Law

posted Jun 8, 2012, 3:09 PM by Hector Falcon

TheChristian foundations of the rule of law in the West: a legacy of liberty andresistance against tyranny

by Augusto Zimmermann

Abstract

According to thetradition of the rule of law in the West, to be under law presupposes theexistence of certain laws serving as an effective check on arbitrary power. Therule of law is therefore far more than the mere existence of positive laws, asit also requires the state to act in accordance with principles of a ‘higherlaw’. The search for such ‘higher law’ implies, however, a moral discussion onwhat laws ought to be. If so, the rule of law becomes an impracticable and evenundesirable achievement for societies not subject to certain patterns ofcultural and religious behaviour. On the other hand, any radical change in suchpatterns can certainly produce undesirable consequences for the realization ofthe rule of law.

The Bible has beenhistorically recognized as the most important book for the development of boththe rule of law and democratic institutions in the Western world. However, wehave seen over these last decades a deep erosion of individual rights, with thegrowth of state power over the life and liberty of individuals.

If the future we wantfor ourselves and our future generations is one of freedom under law, notabsolute subjection to the arbitrary will of human authorities, we will have torestore the biblical foundations for the rule of law in the Western world. Assuch, the rule of law talks about the protection of the individual by God-givenliberties, rather than by an all-powerful, law-giving government endowed bygod-like powers over the civil society.

Christianity and the discovery of the individual

The modern roots of our individual rights and freedoms in theWestern world are found in Christianity. The recognition by law of theintrinsic value of each human being did not exist in ancient times. Among theRomans, law protected social institutions such as the patriarchal family but itdid not safeguard the basic rights of the individual, such as personalsecurity, freedom of conscience, of speech, of assembly, of association, and soforth. For them, the individual was of value ‘only if he was a part of thepolitical fabric and able to contribute to its uses as though it were the endof his being to aggrandize the state’.1 According to Benjamin Constant, a great French politicalphilosopher, it is wrong to believe that people enjoyed individual rights priorto Christianity.2 In fact, as Fustel de Coulanges put it, the ancients had noteven the idea of what it means.3

In 390, BishopAmbrose, who was located in Milan, forced Emperor Theodosius to repent of hisvindictive massacre of seven thousand people. The fact indicates that under theinfluence of Christianity, nobody, not even the Roman emperor, would be abovethe law. And in the thirteenth century, Franciscan nominalists were the firstto elaborate legal theories of God-given rights, as individual rights derivedfrom a natural order sustained by God’s immutable laws of ‘right reason’. Formedieval thinkers, not even the king himself could violate certain rights ofthe subject, because the idea of law was attached to the Bible-based concept ofChristian justice.

Christianity, the rule of law, and individual liberty

The notion that law and liberty are inseparable is anotherlegacy of Christianity. Accordingly, God’s revealed will is regarded as the‘higher law’, and therefore placed above human law. Then liberty is found underthe law, God’s law, because as the Bible says, ‘the law of the Lord is perfect, reviving the soul’ (Psa 19:7).If so, people have the moral duty to disobey a human law that perverts God’slaw, for the purpose of civil government is to establish all societies in agodly order of freedom and justice.

St Augustine of Hippo once wrote that an unjust law is acontradiction in terms. For him, human laws could be out of harmony with God’shigher laws, and rulers who enact unjust laws were wicked and unlawfulauthorities. In The City of God, StAugustine explains that a civil authority that has no regard for justice cannotbe distinguished from a band of robbers. ‘Justice being taken away, then, whatare kingdoms but great robberies? For what are robberies themselves, but littlekingdoms?’4

In the same way, StThomas Aquinas considered an unjust law a ‘crooked law’, and, as such, nobodywould have to obey it. For St Aquinas, since God’s justice was the basicfoundation for the rule-of-law system, a ‘law’ that prescribed murder orperjury was not really law, for people would have the moral right to disobeyunjust commands. Rulers who enact unjust ‘law’ cease to be authorities in therightful sense, becoming mere tyrants. The word ‘tyranny’ comes from the Greekfor ‘secular rule’, which means rule by men instead of the rule of law.

In declaring the equality of all human souls in the sight ofGod, Christianity compelled the kings of England to recognize the supremacy ofthe divine law over their arbitrary will. ‘The absolutist monarch inheritedfrom Roman law was thereby counteracted and transformed into a monarchexplicitly under law.’5 The Christian religion worked there as a civilizing force and astranger to despotism. As one may say, ‘The Bible’s message elevated theblood-drinking “barbarians” of the British Isles to decency.’6

At the time of Magna Carta (1215), a royal judge called Henry deBracton (d. 1268) wrote a massive treatise on principles of law and justice.Bracton is broadly regarded as ‘the father of the common law’, because his book De legibus et consuetudinibus Anglia isone of the most important works on the constitution of medieval England. ForBracton, the application of law implies ‘a just sanction ordering virtue andprohibiting its opposite’, which means that the state law can never depart fromGod’s higher laws. As Bracton explains, jurisprudence was ‘the science of thejust and unjust’.7 And he also declared that the state is under God and the law,‘because the law makes the king. For there is no king where will rules ratherthen the law.’8

The Christian faith provided to the people of England a status libertatis (stateof liberty) which rested on the Christian presumption that God’s law alwaysworks for the good of society. With their conversion to Christianity, the kingsof England would no longer possess an arbitrary power over the life and propertyof individuals, changing the basic laws of the kingdom at pleasure. Rather,they were told about God’s promise in the book Isaiah, to deal with civilauthorities who enact unjust laws (Isaiah10:1). In fact, the Bible contains many passages condemning theperversion of justice by them (Prov17:15, 24:23; Exo 23:7; Deut16:18; Hab 1:4; Isa 60:14; Lam 3:34).In explaining why the citizens of England had much more freedom than theirFrench counterparts, Charles Spurgeon (1834–1892) declared:

‘There is not land beneath the sun where there is an open Bibleand a preached gospel, where a tyrant long can hold his place … Let the Biblebe opened to be read by all men, and no tyrant can long rule in peace. Englandowes her freedom to the Bible; and France will never possess liberty, lastingand well-established, till she comes to reverence the Gospel, which too longhas rejected … The religion of Jesus makes men think, and to make men think isalways dangerous to a despot’s power.’9

Reasons for a civil government

The first reference to civil government in the Holy Scripturesis found in chapter 9 of the book of Genesis. In this chapter, God commands capitalpunishment for those who take the life of human beings, who are always createdin the image of God. In this sense, the right to execute murderers does notbelong to government officials themselves, but to God who is the author of lifeand commands the death penalty for murder in several passages of the HolyScriptures (e.g. Exod21:12; Num 35:33).Thus, life can only be taken away from the individual if civil authoritiesapply it under God’s law and commission, as the sanctity of human life is thebasis on which God sanctions capital punishment. As John Stott explains:

‘Capital punishment, according to the Bible, far from cheapeninghuman life by requiring the murderer’s death, demonstrates its unique value bydemanding an exact equivalent to the death of the victim.’10

The state is a ‘necessary evil’ that has to be subject to God’shigher laws. After sin entered in the world, it became necessary to establishthe civil government in order to curb violence (Gen6:11–13). However, the state was not envisaged in God’s originalplan for mankind, as it places some people in a position of authority overothers. At the beginning of the creation, however, Genesis tells us that manand woman lived in close fellowship with God, under His direct and soleauthority.11 Then Thomas Paine (1737–1809), a non-Christian himself,expressed the biblical worldview when he uttered these words:

‘Government even in its best state is but a necessary evil; inits worst state an intolerable one; for when we suffer, or are exposed to thesame miseries by a government,which we might expect in a country withoutgovernment, our calamities are heightened by reflecting that we furnishthe means by which we suffer. Government, like dress, is the badge of lostinnocence; the palaces of kings are built on the ruins of the bowers ofparadise.’12

The understanding of civil government as a result of our sinfulcondition justifies the doctrine of limitation of the state powers. Itinspired, in both Britain and America, the establishment of a constitutionalorder based on checks and balances between the branches of government—namelylegislative, executive and judicial. Such division obeys the biblicalrevelation of God as our supreme Judge, Lawgiver and King (Isa 33:22).Since all human beings are born of a sinful nature, the functions of the stateought to be legally checked, because no human being can be trusted with toomuch power.

Because God instilled in each of us a desire for freedom,political tyranny, as Lord Fortescue (1394–1479) explained, is the attempt onthe part of civil authorities to replace natural freedom by a condition ofservitude that only satisfies the ‘vicious purposes’ of wicked rulers. AsFortescue put it, the law of England provided freedom to the people onlybecause it was fully indebted to the Holy Scriptures. Thus, he quoted from Mark 2:27 to proclaim that the kings are called to govern for the sake ofthe kingdom, not the opposite. In this sense, he also remarked:

‘A law is necessarily adjudged cruel if it increases servitudeand diminishes freedom, for which human nature always craves. For servitude wasintroduced by men for vicious purposes. But freedom was instilled into humannature by God. Hence freedom taken away from men always desires to return, asis always the case when natural liberty is denied. So he who does not favourliberty is to be deemed impious and cruel.’13

By placing God’s higher laws above human law, Sir Edward Coke(1552–1634) considered that the basic laws of England were not designed by thestate, but ‘written with the finger of God in the human heart’.14 Coke described the constitution of England as a ‘harmonioussystem’ sustained primarily by God’s higher laws. Then he went on to declarethat no statute enacted by the Parliament is valid if it does not respect Godand the law. Finally, Lord Coke wisely pointed out:

‘In nature, we see the infinite distinction of things proceedfrom some unity, as many rivers from one fountain, many arteries in the body ofman from one heart, many veins from one liver, and many sinews from the brain:so without question this admirable unity and consent in such diversity ofthings proceeds only from God, the fountain and founder of all good laws andconstitutions.’15


God’s Law is above the state law

The human intellect should not be our basic reference in termsof legality because everyone is affected by a sinful nature. Then, our basiclegal rights should be considered the ones revealed by God Himself through theHoly Scriptures. According to the doctrine ofnaturadelecta, which means that our human nature has been damaged by theoriginal sin, law is not so much to be based on human wisdom as on God’s wisdomand sovereign will. As the Bible says, ‘The foolishness of God is wiser than man’s wisdom, and theweakness of God is stronger than man’s strength’ (1 Cor1:25).

The rule of law canonly subsist if civil authorities are able to respect the hierarchicalprevalence of God’s higher laws over the state law. Although the law of God isalways perfect, for God’s wisdom is always perfect, human authorities aresinful creatures who might have their minds controlled by desires of the flesh.They may be slaves of sin and rebels against God, although citizens who electsinful people and obey their wicked rulings are slaves of sin as well.

A basic question of the rule of law is to know which sort ofauthority we want as the ultimate source of power over ourselves: the authorityof a loving God or the authority of a sinful human ruler. If we decide for thesinful ruler, then, as R.J. Rushdoony puts it, ‘we have no right to complainagainst the rise of totalitarianism, the rise of tyranny—we have asked for it’.20

To avoid tyranny, William Blackstone (1723–1780) once declaredthat no human law could be valid if it contradicted God’s higher laws whichmaintain and regulate natural human rights to life, liberty, and property.21 According to Blackstone’s biblical understanding of the rule oflaw,

‘No human laws should be suffered to contradict [God’s] laws …Nay, if any human law should allow or enjoin us to commit it, we are bound totransgress that human law, or else we must offend both the natural and thedivine.’22

Conclusion

A visible fact in these days of moral relativism is thegradual abandonment of the Christian faith and culture in the Western world. Asa result, the moral foundations for the rule of law have been seriouslyundermined. Westerners who believe that abandonment of Christianity will servefor democracy and the rule of law are blindly ignoring that such abandonmenthas already brought totalitarianism and mass-murder to several Westerncountries, particularly to Germany and Russia. Any honest analysis ofcontemporary Western history would have to recognize that no effective legalprotection against tyranny can, in the long run, be sustained without thehigher standards of justice and morality brought into the texture of Westernsocieties by Christianity.

Westerners who disparage their Christian heritage should getmuch better informed that were it not for this religion, they would not havethe freedoms they enjoy today, for instance, to dishonour the very source of thesefreedoms, namely Christianity.37 Regarding the present climate ofmulticulturalism, it would be better for them to think much more carefully onthe words uttered by a great historian, Carlton Hayes:

‘Wherever Christians’ ideals have been generally acceptedand their practice sincerely attempted, there is a dynamic liberty; andwherever Christianity had been ignored or rejected, persecuted or chained tothe state, there is tyranny.’38

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