Myth, Originalism and Natural Law

The challenge when attempting to interpret a document like the American Constitution, applying it to today, is that the favorite approach of many on the right-originalism- just isn't serious.

8. Myth, Originalism and Natural Law

I was out for a walk in the woods this morning. This environment is conducive to allowing one’s mind to connect things on their own without having to work overly hard at it. A Twitter discussion about originalism and natural law as it came up during the confirmation hearings of Ketanji Brown Jackson for the Supreme Court and some random musings of mine on Twitter about the nature of mythology suddenly came together in my mind. I had originally thought that a long Twitter thread might be the result, but as the walk progressed and the woodpeckers pounded on the surrounding trees this blossomed into something much larger.

My academic training was heavily focused in the areas of philosophical hermeneutics, biblical studies and theology. The interpretive issues at stake in the debate over originalism are very similar to those at play in the interpretation of the Bible. How texts convey meaning is still a fairly hotly debated subject philosophically. Additionally, the question of natural law often surfaces in relation to the science vs. faith debate as well as in the current political battles in the culture war. In my mind, the problem with both “originalism” and “natural law” is the hermeneutical questions they raise.

Both originalism and natural law are attempts to “ground” the law in something. With originalism, interpretation of the law is supposedly grounded in the fixed text of the US Constitution. With natural law, the idea is to ground law within the structure and order of the world. It is with this idea of natural law that I want to spend most of my efforts in this piece. I think that examining this idea of natural law will be profitable for looking at originalist hermeneutical theory, because once you bore down into the problem, the interpretive “solution” ends up being much the same for both.

What has this got to do with the idea of “myth?” The idea of natural law has a long history going back to the Greeks, then up through Christian teaching where it was given the form we are most familiar with in the writings of Aquinas. The basic idea is that God is a rational being and he created us in his image as rational beings. The world was also created rationally by God, such that there is an order within creation that can be perceived rationally. This combination of personal and creational order should cause one’s thoughts to be directed to God. It was also argued that this order was more than just material, physical, and chemical. It had a moral and spiritual component as well. No one could say that they did not know right and wrong, because the moral imperatives are all around you written into the very fabric of the order of the world. The law of God that is claimed to be revealed through theophany is verified and reinforced through its coherence with natural law such that the two are mutually reinforcing. There is a sense that, as a Christian, I can present the essentials of the Christian faith without ever having to reference the Bible. It is possible to explain the truths of God simply through a discussion of our shared perception of the world around us, through the use of natural law.

What is often not apparent, though, in today’s discussions of natural law, is that much of this intellectual framework was developed on the other side of the modern and pre-modern divide. Why is this important? We tend to approach the world from a very modern perspective, one in which the mythical has been almost entirely banished. This matters because the world that gave birth to the idea of natural law was very much mythical.

In the mythical frame, the world itself is imbued with meaning. The world gives meaning to us. The world is a complex of patterns, metaphors and archetypes that reveal themselves over and over again in nature, events and people. Stories, poems, songs, myths, theophanies, visions, and sayings help reveal what is both evident and hidden all around us. You would see stories repeating themselves in part or in full in people and events everywhere all the time in a mutually reinforcing superstructure. You would realize yourself fully by living into a story or a social role. You tell stories about the good king, the good warrior, the good mother, the good farmer and so forth, such that the story would shape and determine your actions. You knew a bad king because he did not conform to the patterns in the stories. And as such, he did not conform to the patterns, the laws, of creation. This worldview places an immense value on the person of wisdom, the seer, that is, the one who sees. If you are interested, I encourage you to pick up Mircea Eliade’s The Myth of the Eternal Return to learn more.