Law, Higher Law, and Human Making

William S. Brewbaker, University of Alabama

Abstract

This paper examines what Christian theology teaches about the nature of human creative activity, and asks whether there might be anything to be learned about "making" human law on the basis of that investigation. I do not contend that "making" is the best metaphor for what

human judges and legislators do. Nevertheless, there is a sense in which judges and legislators are "making" law, so the question seems worth asking.

Rather than attempt to survey and synthesize multiple theological accounts of human making, I have chosen to focus on just one Dorothy Sayers' The Mind of the Maker-- and this, in part, because Sayers' Thomistic account is highly suggestive as to the role higher law might play in the human activity of judging.

Sayers argues that the human creative act has a trinitarian structure that includes 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 capacity to influence the human person and the community's public context (Spirit).

Sayers' Idea the concept of the whole, finished work that regulates human creative energy forms an obvious analogy with what classical legal theory calls "the law." However, the concept also contains an obvious disanalogy in the legal context multiple authorship. One obvious solution to this dilemma is to posit divine authorship of "the law" in the form of natural law. Sayers' account is suggestive, however, of a different approach-- a culture-relative version of "the law" that might exert a regulative influence on judicial decision making.

The concept of the Energy, or Activity, draws attention to the medium of law and the craft of legal decision making. Finally, attention to a work's Power the fact of its encounter with human beings in a public context helps explain how laws can fail when they run afoul of higher

facts when they are unworkable with respect to the conditions they seek to regulate or sit uneasily with other existing law or are opposed by public opinion. Laws may also have effects not envisioned by their human makers, as they are appropriated or even distorted by other people.

Reception of the legal work is also critical as to whether the law will be obeyed and, if so, whether that obedience will be free or merely coerced.