The Law, the State, and the People

The nature and the meaning of law have changed from one culture to another. First of all, all law is religious in its presuppositions, because it is an expression of basic and ultimate values. Laws protect those values most important to a society and prescribe those regarded as alien and evil. Every legal system embodies a concept of ultimate concern, of religion and ethics. Second, laws, beside protecting values, also protect men. The men protected in contemporary states can be, theoretically, all men within the society, the state and its agents, or one class of men, such as the proletariat. It is not our concern at the moment whether or not the protection is theoretical or actual. In antiquity, the law was commonly royal law; even more, it was often the law of an ostensibly divine-human King whose word was law. In some sense, the law is always partial; it protects those whom the law deems just and prosecutes those suspected of injustice. Where the partiality of the law is determined by men, all who differ from the law-makers can be judged illicit and criminal. There is thus no freedom for capitalists in the soviet Union, and there are limitations at times on the freedom of communists in some democracies. where laws come from men, men will determine the limits of the law’s protection.

The law thus always has an interest; law protects and punishes in terms of pre-theoretical presuppositions which are in essence religious. The important question to ask of law is the nature of its interest or concern. The interest can be royal, democratic, fascist, racist, and so on. In every case, it is an expression of values.

Historically, law, which we like to see as the expression of justice, has been very commonly seen as injustice. The royal law in India for centuries was exploitive of the peoples and seen as oppressive. One aging missionary who had a contact with elderly Chinese who had seen the rules of the empress, the “republic,” and the communists, asked them about the difference from one regime to another as they affected them, the peasants. Their answer was that all things were essentially the same: “All masters want their will and our work.” Theoreticians of the law like to see it as equivalent to justice. During most of history, men have seen it as the oppressive will of the masters.

Ancient Israel was an exception to this. Law-making was recognized in times of faithfulness as God's prerogative, not man’s, and God had revealed His covenant law through Moses. This law was defended and expounded by the prophets, and it was binding for the King and the people. Nathan’s indictment of King David, one of a long series of such confrontations, was without parallel in antiquity. A law beyond man and from God judged both kings and peoples, indeed, all men and nations.

For our purposes here, a few limited aspects of Biblical law must be noted. First, every system of law imposes certain restraints on some for the freedom of others. Outside of Biblical law, these restraints are on one segment of men for the freedom of another, sometimes only a few. In Plato’s Republic, the free are very few; they are the philosopher-Kings. In other systems, other elites are free and the rest restrained. Second, not only is freedom in a social order selective, but it is also both positive and negative. Thus, in Soviet Russia, there is a freedom from capitalism, and a freedom for the state to control its citizenry. A man who exercises the freedom to sin thereby ensures freedom from virtue and its many blessings. No stand or act has a single consequence; we are at all times in a nexus of events, past, present, and future. Biblical law gives us freedom from men and from the state, but not from God. The social order created by Biblical law distrusts man as a sinner and thus minimizes his controls while stressing his responsibility.

This means, third, that Biblical law leads to a minimal state. The king or judge in Israel had less power than is now routine for the higher officials of state bureaucracies. The stress of Biblical law is on man’s responsibility to God and to his fellow men under God. Man must distrust himself, his fellow men, and his rulers. In Isaiah's words, “Cease ye from man, whose breath is in his nostrils: for wherein is he to be accounted of?” (Isa. 2:22). Power and authority are not to be accorded to men apart from God’s word and law. At the same time, “we are commanded to remember always that we are members one of another” (Eph. 4:25).

Much more can be said of Biblical law, but, for our present purposes, this suffices. With the progressive conversion of the Western world to Christ, the canon of society and the states became God’s law-word, so that a new element was introduced into the life of the law. Rome early saw the far-reaching implications of Christianity and therefore resisted it. Two rival doctrines of sovereignty and law were at war one with another, the sovereignty of God and His law versus the sovereignty of man, the state, and man-made law. From the days of Rome to the present, history has been witness to this continuing battle.

In any system of thought, the sovereign is the law-maker and thus the de facto god. Sovereignty, or lordship, and law-making are inseparable. The power to make laws is a manifestation of ultimacy and sovereignty in a society and over a society. It is a religious fact, and it manifests the god of that system.

Because of this, the conflict of Christianity with various forces, most notably the state, has been a continuing fact of Western history. The periodic prevalence of the Christian perspective has meant the freeing of man from statist controls. It has also meant that Western history has been marked by a freedom unknown to other areas of the world, and the result has been a vitality in the West of unequalled dimensions.

Instead of a monolithic society dominated by a monolithic state, we have seen both conflict and freedom. However faulty the Christian community has usually been, its presence has been productive of social energies and progress unequalled in all of history. Any study of the history of the West which is separated from theology is an exercise in evasion and futility. To chronicle events is not to understand history.

As a result of this Christian factor, the interest of a social order is a divided one. It is popular now with statists to speak of the state interest and to equate it with the public interest. This identification was basic to ancient tyrannies and is now a commonplace with our newer ones. Its modern origins are in Jean-Jacques Rousseau, who identified the state as the voice of the people’s general will. This identification has made possible the tyrannies of modern Marxism and National Socialism. Rousseau held that the public “must be taught to know what it is that it wills.” In the Social Contract, Rousseau held that while the will of the people may not correspond to the general will, “The general will is always right and tends always to the public good; but it does not follow that the deliberations of the people always have the same rectitude...There is often a great difference between the will of all and the general will.” This identification of the true will of the people as the general will, and the general will with the state, led to a revival of the ancient pagan state. After Hegel, the state was indeed a god walking on earth.

The French Revolution began the idealization of the state to a degree previously unknown in the western world. It also rationalized tyranny in the name of the people. The recognition that the public interest and the state interest could be very different had grown slowly and steadily. Now, with the secularization of society and the idealization of the state, that distinction began to be set aside.

In the English-speaking world, that distinction had become especially strong. A long tradition of courageous men defended the public interest against the powers of the crown. Step by step, that distinction was stressed and expanded. The unlimited powers of crown commissions were checked, and the areas of freedom expanded. The statement of James Otis in New England, that a man's house is his castle, was in this tradition, which goes back to the Middle Ages, Thomas Becket, the Magna Carta, and more. The papacy had a role in this, a major one, in challenging the controls various monarchs sought to place on the church. Freedom was a long battle, or, rather, a war with many battles, some still to be fought.

We must now turn to a key factor in all this. As we have seen, this Christian development led slowly to a recognition of the difference between the state interest and the public interest. David’s indictment by the prophet Nathan is an important example of this in Old Testament history. European, English, and American histories give us many more examples of this. The fact which made possible this differentiation and more was law, God’s law. Unlike all other laws, God's law was not identified with any class, race, or people; it judged the Hebrews, and later, the Jews, even more harshly than other peoples, so that it gave them no exemptions and was emphatic about precluding this.

God's law is not identified with the state interest nor with the public interest, It stresses their differences, but it does not favor either. Rather, the law of God speaks from beyond history to judge and govern all within history. In II Samuel 12, the prophet Nathan says to David, “Thou are the man,” and then pronounces God’s judgment upon him. God’s law judges both the public interest and the private interest because it transcends both.

All man-made laws reflect a particular human interest. At this point, humanistic legal theories and systems have been vulnerable to the Marxist critique. According to Marxism, laws are not objective systems of transcendental truth but class products. As class products, the legal systems defend their creating and sponsoring class. Accepting this premise, Marxists hold that the workers must be the dominant and controlling class, and the laws must reflect their class interest. Here too, however, an elite group expresses the supposed will of the people, but not with the consent of the people or workers.

Moreover, while Marxism has seen the partiality of the law, it has not solved the problem but has aggravated it by insisting on a rigid and total class partiality to replace the older limited one. As a result, it has replaced the mixed society with its frequent injustices with a totalitarian state dedicated to unremitting and total injustice.

Clearly, the state is not god; it cannot escape, on its humanistic premises, confusing the state interest with the public interest and from insisting that its will is the law. Because of this identification, there is a steady loss of religious freedom, and personal and family freedom. The loss in other realms, economic, educational, cultural, and so on, is also considerable. The state increasingly identifies its concerns with justice.

In the United States, there is a steady movement by regulation and by law to enforce a “public social policy” doctrine on all churches. This would give the federal government the power to regulate, control, or eliminate any and all groups whose stands conflict with “public policy.” Since “public policy” currently favors such things as homosexuality and abortion, this means that churches opposed to either have the option of surrendering their faith or submitting to the state on these and other issues. Such a trend spells the death of freedom.

Whenever and wherever law has been seen as the voice of the people or the voice of the state, this totalitarian faith has prevailed. Either law is transcendental, or it is the product of some human agency. If law is the product of a human agent, it cannot judge that agency. When the state makes laws, it cannot be taken to court without its own consent, and then in its own courts. In every humanistic social order, justice becomes the will of the state, and freedom becomes a luxury reserved for the state and its agents.

Because we are today witnessing the long consequences of a deeply entrenched departure from the transcendental nature of law, from God’s law, we witness on all sides an attack on Christian liberty.

At the same time, we see the rise of another kind of freedom, the freedom of slaves, the freedom of irresponsibility. What we often forget is that one of the worst factors in slavery has always been the intangible one, the diminution of responsibility. Nothing is more devastating to man and society. Abortion, the sexual revolution, homosexuality, and more are all evidences of slave freedom, not responsible freedom.

Those who despise God’s law are thus railing against responsibility, justice, and responsible freedom. Freedom under God makes us members of, not lords over, one another. It delivers us from bondage into a calling under God. The law of God is justice; man’s law-making leads to injustice. The starting point of freedom and justice is Jesus Christ and His regenerating power: “If the Son therefore shall make you free, ye shall be free indeed” (John 8:36). (May, 1983)

(Chalcedon Position Paper No. 40. Taken from Roots of Recontruction, p. 185)