Ministers of the Law: A Natural Law Theory of Legal Authority – By Jean Porter

Ministers of the Law: A Natural Law Theory of Legal Authority by Jean Porter ( Grand Rapids, MI : Wm. B. Eerdmans Publishing Company , 2010 ), xvi + 368 pp . Ministers of Law is an impressive work that traverses both time and discipline. Engaging medieval scholastics and modern legal theorists, and posing questions drawing upon legal and political philosophy, Porter presents a jurisprudence of natural law framed by the concept of authority. While she identifies her principal readership as a Christian one, the book offers important interventions that will appeal to those interested in the fields of law and religion generally, and legal philosophy in particular. Admittedly, those unfamiliar with late twentieth-century debates in legal philosophy will find the book tough going. Readers familiar with those debates and mindful of the increasing presence of religion in the public sphere will appreciate the sustained and deeply enriching dialogue Porter has with both modern legal philosophers and medieval scholastic natural law jurists. Perhaps the first question to ask is who are the “ministers of law”? The title is important because it captures the scope of the theoretical intervention Porter intends to make. Porter's monograph on natural law is not a historical reflection on scholastic natural law. Instead, her natural law jurisprudence is a “constructive theory of law, responsive to contemporary exigencies of legislation and judicial interpretation, particularly as these are experienced in the Anglophone societies” with which she is most familiar (p. 5). The reference to legislators, judges, and their contemporary roles gestures at the scope of Porter's jurisprudence—a scope that views as lawmaker not only judges but also legislators, both of whom sit in different but inter-related offices in a modern state. Far from being a jurisprudence of judicial interpretation or legislative law-making, Porter's jurisprudence of natural law aims at nothing short of the modern state, composed of various institutions (judicial, legislative, regulatory and so on), in which officials (i.e. the ministers of law) are charged with the responsibility of developing, interpreting, and applying laws on the body politic. Porter's natural law jurisprudence is constructed in part by taking a robust account of the complexities of legal decision-making in the modern state. With the modern state as her starting point, Porter proffers a jurisprudence of natural law that recognizes that law is embedded in a political context or society that structures and bounds the scope of law making and legal interpretation. She writes: “the ground and proper function of legal authority cannot be separated from its place within ongoing processes of communal deliberation and decision-making through which the community exercises authority at the most fundamental level” (p. 145). Her natural law jurisprudence, therefore, lies at the intersection of the legal and the political. For that reason alone, her account offers an important and provocative contribution to the jurisprudence of natural law at a time when the law itself is stratified and disaggregated in an increasingly administrative state. To traverse both legal and political philosophy complicates a jurisprudence of natural law in one particularly important fashion. To situate a natural law jurisprudence in the context of the modern state is immediately to raise questions about the nature of authority and its potential to undermine a robust commitment to natural law as such. Porter knows that for many, natural law and authority may be viewed as uneasy bedfellows. Their juxtaposition raises to the surface what she calls the “paradox” of authority. The paradox is that authority may so impose itself upon the individual (coercively or otherwise) as to preclude the possibility of a robust commitment to reasoned deliberation, to personal autonomy, or to a perfected divine law, all of which seem to undergird accounts of natural law (pp. 3, 4, 34). Porter looks to the work of Joseph Raz to argue, instead, that legal authority is far from an impediment to natural law; rather legal authority itself is a natural relationship without which the individual in society is vulnerable to undue impediments to his or her autonomy and freedom. Relying on Raz, Porter argues that obedience to authority is not by itself an irrational act. There are many reasons why obedience to an authority is intelligible and indeed quite reasonable, assuming of course that those in authority act responsibly. The idea of responsibility, though, assumes a restraint on the scope of action of those in authority. That check or restraint contributes to the rationality of legal authority, which is, for Porter, grounded in the purposes that legal authority serves (p. 39). Drawing upon the scholastic tradition of natural law and its implications for the scope of political authority, Porter argues that the purpose of such authority is to “promote the well-being of its subjects precisely as rational agents . . . in the still more fundamental sense of maintaining forms of social life that provide the necessary context for an individual's development and sustained functioning as a rational agent” (p. 49). A system of law and legal authority that is bound by this telos provides the necessary conditions to render legal authority “as a kind of natural relation”, and thereby overcome the paradox that authority might otherwise pose to a natural law jurisprudence. Importantly, if the naturalness of legal authority is dependent upon a purposive account, it is an account that cannot ignore the political context in which a legal system is embedded. This follows in large part because of the way in which the purposive account of legal authority draws upon and preserves a “specific complex of ideals, values and commitments that bestows cohesion on a community through generating a shared culture and a way of life” (p. 143, emphasis added). For Porter, legal authority is the handmaiden of political authority; it is derivative of political authority, which is itself a natural relationship between individuals. Porter outlines the framework as follows: legal authority is derivative, insofar as it rests on a more fundamental form of natural authority, namely the authority of a community over its individual members. The authority of the community, in turn, rests on its necessary role in specifying natural principles of judgment and choice, in and through spontaneous social processes giving rise to a language, a structure of background beliefs and assumptions, shared ideals, commitments, and a rough consensus on the boundaries of behaviour, all jointly constituting the conceptual framework necessary for any developed rational thought (p. 144). Just as in the case of legal authority, political authority need not pose a paradox for a natural law jurisprudence, as long as it is understood as purposive in design. For Porter, that purpose operates as a check and restraint on the political authority, and thereby the legal authority, and is meant to emphasize the wellbeing of those subject to the law. In the case of legal authority, the purpose was directed to the fulfillment of the individual. That fulfillment is further refined in Porter's discussion of the common good, which is the telos of political authority and a key feature of individual happiness (p. 163). The discussion of the common good reveals still further Porter's conception of the natural law and its relationship to community and political authority. A key feature to Porter's natural law jurisprudence is the degree to which relationships of authority are both necessary and natural in large part because of the indeterminacy that lies at the heart of Porter's view of natural law (p. 81). For Porter, it would be a mistake to presume natural law jurisprudence to provide formal or precise enactments. This mistaken view of natural law is implausible for two reasons. First, no one has access to God's knowledge, and second, scholastic natural law jurists did not consider the natural law to consist of specific precepts. Rather, “they identified the natural law in the primary sense with capacities or general principles for rational judgment, which must be exercised or specified in more or less contingent ways in order to be practically effective” (p. 61). To view natural law as general, abstract, and open to interpretation makes possible a rich jurisprudential discussion on the following: issues of legal authority (chapter 1); the conventions that ministers of the law draw upon when interpreting and enacting new laws for a community (pp. 114–129); the relationship of those conventions to a shared vision of the common good that informs and restrains how ministers officiate over the law (pp. 146–166); and the modes by which that community is regulated and structured through insitutions of law, which manifest relationships of authority (chapter 4) Given the limits of space, this review cannot address various lines of inquiry that Porter pursues throughout her study. In short, Ministers of Law is a sophisticated contribution to the study of natural law and jurisprudence. Its provocative quality rests in how it models an engaged deliberation about the contribution of religious thought to an increasingly pluralistic public sphere.

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