Law

“There oughta be a law.” “Here comes the law.” “We are saved by grace and not by law.” These common phrases reflect the enormous variety of the uses of the term law, which indeed means many things.

For a student of the Old Testament, law may mean the Torah, the five books of the Law, which are the formative body of Scripture to which the Jew looks for the essence of their faith history. For the New Testament scholar studying Paul, law refers to the whole body of the righteous demands of God—a righteousness that we cannot possibly fulfill and, therefore, cannot be the basis for our salvation. We are saved, not by law, but by the unmerited favor of God—his grace. For the legislator, law means the established and acknowledged rules that create rights and impose duties in society. For the political scientist, the law may mean a way of government, as, for example, in “a rule of law, and not of men.” Law reflects a commitment to established, open processes of governance, rather than the caprice or partiality of chance or privilege. For the philosopher, law may even mean those principles that are natural or inherent—natural law—which binds all persons everywhere, as, for example, the view that animated the Declaration of Independence that there are certain “inalienable rights” because we were “endowed by a Creator” with them. For the citizen, the law may simply mean the police, as in the “strong arm of the law” or “Have you called the law?”

While all these usages are common in daily language, law more properly and historically refers to those rules, obligations and duties that bind us in some manner and are expressions of some authority. The elements are rule, authority and obligation.

What Is Law?

While philosophic debates about the nature and sources of law may seem to have little relevance, the debate today about law is quite critical. Historically, Western law was built on some fundamental assumptions. These assumptions included the core concept that while human law was a product of kings, courts or legislatures, nevertheless, there was a “higher law” to which human law was accountable and should reflect. Thus, human law was subservient to God’s law, which could be discerned through nature and revelation. Many theologians and jurists insisted that any human law that was contrary to this higher law, or divine law, was not really law at all. For them, the very term law was reserved for laws not inconsistent with God’s laws.

Religion and Law: Historic Partners Now Estranged

This basic philosophy of law and a higher law shaped much of the English common law and the early American legal experience. William Blackstone, the famous English lawyer who so influenced American law, represented this tradition, and his writings embedded it deeply in American legal thought. As correlates of that view of law, other principles emerged: that law was a rational, orderly process; that it invited obedience because it was “right”; that it reflected moral truth.

This natural-law jurisprudence is a reflection of a much longer relationship between law and religion. The earliest origins of law were all closely intertwined with religion itself, as is evident in the Old Testament law. In primitive cultures the law was seen as an expression of the gods. Human beings did not “make” law; they “discovered” it. In medieval and Reformation Europe, law and religion were not estranged as they are today but were intimately related. Theologians studied law, and lawyers theology. Law and theology were almost twins—both concerned with matters of duty and authority. They were the pillars of culture and order. Today, with the “crisis of authority” (as Hannah Arendt has characterized our age) our culture faces, both culture and order seem at times in disarray—neither capturing the imagination or allegiance of much of the public.

Shifting Theories and the Rise of Positivism

The natural-law theory dominated America for generations of lawyers, legislators and theorists. Today this has largely been replaced with a view of law that does not regard it as a principled, much less divine, process. Reflecting the larger skepticism and positivism of the intellectual trends, this view sees God as either nonexistent or irrelevant to human processes. The law is viewed simply as a social process—the product of competing social interests and goals. Some, reflecting Marxist notions, see law as a reflection of economics. In perhaps what is the dominant school of thought, law is in fact nothing but an expression of power. That law is “whoever has the guns” suggests this view.

Oliver Wendell Holmes, an American jurist, reflected this shift away from ultimate sources of law to an exclusive humanistic endeavor when he insisted that “law is not a brooding omnipresence in the sky.” For him law was basically just experience. Roscoe Pound, another legal scholar, hailed this new jurisprudence as a victory for pragmatism with the “human factor” now in its proper central place.

The most recent fashionable legal-philosophic trend is often referred to as deconstructionist. Its core roots again reject any ultimate validity to law. For the deconstructionist, law is simply a sociopolitical process, and we need to take away its transcendent mask. By getting behind the law, we can see, for example, that it is all about racism or sexism, or—you fill in the blank.

Losing the Reference Point

The rejection of law’s roots in any higher law has substantial implications. As Jacques Ellul noted in his Theological Foundation of Law, when law loses its connection with any ultimate principles, it becomes simply a social or political tool or, even worse, simply a means of exercising state power. Rather than a check on the power of the state, it becomes the principal vehicle of expansive state authority. Law as mere power knows no principled limits.

Modern critics of this positivism have warned of the consequences of such a view. When stripped of its ultimate reference point is justice not left to the whims and vagaries of human will? Gustav Radbruch, a modern critic, suggested that Nazi Germany was simply legal positivism running its natural course. Emil Brunner, the theologian, said, “The totalitarian state is solely legal positivism in political practice” (p. 15).

Indeed, modern American law reflects many of these philosophic changes. The radical shifts in the law in regard to homosexuality and abortion illustrate this. Whereas once lawmakers might have sought historic moral principles as guides for law, and judges not uncommonly looked to history and even the Bible for guidance on interpreting and applying it, now the question is simply, What do those now in charge think? References to spiritual authority or some conception of God’s law would find only contempt today.

It is no wonder that this philosophy has led to a loss of respect for law, growing lawlessness and a dissonance between what the law may say and what moral and religious commitments may demand. This may account for the fact that while law is a growth industry—more laws and more lawyers than ever—we are in fact probably less lawful than ever. As one writer has suggested, “A nation’s lawfulness is inversely proportional to the number of its laws.” When people have lost their basic moorings that result in lawful, right conduct, then the state tends to adopt more and more laws to regulate life and tell people what to do. As another noted, when a nation loses its respect for law, it does not get anarchy; it gets little laws.

For all these reasons many have suggested there is a crisis in law today. Harold Berman, who has watched this develop over his years as a professor at Harvard and then at Emory, has written of the “massive loss of confidence” in law and declared, “The historical soil of the western legal tradition is being washed away.”

Alexis de Tocqueville once suggested that if there were an American aristocracy, it “occupies the judicial bench and bar.” The observation does reflect America’s almost preoccupation with law. The “rule of law” has been our pride, and we have successfully exported it. Even where it is honored in the breach, nations feel obliged to at least pretend they operate under law. This is why the modern collapse of principled law is such a threat.

The tragedy of the loss of an essentially moral tone to law is compounded by the fact that the great affirmations of law seem inevitably moral in character. Even Holmes said the law was “the witness and external deposit of our moral life.” Talk of human rights, equal protection and due process invites us to think we are talking, not just about statutes, but about something more fundamental, inherent—the essence of our humanity and common life. But where do these principles come from?

Christian Engagement with Law

For most of American history, Christians had little to do with the law. The legal profession was often not seen as a worthy calling, and serious believers shunned legal matters. The avoidance of law and politics more generally reflected, most believe, a confused theology that saw Christian faith as exclusively a private matter with little relevance for public affairs or government. The rural character of much of American evangelicalism and a revivalist and pietist tradition reinforced this separation of faith from engagement with law.

More recently, recovering a theology that emphasized not only personal salvation but the lordship of Christ over all of life and disturbed at the moral crisis of the nation and the direction of law, many Christians have reengaged with the law. The Christian Legal Society (CLS) took the lead in seeking to equip Christian students to see law as a calling in which they could live consistently with their Christian faith. CLS and other groups have taken a more proactive engagement with court cases affecting religious liberties and moral issues. Other groups encouraged Christians to become involved in local, state and national office and reclaim their heritage.

Today the law and especially Christians as they engage the law face a wide range of complex issues, many of which have no simple answers but all of which demand the most careful examination. Among the urgent ones faced today are the following.

Law and morality. What is the relationship between law and morality? This is a perennial problem, difficult but unavoidable. It is far too simplistic to say, You can’t legislate morality. The law constantly legislates morality—it presumably requires equal protection, not on a whim, but because it believes it is right. It proscribes theft because it believes it is wrong. Moral rules and principles are built into the fabric of a society, and this fabric produces and is sustained by law. But what are the limits? The modern sexual revolution, abortion debates, the emerging technology of genetic engineering (see Conception), all require us to carefully consider the relationship of law to moral principles and the maintenance of cultural values. There are undoubtedly areas in which legislating moral conduct would be ineffective, too costly for freedom or destructive of the value of the conduct itself. On the other hand, the notion that moral truth is irrelevant in shaping the law is a cultural disaster. We need to maximize the principled debates about law, not minimize them.

Law and freedom. Another perennial issue is the balance between freedom and law. The recent American experience is a confusing mix of massively expanding law in some spheres and the abandonment of law in others. Never have we had such economic or environmental or civil rights legislation, but laws relating to other moral issues—for example, abortion, homosexuality, indecency, pornography—all seem to have shrunk under a wave of individualism. Is there a principled basis for these contrasting approaches? What does a Christian understanding of human nature suggest in this regard? How does Paul’s emphasis on the law as a restrainer of evil help? Can a culture survive without normative content, and how does law relate to that?

Civil disobedience. Civil disobedience is as American as apple pie. American history from the Revolution to antislavery, civil rights and antiwar efforts has produced a legion of civil disobedients, many of whom grounded their disobedience on a higher law. From Moses, through Daniel and into the New Testament, there has always been a biblical affirmation, “We must obey God rather than men.” The principle that God must be honored when there is a clear clash between duties to government and duties to God has been consistently recognized in biblical and theological writings and set forth as a guiding principle by classic thinkers such as Augustine and Aquinas. But more than philosophy, the principle has been the practice of believers throughout history. Foxe’s Book of Martyrs was, for an earlier generation, a witness to this principle. In modern times the church in the Soviet Union, China and other places of oppression has had to live out this principle—often painfully.

As our law becomes more secular, as there is increasing hostility to Christian values and norms of conduct, as the state becomes more intrusive in the internal affairs of churches and families, law avoidance and disobedience are options that may arise with increased frequency, even as they do today for believers in other parts of the world. How do we balance the biblical teachings of submission to authority? What are the limits of our duty to law or to government? When may we, and when must we, as faithful Christians say no to government?

Conclusion

The theologian Markus Barth wrote glowingly, “The law remains one of the greatest and richest gifts of God. It is incomparable. It is a holy, righteous and good thing.” In contrast, Mr. Bumble in Dickens’s Oliver Twist declared, “The law is an ass—an idiot.” The law is probably both of these things. The task of citizen and believer is to discern where the law today reflects the values that nurture life and where the law, as an aspect of fallen human nature, no longer serves life but reflects the corruption of evil. Certainly in a democratic state with substantial freedoms of expression, the challenge to believers is to call for a law that has an ultimate source of authority. As one writer urged, “Let there be a new day, a day when law will receive a gift of a soul.”

» See also: Civil Disobedience

» See also: Individual

» See also: Justice

» See also: Law Enforcement

» See also: Social Action

References and Resources

J. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice (New York: Paulist, 1996); H. J. Berman, The Interaction of Law and Religion (Nashville: Abingdon, 1974); Emil Brunner, Justice and the Social Order (New York: Harper & Row, 1945); Jacques Ellul, The Theological Foundation of Law (New York: Seabury, 1969).

—Lynn Buzzard