Law
Jan12
Philosophy7
The general idea of this post is sound. Nevertheless some of the particulars stand in need of revision.

Law

What we mean by “law” is a question germane both to religious and political philosophy. In some sense, it just seems to mean “necessity”. This seems to be the usage in Romans 7:23, where Paul talks about “another law” in his members waging war against the law of the Lord in his inner being: his human nature is still by necessity bound to sin – the “law” of sin.

But other times it seems to be invested with much more meaning than simply necessity. Legally and politically, it refers to the coercion exercised by a political sovereign. Though this might seem at first glance to describe the law of God as well as the law of man, the authority of God is exercised in an essentially different manner from political authority. Indeed, “The Law” talked about in the rest of Romans 7, the moral and ceremonial law from which the Christian finds himself freed, can seem so unlike human laws, that attempts to invest the word with more meaning can seem doomed from the outset to conclude the two are totally separate things, unfortunately described by the same word.

This is the case with Aquinas’ conception, by which “a law implies order to an end” (Summa Theologica 91.1). Laws direct us, accordingly, to various ends, and the justice of a particular law lies in the degree to which its ends comport with those of natural law – i.e., so far as it “foster religion, be helpful to discipline, and further the common weal” (Summa Theologica 95.3).

This definition depends on Aquinas’ marriage of Catholic to Aristotelian political philosophy, in which virtue is the end of the polity. Law, according to Aristotle, directs men towards virtue. This fusion persists to this day in Catholic social doctrine.1 Aquinas cites Aristotle to assert that no individual can, but the polity may, coerce people towards virtue (Summa Theologica 90.3). Since virtue is constituted by proper ends,2 and laws are coercion, people may be coerced into virtue.

The incompatibility of the Aristotelian framework with Christian thought can, however, be easily shown from scripture.

For what the Law could not do, weak as it was through the flesh, God did: sending His own Son in the likeness of sinful flesh and as an offering for sin, He condemned sin in the flesh, so that the requirement of the Law might be fulfilled in us, who do not walk according to the flesh but according to the Spirit.
Romans 8:3-4

The essential point of this passage is that the law (here referring to what Aquinas would call the Divine Law) has no power to direct us towards ends. Psalm 19:7 says “The Law of the Lord is perfect”. If the very perfection of Law is too weak to direct us towards proper ends and deliver us from condemnation, how much less does human law have any such power?

The essence of law is not to direct men towards other ends, for it has no such power. Rather, law takes a means, and elevates it to an end in itself. Though a law may point towards a higher end, it cannot itself be effective towards that end, and this is exactly why law is itself insufficient for salvation.

This was the problem complained about in Isaiah 1:11-15. Israel multiplied sacrifices and conscientiously observed the feast days, but they were content with the law, needing no God. They prided themselves on the simulacrum, neglecting the reality. This was also the problem of which Jesus accused the Pharisees: they kept the law to the letter, but on the inside are dead men’s bones (Matthew 23:27). In both cases, the law was treated as an end in itself, for that is all the law can be in itself. What are properly means towards the highest end became hollow as ends in themselves.

But the insufficiency of the moral law for salvation is also exactly the kind of flexibility necessary for political law. The laws on the books against murder proscribe certain means – i.e. killing people – to point to the ultimate end of avoiding unnecessary death. Now such laws do not demand a pure love from everyone. Indeed, a man could carry on with the most seething hatred towards his fellow man, and unless he actually attempts to kill someone, the law has no quarrel with him. Clearly the law cannot direct him to the higher end of valuing human life, but it can approximate the behavior as if he held those values, by compelling him to hold the avoidance of murderous means as an end itself.

Milton Friedman speaks of the elevation of means to ends in his book Capitalism and Freedom (ch. 2):

Any end that can be attained only by the use of bad means must give way to the more basic end of the use of acceptable means.

The manner in which these elevated ends point to a higher end leads us to a conception of justice. Satisfaction in life comes from arranging a constellation of independent and sometimes conflicting ends into a structure in which all ends point to an ultimate end (and more than that, the consummation of that ultimate end). In the same way, a just series of laws will point to the same end. Not virtue, as if the law could save anyone, but love. Though the law is incapable of effecting love (and love certainly cannot be required as such by the law), such laws as point to love will serve to engender social peace and economic order by allowing people to rely on others as if they were honest and benevolent.

Departure from a single principle in lawmaking, on the other hand, leads to rent-seeking (i.e. the preferential treatment of one person or group before the law) and unprincipled expansion: if the power is there, it will be taken advantage of. And it is through this process that the potentiality of injustice, exhibited in the design of institutions, is made manifest in actual acts of injustice which aggravate social peace and smother economic order.3

Footnotes

  1. See for example Pope Pius XI’s 1931 encyclical Quadragesimo Anno and John Paul II’s 1991 Centesimus Annus (both of which were commemorations of the anniversary of Leo XIII’s Rerum Novarum), in which the state is supposed to issue laws for the sake of society’s virtue.
  2. In the Greek philosophical framework, proper ends are discovered by reason. Not coincidentally, Aquinas devotes Question 90 of Summa Theologica, particularly article 1, to a proof of the pertinence of reason to law.
  3. Cf. Tullock, Gordon et al. Government Failure (2002), ch. 4, p. 47. “The rapid progress in the last two centuries, as contrasted to the progress in previous centuries, likely is largely due to the departure of various governments from the rent-seeking society.”

Tags

Catholicism, Institutions, Law, Natural Rights, Thomas Aquinas

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7 Comments

  • 1

    bethyada

    Jan 13, 2011 at 5:00 | Reply

    I have thought about this issue on and off over the years. Scripture must inform and correct our beliefs as you say.

    While I think that the legal positions can constrain behaviour of wicked men, I also realise rules lack power to change character.

    Something I have considered though is, is it possible that while (legal) laws do not provide the ability to change, do they in fact help prevent some people become entrapped in some things. Laws can’t deliver the alcoholic, but can laws limit the number of people that become alcoholic.

    I recognise that rules do not change who I am (while the threat may prevent me doing some things). But there are things that do not particularly tempt me, has the law been part of that. Would I have even more battles had the law been different? Did it prevent some behaviours thus opportunities for me to become enslaved to particular sins?

    • 2

      Cameron Harwick

      Jan 13, 2011 at 10:07

      That’s basically the argument by Augustine and Aquinas on the process of how law brings about virtue. Aquinas quotes Aristotle saying that “lawgivers make men good by habituating them to good works” (ST 92.2), and Augustine uses the same logic to sanction forcing people into the church – “use compulsion outside, so freedom can arise once they are inside” (Sermons, 112.8).

      That seems to be a very incidental view of sanctification, however. While God may use law-habit as a means to sanctify certain people, that doesn’t mean the law was the actual cause of victory over (or protection from) any sin. Romans 8:28, for example, suggests to me that historical circumstance is orchestrated for our sanctification more than our sanctification is dependent on historical circumstance. I have to believe that my walk with God, and anything that counts for eternal merit, depends more on his grace than on the law around me.

    • 3

      bethyada

      Jan 14, 2011 at 1:00

      That’s basically the argument by Augustine and Aquinas on the process of how law brings about virtue.

      I may not have been clear enough. Paul seems to say that law cannot bring about virtue contra Augustine.

      All men are sinners, though in different ways. I guess I am asking Can law prevent vice (before it occurs)?

    • 4

      Cameron Harwick

      Jan 14, 2011 at 9:36

      Hm, well, as far as I understand things, preventing vice isn’t essentially different from bringing about virtue. Both alter one’s merit from what it “would have” been, a power which can only be attributed to God, both in the positive and the negative.

    • 5

      bethyada

      Jan 14, 2011 at 20:11

      Fair enough. We are all sinful, thus have tendency to vice without Christ. So far we agree. That is why I tried to use specifics. Yes, a man who breaks part of the Law breaks all of it (salvifically speaking). But it is still true that men vary in what tempts them. For some people gluttony is just not on the radar.

      (Though I see all men as evil, I don’t think there is a fixed quantity of evil in the world. If all the thieves start murdering there are more evil actions).

      I just wonder whether Paul’s comment is extended further that is merited. That Paul teaches about the inability of rules not to touch changing the man who would touch, does not automatically apply to rules for the man who would not touch.

      Of course you could reply that the Law is only for lawbreakers (1 Tim 1:8-9) making my argument void. Perhaps I just need to think this through in more depth?

      (I suspect my Arminianism and our ideas about the nature of sin from birth influences this in ways not yet discussed). Cheers

    • 6

      Cameron Harwick

      Jan 15, 2011 at 0:35

      Ah, there’s the rub. I wouldn’t say evil is fixed as if it’s zero-sum (i.e. that it has to balance out), but I would say it’s fixed in the sense that there can be no more or less than God decrees.

      So yeah, from your premises you’d be perfectly consistent to outlaw certain sins of habit. I do think, however, that doing so is quixotic for practical reasons as well and ultimately illustrates the weakness of the premises.

      But then, that’s based on my experience in America and the history of Europe. Out of curiosity, is there much of a Christian Right/social conservative movement in New Zealand?

    • 7

      bethyada

      Jan 15, 2011 at 4:05

      Probably not like in the US. We seldom have political sermons in our church and they are not partisan. Liberal and conservative voters go to my church (I guess). One minor Christian party dissolved after some impropriety of its leader (the party was otherwise sound), though it never had a proper presence in parliament. What is more noticeable is the left bias of the media, though increasingly less anti-Christian it seems: they showed this on national news for example: Christian Cops

      Don’t mistake my theoretical questions for a political agenda. I am fairly libertarian. I favour small government. I disagree with taxes on cigarettes and fats and alcohol because of health considerations. I am undecided about illicit drugs (though am not concerned they are currently illegal).

      Law should primarily address crimes of person and property, at least make that highest priority. And if they address other moral issues, I think the focus should be on enticement rather than action, eg gambling may be legal but advertising it should be illegal (to pick a simplistic illustration).

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