Law, Higher Law, and Human Making

Abstract

Rather than attempt to survey and synthesize multiple theological accounts of human making, I have chosen to focus on just one-Dorothy Sayers's The Mind of the Maker -and this, in part, because Sayers's wellknown account is highly suggestive as to the role some form of "higher law" might play in the human activity of judging. As explained in Part II below, Sayers argues that human creative activity has a Trinitarian structure, which she identifies as 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 Power to influence the human person and the community's public context (Spirit).  The foundational analogy that drives Sayers's account of human creativity is the relation between God's creative activity and that of human beings made in his image. 

Parts III, IV, and V elaborate, in turn, each of the three elements described above. Part III connects Sayers's account of the creative Idea the as-yet unrealized concept of the whole that regulates human creative energy-with classical legal theory's account of "The Law"--a transcendent body of overarching legal principles.'0 There is an obvious similarity between the artist's dependence on the Idea in Sayers's account and the judge's dependence on The Law in classical legal theory. Significantly, however, Sayers does not claim transcendental status for the Ideas that govern human artists' creative work; the Idea is the product of the mind of the individual human maker." Sayers's account thus suggests that if something like The Law exists as a regulative construct, it need not necessarily be tightly connected with natural law. The Law might be "higher" without being "natural."

Part IV focuses on Sayers's concept of the Energy, or Activity, and accordingly draws attention to the medium of law and the craft of legal decision making. Sayers argues that failure to attend to the contours and limitations of artistic media can result in artistic failure.  Similar consequences befall attempts to make law that do not respect the form of law and its limitations and that do not take seriously the demands of the legal craft.

Part V concludes by giving attention to Sayers's concept of a work's Power-the fact of its encounter with human beings in a public context. This insight 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, sit uneasily with other existing laws, or are opposed by public opinion. Reception of the legal work is also critical as to whether the law will be obeyed and, if so, whether that obedience will be experienced as free or coerced.