The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.

A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.

Although Biblical law ordains the death penalty for some thirty-six offenses, and whipping is the punishment prescribed for many more, it would be rare in fact for such Biblical punishments to be inflicted under Jewish law. Strict procedural and substantive requirements limit these mandatory Biblical penalties to cases of the most willful and deliberate rebellion against God's rule in the universe. Thus, for example, one prerequisite of these Biblical punishments is that the offender be warned in advance—immediately before he commits the offense - that the act he is about to perform is a violation of God's law and that it will be punished by death or by whipping, as the case may be. Further, for the death penalty to be applied, it is not enough that the offender be warned or even acknowledge that he has heard the warning. Rather, he must also affirm his awareness that God has forbidden the intended conduct and has ordained the specified punishment and he must declare expressly that he will commit the offense nevertheless, thereby “surrendering himself unto death.”

I came across this project quite by accident. One day while I was reading Roberto Unger's Knowledge and Politics, I was struck with certain parallels between his thoughts and those of several Latin American liberation theologians such as Gustavo Gutiérrez, Jon Sobrino, S.J., and Juan Luis Segundo, S.J. The more I thought about the parallels, the more I chided myself, “This cannot be; what could a Harvard law professor have in common with liberation theologians?” But the more I read and reflected, the more I saw connections upon which I hope to elaborate in this article.

Other scholars have made connections between this Harvard law professor and several notable Roman Catholic priests who investigate and write about a theology which can liberate the millions of poor in Central and South America. Recently, for example, Paul Sigmund, a political science professor at Princeton, completed an investigation of liberation theology in which he identifies “a movement away from Marxist reductionism to communitarian participatory radicalism in the development of liberation theology over the last twenty years.” In urging the cultivation of a dialogue between communitarian theologians and thinkers from liberal (and Christian democratic) political institutions, Sigmund suggests that this discussion might also include ” ‘communitarian’ critics of Anglo-American liberalism, some of whose views resemble … liberationists.” Sigmund includes Roberto Unger in this group since he, along with Alasdair Maclntyre and Michael Walzer, criticizes classical arid contemporary liberals for their absence of a shared conception of the good, their unrealistic view of the person, and their effort to derive ideas of community from an artificial contract that bears no relationship to actual experience.

In both political science and ethics, interpreters of the meaning of war have learned to use typologies to separate one mode of evaluation from another. As a result of this diversity in moral evaluations of war, authors have partly talked past each other, with all good faith accusing each another of confused categories. There has not been an agreed upon definitional base-line for just war theories “out there,” which would permit just war theorists to judge other theories and communicate with each other.

I propose to define more carefully the operative terms and kinds of argument used in just war theory, to assist communication on these topics. If we fail to clarify the variety of meanings and arguments, the result is imprecision and confusion. Our need is for a more precise understanding of the diversity of the modes of moral reasoning on just war. By surveying recent developments and usage in the field, this article will make it possible for just war scholars to engage each other using a more adequate, more nuanced set of types. While these types are not identical with current dominant usage, they are reconcilable with its main lines and more useful as instruments of interpretation than the simpler systems.

The following article is a creative thought-experiment. I hypothesize that a group of religious believers forms a religious political party, which I call the Christian Democratic Party. As the party begins to succeed, alarmed citizens bring suit to stop it, challenging its right to exist in our constitutional system. I imagine that the case comes to the Supreme Court, and I present the hypothetical majority and minority opinions of the Court.

Before I present the case, however, I should set the stage. According to some commentators, the United States is in the midst of a full-blown “culture war” between the forces of traditional religion and militant secularism. Contemporary American politics— matching the definition of politics as “war by other means”— would seem to confirm this analysis. Recent election studies demonstrate that the Republican and Democratic parties are becoming increasingly defined by core constituencies of religious conservatives and secularist liberals. There is a growing recognition that religious differences constitute a significant factor in the voting behavior of many Americans.

Judge John T. Noonan, Jr., the honoree of this festschrift, is a major figure in both legal studies and religious studies, and so it is especially fitting that the Journal of Law and Religion publish these essays in his honor. This essay will serve as an introduction to Noonan's works and to the essays collected herewith.

John Noonan's activities in connection with secular law are fairly well known. He has served with distinction as United States Circuit Judge on the Court of Appeals for the Ninth Circuit since 1985. In addition to serving on the bench, he has taught for nearly thirty years at Boalt Hall, the law school at the University of California at Berkeley, and twice been a visiting scholar at the Institute for Advanced Study in Princeton. Earlier he was Professor of Law at the University of Notre Dame Law School, and throughout his career he has served as a visiting professor at other distinguished law schools including Stanford and Harvard, his alma mater.

Judge John T. Noonan, Jr., of the United States Court of Appeals for the Ninth Circuit, is one of the most accomplished and diversely talented jurists in the recent history of the federal courts. Philosopher, theologian, historian, and poet, Noonan has been, first and foremost, a scholar of the law. He has devoted his professional career to a truth which we frequently lose sight of: the law, so seemingly complete in itself as a system of thought and expression, is an essential branch of general literature. A science, however inexact, the law is a humanistic pursuit as well, and no one in the past four decades has pursued the law with such humanistic fervor—a humanism enlivened by religion—as John Noonan.

Stereotypes tend to perpetuate images far outdistanced by events. Massachusetts, founded by the Congregationalist English, had by the early nineteenth century become a Unitarian stronghold and a mecca for immigration from Ireland and Canada. By the beginning of the twentieth century, the new Catholic archbishop of Boston could announce (in 1908) that the Catholic Church in Massachusetts had assumed the mission of the Puritan Church. By the time Noonan came of age, the divisions of the nineteenth century surfaced chiefly in the superficialities that often serve as voting guides: Massachusetts would elect a good Catholic to statewide office in preference to a Protestant, but a good Protestant in preference to a bad Catholic. Ethnic differences had become blurred by economic changes; religion was important, but subordinate to civic responsibilities.

Through a number of profound studies the Honorable John T. Noonan Jr. (on Scholastic Analysis of Usury, on Contraception. A History of Its Treatment by the Catholic Theologians and the Canonists, on Abortion and marriage tribunals) has made visible how relevant the study of the historical context is for any scientific approach to burning issues of “natural law.” What was said by Christian churches on ethical questions makes sense for us only if we give full attention to the historical context. This is also a principle for the study of ethical questions in the Bible. While the biblical scholars concentrate mainly on what a teaching meant in illo tempore hermeneutics turns its main attention to the present contest of reflexions.

The role of sharing experience and reflexion so central in natural law questions, as Noonan sees it, is also central for the worldwide ecumenical learning community of all Christian churches. And this is for the Christian churches an absolute condition for their dialogue with all people of our time; for Christians a prerequisite for their becoming light for the world, salt for the earth.

With the publication of After Virtue in 1981, Alasdair Maclntyre revolutionized the study of post-Enlightenment moral philosophy by insisting that it repent of its current pretensions to a view from eternity and confess its temporal roots in the long and motley history of human reflection about the good life. Almost a quarter of a century earlier, John T. Noonan, Jr., a young Harvard-trained legal scholar who possessed a doctorate in philosophy from Catholic University, had waged a similar battle against the widespread misconception of the medieval concept of usury as monolithic, self-contained, and immutable.

Working with medieval authors who were themselves largely insensitive to the idea of historicity, writing in the context of a pre-Vatican II Catholicism still imbued with the abstract and ahistorical spirit of nineteenth century neo-Thomism, Noonan demonstrated in his first book that the concept of usury was in fact a fusion of concrete theological, ethical, economic, and legal concerns which were not stagnant, but organically developing. In so doing, he gave Catholic Christianity a more adequate conception of its past. More than that, he gestured optimistically toward its future. Tracing how the absolute prohibition of usury, defined as any lending of money at interest, was circumscribed, attenuated, and finally abandoned by succeeding generations of moral theologians and canon lawyers, Noonan underscored that the Church could and did change its mind about important moral issues which were held to implicate unalterable strictures of the natural law. Revealing that an increased willingness on the part of moralists to acknowledge that moral experience of Christians professionally involved in the practices of commerce and banking had fueled the evolution of the usury doctrine in past centuries, Noonan nourished the hope for a stronger voice of lay experience in ecclesial discussions of moral issues throughout the years to come.

As his classmate and friend since our first year in law school more than forty years ago, I have admired John Noonan for his gentle personality, his keen intellect, and his strength of character. He is an exemplar of ethical conduct, as a person and as a judge.

Judge Noonan presented a significant part of his philosophy of law, lawyers, and judges in his Holmes Lecture at Harvard Law School in 1972. The lecture was later published as a book, Persons and Masks of the Law, and it stands as one of the most significant essays that has been written about the legal profession.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to make a Golden Calf of abstract rules of law. He states, “Fascination with rules may mean obeisance to force or the delusion of having mastered force. It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When this scenario occurs, the rules become masks that disguise the humanity of those affected by the law. The effect of this occurrence is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons—conduct that they would otherwise recognize as evil.

John Noonan was my teacher some twenty-five and more years ago. I was then a graduate student at the University of California, trying to discover enough about the history of the law of the Church to write something sensible about it. He took me under his wing. He suggested a subject, and he taught me—at least he showed me—the possibility of seeing larger themes in the details of legal and historical research. Attention to the details was essential, but no less important was thinking about their background and their implications. It was a lesson I might have learned in law school. Apparently I had not. This lesson came back to me forcefully when, in more recent days, research on the development of ecclesiastical jurisdiction in England raised the subject of the place of excommunication in the subject's early history. Excommunication, dealing as it does with the complex interrelationships between legal doctrine and human behavior, is a subject about which Judge Noonan might have written a wonderful book.

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden.

It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (for example, what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology.

The manuscript transmission of the so-called Stroma of Rolandus, considered to be the second-oldest Summa on Gratian, is so complex and diversified that one ought to ask whether it really constitutes a single work. The present writer as a young man followed Thaner, Schulte, and others in his Repertorium der Kanonistik, without even asking the question. In the present Note he sets out to answer it in the negative.

C.1-C.36 of the work is transmitted without Part I, which only MS Stuttgart HB VI.63, fos. 1-34, combines with the other parts. We have C.1-C.26 in nine manuscripts, without counting the Cambridge fragment, University Library addition 3321 (on C.1-C.4 q.3, C.13-C.23) and the Zürich manuscript (see below), but with a new manuscript added in Liège, Grand-Séminaire 6.N.15, fos.147r-178r, and a new fragment in Heiligenkreuz 44. MS Zürich, Zentralbibliothek (Stadtbibliothek) C.97 is a different work, the Summa Turicensis. C.27-C.36 is given a title of its own, De coniugio, in all but two manuscripts. It is transmitted by itself in Berlin lat. 462, Bologna, Archiginnasio A.48, Grenoble 627, and divided from the relatively short Summae on C.1-C.26, which follow it in London, British Library MS 11.B.ii and Worcester, Cathedral Chapter, Q.70 (in Worcester, these Summae are incomplete and end at C.19 q.1).

It is a pleasure and an honor to be asked to contribute to a festschrift dedicated to that fountain of youth, energy, and excellence, John Noonan, who has been a close friend and a professional colleague for forty years. John has written about many of the legal topics that are closest to my own heart and I have chosen to include in this volume a piece that combines many of our joint interests: legal history, the Cardozo family, and judicial ethics. Judge Noonan has in fact alluded quite specifically in two of his own pieces to the career that figures in my contribution. My subject is Cardozo, not the twentieth-century Benjamin of high repute featured in Judge Noonan's Persons and Masks of the Law, but his father, the nineteenth-century Albert of low repute, whose career figures in Judge Noonan's exhaustive treatise on Bribes. The legal career and the approach of the nineteenth century Cardozo to law is an interesting and instructive prelude to the more common study of the contribution of the twentieth century Cardozo.

The ancient Greeks never speak of themselves as “polytheistic,” of their religion as “polytheism.” Certainly, thinkers comparing various world-views must have given a place to this one early on. Sextus Empiricus, ca. A.D. 200, notes that, if one looks around, some people assume one god, hena theon, some many, pollous; such an observation could probably have been made hundreds of years before. Yet from here to the labels “polytheistic” and “polytheism” is a big step. They are met in no text B.C. It is Philo, outsider and critic, who first employs them.

The ground was prepared in that the adjective was current long before, though not descriptive of a creed. Significantly, the noun is not traceable earlier at all, nor the nominal use of the adjective, what we translate as “a polytheist.” Here is the passage with the adjective from Aeschylus. The daughters of Danaus flee from Egypt to Greece with their father in order not to be forced into marriage by their cousins. Expecting the latter to pursue them, they take refuge at the sanctuary of Argos, favoured—the father explains—by quite a few of the mightiest Olympians; and they implore the king not to let them be dragged from this “many-godded seat.” Even for Lucian, Philo's junior by over a century, the adjective has much the same meaning and, of course, there is no noun.

“As God is one,” Newman says, “so the impression which He gives us of Himself is one.” It is an impression of presence, of “I am with you,” of companionship on the journey of life. It is the impression we have when something touches the deep loneliness in us, when “heart speaks to heart,” as Newman says, when music is “from the heart,” as Beethoven says, “may it go to the heart.” Then it seems we are not alone. Then it seems God is with us. Our life is a journey in time and God is our companion on the way.

There are times, though when the impression of presence is not there, when it seems therefore God is not there. We go through something we didn't think God would allow, a testing of the heart, the kind of thing we pray against, “And lead us not into temptation, but deliver us from evil.” Then it can seem we have encountered another side of God, a side turned away from us like the other side of the moon. If we hold to God nonetheless, we come to realize it is not another side of God we are experiencing so much as the essential ordeal of a journey with God. Every journey has its ordeal, according to storytelling, an ordeal by fire, by water, by sheer endurance, and a journey with God has its ordeal too, the ordeal of the human heart, the trial where the secrets of the heart are revealed. If I come upon that ordeal, I may find that my heart is divided, that it is not entirely with God. Still, I do not thereby fail the test. For I can bring my divided heart to God to be made whole. I can bring all my heart to God, although it is a heart in pieces, a broken heart.

Our world is in abundance of most different kinds of legal systems, but none of them is as thoroughly imbued with constitutional ideas and categories as the American law. Thus, the dedication of an article dealing with a concept of constitutional law to an American judge and scholar seems not inappropriate. The contribution focuses on a legal term of specifically continental European thinking, the concept of “Wirtschaftsverfassung” or, translated literally, of “economic constitution.” I will try to explain on which premises and under which circumstances this legal term has been developed during the first decades of our century.

Concepts often share the fate of human thoughts in general: they appear for the first time in certain contexts, they journey through time and space, they flourish in one place and sink in another; for long periods they may be missing yet they come to life again all of a sudden in a new context. The concept of the economic constitution is such a case, too. It can be found already in the Physiocrats, but no fixed place is assigned to it; every now and then it has been used by authors of the 19th century but without any chance of gaining a foothold; in our century, however, it secures the status of a central concept for legal doctrine and theory of constitution, at least among the German jurists. So, unlike many other juridical concepts, this one does not root in a common European heritage like ancient Roman law or the law of the medieval Church; and with regard to the political and juridical ideas of the Natural Law School and the Enlightenment the continuities are so sparse and faint that it is hardly possible to trace the lines back over the centuries.

I met John Noonan in the office of the late David W. Louisell in January, 1974, and remember to this day just how awestruck I was at being in the company of such great scholars. I find myself even more humbled as I pen this essay in honor of the birthday of my esteemed teacher, advisor, and friend. To be invited to join the festschrift is an extraordinary honor for a former student but it is also an immense challenge. The task of writing a coherent essay for one's professor usually ends upon graduation from law school. To write one in honor of a professor (and a favorite one at that) is an altogether new experience.

Because I write to pay tribute to a man whose manner of thinking has indelibly shaped the manner in which I teach my own students, my goal is to write an essay that builds upon the work he has done in the field of law and religion. And if, in the final analysis, it meets that standard, it will do so, in part, because of John Noonan's efforts as a teacher, scholar and role model.