Presentation by John Duddington at the Law and Religion Scholars Network (LARSN) Annual Conference 2016.
John Duddington, Editor of Law & Justice, the Christian Law Review, gave the following presentation on Catholic and Protestant Approaches to Law: Convergence or Divergence? at Panel Q of the LARSN Conference in May. He has kindly sent us his abstract and PowerPoint slides, which we reproduce in a slightly-edited version below.
With what is generally considered to be the 500th anniversary of the start of the Reformation approaching in 2017 this paper sketches some differences and also some similarities between Catholic and Protestant approaches both to law and to thinking about the place of law in society.
The paper will consider such areas as the relationship between church and state, natural law, human rights and the extent to which the law should recognise rights of individual conscience. At the same time, it will look at the extent to which Catholic and Protestant approaches have converged and diverged. Implicit in all this is the extent to which there can be said to be a Catholic and a Protestant approach to law at all.
These are all large topics and, of course, it will not be possible to consider them in all in detail. What this paper will aim to do is to get us all thinking about this area and suggest some lines for further investigation. If we feel that the thinking of Christianity has a contribution to make to current legal thinking then this topic is of crucial importance. One omission is obviously the contribution of Orthodoxy: one for a future anniversary – 2054?
Main areas for debate
- Church and State (for another time!)
- Faith and Reason
- Natural Law
- Human Rights
Faith and reason
The Catholic idea that is reason proceeds from faith: the two are linked. In Catholic thought reason is a seen as an ‘indispensable tool for growing closer to God’ [Pope Benedict’s Legal Thought, Cambridge University Press, p.2015] . Credo ut intelligam: ‘I believe so that I may understand’ [St Anselm of Canterbury: Proslogion, 1]. The Calvinist claim is that through Original Sin we have lost the ability fully to grasp God by reason alone.: note Romans 2 : 14-15.
Why does this matter to lawyers?
The Catholic notion of the interconnection between faith and reason leads in part at least to a belief in a fundamental law: natural law. ‘The natural law is nothing else but a participation of the eternal law in the minds of rational creatures’ [Thomas Aquinas, Summa Theologica, Ia ,IIae, 91,2)].
Much Protestant thinking, leading on from its contention that human reason is broken, leads to a belief that human reason cannot persuade people in public on the basis of universally accepted moral norms.
But that is not the view of all Protestants. Bishop Richard Harries, writing from an Anglican standpoint, sees a continuing place for natural law and described it as: ‘The concept of a natural order, or intrinsic moral order that can be grasped by rational minds.’ Faith and Politics (DLT, 2010), 36-41. The Congregationalist theologian Nathaniel Micklem said that law: ‘may never be severed from justice, nor justice from the eternal Reason’ – which is natural law. [Originally in ‘The Theology of Law’ (Oxford University Press) and reproduced in N Micklem, ‘The Theology of Law’ in Law & Justice 172 (2014) 4-9.]
There is a strong argument that the very idea of human rights derives from natural law and is thus a specifically Christian concept. See, for an exposition of the Christian viewpoint, David McIlroy, Christian Understandings of Human Rights: a lecture delivered at Swansea University on 20 March 2013. But is it from the Catholic or Protestant tradition, or both?
Catholic, Protestant or Christian?
By contrast with natural law, the idea of universal human rights is often seen as a product of Protestant thinking. The German Reformed theologian Professor Jürgen Moltmann argues that human rights have a Christian origin because: ‘Human rights and personal liberties, freedom of religion, freedom of belief and of conscience, democratic forms of government and liberal views of life: all these things grew up together with Protestantism’.
Natural law and natural rights
Locke (1632-1704) took the existing concept of natural law and natural justice and turned this into one of natural rights, one of which was the right of freedom of religion. See in particular Locke’s Two Treatises on Government, ed. M. Goldie (Dent, 1993).
Is there a process leading from natural law to natural rights and on to human rights?
Modern developments in human rights
Protestant Christians were active in ensuring that human rights were included in the United Nations system after the Second World War. This initiative eventually bore fruit in the Universal Declaration of Human Rights issued in 1948: see John S. Nurser, For All Peoples and All Nations (Geneva: WCC Publications, 2005). Nurser also observes: ‘From the Time of Pope John XXIII, the popes have been the most coherent and assertive speakers of the language of human rights’ [at 168]. See also John Duddington, Christians and the State (Gracewing, 2015) especially ch 10.
The Catholic understanding: objective – Aquinas – being able to formulate a judgement in the light of a basic understanding of what is good and true. Not just ‘consulting a railway timetable’ (see Herbert McCabe in God Still Matters (Continuum, 2005) 152.
The Protestant understanding developed very gradually and led towards a kind of privatisation of conscience: conscience could be my guiding light but it did not give me the right to assume that it was the guiding light of anyone else. The development of a Protestant ethic of conscience is traced in D Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Ashgate, 2010), especially chs 5-7.
Why does any of this matter?
If we think that religious belief and its impact on society is important and that we need to ask how we have got to where we are then, I suggest that it is. In addition, it matters if we want to understand possible ways forward for religious belief in contemporary society.
One point to think about is this: there has been a growing understanding between the different Christian churches over the last fifty years: is this reflected in the matters that I have been discussing?
Cite this article as: John Duddington, “Catholic and Protestant approaches to law: convergence or divergence?” in Law & Religion UK, 10 May 016, http://wp.me/p2e0q6-76Y
For a rather different view, see my post, Are human rights “Christian”? – a reflection.
With great respect to Professor Moltmann, I just don’t believe that either the New Testament evidence or the history of the Reformation supports the contention that ‘Human rights and personal liberties, freedom of religion, freedom of belief and of conscience, democratic forms of government and liberal views of life: all these things grew up together with Protestantism’.
‘Human rights’ might have grown out of eighteenth- and nineteenth-century Protestantism (and, indeed, Roman Catholicism) or they might have grown out of the Enlightenment – but there wasn’t very much ‘human rights’ in the burning of the Oxford Martyrs or the executions of John Fisher and Thomas More.
I tend to agree with Frank on how human rights came about. I have used the Catholic view of Natural Law, particularly Aquinas to justify an assignment to argue for the Just War theory, while others who opposed my proposition (all Anglicans) objected to the concept of Natural Law, but couldn’t cite any reason not to understand it.
But human rights as a modern construct, might well have developed or been advanced by the original drafters of the Geneva Conventions – influenced from a variety of factors, not only the evidence in front of them of the practices in warfare, which had become unacceptable as enlightenment had developed.
I suppose we could also look to the original draft of the US Constitution or even the French revolution for declarations that would have influenced later academic study.
I don’t have time to research this at this time, but will follow it up, as it’s interesting to think through these things, in a faith and secular context.
I’d be inclined to go for Tom Paine’s Rights of Man. The problem with the US Constitution as originally conceived by Founding Fathers – even when you add the first ten amendments (collectively known as the Bill of Rights) – is that they applied to free American citizens but not to slaves. Even allowing for the fact that you can’t simply read across from the late eighteenth century to the twenty-first, a system that allows for slavery sounds like civil rights (ie, the rights of those who participate in civil society) not human rights.
But I’ve banged on about this quite a lot in other posts.
For those of us Catholic Christians who received their religious education before the Second Vatican Council it is salutary to remember what we were taught about human rights especially with respect to religious freedom as it was to be applied to those not of the Catholic faith.
The word was tolerance (and grudging at that). Heretics (Protestants) and schismatics (Orthodox) were not to be persecuted. Where they were in a minority in a ‘Catholic’ country, they were to be allowed to practice their religion but not in any public way e.g. by distributing leaflets. No public disputation of points of Catholic dogma was to be allowed. And so on.
Thank God the Council changed that but it was a great shock to some and there are still strands within Catholicism that haven’t really accepted this. The most obvious example is the Lefebvre tendency – I nearly said schism!
My feeling is that human rights is more an outcome of the Enlightenment but then it didn’t grow out of nothing and several things will have given rise to it.