Week 38: The Rule of Law

I will put my law in their inward parts, and write it on their hearts; and I will be their God and they will be my people. Jeremiah 31:33

 

Knowing that a man is not justified by the works of the law. . . Galatians 2:16

That the “rule of law” is the aspiration of nations and peoples has become a near absolute truth in modern political thought. With the collapse of totalitarian states, disciples of the rule of law have rushed to newly developing nations urging them to adopt the “rule of law.” Constitutions and statutes were quickly formulated encoding “democracy” and “law.” All the right words and phrases were put in proper order.

And to be sure, a society without a legal order, without the predictability and objectivity of law is easy prey for power, privilege, corruption and totalitarianism. Solzhenitsyn in his famous Harvard address to the “West” noted as much when he observed that a society without a legal standard is a “terrible one indeed.” And he had the credentials to make the observation.

But both as observers of political history and as believers, we know the credo of the “rule of law” is woefully inadequate. There is no salvation in the law alone—either politically or spiritually.

Again, Solzhenitsyn immediately after observing the importance of law in any society, continued in a way which seemed intended to warn the “West” against its unbridled enamorment and near worship of law. He declared that a society with “no other standard than a legal one” was “unworthy of man.” Essential, insisted Solzhenitsyn, was a set of spiritual principles which, he believed, the West had squandered. Law, if a substitute for spiritual values, is a mess of porridge foolishly acquired for the surrender of a birthright.

The law, however valuable, cannot carry the freight of the moral obligations and callings of human life. When there is no law on the cultural hearts, and there is only the sanction of formal, civil and criminal law, a society quickly degenerates. Indeed, it was G.K. Chesterton who noted that ultimately a society’s lawfulness is “inversely proportional to the number of its laws.” Chesterton insisted that when a society begins to lose it essential moral roots, the “law” written on its cultural “heart,” then the public law will have to fill more and more of the moral space with legal rules, commanding what should have been morally compelling. The final result of this essential moral anarchy is not, Chesterton said, no laws, but “little laws.”

Many observers have suggested that is precisely the state of much of modern society—at least in the West. We have lost the moral soil out of which law’s roots drew their nourishment. Harold Berman in his survey of Western law insisted the “historical soil of the western legal tradition has been washed away.” Law now stands without essential authority except that of the power of the state, and as such, as Jacques Ellul noted, has lost its moral capacity to compel obedience.

As Christian lawyers we may rightly urge the centrality of a legal order which governs a social and political community—a nation of law and not men. But we must warn any society that if that legal order has no ultimate roots in a foundational truth and objective moral order, it is not sustained by a spiritual reality, then it risks becoming a mere exercise in political power. One observer in fact warned that legal positivism ultimately becomes a kind of political tyranny because there is nothing left to judge the law.

From the Scriptures we are clearly taught that the law of God sets the standard, but that the law, unless it becomes written on our hearts by the new birth, is impotent to restore and redeem us. A parallel truth applies to our public life. We can pass laws and constitutions, modeled on the very best of legal traditions, but unless there is a reservoir of larger moral and political principles, these laws will prove helpless. It was Justice Learned Hand who warned against too much optimism about the law when he declared about any optimistic reliance on laws and constitutions: “These are false hopes, believe me they are false hopes.”

Lynn R. Buzzard

– This article comes from AI’s “No Higher Calling,” a devotional for lawyers.