Perfect Bedrock – Part 3 (Legislating Morality)
Updated: Nov 14, 2020
“How does one determine whether a law is just or unjust?” Martin Luther King Jr. asked in his famous Letter from a Birmingham Jail. “A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”
While King may not have held a conservative worldview, his views on what makes a law just or unjust is fully aligned with conservative thinking. For if terms like “just” and “unjust” have any significance beyond what we or the majority of people just happen to prefer, there must be some standard by which we can understand what is just or unjust. King identified this as the “moral law” or the “law of God”. This is what Russell Kirk referred to as an enduring moral order—which I have been referring to as simply “order”.
Order can be grounded in both philosophy and religion, though religion has historically shown itself to be the more fertile soil for sustaining a sense of order. And, while much good comes from our ability to ground order in some objective, moral standard outside of our momentary whims, much mischief can also arise from the process of attempting to pattern our laws after a religious order. “It is precisely when religion intrudes into politics that the political process is most at risk,” observed Sir Roger Scruton. I doubt I would need to convince the reader that religious zealots and those who claim to speak on behalf of God are not always the most ideal individuals to entrust with political power. Even a person who is deeply religious and would prefer government be subject to their particular faith can imagine the terrible prospects of government being subject to some competing faith.
Burke’s Views on Church and State
To be sure, conservative thinkers have long argued for the necessity of religious orthodoxy as a stabilizing force for good. And this has often been expressed as far more than fine feelings or the prejudice for some utilitarian good effect observed to come from religion. Take Edmund Burke’s declarations on how the British people were to be praised for their reverence for the sacred in his Reflections:
“They do not consider their church establishment as convenient, but as essential to their state; not as a thing heterogeneous and separable; something added for accommodation; what they may either keep up or lay aside, according to their temporary ideas of convenience. They consider it as the foundation of their whole constitution, with which, and with every part of which, it holds an indissoluble union. Church and state are ideas inseparable in their minds, and scarcely is the one ever mentioned without mentioning the other…We have not relegated religion (like something we were ashamed to shew) to obscure municipalities or rustic villages. No! We will have her to exalt her mitred front in courts and parliaments. We will have her mixed throughout the whole mass of life, and blended with all the classes of society. The people of England will shew to the haughty potentates of the world, and to their talking sophisters, that a free, a generous, an informed nation, honors the high magistrates of its church.”
In our increasingly secularized culture, Burke’s words seem shockingly antiquated, perhaps even dangerously superstitious. Was Burke ignorant—or worse, supportive—of the meddling role religious institutions had played in European politics of the Middle Ages? Was he denigrating the liberalization of the West in favor of some form of theocracy? Far from it. Elsewhere in The Reflections Burke disavows a Christian theocracy:
“Politics and the pulpit are terms that have little agreement. No sound ought to be heard in the church but the healing voice of Christian charity. The cause of civil liberty and civil government gains as little as that of religion by this confusion of duties. Those who quit their proper character, to assume what does not belong to them, are, for the greater part, ignorant both of the character they leave, and of the character they assume. Wholly unacquainted with the world in which they are so fond of meddling, and inexperienced in all its affairs, on which they pronounce with so much confidence, they have nothing of politics but the passions they excite.”
In other words, the church is of vital importance to the development of culture and the character of the individual that form the fundamental building blocks of a stable state, but ought not be used as an instrument of the state or involved in directing public policy. “It is one of the triumphs of Christian civilization to have held on to the Christian vision of human destiny,” wrote Scruton, “while acknowledging the priority of secular law.” Priority does not mean supremacy, but the recognition that the political process is uniquely designed to arbitrate secular disputes and not to settle religious or philosophical truth claims.
For even if we could all agree upon a single faith and were somehow capable of appointing religious magistrates who would perfectly divine laws based on that faith, we would still be committing a category error. As Scruton put it, “secular law adapts, religious law endures.” Religious traditions may guide us in understanding the delicate balance between human flourishing, purpose, tradition, liberty, security, and the roles and responsibilities of a complex web of networks, families, occupations, communities, and governments. But it’s unlikely to solve contemporary debates about tax rates, speed limits, or tort claims.
“Faith, purpose, and value, while expressing themselves in social forms, are never social in origin,” wrote historian Stephen Tonsor, “It is because of this that religion can never be legislated, and that authority can only endure when it is the result of assent freely given.” Here again we bump up against the conservative notion that order is imposed upon humanity supernaturally. Justice, love, beauty, honor—these are virtues that—as Tonsor notes—are expressed in our daily lives by the things we do and say or do not do and say. But these virtues are not things we can pull down from the heavens as if they were ours to manipulate at will.
Secular laws don’t find their origin in the heavens at all, but in a deliberative, consensual political processes. And whether the political process is democratic or authoritarian, some form of deliberation and consent is needed (for even absolute dictators cannot operate forever without the alliance of at least some of their subjects).
Now, consent works something like this: I’m OK with paying a little extra in taxes if it means we’ll get the roads fixed around here. Our secular law is malleable, bending to the unique and changing circumstances—and sometimes preferences—of the governed. Religious law is imposed from outside of our world looking in. Secular law—no matter how authoritarian the society—is imposed on humans by other humans and can be altered for that exact reason.
The Mosaic Covenant and the Theocratic State
It is true that holy texts—say, the Hebrew Torah or the Old Testament—contain specific instructions on how we are to behave from dietary restrictions on down to laws on murder. The Mosaic Covenant is filled with various laws on human behavior that many Evangelical Americans frequently quote as applicable today—“Thou shalt not steal”—and various and sundry edicts they’re less likely to quote—"Thou shalt not let thy cattle gender with a diverse kind: thou shalt not sow thy field with mingled seed: neither shall a garment mingled of linen and woollen come upon thee.”
For those who take the Word of God to provide some ideal blueprint for law, it should be noted that the Mosaic Covenant was literally made between Yahweh and His chosen people—that is, the Jews (Exodus 19:1-6). Importing the Mosaic Covenant on our pluralistic, multi-ethnic society located thousands of miles from the Promised Land would be like imposing freedom of the seas international law on a landlocked country. It’s not the authority of the law that’s in dispute but its intended parties and direct application. Such thinking also tends to ignore the remaining texts in Scripture as it would behoove us to read through the books of the Bible that follow the Mosaic Covenant to learn how well things worked out for the people who gave it a go before we try it ourselves.
Russell Kirk argued that Israel’s contribution to humanity was the “understanding that all true law comes from God, and that God is the source of order and justice. But of practical political establishments in Israel or Judah or the later Jewish principalities, nothing remains.” Calls for a Judeo-Christian theocratic state ignore Israel’s historical example and represent a misunderstanding of the relationship of “God’s law” on manmade law.
“All human laws are, properly speaking, only declaratory,” explained Edmund Burke, “they may alter the mode and application, but have no power over the substance of original justice.” “Men do not make laws,” echoed Kirk, “they merely ratify or distort the laws of God.” Justice, as King declared, is established by the law of God. God’s law is not to be duplicated as some poor knockoff, but it is the foundation upon which we may build.
Do Laws Point to Order Directly or Indirectly?
Perhaps this seems a distinction without a difference. What’s the substantive difference between manmade law built upon the foundation of God’s law and manmade law attempting to duplicate God’s law? The difference is whether we believe the relationship between manmade law and God’s law to be direct or indirect.
A direct relationship would imply that the political process is capable of producing justice; that we can ascertain philosophical truth claims to such a degree that we can know which laws will produce justice without examining their effect. A direct relationship would have no need to consider historical context, the character of a people, or any circumstantial background before rendering abstract “justice”. A direct relationship would imply the state could ensure justice by correctly identifying oppressors and victims and correctly doling out reparations accordingly. The conservative rejects this view.
Historian Garry Wills objected to the Liberal rationalist’s hubris seeking to create justice through a direct, abstract means:
“The rationalist pits the individual against an abstract order of justice in the state, instead of tracing the spontaneous growth and grouping of social forms that give the individual a field for expression and activity. The state appears apocalyptically, in such theories, bringing justice ‘new-born’ into prior chaos. But in the real order, the state arises from a hierarchy of social organizations, of groups formed to fill particular needs. The state stabilizes this spontaneous social expression. It answers a natural demand for unity. It cannot initiate such unity, or carve countries out of the map by legislative fiat.”
Conversely, an indirect relationship would imply that our laws are aimed at producing good, practical outcomes and, in so doing, point to God’s law. An indirect relationship wouldn’t dare to declare a law just without examining its effect. An indirect relationship would consult Wills’ “hierarchy of social organizations”—such as religious tradition, shared cultural experiences, or prevailing norms and customs—before enacting law. An indirect relationship would imply the state has a duty to identify specific acts of injustice, including the perpetrators of injustice and their victims, and to render judgment accordingly, but wouldn’t dare to attempt to right all injustices by giving some advantage to a broad group of “victims” or by pulling down their perceived “oppressors”.
Just as the priest has no business running the affairs of the state, neither does the philosopher. Religion and philosophy are invaluable tools that may guide us towards a greater understanding of just laws, but they are metaphysical, abstract, rationalist tools that can never perfectly align with the material, circumstantial, prudential, and sometimes even grubby business of practical politics. As Yuval Levin put it, “politics is not a branch of philosophy, in an express search for truth or its application, but is rather in the business of producing good practical outcomes, which help point to higher truth but not directly.”
The conservative position then presents us with two paradoxes. The first is the notion that there exists an enduring moral order—God’s law, if you will—that provides a foundation for all good things. Humans didn’t create this order, and they surely can’t alter it based on their preferences or opinions. The best we can do is seek to understand the order and live by it. But—and it’s a big BUT—our ability to understand this order, let alone translate it into the practical application of everyday life, is limited by our imperfect nature. Therefore, the best we can hope for is to aim at justice, knowing that the circumstances and complexities of life are going to make this a continual process of renewal and not some fully achievable end in this life.
And what’s true at the individual level is just as true for the state. In the political realm, our laws are just when they align with God’s law. But that “alignment” is indirect and imperfect, and we are constantly in need of re-examining where we stand and judging the measurable outcomes of our laws. We will never achieve perfect justice with our laws, though we understand perfect justice does exist.
The second paradox—as G. K. Chesterton observed—“the more transcendental is your patriotism, the more practical are your politics.” Irving Kristol echoed this idea, noting “it is paradoxically true that otherworldly religions are more capable of providing authoritative guidance for life in this world than are secular religions.” Or, as Russell Kirk put it, “Recognition of a transcendent order in the universe does not make the statesman into a dreamer, but into a realist.”
The most obvious reason for this is that belief in order originating outside of human hands would imply ultimate justice is not a project of the state, but a promise of the Almighty. Kristol further explains how a loss of religion leads to an overreliance on the state:
“There has been a decline in the belief in an afterlife in whatever form—the belief that, somehow or other, the ‘unfairness’ of this life in this world is somewhere remedied and that accounts are made even. As more and more people cease to believe any such thing, they demand that the injustice and unfairness of life be coped with here and now. Inevitably this must be done by the government, since no one else can claim a comparable power.”
Jesus Christ famously taught, “Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's.” While Christ’s intended application has been debated, Christianity has made possible a faith that can coexist with a secular state as the state looks after our temporal concerns whereas our faith is mindful of our eternal concerns.
I opened this post by using the term order as a substitute for King’s “moral law” or the “law of God”. From that basis it’s nearly impossible to talk about order without “getting religious”. But throughout the Enlightenment on up until today some have used the terms “natural rights” or “natural law” to describe a similar notion of order. What might conservatism have to tell us about natural rights? That is where we’ll pick things up in the fourth and final post in this series.