This is the final of my 5 planned "book reports". I may write more reports for my blog later, but I am not presently planning it.

I've been putting "book report" and "report" in quotes in most of these posts, because they aren't really reports on the contents of the book, so much as targeted analysis against a predefined research question. They're more like threat assessments of Natural Law Theory advocacy against Lancastrian Theonomy. As it turns out (and as I've noted in the reports), it seems hardly any Christian Natural Law theorist has even considered the question about whether we're morally permitted to legislate at all. 

This last "report" is unique, because the author does make an attempt at this very question. I tried to include, in my report, as much material as I could find from the book which was relevant to this specific argument from McCall. Concerning the attempt itself, McCall's verbosity makes it difficult for me to tell whether or not it was half-hearted (which would be a charitable assumption, since he had practically no enemies for this argument, and may have been breaking new ground).

Before I drop the post, however, I promised a story. Basically, I took some self-report tests for autism and scored pretty high, with exceptionally high masking. I got a good score on the RMET, but also took an above average amount of time to complete it, corroborating well-trained masking as a hypothesis. So, to find out more, I joined a forum for autistic people who were researching their symptoms. The forum was welcoming, and the people there accepted me with much warmth. They were clearly all struggling with legitimate personal-life things and benefitted from the warmth and encouragement themselves. They openly posted about their lives, and pushed one another to better themselves, and expressed concern for one another in all kinds of situations. I also did a bit of posting about myself and my situation, and being rather benign and wholesome, I quickly gained a good reputation and was invited into restricted forum areas for the inner circle of participants, and I began to grow quite fond of some of the people there. 

Then the daily Q came out for people to talk about an "issue" that they're passionate about. Well, I knew there were a lot of LGBT people there, but I went ahead and explained a brief history of Theonomy, mentioned that I am in the Lancastrian camp, and outlined my "issue" in terms of my rejection of Christian Nationalism and Natural Law Theory. I made a point of including much by way of caveat and reaffirmation of my sincere affection for the whole group there, in spite of my disagreement with their LGBT-ness, but I also did not hold back any of the harshness of my position, in fact going out of my way to make myself look worse, for the sake of transparency, so that they would have no grounds for suggesting that I am being disingenuous (as one of them did attempt, but was rebutted effectively). They acknowledged the gentleness of my presentation, but let me know that my position was inherently hateful and could not be reconciled to them. A moderator in the group, one of whom I had grown especially fond, messaged me to let me know that I would not be permitted to stay because of my views. I thanked this person and said I understood (in a one or two-sentence message), and then they kicked me and blocked me, cutting off all future contact.

This occurred several weeks ago. The incident struck a major blow to my emotional state at the time, so much that my wife asked me to tell her about why I was looking bummed. Her home-cooked meal and kind expression brightened by spirits substantially, though -- she really knows how to encourage me. I have experienced rejection before, but not from a community so warm. I talk to right-wing extremists for the very purpose of dialoguing with people I disagree with. In the TQA forum we have occasionally had extreme left-wing individuals join (and usually quickly leave), and they have consistently made a point of DMing me to inform me that I was the one person in the server who made them feel most welcome. I should note that the banter which came to them from other members of the server (which led to their leaving) was no more harsh than what playful mistreatment is directed toward every member of the server at all times. (I usually don't engage in that kind of banter because I am bad at it.) I am happy to dialogue with people both on the extreme right and extreme left. I think the extreme left, however, is allergic to the extreme right, and can't share a friendly space with them, and that makes me very sad -- but not as sad as losing contact with that friendly, LGBT, autistic moderator.

At any rate, I'm pleased to report that I'm most likely not autistic. I think I'm probably just a nerd.

Here's the book report.

Book report on Architecture of Law by McCall

I'm going to focus on "Chapter 7 -- Appointing a foreman", because it's singularly relevant to my aims. The introduction really had me excited:

> This chapter makes the stronger claim that legal authority can be justified and not simply assumed.

Great!

> the architecture onto which human law is layered justifies legal authority. The authority of human laws can be justified and explained only in light of the eternal and natural law.

> ...

> To hold authority involves more than merely repeating the content of a preexisting obligation for the purpose of clarifying and publicizing its content (although those possessing authority may do this). The strongest form of the concept of authority involves a power to legitimately bring obligations into existence by choosing to enact particular laws. This strong form of authority will be defined, delineated, and defended in this chapter.

This is right in line with what I want him to justify for me. Not just authority that repeats and enforces God's edicts, but human authority that is capable of binding the conscience with new laws. He mentions "eternal law" as (at least part) of the "light" in which authority is justified and explained, so I expect something defensibly Christian (aka Biblical).

However, I'm not 100% sure that this definition of human authority (or human law) is fully aligned with Natural Law Theory proper. He later restates the exercise of authority as an act to "change the normative position of another by determining what is good for him in a particular circumstance when good can be done in two or more morally ambivalent ways". I question whether that position can be held consistently -- how can enforcement of a "morally ambivalent" activity be done without negative moral implications (tyranny)?

He proposes to solve this problem later by saying "Authority is thus more than a necessary evil instituted after the loss of original justice; ordered determination by an authority predates destruction of the natural law in us.", and “authorities make laws that directly or indirectly affect the common good.”. So that redirection of normativity is simply a good thing for governments to do where it may, directly or indirectly, cause people to conform to natural law, and should have existed in the fabric of nature. This idea *would be* consistent with NLT's framing of civil law as a discovery of natural law, except that the contents of these penlogically enforced legislative acts are simply directives that "change through legal authority people's normative position" under "morally ambivilent" circumstances in order to compel them "indirectly" to conform with natural law, and so have nothing directly to do with natural law in either their explicit formulation or the activities they prohibit.

How can the compulsory prohibition of a morally neutral activity be just? God created all things good, so morally ambivalent activities are good, and so I think the above position conflicts with *lex injusta non est lex*, which he later upholds, and also "woe to those who call good evil and evil good".

Later on he says:

> This power to determine human law involves both the rational and volitional powers. Since human law is a further specification of the natural law, which can be known by the use of reason, the process must be reasonable.

...which brings him right back into line with NLT proper. He says he'll clarify in chapter 8. 

### Digression to Chapter 8

In chapter 8, he talks broadly about proportionality, and then says:

> Human authorities are not vested with the power to make general principles of law, which are already contained in the natural law. The authority vested in human lawmakers is restricted solely to the articulation of general precepts of natural law and their determination for the particular community. ... Thus a just law must have as its proximate end the common good of the society and as its ultimate end the ultimate common good of all men as fixed by the eternal law. ... What distinguishes law from coercive violence? The answer is that the law is a just law; a violent command is not. ... "How is one to distinguish between the two cases? As to the first, laws that induce “anything else contrary to the divine law," such as idolatry, it is not legally permitted in any manner to obey them ... If obeying the human law would lead (induce) one to violate a precept of the divine or natural law, it must be refused.

Basically, the way you tell the difference between good and bad authority/law is: if it doesn't break a higher law (natural or divine), and if it serves the common good. That is to say, it can't contradict the commands in scripture.

He also talks about a third category of unjust laws that don't break higher laws:

> The circumstance of an unjust law that does not necessitate violation of a higher law when conforming to the unjust command is certainly a more complicated situation. It involves a prudential judgment as to the proper course of action because justified disobedience is permitted but not required. The touchstone of the judgment is the obligation under natural law to orient actions to the common good.

Those, he says, are known by prudence.

After spending some time discussing "the heart of Hart’s confusion" (lol), he goes on to say that there are two kinds of tolerable laws:

> Human legal authority is thus limited to two types of action: (1) the restraint of personal choices contrary to precepts of natural law, and thus incapable of orientation to the common good; and (2) the direction of the mode of execution of individual choices that are valid determinations of natural law precepts so that the mode of execution furthers the common good.

Basically, a good law can prohibit violations of natural law, or it can prohibit behaviors which don't violate natural law but which conflict with the "common good".

This approaches my questions about morally obligatory penal codes restricting morally ambivalent behaviors. The short answer to my question about legislation concerning morally ambivalent behavior is: "the common good serves as a limiting principle on the power to make legal determinations."

He continues, differentiating between prudent and imprudent laws...

> A law may be imprudent without violating the natural or divine law. Returning to the traffic example, a legislator may wrongly choose the right side of the road to direct traffic flow. He may wrongly believe that the right side is a better choice from an aesthetic and efficiency point of view. Yet, not being the best prudential decision does not invalidate the law.

He concludes that judges can ignore laws that break higher laws, but they should "tolerate" imprudent laws.

It seems to me that, if divine law is an application of natural law, then the discussion here really needs more attention to Deut 4:2 and 12:32. I haven't yet encountered a reasonable non-SGE interpretation of that statute -- people either (a) make it ridiculous ("don't add or subtract laws while pretending I told you to do it"), (b) obey only half of it ("add laws as long as you don't contradict my laws" i.e. "add but don't subtract"), or (c) brush it off carelessly ("Deut 4:2 is positive law"). If we want to lump that law into the "morally ambivalent" category, "prohibitions on behaviors contrary to the common good" (this is (c)), then how in the world do we find that distinction in scripture? We don't; the only way is to decide what God's law is allowed to say prior to reading it, and for NLT, God's law isn't allowed to say that God's law is complete and universal, because that wouldn't leave room for NLT, and so when God's law says Deut 4:2 and 12:32, it ***must*** be construed in a way that makes it irrelevant to us, but Christians need to see relevance in scripture, so they make it relevant to us by assigning a purely didactic teleology to divine law's relationship to us, and then basically using (a) to explain why that teleology matters ("Deut 4:2 is there because God didn't want Israel to mess up his universally helpful teaching book").

The TLDR for chapter 8 is: "good laws are good for the common good; bad laws are bad for the common bad. You'll know which is which by discovering natural law, exercising prudence, and reading the Bible." 

### End of digression to Chapter 8

Anyway back to chapter 7, these are the 5 criteria he uses to evaluate the success of theories of authority:

> To justify the conclusion that there is, within a given legal system, a general obligation to obey the law, the supporting argument or arguments must, according to Green, show that this obligation is (i) a moral reason for action; (ii) a content-independent reason for action, meaning a reason to do as the state directs because the state directs it and not because its directives have a certain content; (iii) a binding or mandatory reason for action, as opposed to a reason which simply happens to outweigh other relevant reasons; (iv) a particular reason for action, meaning a reason that arises only for the directives of a citizen’s (or subject’s) own state, and not for the directives of other states; and, finally, (v) a universal reason for action, in the double sense that it binds all of a state’s citizens to all of that state’s laws.

I'm not sure I actually agree with this criteria... as I think a word from God is enough without all that demonstration, while all that demonstration without a word from God is impossible (on criteria 1). As a side note, using the itemizations in my own work, here's how SGE measures up to his list:

(i) corresponds to VI.2.g

(ii) corresponds to VI.2.a

(iii) corresponds maybe to VI.2.f and g

(iv) corresponds to VI.1 or VI.2.f, h, and i

(v) corresponds to VI.2.e and c

I'm not suggesting that the Bible can be seriously subject to this kind of evaluation, nor that SGE without all of its stated covenantal defenses can be shoehorned into this kind of critique. It was just a bit of fun.

After this, he evaluates consent/contract theories, and finds them inadequate on the basis that consent is transient and partial in large and multi-generational groups, while laws are universally binding and persistent.

Then he addresses Utilitarianism, criticizing it on all of the obvious bases. For example, that a law imposed on the basis of utilitarianism implies an obligation to disobey the same law wherever it lacks utility. In short, it fails (ii), (iii), and (v). He spends quite a bit of text on this.

A problem I perceive in philosophical moral/civil arguments is that mental-gymnastics can be a legitimately winning move *if* none of the laws acknowledged by society's current "rule of recognition" for philosophical discourse are broken. Someone who's good with words could probably rationalize ways in which utilitarianism and consent/contract theories meet all of the above criteria, or they could just reject the criteria. For a utilitarian, what good is a moral obligation apart from the very premise of utilitarianism anyway? All that said, I basically agree with the practical issues he identifies in the above systems, but again I'm not sure whether his 5 criteria for theoretical success are real.

That's it for offense. Let's see if he does more than mere artistry in his defense:

He starts with ontology, and serves dessert first:

> The natural law justification of authority can be summed up in the old saying: “All authority comes from God.”...Authority comes from God only, and all authorities that hold sway are of his ordinance.”

And after some iteration on that topic, the moment I've been waiting for! His thesis on the justification for human authority:

> The eternal law is the only law that is an uncaused cause since the eternal law is nothing other than the divine wisdom ordering the universe. The eternal law legislates the ends of things, including legal authority and human law. If we can find authority legislated into the eternal law, we will have found a source from which all subsequent authority can be derived. Yet, as we showed in chapter 4, we come to know the content of the eternal law not directly but through our participation in the eternal law, or through the natural law. Likewise, we encounter the natural law not solely in the abstract but through the developing customary history of real political communities. Thus, by dialectically examining the authority exercised in actual historically developing communities, we can find the origin of authority in the eternal law.

[page 289-290]

Here is the flow:

1. Human authority [to legislate normative changes as defined above] is legislated into eternal law
2. The content of eternal law is known through participation in it via natural law
3. natural law is encountered through the developing customary history of real political communities
4. Most real historical political communities had legislators

C: We know from examination of historic communities that human legislators are everywhere, so they are founded in natural law (4,3), so they are eternal law (2,1)

(Chapters 4 and 6 develop P3 from Romans 2 and some practical observations about group survival)

He goes on:

> Aquinas begins his consideration of sovereign authority by considering man’s ends. In doing so he begins with the eternal and natural law. As we discussed in chapter 2, the eternal law establishes the ends of man’s nature. Those ends become known through the natural inclinations, which direct man.

Is this compatible with the method he proposed earlier for discovering normative principles from natural law?

> (1) counsel, (2) equity, (3) the nurturing of good habits, and (4) the advice and example of a good man

Are pagan kings in category (1) or (4)?

He flows this into a larger teleological justification:

> Man is meant to live in a society. Since a community is a heterogeneous organism, it needs a principle of order to unify it. Authority is therefore both “appropriate and sometimes necessary” because in order to be effective in a social context, the determinations of natural law that affect the common good will have to be “public and relatively stable.” ... This justification appears on the surface to be utilitarian. Authority is justified because it is necessary to make social life possible. But this appearance is only superficial. Authority is not only necessary but, as Porter says, appropriate, and is in fact good. Authority fulfills a particular need for public and definitive determinations to be made for individuals in a social context.

Remember, when he says "authority", he's not just talking about rulers (i.e. like Mosaic judges), but human legislators with the power to impose new normative sequences; to invent moral obligations (by means of the investigation into Natural Law which we described elsewhere). He says this is necessary to make social life possible.

He builds on this:

>  Put another way, human authority was not strictly necessary. The eternal law could have specified all principles of action in the natural and divine law, leaving no room for determination. God chose to leave this task, in a sense, unfinished and thus intended the need that authority satisfies.

Now, he clarifies, he's concerned with particulars:

> If natural and divine law explicitly contained all particular determinations of right action, there would be no room for the election of means—the realm of human liberty.

But as his prior discussion about legislative explosion demonstrated, he doesn't expect all the particulars to be expressly accounted for in any government anyway. He later reiterates:

> [Aquinas] does not advocate the formulation of an all-encompassing omnibus code, for “certain individual facts that cannot be covered by the law” need to be left to individual judgment.

He accepts the role of case law, but denies that Biblical case law accounts for all circumstances, and supposes that if it did, we'd lack "human liberty". 

Much of the rest of the chapter is elaboration on what NLT stipulates:

He proceeds to talk about how virtue-making obedience only exists if the authority is good. No particular objections with that premise; this section seems apologetic. He also argues for the inclusion of precedent in judicial consideration, and *ex ante* formulation of general rules as laws. In this discussion, he also explains basically that legislation is good where it, in a utilitarian sense, accomplishes the good (directly or indirectly, as I commented earlier).

Then he talks about how theories of consent are properly positioned in the context of authority-delegation; people choosing and maintaining their leaders. His argument here reminds me a lot of Lex Rex, which is a book I'm very fond of in spite of much disagreement with it. He develops the idea by noting that consent to particular legal acts are not legitimizing criteria, but simply useful for the leader to redirect his efforts.

He borrows Isidore from Aquinas, concerning the teleological orientation of law toward "common good". (From what I can tell, this is differentiated from atheistic notions of human flourishing only by a examination of its expressed intent. Humans flourish when they know about God, we suppose.)

He talks a bit about street lights, and gives the socially relativistic explanation for NLT legislation -- how some laws are better for some societies than others, etc.. I've talked a lot about why I reject that in the past. I have no reason to think that Biblical law isn't sufficient for today.

Then he talks about original intent; compares deistic NLT to Christian NLT (Deism fails because it lacks the information that Special Revelation tells us about God); then he measures his formulation in terms of the 5 criteria above and concludes that NLT wins.

TLDR:

(This is a highly critical summary, guys. I hope I'm not overstating my criticism here, but honestly thinking about this kinda drives me crazy -- that is to say, I'm aware that I feel passionate about this and I'm trying self consciously to limit the influence of my emotions on the topic.)

Main points from the book:

1. Laws are just (and actual) if they (1.a) don't break natural or divine laws, or (1.b) indirectly and prudently direct people toward the common good.

2. Human civil authority is defined by its ability to create new moral/normative obligations by means of civil legislation (category 1.b)

3. We know that human civil authority is legitimate and morally permissible because every country has it, and it seems necessary for a functioning society, and so it's part of the natural law.

4. The Biblical description of morality is, concerning particular judgments, incomplete on purpose, to leave room for us to have freedom to exercise our human liberties by legislating prudentially.

5. He has a 5-point criteria for validating legal theories.

I take some issue with 1.b in NLT -- McCall permits prudent legislation that penalizes morally ambivalent behavior. I see that as unjust, but within his system, the prohibition makes the target immoral.

His statements about the necessity of human authority are very nearly the opposite of my understanding of 2 Tim 3:16-17. Scripture does account for all possible moral circumstances, and it is for this very reason that God's law is a freeing law. We know the bounds of our liberty, and are at peace with God because of Christ's satisfaction of that very same written law.

Every country (including Israel) since the dawn of humanity has practiced idolatry; is it natural law? (No.) Why not? (Reference to Bible as "divine law".) What if the Bible told us that God's law was perfect, complete, timeless, and that we shouldn't add or subtract from it? (Incompatible with prior commitments; ignore.) His grounding for the source and permission for human civil authority is compelling in its verbosity, but neither Biblical nor reasonable. If we look at the history of societies and see they all had human lawmakers, that doesn't mean human lawmaking is necessary, nor that it is in natural law or divine law. The necessity of human lawmakers wasn't proved, as far as I can tell, and I can hardly imagine how he would prove it.

Both CNLT (if he's right) and Biblical Law (if I'm right) satisfy his 5-point criteria. That was fun to check out. And, at least by that standard, he at least doesn't invalidate SGE. (Anyway how could he? If he did, Biblical law wouldn't be answerable for ancient Israel either). So, his criteria isn't exhaustive. That's fine and normal.

After reading it, I'm still kinda wondering about an inherent ambiguity in CNLT. He gives it a lot of treatment in the book, but I can't seem to get past the answers in a way that's practical to me; there's so much inference and "prudence" involved in it -- Idk maybe I'm not the right kind of prudent for NLT style thinking lol:

- How do statements like "shouldn't conflict with natural law" not reduce to "prudence" when natural law can be derived from secular examples (i.e. "developing customary history")?

- How do statements like "shouldn't conflict with divine law" not reduce to "prudence" when, categorically, Biblical statutes that have face-value conflicts with NLT can be recontextualized?

- And what does "prudence" mean if not "pursuant to common good"? 

- And what does "pursuant to common good" mean, when natural and divine law, the candidate answerers, have been reduced to "prudence"?

I understand that without God any moral/judicial theory is ridicuous, but what if we just tack, "and also acknowledge God", onto the end of the Humanist manifesto. How would it look different in practice?

I know, that's a bit of an unfair question, and a CNLT advocate who has spent half as much time elucidating his thoughts as McCall will be indignant at it -- but really, it feels like the huge quantity of words is serving to obfuscate systematic incoherence in this theory. But more imporantly, I'm just not seeing a clear criteria for dividing Biblical laws into normative and not, and without that, if we can brush off Mosaic laws on the basis that they'd subtract from NLT, or if we consider Mosaic law incomplete on the grounds that NLT needs it to be incomplete, then what are we even using the Bible for, really? Is it just for training our mind, by reading it often, to increase our prudence?