The Christian Theistic Philosophy Of Law And Jurisprudence

By W. Stanford Reid

McGill University, Montreal.

ONE of the major questions which the world faces to-day is that of the nature of law. While men have usually realized that law is one of the great means of social control, by which and under which they must live, if they would live at all, yet there lies before us to-day as there has not done for over a hundred years, the problem of the origin and validity of law. Is law simply the expression of the will of an omnicompetent dictator? Is it the expression of the will of an omnicompetent people? Or, is it ultimately the expression of the will of an omnicompetent God?

To the first question Nazis and Fascists answer yes. To the second many of our humanistic democrats will give an affirmative answer. Yet in doing so they ultimately support human dictatorship for they make man the only source of law. Germany’s history since 1920 is a good instance of the consequences of the humanistic view. To Christians, however, law can have no meaning apart from the will of the sovereign God; and in these days of doubt and lawlessness it behooves them to set forth this view. Theirs is the only view which will really cut the ground from under the humanism which is driving even democratic nations into the totalitarian camp.

In the following pages an attempt will be made to outline, rather briefly, the Christian theistic philosophy of law. Although by no means as fully as possible an endeavour will be made to fulfill Cardozo’s definition when he said: “A philosophy of law will tell us how law comes into being, how it grows and whither it tends, genesis and development, and end or function, these things, if no others will be dealt with in its pages”.[1]

The Source and Origin of the Law

Although Christian theism teaches that God is the source of all reality, it does not hold the Hegelian view that the world is “a development of those principles or determinations which form the content of the divine mind”.[2] Rather, accepting the doctrine of the tri-unity of God, it insists that God and the world are absolutely different. God finds His complete expression in the interrelations of the Trinity, so that He is independent of temporal reality and history. These latter, being created by Him solely for His own glory, are upheld and preserved by none other than His sovereign power.[3]

In creating reality, God established certain independent but externally related spheres, each of which possesses its own laws. He made the spheres of number, space, physics and biology, within which lie both animate and inanimate creation. The laws of number, space and physics govern the non-organic realm, while along with these the laws of biology govern both the plant and animal kingdoms. Starting with the simplest sphere, that of number, all the spheres build upon those that precede, each adding something new.

The spheres of matter and animal life, however, were not the only ones created. Another creature of an altogether higher order was placed upon the earth by divine creative act. This was man. Created in the image of God, he, though finite, had true knowledge, righteousness and holiness. He was thus the highest point of creation, its summary and summit, with the center of his life concentrated in the service and glorification of the eternal Godhead.[4]

This service of God, however, was not to be according to the vagaries of a completely undirected free-will. Man was placed under law. Not only was he subject to physical and biological laws, but also to intellectual, social and ethical laws in their widest sense.[5]

Man was given true knowledge, which means that he was able to think properly. As a creature made in the image of God he had implanted within his mind the laws of logic and ratiocination to which his thinking conformed. He was not left with a completely free and unguided intellect, but was given one which, although finite, was perfect. He was capable of thinking in accordance with the psychical laws established by God. He truly thought God’s thoughts after Him.[6]

In social life he was in the same position. As man was in time, he was subject to historical development and the laws of history. As he was not alone in the world, he must needs have means of communication, language, which brought him into the sphere of linguistics. And because he lived with others, he was subject to social and economic spheres. The first social laws established by God were those concerned with monogamous marriage. The family was to be the unit, the father ruling over the others, and the biological blood relationship forming the basis of the unit under the law of the family. Laws in the economic sphere were also established, man being given sovereignty over all non-rational creatures, and instructed to depend upon vegetable life for food. In this way, from the beginning, man’s social existence came under the laws of God.[7]

In the same way was governed man’s ethical life. His duty to his fellow men and to himself was based upon his duty to God. To this end man was given a test to see if he would obey God’s law faithfully on the simple ground that God commanded it, or whether he preferred to disobey God in the pride of his own heart. He was informed by God that as absolute as the laws of the physical spheres were those of the sphere of ethics. If he broke God’s ethical laws he would die.[8]

The question arises at this point, however, as to the means by which man obtained a knowledge of these laws. It came in three ways. In the first place man used his perfect intellect by which he could gain an understanding of many of the physical, biological and other laws of the world, as well as an appreciation of the important fact that all laws were upheld by the providence of God. In the second place man had a conscience, a cognitive faculty whereby, through intuition, he could know the difference between right and wrong. This was implanted within him to direct his relationships with his fellow man, and above all with his Creator. Finally, man was given by God special revelations concerning some specific facts and laws. In this way he had complete and perfect knowledge of the law of God.[9]

Thus in summing up the situation of man in his original pristine perfection, we find him a perfect, God-created being, living in complete harmony and pure communion with his Maker. He realized the sovereign position which God held over him, and to this he submitted, willingly obeying the law of God and doing all things to His glory.

Law Becomes Jurisprudence

How long man retained his perfection and obedience to God we cannot say, but that he fell is quite evident. He came to the place where he actually denied the sovereignty of God, and sinned by breaking the divine law. As soon as this took place, man died and the seeds of death were introduced into his physical existence. By his infraction of the law of God, man lost his righteousness, his subjective holiness and even his logical capacity to see God as his Creator and Lord. He lost the knowledge of, and the will to obey, the laws of God. But what was even more disastrous, because of the unity of the family physically, biologically, socially and ethically, this loss of original perfection was passed on to all those descending from Adam by ordinary generation. Even at birth, the descendant of Adam possesses within himself the seeds of spiritual and physical death which, unless restrained by God, will work themselves out with terrible results.[10]

That this original sin had such consequences is shown by the effects of the fall in the social and ethical spheres. Instead of man’s whole existence being centered in the glorification and enjoyment of his Creator, it became centered in man himself. Man exalted himself as the final aim, object and interpreter of the universe, relegating God to the position of a non-entity. The almost immediate result of this was murder (Genesis 4, 6). Man cared nothing for the fact that since his fellow man had been placed in creation by God, God alone could remove him. He exalted himself to the position of God, going so far as to destroy by murder what remained of the image of God in man. Without divine intervention and restraint, man’s lawlessness could result in nothing but chaos and destruction.

But man not only suffered from the effects of sin as a natural consequence of the fall; he suffered because of the punishment bestowed upon him directly by virtue of God’s retributive justice. True, it was according to the eternal plan of God that man fell, but man had been given such complete freedom that on his own responsibility alone he had rejected God’s sovereignty. Therefore, with perfect justice God could have punished man by dousing him in the night of eternity, leaving no human spark upon the earth. If, on the other hand, God did reach down to restrain the raging of His creatures, it was simply by His grace, not because of any merit or loveliness to be found in them. The effects of sin could be nullified only by divine intervention.[11]

The grace of God manifested to man since his fall has been of two distinct kinds: Special Grace and Common Grace. Special Grace came to man as a result of God’s eternal decree of election, whereby for His own glory He chose a multitude of His creatures to be His own peculiar people. They were to be brought into this blessed state through the Covenant of Grace by which the Second Person of the Trinity, as their representative, was to bear their sin.[12] As they had broken God’s law, they had to be punished by that law, and also be brought to obey it. The Kingdom of God had to be reestablished in their hearts.[13]

Yet God would not ride rough-shod over men, leaving them without free agency. Instead He gave unto them His law, that they might see their sinfulness, and then He sent the Redeemer, Jesus Christ, that He might bear their punishment. Before the Incarnation, the law itself pointed forward to the coming Sin-bearer, but since His coming we see more clearly God’s ways with men. None of this, however, would have been of any use had God not also provided for the changing of men’s hearts by turning them unto Him. Through the work of the Holy Spirit in man, God brings His elect people back to Himself. Having redeemed them from the punishment of the law, He gives them a desire to accept the Saviour and live according to the law.[14] This is the way of Special Grace.

At the same time grace has also been given to the non-elect, but it is not the Saving Grace which results in loving obedience to the law of God. Common Grace, as it is called, has on the other hand, the twofold task of emphasizing that man is inexcusable for disobeying God, and of bringing forth to the glory of God the gifts with which He has endowed man. It underlines man’s depravity by restraining his sin to such an extent that he should realize even from looking at this sin-stricken universe that there is a God who demands obedience. At the same time it enables man to develope the powers which he still possesses as retaining in part the image of God. God has thus seen fit to control man’s sinful heart in order that the church might be able to carry on its work of preaching the Gospel to all men in the historical process of calling out the elect.[15] In other words, Common Grace counteracts what would be the result of man’s “egoism”, in order that the work of Special Grace may be completed. The principal method employed to do this is that of the partial restoration of law over man, in order that the outward effects of sin might be curtailed. This is the basis of all jurisprudence.[16]

The agency by which the law regulating men’s relations to each other is formulated and enforced is the state. This social organization was established in its present form, that by “public law” it might nullify the effects of sin.[17] What form the state would have taken had sin not entered the world we do not know, nor is the matter relevant at this point. The historic character of the state was absolutely necessary, once man fell, to prevent chaos in creation.[18] Thus the state, while a divine institution with its own specific function, is without authority to take over the work of the church or of the family, and is subject to the laws established by God in its own sphere. For this reason Christian theism cannot accept or submit to any form of totalitarianism whether National Socialist, Fascist or Communist.[19] The state’s main function is that of co-ordinating the other spheres of social life within its purview in order that they may not lawlessly interfere with one another.[20] Yet at the same time we must remember that the members of the different spheres are members of the state so that all the various spheres are by it connected externally.[21]

The problem of Christian theistic political theory is too great to be dealt with here, but it might be well to state a few general principles. In the first place, since the state is a divine institution of Common Grace, the magistrate is to be regarded as holding a divinely created office, his laws being accepted and obeyed as the laws of the minister of God, except where they definitely interfere in spheres outside the magistrates’ jurisdiction.[22] There is no divinely appointed way whereby the magistrate may obtain office, but once he is in it, he must be recognized as holding it through the providence of God. However, it is usually true that the democratic method of magisterial appointment is the best yet devised to guarantee good rulers.[23] The only means by which a magistrate can be removed is by the action of those who have the authority to do so either by constitutional or prescriptive right. At the same time there is no such thing as a “social contract”, for ultimately the magistrate holds his authority not from the people but from God and can enforce his commands with the sword. Yet because of his subordination to God’s law, whether expressed by written constitution, precedent or only by public conscience, he should be restrained from unlawful actions, being subject to removal by force for failure to submit.[24]

The results which are to be expected from the work of the state are equity and justice in the relation between the social spheres, in order that peace may be preserved. By this means Common Grace forms the environment in which Special Grace functions. Thus the two realms, closely related and interdependent, are at the same time different and separate.[25]

In summing up the Christian theistic view of the means employed by God to restore men to obedience to His laws, we find that we can revert to the familiar figure of Augustine’s two cities. The City of God, the church, the body of the elect, is the divinely appointed agency in the realm of Special Grace whereby absolute restoration to obedience is accomplished. We do not of course hold the Thomistic view of the church but refer to it not as an organization but as an organism, the body of regenerated people who once again acknowledge the sovereign law of God. The laws given to this organism deal with the relations of its members to both God and man. However, being a spiritual body, its laws are not enforceable by physical power, but rather through the action of the-Holy Spirit within the conscience.

The state, however, is an institution in the realm of Common Grace for the purpose of restoring God’s law only relatively, by enforcing it externally upon men, in order to restrain their sinful desires and actions. Thus although the state functions as the environment in which the church operates, it cannot interfere with the latter, either as an organism or as an organization. For the state deals not with conscience but with overt acts only. Moreover, its laws are not gained by means of special divine revelation. They are obtained directly through the working of divine providence in the sphere of Common Grace, and only indirectly from special revelation through the influence of the church. This latter, however, is not necessary in order that a state should exist, for there have been states such as China which have existed without the teaching of the Scriptures. Yet at the same time a knowledge of special revelation is necessary if the state is going to fulfill its work properly. This is where the church should act as a teacher.[26]

The Development of Jurisprudence

Before turning to a detailed consideration of the Christian theist’s theory of the development of jurisprudence, there are certain general considerations to which we must give a moment’s thought. As we have seen, jurisprudence to the Christian theist is not a natural thing, but was introduced as a result of sin. At the same time it is not part of the sphere of Saving Grace, but of Common Grace. Christian theism thus virtually accepts Cardozo’s statement that “logic and history, and custom, and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law”.[27] However, these forces do not exist in a void, but are maintained and directed by the providence of God and are corrected by Him, when they tend to err, by the influence of Special Revelation. By this means does the law grow.[28]

When we turn to the actual forces by which the law comes into existence, we find that tradition comes first. By this we do not mean “precedent”, but would refer it to the development of law in early civilization. This tradition was a product or vestigial remnant of the law originally given to man, and preserved by word of mouth or perhaps in writing from the time of the dispersion over the earth. On such a basis probably rests the code of a law-giver such as Hammurabi. This would partially explain its similarity to, and differences from, the Mosaic law divinely revealed at Sinai. Such, of course, is not the usual evolutionary interpretation, but it seems to be as reasonable, if not more so, and is in complete accord with the Christian theistic position.[29]

Tradition of any kind, however, can have little influence unless it is in accord with human nature and its needs. Thus tradition’s continued existence depended upon human desire for law, and authority to establish right and equity. This is the ultimate basis for law. In other words, jurisprudence is based upon the demands of Natural Law which resides in the heart of every man. We must hasten to explain, however, that when we refer to “Natural Law”, we do not use the term in the way employed by the Thomists or by the rationalists of the Enlightenment. To the Christian theist, Natural Law goes back to the law of God implanted in the heart of man when created. It is dependent upon what remains in man of the image of God after the entrance of sin. Natural Law, therefore, is not a rational principle constituting part of man’s psychical existence which can be rationally deduced from human nature. It is the conscience-known, objective standard of justice, the sense of right and wrong, which God implanted in the heart of man. To quote Chenevire: “elle n’est donc pas constitutée par la nature humaine s’exprimant rationellement; elle est une loi imposée du dehors par Dieu à ses créatures”. And it is known instinctively, albeit indistinctly and incompletely because of sin, by man’s sin-damaged conscience.[30]

As Natural Law is a possession of all men, logically its first, although perhaps unconscious, manifestation comes in the relation of the individual to the individual. This is in direct opposition to the Austinian theory that law is nothing more than a series of isolated dooms pronounced by individual judges. As Cardozo points out, men in their relations to each other continue to live under law, even though unconscious of the fact that they are doing so. This appears for instance in the family relationship where the Natural Law of potestas patris familiae frequently remains in spite of the obstructions of time and space.[31]

All men, however, have not been given the same appreciation and consciousness of Natural Law, for by the grace of God some have been equipped in a particular way to put it into practical and applicable form. This appears in the case of such men as Hammurabi, Solon and many of the Roman jurisconsults and praetors. All these, without Special Revelation, except perhaps vague tradition, by means of conscience and ratiocination put into practical and permanent form jurisprudential systems which have exerted wide influence. They have had their successors who, while influenced to a certain extent by the sphere of Special Grace, have shown equal ability. As Cardozo says, there have always been some men trained in the law who have had insight and flashes of genius which have done much to mould and develope the law.[32]

Even these great law-givers of history, however, do not live in ivory towers interpreting Natural Law in their own hearts in order to give it to an expectant mankind. Rather they have always been men who were closely bound to, and interested in, their own contemporary social life. As Kuyper has said: “The law is embedded in life. .. . The study of law is the anatomy and therapy of God-established social relationships”.[33] Thus even the great law-givers are really only the interpreters of the effects of Natural Law as they appear in contemporary social existence. Man’s relation to man gradually hardens into custom by repetition, and custom hardens into law by promulgation and enforcement. We see this in the fact that throughout all laws of all times there are certain fundamentals innate in all forms of social life, which demonstrate law. There are of course variations in application, but underneath is the common denominator which rests upon man’s instinctive knowledge of right and wrong, Natural Law, and this is what appears in his social life.

Yet at the same time we must also realize that God in His grace has given to some nations and people greater faculties and facilities for developing law than He has to others. Our most striking example of this is the contrast between the Greeks and the Romans. While the former had the gift of speculation and reasoning, the latter seem to have had, to an amazing degree, the capacity for legislation and administration. No doubt much of this came from environment, history and the like, yet all these factors as well as special gifts are ultimately dependent upon the providence of God. In this way, certain nations become the great law-givers of the world, for they are best able to formulate rules which promote social welfare.[34]

But how does this law made by individuals and custom become effective to regulate social life? The first means of making it practicable is that of legislation, by which is meant the formal promulgation of statute law by the state or national government. This agency of law formulation may be either that of an individual or a group. Christianity gives no form of government its imprimatur of approval. Yet in weighing the relative merits of the two types the democratic form has usually been found to be the best. Since the work of the government is that of controlling relations between the spheres within the state, it is preferable that laws should be promulgated by all spheres in consultation. “The vice or imperfection of men”, as Calvin says, “renders it safer and more tolerable for the government to be in the hands of many, that they may afford each other mutual assistance and admonition, and that if anyone arrogate to himself more than is right, the many may act as censors to restrain his ambition.”[35] Thus for legislation which guarantees equity among spheres, democracy is usually the best form of government. From such a legislature laws come as formal statements of principles which can and must be enforced, if necessary, by physical means.

However, many problems of sphere-relationship often arise for which no statute has been made, or for which principles have been stated in only very general terms. Therefore, it is often necessary, in making decisions in specific cases, either to formulate new principles or to give particular applications to old ones. This is the work of the judge. By means of his judicial authority he interprets the general principles of statute law or, in cases for which no statute exists, he decides on general principles of equity and justice. In this second way, Natural Law which has usually come to expression through custom, is formulated and made effective for the maintenance of equity and peace in the state.[36]

But again there arises the problem of how the legislators or the judges are to decide what customary laws are to become statutes. How are they to decide the Tightness of a custom? Do they pick them arbitrarily, or is there a guide to right decisions?

In answer to these questions we find that supreme over all is the law of God. To this the legislator must yield obedience. Yet he is not forced to do so by outward constraint, but rather by custom which is usually the result of a gradually developed social consciousness in which he himself is involved. Custom, however, is also reinforced by the witness of the legislator’s conscience which emphasizes the difference between right and wrong. On the other hand, legislators who have to meet new situations usually turn for guidance to history, to see how others have dealt with similar situations, either by statute or judicial decision. Thus added to custom and conscience we have analogy and tradition. To all this is added the results of legislation and decision. If a statute or decision causes oppression, injustice and other social evils, it is to be reversed that true equity may prevail. The legislator or judge “is to exercise discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life”.[37]

At the same time, however, to the Christian theist this is not sufficient. The courts of the totalitarian countries show what happens when sin has full course, and when the realm of Special Grace is trodden under foot. Law then becomes but a tool of oppression and injustice. The reason for this is that Common Grace after all restrains the effects of sin in only a partial manner, so that the knowledge of Natural Law, as given in custom, conscience, history and results, is inadequate and faulty. It may be perverted. If jurisprudence is to maintain justice, the sphere of Special Grace must exert an influence, by bringing to bear the Revealed Law of God upon legislation and judicial decision.[38]

In giving a place to Special Revelation, we do not mean that the church is to dictate to the state. They are two independent spheres. Yet they do touch each other externally, for members of the church are also members of the state. It is even possible for an individual within the realm of Special Grace, to occupy a position of authority in that of Common Grace. In other words, it is possible for a Christian theist to become a legislator. This has been the situation in the Netherlands for some twenty years. Such a legislator, believing the law of God (summed up in the Decalogue) to be true justice, will exercise a Christian influence on legislation. He will not, of course, attempt to apply the law of God to the conscience, but only to outward acts; nor will he endeavour to use it in a way which would attempt to revive an Old Testament theocracy. He will use it as a set of basic principles for his guidance.[39]

Along with the Christian influence of the legislator on the formation of law, goes the influence of the church. This is not exercised by forcing the state to carry out its wishes, but by inculcating Christian principles in the hearts and minds of its members who, if true Christians, will soon exert a strong influence on the government. Or it may exert a direct influence on the legislators by so insisting on and so emphasizing the sovereignty of God and our duty to Him that the legislators themselves turn to the Revealed Law for guidance. Yet, in so doing, the legislators are not following the dictates of any one denomination, synod or pope. They are dependent upon their own understanding of the law given by God.[40]

It must be emphasized, however, that this ecclesiastical influence is to be informal, not official. Otherwise there would be a mixing of spheres which could not but result in confusion. At the same time it seems only reasonable that a state which acknowledges by its constitution, written or otherwise, that it professes obedience to the law and rights of God, should do something to make effective that sovereignty. This could be done by endeavouring to have appointed to official positions only those who profess to acknowledge the sovereignty of God, and by restraining those who attack that sovereignty. Only then could a state be called truly Christian, and only then would it find its proper focus in the sovereignty of God. But again, this must not be brought about by the church gaining control of the state, nor by “church establishment”. The church’s influence must be external and informal, or it will only lead to disaster.[41]

Thus, although the Christian theist at first appears to hold views on the development of jurisprudence similar to those of such modern legal authorities as Cardozo, Pound, Duguit, Jhering and others, he actually differs from them radically. They hold that the ultimate point of reference for all law is man. The Christian on the other hand believes that the only thing which makes law mean anything is the recognition of the sovereignty of God. He is the only source of law, and Special Grace is necessary to restrain and purify jurisprudence arising from Common Grace.

If this is not so, it seems that eventually we must hold that might makes right. Law becomes merely an historically generated universal which rests on a positivistic metaphysics, rather than on an absolute ethic. This leads to anarchy whose only antidote lies in human dictatorship — or the sovereignty of God. Christian theism leads to constitutionalism, humanitarian philosophy to totalitarianism. For with divine law rejected, human law becomes but the expression of man’s desire. The Germany of the twenties and thirties is a case in point.[42] Yet this difference between Christianity and humanism is not new, for ever since man became the servant of sin he has been attacking God’s right to be regarded as the only source of law and jurisprudence.

The History of Jurisprudence

This tendency of jurisprudence, if untouched by Christianity, to lead to self-destruction and dictatorship appears in its own history. The afore-mentioned factors have always played a part in its development, although they appear in different proportions at different times. Social organization, economic development, and political institutions have all played their part. Even more potent, however, has been the influence of the intellect, for by it have been shaped ideas of reality which either support or oppose God-given Natural Law. Not infrequently, the greater the development of humanistic philosophy, the more conscience has been suppressed; and had not Special Grace and Revealed Law exerted their influence, anarchy would have undoubtedly been the result.[43]

In studying the history of jurisprudence, we find that the earliest form of social organization was the family. Upon it was based the state, at first essentially patriarchal and tribal with the head of the original family ruling as absolute king. However, since this form of government had little capacity to restrain sin, man declined rapidly. Even the realm of Special Grace was affected by the decadence. Therefore God destroyed civilization with a flood, only one family being saved, the sole remnant of the realm of Special Grace.[44]

With the recommencement of civilization the laws of God were repeated for emphasis. Men were to fill the earth, and murder was to be punished by death. But since men again refused to acknowledge God’s sovereignty and obey His laws, He forcibly scattered them abroad over the earth. Coupled with this, God applied an even greater restraint upon man in the form of a more highly developed jurisprudence. By the time of Hammurabi, probably a contemporary of Abraham, the rather complex civilization which had developed possessed a very considerable body of laws.[45]

Parallel with the development of the realm of Common Grace, went the growth of that of Special Grace. This took place in the calling out of the people of Israel. To them was given the Revealed Law of God. For the next 2000 years the two realms of Common and Special Grace came into touch with each other at various points. The Jews seem to have encountered the ancient civilizations as the latter successively reached their peaks. Yet while Special Grace had little effect upon Common Grace, to those Jews not vitally connected with Special Grace the result was usually disastrous. They did not belong to the chosen people in an organic, but only in a formal, manner. Therefore, they frequently turned from the Revealed Law to that of Common Grace. They placed themselves under man-centered laws which, unless held in check by Special Revelation, eventually came to rest in scepticism, irrationality and atomistic legal philosophies.

That this was the ultimate end of legal theories arising solely from Common Grace is not surprising. Common Grace does not restrain sin absolutely, nor does it reach the core and cause of sin. Thus by 300 A. D. there had been a succession of civilizations all of which, uninfluenced by Special Grace, had developed purely rationalistic systems of law. Like the philosophical systems upon which they were based, they all eventually became sceptical, atomistic and anarchical. There was no sanction back of law, except that of human desire. Therefore, they all ended in placing ultimate authority in the hands of a dictator.[46]

The best example of this decadence is furnished by the Roman Law. At first it had been based upon an idea of some supreme moral law. With the growth of Stoicism, however, and the rise of scepticism, it turned more and more to the idea of the individual will as being final. The only possible means, therefore, of restraining anarchy was the establishment of a totalitarian dictator. The state assumed the right to interfere in every sphere of human activity. Even matters of conscience were under the emperor’s control as shown by the history of the church subsequent to 313 A. D.[47] Thus, down to the time of Justinian and the temporary disappearance of the Roman Law, there had been a tendency for jurisprudence based on Common Grace alone to come to the conclusion that there was no ultimate law. Legislation was merely the expression of human will — that of the emperor. In this way alone, it was felt, could the despair of scepticism be overcome.

Meanwhile the realm of Special Grace was beginning to develope. In 313 Christianity was given perfect freedom and by 325 it was practically the state religion. At the same time, the totally non-Christian character of Justinian’s code shows that Christianity did not have very much power, before 450 A. D. The church did not rise to a position of dominance until the dissolution of the Western Empire. But by that time it had come under the influence of pagan thought, particularly Neoplatonism and Augustine’s reflection of it in his De Civitate Dei. As a result of this, the Roman church attempted to take the place of the omnicompetent state. This is seen in the papal crowning of Charlemagne, the forgeries of the Donation of Constantine and the Pseudo-Isidorian Decretals, the schism between the Eastern and Western Churches, the Investiture Controversy, the Crusades and the codification of the Canon Law. The last named was especially important when we remember that it took place just about the time of the rediscovery of the Roman Law. Since the latter, however, placed the state over the church, the pope forbade the study of it in order that the Jus Canonicum (Canon Law), which exalted church over state, might gain the predominance. This attitude soon received further support from Aquinas, who, in attempting to reconcile Christianity and Aristotle, made the state the servant of the church.[48]

Opposition to these views, however, developed among the Nominalists. Marsilio of Padua and William of Occam insisted that divine truth and human truth were mutually independent and equally valid. Man and God, the state and the church, were equal and entirely separate. In the Renaissance which followed shortly afterwards, man declared his independence of God. Man was self-sufficient. This attitude received further impetus from the revival of classical studies which rediscovered Greek and Roman humanism. Roman law became the great fountain-head of jurisprudence, and wherever it went, despotism raised its head. Law was no more the will of God given through His vicar on earth, the pope. It was, as Machiavelli claimed, the arbitrary will of the ruler who possessed absolute power.[49]

Restraint, however, was laid on this development by the strengthening of the realm of Special Grace in the Reformation. The key-note of this movement was an emphasis on the final authority of the Revealed Law of God as opposed to ecclesiastical tradition and on the responsibility of the individual, whether lord or subject, to obey the commands of God. It was because of this concept of law that Luther stressed the need for justification by faith. But he stopped short in his work by allowing the civil government to exercise very considerable control over the church, returning somewhat to the Roman concept of the state. The final work, however, was done by a lawyer, John Calvin, who insisted on the absolute sovereignty of God over all men, and on the separation of church and state as two independent spheres. Although he did not always govern his practices by his principles, by his emphasis on human responsibility and on separation of church and state he laid the ground for the rise of democratic government.[50]

The influence of the Reformation on legal thinking during the sixteenth and seventeenth centuries can be seen in the rise of constitutional government in countries holding Calvinistic doctrines: Switzerland, Holland, Scotland and England. In Roman Catholic and Lutheran lands there was no such development. Even when, due to preoccupation with theological controversies and the growth of ascetic Puritanism, the momentum of the Reformation began to wane in the latter part of the seventeenth century, the idea of God’s law as supreme continued to dominate legal and political thought.

The seventeenth century, however, saw also the beginning of a change. Man instead of God began to assume the rôle of final law-giver. This view came to fruition in the eighteenth century with the ideas of the rationality and perfectibility of man. Law depends upon man and his environment, and on nothing else.[51] To this the church, instead of offering opposition, gave assent by producing German pietism and Wesleyan Methodism, both of which were built on a rejection of the doctrine of the Sovereignty of God. Therefore, it is not surprising that the ideology of both the American and French revolutions was humanistic, rationalistic and anti-Christian. Law and human rights found their source, not in a sovereign God, but in man, the rational and perfectible.

The consequences of this development have only gradually become apparent. Throughout the nineteenth and our own century the emphasis has been laid increasingly upon man as the source of law. Kant, Hegel, Kelsen, Krabbe, Duguit, Jhering, Stammler and others have all insisted that law comes entirely from man. Therefore there is nothing absolute about it. As stated by Fichte, “every man is by nature free, and no one but he has the right to impose a law upon him”. From such a position as this, there is no great distance to anarchy, and thence to dictatorship. It is the very heart and soul of Nazism. From the days of Luther the state in Germany has been the ultimate power, so that now, when anarchy threatens through men’s disregard of law, a dictator is set up. By his absolute will he is expected to restrain the demons of anarchy let loose through the denial of God’s sovereignty.[52]

History would seem to teach that this result is inevitable in any state which refuses to acknowledge a law above all states and governors. Democracy’s only hope, therefore, is a return to a constitutionalism based not merely on historic tradition but upon a belief in the sovereignty of God. Unless this is done it will be but a matter of time before all nations are reduced to totalitarian bondage.

To-day we are fighting against forces which are attempting to bring us into slavery to an omnicompetent dictator. We are doing all that we can to maintain our liberties. Yet the history of law and jurisprudence shows quite clearly that, once our hold upon the sovereignty of God is weakened, there is a real danger that dictatorship will arise from within even a democratic country. If we, therefore, are going to do our utmost for democracy, in its true sense, we must strive to revive the Christian theistic view of law in the democratic countries. Such an attempt was made by Dr. Abraham Kuyper in the Netherlands in the last century, and it may be that it is time for a similar attempt in the English-speaking world. Humanism and rationalism will lead us inevitably to dictatorship, but Christian theism leads to democracy since the Christian theist realizes his responsibility to God. He desires to live according to the principle, soli Deo gloria. This is the true source of democracy.

Notes

1. B. H. Cardozo: The Growth of the Law, New Haven, 1927, p. 24.
2. W. Windelband: A History of Philosophy, New York, 1895, p. 611.
3. Charles Hodge: Systematic Theology, New York, 1893, vol. I, chaps. V, VI; Westminster Confession, chap. II; Abraham Kuyper: Calvinism, Grand Rapids, 1931, p. 131.
4. The Christian theist rejects evolution as leading ultimately to irrationality and destroying all law, cf. H. Dooijeweerd: De Christelijke Staatsidee, Rotterdam, 1936, pp. 13-15. This “sphere philosophy” was originated by Abraham Kuyper, and has been fully developed by H. Dooijeweerd in his De Wijsbegeerte der Wetsidee (3 vols.) and summarized in J. W. Spier: Inleiding in de Wijsbegeerte der Wetsidee, Enschede, 1938.
5. Dooijeweerd: De Christelijke Staatsidee, pp. 37ff.; Calvin: Institutes of the Christian Religion, bk. I, chap. III; G. Vos: Old and New Testament Biblical Theology, Philadelphia, 1934, chap. III; Hodge; op. cit., vol. II, pp. 1-116.
6. Genesis 1–3; A. Kuyper: Antirevolutionaire Staatkunde, Kampen, 1916, vol. I, pp. 38-46; A. v. C. P. Huizinga: The Calvinist View of the State, Breda, pp. 5, 7.
7. Gen. 1:28–31; Vos: op. cit., chap. III; Dooijeweerd: op. cit., pp. 37ff.
8. Kuyper: op. cit., vol. I, p. 5; Gen. 2.
9. Vos: op. cit., pp. 19-21; Westminster Confession, chap. VII; M. E. Chenevire: La Pensée Politique de Calvin, Genve et Paris, c. 1937, pp. 91ff.
10. Romans 5:12–21; Westminster Confession, chap. VI; Calvin: op. cit., bk. I, chap. IV.
11. Ephesians 2:5–7.
12. Hodge: op. cit., vol. II, pp. 354ff.; Westminster Confession, chap. VII; John 17:6, 9, 11, 12, 20, 24.
13. Vos: op. cit., chap. IV; Hodge: op. cit., vol. II, pp. 544ff.; Dooijeweerd: op. cit., pp. 13f., 26ff.
14. Galatians 4:21–29; II Corinthians 5; John 1:12; Hodge: op. cit., vol. III, pp. 3ff.; Chenevire: op. cit., pp. 78ff., Dooijeweerd: op. cit., p. 19; Kuyper: op. cit., vol. I, pp. 47ff.; Calvin: op. cit., bk. IV, chap. XX, §§ xiv f.
15. C. Van Til: “Common Grace” in Proceedings of the Calvinistic Philosophy Club, 1941, Midland Park, N. J., 1941; P. G. Berkhout: “General Revelation and The Holy Spirit” in Calvin Forum, Grand Rapids, 1942, vol. VIII, p. 41.
16. V. H. Rutgers: “Le Calvinisme et l’État Chrétien” in Études sur Calvin et le Calvinisme, Paris, 1935, p. 152; Dooijeweerd: op. cit., pp. 39f.; Kuyper: op. cit., vol. I, pp. 12f., 22, 216.
17. By the use of the term “public law” no attempt is being made to distinguish between public and private law as the terms are understood in jurisprudence, but rather the purpose is to designate the laws of the state for the regulation of sphere as over against sphere, as distinct from the laws within those spheres. Cf. Dooijeweerd: op. cit., pp. 52f.; Kuyper: op. cit., vol. I, pp. 96-99, 128, 259f.
18. The Christian view here differs from that of some modern legal philosophers who maintain that while law is logically necessary it is not physically so in order that the world may be preserved from chaos. Cf. R. Stammler: The Theory of Justice, New York, 1925, pp. xxxii, 21ff. with V. H. Rutgers: “The Reformed Faith and its Ethical Consequences in the State” in Proceedings of the Fourth Calvinistic Congress, Edinburgh, 1938, p. 120; Rutgers: “Le Calvinisme et l’État chrétien” in Études sur Calvin et le Calvinisme, p. 155; Kuyper: Calvinism, p. 130; Chenevire: op. cit., pp. 141-143; Dooijeweerd: op. cit., pp. 47f.
19. Calvin: op. cit., bk. IV, chap. XX, §§ i f.; Kuyper: op. cit., pp. 146-151; Dooijeweerd: op. cit., pp. 17-21, 49–51. In this position the Christian theists definitely reject the Aristotelian-Nazi theory of state supremacy.
20. Calvin: op. cit., bk. IV, chap. XX, § ix; Dooijeweerd: op. cit., pp. 53-56; Hans Baron: Calvins Staatsanschauung und das konfessionelle Zeitalter, München, 1924, p. 12.
21. Dooijeweerd: op. cit., pp. 18f.; Kuyper: Antirevolutionaire Staatkunde, vol. I, pp. 128f.
22. Rom. 13:1–6; Calvin: op. cit., bk. IV, chap. XX, § iv; Chenevire: op. cit., pp. 150ff.; Huizinga: op. cit., p. 8; D. A. Anema: “The Sovereignty of God and Political Relations” in Second International Conference of Calvinists, s’-Gravenhage, 1935, p. 62; Rutgers: “The Reformed Faith and its Ethical Consequences in the State” in Proceedings of the Fourth Calvinistic Congress, p. 124.
23. Calvin: op. cit., bk. IV, chap. XX, § viii; Chenevire: op. cit., pp. 191-193; Troeltsch: The Social Teaching of the Christian Churches, New York, 1931, vol. II, pp. 613ff.; Kuyper: Calvinism, pp. 132f., Antirevolutionaire Staatkunde, vol. I, pp. 259f.
24. Calvin: op. cit., bk. IV, chap. XX, § xi f., xxiv-xxxii; Chenevire: op. cit., pp. 162-165, 276; E. Doumergue: Le Caractre de Calvin. 2e ed. Neuilly, 1931, pp. 146, 154f.; Rutgers: “Le Calvinisme et l’État chrétien”, pp. 162-164; Kuyper: Calvinism, pp. 160f.; Anema: op. cit., p. 58; Dooijeweerd: op. cit., pp. 48ff. This view is very different from that of Duguit or Stammler who in putting law above the state make it the product of society, not the command of God. Cf. Duguit quoted in Cardozo: The Growth of the Law, p. 48; Stammler: The Theory of Justice, pp. 40ff.
25. Kuyper: Antirevolutionaire Staatkunde, vol. I, pp. 37f.; Rutgers: “The Reformed Faith and its Ethical Consequences in the State”, p. 119.
26. Kuyper: Calvinism, pp. 162-168, Antirevolutionaire Staatkunde, vol. I, pp. 15ff.; Rutgers: op. cit., p. 123.
27. B. N. Cardozo: The Nature of the Judicial Process, New Haven, 1928, p. 112.
28. Kuyper: Antirevolutionaire Staatkunde, vol. I, pp. 6f., 81–84.
29. The apodictical statement of Berolzheimer, that “the resemblance of this code (Hammurabi’s) to the Mosaic legislation is so striking as to deprive the laws of Moses of their originality and claim to an inspired origin”, is by no means proven simply by the resemblance. Berolzheimer himself admits that the spirit of the Hebrew laws is altogether different from that of the Babylonians as shown by the former’s stress on monotheism. We have no evidence that Moses copied Hammurabi, even though the latter lived five hundred years earlier. Resemblance would seem to be better explained by the fact that in the same types of society, with a continuing tradition and sense of justice, the same result would be obtained, except that in the divinely promulgated laws at Sinai God would be given His true position in the center of man’s life. Cf. F. Berolzheimer: The World’s Legal Philosophies, Boston, 1912, pp. 35, 41.
30. Chenevire: op. cit., pp. 62f., cf. pp. 61-74; Kuyper: op. cit., vol. I, pp. 26, 56-58. While the Christian theist, in holding this position, agrees formally with Stammler in his idea of natural law with a variable content, yet the difference is very pronounced, for Stammler bases the law upon reason and experience, which are linked up with the “social ideal”. The Christian theist, on the other hand, declares that his idea of justice rests upon the remains of the original law given to man. Cf. Stammler: op. cit., pp. 76ff., 152ff.; Berolzheimer: op. cit., pp. 410ff.; A. Brecht: “The Myth of Is and Ought” in Harvard Law Review, vol. LIV, pp. 829ff.
31. Cardozo: op. cit., pp. 125-129.
32. Cardozo: The Growth of the Law, p. 90; Kuyper: op. cit., vol. I, p. 32.
33. Kuyper: op. cit., vol. I, p. 78.
34. Rutgers: op. cit., p. 123; Kuyper: op. cit., vol. I, pp. 17-22, 26, 35–37, 74–76. In definition of “social welfare” we cannot do better than quote Cardozo: “It may mean what is commonly spoken of as public policy, the good of the collective body. In such cases, its demands are often those of mere expediency and prudence. It may mean, on the other hand, the social gain that is wrought by adherence to standards of right conduct which find expression in the mores of the community. In such cases, its demands are those of religion or of ethics or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind” (The Nature of the Judicial Process, p. 71). Cf. R. Pound: An Introduction to the Philosophy of Law, New Haven, 1925, pp. 67f. This social welfare remains within the sphere of the state, and does not intrude into others beyond its authority. Dooijeweerd: op. cit., pp. 49f.
35. Calvin: op. cit., bk. IV, chap. XX, § viii; Kuyper: op. cit., vol. I, pp. 76-78, Calvinism, pp. 132f., 152–154; Doumergue: op. cit., pp. 150-152.
36. Chenevire: op. cit., pp. 172f. This is a view which has never been touched on to any extent by Christian philosophers. It is a fact with which one must deal, and it is easy to fit it into the Christian theistic view. Yet, at the same time, we must always remember that all knowledge of justice has its source in the triune God. Cf. Pound: op. cit., chap. III.
37. Cardozo: The Nature of the Judicial Process, p. 141. The members of the sociological school such as Pound, Cardozo et al. hold this position. Kuyper does also, but at the same time makes God’s law supreme. Kuyper: Antirevolutionaire Staatkunde, vol. I, pp. 70ff.
38. Calvin: op. cit., bk. IV, chap. XX, § iv: Chenevire: op. cit., pp. 78-90; Rutgers: “Le Calvinisme et l’État chrétien”, pp. 162-164; Troeltsch: op. cit., vol. II, pp. 594-599. Perfection must always be the Christian’s aim.
39. See the aims of Abraham Kuyper’s Antirevolulionaire Partij in his “Ons Program” and Antirevolutionaire Staatkunde.
40. R. T. Stevenson: John Calvin, the Statesman, Cincinnati and New York, 1907, pp. 126f., 132, 142–144; Kuyper: Antirevolutionaire Staatkunde, vol. I, pp. 79-81; Chenevire: op. cit., pp. 100f.; Troeltsch: op. cit., vol. II, p. 602.
41. Dooijeweerd: op. cit., pp. 48ff.
42. Cf. H. Rauschning: The Revolution of Nihilism, New York, 1940.
43. Chenevire: op. cit., pp. 191-193.
44. Gen. 6ff.; Kuyper: op. cit., vol. I, pp. 67-69, 128f.
45. Cf. A. Kocourek and J. H. Wigmore: Sources of Ancient and Primitive Law, Boston, 1915, pp. 387ff., 446ff.; Vos.: op. cit., chaps. V, VI; Kuyper: op. cit., vol. I, pp. 47ff.
46. Berolzheimer: op. cit., pp. 74ff.
47. F. Lot: The End of the Ancient World, London, 1931, pp. 171-237; Dooijeweerd: op. cit., pp. 53f.
48. Berolzheimer: op. cit., pp. 93ff.; Dooijeweerd: op. cit., pp. 16ff.
49. Berolzheimer: op. cit., pp. 108ff.; Windelband: op. cit., pp. 337ff.; Dooijeweerd: op. cit., p. 22.
50. Dooijeweerd: op. cit., pp. 25ff.; Calvin: op. cit., bk. IV, chap. XX.
51. C. H. McIlwain: Constitutionalism, Ithaca, 1940, chaps. V, VI; cf., also, Hobbes: Leviathan; Locke: Essay on Civil Government; Montesquieu: L’Esprit des Lois, et al.
52. Berolzheimer: op. cit., chaps. V, VI.