Category Archives: Natural Law
It just so happens that as Congress considers dismantling Medicaid as we know it – as well as an end to the law that requires health insurers to cover people with pre-existing conditions – I am preparing to explore the theme of “Good News for the Poor” with my seminary ethics class. One of the things I do with my students is to walk through the New Testament to show them just how continuously and emphatically Christ and the apostles call Christians to take responsibility for the poor. Care for the poor is so central to the kingdom and its justice that it became the basis for an entire office of the church: the diaconate.
I also point my students to the history of theological reflection on poverty in the Christian tradition. In particular, we discuss the general Christian consensus that God gave the earth and its resources to human beings in common and that property rights are always subject to the rights of all human beings to the basic resources necessary for life.
Thus the church father Ambrose argued that the possessions of the church belong to the poor. Thomas Aquinas argued that it is not theft when a starving person takes what she needs from a rich person because every person has a right to have her basic needs met. And John Calvin argued that those who do not share with the poor when they are in need are guilty of theft – and potentially of murder. Basic provisions are not owed to the poor as a matter of charity but as a matter of justice. Indeed, Calvin regularly stated that the poor have a “right” to such resources.
That’s why Calvin took the work of Geneva’s General Hospital so seriously. He believed it was the responsibility of government to provide funds for poor relief and medical care, and that it was the responsibility of the church to care for the poor through the diaconate.
I’ve written a fair bit on Calvin’s views of poor relief, here on my blog (including on Calvin’s view of the distinct responsibility of government with respect to the poor), for the Gospel Coalition, and for the Calvin Theological Journal.
I realize that Christians differ on just how it is that government should most effectively secure justice for the poor – whether with respect to poverty in general or health care in particular. Neither the church nor its clergy have any authority – let alone expertise – to dictate health care policy to the state. But where I think Christians ought not disagree is that we owe the poor their rights – to basic sustenance and to basic health care – as a matter of justice.
That’s why, for instance, the catechisms of the Reformation (Heidelberg, Westminster) declare that the commandments You shall not murder and You shall not steal require us to care for the needs of the poor. To put it in classic theological terms, it is a requirement of the moral law of God. It is part of the natural law written on our hearts as image-bearers. We are, scripture teaches us, our brothers’ keepers.
If we believe that failing to secure the poor their rights constitutes theft – or even murder – then it goes without saying that it is well within the responsibility of government to protect the poor from such injustice. Indeed, if government can be best evaluated based on how well it protects the poor from injustice – as Calvin thought – than how proposed health laws will affect the poor should be the primary concern of legislators and citizens alike.
Whatever conclusions we come to with respect to particular policy approaches (and we should be humble here), we should be agreed that health care for the poor is not merely a matter of charity. It is a matter of justice. Our representatives should know that this is where the Christian tradition stands.
Pope Francis’s visit to the United States has reminded Americans of the vital and positive role of religion in a healthy democratic polity. While pundits speculate on whether or not the pope’s visit will have any practical effect on politics, I remain hopeful that his words will do something to challenge the myth – popular among secularist liberals – that liberal democracy can survive without its religious foundation.
This is important because in a time when the numbers of the religiously unaffiliated (the “nones”) are surging, fewer and fewer people grasp just how theological are the origins and foundations of political liberalism. My politics students are always surprised to learn how central religion was to the political commitments and conduct of America’s founding generation, not to mention its pervasive role in federal and state governments throughout the nineteenth and twentieth centuries.
The pope touched on liberalism’s dependence on religion early in his speech to Congress. Invoking Moses as both jurist and prophet, he declared to the representatives that “the figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: you are asked to protect, by means of the law, the image and likeness fashioned by God on every human face.”
Echoing a speech by President Obama several months ago, he acknowledged that religion is often used for evil, but insisted that in America religion has typically served to strengthen society by encouraging fraternity and love. Thus he called Americans to act according to the Golden Rule, “Do unto others as you would have them do unto you.” This rule, he argued, is the basis for human compassion for “human life at every stage of its development.”
Francis’s speech to the United Nations was even more pointed. While praising the UN for its role in promoting international law and human rights, he reminded his international audience that human rights depend on sanctity given each human being by God. The right to life provides the foundation for “pillars of integral human development” that are “essential material and spiritual goods: housing, dignified and properly remunerated employment, adequate food and drinking water; religious freedom and, more generally, spiritual freedom and education.”
There is, he claimed, “a moral law written into human nature” that demands “absolute respect for life in all its stages and dimensions.” Thus, he warned,
Without the recognition of certain incontestable natural ethical limits and without the immediate implementation of those pillars of integral human development, the ideal of ‘saving succeeding generations from the scourge of war’ (Charter of the United Nations, Preamble), and ‘promoting social progress and better standards of life in larger freedom’ (ibid.), risks becoming an unattainable illusion, or, even worse, idle chatter which serves as a cover for all kinds of abuse and corruption, or for carrying out an ideological colonization by the imposition of anomalous models and lifestyles which are alien to people’s identity and, in the end, irresponsible.
The pope was partly thinking about what nature teaches about the differences between men and women here, but he was also talking about the importance of protecting the environment.
[E]very creature, particularly a living creature, has an intrinsic value, in its existence, its life, its beauty and its interdependence with other creatures. We Christians, together with the other monotheistic religions, believe that the universe is the fruit of a loving decision by the Creator, who permits man respectfully to use creation for the good of his fellow men and for the glory of the Creator; he is not authorized to abuse it, much less to destroy it.
Thus it is a “certain sacredness of created nature” that calls modernity to embrace a “higher degree of wisdom, one which accepts transcendence, rejects the creation of an all-powerful elite, and recognizes that the full meaning of individual and collective life is found in selfless service to others and in the sage and respectful use of creation for the common good.”
Finally, returning to his American audience at Independence Hall in Philadelphia, Pope Francis invoked the truth of the Declaration of Independence that “all men and women are created equal, that they are endowed by their Creator with certain inalienable rights, and that governments exist to protect and defend those rights.”
Yet rather than allow his hearers any sort of complacency about the rights to which liberalism is committed, the pope reminded Americans that “these or any truths must constantly be reaffirmed, re-appropriated and defended.” This led him to focus his speech on a right that has been much derided in recent years in this country, the right to religious freedom.
Religious freedom certainly means the right to worship God, individually and in community, as our consciences dictate. But religious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. Religious freedom isn’t a subculture, it’s a part of every people and nation.
Our various religious traditions serve society primarily by the message they proclaim. They call individuals and communities to worship God, the source of all life, liberty and happiness. They remind us of the transcendent dimension of human existence and our irreducible freedom in the face of every claim to absolute power. We need but look at history, especially the history of the last century, to see the atrocities perpetrated by systems which claimed to build one or another ‘earthly paradise’ by dominating peoples, subjecting them to apparently indisputable principles and denying them any kind of rights… They call to conversion, reconciliation, concern for the future of society, self-sacrifice in the service of the common good, and compassion for those in need. At the heart of their spiritual mission is the proclamation of the truth and dignity of the human person and human rights.
To be sure, just as the state is responsible to protect the rights of religion, so believers are responsible to ensure that religion promotes the rights of others, “to make clear that it is possible to build a society where ‘a healthy pluralism which respects differences and values them as such’ is a ‘precious ally in the commitment to defending human dignity … and a path to peace in our troubled world.'”
These are salutary words indeed, much needed in the polarized world of contemporary American politics. Though I wish the pope had been more explicit about the way in which his convictions are rooted in the Gospel, his visit should remind all Americans, secular and religious alike, that, properly understood, Christianity and political liberalism are not enemies, but friends. In the world in which we live, they need one another to flourish.
I fear for future of American Christians if this country loses its liberal commitment to fundamental human rights, including the right of religious freedom, but I fear for the future of political liberalism even more. Pope Francis has reminded Christians that they ought to promote a Christian form of liberalism and he has reminded America and the world that political liberalism needs religion. I hope that Christians and liberals alike are paying attention.
In one of his famous dialogues with the Pharisees Jesus skillfully appealed to creation norms to trump the part of the Mosaic Code that permitted men to divorce their wives for frivolous reasons.
Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and mother and hold fast to his wife, and they shall become one flesh’? So they are no longer two but one flesh. What therefore God has joined together, let no man separate. . . . Because of your hardness of heart Moses allowed you to divorce your wives, but from the beginning it was not so. And I say to you: whoever divorces his wife, except for sexual immorality, and marries another, commits adultery. (Matthew 19:4-6, 8-9)
Here Jesus intertwined the teachings of Genesis 1 and 2 to tie marriage indelibly to the ordering of human beings as male and female, an ordering that was itself indelibly tied to God’s purposes for sexuality and procreation. By linking the sexual relationship between male and female introduced in Genesis 1 to the one flesh union introduced in Genesis 2, Jesus pronounced judgment on all legal engineering that would reduce marriage to something else (in the case of Matthew 19, an opportunity for men to treat women like slaves).
Read the rest of this article at the Ethics and Religious Liberty Commission.
The New York Times reports today that the Democratic Party across the country is erasing its ties with its founders. No longer will the annual party dinners commemorate Thomas Jefferson and Andrew Jackson (as the Republican dinners commemorate Abraham Lincoln). The party wants to be more inclusive, and according to former Democratic Congressman Barney Frank, this is an honest nod to the fact that the politics of racial and sexual identity now trumps the classic Democratic emphases on democracy and economic equality.
Both Jefferson and Jackson were slave-owners, of course, and Jackson played a leading role in the forced removal of thousands of Native Americans from the southeast.
The commemoration of Jefferson and Jackson is as old as the Democratic Party, but it was Franklin D. Roosevelt who sought to mold the party’s image indelibly around them. Jefferson, the author of the Declaration of Independence’s ringing celebration of human equality, and Jackson, the inspiration of modern democracy and the common man, were seen as powerful alternatives to the Republicans’ Lincoln in a time when FDR was trying to forge a coalition of farmers and working class Americans across the country.
But the opportunities facing the Democrats have changed. Now, while the Republican Party becomes increasingly white, the Democratic Party grows in diversity. Given the way in which identity shapes voting patterns, this is not good news for the Republicans. It may seem odd that a major American party would cut its ties with the founding fathers (If the Democrats have their way does America eventually erase Jefferson, Jackson – and Washington too – off its currency? Do the memorials go?), but partisan politics is about the present, not the past. In short, this is predictable.
But what is especially important about this shift is its symbolic meaning. You might think the erasing of ties to Jefferson and Jackson is fundamentally about their role as slave-holders, but the real meaning has just as much to do with the Democratic Party’s rejection of natural law. Remember, again, the words of Jefferson, once thought to be immortal, enshrined in America’s founding document:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness.
From whence do these rights – this equality – derive? From “the Laws of Nature and Nature’s God,” as the previous paragraph declares.
It is no accident that the rejection of Jefferson follows only a few years after the Democratic Party committed itself to gay marriage. The establishment of gay marriage represents the culmination of a fifty-year long shift on the part of the Supreme Court – one enthusiastically supported by the Democratic Party – away from any sort of grounding of human rights and civil law in the laws of nature and nature’s God. Natural rights are out; civil rights are the rage. Natural law is dead; civil law is supreme. Given that morality has no objective reality to it – it is a human invention, not a reflection of a Creator’s purpose for creation – it can only be grounded in subjective reality: individual autonomy.
As Justice Kennedy wrote in Lawrence v. Texas in 2003, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Based upon this “autonomy of self” citizens have no right to use the democratic process to discourage, let alone criminalize, acts they deem fundamentally immoral. But as Robert R. Reilly points out, this formulation is unusual.
Why did Justice Kennedy not simply say that liberty includes these freedoms, or, … that liberty itself is rooted in unalienable God-given rights? Why the presumption of ‘an autonomy of self’ as the supposed foundation for it? What does this mean?
What it means is that the whole trajectory of the Supreme Court’s reasoning about matters of morality during the past 50 years – a span that encompasses the Court’s determination that an adult’s right to privacy (i.e., autonomy) trumps an unborn child’s right to life – constitutes a rejection of the very doctrine of natural rights and natural law that the founding fathers viewed as the foundation for human happiness. The Democratic Party may as well announce that it is erasing its ties with the Declaration of Independence in favor of a new commitment to the autonomy of self.
We have been here before, of course. When it embraced the infamous Dred Scott decision (which ran roughshod over natural rights in declaring that black people are not, in fact, persons at all) on the eve of the Civil War, the Democratic Party engaged in a short-lived experiment to see if a racist will to power could become the foundation for American government. Abraham Lincoln responded by appealing to Thomas Jefferson’s words in the Declaration that all men are created equal, words that he said were prior in authority to the Constitution itself.
Lincoln recognized that while the founding fathers had their flaws (slavery!), it was in the doctrine of the founders that the purpose of America could be realized. The founders got a lot wrong, but they got the most important things right: natural law, equality, human rights as derived from the Creator, life, liberty, and the pursuit of happiness. The Democrats’ determination to be a party of diversity and inclusion is laudable (and one that the Republicans desperately need to emulate!), but this is not the way to do it.
The Democrats’ desire to erase their party’s ties with Jefferson and Jackson is significant because it constitutes a symbolic rejection of the men who articulated and sought to embrace the self-evident principles of the laws of nature and nature’s God. This is not liberalism. It is the abandonment of liberalism. That’s tragic for the Democratic Party and it is very bad news for America.
Reformation 21 has published the third part of my series on Presbyterians and the Political Theology of Race. It is entitled “Gospel Politics” and seeks to contrast King’s tendency to approach politics from the perspective of the gospel to the segregationists’ tendency to approach politics from the perspective of the Old Testament. At the heart of it lies King’s critique of the southern Presbyterian doctrine of the spirituality of the church, a doctrine that had a lot in common with a certain contemporary version of the two kingdoms doctrine. As King put it,
I have heard numerous religious leaders of the South call upon their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers say, ‘Follow this decree because integration is morally right and the Negro is your brother.’ … In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard so many ministers say, ‘Those are social issues with which the gospel has no real concern,’ and I have watched so many churches commit themselves to a completely otherworldly religion which made a strange distinction between body and soul, the sacred and the secular.
What was King’s alternative? Whereas conservative southern Presbyterians tended to interpret the relevance of God’s natural moral law for society and politics through the prism of the Old Testament, King interpreted that same law in light of what he understood to be the meaning of the Gospel for the dignity of the individual human being.
Last week I highlighted the horror of euthanasia in Belgium, where physicians are now responsible for 5% of all deaths. This week we have the horror in America of a federally funded organization selling the body parts of aborted babies on the sly. You can watch the chilling video here.
As I argued last week, this is the product of a form of liberalism that emphasizes the dignity, not of every human being, but of every “person” who has developed to the point of relative self-sufficiency by virtue of the integrity of his or her autonomy. The unborn obviously do not qualify here. This sort of liberalism also increasingly denies that human beings have any obligations toward their creator. As long as you don’t hurt another person you are free to do what you want, even to another human being. This is Secularist Liberalism.
Selling body parts has a particular horror to it, but it is really no more abhorrent than the murder of the unborn is to begin with. An inconsistent society desires to permit the latter, while banning the former, but there will always be a few consistent individuals who are determined to push the limits. Is it an accident that the Huffington Post chooses this week to run an article claiming that 95% of women who have abortions do not regret it?
This presents all the more occasion for Christians to advocate a different kind of liberalism, one rooted in the Christian tradition. As I wrote last week,
Christian Liberalism emphasizes the dignity of every single individual human being by virtue of his or her creation in the image of God. Human life is sacred, according to Christian Liberalism, because each human being has been created in love for a relationship with God. Not only should each person’s life and welfare be protected and promoted, but each person should be taught how to find happiness in relationship to a loving God. Regardless of a person’s worldly circumstances, Christianity teaches, she can find her true destiny in Christ, in whom there is no male nor female, neither slave nor free, neither Jew nor Greek.
According to this ethic euthanasia and abortion are off limits and should be prohibited by the state. Institutions and practices fundamental to human well-being – such as marriage, education, religion, health care, and care for the poor – should be promoted.
This sort of liberalism still has currency. The more Secularist Liberalism leads modern western society into a moral dystopia, the more concerned citizens will be open to the Christian alternative. In short, we increasingly have unprecedented opportunities to draw the estranged back to the gospel by witnessing to the creation of every single human being in the image of God.
At a first read, Obergefell v. Hodges, the Supreme Court’s 5-4 decision declaring same-sex marriage to be a fundamental right, follows a logic that is breathtaking in its simplicity.
Whether you find this logic exhilarating, depressing, or irrelevant does not depend on what you think of gay and lesbian people, or how they should be treated. I firmly believe that discrimination on the basis of sexual orientation is unconscionable; we should treat each person in accord with the human dignity that stems from her or his creation in the image of God. I have zero sympathy with anyone who thinks their Christian faith ordinarily requires them to refrain from serving, living near, befriending, or otherwise loving gay and lesbian people (though this should not, as a matter of freedom of conscience, require Christians to participate in or celebrate gay weddings). The media and political drama notwithstanding, I believe most Christians agree with me.
And yet I, along with most Christians, not to mention Muslims, Hindus, and many other people of good will, find the Supreme Court’s decision deeply troubling.
Read the rest of this article at Canon and Culture.
In Part 1 of this series I observed that southern Presbyterian defenders of segregation emphasized the Old Testament as the authority for biblical norms regarding race over against the more New Testament oriented arguments of their opponents in the civil rights movement. The most prominent version of the southern Presbyterian argument was not the caricatured appeal to the mark of Cain, let alone to the curse of Ham, as we might like to imagine. It was much more sophisticated than that. It usually ran something like this:
In constructing the Tower of Babel human beings attempted to establish a socio-political unity in defiance of the natural law of God. God defeated this attempt by dividing human beings on linguistic and national lines. He then called Abraham out from the nations, and in his law he demanded that Israel likewise be separate. When the people of Israel intermarried with other nations, God punished them severely. The segregationists maintained that nothing in the New Testament suggests that God’s views have changed. To be sure, the Gospel is now universal; Pentecost is proof of that. But the unity of the church is purely spiritual and does not extend to temporal, social institutions. Thus the Old Testament remains a valid testimony to the natural law of God with respect to social institutions such as segregation.
To read the rest of this article please go to Reformation 21.
Christian political activists from across the political spectrum sometimes speak and act as if Christians should brook no compromise with the state on the particular issue with which they are concerned. Whether the issue is sustenance for the poor, protection for the unborn, the punishment of what scripture calls sexual immorality, or something else, the argument is made that on this point there can be no compromise: A Christian cannot vote for a libertarian or a Tea party candidate, or for a pro-choice politician, or for a politician who supports gay rights, etc. So the argument runs. I suppose we are all supposed to write in our favored names, be it Jim Wallis, Pat Robertson, or Doug Wilson.
It is certainly true that when it comes to proclamation and witness Christians should preach the whole will of God. As Timothy P. Jackson points out, no faithful Christian would willingly sacrifice fidelity to God to her own political or personal interests. We are disciples of Christ first and foremost. A Christian pastor is obligated prophetically to proclaim the whole word of God.
But that doesn’t mean civil government should enforce the whole will and word of God, as the great Christian theologians from Augustine to Aquinas to Calvin have all recognized. Unlike Judaism or Islam, Christianity offers no divine blueprint for politics. It sharply delineates the kingdom of Christ from political authority, the restorative ministry of the gospel from the limited preservative power of civil government, and divine law from human law. To put it another way, Christian theologians distinguish the perfect standard of God’s natural moral law from the way in which Christians, in service to their neighbors, apply that law to politics according to the virtues of love and prudence (not to be mistaken for self-serving pragmatism). As Jacques Ellul put it,
“Our task, therefore, is not to determine what law with a Christian content is; rather, it is to find out what the lordship of Jesus Christ means for law (law as it exists), and what function God has assigned to law.”
All of this may sound an awful lot like moral relativism. Wouldn’t it be best simply to advocate the implementation of the law of God, come what may? In fact, John Calvin pointed out, even the law of God itself, the Torah, limited the civil enforcement of God’s will to what sinful human beings could be expected to fulfill. Its severity was relaxed due to the hardness of human hearts, and it even regulated unjust practices in order to minimize their destructive consequences.
OK, you might think, we all know that civil government can’t enforce certain laws, such as the prohibition of coveting, or lust, and that Israel’s laws tolerated things like slavery. But surely government must enforce the big prohibitions, like the ones against murder, adultery, or theft, without compromise. In fact, Calvin recognized the limits of Israel’s civil law even here. The prototypical case was the Torah’s law of divorce, which Jesus himself said is ordinarily unjust even though Moses tolerated and regulated it due to the hardness of human hearts. But Calvin extended the principle to a myriad of other laws in the Torah, including laws that tolerated adultery, murder, and the abuse of slaves, that he believed failed to measure up to the standards of God’s natural law. These include:
- the law that permitted men to enslave and force into marriage women captured in war (Commentary on Deuteronomy 21:10)
- the law that minimized the penalty for a man who committed adultery with a slave (Commentary on Leviticus 19:20-22)
- the law that permitted soldiers to murder prisoners of war (Commentary on Deuteronomy 20:12)
- the law that permitted a man to sell his daughter into slavery (Commentary on Exodus 21:7-11)
- the law that permitted a slave to divorce his wife in order to attain his freedom (Commentary on Exodus 21:1)
- the law that minimized the penalty for slave-owners who mistreated their slaves (Commentary on Exodus 21:26)
- the law that tolerated and regulated polygamy (Commentary on Leviticus 18:18)
In all of these cases Calvin argues that although the conduct in question was patently unjust, God nevertheless tolerated it due to the hardness of human hearts, and even provided for its regulation in Israel’s civil law. His point is not to defend these laws. On the contrary, Calvin is more than willing to suggest that the Torah’s civil laws can and should be improved upon by in the laws of nations. The objective is not to seek the lowest common denominator, but to recognize that there are limits on what the state can do and should try to do. While the gospel may accomplish what is impossible for human beings, politics remains the art of the possible.
All of this suggests that many Christians would do well to reconsider their dogmatism when it comes to contemporary American politics. The questions facing citizens and politicians alike are complex. It is no easy matter to determine what forms of injustice or immorality government should tolerate, let alone how it should regulate them to minimize abuse. It is not always easy to determine which politicians hold their convictions about the limits of law in good faith.
Christians desperately seek certainty in these matters, but when it comes to politics certainty is a luxury. Here we do not have a clear divine blueprint for law or policy. Here we are in the arena of the virtues of love, prudence, and humility, which each person must seek to put on, in conformity to the image of Christ, as best she can, in good conscience.
In the meantime, Christians must remember that what the state is able to accomplish is not the limit of what human beings are expected to fulfill, let alone what the church should proclaim. Christ demands perfect justice and holiness from all human beings, in every area of life, and it is to that standard that he will hold us all accountable when he comes to judge the living and the dead. “You therefore must be perfect, as your heavenly Father is perfect” (Matthew 5:48).
Protestants are currently experiencing revival of interest in natural law. For a long time most Protestants dismissed natural law as a Roman Catholic concept, one that carried with it all sorts of semi-Pelagian assumptions about human nature and the powers of reason. Even worse, they associated it with the Enlightenment and its Deistic abandonment of orthodox Christianity.
Even today many conservatives and liberals alike find their reasons to reject natural law. For conservatives the concept serves as a Trojan horse for the rejection of scripture, a dangerous elevation of human reason and autonomy. For liberals the captivity of natural law thinking to the concerns of “pelvic ethics” suggests that it is simply a way for religious conservatives to pretend they are using public reason, when in fact they are simply expounding traditional Roman Catholic attitudes toward sexuality, marriage, and birth control.
Both of these dismissive views share a common confusion about natural law, one well summarized by the French Reformed sociologist and theologian Jacques Ellul in his 1946 The Theological Foundations of Law, written just after World War II had destroyed law in Ellul’s native France:
“Too often … natural law is defined as a doctrine, as an interpretation of legal facts, as a philosophy of law… Yet natural law is not primarily this philosophy. It is first of all a phenomenon which exists not as an idea, but as a concrete event in history… As such, it cannot be disclaimed any more than the fact of religion or the fact of the state can be disclaimed.” (14)
Ellul identifies the philosophy of the Stoics and the theologies of Aquinas and Calvin as examples of relatively sophisticated natural law theories that had virtually no impact on actual law. Real natural law, he insists, is something on which we reflect, not something that we construct.
Ellul thinks natural law arose at a point in human history shortly after religion and magic became differentiated from law and morality. At that stage
“Law is established by custom or legislation, independently of the religious power, as if it were a spontaneous creation of society under the impact of economic, political, and moral factors. It is not dictated and created in one piece by the state. It is not imposed from outside. It springs directly from within society, from the common sentiment and the common will. These may not of necessity be consciously intended to result in a juridical creation, but they are certainly consciously experienced as a habit and obedience. This law rests on the adherence of the people who brought it into existence. This adherence is won because the law is merely the expression of the conscience of these people and of the circumstances in which they live. There is no alternative to adhering to this code.” (18-19)
By the time theories of natural law arise, Ellul argues, the phenomena is already in its decline. “It is indeed the moment when man ceases to be spontaneously ‘within the law.’ He places himself outside the law and examines it. Law becomes an object of speculation and interpretation.” (19)
It is but a short step from the systematic analysis of natural law to its replacement by positive law. “It does not take long for this view to reach the jurist, who in turn tries to organize law in a rational way.” Soon law becomes becomes a creation of the state.
“[A] juridical technique is worked out which is increasingly precise, increasingly rational, and increasingly removed from spontaneity. At this point the code hardens. It becomes a consecrated abstraction, always trailing behind social and political evolution, always in need of being brought up to date by arbitrary innovations, more or less adapted to the conditions of society. Law becomes the affair of jurists, receiving authority and sanction from the state.” (19)
No longer is law viewed primarily as the expression of an organic public consensus concerning justice, but it is viewed as an alien imposition on the part of those who have power. No longer are laws enacted as general rules of justice to be applied and enforced with prudence and equity, but law is seen as a mass of particular rules and regulations designed to foresee every possible circumstance and eventuality. Law becomes ruthlessly logical and systematic, yet blind to justice itself. “It is adequate for all material interests, yet inadequate for justice.” (32)
Here we are faced with the specter of tyranny, no matter what our system of government, as law becomes simply a means by which the powerful exploit the weak. After all,
“juridical technique is at the disposal of whoever wishes to take advantage of it… it may be utilized by any kind of power in history. When this happens, a definite purpose is ascribed to this intrinsically neutral technique. The technique is manipulated according to new and arbitrary criteria, substituted for the ideas of justice and natural law.”(32)
Having been a leader in the French resistance, Ellul identifies Nazism and Communism as the phenomena that he has in mind. In both cases the natural law of justice was abandoned and law was manipulated as a flexible tool for a new and greater purpose (i.e., ideology). The inevitable byproduct of this development is the collapse of the rule of law itself. The state is raised above the law and those under its rule know it. Why should they voluntarily submit to rules that have no grounding in right or justice? The power of the law now simply consists in fear and coercion, and people will disobey it when they get the chance and when it suits their interests.
Ellul describes these developments as history. Natural law, he thinks, has been lost, and no amount of theorizing or theologizing can recover it. The only hope for humanity is a revival of civilization on the part of God himself. I get the sense this sentiment would resonate with many American Christians today. Why even bother reasoning about politics or the law? Things are too far gone for that.
I think Ellul’s analysis of natural law and its history has much to be said for it, but I think he wrongly reduces history to an inevitable evolutionary process over which humans have little control. I also think that he – and many contemporary Christians – are too quick to dismiss the moral sensibilities of a world that remains under the common grace of God. Ellul wrote in the shadow of a shattered Europe, with millions of the dead able to testify to what law had become in the hands of dictators and soldiers, guerrillas and criminals. But even in the late 1940s and 1950s Americans were much more optimistic (witness the baby boom) because they realized that the European experience was not the whole story.
Indeed, it was out of the ashes of World War II that a system of international law and human rights emerged that can only, only be explained as an example of natural law at work. It is true that this system is codified and enforced to varying degrees around the world. It is also true that while it approximates certain Christian moral sentiments better than did the laws of traditional societies, it largely ignores others. But this is nothing new under the sun. Anyone who tells you there was a golden age of morality and law hasn’t read much history.
Ellul rightly characterized the dangers facing a society that has lost its allegiance to justice (i.e., to natural law), but if the West has received another lease on life, Christians would do well to engage in the hard work of strengthening and rebuilding moral consensus rather than seeking to overcome it with the use of brute force (all the while complaining about its demise). Jesus is still Lord, the sun continues to shine, and rain continues to fall on the just and the unjust alike. That suggests there is still something to be said for the world after all.