05 September 2017

And the Winner Is ...

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... Wim Decock. ??
Decock has received the 2017 Novak Award from the Acton Institute. Read the news release here. I'm working my way for the second time through Decock's extraordinary work, "Theologians and Contract Law: The Moral Transformation of the Ius Commune." I will be making significant use of it in a book chapter on the doctrine of unconscionability. (Go here for a post in which I mention unconscionability in connection with the apparent absence of moral judgment in contract law.)

Decock's book is remarkable in a number of respects. First, his command of early-modern legal and theological Latin is exceptional. I am thankful he puts his English translation in the body of the text but he includes the Latin in a footnote. Second, he works diligently to explain why there was such a close connection between moral theology and the civil law through the course of the 15th through 17th centuries. Decock's book contains an embarrassment of riches but let me ignore those and pick up on a side note.

Working through confessors' manuals, canon law treatises, civil law treatises, and moral theologies, Decock helped me to appreciate all the more the stunning Reformation insight of Martin Luther--justification by faith alone.

Consider the following quote from Francisco Suarez, perhaps the leading Catholic theologians of law of the 16th century:
The road to salvation passes through free actions and moral rectitude. Since moral rectitude strongly depends on law's being, as it were, the rule of human action, the study of law is a major part of theology. In treating of laws, the sacred domain of theology investigates nothing less than God himself in his function as a legislator. ... It is a task of a theologian to care for the consciences of the pilgrims on earth. Yet the rectitude of consciences is dependent on observing the law just like moral depravity is dependent on breaking the law, since a law is every rule which leads to the acquisition of eternal salvation if observed--as it must--and which leads to the loss of eternal salvation when it is broken. The study of law, then, pertains to theologians, to the extent that law binds conscience.
Prior to the Reformation and continuing on the Catholic side of the divide thereafter,
one's standing before God depended on conscientious obedience to the law of God. As the etymology of the term suggests, justification was understood as the process of being made right or just. And becoming just was a straightforward--albeit difficult--matter of obedience to law.

By toppling the edifice of justification by obedience, Luther put in motion the separation of law--even the Christian-infused civil law of the ius commune--from its previous place as a locus of theology. Moral and legal casuistry, were no longer relevant to one's standing before God. Thus, in the first instance we should not understand Luther's cry for freedom of the Christian conscience from the law as referring to the law of Torah. After all, Luther burned a leading treatise on the canon law, not the Old Testament.

The opposite, however, was not true: even for Luther the Scriptures and theological insights remained relevant to civil law. After Luther, among Protestants what had been a two-way street between the civil law, as reworked by Catholic moral theologians, and the Christian's ultimate destiny became a one-way street. Theology could speak to the civil law but the civil law could not speak to the Christian conscience. This explains why the civil law, including the Roman law doctrine of laesio enormis as developed and expanded by 500 years of Catholic legal and theological tutelage into something like unconscionability did not change in Protestant lands with the Reformation.

And it is also important to note that even though Protestants rejected input of the civil law in justification, they retained it to varying degrees with respect to the doctrine of sanctification. It shouldn't be surprising that sanctification, the doctrine of the Christian life, absorbed some elements of the civil law. In other words, Protestants still did moral theology. After all, by the 16th century the extant civil law owed much to the biblical text and centuries of Augustinian theology filtered through Aristotle's Ethics.

Of course, modernity placed a roadblock to even a one-way street of theology speaking to the civil law. What is even more regrettable, however, is the death of moral theology in any meaningful respect for the Christian life. In fact, what passes for Christian ethics in the popular mode today also rejects meaningful theological instruction. (See a few of my posts about this state of affairs known as Moral Therapeutic Deism herehere, and here.) 

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