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.

Abstract

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

Conscience

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?

Natural law

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.]

Human rights

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.

Conscience

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?

John Duddington

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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