The law is somewhat unique in that the core of the discipline — the formation, administration, and enforcement of the rules of society — involves not just the study of human nature, but the coercive management of it. In the end, the law compels action, and, regardless of motivation or worldview, action implies anthropology; that is, when we do things, our expectation that those actions will have an effect reflects certain assumptions about how the world works, and this understanding involves some philosophy of human nature. While the understandings and philosophies vary, my goal in this piece is to highlight a few of the common assumptions that characterize the way that human nature is envisioned by the law; specifically, I argue that the law sees humans as rational agents who have inherent worth and an obligation, although not always an ability, to behave reasonably.
People are Rational
When I say that people are rational, what I mean is not that people are logical, but that people respond in a predictable way to incentives. That is, the law assumes that people have some awareness of their options and that they will intentionally choose the option which they believe best. 1 We know this is an assumption made by the law through both the incentives it provides and the liability it imposes. Among the carrots and sticks used to incentivize certain decisions: gifts to charity are promoted by a related tax deduction2, attending college is promoted for low-income students via special grants3, and unsafe driving is deterred through fines and other penalties.4 At the same time, the law presumes awareness of these rules in the way it imposes liability, both by refusing to impose criminal sanctions where the exact criminal activity is not clearly spelled out5 and by refusing to recognize ignorance of a legal standard as a defense to its enforcement.6 Taken as a whole, the law assumes people are rational as a necessary precondition to the law’s attempt to control or influence people’s actions.
People have inherent Dignity
The law also assumes some sort of inherent dignity or value in humanity. To be clear, not all legal traditions assign equal value to human beings, and even in countries that do, there are often a variety of exceptions to that equality; however, my point is much more fundamental: there is no legal system which has failed to assign some value to humanity, even if this right is only fully expressed for a favored group. This can be seen in broad statements like the UN’s Universal Declaration of Human Rights or the Declaration of Independence, but it is even enshrined (if not always respected) in the Constitution of tyrannical states like the Soviet Union. If people were worthless, it wouldn’t be worth the trouble of working so hard to rule over them, and so the law views human nature as something with an inherent dignity.7
People should be Reasonable
The last assumption that I want to highlight has to do with the standard that the law seeks to impose on us, something which speaks to how the law believes that we should behave. The law often asserts this requirement explicitly: tort law8 has long required people to act with due regard and care for how their actions could affect others9; contract law often judges issues of formation and interpretation based on what the parties could have reasonably expected, and it inserts reasonableness as a gap filler when certain contract terms, like timing, are absent10; even criminal law, though it goes on to spell out what it means in more detail, often frames liability in terms of reasonable action11, and it judges things like self-defense and the acceptability of police action by a standard of reasonableness. This legal standard therefore assumes two things: first, that it’s possible to judge what is reasonable, and, second, that we don’t always live up to that standard.12
What this Means
So, other than keeping with the theme of the week, why bother with this analysis? When the theories undergirding these assumptions are so wildly diverse, why mention them at all? My reasons are twofold: first, it allows for critical analysis, and second, it can provide Christian comfort.
If the law assumes that people are rational, have inherent dignity, and should be reasonable, we can test those assumptions and press for further answers. While the law may assume rationality, it’s a fair question whether people are really all that rational. At the same time, if we so often behave irrationally, how is it that we are competent to judge something like reasonableness? If we have inherent value and (in the Western tradition) rights, how do we measure that value, and on what do we base this claim of rights?
These lines of inquiry lead to what I read as a source of affirmation and comfort as a Christian working in this discipline: Biblical principles such as man’s sinfulness, our worth as image-bearers, and even our implied awareness of what is right (and therefore guilt for sin), fit well with the assumptions about human nature that I’ve described here. If, as Romans 13 says, there is “no authority except from God, and those that exist have been instituted by God,” we can see the compatibility of these assumptions with divine revelation as evidence of the Maker’s hand operating behind the scenes. Of course, legal theorists have given many other explanations, and human laws are, at best, a weak reflection of divine will. But, for Christians who, like the believers in Nero’s Rome, must struggle with the Bible’s call to submit ourselves to the governing authorities, seeing God at work in the very fabric of that authority can be a source of great comfort.
For the philosophers following along at home, this is similar to rational action theory, although I don’t want to be so specific as to imply that individuals are actually reasonable. For some theorists, they are, others would argue that they only follow a certain personal logic. At the same time, there is a ranging dispute over whether the best option will be a hedonistic calculus, a moral judgement, or some mix therein, not to mention overlays of pragmatism or utilitarian philosophy. ↩
Put differently, I have power over the millions of protozoa floating in my water bottle, but I neither regularly think about them nor put a whole lot of thought or effort into how I exert my control over them. I certainly haven’t written up a Constitution regarding their rights. Therefore, the decision to expend so much effort to rule people must mean that they’re worth the effort, which means they have worth. ↩
It’s a little overbroad, but think personal injury suits and most other civil claims that involve some sort of physical injury which are not based on a contractual relationship. For a more formal definition, see the Wex Legal Dictionary definition. ↩
For instance, IOWA CODE § 321, mentioned above, says “Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper…” ↩
If we didn’t fail to live up to it, there would be no need to state a standard. ↩
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Isn’t this a circular argument of a sort? Western notions of law and rationality were constructed theologically from their origins in ancient Mesopotamia, Israel, Greece, and Rome. Then they were elaborated in Christian Europe. So naturally our contemporary notions of law and rationality will continue to reflect and owe a lot to this preceding metaphysical foundationalism. More than anything else the common root is Aristotelian thought.
I’m not sure why this might be comforting or what use that comfort might be to Christians. Applying a theological, metaphysical justification for political authority and law has been so abused historically. As you note, “human laws are, at best, a weak reflection of divine will.” Indeed, forms of natural law thinking have underwritten the theopolitical foundations for ethno-fascism in Europe, Apartheid in South Africa, and slavery in the United States.
Shouldn’t we be on guard not to relegate God to a needful concept — an origin and ground for our all too human authority? This tends to come out reflecting less of God and more of human depravity. What we wish to do with power and authority most often is to wield it over others to support hierarchies of privilege and inequality that benefit us specially.
Thanks for your comment, as always, Gerry.
You seem to be treating law in the same frame as the legal realists who have come to dominate legal thought. That is, law is a purely social construction that has no authority beyond that generated by force and one which is wielded to uphold the norms of those in power, with no real moral force beyond whatever we attach to the value of tradition in the human experience. Is that accurate?
I think the primary rejoinder to this and the source of comfort here is that, regardless of these constructivist glosses, Scripture explicitly does say that all authority on heaven and earth belongs to Christ, and the traditional implication of this is that it is delegated out from Him, something Paul is referring to specifically when he urges submission to the governing authorities. The difficulty with this submission is exactly in line with what you said about misuses of power and authority throughout history (Paul was addressing Christians under or soon to be under Nero, a far more unjust and oppressive power than what we face today). I’m setting aside then the discussion of what this submission is to exactly look like and instead looking at the legal system itself for signs of Providence at work.
The question of what the root of these assumptions is is both subjective and theoretical; however, as Christians, the question isn’t so much what people intended as what is true and whether it is in accord with God’s revealed Will. My purpose here was to, in as broadly acceptable of a way as possible (hence the generalities that may appear circular), point to ways in which assumptions and norms that animate the law may be in accord with the Truth as revealed in Scripture, not as a way of legitimating the rule of despots, but as a way of seeing our Father’s hand at the wheel, reminding us of His sovereignty and ultimate control, something which is surely a comfort for us.
I guess it boils down to a question of “Why look to the legal system itself for signs of Providence at work?” We can never be certain what God in his providence is doing in scripture or our own lives except for the fact that we will be unsure and therefore surprised again and again. What I am concerned about is the point where looking for God in the law turns law into scripture and a source of revelation.
Law, in my view, is a socially contested and negotiated tradition that is influenced by many forces, ideas, and perspectives, but divine revelation is not one of them. Our legal tradition is not divinely inspired or an extension of the biblical canon. People of faith can recognize certain common if not universal ideas in our laws that they also find in their scriptures, but religious texts cannot be the basis for positive secular law or else we would be theocrats and theonomists.
The sources of the law’s authority (beyond the arm of the state) that also ground morality itself is a complicated issue. The simple answer for Pagans, Muslims, Jews, and Christians — the dominant religious classifications of the west — is God. All acknowledge a divine ground for law and all things, but it is perilous to get cozy with the idea we know and can spot God’s will when and where we see it.
What is it that safeguards us from toppling into some type of theonomic divinization of the law as every one of these western religious traditions has done and continues to do on one extreme? The alternative is not simply the denial of the divine ground or absolute segregation of it from human society. Are we just restricted to the kinds of general speculations you offered about dignity and reason being good and in line with the will of a good God? If I say valuing human dignity is incompatible with the death penalty and all the problems associated with it (e.g. racially biased, wrongful verdicts, and botched executions) there will be people who agree and disagree whether they agree with the theological claim or not, whether they are legal realists or not. A murderer who some people see as insane and others do not has the same result. Whose justice, whose rationality shall prevail?
Thanks for the clarification, Gerry.
I get what you’re saying here, and I would clarify that my point isn’t to try to look to the law as a source of revelation or indeed to even look to it as the first/only sign of God’s Providence. The idea was more to say that it is possible to look at it this way and that it may be “a” sign of Providence. Within that, I’m speaking entirely from the perspective of a Christian addressing Christians and not more general civil discourse. That is, I’m not arguing that the law’s authority comes from a religious text, but that it comes from the Author of that text. The idea here is to see the truth announced in special revelation confirmed in some way in general revelation. The goal is not to ground our faith in government or to argue that there is anything more than a weak reflection of true justice in the current legal systems out there.
For me, Paul’s statement that the governing authorities have been entrusted with the sword for our good is a difficult thing to reconcile with experience. Sure, governments universally condemn things like murder and theft, but they also use their coercive power to do many things that one could argue are tantamount to murder and theft, and that was explicitly true of Rome. To see the Law/Will of God written on the hearts of man and expressed in the laws of man then is a comfort as a confirmation that the Lord is the root/source of this authority, and, in cases where this authority is misused, it could be further extended into comfort that ultimate justice will be done and that those who have misused this granted authority will be called to account for what they’ve done with it.
Does that clarify/seem helpful?
Well it doesn’t seem very comforting to me from a Christian perspective or any other. We have to see everything as a sign of Providence in some way, but what matters is what we pick to see it in and what we try to do with that interpretation.
This is partly why it concerns me that I don’t see much of a distinction being made between scripture and the law when you say both have God for their authority, and then you look for confirmation of biblical revelation in the law. By the same logic should we not also try to bring the law further into line with our grasp of biblical revelation? Wouldn’t that be even more comforting to know we have aligned ourselves and our society with the will of God? For some this means going so far as to adapt some aspects of Mosaic law for use today. What should stop Christians from going that far and saying (for example) we should have capital punishment for murderers because God favors it, or that we should still criminalize adultery and violations of biblical sexual morality?
Karl Barth made visits and kept in touch with some theologians at Potchefstroom during Apartheid, and he always asked if they were free to change everything in their work if the Holy Spirit convinced them they were wrong about the gospel tomorrow. It was a question about their openness to Providence being other than what they thought it was. I wonder if that is always the main question about signs of Providence — what if we’re reading them wrong?