Righteousness Plus Series

Judicial philosophy is much in the news right now. And underlying the debates – in addition to some very important policy issues - are some very fundamental questions. Who makes the law? Where does law come from? What is law for? What can law do? What role should religion play in the formation of law? There are as many theories as there are people. For societies ruled by kings and conquerors, law was what they could enforce, and changed with the ruler. Roman law was “the product of rationally based work done by those in charge of the exercise of justice. . . . [Anglo-Saxon law got its] authority from] ‘custom’ ... the famous ‘common law. . . "

In America, we are primarily in debt to the idea of the law which was given to Israel on Mt. Sinai. “God did not impose the law solely on the basis of divine power and authority. God enters into a covenant with Israel. Israel is under the obligation to observe the law . . . because Israel freely agrees to keep this law given by God . . . God’s first gift to Israel is . . . freedom.” (References in quotes are from Jean Louis Ska, “Biblical Law and the Origins of Democracy,” The Ten Commandments: The Reciprocity of Faithfulness, ed. William P. Brown, (Louisville - Westminster John Knox Press), 2004), 156.) When Joshua brought the Hebrew tribes into Canaan after the 40 years wan-dering was over, he gave them a chance to opt out of the covenant: “...choose this day whom you will serve … but as for me and my household, we will serve the LORD.” [Josh 24:15] Just as God’s people of that day did, the law under which we live today was also freely chosen by the participants in the great experiment in self-government our ancestors put into place some 21/2 centuries ago. And the reason it worked for so many years is that there was pretty broad agreement about what a civil and just society looked like.

All the trouble we’re having between the various political factions - from police to abortion to national borders - arise from the fact that we no longer have a common idea of what a civil and just society is or does.

We live - we must live - in a society ordered by law. None of us want to live in a lawless environment, although sometimes those laws are inconvenient. Be honest, now . . . have you ever run a red light at 2:00 in the morning when there was nothing coming from any direction? But on the other hand, if you’ve ever driven in Rome - or Istanbul or Djakarta, which are even worse - you start being grateful for the traffic rules here at home.

Think about what kind of society one without laws would be like. It would be a society with no authority outside of the individual. Judges 21:25 describes such a situation: “In those days there was no king in Israel; everyone did what was right in his own eyes.” When there is no objective authority or law, each individual develops his or her own rules. Some people believe that defending your home and property against intruders justifies violence, others shout “people before property!” If is it all right to kill someone while defending your home, is it equally acceptable to kill someone while invading someone else’s? The difference is, of course, between those who have property to protect and those who want it. Who is to say he is wrong, though, if there is no objective law?

The famous jurist Oliver Wendell Holmes made popular the idea that there is no such thing as “natural law,” that is, laws that are inherent in the nature of the created world. He believed that laws are tools for social engineering. And that’s the backbone of progressive jurisprudence. Under this view, laws are passed by experts in order to create a more perfect society.

But who decides how to engineer society? What is the underlying philosophy? You have to have both a theory of government and a theory of humanity in order to make any kind of coherent system.

The vision of the good society which influenced the development of law in what used to be Christendom owes a huge debt to the Bible. Nowadays, unfortunately, many insist on leaving any reference to God completely out of the discussion. The cry is,“You can’t bring religion into politics!” But where do such people think our laws against murder come from? Hammurabi’s famous code had different penalties for murder, depending on the status of killer and victim. The idea of equality under the law comes straight from Moses. Laws protecting the poor and mandating fair weights and measures come from the Bible. The mandate to care for the widow and orphan comes straight from the earliest years of Christianity. And the abolition of slavery was a purely Christian initiative.