The Moral Basis of Law

THE THOMIST A SPECULATIVE QUARTERLY REVIEW OF THEOLOGY AND PHILOSOPHY EDITORs: THE DoMINICAN FATHERS oF THE PRoVINCE oF ST. JosEPH Publishers: The Thomist Press, Washington, D. C. 20017 VoL. XXXII JULY, 1968 No.3 THE MORAL BASIS OF LAW 'I...,HE topic of this presentation is the relationship between personal morality and conscience on the one hand, and public morality and law on the other. Personal morality and conscience are taken in the conception common to the Judaeo-Christian tradition-the tradition in which most believing Americans place themselves. Thus the word "faith" and its derivatives refer here to man's response to God's selfrevelation , a response that can be indicated (though not defined ) by assent to certain points: 1) that there is one God, the creator of heaven and earth; Q) that He made man in His own image and that He guides the affairs of mankind; 3) that He covenanted with mankind-with upright Noah, with Abraham , the man of faith, and with the chosen people. Throughout this exposition I assume that the heritage of these promises still remains the central reality of human life, central even in the world of today. Thus I simply prescind from non-Western religious traditions, without denying their Q83 fl84 GERMAIN G. GRISEZ value. Likewise, I prescind from the humanistic religion that is becoming rather common among those who used to have faith. Once faith is set aside, religious ideas on morality and conscience quickly become indistinguishable from the thoughts of unbelievers; thus we would have to move on a purely philosophic plane if this religious humanism were to be taken into account. I have set some rather narrow limits for this essay. On the one hand, the specific problems that might arise from examination of the Christian scriptures will not be treated, for I wish to offer this essay as a provisional structure to be modified and developed in various ways by persons sharing according to diverse modalities in the Judaeo-Christian tradition. On the other hand, I am not attempting even in outline the vast synthesis that would be required for an ecumenical theology of morality and law. I do not imagine that my references to scripture are governed by norms that would satisfy any group of exegetes, but the references are only intended to suggest and to illustrate possibilities, not to prove anything. Within the common assumption of faith, the argument here is philosophic but with a philosophy itself nurtured under the inspiration of faith. The public morality and law with which I am concerned here is that of civil society-the federal, state, and local communities . The part of the law relevant for our purpose is the criminal or penal law together with other enactments similar to criminal law in the common function of regulating behavior. I. There is common agreement among men that morality is a demand society makes upon its members and that conscience is an acquired disposition of practical thinking by which society 's demands become effective in its members' behavior. But for those who believe, morality is only communicated-and not always perfectly communicated-by the demands of society and the disposition these demands induce in the individual's heart. THE MORAL BASIS OF LAW 285 Prior to society is the wisdom of God. This prior source of morality is described in the Wisdom of Solomon: She is a breath of the power of God, pure emanation of the glory of the Almighty; hence nothing impure can find a way into her. She is a reflection of the eternal light, untarnished mirror of God's active power, image of his goodness. Although alone, she can do all; herself unchanging, she makes all things new. (Wis 7: ~5-~7.) Thus the force, the reasonableness, the value, and the stability of morality have a source beyond society, and this source is God. This wisdom is no arbitrary force, imposed upon men and things from without. Rather it is an ordering principle which makes their being and well-being possible; in Proverbs, Wisdom claims for herself the title of firstborn of creatures: The Lord created me when his purpose first unfolded, before the oldest of his...