The Modern State: The Sociology of Justification by Law

By Rousas John Rushdoony

Santa Cruz, California

Culture and society, as Henry Van Til has pointed out in The Calvinistic Concept of Culture, are religion externalized and made explicit. The concept of justification by faith leads inevitably to a radical reconstruction of society in terms of that faith, which has broad implications for all of life.[1]

Common to all cultures of antiquity is the priestly character of the state, ruler, or central office of the particular society, so that the works of mediation, remission of sins, intercession and other priestly duties have been central aspects of the life of the body politic. Such a state of things has not been the product of usurpation by the state or merely of confusion, but a healthy recognition of the fundamental nature of law and order. In any healthy society, the courts and all other administrators of law serve to preserve social order and well being, and any serious breakdown of the integrity, validity and enforcement of law leads to the progressive collapse of society. Social sin must be atoned for, and the arms of the law function to effect restitution, punishment, and, by removal, the purgation and purification of society. The law in itself is therefore inevitably a manifestation of religion and in essence, even in the “secular” state, religious. The black and clerical robes of modern jurists are an evidence and continuing witness to its medieval claim to priestly status, a claim from which the church was unable to separate the schools of law. Thus, a functioning society requires a functioning law, effective purgation of the sinner, intercession for the oppressed, and justification for the wrongly oppressed. It is no accident of theology that the language of salvation is juridical language, and salvation a legal transaction, forgiveness itself, indeed, a legal term declaring that the charges are dropped, satisfaction having been rendered (or, charges deferred for the time being).

The language of salvation, of soteriology, is juridical language because the nature of sin is an offense against the law and covenant of Gog. Not only is law again involved, but this time fundamental law, law which must he basic to state law. The state, together with all creation, is set in the context of this higher law, however the law be construed. Again, the life of the state is inseparable from this basic environment of higher and absolute law. If social health requires the proper administration of law by the state, then how much more basic is the proper regard for the higher law? If disregard of state law leads to anarchy and chaos, how much more so the disregard of higher law? It is accordingly of fundamental concern to the state and to its continued life. To avoid punishment, with its radical consequences for the state, purgation and priestly intercession are basic to the higher offices of state. Health must be maintained both in terms of internal law and in terms of cosmic law, and hence the state has seen itself as a priestly order, called to be the great intermediary between man and the divine, the means and vehicle to the good life and the true society. The consistently relativistic society has never existed. In some societies, the higher law has been seen in supernatural or in theistic and deistic terms, as in the early and formative history of the United States.[2] Higher law still prevails where supernaturalism is eroded. Dewey’s higher law was democracy, as it is for most Americans today. Phillips Payson’s election sermon at Boston, May 27, 1778, gave evidence of the early rise of an immanent higher law which was to crowd out God: “The voice of reason and the voice of God both teach us that the great object or end of government is the public good”.[3] Reason early became an independent power, and then a judge over God, and itself the higher law.[4] Social health requires in all instances conformity to the higher law, democracy, reason, or God, lest society collapse into anarchy, and this conformity is a priestly function.

The Hebrew commonwealth of the Old Testament stood alone in divorcing priesthood and kingship, but the dominance of the kings over priests was not infrequent, the claim to priesthood by Uzziah only miraculously forestalled, and the syncretistic and apostate rulers openly priestly. The prophetic office was able to protect the integrity of the priest and sanctuary by its radically independent character, and to prevent the natural coalescence of the two offices. By virtue of Christ’s atonement, his assumption of an eternal and all-sufficient high priesthood, the human office of priest was forever abolished, as the book of Hebrews declared, and priesthood and kingship joined in Christ, after the order of Melchizedek. Not only were the implications of Hebrews radical religiously, but politically as well, as Rome quickly discovered in dealing with the church, which refused to recognize the priestly kingship of the emperors, while praying for them as kings and governors.[5] Apart from the atonement, the state remained priestly; under the atonement, the state became ministerial, or more accurately, a diaconate (Rom 13:1–7, the word in v. 4 being διάκονος). In terms of the kingdom of God, the offices of priest and king are united in the person of Christ. Since the basic unity of the kingdom is supernatural and messianic, the purpose of biblical history was thus to point to the ultimate and transcendental unity, while preventing an immanent and man-centered unity. Such an earthly unity of the two offices would transform the realm into the kingdom of Man and make it a messianic order.

How has the modern state become priestly? To understand this, it will be necessary to examine both the nature and function of law in the state.

Although the reformers, by virtue of their war against the Church of Rome, distrusted the church while too often lacking a similar distrust of the state, they nevertheless undercut the state by their sociology of justification by faith and their ministerial conception of all authority. Only as the Enlightenment advanced, and the Reformation, with some ebb and flow, receded, did the state once again become priestly and itself the order of salvation. Since the modern state is clearly messianic, and is in its own opinion the vehicle of the good life and the true kingdom, it is clearly priestly. It is, whether democratic or Marxist, the great high priest of the order of salvation, and this is as true of the local politician as of the United Nations. The law is thus the means of salvation, the means to the creation of the good and true society. This legalistic principle, against which Romans and all Scripture, is directed, is as invalid politically as religiously. In modern thought, the contrast and parallelism, with reference to salvation, between legalistic thinking and biblical thinking is especially striking.

	Man, his fourfold estate	Law, its fourfold function
1.	The state of original righteousness.	The law as the means of serving God and acknowledging his sovereignty.
2.	The state of sin, total depravity.	The law as an indictment, as a schoolmaster to reveal to man his radical impotence, and as a “terror”, a means of restraining the total outbreak of sin.
3.	The state of grace or regeneration.	The law as man’s new nature, written on his heart, a guide to his conduct, and a restraint upon the motions of sin.
4.	The state of glory.	Law as totally man’s new nature in total sanctification. Man’s true and full freedom in and under law.

When we turn to the two forms of natural law common to modern statism, we find a different significance for law. Radically simplified, the two can be distinguished by their treatment of the state of nature. In the one, the state of nature is one of primitive innocence, as of Dryden’s Indians,

Guiltless men, that danced away their time,
Fresh as their groves and happy as their clime.

Nature is normative, and the state of nature is that of innocence.[6] In the other view, the state of nature is that out of which man must evolve. The pattern of the first can be briefly summarized as follows:

1.	The state of nature, primitive innocence.	Law as man’s unconscious state. Man being guiltless, is in full conformity to nature.
2.	The fall of man into “unnatural” society and civilization.	“Unnatural” society is violent disregard for the laws of being, and of nature. Salvation is by a return to nature. This return is by law: the general will is the unconscious will at times but always true law for man.
3.	The state of nature restored.	The general will, natural law, rules through either democracy or dictatorship and saves men and society. If need be, men, Rousseau said, are “forced to be free”.[7]

Law in this conception is clearly redemptive, and the state priestly as the mediator of this salvation. Modern democracies and Marxist states are thus avowedly given to a program of salvation by legislation.

In the second pattern of natural law, another interpretation emerges. The first offers us “scientific socialism”, but the second is no less “scientific”:

1.	The state of nature is primeval chaos or being.	Law is progress, development, entelechy, natural selection, or evolution.
2.	Nature develops upward.	Law develops also, and man’s salvation depends on the laws of nature. The discovery of natural law becomes not only a scientific but statist concern as instrumental to power and salvation.
3.	Nature began as a primitive unity, and culminates in a complex unity.	Law works to the unity of all men in terms of that basic continuity of being which is the ground of life.

A third, and somewhat earlier, version of the law of nature appeared in markedly Christian terminology at times, in ostensibly close connection with the doctrine of total depravity, and presented a syncretistic sociology. Stated simply, its basic premises were as follows:

1.	Man is a self-centered being.	The true law is self interest.
2.	Man seeks self-interest because of self-love.	Self-interest is that natural law which leads to man’s real happiness and therefore social salvation.
3.	Men fulfil their being and nature by self-interest.	The free society and true society is created by this natural law of self-interest.

This concept was early formulated. It appeared in Blackstones jurisprudence, for example, as a guiding principle: “He (the Creator) has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter than to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action”.[8] The fundamental error of this position was twofold: First, sin and self-interest cannot be equated, as was so often done, for self-interest is not necessarily sin. Second, man the sinner is rarely capable of genuine self-interest but is rather destructive, perverse and perverted, as well as suicidal in his course, as Romans 1 makes clear. The “entelechy” of sin is to “burn” (Rom 1:27) or more accurately, to burn out itself rather than to be intelligently capable of self-interest. In any case, in this philosophy as well, law was redemptive, although the state, so strongly governed by a mixture of Christian and non-Christian principles, did not become as openly soteriological and priestly. During the early years of the United States, this philosophy and Christian faith were both influential among other forces. There were more than a few ready to assert redemptive ideas during the American Revolution, and there were many who held that the spirit actuating the colonies “was as much from God as the descent of the Holy Ghost on the day of Pentecost, and was introductory to something great and good to mankind”.[9] But the strong elements of the sociology of justification by faith were clearly present in the founding of many of the American colonies, which were theocratic in nature and experiments in Christian church, society and state, although the rebellion against this concept and its development was constant and marked. The tension between the two principles is basic to the history of the colonies and the United States. In Massachusetts, magistrates and ministers began on the premise that the Scriptures were the common law of the land, and, when pressed to a formulation of the Body of Liberties in 1641, drawn up by the Rev. Nathaniel Ward of Ipswich, stated those statutes in biblical terms as far as possible. The natural law which John Winthrop recognized in his “Little Speech on Liberty” in 1645, meant that “our nature is now corrupt”. This “natural liberty” “is common to man with beasts and other creatures. By this, man as he stands in relation to man simply, hath liberty to do what he lists: it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority, and cannot endure the least restraint of the most just authority….This is that great enemy of truth and peace, that wild beast, which all the ordinances of God are bent against, to restrain and subdue it.” Law therefore does not convert evil or redeem it, but is only a means of restraint. For Winthrop, civil, federal or moral liberty has its foundation under law and “in reference to the covenant between God and man”. “This liberty is maintained and exercised in a way of subjection to authority; it is the same kind of liberty wherewith Christ hath made us free.”[10]

In this faith, Christ is the instrument of salvation and therefore both the principle of liberty and the great high priest. Law becomes, then, not a work of salvation, but a restraint upon evil, a guide to the godly, and the condition of true liberty.

But, in the absence of this faith, or in rebellion against it, the modern state has returned to the religion of natural man and of Judaism, to salvation by law. The modern state is thus inevitably a priestly state and a soteriological state, dedicated to the radically anti-Christian religion of works-salvation, salvation by law. The proliferation of legislation is impelled by this messianic urge, and every political campaign presents its program as a kind of true second advent. Only the right combination of laws are needed to create the good, true and saving society!

But law, on any other foundation than God’s terms and his law, becomes anti-law, destructive of law, order and society. This is exactly what such legislation has become, as witness the National Labor Relations Board and its administrative law. An excellent study of the breakdown of law, the rise of favoritism and violence, and the substitution of “kangaroo courts” for courts of law is Sylvester Petro’s The Kohler Strike, Union Violence and Administrative Law.[11] The State becomes, for capital, labor, agriculture, education, for every man and institution, the saving power by means of law and the unlimited source of all bounty and blessing. The state has become the priestly mediator of the good life, at whose hands all citizens, schools, institutions and causes must seek salvation and preservation, the great high priest after the ancient order of Babel. The lines of division are, doctrinally, as sharply drawn as in the days of Rome and of emperor-worship, which involved essentially the recognition of the soteriological and priestly role of the state as the divine-human messianic order. The lines of division, humanly and ecclesiastically, are, unfortunately, scarcely drawn as yet. But men cannot seek justification socially by law and works of law, and long retain a conception of individual salvation through justification by faith. The presence of the former is due to the erosion of the latter. Men who have Christ as their all-sufficient priest cannot create or tolerate a priestly and soteriological state.

Notes

1. See R. J. Rushdoony, “Calvin in Geneva: The Sociology of Justification by Faith”, in The Westminster Theological Journal, XV, 1 (November 1952), pp. 11–39. The present study is a further development of the same subject which is to be developed still further in the future.
2. See Edward S. Corwin: The “Higher Law” Background of American Constitutional Law (Ithaca, New York: Cornell University Press, 1955), a study of major importance. See also V. M. Hall and J. A. Montgomery: Christian History of the Constitution of the United States of America, Vol. I (San Francisco: American Constitution Press, 1960), a valuable collection of primary and secondary sources, the first of three volumes dedicated to a restudy and revival of Christian principles of state and society.
3. Hall and Montgomery, op. cit., p. 376.
4. For Locke, “The law that was to govern Adam was the same that was to govern all his posterity, the law of reason” (Second Treatise of Civil Government, §57). The text of Locke is included in Hall and Montgomery. pp. 57–225.
5. See Ethelbert Stauffer: Christ and the Caesars (Philadelphia: The Westminster Press, 1955).
6. See Hoxie Neale Fairchild: The Noble Savage, A Study in Romantic Naturalism (New York: Columbia University Press, 1928). See also Arthur O. Lovejoy: Essays in the History of Ideas (New York: Braziller, 1955).
7. See Contrat Social, ch. 7. Cited in Felix Morley: Freedom and Federalism (Chicago, Regnery, 1959), p. 28.
8. Blackstone’s Commentaries, cited in Hall and Montgomery, p. 142. Blackstone’s ambivalence of view was apparent in his insistence that upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these” (ibid., p. 143).
9. Hall and Montgomery, p. 352. For the various religious concepts of the founding fathers, see Norman Cousins: “In God We Trust”, The Religious Beliefs and Ideas of the American Founding Fathers (New York: Harpers, 1958).
10. Hall and Montgomery, p. 262.
11. Chicago: Regnery, 1961. Dr. Petro, now Professor of Law at New York University, was formerly a union leader for the steel workers.