Law, Higher Law and Human Making
William S. Brewbaker
University of Alabama - School of Law
36 Pepperdine Law Review 581 (2009)
U of Alabama Public Law Research Paper No. 1301726
This paper is a preliminary investigation of what Christian theology might teach us about the nature of human creative activity and its relationship to judging and lawmaking. Rather than attempt to survey and synthesize multiple theological accounts of human making, it focuses on just one - Dorothy Sayers' The Mind of the Maker. The foundational analogy that drives Sayers' account of human creativity is the relation between God's creative activity and that of human beings made in his image. Sayers argues that human creative activity has a trinitarian structure, which she identifies as Idea, Energy and Power. These three elements correspond roughly to (i) the whole Idea of the work in the mind of the artist, with reference to which the creative activity is carried out (Father), (ii) the creative Activity that makes the work incarnate (Son) and (iii) the work's Power to influence the human person and the community's public context (Spirit).
Sayers' account suggests an alternative to simple affirmations that law is either found or made. There may well be in a society a normative institution that we might call The Law - an accretion of cultural artifacts that form the context of public action, reflecting a community's values and particular circumstances - or at least those of its ruling elites or groups, as well as its rules, its legal traditions, and, in an incomplete way, the general loves and commitments of the community. While one might presume, on the basis of the Christian revelation, that there will always be some connection at some points with moral truth, there is no reason to presume that such a connection necessarily exists all the way down, or even very much of the way down, the chain of legal particularities. Yet it would seem to be undeniable that a community's traditions - though they themselves are shifting and changing - exert a remarkable pull in particular and identifiable directions at any given time. This pull may be strong enough that it is possible for judges to declare The Law, with the attendant goods of stability, predictability, consonance with existing social norms, etc. without equating The Law with transcendent moral truth.
Number of Pages in PDF File: 24
Keywords: Natural Law, Higher Law, Declaratory Theory, Aesthetics, Dorothy Sayers, christian legal thought
Date posted: November 17, 2008 ; Last revised: November 10, 2012