Myth, Originalism and Natural Law
We have trouble with the idea of natural law today because we have lost contact with the world that generated the idea in the first place.
I was out for a walk in the woods this morning. This environment is conducive to allowing one’s mind to connect things on their own without having to work overly hard at it. A Twitter discussion about originalism and natural law as it came up during the confirmation hearings of Ketanji Brown Jackson for the Supreme Court and some random musings of mine on Twitter about the nature of mythology suddenly came together in my mind. I had originally thought that a long Twitter thread might be the result, but as the walk progressed and the woodpeckers pounded on the surrounding trees this blossomed into something much larger.
Recently I have been enjoying some Tweets from Adrian Vermeule in regards to both “originalism” and “natural law.” I have no training as a lawyer and the discussion at times seemed like a window into an unfamiliar arcane world. Ius and Lex. To the layman it is all so esoteric and exotic. Heady stuff. That said, I do have training in philosophical hermeneutics, biblical studies and theology. The interpretive issues at stake in the debate over originalism are very similar to those at play in the interpretation of the Bible. How texts convey meaning is still a fairly hotly debated subject philosophically. Additionally, the question of natural law often surfaces in relation to the science vs. faith debate as well as in the current political battles in the culture war. In my mind, the problem with both “originalism” and “natural law” is not so much with the basic ideas themselves, but rather the hermeneutical questions they raise.
Both originalism and natural law are attempts to “ground” the law in something. With originalism, interpretation of the law is supposedly grounded in the fixed text of the US Constitution. With natural law, the idea is to ground law within the structure and order of the world. It is with this idea of natural law that I want to spend most of my efforts in this piece. I think that examining this idea of natural law will be profitable for looking at originalist hermeneutical theory, because once you bore down into the problem, the interpretive “solution” ends up being much the same for both.
What has this got to do with the idea of “myth?” The idea of natural law has a long history going back to the Greeks, then up through Christian teaching where it was given the form we are most familiar with in the writings of Aquinas. The basic idea is that God is a rational being and he created us in his image as rational beings. The world was also created rationally by God, such that there is an order within creation that can be perceived rationally. This combination of personal and creational order should cause one’s thoughts to be directed to God. It was also argued that this order was more than just material, physical, and chemical. It had a moral and spiritual component as well. No one could say that they did not know right and wrong, because the moral imperatives are all around you written into the very fabric of the order of the world. The law of God that is claimed to be revealed through theophany is verified and reinforced through its coherence with natural law such that the two are mutually reinforcing. There is a sense that, as a Christian, I can present the essentials of the Christian faith without ever having to reference the Bible. It is possible to explain the truths of God simply through a discussion of our shared perception of the world around us, through the use of natural law.
What is often not apparent, though, in today’s discussions of natural law is that much of this intellectual framework was developed on the other side of the modern and pre-modern divide. Why is this important? We tend to approach the world from a very modern perspective, one in which the mythical has been almost entirely banished. This matters because the world that gave birth to the idea of natural law was very much mythical.
In the mythical frame, the world itself is imbued with meaning. The world gives meaning to us. The world is a complex of patterns, metaphors and archetypes that reveal themselves over and over again in nature, events and people. Stories, poems, songs, myths, theophanies, visions, and sayings help reveal what is both evident and hidden all around us. You would see stories repeating themselves in part or in full in people and events all everywhere all the time in a mutually reinforcing superstructure. You would realize yourself fully by living into a story or a social role. You tell stories about the good king, the good warrior, the good mother, the good farmer and so forth such that the story would shape and determine your actions. You knew a bad king because he did not conform to the patterns in the stories. And as such, he did not conform to the patterns, the laws, of creation. This worldview places an immense value on the person of wisdom, the seer, that is, the one who sees. If you are interested, I encourage you to pick up Mircea Eliade’s The Myth of the Eternal Return to learn more.
As the modern environment emerged, this old way of relating to the world was not abandoned overnight. With the rise of nominalism, and with it the inductive method, slowly this dynamic world full of meaning was replaced with an empty world without meaning. The world is now just matter, stuff. The world is dead. There is no inherent meaning at all in anything. In fact, the opposite is now the case. It is we as human beings who give the world meaning. We make observations. We synthesize these observations into provisional general conclusions. We create the schemas and maps of meaning that then define the world.
From the modern perspective, we approach natural law from this inductive, scientific perspective. We are observing. We are drawing general conclusions from those observations. We give the data meaning. From this perspective, whatever moral imperative is drawn from the data and these conclusions are mine. Previously, the good life was lived by conforming one’s self to the structures, patterns and roles that presented themselves. Now, the good life is the product of finding one’s self, one’s own voice, one’s own morality, one’s own truth and then living that truth authentically. One is true to one’s self, not to God’s law. If anything, the idea of a meaningful imperative existing within the created order is oppressive because it would hinder my own self-creation. In this world, the very idea of natural law is meaningless, perhaps even offensive. Because there is no pre-existing imperative that I am seeing and experiencing—it is just me applying my conclusions to the data—therefore in this materialist world a functional natural law falls to the wayside and everything becomes a series of power games.
Texts like the American Constitution, and the Bill of Rights that was folded into it, were composed during the time of transition from the old mythical pre-modern world to that of the materialist world of today. They were in the process of making that break, but many of the artifacts of old world remained. While composing a positive legal framework that was effectively grounded in reason alone, along side of this there was a still a strong sense of natural law, such that one could see into the created world and “read” its “text” like a book. This way of conceiving creation, as a book to be read, was prominent in the Reformation. For example, from the Belgic Confession, composed by Guido de Bres in 1561:
“We know him [i.e. God] by two means: First, by the creation, preservation and government of the universe, since that universe is before our eyes like a beautiful book in which all creatures, great and small, are as letters to make us ponder the invisible things of God: his eternal power and his divinity, as the apostle Paul says in Romans 1:20. All these things are enough to convict men and leave them without excuse."
Even though some of the mythical sense—the “superstitions”—of prior eras was being set aside, there is a clear understanding here that the world is speaking to us. It was more than simply a book to be read. The world around us functioned like a kind of sermon, speaking to us. At the same time, though, you can see in this idea of creation as a book that can be read, that there is already an emerging new way of looking at the world, that of the inductive method. The book imagery was a way of harmonizing this newly emerging way of understanding the world with the old way of the relating at the world. The idea is that we would read creation in the same way that we would read the Bible, each representing a different form of God’s revelation.
Because of the Reformed roots of Puritanism, this type of framework was still at work in the background culturally as the Framers were composing their new constitution. It was a rationalist document that leaned on the cultural deposit of natural law. The assertion that certain truths are self-evident is one rooted in the older idea of natural law. We can assert them, because they are things that we all see out there in the world. The world is a book that we can read, its truths obvious to anyone who is paying attention. There is this supportive relationship with older ideas of natural law present in the writing of the Constitution that lend it support and helped to ground the document in a way that a purely closed system of positive rationality could not.
Yet, as we move increasingly into the modern era and this older mythical conception of the world fades away, the underlying living cultural habits also begin to disapear. In a fully material world, it becomes very hard to lean on the idea of natural law. If meaning and moral significance is given to the world by the observer, then natural law is a meaningless concept. If one is merely observing sense data, natural law becomes something that is functionally equivalent to what is fashionable at the moment. Shorn of its conception to natural law and the attendant worldview which supports it, all that was left is the closed system of laws grounded in nothing more than human rationality. Because there is now no authority with which to appeal outside of itself, the meaning of the words are subject to little more than a power game. Whomever is winning that power game will be able to dictate the meaning of the Constitution.
In opposition to this cultural trend, the theory of Originalism was put forward. Originalism bears a lot of similarities to arguments made in biblical hermeneutics. It is essentially a kind of fundamentalist view of the Constitution. The idea is that there was an intended meaning of the text of the Constitution. It is incumbent upon the interpreter to respect the intentions of the original authors of the text. This could be uncovered using a combination of limiting one’s self to the plain meaning of the text itself, combined with research into the intentions of the framers as they wrote about them elsewhere. Much in the same way, biblical scholars use various forms of textual research, historical research as well as study the style and form and so forth in the attempt to elucidate the intended meaning of the biblical author. There a tremendous degree of overlap between the two in terms of theory and practice. Again, the goal of originalism is to limit one’s rulings to the intended meaning of the text.
What is interesting to note here in the crossover between constitutional and biblical hermeneutics is that hermeneutical theory in general is a response to the fading of the pre-modern mythical worldview. Its not that pre-moderns were bad at biblical studies, its just that their fundamental worldview did not cause them angst over how to appropriate the meaning of texts. In a world filled with meaning where one was used to seeing meaning in everything, finding meaning in texts was not a problem. They were saturated with it. The allegorical reading of texts was quite natural in this worldview. Where the meaning of texts becomes a problem is in the modern scientific/nominalist world.
Hermeneutical theory was a way to impose some scientific rigor to the interpretation of the text. Even a strictly fundamentalist view that wants to focus exclusively on the plain meaning of the text is essentially a view of the Bible that is rooted in enlightenment liberalism. The basic idea is that the Bible communicates to us universal truths that are available in the plain meaning of the words of the text. These universal ideas are true in all times and in all places. It is essentially Kantian rationalism loosely applied to the biblical text. If God’s Word is true, then it must be true always, in every time and in every place. As universal truth, the Bible speaks to anyone who reads it and takes the plain meaning of the text seriously. We will say more on this shortly. This is essentially the basic idea of originalism.
The other path was that of a more “scientific” reading. Through the application of proper hermeneutical methodology one could elucidate the original meaning of the text. Once this original meaning of the text was teased out of the document it could then be transported into the present and applied to present situations. This places a strong emphasis on reading in the original languages, doing historical research into the period and culture of when the text was written, examining the particular form of the writing, looking at literary devices, and looking at idioms and conventions that may not be obvious on a first reading. It is often seen that arguments over the meaning of a text can become arguments over proper methodology. The idea is that if we can get the methodology correct, we can exegete the correct interpretation of the text. The universal idea will emerge if proper methodological rigor is used. This was how I was taught. Again, it bears many resemblances to strains of originalism.
When I overhear arguments of legal scholars in regards to the proper meaning of “originalism” as an interpretive theory for constitutional law, it sounds all so very familiar to me. The basic idea, though, is that if we get the method right, we can guarantee an interpretation that is “faithful” to the original meaning of the text. The goal is to place restraint upon interpretation by grounding interpretation in the plain text of the Constitution. And then that interpretation is supposed to be grounded again in the intent of the Framers. The objective is to escape the trap of a closed system of reason that is grounded on nothing but itself, thus turning all interpretation into a power game. By adequately grounding interpretation, this grounding is supposed to become the referee between battling interpretations. As long as everyone agrees on the rules of the game, it works. But they don’t.
The question is why does all of this matter? Why all this discussion of myth, natural law, originalism and hermeneutical theory matter? All of these ideas, whether it is nominalism, the inductive method, rational law and hermeneutic methodology are all attempts to free the pursuit of knowledge and truth from superstition as well as from corrupt persons and institutions. Our society today hopes to accomplish this by using a combination of reason and sound methodology. Additionally, as the old operative frame was fading away (being swept away?), there was a real cultural push towards limiting knowledge to the rational and the inductive, that is the scientific. There was an intentional push to remove the thorny problem of metaphysics and religion from the realms of public knowing. They were pushed to side as forms of private knowing that people might find personally rewarding. But in the public realm true knowledge would rest on what could be observed, tested and formulated rationally. The metaphysical and the spiritual could not be observed and could not easily be expressed through language and thus would not be given space in the public realm.
This approach ended up being quite powerful. The effect it had was to separate scientific and technical pursuits from moral or religious constraints. It allowed an explosion of learning and invention. But it came at a cost. The promise of the enlightenment was that a rational reformulation of morality was possible without reference to the metaphysical or the religious. Attempts were made. But examined more closely, they all end up borrowing unconsciously from the received morality of the day which had its roots in religion. The connection was just denied. To the men of the enlightenment the content of morality, and with it law, was indeed self-evident. What was moral and immoral, what was right and wrong, what was legal and illegal was obvious to them because the content of the old metaphysical morality was still present to them everywhere. Fast forward several generations and that content was no longer self-evident. Nor was reason able to produce the promised rationally based morality. Alasdair MacIntyre thoroughly documented this failure in his seminal book: After Virtue: A Study in Moral Theory.
This matters for the interpretation of law because law is an expression of morality. The promise was that morality could be an expression of rationality. If we accept MacIntyre’s argument, then the above claim means that law is not grounded in anything. It is simply about power games. The alternative is to make the argument that law, as an expression of morality, is metaphysically and religiously grounded. But the problem with this is that we no longer live in the cultural milieu in which the world around us is saturated with meaning, meaning that we are able to understand implicitly. We have cut ourselves off from the way of living in which the world and sacred texts actually speak to us. There are still remnants of this world surviving within religious communities. It is not completely dead. But it is a greatly diminished thing.
As a substitute for a cultural milieu in which the meaning of the world was self-evident to us, we have instead introduced the discipline of hermeneutics to help us elucidate meaning from the texts “scientifically,” either that or the whole idea of interpretation is throw aside all together such that what matters is the will of the interpreter. The old world being lost to us, we seem to have just two paths in front of us: that of scientific interpretation or the will to power. Neither produce satisfactory results. It is into this breach that the philosopher Han-Georg Gadamer thrust himself in his magnum opus, Truth and Method. A full exposition of his ideas is beyond the scope of this piece, but he does have something to offer us and perhaps a way forward.
At one point Gadamer uses the difference between “taste” and “fashion” to illustrate how we get past this interpretive problem. Fashion as a concept denotes whatever is popular in the moment. It is the current thing. The current way to dress, what to eat, what entertainments to consume, and even how to think. The will to power is very much rooted in the fashionable. If you can gather enough people, push your movement, cause it to gain ascendency, it can become “normative.” The current example would be something like gay marriage or abortion. If 70% of people can be convinced that gay marriage is ok, then it must be ok. It becomes “moral” by virtue of its being fashionable. All you have to do rally, or manipulate, public opinion and you will be able to determine morality. This is why securing key influencers in academia, schools, entertainment and the media is so vital. This is why activism is important. They shape public opinion and with it morality.
Gadamer argues that the ability to truly understand, though, is less like fashion and more like good taste. Good taste is able to resist fashion and stand on what is more enduring. It is also something that has to be cultivated, taught and learned. One does not come by good taste easily. Here is the thing that many who would be originalists and those who would practice scientific exegesis will resist. There is no real guaranteed process by which one obtains good taste. And there are no rules that define what good taste is or is not. In a sense, you know it when you see it.
He uses the example of a theatre production. We could argue that for a production of Shakespeare to be faithful, it must follow “the one true way” to put on his plays down to every inflection and gesture. We know that the result would be dead formalism. This is originalism. Instead, Gadamer argues, when we watch a production of one of Shakespeare’s plays, we will know a faithful interpretation when we see it. Our perception of this will be informed by good taste shaped through knowledge of the work and of previous performances. There will be a sense of dissonance or harmony. A production might be fashionable and acclaimed, but have no real relationship to the original. How will you know? If you have good taste, you will know. It will just simply adhere to the original or it won’t. It has harmony or dissonance. There is no method or set of rules that can predetermine whether a Shakespeare production is faithful or not. It is the same with Biblical interpretation as with the making of a ruling on the Constitution.
The problem, though, is more complex than this. Even if we accept this idea that a methodological reading of the text is not truly possible, we often work out of the rationalist idea that we can express all truth through language. The pre-moderns knew differently, and as a result had a much fuller sense of the idea of truth. They tended to use the concept of “wisdom” over that of “truth” with the two meaning much the same thing. There are many times where the same words can carry vastly different meanings depending on context or the listener. There are many things that can be known and understood that cannot be put into language. There are truths which can be expressed in words that defy any ability to arrive at a decision on their meaning methodologically. Here is a favorite example of mine that I used in a previous piece:
What's with the Name "Seeking the Hidden Thing"?
There is an excellent little two verse passage in the book of Proverbs that exposes the problematic nature of the idea of the plain meaning of a text as something which is “self-evident:” Proverbs 24:4-5. The first verse is familiar to many, even in popular culture:
"Do not answer a fool according to his folly, or you will become like him yourself."
You hear that, and you are thinking, “Ok, good advice. I have met a few fools and tried to set them straight but just ended up being dragged down to their level in the end.” This sounds like Twitter. Then we read on to the very next verse:
"Answer a fool according to his folly, or he will be wise according to his own eyes."
And now you are thinking, “Ok, isn’t that the exact opposite advice that was just given in the previous verse?” It is. Two opposite pieces of advice. Both are sound advice. Both are true. And yet, they are contradictory. How can two contradictory meanings live side by side and both be the “Word of God”? So what do you do? And this is the interpretive conundrum in four lines of text. You cannot know in advance what advice to give, nor is there any methodological process that will guarantee the right answer. I have come to see that the point of these two verses is to make you think about the nature of wisdom and interpretation itself. To loop back, the one with a developed sense of taste is the one who will be able to answer that question in the moment. This is often the conundrum that a judge will face when presiding over a case. If you know how to answer the question these two verses pose, you will likely never make a wrong judgement as a jurist. The ancients, being much more cognizant of the problem than we seem to be today, knew the correct path through this. It was in the formation of the person.
Our baseline cultural posture resists this idea. We have gone down the route of the technical and assume that most problems can be dealt with through systems, policies and methodologies which are trumpeted as being able to produce consistent results regardless the person. We use this in quality control on the assembly line to produce consistent production standards regardless of the worker. We do it for softer skills like customer service. We even attempt to produce consistent educational outcomes through the implementation of the right teaching methods. This also tends to push us towards interpretive methodology. It is often the easier path to consistent results than the more arduous one of personal formation. We choose technique over virtue. Again, the ancients knew better.
Their message tells us that what we must do is live before God, fear him and look to him for guidance. Then, when you meet the fool you will know what to do. This the essence of what the Bible calls “wisdom.” It is a higher form of what Gadamer calls “taste.” It is the “thing” that lives between, or is hidden by, two pieces of contradictory advice. They are both right, depending on the circumstances. There is no amount of “rational knowledge” that will give you the power to always have the right answer. There are no “seven steps for successful fool encounters.” You can intuit it. But you don’t really have anything. At best, you have a relationship with God and you trust and have faith that in the moment the right path will present itself. This is the essence of what is said in Job 28:
"Where can wisdom be found? It cannot be found. God understands the way to it. The fear of the Lord, that is wisdom"
There is more too it than that, though. This is the thing about the old stories. There is a story for pretty much everything. A particularly important story is that of Abraham and the sacrifice of his son Isaac. Unfortunately, most English translations do a good job of obscuring the meaning of this text in order to conform to the tradition of translation. If you have access to an academic library, I would encourage you to have a look at the JPS Torah Commentary of Genesis as this does a good job of conveying the sense of the Hebrew (which is included). A lot of meaning is carried at the level of language and word choice which is difficult to convey to the English reader without some exegetical work. Let’s have a look at this important passage: Genesis 22:1-14.
As the pericope begins, the action starts with God calling out to Abraham. Abraham gives the answer that is often translated as “Here I am.” The more literal reading uses a visual verb meaning something like “Behold me,” “See me,” or “Look at me.” There is the sense that Abraham wants God to examine his character. God then commands Abraham to do the monstrous: sacrifice his only son, the son of promise. He also tells him to go do this at the place that he will “show” him. When Abraham and his son Isaac are a ways off, Abraham looks up and “sees” the mountain from afar. Yet he continues, knowing the sacrifice he is being asked to make. When they do get close to the top of the mountain, Isaac, clever boy that he is, realizes that they have everything needed but the sacrifice. Abraham responds, “God will see to it.” The visual language again. When they arrive at the designated place on top of the mountain, he proceeds to tie up his son and place him on the altar. Just as Abraham is about to sacrifice Isaac, he is stopped by an angel who calls out his name. To this, Abraham gives the same response as in the beginning: “Behold me!” “Look at me!” It is a demand given to God, that God see Abraham and see that he has been faithful. “Look at me!” And the Lord then acknowledges that just as Abraham trusts in him, so too God now trusts in Abraham. God has seen the truth of Abraham’s character in the moment of testing. Then to conclude the story, Abraham “sees” a ram caught in a bush and it is offered as a substitute for his son. As with most of these important stories, a name is given to the place: Adoni-jireh. “On the mountain of the Lord there is vision.”
If the wise man is the one who fears the Lord and thus truly sees, the story of Abraham here unfolds the path whereby one gains wisdom. The one who sees is the one who goes up the mountain and is tested by God and found worthy. This remains an archetype throughout the Bible. Moses goes up Mount Sinai to meet God and be given the law as condensed in the form of the Ten Commandments. Jesus, Immanuel, that is, God with us, also goes up a mountain to give his famous Sermon on the Mount. This becomes a series of beads on all tied together with a cord. This idea of law as an expression of morality that is grounded in the revealed will of God is then also given an path for correct interpretation: the person is formed in the crucible of testing that then results in their ability to both see and also be seen by God. It is this person who can be trusted to speak on the meaning of things.
As with all of these old archetypal stories, the goal is not to elucidate some timeless universal truth, that then can be transported around and applied to various situations. This is a story that is lived into and experienced and understood through experience or not at all. How do you know when someone has made the journey? Typically, it requires someone who has already done it to be able to intuit it in the life of another. You will know it when you see it. There will be that sense of harmony or dissonance. What this probably means is that in working to train lawyers, more emphasis should be given to the spiritual and moral formation of the student, to inculcate virtue and make them men and women whom God would trust with the interpretation of law. An Ivy League education as presently constituted will likely not further that process. Perhaps confirmation hearings should be a time for prospective justices to talk about their journey up the mountain and back, their journey of testing. What was it like to be “seen” by God.
In the end, there is no “answer.” There are no methods or approaches that will guarantee wise rulings. There never has been. The best that you can do is to choose wise men and women of character who have a deep connection to their Creator, men and women of virtue and taste, men and women who can “see.” This has always been the answer. It is really the only answer. The alternative it to seat people who are creatures of fashion, creatures of ideology, of methodology. The problem is one of the modern world itself. Perhaps the best thing we could do is recognize that rationality cannot give us the answer to good legal rulings. Re-establishing that connection between law, morality, metaphysics and God, coming once again to live in a world of meaning would be a good start.