Bradley Shingleton’s excellent Modern Protestantism and Positive Law: The Contours of a Continental Theological Tradition introduces anglophone audiences to the theological and ethical reflections on law of eight German and Swiss Protestant theologians: Karl Barth, Emil Brunner, Jacques Ellul, Erik Wolf, Helmut Thielicke, Wolfhart Pannenberg, Wolfgang Huber, and Hartmut Kreß. Some of these thinkers—Barth, Brunner, Ellul, Thielicke, and Pannenberg—will be familiar in some degree to anglophone scholars interested in law, ethics, and theology, while others whose works appear mostly in German will be less well known.
Shingleton focuses on major works by each of these theologians regarding the legitimacy, nature, and purpose of positive law. His main purpose in the body of the book is descriptive. This seems somewhat limiting, but it serves an essential purpose, first in pointing the reader to specific works of some of the better-known and prolific writers on his list (for example, Barth), and second in summarizing works that are less accessible to an Anglo-American audience. But Shingleton also provides some framing thoughts in his introductory and concluding sections.
One of the important questions addressed by each of the thinkers Shingleton surveys is whether there is a natural law accessible to any person through the exercise of reason. In reviewing the book, I focus on this aspect of Shingleton’s work both because it provides a kind of proxy for other loci—such as the relationship between law and justice—and because it reveals interesting trajectories in how these German and Swiss writers considered the question of legal positivism in the post-Nazi era. Scholars in the American context tend to focus on the postwar Hart-Fuller debate about positivism and natural law and perhaps on debates about the “new” natural law theory and its application to American constitutional law and culture-war issues. It is helpful to deepen our perspectives through these continental sources whose encounter with fascism and its aftermath was more direct. It is also helpful to engage with meta-questions about the sources of law from a philosophical and theological context outside the Anglo-American analytic mode, including from the broad stream of Continental Protestant thought.
As expected, these Continental Protestant thinkers tend to be chary about natural law. This is of course true for the first theologian on Shingleton’s list, Karl Barth. Barth’s nein! to natural theology is well known, not least through his debates with Shingleton’s second thinker, Emil Brunner. As Shingleton notes, however, Barth’s rejection of natural theology and natural law was qualified and at times ambiguous across the vast corpus of Barth’s writings. While Barth wanted to resist any notion that the church should control positive law through some supposedly clearer insights into natural law, he also suggested that there is a kind of analogy or correspondence between divine and human law. Brunner affirmed an idea of natural theology and natural law, but consistent with his Protestant orientation, resisted the kind of rationalistic view of natural law that developed after Hugo Grotius suggested natural law could be studied even if God did not exist.
Ellul’s view of natural law was perhaps even more negative than Barth’s. We might see here Ellul’s debt to Kierkegaard alongside his debt to Barth. For Ellul, Christ, not nature, is the ground of law and ethics, and so efforts to derive precepts of law and ethics from nature will result in selfish distortions. But Ellul also recognized that some general principles about the rule of law—its nonarbitrary authority and content—do provide a shared philosophical foundation for positive law. In Shingleton’s judgment, then, Ellul did recognize “a kind of natural law dimension to all human law” (100).
Thielicke’s view of natural law, as Shingleton recounts it, seems closer to Brunner’s than to Barth’s. But, as Shingleton notes, Thielicke directly distinguished his view from some forms of Roman Catholic natural law theory because he believed the content of suum cuique varies circumstantially in the presently fallen order of being. Pannenberg, somewhat like Thielicke, also thought the content of natural law must vary in history, but Pannenberg’s view—consistent with the role of history in his theology generally—seemed to render the possibility of human discernment and use of natural law even more radically contingent than Thielicke. Indeed, Shingleton suggests, Pannenberg thought natural law of no practical use in modern secular society.
Wolf, Huber, and Kreß, the thinkers surveyed by Shingleton who are less accessible to anglophone audiences, suggest a trajectory further away from natural law concepts and toward a more pluralistic vision with an emphasis on neighbor love. Wolf’s position in this regard is interesting not least because of his ambiguous relationship with National Socialism and the legal philosophy of Carl Schmitt (127). For Wolf, building both on Barth’s emphasis on revelation and Kierkegaard’s emphasis on the infinite difference between the human and the divine, the basis for reflection on law is the directives of scripture, which center on love of neighbor. Huber, writing in the 1980s to early 2000s, is more solicitous toward some forms of legal positivism and rejects natural law theory. But Huber continues to insist that law must possess some basis other than mere power—in Huber’s case, a basis in communal relationships grounded in love. Kreß, writing after 2010, is covered by Shingleton in a brief postscript. Reflecting his contemporary concerns, including Germany’s contested place as a haven for Muslim refugees, Kreß emphasizes pluralism and neutrally accessible terms, and shies away both from universalistic concepts of natural law and particularistic theologies of law based on Christology or Christian revelation.
In his final chapter, “Toward a Conclusion,” Shingleton summarizes and synthesizes the common themes addressed by each thinker. While this section is helpful, Shingleton assumes that the conclusions he draws are useful to an Anglophone audience only insofar as they satisfy a Rawlsian “duty of civility” to advance only supposedly neutrally accessible public reasons in the public square (242). I find this quite perplexing.
Why should anyone interested in Christian theologies of law feel bound by Rawls’s presumed duty to set aside the only basis—if most of these Protestant thinkers have anything to say about it—for relating positive law, ethics, and justice? If there is anything Protestant legal theory should teach—from the magisterial and radical reformations, through Barth’s response to nineteenth- and twentieth-century Protestant liberalism, into Barth’s heirs and respondents such as Brunner, Ellul, Thielicke, and Pannenberg—it is that Christ, revelation, and salvation history cannot be set aside in favor of a presumptively neutral form of reason.
The poverty of any claim to neutral knowledge or speech, of course, has not gone unremarked in Anglo-American philosophy and theology. The linguistic turn in analytic philosophy is reflected in important anglophone theologians such as Stanley Hauerwas and John Milbank. Even on the Roman Catholic side, which still tends to afford greater prominence to human reason and natural law than most Protestants would like, the nouvelle theologie’s rejection of neo-Thomism’s separation between nature and supernature continues to inform both Anglophone and Continental theologians and philosophers.
Shingleton’s greatest contribution in this volume is to demonstrate that Protestant thought about law and justice, at its most robust, cannot accept Rawls’s ultimately uncivil demand that religious people must strip off their core modes of thought and speech in order to participate in civil discourse. While the Barmen Declaration, drafted primarily by Barth, made clear that the state is not the church and the church is not the state, it first insisted that “We repudiate the false teaching that there are areas of our life in which we belong not to Jesus Christ but another lord, areas in which we do not need justification and sanctification through him.”Footnote 1
In his essays “Gospel and Law” and “Church and State,” which Shingleton discusses, Barth employs his dialectal method to illuminate the Pauline treatment of the law and of the ekklesia’s civil obligations in a way that echoes through today’s apocalyptic readings of Paul. In “Gospel and Law,” Barth states that “if we are dealing with our pretended obedience to the Law for our self-justification—natural law, or an abstract ‘reason,’ or history, or, in these recent troubled times, the ‘Volksnomoi’ (people’s laws),” we engage in a sinful deception.Footnote 2 If we fail to understand that Christ is the goal of the law, Barth said, we “will vacillate unsteadily between a nomianism which believes it should submit to these or those observances and disciplines, and an antinomianism of pure inwardness, averse to every concrete command and tie.”Footnote 3 In “Church and State,” Barth notes that the New Testament speaks of the state “in the Christological sphere,” which reveals that the true and final political order is in the Kingdom of God.Footnote 4 Although church and state must remain separate until the kingdom fully comes, Barth says, “the problem of the State, namely, the problem of law, is raised, and must be answered, within the sphere of the Church on Earth.”Footnote 5
Shingleton seems to reject Barth’s claim in favor of the movement of other Protestant thinkers he surveys toward more general concepts of law and justice that can and must be communicated in neutral language. But even here, perhaps the later thinkers covered in Shingleton’s book, particularly Wolf and Huber, suggest a related path forward. Wolf and Huber, as Shingleton summarizes them, emphasize the relational dimensions of human existence, within a Christian conception of the imago Dei and the law of love. This relational emphasis also resonates in some contemporary political theologies—for example, in the relational trinitarians and Jürgen Moltmann. A synthesis of contemporary apocalyptic and relational political theologies with law as a hinge could draw on Shingleton’s work.
But as “toward” in the title of Shingleton’s final chapter suggests, his primary work in this book, exceedingly well executed, is to bring these modern Protestant voices to light for new audiences. Any scholar interested in how recent political theology might evaluate the problem of law will benefit greatly from Shingleton’s work.
