EDITOR’S JOURNAL: A theology of public law
Writing in the Harvard Law Review in the spring of 1897, Oliver Wendell Holmes admitted that the law “was the witness and external deposit of our moral life.” Holmes realized morality could exist without law, but law could not exist without morality.
He believed no moral theory should be allowed to complicate the interpretation of the law by cluttering the mind of the judge with ethics, axioms of reason and religious tenants. Moral debate was the business of legislation, not jurisprudence. The jurist was simply to take the words of the law and apply them to present situations as they arose. Consistency was a necessity for the rule of law to remain constant, and the past was to inform the future. The legal idea of stare decisis—to stand by that which is decided—would then rule the day and preserve justice in the law.
Holmes titled his piece, “The Path of Law,” and he readily realized that law’s path was soon to be trodden by political issues that would, over time, bear significant influence over how society was shaped. Far from being a static and enigmatic facet of life in the modern century, law was becoming the arena of moral debate—an area once rightly relegated to the legislative chamber. The crux of the matter was and is the question of authority. Who classifies what is right, and by what authority does the law derive its power?
In a republic or democracy, ultimate authority cannot reside with the judiciary. It must rest with the people. For the courts are dependent on the people’s representatives to draft modern law in accordance with the morality of their constituencies. Politicians, therefore, are a reflection of the culture which seats them in power, and legislation is the expression of their beliefs.
Here lies a danger of democracy: The people often can be so consumed by immorality that the law of the land becomes a license to become legally decadent. The protection of law can be transformed as an avenue of licentious perversion to the point that the society implodes. For the rule of law to establish justice by its statutes, a minimum of moral standards must be in place before a legal system can even exist. In other words, civic life demands moral preconditions.
Fortunately, moral preconditions have been revealed by God. The entire planet abides under laws put into place at the moment of creation and sustained through God’s covenant with Noah (Genesis 8:22). While man is not fully cognizant of the special revelation contained in Scripture, the general revelation of certain laws of creation are accessible to all. The result is a clearly perceived knowledge of Him as ruler and judge, coupled with an active rebellion against God on the road toward futility. Culturally, sinful man is always striving to conform society’s norms to excuse and camouflage his schemes of deviance to lessen the perception that an act, though legal, is sinful.
One of the few buttresses against the entropy of any society is the moral revitalization brought about through the continual reformation of the church and her influence in the community. Fundamentally, the opinions and actions of a people are shaped by religious influences, and the shared concepts of what is right and just emanates from some perspective of truth.
Regulating the passions of men is dependent on educating the passions of men, which is ultimately dependent on institutions outside the government and the courts—namely the home and the church.
The American experiment has continued to work in part because certain structures and plans were put in place which reflected certain theological understandings termed by Jefferson as “self-evident” truth. That which was both foundational and seminal in the founding of the republic was the direct result of the major influences at work since the beginning of time.
Regardless of the influence of the Enlightenment on constitutional parlance, Christian truth still permeated much of the thinking of the day. As a result, the onus of power was given to the states and local communities as opposed to a centralized government because the founders feared that one of the federal branches of government or worse, a single judicial body, might grow too large and wield too much power over the people. Power was dangerous because men were sinful. If local communities and states, however, could govern themselves according to the dictates of their consciences, then the nation’s laws at the federal level would remain limited in size and scope so as to avoid the tyranny of the minority.
The future looks bleak for marriage and the family. The trajectory is now moving for the rapid attrition of every social structure critical to any culture. The results of judicial decision-making such as this are often not felt until it is too late. Yet, a wide door of opportunity is open before the church should she in obedience to Holy Scripture seize it. This opening does not require the church to become political as much as it requires her to reform biblically.
It is remarkable to observe how the once world-changing message of the Gospel has been truncated to only include sermons regarding personal fulfillment and life skills for the 21st Century. History, however, is replete with examples of how the Christian church impacted cultures with the Gospel. Under the Lordship of Christ, the church stands at the forefront to “redeem the time” in evil days (Ephesians 5:15).
Will the church respond or simply watch as a nation tumbles toward oblivion?
Douglas E. Baker is executive editor of the Baptist Messenger.