventual result will be “open or thinly disguised totalitarianism.”
Prof. Rice integrates a discussion of homosexuality and “gay rights” into his basic concept of life. Homosexuality as an attitude or inclination is not in itself sinful, he says, but to commit homosexual acts instead of resisting them definitely is. Legally, there should be no discrimination on the basis of orientation, but there should certainly be on the basis of conduct. Rice comments, “The misnamed ‘gay rights’ movement is not about ‘rights’ in any legitimate sense of that term. Rather, its objective is to impose upon society a view of the person and of the family that is at war with nature and the divine law.” This is entirely true, but unfortunately the actions of our courts, whatever the religious convictions or lack thereof of the jurists, operate on the assumption that there is no God, and hence no law of God, no Creation, and no natural law. Therefore, the judges can do whatever they please. Instead of saying, vox populi, vox Dei (also wrong, of course), in America the prevailing rule is vox judicis, vox Dei: the voice of the judge is the voice of God — or rather, since we may no longer acknowledge God, the voice of the judge is final.
Prof. Rice concludes with cautious optimism. The Constitution should be interpreted in the light of the Declaration of Independence with its faith in the Creator, but efforts to restore that affirmation should be secondary to faith in Christ and efforts to promote religious liberty.
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