Father Murray would have been mortified, but perhaps not completely surprised, by the spectacle of that collapse in our times. In 1991, on the eve of the Senate hearings on the nomination of Clarence Thomas to the Supreme Court, Senator Joseph Biden took the position that the Judiciary Committee should explore whether Judge Thomas held a "good" or "bad" theory of natural law. A bad theory of natural law, in Biden's view, would seek to expound a "code of behavior … suggesting that natural law dictates morality to us, instead of leaving matters to individual choice."74 A good theory would support individual rights of immunity against morals legislation on matters of personal sexual conduct and abortion. The natural law teachings in recent papal encyclicals would therefore have to be regarded as "bad."

For public purposes, it is more prudent to ridicule than to argue with positions like Biden's. But the problem remains. Christians in search of a sphere of public moral discourse quickly realize that they no longer live in the age of Jefferson and Lincoln. The rhetoric of natural law is abundant in the moral discourse of the public sphere, to be sure; but it is terribly degraded. The most serious setbacks in our political and legal order have been done in the name of natural law, abortion rights being the most evident but by no means the only case in point. How then do Christians correct the ideologies in which natural law is ensconced without going on to discuss those very things that public discourse is supposed to avoid? How can they avoid the task of having actually to reconstitute the sphere of public moral discourse? If Christians wish to do so, I can see no alternative than to restore natural law rhetoric to its true and adequate premises. At the very least, we should return to the older American custom of speaking of "higher law." This usage, employed by Martin Luther King, indi­cates the more than human ground for the public moral order.

The Church Fathers referred to pagan learning as the gold of Egypt, which can be melted down from the idols. But the modern ideologies of natural law and natural rights are quite different. For the moderns took the theological notion of natural law and reshaped idols. If it is necessary to take public discourse as it stands and by the arts of dialectic and rhetoric to move it away from the idols, this task must be done very cautiously. When the Christian theologian plays with the modern rhetoric of natural law, he should know that he is playing with something more than fire. Ad extra, he is apt to underestimate the anti-theological meanings of modern natural law (essentially, man as a free agent without God), meanings that are easily reinforced if the rhetoric is not corrected; ad intra, he is liable to bring the idols back into the house of moral theology.

Both of these problems are addressed in recent encyclicals. To conclude, let us return to John Paul II's example. As I pointed out earlier, the Pope vigorously supports the modern experiment in constitutional democracy and human rights. But once he discerned that the rhetoric of natural rights was being used to justify killing the unborn and infirm, he took his readers in Evangelium Vitae back to the book of Genesis. The gentiles need and deserve the whole truth, even in order to preserve the rationality embedded in their own "secular" experiment. As for the use of natural law within moral theology, Veritatis Splendor reintegrates natural law into the dogmatic theology of revelation and Christology. It seems to me that these two encycli­cals, one aimed ad extra, the other ad intra, get the problem of natural law situated just about right.

Natural Law and Catholic Moral Theology, pp. 28-30