I was reading a commencement address by a Catholic thinker, George Weigel, given at a Catholic law school, Ave Maria School of Law, on law as a vocation and as something beyond billable hours.
He contrasts notions of law as positive law—law is what courts hold or society enacts as law, with notions of natural law—positive law needing to conform to universal precepts derivable by right reason from (he would say) God, (but others say) nature or the nature of things.
Things at first were going along ok. But then he quotes MLK:
.... One may well ask, “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law...
and the intellectual red flags go up: you know, whose moral law, or, put another way, who gets to instruct a secular society on the content of a governing moral code.
And then the red flags start waving furiously to signal intellectual danger, a pending collapse of the whole structure:
.....This false concept of freedom and the false concept of law that goes with it are at the root of our Supreme Court’s mistaken decisions on abortion and marriage in Roe v. Wade, Planned Parenthood v. Casey, United States v. Windsor, and Obergefell v. Hodges. And beneath those false ideas of freedom and law lies another error that is putting our democracy in jeopardy: the idea that there is only your truth and my truth, but nothing properly describable as the truth. What happens, though, if “your truth” and “my truth” collide and there is no standard of judgment — call it “the truth” — by which we can settle our differences?....
I myself am particularly offended by Weigel telling me that Windsor and Obergefell, which together “constitutionalize” the right to gay marriage, are wrong, are wrongly decided.
He has no persuasive authority for his proposition that is intellectually, legally or morally greater than my intellectual, legal or moral authority for my proposition that they are right, rightly decided.
Neither God, nor nature nor the nature of things compels the conclusion that a secular society, one that separates church and state, one that disallows the establishment of religion (while protecting its free exercise) not only errs, but errs grievously, when it sanctions gay marriage.
If Weigel were to take God away as a divine source of universal first principles, then what would his proposition come to, what force would it have?
Not anything close to what he claims for it, his claim being its indubitability.
Without God, he’d nakedly be making a series of secular arguments that are bested by the contending secular arguments that court after court over the developed world has accepted in holding that gay marriage is a fundamental right.
And with this pitfall, Weigel’s entire high flown, hortatory argument collapses into arbitrariness and maybe even incoherence.
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