Oh how I love your law! It is my meditation all the day. Psalm 119:97
"Law is order, and good law is good order." Aristotle
"Law is the embodiment of the moral sentiment of the people." Blackstone
"A law is valuable not because it is law, but because there is right in it." H.W. Beecher
What exactly is law?
To the Hebrew Psalmist, it was a thing of great beauty. To a modern American, it is something burdensome. Frivolous lawsuits come immediately to mind.
I have flashbacks to when I served on a jury several years ago. The case was a civil case involving a man whose car rear ended another man's car. The plaintiff claimed whip lash and sued. I sat through two days of testimony and then we deliberated. For some unknown reason, everyone picked me to lead the jury ... unfortunately for me, the jury was split on the verdict. How I resolved that thorny situation will have to wait for a different post.
Moving on.
I recruited two thoughtful and highly intelligent lawyers to help me think through the law at a worldview level. My goal is to seek their help in unpacking a Christian worldview of law and juxtapose it with a secular worldview of law.
Mark is an attorney admitted to the bar of three jurisdictions. He has worked as a law clerk with a state appellate court, at a large law firm, and as a law instructor. In his spare time, he enjoys following professional football and spending time with his family.
Kristina is a licensed attorney who has worked as an appellate-level law clerk and for several non-profit organizations. She enjoys reading, writing, and cultivating deeper friendships one cup of tea at a time. She has a keen interest in legal history as well as natural law, and hopes to teach law someday.
Both graduated near the top of their classes with academic honors and GPAs that soared into the stratosphere ... unlike Mr. Dawntreader's GPA.
I asked them what is law?
Mark suggested several common definitions.
"Law is a binding custom or practice of a community : rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority." Merriam-Webster Online Dictionary.
Definition # 2: "Law is a solemn expression of the will of the supreme power of the state." Montana Code Ann.
Definition # 3: "Law is a certain rule and measure of acts whereby man is induced to act or is restrained from acting." Thomas Aquinas
He synthesized it for me.
These definitions have similarities, yet each is distinct in its meaning. Let’s start with the similarities. First, laws come from somewhere outside of the person upon whom they act. That means they exist outside the one on whom they seek obedience. Thus, the law-abider does not typically create the very law he follows. Another similarity - law persuades man to act or refrain from acting, using force as a way to prohibit disobedience. The first two definitions also incorporate the notion that law is simply an expression of the will of the masses, a way for the majority to keep the minority in line.
Perhaps I can throw out a basic understanding of law from my own understanding: Law is a set of norms, determined by something or someone outside the person upon whom enforcement is sought, for which obedience is rewarded and disobedience is punished.
Kristina added some clarification.
I would add one more component to a definition of law -- it must be promulgated. That is, it does no good if the authority says to him that there is a particular law, but no one knows about it. It doesn't necessarily have to be written, and the maxim "ignorance of the law" is still valid as far as application to a particular individual is concerned. I looked up one of William Blackstone's definitions of law: "A rule of action prescribed by a superior that an inferior must obey."
In my words, the law is a collection of rules. Rules are binding in nature. Rules influence us toward behavior. These rules come from outside me and apply to more than just me. They are rules for a community. We obey them and presumably good things happen. We break them and get punished. The rules have to be known ... and promulgated. Who gives the rules and whether they are good rules are obviously worldview assumptions.
Speaking of those assumptions, I asked them what is the basis of law ... and what do law schools generally teach as the basis of law. As a Christian, what is the basis of law?
Those answers when we continue.
Oh, and you didn't ask your favorite law school professor and jurisprude?
You said: In my words, the law is a collection of rules.
That's a rather reductionist, formalist definition of law. See legal scholar and Legal Theory Lexicon maven Larry Solum's definition of formalism, which just about exactly describes your approach here.
Formalism is of course a viable theory of law, and it figures prominently in neconservativism. But it is subject to some compelling critiques from legal realism and instrumentalism. Legal realism says that even when judges purport to act according to formalism, they really are making the law as they want it to be. Instrumentlism says that the encoded law should be interpreted and applied according to its purposes rather than strictly according to its encoded language. Instrumentalism and realism, then, would not see law primarily as a set of written, encoded rules, but would see it more in terms of what judges and juries actually do in application.
If you are looking for a descriptive theory of what actually happens in the legal system rather than a prescriptive theory of what should happen, I'd suggest that you have to pay careful attention to realism and instrumentalism.
Of course, formalism and realism are only two ways to look at law. You also need to consider social contract theory, as expressd by Hobbes, Locke and Rousseau, and as presented in a contemporary Kantian form by Rawls. Rawls' view is more prescriptive than descriptive, but in many ways it also decribes the deep Lockean roots of U.S. law as found in the U.S. Constitution. Essentially, Rawls' view is that law should reflect what individuals who know nothing of the circumstances of other members of society would want for themselves. This basic core of rights and protections then forms the minimal social contract rules required for a just society.
Then there's Ronald Dworkin's "legal holism." For Dworkin, law is not a set of discrete rules, but is a "seamless web" of social relations, such that the judge must go beyond a particular set of propositions to decide any given case.
All of these theories are essentially liberal theories of law (liberal here meant in the classical sense of essentially democratic). You also have to consider theories of law that primarily derive from notions of authority, particularly the medieval concept of the divine right of kings, and eastern concepts of law that derive authority from the social order. And, you need to consider dialectical theories of law drawn from Marxism, as well as the dialectical theories represented by the critical legal studies movement.
If you are looking for a particularly Christian jurisprudence, I'd suggest that you can't stop at formalism, realism, social contract theory, legal holism, or authority or dialectical theories. You need to consider the Thomistic natural law tradition. In that tradition, law is not a set of man-made rules. True law is that which conforms to the deeper divine law woven by God into creation. In my scholarship, currently I'm exploring what I think is a deeper and perhaps even more truly Thomistic and Aristotelian rendition of natural law theory, which is called virtue jurisprudence. But then of course you need to consider some of the Reformed critiques of natural law theory and the common grace jurispurdence of Kuyper and others. And then there are anabaptist and other peace traditions, reflected in folks like Hauerwas and Glen Stassen. (An excellent anthology on Christian legal theory came out last year for intrepid readers.)
This little survey is only the tip of a big iceberg. Legal theory and jurisprudence is endlessly fascinating, and for the Christian thinker, demanding subject. Unfortunately, evangelicals are often quick to settle on formalism as the "right" theory of law. Formalism has advantages and disadvantages, and can't be seen as the end of the discussion.
Posted by: dopderbeck | November 21, 2006 at 10:53
Oh, and BTW, re: your jury duty story: when I was in practice, we used to say that "a jury is twelve people too dumb to get out of jury duty." ;-)
Posted by: dopderbeck | November 21, 2006 at 11:59
"Oh, and you didn't ask your favorite law school professor and jurisprude?"
You are always invited to any discussion on the Dawn Treader. I was hoping you jump in. ;-)
I am busy reading of all your links. But it looks like some of the things you are linking to are a bit down the road (in the application part of this series on law).
I am drilling down into the presuppositions of modern law theory versus the presuppositions of a particularly Christian jurisprudence. Your stuff along the lines of the Thomistic natural law camp and the Kuyperian critique is more of where I am starting out.
So ... the questions in play are ...
What is law?
What is its purpose?
What is its foundation?
Is law discovered (i.e pre-existing) or man-made?
Then we move into the application area.
I would like to hear your thoughts to these questions, please.
And ... how does the dominant non-Christian legal philosophies of the day tackle those questions?
Posted by: Mr. Dawntreader | November 21, 2006 at 13:05
"Oh, and BTW, re: your jury duty story: when I was in practice, we used to say that "a jury is twelve people too dumb to get out of jury duty." ;-)"
Well ... I answered one question wrong the first time. "Do you believe that a person could be injured in a collision that involved vehicles travelling under the speed of 5 miles per hour?"
I said yes, I believed they could get injured. I thought about it later, and felt that I had not given an honest answer. I felt guilty about that.
I was called to jury duty again ... two years later. I was put in the pool for the exact same kind of civil case. This time when asked by the lawyer, I answered with conviction ... "No sir. I don't believe a person can get injured in that kind of a crash." I was immediately dismissed from the pool.
Posted by: Mr. Dawntreader | November 21, 2006 at 13:10
Here's how these different schools might fit into this matrix (simplistically)
Formalism:
What is law? Rules
What is its purpose? Compliance
What is its foundation? Democratic Will
Is law discovered (i.e pre-existing) or man-made? Man-made
Realism:
What is law? Power
What is its purpose? Compliance
What is its foundation? Political / judicial will
Is law discovered (i.e pre-existing) or man-made? Man-made
Social Contract:
What is law? Agreement on basic rights.
What is its purpose? Securing liberty
What is its foundation? Democratic / constitutional agreement.
Is law discovered (i.e pre-existing) or man-made? Man-made
Natural Law (Classical-Thomist)
What is law? Application of divine mandate, divine nature expressed in created order
What is its purpose? Compliance, Flourishing
What is its foundation? Divine character and will
Is law discovered (i.e pre-existing) or man-made? Pre-existing
Virtue Jurisprudence (Aristotelian-Thomist):
What is law? Community standards
What is its purpose? Human flourishing (eudomonia)
What is its foundation? Human nature (imago Dei) and culture (incarnational)
Is law discovered (i.e pre-existing) or man-made? Both
Kuyperian:
What is law? Boundary conditions
What is its purpose? Bounding the sovereignty of spheres of culture
What is its foundation? Divine cultural mandate
Is law discovered (i.e pre-existing) or man-made? Both
Dialectical:
What is law? Political instrument
What is its purpose? Distributive justice
What is its foundation? History, social / class struggle
Is law discovered (i.e pre-existing) or man-made? Man-made
Posted by: dopderbeck | November 21, 2006 at 14:04
Ok, now I have to ask...what happened at jury duty? I'm curious. Would you put it on a future post?
I'm so glad I'm not old enough to have to be on a jury...
Posted by: Rachael | November 21, 2006 at 16:42
David,
In your opinion, which of these systems is most commonly taught in secular law schools?
I am looking for the leading contender against a Biblical worldview of law.
Posted by: Mr. Dawntreader | November 22, 2006 at 18:04
In your opinion, which of these systems is most commonly taught in secular law schools?
This will sound like a weasly answer, but that depends. My perception is that many legal scholars lean towards a legal realist view, maybe mediated by Rawls or Dworkin, and that transcendent views (including, for example, natural law) are viewed skeptically by much of the legal academy. But, there is a solid contingent of legal academics who take such transcendent theories very seriously (see, e.g., the blog Mirror of Justice.
Also, it's not exactly that jurisprudential theories are "taught" in law school. In most law schools, you spend most of your classroom time learning a style of reasoning and a set of basic common law and statutory principles, without much direct discussion of jurisprudential theory (super-elite schools such as Yale and Chicago are an exception here). Good teachers expose students to a variety of theoretical approaches in the discussion of particular substantive rules. Teachers with an ideological bent usually let that bleed through in a sort of zeitgeist-y kind of way as they teach.
It's entirely possible for a law student to escape three years of law school with only skepticism for any transcendent theory of law. But, depending on the teachers a student is exposed to, it's also quite possible to hear about transcendent theories as well. The good thing is that law students, at least the more serious students, tend to be a feisty lot. Most of them won't buy something just because a sage on a stage is selling it.
Mark and Kristina -- what do you think about what's taught in law school?
Posted by: dopderbeck | November 24, 2006 at 18:08
I am looking for the leading contender against a Biblical worldview of law.
Let me throw this out: is there "a" Biblical worldview of law? Can we see positive aspects of each of the approaches I mentioned, rather than seeing them strictle as dialectical to a "Biblical" approach?
Posted by: dopderbeck | November 24, 2006 at 18:10
"Let me throw this out: is there "a" Biblical worldview of law? Can we see positive aspects of each of the approaches I mentioned, rather than seeing them strictle as dialectical to a "Biblical" approach?"
Absolutely. I want to start at a high level at first where all Christian viewpoints should agree. As we drill deeper, nuances will emerge between Christian views.
Please note that I was deliberate in my choice of articles in front of the term "Christian worldview" ... I chose "a" versus "the". I am sensitive to the very point you are making.
Posted by: Mr. Dawntreader | November 27, 2006 at 07:34
I want to start at a high level at first where all Christian viewpoints should agree.
I'd suggest this as a starting point: any Christian theory of law should be creational and incarnational. That is, law is part of the created order, and is part of our human nature, in virtue of (a) the creation reflecting God's attributes and; (b) our being created in the image of God. For positive (human, encoded) law to be just and effective, it must somehow be tied to creation and incarnation, and thus ultimately tied to the attributes of God.
At a broad level, IMHO, the major contrast to this sort of view in Western theories of law are the views that law is only a human creation or an evolutionary by-product.
Posted by: dopdebeck | November 27, 2006 at 11:00