Can Laws and Rights Teach? John Witte and the Uses of the Law
Patrick McKinley Brennan & William S. Brewbaker III

The following is an adapted excerpt from the chapter “Can Laws and Rights Teach? John Witte and the Uses of the Law” from the book, Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (2024). Reprinted under Creative Commons Attribution Non-Commercial License (CC-BY-NC). This is part of a series of Literature Highlights dedicated to celebrating John Witte Jr.’s work. Read more here.

John Witte’s wide-ranging work engages questions about the purpose of human law at many points, but especially in its resuscitation of the Reformed Protestant doctrine of “the uses of the law.” This chapter begins by setting out Witte’s historical analysis of the uses of the law and proceeds to his application of the doctrine to contemporary criminal law. With the uses model of law thus in view, the chapter then asks in a sustained way what we are to make of Witte’s programmatic contention that “human rights and their vindication help the law achieve its basic uses in this life (298).” One coauthor (Brewbaker) offers a qualified Protestant agreement with Witte’s analysis of uses of law as a vindicator of human rights, while the other coauthor (Brennan) advances a qualified disagreement with the claim that law is rightly understood as an instrument for settling contests between human rights and the right of the state.

This chapter’s critical engagement of Witte’s way of situating rights vis-à-vis law in the long arc of the Western conversation welcomes Witte’s judgment that “secular political philosophy does not and should not have a monopoly on the nurture of human rights (300).” It embraces also his judgment that “avowedly secular values are not inherently more objective, in an epistemological sense, than their religious counterparts (301).” It draws appreciatively, furthermore, on his argument that rights emerged from Christian and other religious reflection on fundamentals of human dignity, human community, and the freedom of individuals and groups to form and act upon their beliefs about the divine (6-7). Respecting Witte’s judgment that “rights and liberties depend upon fundamental beliefs for grounding, limitation, and direction (11),” and discerning and navigating characteristic differences between Protestant and Catholic understandings of individual and group liberties in relation to the common good, we press the question of what room and substance Witte gives to the “common good,” a term he uses frequently, in the “human rights regime[s]” (300) he commends. Having done so, we conclude by asking in a suggestive way whether Witte might agree that establishing friendship, which Thomas Aquinas understood to be “the principal intention of human law,” should be understood as in some sense the telos or purpose of human law (I-II, q.99, a.2).

Why Witte Is (Mostly) Right

Witte not only claims that civil law serves a threefold purpose analogous to the Reformation’s three uses, but he also makes a more specific claim for human rights: ‘“human rights,” he argues, “and their vindication help the law achieve its basic uses in this life (298).”

My coauthor [Brennan] will argue later in this chapter that Witte is mostly wrong about this claim for a number of familiar reasons that might be summarized under the familiar theoretical heading “the priority of the good over the right.” I [Brewbaker] argue here that even if Witte is arguably wrong in theory, he may nevertheless be right in practice.

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[O]ne might argue (as my coauthor does later in this chapter) that one must have some basis for specifying the content of abstract rights and for distinguishing between “good rights” and “bad rights.” Witte acknowledges this problem (299-300), but nevertheless argues that “rights should remain part of Christian moral, legal, and political discourse, and that Christians should remain part of broader public debates about human rights and public advocacy for their protection and implementation (296).” The gap between Witte and his critics may ultimately be a self-conscious difference in ambition: Witte is proposing a course of prudent action rather than a theoretical or theological statement of faith. As he writes in the introduction to The Blessings of Liberty, Witte sees himself “as a Christian jurist and legal historian, not a Christian theologian or philosopher (12).” He sees legal rights and liberties as emerging over time through a process that includes acts and customs of civil society as well as the acts and customs of those holding political or judicial office (11-12). Witte asks the practical question, “What should we do next?” rather than seeking to offer a comprehensive account of political and legal morality.

That said, what grounds Witte’s project? If he is unwilling to offer a thick theoretical/theological defense of human rights, what gives him the confidence to urge his fellow Christians to include rights claims in their moral, legal, and political discourse and to “remain part of broader public debates about human rights (296)”?

Witte has not (to my knowledge) answered this question in express terms, but I will offer three possible justifications. Witte is, among other things, a Reformed exponent of the natural law tradition (76-104). Legal academics often focus, understandably enough, on natural law jurisprudence and its ongoing attempts to refine our understanding of the details and implications of the natural law. On this understanding, natural law looks like the development of a set of arguments from first principles. However, natural law can also be seen as a fact about human nature. It just is the case that the moral law is written on the heart, and if that is true, this fact provides hope (though by no means any guarantees) as we engage in the process of political and legal deliberation about our common life. We can expect our discourse to produce some quantity of true “middle axioms” (statements that occupy space somewhere between foundational moral principles and discrete rules that decide concrete questions) because human beings know (even if we tragically also suppress) moral truth to some degree. And this is the case even when a given individual’s proclaimed belief system provides no adequate foundation for the moral truths he asserts.

Witte’s intellectual background is also worth noting at this point. Witte is a graduate of Calvin University, which is affiliated with the Christian Reformed Church and is known for its insistence that faith commitments ground intellectual and cultural life. Calvin’s tradition draws perhaps most famously (though by no means exclusively) on the Dutch Reformed tradition, whose most famous representative is probably Abraham Kuyper.

One of the ideas for which Kuyper is justly famous is the notion of common grace. Although Kuyper’s account of the topic is complex and multifaceted, he affirms that God, in his sovereignty, is committed not only to the flourishing and salvation of the elect, but equally to the realization of all the good potential of the world he has made. As a result, even where special, saving grace is absent in the lives of individuals, there is “‘a temporal restraining grace, which holds back and blocks the effects of sin’ so that humankind’s full flowering, for which God created us, is not frustrated (311).” Nicholas Wolterstorff (a Calvin faculty member prior to his appointment at Yale) provides a helpful summary taken from a remarkable collection edited by Witte and Frank Alexander:

God’s common grace is to be seen at work in the inward life of human-kind wherever “civic virtue, a sense of domesticity, natural love, the practice of human virtue, the improvement of the public conscience, integrity, mutual loyalty among people, and a feeling for piety leaven life.” It is to be seen at work in the outward existence of humankind “when human power over nature increases, when invention upon invention enriches life, when international communication is improved, the arts flourish, the sciences increase our understanding, the conveniences and joys of life multiply, all expressions of life become more vital and radiant, forms become more refined and the general image of life becomes more winsome (311).”

Kuyper believes in a doctrine of progress of a particular kind: “[T]he ongoing development of humanity is contained in the plan of God. It follows that the history of our race resulting from this development is not from Satan nor from man but from God and that those who reject and fail to appreciate this development deny the work of God in history (175).” It is not that humanity can never take a wrong turn, or that humanity’s fall into sin has not slowed down the process of realizing the potential of the created order; rather, a sovereign God can be counted upon ultimately to realize his good intentions for creation in the various spheres of human life and culture, and he does this through the insights of those outside his salvation as well as those within it.

Something like this confidence in God’s ultimate vindication of the world he has made may be underwriting Witte’s insistence that “rights should remain part of Christian moral, legal, and political discourse,” even in the face of the difficulties with rights talk that he forthrightly acknowledges (296). Kuyper sees a world in which human life involves centuries of “constant change, modification, [and] transformation in human life (174).” At the same time, unless human life is merely “an endless, unvarying repetition of the same things,” these developments must be directed toward something: “Though it pass through periods of deepening darkness, this change has to ignite ever more light, consistently enrich human life, and so bear the character of perpetual development from less to more, a progressively fuller unfolding of life (174).” Witte’s confident admonition toward Christian engagement in human rights discourse and advocacy may owe something to a Kuyperian faith in God’s sovereign action in the world.

Witte also seems to think that Christians have an important role to play in disciplining debate about human rights. Even though human beings “just know” something about the moral order because, whether they acknowledge it or not, the natural law is written on their hearts, Witte also argues that Christians have theoretical contributions to make. According to Witte, Protestant thought “avoids the limitless expansion of human rights claims by grounding [human rights] norms in the creation order, divine callings and covenant relationships (32).” Human rights’ origins stem from built-in features of the natural order like family, church, and state and the nature of the human person as one who has a distinct vocation of service to fulfill. Grounding human rights in these created structures helps identify principled limitations on the particular entitlements that may be passed off as human rights.Finally, like it or not, rights talk is the dominant mode of political discourse in the contemporary West. Jefferson Powell has argued persuasively that, as a practical matter, American society is unlikely to be rendered more just by abandoning its focus on rights. The American political community, Powell claims, is “constituted by the very individualism expressed in rights talk (85-86).” As a result, rights talk is the natural political vernacular of our political discourse and, thus, the natural vocabulary for expressing concerns about social justice and social peace. Witte’s argument appeals to something very much like Powell’s insight. The fact that rights imply correlative duties permits rights discourse to be seen as a conversation about what we owe to each other—that is, what it means to work out our love of God and neighbor in public.

Why Witte May Be Wrong

It is a signature of all Witte’s work that it celebrates human freedom as “a unique gift of God to all human creatures (11).” Witte cautions, though, that he “support[s] the positive law of rights and liberties today more out of utility than ideology. In my view,” Witte continues, “rights laws over time and across cultures have proved to be useful instruments to promote and protect the good life and the good society; to impose and enforce limits on the power of states, churches, and other authorities; and to enable and equip persons to carry out their vocations and duties to God, neighbor, and self (11).” These instruments, Witte contends, “have traditionally provided a forum and focus for subtle and sophisticated philosophical, theological, and political reflections on the common good and our common lives (41).” The recognition of rights and liberties in law emerged not in a laboratory or classroom but in the authoritative resolution of these reflections across the spectrum of human living, as Witte’s historical work shows in splendid detail:

acts become behaviors; behaviors become habits; habits yield customs; customs produce rules; rules beget statutes; statutes require procedures; procedures guide cases; statutes, procedures, and cases get systematized into codes; and all these forms of legality are eventually confirmed in national constitutions, if not in regional conventions and international covenants (11-12).

Acknowledging that this “bottom-up approach to [rights] sometimes produces blurrier lines of reasoning; more slippage between principles, precedents, and practices; [and] provisional and sometimes messier recommendations and prescriptions for church, state, and society,” Witte expresses the hope that “it also makes for an account and defense of human rights and religious freedom that is more realistic, rigorous, and resilient over time and perhaps even across cultures (12).” Resisting the claims and criticisms of philosophically and theologically motivated critics of human rights who “often have one or two key definitions or forms of rights in mind—sometimes with labels such [as] ‘natural,’ ‘universal,’ ‘human,’ ‘fundamental,’ or ‘unalienable,’ rights (12),” Witte criticizes such “lofty theoretical heights (12)” for losing sight of what “[w]e lawyers deal with [in] the routine corners and concerns of public and private life (11).”

On the ground where lawyers and legislators work, though, it is not only possible but characteristically human to ask about any assertion, “Is this true? Is this right? Or, when warranted, is this at least probably true, probably right?” The ability to answer “probably” precludes any excuse for trying not to answer at all, especially when laws of general applicability are being made on the basis of the answer.

On the Catholic understanding of the human person (articulated here by Bernard Lonergan)¹, “every person is an embodiment of natural right. Every person can reveal to any other his natural propensity to seek understanding, to judge reasonably, to evaluate fairly, to be open to friendship (170, 182).” So, unless and to the extent we interdict such questions, we can seek understanding by asking and answering the questions, “Do individuals (and groups) sometimes have rights that must be limited by government on the basis of government’s interests that are somehow inimical to those antecedent human rights? Or, instead, do individual (and group) rights, subjective rights, emerge only as determinations of justice ordered to the common good, such that any apparent conflict between government and the governed is only contingent (the result of incorrect understanding or judgment) and not intrinsic and necessary (as it was for Holmes)?”

Witte denies that “rights constitute a freestanding system of morality” and denies also that they “render Christian moral and religious teachings superfluous,” contending instead that “human rights are ‘middle axioms’ of political discourse. They are a means to the ends of justice and the common good (300).” The italicized terms bring Witte’s approach within the broad rhetorical ambit of the classical approach, and on the classical understanding, as we have seen, the common good was the flourishing of a political community and itself the individual’s highest interest, and as such provided the criterion for determining subjective rights. On the competing modern understanding, by contrast, the common good amounts to no more than an aggregation of individual interests, and as such is not available in advance to determine subjective rights. Subjective rights, on this understanding, are free agents of a sort, unordered to the common good, and law is just their unassuming instrument (29). Which of these two is Witte’s understanding?

Although Witte laments “the libertarian accents that still too often dominate our rights talk today (111),” and asserts² that “[w]e need not accept the seemingly infinite expansion of human rights discourse and demands (343),” what remains programmatically unclear in Witte’s work is the criterion (or criteria) of judgment being brought to bear to justify excluding some rights claims from legal vindication. The closest he seems to come to an answer leaves a hole—to be filled in, but by whom?—in the center: “[T]he norms that rights instantiate depend upon the visions and values of human communities for their content and coherence—or, what the Catholic philosopher Jacques Maritain described as ‘the scale of values governing [their] exercise and concrete manifestation (300).’” Is it enough that the resulting legal apparatus be in “dialectical harmony (5)” with its informing sources? As Stuart Hampshire observed, the age’s dominant political liberalism, largely accepted by Witte, tends to admit as reasonable and harmonious only what is judged to be so by the standards of liberalism itself (168).

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As a Christian, . . . Witte knows that the highest ideal is not doing justice by enforcing rights, however that might look, and so Witte’s rights talk, as he repeatedly acknowledges, is only penultimate as it leaves room (in Noonan’s expression) for “Augustine’s sublime fusion in which … justice is defined as ‘love serving only the one loved (xx),’” perhaps in terms of friendship, a concept never thematized in Witte’s work. Openness to friendship was one aspect of the natural right of which Lonergan said “every person is an embodiment.”

From “Uses” and “Rights” to Friendship?

In asking whether the Old Law contains moral precepts, Thomas Aquinas answers, in language we quoted in part in the introduction, that “just as the principal intention of human law is to create friendship between man and man, so the chief intention of the Divine law is to establish man in friendship with God (I-II, q.99, a.2).” For Thomas, friendship is an analogical term, and the sort of friendship he has in mind for human law to establish is civic friendship, about which Aristotle wrote, “It also seems that friendship holds cities together and that legislators take it more seriously than justice (1155a).” Aquinas does not say very much about civic friendship, but it seems to occupy a place not far removed from his account of the common good³. In speaking of friendship, Thomas may be personalizing the common good and (110, 122), perhaps, opening up space for an account of the common good that is more hospitable to a discourse of rights (1, 16-24).

If Catholics sometimes feel a visceral aversion to the individualism of rights talk, Protestants may experience similar feelings of aversion to the collectivist overtones of common-good talk, especially given their emphasis on human fallenness. Introducing the notion of friendship may provide some space for common ground. Colin Gunton has written that freedom is “something we confer … on each other by the manner of our bearing to one another (64).” Presumably it is the gift of not expecting that every action any one person takes will be for the (perceived) benefit of every other person; there need not be congruence at every moment between individual action and the interest of the group; common-goodism is not collectivism. Friendship includes the conferral of a zone of independence and freedom within which to respond to one’s own understanding of who God is calling one to be. As we know from personal experience, the respect that friends show to each other includes the grant of this sort of freedom.

Law, including legal rights, is at least in part about establishing this sort of freedom. Law is modest in its ambitions because lawgivers and judges cannot read the hearts of their fellow citizens, because lawgivers and judges are also fallen creatures, because laws must be calibrated to the moral capacities of the communities they govern, and so on. Civic friendship is reinforced when citizens are appropriately protected from oppression and wrongdoing (297-98), when there is general public order, and when citizens are left to live “each man under his own vine and his own fig tree⁴.” The Catholic, more than the Protestant, will characteristically affirm that it is of the essence of friendship that the friend desires and seeks the good of the other, including in and through the political order, though subject to various side constraints, such as subsidiarity (198, 230-33).

Even just in finding ways to talk together about law, rights, community, and God, as Witte has magisterially invited us to do, we are engaged in what Witte’s mentor, Harold Berman, called “communification,” the working out of sympathetic bonds of community through mutual understanding of our sameness and similarity amid difference (16). And that process of communification, in which each person can show himself or herself open to friendship, is one in which we can discover that we are one another’s equals. Our attentiveness to human equality (60-61), an attentiveness (XXIII) that runs through Witte’s work (33), provides in turn an opportunity to recognize that goods, sometimes vindicated in law through rights claims, are “realizable as much in the lives of other human beings as in my own life (48).” ♦

Patrick McKinley Brennan joined the Villanova faculty in 2004 as the inaugural holder of the John F. Scarpa Chair in Catholic Legal Studies, following eight years at Arizona State University’s Sandra Day O’Connor College of Law where he was professor of law and vice dean.

William S. Brewbaker III is Dean and Professor of Law at the University of Alabama School of Law.

Recommended Citation

Brennan, Patrick McKinley & Brewbaker III, William S. “Can Laws and Rights Teach? John Witte and the Uses of the Law.” Canopy Forum, August 13, 2024. https://canopyforum.org/2024/08/13/can-laws-and-rights-teach-john-witte-and-the-uses-of-the-law/

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