It is in man that God has implanted his law, the rule of right action according to the created order that reflects it. It is eternal law, the law of God’s essence, given by divine condescension to the creature for his good, unto his temporal and eternal happiness. Man is meant to live with others; this requires order, which, in turn, requires law—even in paradise this would have been so. In short, man’s nature requires him to participate in God’s law by making law too. That human law must then reflect, respect, and reinforce human anthropology—now under assault—for which it is made, and glorify the God who made it.

Whatever its genesis and cause—some suggest Karl Barth’s infamous “Nein!” to Emil Brunner—Protestants largely abandoned the natural law tradition sometime amidst the tumultuous twentieth century. It should be noted that this abandonment conspicuously coincided with the advent of a positivist Supreme Court led by Oliver Wendell Holmes, Jr. and his militant campaign from the bench to detach law from a “brooding omnipresence in the sky.”

Unsurprisingly, Protestant-positivist conceptions of law (like theonomy) have filled the void in the interim. Originalism—a sort of first-in-time positivism now generally identified with the Constitution’s original public meaning—albeit popularized by a Roman Catholic, dominates the Protestant jurisprudential posture. Like many American Protestants, Originalists—there are some, heavily qualified exceptions—decry judicial use of the classical natural law tradition as tantamount to so-called living constitutionalism and judicial overreach. But recent social trends evince that this form of originalism is radically insufficient. It inordinately fixates on method to the detriment of a substantive vision of justice.

Consider that two ethical concepts presently captivate the popular political imagination: justice and the common good. One currently serves as the causa belli of the progressive-woke left and the other saturates the rhetoric of the nascent post-liberal right. Both bewilder many observers. Both, in their own way, spring from the demand for a thoroughly moral socio-political regime, a comprehensive vision of life oriented to something higher.

Protestantism, if it is to have a political future, must recover a moral vision that rightly defines, orders, and mediates these contemporary emphases, which–if taken in isolation–drive many to dangerous ideological and political extremes. Rightly understood, the apparent dichotomy between the two is false, one manufactured by recent, shrewd efforts of rhetorical capture. Law is the common denominator of justice and the common good, although such a notion has been lost as of late. As Thomas Aquinas defined it, law is an ordinance of reason, promulgated for the common good, made by one who has care of the community.

In a very real sense, then, justice and the common good are inseparable according to the tradition only lately jettisoned by Protestants. The way back is the way forward. Protestants need to play catchup to remain players. This isn’t demagoguery or pandering. It is about recovering a coherent vision of a moral order and the goods toward which said order must be oriented to be just. It is about rediscovering a proper understanding of law by, inter alia, rejecting Justice Gorsuch’s now (in)famous positivist quip in Bostock, “Only the written word is the law.” For law is more than pure fiat; it must attend to reason and nature and conform to something ethically and metaphysically higher.

Such a recovery project requires an extension of the ad fontes enthusiasm amongst Protestants over the past couple of decades to the Protestant legal thought once firmly planted in the natural law tradition. Scholars like Stephen Grabill and Jordan Ballor have already begun this project. The works of Matthew Hale (1609-1676), Johannes Althusius (1557-1638), and Franciscus Junius (1545-1602), to name a few, are now accessible thanks to these scholars and many others. The Angelic Doctor is increasingly appreciated by Protestants (as he was in the past) as much as the Fat Doctor.

Yet, this is about more than resourcement. Protestants must readopt and embrace the child they once forsook, namely, a classical understanding of law, its source, rationale, and function in society. Shockingly, even at this late hour, by an acquired instinct of recent vintage, much of orthodox Protestantism still shuns, or is ignorant of, the natural law tradition.

Without it the future of political Protestantism is bleak indeed, in part because Protestants will be far less equipped to answer the most pressing ethical questions of the day, and will not be as able to adjudicate all-powerful rights claims like those in Bostock, Obergefell, and Roe. Neither will they be able to offer a positive politics, nor a metaphysically coherent account of human nature powerful enough to bring certain inseparable political themes  together, themes such as justice and the common good. (Politics, after all, is but an actionable, lived extension of metaphysics.) They will, rather, remain political infants, tossed to and fro, and carried about with every wind of doctrine, by the sleight of men, and cunning craftiness.

Under a natural law-based jurisprudence, positivist, mechanical, proceduralism is insufficient. Law as law must be reasonable, which is to say, the means law employs to attain its ends must be fitting to the ends themselves. Most importantly, law must be cognizant of, and congruent with, the metaphysical realities of creation, especially an appreciation of the givenness of nature and natural limits.

As Pierre Manent put it recently, “the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is.” The key question is, “If our actions are not to be regulated by law, then what shall regulate them?” Ryan Anderson has identified the same problem plaguing debates within conservatism writ large. Responding to common good skepticism from a (typical) right-liberal (who essentially accepts that government mostly only exists to protect individuals from harm, and to protect their individual rights) Anderson asked how “the scope of […] rights” can be determined “without some account of human flourishing and the common good?” For instance, how can the conflict between the woman’s bodily autonomy and a baby’s right to life be mediated otherwise? What about rights of conscience? All exercise must have limits. A rule of right action must apply else we fall into the chaos of mere competing rights claims without means of adjudication—no lodestar to guide us. That way lies devolution into pure power politics. That way lies madness.

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