A Christian Looks at Law
Michael D. Dean, LLC 1
The various disciplines of theology, psychology, economics, jurisprudence, and so on, have been compartmentalized because modern thinkers have generally jettisoned the historic theological or philosophical assumptions of most western cultures. At a minimum, those cultures at least nominally acceded to a superintending personality (or personalities) and thus concluded personality’s attendant characteristics of coherence and purposefulness.
Because I retain similar assumptions, I see fundamental commonalities in all human actions, regardless of the disciplines in which they are grouped and studied. From those presuppositions derive both what law is and what it ought to be. From them also derives the only defensible union of law as will and law as order, those two components of the age-old conundrum, freedom and form.
Will and Freedom
I propose first to identify what a Platonist might call “essences” of law. This requires identifying first what law has in common with all other human enterprises and, second, what all linguistic usages of the term “law” have in common.
Regarding the first “essence” of law, positivism emphasized law as “will.” That conception is a specialized (and tunnel-visioned) application of the theory of psychological hedonism – that “[m]an acts so as to avoid pain and obtain pleasure.”[1] The psychological term “action” includes not only conscious, deliberate choices, but also includes instinctive actions and reactions as well as responses to needs or drives endemic to human physiology or human “nature.”[2]
This broad definition allows the premise that human action is a function of self-regarding benefit as the actor perceives it, whatever the “self” or “perception” may be. What an actor values as beneficial to himself is a matter of individual perception, making value entirely subjective from an individual perspective. In that sense, therefore, everyone is “self-ish,” without the usual pejorative connotation. The altruist pursues what is “pleasing” to him no less than does the miser. (Most attribute a positive moral valence to the altruist’s pleasures, and a negative valence to the miser’s.)
Paradoxically, humans often place the greatest value on what is nonexistent and what is least likely ever to exist. A “better tomorrow” does not objectively exist for one who seeks it, nor does freedom exist for one who risks his life to achieve it at the time he takes the risk.
Values and human actions to achieve them therefore cannot be limited to a narrowly defined homo economicus.
For a long time men failed to realize that the transition from classical theory of value to the subjective theory of value was much more than the substitution of a more satisfactory theory of market exchange for a less satisfactory one. The general theory of choice and preference goes far beyond the horizon which encompassed the scope of economic problems as circumscribed by the economists from Cantillon, Hume and Adam Smith down to John Stuart Mill. It is much more than merely a theory of the “economic side” of human endeavors and of man’s striving for commodities and an improvement in his material well-being. It is the science of every kind of human action. Choosing determines all human decisions. In making his choices, man chooses not only between various material things and services. All human values are offered for option. All ends and all means, both material and ideal, the sublime and the base, the noble and the ignoble, are ranged in a single row and subjected to a decision which picks out one thing and sets aside another. Nothing that men aim at or want to avoid remains outside of this arrangement into a unique scale of gradation and preference.[3]
Ordinal ranking is a somewhat simplistic metaphor, but any action does represent the most highly valued available option at the instant of the action. By “available” option, we understand that it is more accurate to speak of “preferred” pleasure than “greatest” pleasure. (An economist would talk about “marginal utility.”)
“Will” is a unifying commonality of all human action, hence of law. Will is “I value” or “I like.” Will is the self-regarding preference that things be different, that “ought” should become “is.” (Or will may prefer the perpetuation of “is” if “is” would cease to exist without action.)
The definition of “choice” derives from will: it is acting upon will. One may will to do an act, but unless he is actually capable of doing the act, he cannot really be said to choose for or against it. Freedom is thus the ability to choose, to do what the actor wills to do.
An actor’s subjective scale of values constitutes his will, and choice is action upon that will. If the valuer is unable to act or begins to act but is unable to complete his intended act, then he is free only to the extent he has actually acted. In this sense, self-government is the same as freedom. If one cannot actually do as he wishes or wills to do, he is not free and is not self-governing. Without the capability to actually do an act, it is meaningless to say that one chooses against it.
These definitions of “freedom,” “will” and “choice” do not square with common usage, but common usage tends incorrectly to objectively delimit the concepts they describe. Freedom is subjective because it is a function of value. The less one wills to do something beyond his capability, the more he is free, because freedom is the relationship between subjective desire and objective capability.[4]
Carrying these concepts to conclusion, self-rule is the ability to act upon one’s own values. Setting aside for now the positive or negative moral connotations of what one does with his freedom, that freedom exists only so long as he is “a law unto himself.” Choice (or freedom) therefore exists in different degrees and different forms until the last capability to act is extinguished. This concept is of cardinal importance, because choice is the first indispensable essence of humanity; the end of choice is the end of “man qua man.”[5]
Irrespective of the logic of his case for reform of the penal system through use of corporal punishment, Graeme Newman understood human nature and human action.
[B]y far the greatest consequence of . . . de-emphasis in prisons is that fewer persons will come under the direct control of the State (which is what we mean by prisons), and that the major portion of criminal punishment (that is, corporal punishment) will be conducted with the view that it is not criminals per se who are being punished at all, but free citizens who have exercised their right to break the law.In this way the most basic of all freedoms in a society is preserved: the freedom to break the law.[6]
Obviously, environment affects freedom. That is, it affects choice, the capability to act. Environment is all those factors which have acted upon and are acting upon a person to affect his values, and which restrict or amplify his range of choices, that is, the capability to act upon those values. Environment therefore, includes not only the social, geographic and political contexts in which one is born, but also his genetically determined physical, rational and psychological abilities and predispositions.
Environment, of course, poses the question of nature or nurture. To what extent is anyone really responsible for what he does? Is it just (or even rational) to reward or punish? And if so, to what degree? At one extreme, environment is discounted entirely. At the other, nothing exists of the person but environment. Some assessments necessarily fall in between or posit other essences composing personality.
With this conception of human action, how can political law exist? Any social organization or government illustrates how the will of one individual coalesces with that of others. Smith goes to the polls in a democracy because he wants something other than what exists or because he wants to perpetuate what may not continue without his action of voting. He has already ruled out alternative means to the same end, such as armed rebellion or running for office himself.
A candidate elected from Smith’s district faces the same kinds of choices as Smith. Whatever “law” (that is, behavioral prescriptions) develops from the legislative process, the legislator customarily chooses either to tolerate what he does not entirely agree with or to challenge it within legally acceptable parameters. Rarely does he risk the consequences of illegal or unpopular alternative modes of challenge.
The process continues with the government’s agents who carry out legislative choices, and the process comes full circle back to Smith who again ordinarily chooses to accept the status produced by the process. When enough of the populace coalesce to the product of the process or to the procedural restrictions for challenging that product, there is social stability. When enough dissemble, there is revolution or anarchy, an absence of “law.”
The stability of any society depends at bottom on the “law-abidingness” of its citizens, the willingness (or “choice”) of most individuals to coalesce to the system’s prescriptions, whatever they may be. Other political systems have other kinds of processes. Non-governmental structures create law the same way. A voluntary association of two or more individuals by necessity produces interpersonal “law.”
Thus, a commonality upon which all may agree, I believe, is that at least one of the essences of law is will. Irrespective of the morality of various governments or social organizations, they exist because people have chosen certain actions and because those people value strongly enough (or oppose placidly enough) the resulting behavioral prescriptions that those prescriptions more or less stand. Stability is always a product of self-choice, either because other options are less attractive or because they are more distasteful.
Order and Form
Law as only will comports with Justice Holmes’ definition, in which “the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions may stand in the way?”[7] By this formulation, “ought” is nothing but the values of those not presently in power. It has nothing to do with ideas traditionally associated with rightness or justice.
Obviously, there are those who disagree with Holmes. The more traditional connotations of “order,” “justice” and “rights” all posit something “out there” which renders “ought” something other than just “my way.” Yet Holmes is certainly correct that law with a monolithic theological or philosophical basis fits the “will” conception of law no less than law with modern totalitarian bases. That the majority of thinkers (or at least the powerful and influential) in a prior time agreed that God had dictated absolutes did not change the basic fact that those thinkers still chose to think that way and had the power to impose and did impose the ramifications of their thought upon others. Smith’s opinions and Jones’ opinions are both opinions, even if Smith claims that his come from God.
This quandary introduces the second essence of man and of law – “order” or “form.” Those who fancy themselves agnostic and sophisticated may assert that they do not believe in such superstitions. Remember, however, that the fundamental commonality of all human action is that an actor acts because he prefers something other than what “is.” Without “ought” of some kind or other, there would be no human action whatever. Everyone believes in “ought,” except the dead (and, perhaps, the radically comatose).
The real issue is not whether there is “ought,” but whether there can be any transcendent content to the idea. Is there Truth? Does it matter? If there is no Truth, or if there is no possibility that such a “something” can ever be discovered or imposed irrespective of its existence, then Mao (and Holmes) was correct that “political power grows out of the barrel of a gun.”
Of course, Mao was hopelessly unsophisticated. With no “something,” who is to say that O’Brien was wrong? Winston was happier. Without “something” out there to authoritatively enforce “Thou shalt” or “Thou shalt not,” it is useless to talk about any content of “ought,” except as tactical posturing to manipulate those still stupid enough to believe in such things. You like listening to the symphony. I like stealing things. The only thing that matters is which of us has the power or shrewdness to enforce (or get away with) his likes.
This brings me to my thesis regarding order. There is a God out there who establishes “ought,” who will eventually judge each one for his actions and will visit upon him the consequences of those actions which he (God) has determined are right and just. It seems natural to say that God will do this even though he has made free will the essence of humanity. I think it is more right to say that God will do this especially because he has made will an essence of humanity.
In contrast to this proposition, rejection of a superintending authority who imposes real consequences for actions leads only to the chaos and nihilism I have already described. The nihilists, dadaists, absurdists, and so on were the only logical non-theistic thinkers. Without eventual, certain sanction, rejection of a traditional “ought” is the only logical conclusion.
Without God, Becket is correct. “You needn’t look for despair. It is screaming at you.”
The Spiritual Nature of Human Action and, therefore, of Jurisprudence
Two premises of my thesis regarding order require some theological and philosophical discussion. First, the Bible is true. Second, it has much to say about human action in general and about jurisprudence in particular. Section I deals with the first premise, section II with the second.
The Nature of Proof
All human proof, in the last analysis, is petitio principii – tautology. All systems of thought are based upon presuppositions which, by definition, are assumed and not proven. Presuppositions, if logically applied, determine (narrowly) the specific conclusion of a logical process or (broadly) the range of possible conclusions.
For example, after an all-night prayer meeting on the eve of a friend’s surgery, a carcinoma on his chest simply disappeared. His church concluded that God had worked a miracle. The doctor (who was later converted to Christianity by, understandably, my friend) concluded that all the medical tests indicating cancer had been wrong. The church thought the doctor illogical. The doctor, I assume, thought the church crazed. Both had observed the same “facts” (there is a world of presupposition in that term, too) but derived completely different conclusions because they held opposing presuppositions, none of which could be “proven.”
Proof, then, is a matter of what principles are believed a priori. Bertrand Russell’s daughter wrote:
In the last volume of his Autobiography, written toward the end of his life, my father wrote: “We feel that the man who brings widespread happiness at the expense of misery to himself is a better man than the man who brings unhappiness to others and happiness to himself. I do not know of any rational ground for this view, or, perhaps, for the somewhat more rational view that whatever the majority desires is preferable to what the minority desires. These are truly ethical problems, but I do not know of any way in which they can be solved except by politics or war. All that I can find to say on this subject is that an ethical opinion can only be defended by an ethical maxim, but, if the axiom is not accepted, there is no way of reaching a rational conclusion.”[8]
Some thinkers discount, a priori, any consideration of an immanent God. But the presuppositional nature of all thought prevents, as a matter of pure logic, the relative superiority of any natural or supernatural theory. Labeling some philosophies as “rational” and others as “superstitious” is therefore inaccurate. Augustine or Aquinas, for example, were hardly “irrational” as the term “superstition” implies. Every thinker employs reason. Differences in conclusion derive primarily from differences in presuppositions.
Certainty
The great criticism of any theological knowledge is that it cannot be known “for sure.” (And, therefore, it isn’t “knowledge.”) But in what surety, for example, does a secularist place his confidence for a better jurisprudence or a better community?
I read Sceptical Essays and Unpopular Essays, In Praise of Idleness and Marriage and Morals, but they all offered the same solutions: reason, progress, unselfishness, a wide historical perspective, expansiveness, generosity, enlightened self-interest. I had heard it all my life, and it filled me with despair.[9]
These “rational” beliefs of Bertrand Russell proved ill-founded for his own daughter, who became a Christian. “I found no message in his books but failure and despair (for me): men can be . . . men should be . . . men rightly brought up will be . . . the world might be. . . . But what about is?”[10]
Russell’s conclusions about human nature and the social mechanisms in which he placed his faith were products of his own unprovable, dogmatic epistemological and ontological presuppositions, leaving his conclusions no more or less rationally or empirically demonstrable than his daughter’s conclusions that he was wrong and that Christianity was true.
Competence
Any proof that the human mind is capable of reasoning to truth must assume that very conclusion (that the mind is capable). Otherwise, there can be no dependence upon the result of the proof process.
This is an illogical tautology, of course. And if certainty cannot be logically assumed, the possibility of uncertainty must be assumed, and that assumption renders invalid any conclusion that human reason alone is capable of certainty – that is, of proof. By reason alone, therefore, it is impossible to prove the existence or nonexistence of God, or of anything else, for that matter. (And even this line of logic assumes the traditional western axiom of non-contradiction.)
If one admits incompetence to determine the certainty of a contingency (such as God’s existence), he ordinarily makes operational assumptions based upon two factors: (1) the estimated probability that the contingency exists or will occur and (2) the estimated “severity” or “magnitude” of its actual occurrence (or nonoccurrence). For example, an air travel disaster is of low probability but high magnitude. Rain is of higher probability but lower magnitude.
Most human action is, therefore, not a matter of what we ordinarily think of as proof. For life’s mundane matters, this is no great concern. For the big questions, however, those which govern the paths of nations, one ought to consider the problems of proof and predisposition forthrightly.
The “Life” Debate
Here I make a practical application. The failure of American jurists to forthrightly discuss these considerations has subrationally imbued the legal community and the public with the false notion that government can be religiously neutral, a discussion more ignored than whether it ought to be.
Abortion is an obvious example. As the Bible describes it, the magnitude of divine retribution is immense. So if Jahweh condemns abortion, His existence is of critical concern.
Therefore, when government permits and encourages abortion without any consideration of whether God exists or of what he has said, the legal community and the public eventually begins operating under the implicit assumption that God’s existence is very unlikely, because government would certainly not risk horrific destruction for the sake of an esoteric constitutional principle. (I am not here arguing either whether God condemns abortion or whether American jurisprudence should be affected by that possibility. I am only demonstrating that the professed religious neutrality of American jurisprudence is disingenuous.)
The “Education” Debate
As another example, even school children intuitively understand these calculations of probability and magnitude. When the government school considers all matters of human significance without any reference to God, the student cannot help but make the same conclusions his older counterpart reaches when observing his government’s consideration of abortion.
Despite the state’s claim to religious neutrality, the subconscious predispositions of generations of student have been imbued with the state’s operational assumptions that God’s existence is of neither sufficient probability nor magnitude to warrant factoring into their calculations. Again, I am unconcerned here with whether the state may constitutionally include theological considerations in public policy decisions. I only point out that under the disingenuous pretense of neutrality, one predisposition is being advanced and another rejected, neither of which is superior to the other as a matter of pure logic.
The tragedy, even from an educational point of view, is that the “neutrality” belief is illogical and the entire process is generally subrational. It is worked upon children who do not have the intellectual sophistication to know what is occurring and therefore condemns them to defective education and uninformed choice at best, or to spiritual ignorance or damnation at worst.
The Nature of Revelation
Secular Rejection
“No testimony is sufficient to establish a miracle unless the testimony be of such a kind that its falsehood would be [even] more miraculous than the fact which it endeavours to establish.”[11] Following this logic, since revelation is miraculous, there is no superhuman knowledge or authority.
Hume’s tautology has controlled intellectual discourse for two centuries and has required American jurisprudence to rely, in the tough cases, on no better rationale than “tradition.” For example, a tension developed in the latter half of the nineteenth century in the Mormon cases. One line of cases followed Jefferson’s state interest doctrine, the final authority being what the Supreme Court considered the public weal.[12] The other line of decisions looked to Christianity to determine whether a practice was morally acceptable and therefore in the public interest.[13]
This raises the initial problem that some justices believed Christian doctrines true and other justices believed other teachings true, which in turn raises the fundamental question: which, if any, were right?
The doctrine from the first line of cases prevailed, of course, and the Court now generally divides into two factions: the “living document” people who approve of modern mores, and the “traditions” people who generally approve of the moral legacy of earlier times and therefore tend to restrict decisions to specific moral precedents, a finesse which yields some of their desired results without admitting reliance on the now discounted religious rationale.[14]
My point is not to debate whether the Constitution’s framers intended to rely on Christianity for resolution of moral problems, whether the drafters of the Fourteenth Amendment intended differently, whether either intended the Supreme Court to be intruding into such matters, or even whether we should care what anyone intended at all. I use American constitutional experience here only as an example of the inevitable result of assuming a secular epistemology.
Biblical Revelation
I have already outlined the view that Christianity is just one more idea, the way Smith wants things vis a vis the way Jones wants them. The real question, of course, is whether Smith is right. I will briefly outline some of the reasons why I found rationalist presuppositions deficient and, instead, found convincing the traditional Christian position that the original texts comprising the Bible were the very words of God, with all the necessary conclusions that that presupposition entails.
Deficiency of Rationalism
To begin with, Hume’s argument is a sophisticated tautology and demonstrates at least three inescapable limitations of finite, human reason.
(1) Not even Hume is capable of determining certainly the degrees of miraculousness of all phenomena. Such a feat is necessary to apply his maxim.
(2) The maxim deals only with probability and frequency, not possibility. As with degrees of miraculousness, no one is capable of determining the relative probabilities or frequencies of all phenomena. Essentially, however, that is irrelevant anyway. If a miracle is possible, it makes no difference how often it occurs.
(3) The maxim requires accepting as conclusive individual assessments of miraculousness, probability and possibility. This in turn requires that the existence of miraculous phenomena is dependent upon their susceptibility to human observation and reason, a tautological assumption as I have already stated.
Actually, Hume’s argument reveals that rationalism and atheism are really various manifestations of the irrational belief that man is God, that man substitutes himself as God and decides himself “what is” and “what is right.”
Deficiency of Empiricism
Empiricism is just as much a tautology as rationalism. First, since empiricism (by definition) deals only with the empiric, it is incapable of ruling out nonempiric causes, either positively, by identifying an ultimate empiric cause of all phenomena, or negatively, by empirically demonstrating the impossibility of a nonempiric cause of all phenomena.[15]
Second, when empiric phenomena contradict established empiric notions, those notions must be adjusted to accommodate the phenomena unless the conditions under which the notions were derived have been suspended. That is, labeling a non-conforming phenomenon “anomalous” is rationally deficient. It is more rationally defensible to allow for nonempiric causation than to accept as explanation the nonexplanation of anomalousness.
Finally, empiricism and nonempiricism are incommensurable. A miracle is, by definition, a suspension of ordinary occurrence and so, by definition, cannot be examined by ordinary methods. If Hume is correct that a philosophic first cause cannot be deduced from empiric data, then it is no less true that empiric data cannot rule out such a philosophic cause.
Empiricists escape these propositions by satisfying themselves with the “anomaly” label or by discounting the phenomenon altogether (Hume’s maxim). My friend’s doctor temporarily took the first escape. He concluded that the confirmation of carcinoma by established medical techniques was an anomaly in that one case.
Labeling, however, is an escape, not an explanation, a truth which the doctor finally acknowledged by becoming a Christian. Most readers of this paper will take the second escape. Such a response is at best lazy and irrational and, at worst, a deliberate polemical subterfuge betraying their own professed reliance on reason.
In light of these deficiencies, the Biblical assessments of empiric and nonempiric data are compelling. Peter, who claimed to have witnessed empirically both the transfigured and resurrected Christ, considered revealed Scripture the “more sure word of prophecy” (2 Peter 1:19). This was consistent with the observation that scientific conclusions undergo constant correction of error from two sources, incorrect perception of data and incorrect conclusions from data. (Then there is still the problem whether the corrections themselves are correct.)
The Nontautological Alternative to Rationalism and Empiricism
Even though I acknowledged honestly that all proof is based upon “self-evident” maxims, that realization obviously did not lead necessarily to the conclusion that Scripture is true. It did, however, lead to the single, critical axiom that if such a thing as Truth exists, it must derive from a nonhuman source because of the tautological limitation of human thought. I, therefore, took the skeptical position and allowed for the possibility of nonmaterial reality and nonhuman intelligence and knowledge. This conclusion was consistent with Scripture that “wisdom is from above” (James 3:17).
Put another way, the God revealed in Scripture is the only escape from tautology. Most fail to comprehend the visceral significance of “Cogito ergo sum,” later revised to “Dubito ergo sum.”[16] Of course, even that assertion, and its necessary derivations, are only acceptable if the proposition is itself self-evident. Only if you understand the limitations of that maxim can you understand why the God of Scripture is the only escape from tautology. We do not stand by reason alone, for “I am with you” (Matthew 28:20). There is no “ergo” (“therefore”) with Jahweh – only “Sum” (“I am”) (Exodus 3:14).
Even though I have gone beyond traditional apologetics to what I call “presuppositional” apologetics, few nonbelieving readers will find my logic convincing. I remind them of my basic proposition. One will never be rationally convinced of any truth, supernatural or otherwise, if he is honest with himself about the limitations of his own rational capacity, and even those few who believe themselves convinced by my argument alone have still missed the point.
Traditional Arguments
The basic premises just discussed cast traditional apologetic arguments in a different light.
Prophecy
Considered by itself, the argument from prophecy is based on a tautological, “self-evident” proposition. That proposition is simply that if someone made hundreds of predictions and each was fulfilled with meticulous accuracy hundreds or thousands of years afterwards, then whoever made the predictions probably had connections with Whoever was really in charge of things. Thus, if fulfilled prophecy is not exactly what it claims to be, then it is either an anomaly of the law of probability or it is a devilishly clever fabrication.
Both I and unbelievers are logical, depending entirely upon our presuppositions. I conclude that I have the intellectually superior position because I am skeptical enough to allow for both natural and supernatural explanations. I do not have to deny evidence by ignoring it, by employing a double standard for evaluating it, or by engaging in far-fetched “interpretation” as “progressive” theologians feel compelled to do.
Patency
Patency is also a self-evident proposition and argues that someone who “shows his cards” is more trustworthy than one who plays them “close to the vest.”
In applying this proposition, I concluded that Scripture was far more honest (and more perceptive) than its critics because it was very open about its presuppositions. It was from Scripture that I first realized the presuppositional nature of all thought. Scripture was patent enough to declare its tautology and perceptive enough to assert that there is only tautology apart from the Holy Spirit.[17]
In contrast, most human teachers and writers (other than the few Russells perceptive and honest enough to admit their own dogmatism) were ignorant of or purposely obscured their unverifiable assumptions. I, therefore, found Scripture more trustworthy.
Uniqueness
An especially convincing reason for accepting Scripture was the self-evident proposition that any thought which is Truth must be unique in some critical respect to all other thought which is non-Truth. Of all religions and philosophies, only Christianity provides justification by grace. Distinct from all other teachings, Christianity declares that human justness is a result, not a cause. Only Christianity provides a Savior.
Like Aina Russell, that fact saved me from despair. I was not predisposed with enough hubris to think my own efforts satisfactory, either for myself or for the rest of the race.
Summary
Frankly, it is not my intent in this first section to convince anyone by reason alone that Scripture is true. The most I can hope for is that an honest reader will at least think about what I have said and honestly ask God for divine illumination.
The Consequences of Biblical Truth
The Nature of Law and the Nature of God
I have already discussed the idea that law is nothing more than acting upon one’s will; seeking to accomplish what one believes is its own self-benefit. If Scripture is true, this is neither surprising nor objectionable. God created all things “for his pleasure” (Rev 4:11). Humanity is created “in his image” (Gen 1:27).
In fact, God’s creation of beings capable of pleasure is wonderful. It has pleased God to endow his creatures with choice, each to determine for himself whether it pleases him most to obey or to disobey God. This leads us to consider the will of God as the second essence of law, or form.
The Will of God and the Ethical Basis of Law
It is a bitter irony that jurists and legislators disavow the existence of any divine “ought,” yet appeal continually to some nonimmanent justification such as reason or justice. If there is only human authority, why does one need to justify anything? Neitzche and du Sade were among the few to think logically from such a presupposition. They were intensely evil (a conclusion only those with theistic presuppositions can logically make), but they were logical nonetheless.
The offensiveness of those thinkers is unrelated to whether I or they are right. I do not believe in God because such a belief is inoffensive, comforting or functional (as religious pragmatists such as William James might). Without the ultimate sanction of an objective God, functionality is subjective anyway, and the du Sades by their nature will prevail because the safe inevitably yield to the daring.
Only God resolves such problems. God does not do good because it is good. Good is good because God does it. It is our infinitely good fortune that God’s innate and indivisible character is benevolent. In God, the subjective and the objective, freedom and form, will and order are unified. There is no existential, impersonal standard of justice “out there.” When Christ declared, “There is none good but God” (Mark 10:18) and “I am . . . the truth” (John 14:6), he was declaring the unique Judeo-Christian proposition that goodness and truth are ultimately a person, not freestanding ideas. There is no freestanding “justice.” There is only “the Just One” (Acts 7:52).
Good, Righteousness and Human Nature
The Scriptural concept of justice is simply “getting what one deserves.” Paul tells us that “the law is good” (Romans 7:16). That law prescribes the “just” desserts of certain actions, and justice is disastrous for humanity. It is rather by injustice, the death of the just God-man, that humanity has any hope. This is a theological discussion of justice, but these concepts have ramifications for jurisprudential considerations.
Paul makes a qualitative distinction between a good man and a righteous man (Romans 5:7). Human nature bears the image of God, and though that image is marred, many God-like characteristics remain, more so in some than in others.
By this we can understand why Christ condemned the ruler who had violated only one of six social commandments (Luke 18:18-23). The ruler undeniably reflected the image of God in many respects. Scripture makes a special note that Christ loved him (Mark 10:21). he was a good man in ordinary parlance, but he was still condemned because righteousness is not patching up the remnants of the divine image. “[A]ll our righteousnesses are as filthy rags” (Isaiah 64:6).
I have included the preceding discussion to prevent confusion of good and evil as we ordinarily use them as descriptions of the human spiritual condition. The two are related, of course, but not the same. This is a necessary distinction, because one’s view of law’s functions and capabilities are governed primarily by his view of human nature.[18]
In general, there are two working assumptions about human nature – one, that it is basically evil, and the other, that it is basically good. In nonreligious terminology, Thomas Sowell characterizes these views as the “constrained” and the “unconstrained.”[19] In philosophical terms, the first view is “in the tradition of Aristotle, Cicero, Aquinas, and Thomas Hooker – the tradition, in other words, of ‘natural law’ rather than ‘natural rights’ a la Hobbes, Locke, and Rosseau.”[20]
Scripture clearly aligns with the “constrained” view of human nature. It does not conclude that all men are totally “evil” in the sense that evidence of the divine image remains.[21] As a matter for calculation in human affairs, however, the working assumption of Scripture is that human nature is, in general, evil. Evil includes ignorance of God’s laws as well as conscious disobedience to them, despite the common notion that sincerity is virtue irrespective of truth. (To assume that the Lenins and Pol Pots of history were not acting in some respects for the ultimate good of humankind, a sincere and wonderful motive, is to completely misunderstand their ideologies.)
In this discussion, therefore, I use “evil nature” to mean that the incidence of goodness (not righteousness) and knowledge in humans is of such sparse and erratic frequency as to be an unworkable assumption upon which to base human relations. By “good nature,” I mean just the opposite.
As to jurisprudence, the first view (at least in the American experience) has no grand visions that social problems will ever be “solved” because human nature will be human nature, regardless of what social arrangements exist. Because power will inevitably be abused, this view seeks to limit the legal power one has over another and to diffuse concentrations of legal power. Humans are certainly capable of good, but the odds are much greater for the abuse of power than the wise and benevolent use of it. It is better to stifle some good, than to unleash greater evil.
The second view takes the opposite approach. Human nature is basically good or at least generally susceptible to substantial betterment. Evil results primarily from poor environment, that is, from defective social institutions. If the best and brightest among us are provided sufficient power to properly control those in need of improvement (or, less offensively, to properly arrange social environments by way of better education and the like), then those somewhat lacking in goodness and knowledge will achieve more fully their human potential for goodness and society’s problems will be greatly reduced or eradicated.
These two views have different goals for society. The goal of the first view is quite modest, even “fatalistic.” That view conceives of no more than cautious, laborious, uncertain progress, mindful that no culture in history has yet indefinitely avoided self-immolation by the vicious fires that burn within human nature. Whatever progress occurs is primarily the product of individual human betterment, a process generally beyond the reach of government to effect.
The second view is optimistic. Progress does depend upon human nature, but because that nature is basically good, or at least malleable, controlling social institutions by law will effect substantial social betterment. Social good is not primarily a matter of individual charity or missionary work or personal responsibility in a limited social orbit. Rather, the only real hope for solutions lies in institutional change.
The first view sees the second begging for tyranny. The second sees the first as accepting a wretched status quo, and it has had the best of it in recent history. (Thomas Sowell once said, “Can you imagine a radical carrying a sign calling for ‘Prudence’?”)
Paradoxically, the second view in actuality often treats human beings as far more limited than even the first view for it presumes that the vast majority of the populace is incapable of taking care of itself without the wise, and necessarily powerful, oversight and management of the special few who are more wise and benevolent.
Obviously, Christ was concerned with the physical needs of people and interpersonal justice. This life is not unimportant, nor is it merely an ascetic proving ground.[22] In fact, what is done in this life is vital to one’s happiness in the next.
Notwithstanding, the teaching of Scripture on human nature is more consistent with the constrained view of human nature. Christianity’s primary mission is spiritual, and the affairs of this life are not its antecedent or paramount concern. A good society is a beneficial by-product of individual regeneration; it is not a first cause. Scripture holds out hope of “final solutions” only in a future perfection after this life and in the personal return of Christ to this earth as absolute ruler.
Certainly the Catholic church and traditional Protestantism have long been concerned with the “catholic” mission of Christianity, that is, the social arrangements and benefits inherent in obedience to Scripture. Until recently, however, few “Christians” ever attempted the “immanentization” of heaven upon earth by strictly secular means.
The nineteenth and twentieth centuries have witnessed fundamental changes in outlook by many denominations. “Christians” have engaged in social interpretations of Christ’s teaching,[23] including perspectives such as the social gospel movement and liberation theology. In these interpretations of Christianity, the optimistic view of human nature is regnant.
Agencies for “Betterment” of Human Nature
The Family
In keeping with the pessimistic view of human nature, Scripture assigns parents, not government, the primary responsibility for controlling human nature and developing goodness (not righteousness). Historically, parents in America have exercised the virtually autocratic power necessary to direct human nature when it is somewhat malleable in infancy and youth. However, the optimistic view is impatient with the questionable results achieved by the family system of betterment. It recommends state control at earlier and earlier ages in the form of compulsory education, subsidized day care and so on. The pessimistic view fears the creeping despotism of the state in such measures, as the state plows under the institution of the family which, until now, it has been reluctant to invade.
I, of course, believe the family system of betterment is far superior. As a former elementary school principal, I have witnessed in concentration what every parent knows. Children are wonderfully transparent creatures, capable of the purest kindnesses and the most devilish cruelties. Absolutely no teacher is capable of adequately directing the moral betterment of thirty such persons.
The benefit of the family is that two parents are responsible for a limited number of children. Control can be more intense because it is numerically limited. The only family role models available are those older than the learners; thus children mimic those wiser and more self-controlled than they and not their peers.
If parents make mistakes in religion, education, discipline or philosophy, they damage only a few human beings. When the state makes such mistakes, it damages entire generations. (Convinced of the first view, I view with terror a thoroughly national system of education.)
The Church
The church is the second Scriptural mediating institution. It is responsible for the spiritual and moral direction of individuals and, indirectly, of the culture. In keeping with the pessimistic view of human nature, it serves a function (among others) similar to the family in diffusing power from the state.[24]
In contrast to these views of the family and church, the optimistic view generally supports educationists who conceive of government schools as the new centers of socialization and value development.[25] Divorced from the spiritual direction of the church, such an enterprise is a disaster. Moral betterment and the impartation of righteousness are inextricably intertwined. Once a child is grown, there is little other than a spiritual experience imparting righteousness that will change his nature. Strictly moral reform does happen, but even that is a voluntary, “spiritual” decision.
Government
The third Biblical institution is government. Because Christ’s kingdom was “not of this world,” the Old Testament theocracy had a more detailed description of government than New Testament teachings. The civil functions of the theocratic priesthood were limited to little more than civil cases, criminal justice, military leadership and strictly proscribed taxation. The law contained numerous welfare provisions, but there was no civil enforcement of most. Social obligations were matters of personal responsibility. God gave severe warnings about the economic and civil repression that would result if the people chose to look to a powerful state for provision rather than to God and obedience to his law (Deut 17:14-20; 1 Sam 8:11-18).
Though adoption of Old Testament theocracy is obviously not required for modern nations, the basic institutions and their functions can hardly be ignored. Under that system, government possessed a didactic function in just administration of civil and criminal law. Beyond that, however, family and religious institutions held complete responsibility for moral betterment.
Aberration: The Improvement of Human Nature by Law
The Morality Maxims
For most of this century, two absurdly contradictory maxims of government have been regnant: (1) that government’s duties are to promote “the greatest good for the greatest number” and (2) that although government thus seeks the general welfare, it cannot and ought not “impose morality.” These maxims have been so ingrained that many legislators simply act upon them intuitively, without considering their inherent contradictions and the problems such contradictions produce.
“The Greatest Good for the Greatest Number”
“The greatest good for the greatest number” is a ratio of superlatives, the equivalent of a race the object of which is to run the farthest distance in the longest time. This maxim is on the wane but, unfortunately, for reasons other than illogic.
Most legislators are possessed of the notion that, when one is elected legislator, he is individually capable of doing more good than before. Not so. The very police, taxation and spending powers which augment the legislator’s ability to do good as he sees it concomitantly reduce the private citizen’s ability to do good as he sees it. Every dollar taken by a legislator from a citizen reduces correspondingly that citizen’s capability to do good.[26]
The illogic of the “greatest for the greatest” maxim leads to the opposite of what its adherents profess. Many a legislator seems incapable of disabusing himself of the notion that, once elected, his capacity for good is somehow greater than as a private citizen. He seems incapable of comprehending that he is merely using the law to prevent others from carrying out their ideas of “good.” Backed by force, he now compels them to carry out his idea of what is good.
“Government Cannot Impose Morality”
The proscription against “moral imposition” is thoroughly hypocritical, though perhaps not consciously so. Government is a moral enterprise by nature, permitting or demanding some behaviors and proscribing others. The question is not “whether” morality, but “whose” morality.
For example, since Prohibition, everyone “knows” that government cannot impose morality, but this is only a recognition of my thesis as to law. The failure of Prohibition merely showed that a significant number of persons were not inclined to obey it. Government could have made America practically dry had it chosen to be draconian enough to do so.
There are other examples. Government routinely enforces moralisms respecting murder, incest, social duty (through redistributive taxation and spending), gambling and even traffic regulation. The “success” of any law is relative, and these laws “succeed” because relatively more people are disposed to obey them.
Put another way, a legislature cannot provide any amount of good for any number without first making a moral decision as to what that good will be. There is no such thing as political “good” ex nihilo. Rather, those in control of the engines of state inevitably use them to carry out their own conceptions of good as they see it.
In summary, though the “morality maxims” seem to be declining in popularity, their basic notions remain. Weaknesses of majoritarianism have been exposed, but there is still little recognition or attendant caution that government, by its nature, imposes the morality of those controlling it.
Still, as bad as those notions were, they at least implicitly recognized that the state cannot provide good for all. As history grinds on, many seem to have lost even that link with reality and are somehow convinced that government can (and should) provide the “greatest good for the entire number,” all without making anyone live by a personal moral code with which he disagrees, of course.
Deification of the State
The “optimistic” vision of human nature and law conceives the building of an earthly heaven in which social problems shall be “solved.” Those of the pessimistic view realize that problems are not external; poverty, ignorance and war are results of human nature, not its causes. They look for final solutions in a future life and rule by God.
The optimistic view is impatient with such a bleak (and humbling) vision. A change of institutions will work a reallocation of wealth and power. Such a reallocation is just because each one has a right to fullness as a human being and thus to the resources necessary to achieve that fullness. Those resources, of course, are not created by government. They are first taken from private citizens by the moral authorities in control of governmental power.
The problem of the second view is not only that it considers environment the primary determinant of human nature, but also that it misemphasizes the crucial components of that environment. Poverty is not primarily a material condition, but a spiritual one. It has very little to do with the amount of money one has in his pocket. If government, family, church and school combine to teach a child that he is a helpless victim of circumstance, he will ordinarily learn to think that way; the theory becomes self-fulfilling. But if his environment, his “teachers,” convince him that he possesses a free will and bears responsibility for the choices he makes, he will think quite differently. He is no longer a “poor” person.
One of the great differences between ancient paganism and early Christianity was in their varying concepts of responsibility. Responsibility has generally been defined as “the human sense of answerableness for all acts of thought and conduct.” The pagan, however, located responsibility primarily in his environment – e.g., fate, the stars, the gods, and the like, whereas Christian faith insisted on individual moral responsibility. Orthodox Christianity was not then nor is it now concerned with the pointless questions about heredity, environment, the stars, or any other like search for a cause. Rather, Christians perceived that “the pagan search for causes is a denial of the person and also of responsibility.”[27]
God has planned that humanity should trust him for things ranging from the simplest provision of daily bread to the mysterious regeneration of human nature. I do not purport to find any bright lines in Scripture where dependence upon God and personal responsibility leaves off and dependence upon the state and environment begins. I observe only that as a culture ceases to look to God and his prescriptions for such needs and turns instead to an omni-competent state, that state must necessarily assume the omniscience, omnipotence, and omnipresence of a god in order to meet the demands of its worshipers. Unlike God, however, the state is neither all loving nor all wise.
The Fruits of the Vision
Believing the Scriptures, I am not surprised at the trends I observe. Solzhenytzin once observed that atheism and materialism are two roads to the same destination. A materialistic society lives by bread alone. And when the state controls the bread – even (and perhaps especially) in the cause of human good and redistributive “justice” – then the state controls society.
The anti-Christ will not come first as a demon to tyrannize and subvert the world. He will come as a savior to ensure a truly just distribution of the necessities of life. To accomplish such a feat, however, he will need control so extensive that, without his approval, “no man [may] buy or sell” (Rev 13:17).
Because the family and church have failed to produce human nature measuring up to optimistic visions, the state continues assuming greater responsibility for and control of behavior. The rehabilitative model of penology, for example, is premised upon the assumption that law has the capacity to remake human personality. Divorced from a Christian view of human nature, that approach has fostered practices which, if perpetrated in other countries, would be considered torture.[28] Such an approach does not remake human nature; it obliterates it.
As another example, Communist ideology was the most optimistic philosophy in the history of the world. It was primarily a religious vision which taught that the forces of history had selected the socialist state to ready human nature for the perfect, stateless society. Because human nature was monistic, it could be recreated by changing physical environment and social institutions – the effete city life of Phnom Phen for the purifying life of the countryside, for example. To obtain obedience necessary for such a task, terror was a legitimate mediating factor which helped persons calculate values correctly. It was justifiable in light of such a great goal.
I am not so provincial as to think that Americans are fundamentally different or more congenial than Russians or Cambodians. The powerless already suffer the inability to insulate themselves against social institutions. I see no benefit in creating ever more powerful governmental agencies which drag everyone else into the morass of powerlessness against the state, the equality of the pit, all in the name of delivering them from inequality, of course.
Conclusion
My conclusions are modest. Law individually is what I like and have freedom to do. Law collectively is what is liked by the persons with capability to make others think that the wishes of the first are the most desirable or the least offensive possible actions. God has permitted choices. Law ought to be conformity to those choices he approves. Law eventually will be that.
As to this life, there is no such thing as a “final solution.” There is only a possibility that evil may be controlled to some extent and the image of God not overly discouraged. This existence is not nothing, but neither is it everything. Happiness is subjective, and the state embarks upon a fateful course when it attempts to ensure happiness for each citizen in this life.
There are divine orders which a society cannot long violate. The family is responsible for the character and education of children. The family and church are responsible for the spiritual and ethical direction of the people and the state.
The state is responsible for the physical protection of citizens and for settling interpersonal disputes in accordance with God’s standards to the extent they are knowable. Law’s responsibility includes criminal justice, but even that is primarily a matter of the criminal’s responsibility to a fellow creature. Crime is not a violation of the “king’s” peace in the first instance; it is a matter between the criminal and his victim.
Conceptions of law are based upon views of human nature. Of course, “If men were angels, we should need no government.” But one ought not confuse a just society with a good one. This does not belittle justice. It recognizes instead that the less good the individuals are in the society, the greater the demands upon justice.
In a good society, the requirements of the justice system are relatively simple. As the society departs from godliness, however, the requirements of justice become complex to the point of impenetrability.
If one husband deserts his family, there is little difficulty. If a thousand do, a good choice is more and more difficult. If only one landlord defrauds a widow, there is little difficulty. If a thousand do, a good choice is more and more obscure. The greater the degree of evil, the less competent the law is to deal with it. In one sense, God has no “Plan B.” “If the foundations be destroyed, what can the righteous do?” (Psalm 11:3)
It is simple moral rules that make a good society, not elaborate juristic principles. When enough individuals refuse the simple commandment “Love thy neighbor,” it is time to leave the country no matter what the judge does. Sorting out rights among the wicked will turn Professor Dworkin’s Judge Hercules into Judge Sysiphus.
Jurist William Gass once counseled to avoid arcane jurisprudential hypotheticals and to stick to “clear cases.” His “clear case” posited a person murdering, then baking and eating a perfect stranger – something Gass thought no one could dispute as merited illegality. Gass lived during a time before Europe’s most cultured and educated people began making lamp shades out of human skin. Nevertheless, he should still have been aware of practices such as ritual cannibalism and suttee, the Hindu custom by which wives are immolated on the funeral pyres of their husbands. I cite these unpleasantries only to remind the Gass’s of the world that without some authoritative standard, eventually nothing is clear.
Gass was right in at least one respect. There is no ultimate linguistic formula for justice or truth; there is ultimately a Person who is not the sum of whatever logical propositions and descriptions may be written about him. No verbal formula will provide a right, best, or even good solution in all cases.[29]
Christ revealed as much in his answers to the skeptic. Asked to define “love” and “neighbor,” he did not do so. Rather, he told the story of the Good Samaritan. Though precise definitions of the terms were impossible, the Pharisee knew exactly what Christ meant because he had the image of God imprinted on his conscience. The Samaritan was a “clear case,” irrespective of the inability to linguistically define “good.”
In this sense, Christianity supplies the answer which the Greeks lacked. They had no ultimate, real personalization of the great virtues. God does not define those virtues; he is them.
The Samaritan is a good place to stop. The Pharisee and the Levite passed by on the other side to avoid ritual defilement, all in keeping with the verbal formula of the law God himself had delivered. The Samaritan understood the spirit of the law, the character of God of which the letter is only a finite description. We cannot discount written Scripture, of course, for God works through reason, not apart from it, but comprehending truth about God is ultimately impossible by reason alone.
This article is about jurisprudence. The jurisprudential rule of the Samaritan is that he was not particularly concerned about justice. He had no legal duty to help and had every right to pass by as did the others, but he was not concerned with legality. Above all, he did not send a tax-supported proxy to help. Instead, he personally and voluntarily got his own hands bloody and paid out his own money to help one to whom he had no duty. (When the state forces a citizen to be compassionate or benevolent, it robs him of his choice to do good and thus of his morality, because choice is an indispensable essence of a moral act.[30])
I realize that my conclusions need qualification. Proper qualification is endless, so I will end with three simple maxims.
- The Pharisee and the Levite were both just men. I would rather live next to the Samaritan.
- Society will cease to function when there are more thieves than Samaritans on the road to Jericho, and then it will matter very little what the Pharisee and the Levite do.
- Those who trust primarily in justice to bring about a good society will be tragically disappointed
[2] Guy R. LeFrancois, A Psychology for Teaching (Belmont, CA: Wadsworth, 1975), 160.
[3] Ibid., 160-62.
[4] Ludwig von Mises, Human Action: A Treatise on Economics, 4th ed. (San Francisco: Fox and Wilkes, 1963), 33.
[5] This concept is familiar to religions. “I have learned in whatsoever state I am, therewith to be content” (Phil 4:11). Buddhism takes this principle to the extreme, teaching that freedom or nirvana is the total extinction of desire.
[6] In doing away with the choices implicit in “freedom and dignity,” B.F. Skinner also did away with humanity.
[7] Graeme Newman, Just and Painful (New York: MacMillan, 1985), 141-42.
[8] Oliver Wendell Holmes, The Common Law (London: MacMillan, 1881), 2: 374 cited in C. Gregg Singer, From Rationalism to Irrationality (Phillipsburg, NJ: Presbyterian and Reformed, 1979), 374.
[9] A. Russell, My Father Bertrand Russell (New York: Harcourt, Brace, Jovanovich, 1975), 182.
[10] Ibid.
[11] Ibid., 188.
[12] Hume, Of Miracles, X cited in John Warwick Montgomery, The Shape of the Past: A Christian Response to Secular Philosophies of History 2nd ed. (Minneapolis: Bethany, 1975), 290.
[13] See Reynolds v. United States, 98 U.S. (1879) and Davis v. Beason, 133 U.S. 333 (1889).
[14] Cf. Mormon Church v. United States, 136 U.S. 1 (1889) and Holy Trinity Church v. United States, 143 U.S. 457 (1891).
[15] Tradition per se justifies nothing. The remark is attributed to Justice Holmes that a rule ought not be followed for no better reason than that it was laid down in the time of Henry IV.
[16] This point addresses Hume’s argument that theologians err when deducing a philosophic cause from empiric observation, an orderly Creator from an orderly creation. But, of course, Hume does even worse and rules out an orderly cause by arbitrarily ruling out such a cause a priori.
[17] “I know, therefore, I am” was revised to “I doubt, therefore, I am.”
[18] Hebrews 11:6 states, for example, “But without faith, it is impossible to please him: for he that cometh to God must believe that he is, and that he is a rewarder of them that diligently seek him.”
[19] This is the thesis of Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggles (New York: William Morrow, 1986).
[20] Thomas Sowell, “Visions and Social Policy,” Lecture at Marquette University, April 23, 1987. See also Sowell, A Conflict of Visions, 18.
[21] George H. Nash, The Conservative Intellectual Movement in America Since 1945 (New York: Basic Books, 1976), 164.
[22] Psalm 116:11.
[23] That Christians are necessarily “so heavenly minded that they are no earthly good” is simply not correct. For example, “It is not well known, but of 68 men on the original list of the Royal Society for whom information on their religious orientation is available, 42 were Puritans.” Charles Dykes, “Guilt, Responsibility, and Western Prosperity,” The Freeman 28.4 (April 1978): 198.
[24] C. Gregg Singer, A Theological Interpretation of American History (Darlington, UK: Evangelical Press, 1981), 142-222.
[25] “As Hannah Arendt has demonstrated in her classic work, The Origins of Totalitarianism, one of the basic features of totalitarianism is the abolition of all the intermediate structures and institutions within society – the church, labor unions, social clubs, fraternal associations, independent schools, even family solidarity. Its goal in so doing, conscious or not, is the creation of an ‘atomistic mass,’ it is every man for himself and every woman for herself. Individual ties, personal loyalties, friendship, ties of blood, business and religious associations and the like fade into insignificance. The individual exists in only one important relation, to the state power.” Harold O. J. Brown, The Reconstruction of the Republic (New York: Arlington House, 1977), 49-50.
[26] See Rousas J. Rushdooney, The Messianic Character of American Education (Nutley, NJ: Craig, 1972).
[27] For example, Tip O’Neill for years used his position of power to ensure that his district received a per capita return of federal tax dollars higher than that of any other district in the nation. Yet during that time he consistently declaimed as a moral conscience on behalf of the poor that government did not do enough for the people. Whatever else one may conclude from this, it seems likely that other representatives and their districts defined the public good in different terms than O’Neill and his district.
[28] Dykes, 195.
[29] SeeLee Coleman, The Reign of Error: Psychiatry, Authority and Law (Boston: Beacon, 1984), 196-215. The author is a psychiatrist. The cited portion contains a few of the plain barbarous practices endured by prisoners in the name of “rehabilitation.”
[30] Zeno’s paradox, for example, is at bottom the inability of mathematic linguistics to completely describe the nexus of time and space. Language is likewise incapable of ultimately defining justice, much less exhaustively applying it.
[31] Politician’s claims of “moral” and “compassionate” social welfare legislation are ignorant and arrogant. Compassion is giving away one’s own money, not someone else’s. And forcing a citizen to be compassionate through taxation robs the citizen of the free choice whether to help.
Thus, government social policy may be a necessary evil. Perhaps it may even be wise political management. But it absolutely cannot be either moral or compassionate.
