Read an Excerpt

Ministers of the Law

William B. Eerdmans Publishing Company

Chapter One

The ideal of a perfect law through which men and women might live in harmony with one another and the cosmic order has deep roots in the Hebrew and Christian scriptures and the theological traditions stemming from them. To take only one example, Psalm 19 begins with a celebration of the cosmic order and closes with a hymn in praise of God's law, the clear implication being that each mirrors the other. The psalm begins, "The heavens are telling the glory of God, and the firmament proclaims his handiwork. Day to day pours forth speech, and night to night declares knowledge. There is no speech, nor are there words; their voice is not heard; yet their voice goes out through all the earth, and their words to the end of the world." This ancient poem calls to mind Immanuel Kant's often-quoted remark that "Two things fill the mind with ever new and increasing admiration and awe, the oftener and more steadily we reflect on them: the starry heavens above me and the moral law within me." The similarity becomes more pronounced as the Psalmist continues, "The law of the Lord is perfect, reviving the soul; the decrees of the Lord are sure, making wise the simple; the precepts of the Lord are right, rejoicing the heart; the commandment of the Lord is clear, enlightening the eyes; the fear of the Lord is pure, enduring forever; the ordinances of the Lord are true and righteous altogether." Some commentators have suggested that the latter verses in praise of God's law, the Torah, were added to an earlier composition celebrating the cosmic order, in the style of ancient wisdom traditions. Even if that is so, the psalm as it stands expresses what becomes a pervasive theme running through both Jewish and Christian thought, namely, the deep connections between law and cosmic order, considered as two expressions of God's wisdom and beneficence.

Formal law as we know it, the product of all too human processes of legislation and judicial interpretation, cannot answer to the ideal of a perfect law reflected in Kant, or in the Hebrew Scriptures before him. Even the (slightly) more modest ideal of a virtuous and enlightened regime, created and sustained through laws that reflect universal standards of reasonableness, decency and good conduct, has proven to be elusive. Yet lawyers and scholars of jurisprudence have not altogether given up on the biblical ideal of law, or its secular analogues. We see such an ideal reflected in the old adage that "the law works itself pure" — that is to say, that it comes ever closer to approximating standards of rationally informed justice through processes of adjudication, which can in turn be understood and assessed in terms of these emerging standards. Even those who believe this hope to be unrealistic — or, more seriously, misleading in its assumptions about the character of law — find it difficult to dispense altogether with some kind of normative standard, such as justice or equality or even efficiency, in which laws at their best might be grounded, and in terms of which laws at their worst can be reformed or even rejected. This should not surprise or trouble us. On the contrary, we would have real cause for alarm if our philosophers, and (even more) our legislators and judges, were to surrender any aspiration towards normative ideals to guide the all too imperfect processes of lawmaking and adjudication.

To a considerable degree this aspiration sets the agenda for the thriving discipline of the philosophy of law, at least as practiced in Western Europe and its former colonies. In the United Kingdom, a number of recent developments — including structural reforms of the British Parliament and the uneven processes of integration into the legal structures of the European Union — have given a new saliency to fundamental questions about the foundations and scope of law. In the United States, and to a lesser extent the United Kingdom, longstanding disputes over the proper scope of judicial interpretation, taken together with more recent controversies over the scope of judicial due process and the limits of executive authority, have placed the need for an accessible ideal of law on the public agenda.

We might expect that theologians would have something to contribute to this agenda. After all, the topos of law is central to the sacred texts of the Abrahamic traditions, and theologians have had a great deal to say about the ways in which God's justice should be mirrored in human societies. Yet in recent times, Christian theologians have had surprisingly little to say about formal law as such; certainly, compared to the extensive body of theological writings on social justice, contributions to a theology of law have been meager and under-developed. To some extent, this relative inattention is understandable. Given the deeply entrenched separation of church and state in the United States and parts of Europe, it has been difficult for many theologians to see what they might contribute, precisely as theologians, to an understanding of contemporary secular legal systems. More importantly, modern Christian theology, especially but not only within Protestant traditions, has been informed by a keen sense of the ambiguity of law — a sense which is arguably as deeply rooted in Christian scripture and tradition as the idea of law itself.

As Peter Landau observes, scripturally grounded theologies of law and social order have been marked by a sense of the imperfections, not to say the downright sinfulness, of actual polities and their legal systems. Thus, in his view, theologians have typically taken one of three approaches to political and legal systems. They have located the ideal law in an eschatological future, in which God's reign will be perfectly and comprehensively expressed; or, regarding civil society as sinful beyond redemption, even demonic, they have advocated withdrawal from the surrounding society, as far as possible; or finally, they have argued that actual polities and legal systems are grounded in an authoritative divine decree, through which God mercifully provides remedies for the worst effects of human sinfulness. This last approach, in contrast to the first two, acknowledges that legal systems play a legitimate role in most human societies. It emphasizes the ameliorative purpose of law and defends its authority by a more or less direct appeal to divine decree. Nonetheless, seen from this perspective, the law is at best an instrumental means towards the attainment of social justice and common utility, and it can as such be addressed in passing, or left to the care of those entrusted with putting the ideals of social justice into practice.

There are, however, other theological approaches to the law that emphasize the rational and even broadly natural origins of legal systems, and correlatively place less emphasis on the law's conventional and authoritative status. These tend to be formulated in terms of the ancient tradition of a natural law, pre-conventional, universal and unchanging, which functions as the originating principle and ultimate criterion for legal systems and social practices. The natural law tradition is of course pre-Christian in its origins, and today its most prominent defenders, at least among legal scholars, insist that the natural law does not depend on specific theological or broadly natural beliefs for its foundations or content. Yet the natural law has been interpreted in other ways throughout the long history of Christian jurisprudence. In particular, when we turn to the work of scholastic jurists and theologians in the formative period for Western legal institutions — roughly, from the late eleventh through the thirteenth centuries — we find a very different approach to the natural law, one which is robustly scriptural and theological, while also drawing freely on rich classical traditions of reflection on human reason and the natural order. The natural law, thus understood, provided an analytic framework within which diverse senses of law can be related to one another in mutually illuminating and correcting ways — more specifically, within which human law can be related to God's providential ordering of the non-human natural world, on the one hand, and the ideal standards set by divine, that is to say, revealed law on the other. In this way, the scholastic concept of natural law offers a way to address the deep tensions over the value of law running through Christian scriptures and theological traditions. As we will see in more detail below, the concept of natural law, interpreted in the context of broader claims about the essential goodness of created nature, provides a touchstone for distinguishing those aspects of law which are valid and good from those which reflect the distortions of sinfulness. It thus opens up the possibility that formal law might be regarded as an intrinsically valuable component of natural human life, imperfect and limited to be sure, and yet intelligible and authoritative considered on its own terms apart from a special divine decree.

This is the aspect of natural law jurisprudence that I hope to recover and to develop in this book. More specifically, I will offer a theological analysis of the authority of law, according to which legal authority is construed as a natural relation of authority, resting ultimately in God's wisdom as expressed in the free act constituting us as creatures of a specific kind. Thus understood, the authority and independence of the law are given their due, and at the same time, legal authority is both justified and delimited by reference to a distinctively human form of natural life. In developing this theory of legal authority, I will draw extensively on central strands of early scholastic theological and legal thought, developing and extending these in conversation with some important interlocutors in contemporary philosophy of law. However, I should make it clear from the outset that this is meant as a constructive theory of law, responsive to contemporary exigencies of legislation and judicial interpretation, particularly as these are experienced in the anglophone societies with which I am most familiar. My aim, in other words, is not to offer a historical interpretation of the scholastics' views on law, but rather to draw on their views as elements for a contemporary synthesis. My hope is that the resultant theory of legal authority will be responsive to a widely expressed need for normative standards by which laws might be evaluated and interpreted, while also doing justice to the independence and integrity of the law as it exists in modern Western societies.

It might seem that a theology of law would have little to offer to contemporary debates over lawmaking and legal interpretation, given the secular character of contemporary Western societies. I do not intend to challenge the civic ideal of religious neutrality informing most Western societies today, or to undermine the institutional arrangements through which that ideal is sustained. On the contrary, these arrangements appear to me to be, on the whole, both just and exigent, given the histories and circumstances of the societies in which they are embedded — which is not to say that secularity is an ideal towards which every society can or should aspire. Nonetheless, it would be short-sighted to rule out the possibility that a theological account of law might be illuminating and fruitful, even for those who do not accept all of its presuppositions. During the early and middle decades of the past century, theologians and church leaders played a central role in shaping public discourse and institutional life; Reinhold Niebuhr and Martin Luther King are perhaps the best known, but there are others, including John Courtney Murray and John Ryan ("Father New Deal"). We cannot say in advance whether, and in what ways, men and women might draw on theological perspectives in public deliberation — that will always depend on a complex set of convictions, sentiments, felt needs, and shared history.

At any rate, this book is primarily intended for Christians, together with others who share the theistic convictions of the Abrahamic traditions. I assume that we Christians can and should participate fully in civil society, including the institutions of law that give public expression, stability, and force to its central ideals. I hope to make the case that we can do so wholeheartedly, in the same way we enter into the practices of marriage, family life, and communal associations, celebrating these as aspects of the way of life we are naturally meant to enjoy. At the same time, systematic reflection on formal law turns out to offer more in the way of foundational theological insights than might initially have been expected. It provides a focal point for reflecting on the practical implications of natural law, and more specifically on the ways in which our practical formulations of a natural law emerge from and sustain the ideals and practices of particular communities. More fundamentally, it offers a way to interpret human legal and normative judgments in terms of their relation to God's eternal law, and thereby in relation to the natural order comprehensively considered. As we will see, this relation does not imply that moral (much less legal) norms share in the necessity and universal scope of God's providential wisdom. On the contrary — precisely because human deliberation and action are grounded in God's eternity, our formal legal systems and normative practices do not need to imitate the universality and necessity of God's law, nor do we need to save ourselves from the ambiguities of our own laws. We are free to be creatures in a finite world and to conduct our affairs accordingly. Or so I will argue in what follows.

Before doing so, however, I will identify a set of issues related to the necessary yet paradoxical interconnections among authority, normative criteria, and the independence of law in Western legal systems. I will do so by tracing one central trajectory in contemporary jurisprudence. Along the way I hope to clarify what I mean by critical jurisprudence and to begin to delineate key features of Western legal systems that any adequate jurisprudence, including a theological jurisprudence, would need to address. These will be the tasks of the first section.

1. Critical Jurisprudence and the Paradox of Authority

Preliminary Considerations

This book is intended as an essay in systematic theological jurisprudence. It is directed towards a critical and constructive account of actual legal practices developed along the same lines as the contemporary philosophical jurisprudence with which it is engaged. As such, it takes its starting point and immediate frame of reference from contemporary legal systems in Western societies, that is to say, the modern, post-industrial polities which trace their origins more or less directly to the nations and empires of early modern Europe. These systems provide the initial "legal paradigms," in Ronald Dworkin's phrase, that is to say, "propositions of law like the traffic code that we take to be true if any are." There is a good case to be made that all systematic intellectual inquiry will necessarily take its starting point from particular paradigms of this sort, setting the field of the inquiry and suggesting initial hypotheses. But in any case, contemporary philosophical jurisprudence and, mutatis mutandis, theological jurisprudence as well, should be tethered to actual legal practices, precisely because the point of this inquiry is to make sense of, and where appropriate to guide and direct, the practical activities of legislation and legal interpretation. As Neil MacCormick says, our aim is "rational reconstruction," through which we attempt to sort out the seemingly confused, disorderly, and incomplete legal systems governing our lives through "a new imagining and describing of the implicit order in potential disorder, based on some principles or values ascribed to the whole and its parts." Thus, philosophical jurisprudence takes as its starting point attempts to "explain the nature of a certain kind of social institution" thereby illuminating "a concept entrenched in our society's self-understanding," as Joseph Raz puts it. The local and contingent context for systematic reflection on law may appear to be problematic, but as Raz goes on to show, legal theory properly moves from the parochial to the universal, leading towards a generally applicable concept of law. Nonetheless, until we can make sense of our own legal practices as they actually are, we will not have the conceptual tools necessary to carry out an intelligent and critical assessment of those practices, much less to make sense of anyone else's legal practices.

(Continues...)

---

Excerpted from Ministers of the Law by Jean Porter Copyright © 2010 by Jean Porter. Excerpted by permission of William B. Eerdmans Publishing Company. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---