The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.

A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.

The end of the 20th century demonstrates not only a series of encounters between different religious and ethnic traditions but also between such traditions and secularism. An example for the latter is the cultural phenomenon of Jewish Religious Law vis-a-vis Modernization and Postmodernism. The following may therefore be seen as a case study illustrating the problems and options arising in such encounters during the next century.

Jewish religious law (halakhah) is that part of Jewish tradition, defining a Jew's duties towards God and fellow human beings. It is part of a more comprehensive concept, the divine teaching (torah), including narratives (agadah) as well as law (halakhah), and morals (derekh ‘erets) as well as matters of faith ('emunah). This teaching is contained not only in the Pentateuch and in Holy Scripture, but even more so in the oral traditions of the sages. Morals and faith are therefore complementaries to Jewish religious law, and rules of the second order to control it.

There are two very different sets of questions that thoughtful intellectuals ask. On the one hand, we ask those questions like whether there is a God, how many gods there are, who or what God is, and where God exists. On the other hand, we ask those questions like whether women are essentially subordinate to men, whether blacks are by nature inferior to whites, and whether the poor are necessarily secondary to the rich. Despite some strong protests from religious fundamentalists, slowly but constantly, as a society, we are becoming more and more used to thinking that universally agreed answers to the first set of questions are unlikely, unnecessary, and perhaps undesirable. For different people may, and indeed should be allowed and even encouraged to, have their own opinions about, and ways of living with their understanding of God. By contrast, despite some persistent dissents by cultural and moral relativists, gradually but steadily, we are becoming more and more convinced that consensus must be sought on the second set of questions. For we cannot imagine a well ordered society that allows people who have conflicting political convictions (those who believe in human equality and those who don't, for example) to freely exercise their respective ideals. In short, despite some resistance that cannot be ignored, with difficulty, we are eventually coming to realize that religious plurality and political solidarity must co-exist. The question is how.

Although Biblical law ordains the death penalty for some thirty-six offenses, and whipping is the punishment prescribed for many more, it would be rare in fact for such Biblical punishments to be inflicted under Jewish law. Strict procedural and substantive requirements limit these mandatory Biblical penalties to cases of the most willful and deliberate rebellion against God's rule in the universe. Thus, for example, one prerequisite of these Biblical punishments is that the offender be warned in advance—immediately before he commits the offense - that the act he is about to perform is a violation of God's law and that it will be punished by death or by whipping, as the case may be. Further, for the death penalty to be applied, it is not enough that the offender be warned or even acknowledge that he has heard the warning. Rather, he must also affirm his awareness that God has forbidden the intended conduct and has ordained the specified punishment and he must declare expressly that he will commit the offense nevertheless, thereby “surrendering himself unto death.”

I came across this project quite by accident. One day while I was reading Roberto Unger's Knowledge and Politics, I was struck with certain parallels between his thoughts and those of several Latin American liberation theologians such as Gustavo Gutiérrez, Jon Sobrino, S.J., and Juan Luis Segundo, S.J. The more I thought about the parallels, the more I chided myself, “This cannot be; what could a Harvard law professor have in common with liberation theologians?” But the more I read and reflected, the more I saw connections upon which I hope to elaborate in this article.

Other scholars have made connections between this Harvard law professor and several notable Roman Catholic priests who investigate and write about a theology which can liberate the millions of poor in Central and South America. Recently, for example, Paul Sigmund, a political science professor at Princeton, completed an investigation of liberation theology in which he identifies “a movement away from Marxist reductionism to communitarian participatory radicalism in the development of liberation theology over the last twenty years.” In urging the cultivation of a dialogue between communitarian theologians and thinkers from liberal (and Christian democratic) political institutions, Sigmund suggests that this discussion might also include ” ‘communitarian’ critics of Anglo-American liberalism, some of whose views resemble … liberationists.” Sigmund includes Roberto Unger in this group since he, along with Alasdair Maclntyre and Michael Walzer, criticizes classical arid contemporary liberals for their absence of a shared conception of the good, their unrealistic view of the person, and their effort to derive ideas of community from an artificial contract that bears no relationship to actual experience.

In a world of but few moral verities, Judge Richard Posner and others pursuing the economic approach to law have introduced a normative principle into discussions of law and policy that receives very wide currency. They propose that society should always sanction market exchanges, as a means of maximizing wealth, unless some exceptional normative commitment on society's part requires otherwise. Where the principle reigns, nonmarket values are treated as restrictions on individual autonomy requiring special justification.

As a consequence, the justifiability of restricting market freedom becomes a standard mode of framing normative issues. Disagreements about values are formulated as disputes over whether contracts should be enforced. Arguments are made for and against enforcing contracts for the purchase and sale of votes, the intervivos transfer of eyes or kidneys, addictive recreational drugs, enslavement or prostitution, and environmental purity.

It is not uncommon in this country to hear someone say something like, “America is a country based on Judeo-Christian principles.” Many of us would accede to some such claim. It has the ring of truth about it, but I suspect that the ring of truth depends on the vagueness of each crucial term in the claim, including “based on,” “Judeo-Christian principles,” and “America.” “America,” for example, might stand in here for the Constitution, popular mores, governmental institutions, or extra-Constitutional fundamental political claims, etc. I intend to make this claim precise in a number of ways, and then to ask whether the ring of truth remains. Although I address a considerably narrower claim, that claim is not without interest. If nothing else, I hope the reader will see what an immense task awaits those who wish to defend the claim in its general form.

In both political science and ethics, interpreters of the meaning of war have learned to use typologies to separate one mode of evaluation from another. As a result of this diversity in moral evaluations of war, authors have partly talked past each other, with all good faith accusing each another of confused categories. There has not been an agreed upon definitional base-line for just war theories “out there,” which would permit just war theorists to judge other theories and communicate with each other.

I propose to define more carefully the operative terms and kinds of argument used in just war theory, to assist communication on these topics. If we fail to clarify the variety of meanings and arguments, the result is imprecision and confusion. Our need is for a more precise understanding of the diversity of the modes of moral reasoning on just war. By surveying recent developments and usage in the field, this article will make it possible for just war scholars to engage each other using a more adequate, more nuanced set of types. While these types are not identical with current dominant usage, they are reconcilable with its main lines and more useful as instruments of interpretation than the simpler systems.

The following article is a creative thought-experiment. I hypothesize that a group of religious believers forms a religious political party, which I call the Christian Democratic Party. As the party begins to succeed, alarmed citizens bring suit to stop it, challenging its right to exist in our constitutional system. I imagine that the case comes to the Supreme Court, and I present the hypothetical majority and minority opinions of the Court.

Before I present the case, however, I should set the stage. According to some commentators, the United States is in the midst of a full-blown “culture war” between the forces of traditional religion and militant secularism. Contemporary American politics— matching the definition of politics as “war by other means”— would seem to confirm this analysis. Recent election studies demonstrate that the Republican and Democratic parties are becoming increasingly defined by core constituencies of religious conservatives and secularist liberals. There is a growing recognition that religious differences constitute a significant factor in the voting behavior of many Americans.

As I walk to the gate, I have the same fear as I had 50 years ago. It is in me. It is still the same fear. (Elie Wiesel, Nobel laureate, on the fiftieth anniversary of the liberation of Auschwitz.)

There was, in fact, nothing metaphorical about the Germans' systematic murder of six million Jews, nothing metaphysical or literary. The Jews were terrorized, humiliated, herded, enslaved, tortured, shot, gassed and burned; then their bones were ground up, mingled with their ashes and dumped into ponds or pits. There was nothing uplifting about any of this, no saving grace, no redeeming human nobility.

In Justice Accused, Robert Cover explores the tensions faced by “antislavery” judges—judges who strongly believed that slavery was immoral—when they were called upon to decide cases under laws that upheld the legality of slavery. Cover focuses on the tension created by the divergence of law and personal morality in such situations, which he terms the “moral-formal dilemma.” After analyzing the legal and historical context of these cases, Cover identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension. Specifically, Cover labels these dissonance-reducing behaviors as (i) elevation of the formal stakes; (ii) retreat to a mechanistic formalism; and (iii) ascription of responsibility elsewhere.

Judge John T. Noonan, Jr., the honoree of this festschrift, is a major figure in both legal studies and religious studies, and so it is especially fitting that the Journal of Law and Religion publish these essays in his honor. This essay will serve as an introduction to Noonan's works and to the essays collected herewith.

John Noonan's activities in connection with secular law are fairly well known. He has served with distinction as United States Circuit Judge on the Court of Appeals for the Ninth Circuit since 1985. In addition to serving on the bench, he has taught for nearly thirty years at Boalt Hall, the law school at the University of California at Berkeley, and twice been a visiting scholar at the Institute for Advanced Study in Princeton. Earlier he was Professor of Law at the University of Notre Dame Law School, and throughout his career he has served as a visiting professor at other distinguished law schools including Stanford and Harvard, his alma mater.

After delivering a Carlson Lecture at the University of Minnesota in 1994, Hannan Ashrawi was asked by an audience member if a newly formed, independent State of Palestine would adopt the Sharīa (Islamic law) as the law of the land. The question reveals a deep seated fear in the American mind about Islamic justice. Because Islamic concepts of law and justice have developed from a very different worldview, they seem incomprehensible to us. We don't understand why Muslims argue about theology when talking about legal cases that appear in the news.

The Islamic community is organized as a theocracy, where God is the ruler of the community. In such a community, there is very little doubt that God is the ultimate authority in all things, including questions of law. There might, however, be considerable doubt about how the human members of the community respond to, make use of, and/or interpret God's intentions. Islam is no exception to this rule. Throughout its history, groups of people have answered questions about God and the community in different ways.

Judge John T. Noonan, Jr., of the United States Court of Appeals for the Ninth Circuit, is one of the most accomplished and diversely talented jurists in the recent history of the federal courts. Philosopher, theologian, historian, and poet, Noonan has been, first and foremost, a scholar of the law. He has devoted his professional career to a truth which we frequently lose sight of: the law, so seemingly complete in itself as a system of thought and expression, is an essential branch of general literature. A science, however inexact, the law is a humanistic pursuit as well, and no one in the past four decades has pursued the law with such humanistic fervor—a humanism enlivened by religion—as John Noonan.

Stereotypes tend to perpetuate images far outdistanced by events. Massachusetts, founded by the Congregationalist English, had by the early nineteenth century become a Unitarian stronghold and a mecca for immigration from Ireland and Canada. By the beginning of the twentieth century, the new Catholic archbishop of Boston could announce (in 1908) that the Catholic Church in Massachusetts had assumed the mission of the Puritan Church. By the time Noonan came of age, the divisions of the nineteenth century surfaced chiefly in the superficialities that often serve as voting guides: Massachusetts would elect a good Catholic to statewide office in preference to a Protestant, but a good Protestant in preference to a bad Catholic. Ethnic differences had become blurred by economic changes; religion was important, but subordinate to civic responsibilities.

It is hard to have a casual discussion on the issue of “religious liberty” because discourse on the subject is often highly charged, and rightly so. The stakes involved are weighty, and they include such fundamentally important matters as the individual's personal and immediate accountability to God, the Church's mission to preach the gospel, and responsibility to maintain purity of conscience and conduct at all levels. One's views on religious liberty also affect the way one understands relations of morality and law, of ethics and human government, and tensions that arise between the moral purposes of government and moral limitations that should restrain the state's use of coercive power.

Upon examination, the term “religious liberty” includes several different foci that can, and very often do, result in contrary views regarding the concept itself. Thus, while they are debating or defending “religious liberty, ” it is easy for parties to talk past one another so completely they may find themselves agreeing or disagreeing, and supporting or opposing one another, for reasons unrelated to the actual circumstances with which they think themselves engaged. Lack of clarity at critical moments of negotiation can be embarrassing, but may even become dangerous, if mis-understanding by one party is used to manipulate acceptance of measures that should be opposed, or if blind assumptions obscure opportunities by which opposing factions might otherwise reach agreement. It is precisely because religious liberty concerns are so charged that the subject must be approached with a careful understanding of how the term is intended in a given circumstance.

Through a number of profound studies the Honorable John T. Noonan Jr. (on Scholastic Analysis of Usury, on Contraception. A History of Its Treatment by the Catholic Theologians and the Canonists, on Abortion and marriage tribunals) has made visible how relevant the study of the historical context is for any scientific approach to burning issues of “natural law.” What was said by Christian churches on ethical questions makes sense for us only if we give full attention to the historical context. This is also a principle for the study of ethical questions in the Bible. While the biblical scholars concentrate mainly on what a teaching meant in illo tempore hermeneutics turns its main attention to the present contest of reflexions.

The role of sharing experience and reflexion so central in natural law questions, as Noonan sees it, is also central for the worldwide ecumenical learning community of all Christian churches. And this is for the Christian churches an absolute condition for their dialogue with all people of our time; for Christians a prerequisite for their becoming light for the world, salt for the earth.

This is a story; let us begin at the end.

They have come, Rabbi Akiva, Rabbi Joshua and their colleagues, this Friday afternoon to visit the dying outcast, to offer him one last chance to repent, to return. “Why have you come?” he asks them. “We have come to learn Torah, ” is their reply.

It is about time. For R. Eliezer is shammuta, excommunicated. Under the ban he has been forbidden to teach, forbidden casual social intercourse, unkempt and unshaven: like a leper, like a mourner. Hear how he expresses himself, the teacher cut off from students:

“Woe is me, ” he tells them. “I know three hundred laws concerning the bright white spot” - the mark of the condition we translate as leprosy - “but there is none to ask me questions.”

Now there are people to ask him questions about Torah, although not about the bright white spot.

“What is the law of a ball, a shoemaker's last, an amulet, a curative leather bag of pearls, and a small weight?” Are they succeptable to ritual impurity if they come in contact with a corpse? “And what of the shoe, just completed but still on the last?”

With the publication of After Virtue in 1981, Alasdair Maclntyre revolutionized the study of post-Enlightenment moral philosophy by insisting that it repent of its current pretensions to a view from eternity and confess its temporal roots in the long and motley history of human reflection about the good life. Almost a quarter of a century earlier, John T. Noonan, Jr., a young Harvard-trained legal scholar who possessed a doctorate in philosophy from Catholic University, had waged a similar battle against the widespread misconception of the medieval concept of usury as monolithic, self-contained, and immutable.

Working with medieval authors who were themselves largely insensitive to the idea of historicity, writing in the context of a pre-Vatican II Catholicism still imbued with the abstract and ahistorical spirit of nineteenth century neo-Thomism, Noonan demonstrated in his first book that the concept of usury was in fact a fusion of concrete theological, ethical, economic, and legal concerns which were not stagnant, but organically developing. In so doing, he gave Catholic Christianity a more adequate conception of its past. More than that, he gestured optimistically toward its future. Tracing how the absolute prohibition of usury, defined as any lending of money at interest, was circumscribed, attenuated, and finally abandoned by succeeding generations of moral theologians and canon lawyers, Noonan underscored that the Church could and did change its mind about important moral issues which were held to implicate unalterable strictures of the natural law. Revealing that an increased willingness on the part of moralists to acknowledge that moral experience of Christians professionally involved in the practices of commerce and banking had fueled the evolution of the usury doctrine in past centuries, Noonan nourished the hope for a stronger voice of lay experience in ecclesial discussions of moral issues throughout the years to come.