Law and the Christian: A Modest Proposal

Posted on February 1, 2014 by

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Do you know the difference between right and wrong?  Do you have a good idea of what ought to be illegal and what legal?  Do you know why you know, if you do?  In other words, what is your foundation for distinguishing right and wrong?  Do you have a foundation at all?  Our society of course wrestles with these questions.  The answers are sometimes surprising, sometimes predictable.  So how should we sort all this out?  Let’s confine ourselves to addressing social-legal ethics—the law—although you should feel free to think about personal ethics as well.  What is our proper foundation or source for law in society.  Think about this with me from a Christian perspective.

I will begin with a case study.  Suppose you read a newspaper article about someone wishing to make physician assisted suicide legal.  You hopefully would want to ask yourself whether this is right or not, and, if so, under what circumstances.  Where to begin?  There are two or three possible starting points for you.  One is what is called “positive law.”  Under this theory law is unrelated to ethics.  It is simply what it is—law, neither inherently good nor bad, just “the law.”  This one is not much help for anyone ethically sensitive.  It was actually used by the Nazi courts to condemn Jews as non-persons. 

The other two theories are the ones I want to compare and contrast.  First we have an old and venerable natural law theory, going back many centuries, and coopted by the Christian church at least as early as the time of Thomas Aquinas around 1250.  Aquinas was not ethically challenged, but he was long-winded.  To make his very long story short, he argued that there were principles of right and wrong which were (are) universal, timeless and relatively simple, and which were grasped by reason.  You might, if you think much about theology, wonder how reason could know these “first principles” so clearly and immediately.  Good question.  Aquinas, like most natural law thinkers, did believe man was fallen, but that the Fall was not as catastrophic to man’s mind and will as the later Calvinists believed it was.  So humans could still think and will well enough to know these first principles, either immediately or by thinking correctly.  The principles were the basis, the foundation, for law.  Hence, natural law theory is now respectable.  So far, so good.  

But Aquinas had a little secret that scholars know about but seldom talk about.  In the same large tome in which he constructed his natural law theory he also supported it with several well-placed texts from Scripture.  Here we come to the third theory—the “Theocentric theory of law” or, perhaps better, the “Logocentric theory of law,” since it came from the Bible.  Now Aquinas was very fond of his natural law theory, but he was always pretty careful to tie it to divine law.  The two law systems had a cozy relationship until Hugo Grotius came along in the early 1600s and said (hypothetically) that natural law would yield right principles even if God did not exist.  Suddenly we have a major problem.  We have two potentially independent sources of law, both of which could claim to give truth.

Over time the gulf between the two theories would grow and the Logocentric theory would be rejected altogether by many for various reasons, even by committed Christians.  The natural law theory itself suffered, but among Christians it was still the dominant theory heading into the twentieth century and on into this century.  But it did not any longer defer to or make any significant peace with Scripture.  Rather it claimed to know right and wrong wholly apart from Scripture.  “Scripturalists” were frequently branded as fundamentalists.  Ironically many conservative Christians also rule any Scripture-based law out of court (pun intended).  Scripturalists had and have little respectability when it comes to ethical questions of any kind—except in personal ethics (for example, “you shall not commit adultery” is still acceptable among Christians).  But for natural law thinkers—Christian ones—you generally can’t mix up the laws given in nature with the laws given by God in the Mosaic Code of the Old Testament.  Those old laws were for the Hebrews, not for modern societies.  Besides, they seem pretty barbaric. 

Here we are today with (for Christians) effectively two mutually exclusive theories of law.  The one says we can arrive at right by using the old noggin well.  The other warns that we can’t use the old noggin well because it too is “infected” by sin.  Which is right?  Let’s first see how much work natural law can actually do for us.  Its principles are supposed to be universal, timeless and simple.  Are they universal and timeless—and how would we know?  It seems, if my historical senses are working, that natural law principles have actually changed over the last couple of centuries.  In my example above, what was unthinkable is in some natural law schemes—there are 128 of them, at last count in 1955—not only thinkable but doable.  That is change.  Not only that, what is right and wrong seems to differ in different locations of the world.  And we are all supposed to “know” these?  I know, someone will say, there is a big difference between knowing and doing.  True.  But then if we are not as weak-willed as some thought, why can’t we also do—once we are informed and begin to reason properly?  A more fundamental problem is that since these first principles come immediately to us or through reason, they can’t be assessed or judged by any external standard.  “Who watches the watcher?”  Nobody in natural law theory.  Would those natural law theorists allow the Christian Scriptures to sit in judgment on their first principles?  I doubt it; there is no need to, they reply.  Perhaps not, but how do we know unless we have an external standard?  And where would that standard come from?  Well, that is the million dollar question (in 1954, it used to be the $64,000 question, but with inflation…).  Their argument begs the question, how do we know your principles are right?

Ok, you were expecting me to shout suddenly, “Let’s all go get our Bibles” and start to pull out those “Logocentric” legal texts.  Just list them, line them up, put them down in a statute and all is sweetness and light.  Not so fast.  It isn’t quite that easy.  The alternative is the Christian Bible here.  But how do we use it properly?  That’s another million dollar question.  Let us begin with two important assumptions.  First, God did give us natural revelation—there is therefore a natural law—and it is useful.  I will not be accused of denying the knowledge we gain from it.  But secondly, we assume the Bible is true in what it affirms.  But it does not affirm everything; it does not address everything.  For those things it does not address, there is a valid natural revelation and law.  The Bible however, plays the absolutely crucial and supreme role here of validating what we may assert is true in natural law.  Moreover the Bible positively gives principles of law embodied in those Mosaic laws that we fear so much.  Most important, Scripture is the final arbiter in matters ethical and moral, social and personal (not to speak of other matters or we would be here a long, long time).  It gives the parameters, the limits beyond which we cannot go in asserting we know some alleged truth.  How then does it work?

The best way to think about the Mosaic judicial-civil laws (I am not addressing the moral or ceremonial laws here) is to see them as principles, or capable of being “principalized.”  Though the term sounds formidable, it isn’t.  It means that specific laws or cases can be examined, correctly interpreted, and made into generalizations which can then be applied in specific contemporary situations of a similar kind.  The key is first careful interpretation in context, so that we are not proof-texting.  The application then will actually correspond logically to the later situation.  If I look at the text stating an owner of a flat-roofed house should build a parapet (a fence) around the roof, I am looking to make a general principle from that specific case, not go around looking for flat-roofed houses.  The general principle has to do with safety in certain situations where one party knows the danger and another may not.  I apply the principle that owners of property owe a degree of care to those who come to their premises unaware of dangers the owner ought to be aware of.  That then is the principle written into law or used by the judicial system. 

What is the advantage of Logocentric law?  First, it is fixed in that since it is in writing, we need not worry about whether it will change (unless the interpretation changes—a possible unfortunate event).  Second, more importantly, we know this law has been given by God.  We are told it was, and unless we don’t believe the biblical history, then there is no debate.  But someone might say, these laws were only for a specific time and place.  They were, it is true, but on the one hand I have already said we don’t use them literally but principially, and second, even if they were temporally and spatially bound, they do reflect God’s will and mind as to ethical good.  If we didn’t believe they did, we would fall into the old trap of thinking that law (or any of God’s command-words) were just good because He said so and not because they reflected His nature.  If we believe something is only right because God said it was, then God might simply have decided to make right wrong and visa versa and we couldn’t argue with it.  No, the law as given is a partial “picture” of God’s very nature and must therefore be taken seriously.

I do not want anyone to get the wrong idea however.  I am not out to rid the world of natural law theory.  I am out first to bring it back to its Scriptural connections.  Second, I want to propose that, all things considered, the better Christian view of law is the Logocentric one and that it ought to be the one most invoked.  Natural law can still have its place, but in a secondary role.  Non-Christian legal scholars would not particularly like this turn of events.  But I fail to see how we have made much headway with them at any rate in our efforts to find common ground in increasingly secularized natural law theories.

I speak to the Christian community that cares about human flourishing here until Christ returns:  Which theory of law for society has the best case?  More than that, which theory corresponds most nearly to our view of God?  Let us let God be God.

 

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