The Roots of Law

J. Budziszewski

have been asked to speak with you about the roots of law. Some of us may consider such a discussion needless. Don't we already know the roots of law? If I were to poll the participants of this conference, asking "Where do we find the roots of law?", no doubt the overwhelming majority would reply, "in the Bible — in the law of God." And I agree that the roots of law are more perfectly presented in the Word of God than in any other book.

But I am here to tell you that knowing this is not enough. Not in the public square. Not in the Congress, not in the courts, not in the colleges and universities; not on that spot on the nightly news, and not in the driveway as you talk with your next-door neighbor.

A tale of two lawmakers

Let me tell you a story — a tale of two lawmakers. Just three years ago — it was June 15th, 1998, for those who like to know such things — Senate Majority Leader Trent Lott, a Southern Baptist, taped an interview on The Armstrong Williams Show in which he expressed his personal views about a wide range of social issues. When asked whether homosexual behavior is a sin, he replied, "It is," going on to compare it with other compulsions such as kleptomania, sexual addiction, and alcoholism, from which his own father had suffered. He emphasized that people with such problems should be treated with compassion.

The next day, at his own weekly news conference, Lott's counterpart in the House of Representatives, Dick Armey, backed up his Senate colleague by citing Scripture. "My faith," he said, "is based in the teachings of the Lord God Almighty, as found in the Holy Bible, and I do not quarrel with the Bible on this subject." He added that "The Bible is very clear on this," and commented "Both myself and Senator Lott believe very strongly in the Bible." Before the meeting Armey had looked up some scriptural verses on the subject of homosexuality, and written them on a piece of paper. As his trump card, he pulled the slip from his pocket, and showed it to the reporters. The verses on his slip included 1 Corinthians 6, verses 9, 11, 18, and 20.

There was a day in this country when that slip of paper would have been a trump card; there was a day when the authority of the Bible would have settled the issue. Not now. Media reaction to Lott and Armey ran according to a dog-eared script.

Seminaries were scoured for scholars willing to say that the Bible is out of date. The Old Testament was searched diligently for judicial and dietary precepts which Christians do not observe, such as stoning adulterers and not eating pork. People who do believe in the Bible were declared outside of the Christian mainstream. Its teaching about sexuality and marriage was called repressive. Lott was mocked for his denominational affiliation, and fervent attempts were made to suggest that the other denominations are more laid-back. A homosexual activist identifying himself as an ordained Baptist minister wrote an opinion piece asking "Will we be the party of limited government, free markets and individual rights, or will we become a group of Bible-debating Southern Baptists?" Suggestions were made that you can find anything in the Bible that you want to, and that "it does not enlighten us on the question whether homosexuality is a disease or . . . imposed by the Creator." White House press secretary Michael McCurry announced that science had shown homosexuality to be psychologically healthy, and he called the thinking of Lott and Armey "backward." You see of course what was happening. In the by-now well-practiced fashion, the decency of the American people was being invoked on the side of indecency.

The Bible is our beacon, our standard, our guide. Yet we can no longer carry public issues by invoking the authority of its teachings. So what do we do?

Historical perspective

I think it may be helpful to get a historical perspective on this Bible-citing dilemma. Two generations ago, both the church and the public square in this country were dominated by liberal Protestants. Today that WASP establishment is all but dead. Today American Christendom is dominated not by liberal Protestants but by conservative evangelicals and Roman Catholics — and in the meantime, the public square is dominated by unabashed pagans. In one way that's good. Liberal Protestantism did not take the word of God seriously, and therefore deserved to die. In another way, it's bad. We Christians are now outnumbered by people who do not share our presuppositions, and for the first time in American history, the word of God is unwelcome out of church.

This is a new situation for Christianity in our country. We have never known a civic rhetoric that was not based on the Bible. The Scriptures were the foundation of American public speech from the colonies onward, not only among believers, but even among nonbelievers. Historians still argue about whether President Abraham Lincoln was a Christian. Yet he talked like one. His Second Inaugural Address — perhaps the greatest American speech ever delivered — is little more than an application of the Nineteenth Psalm to the dreadful War Between the States. Moreover, when Lincoln said "the judgments of the Lord are true and righteous altogether," he could be sure that almost all of his fellow citizens would recognize the allusion and feel its force, irrespective of their particular religious affiliation.

It's no use wishing for the old days. The era of biblical civic rhetoric is gone. The new situation demands a new civic rhetoric, and a new use of Scripture. Rather than quoting the Bible, when we speak we must follow the Bible's example.

That point is so important that I would like to repeat it. Rather than quoting the Bible, when we speak we must follow the Bible's example.

Here is what I mean. The Bible doesn't teach that we should begin every public conversation with the Bible. In fact it teaches the opposite. Consider the example of the Apostle Paul. When he spoke with Jews and Christians, he did quote Scripture, because they knew and believed it already. But when he broached Christian topics with pagans, he didn't pull Bible verses from his pocket. Why appeal to things the pagans didn't know and didn't believe? Instead he appealed to things they did know and believed already. On one occasion he quoted their poetry: "Yet he is not far from each one of us, for 'In him we live and move and have our being.'" On another he talked about the weather, of rains and fruitful seasons, invoking their sense of gratitude to they knew not whom. That time that he quoted their poets, he also commented on their own secret sense that their idols could not save: he had seen their altar "to an unknown god." As you can see, Paul did not hold back the Bible's truth. But he found ways to express this biblical truth apart from the Bible itself. In this way he aroused an appetite for the word of God which could be satisfied later among those who were really serious.

Now there are a thousand topics we need to speak about with our nonbelieving neighbors — a thousand topics on which they disagree with us before we even get near the question, "Who is Jesus?" With some of them we will never be able to discuss who Jesus is, because they won't let us. Yet we have to discuss those other thousand topics, just because we share the same society with them. What's wrong with abortion? What's wrong with euthanasia? Why shouldn't we clone ourselves? What is so special about marriage, and why is it inherently heterosexual? What is so special about human life in the first place? Couldn't we harvest the organs from people before they die? Couldn't we find cures for diseases by experimenting on human embryos? Couldn't we cross human beings with pigs for research purposes?

All of these matters are regulated by laws, and so inevitably we must talk with our nonbelieving neighbors about the roots of law — about things like what law is for, where it comes from, what it should do, and what its limits are. How can we follow Paul's example when we talk with them about that subject? How can we convey the biblical vision of law apart from the Bible itself?

The roots of law in summary

There are three mooring hooks for discussion with nonbelieving neighbors about law. If we moor our conversations on these three hooks, we will usually be all right. The root of the enacted law is the moral law; the root of the moral law is the design of the created order; and the root of the created order is the Creator. Let me repeat that, because some people are taking notes: The root of the enacted law is the moral law; the root of the moral law is the design of the created order; and the root of the created order is the Creator.

These sound like biblical truths, and they are. Yet they can easily be explained without making a single reference to the Bible, or even using biblical words. Let us see how.

First mooring hook: The root of the enacted law is the moral law.

How often have you heard the slogan, "Law should not enforce morality"? It is an error, but like all errors it derives its plausibility from a grain of truth. The grain of truth in it is that not every sin should be punished by the government as a crime. And we should acknowledge that. But if the slogan "Law should not enforce morality" means that the enacted law should be morally neutral, it's not just wrong, it's crazy. All law has a moral basis. Even bad law has a moral basis — a basis in false morality.

Try to think of a law that is not based on a moral idea. You can't do it. Perhaps the law that requires highway taxes? That's based on the moral idea that people should be made to pay for the benefits that they receive. Try again. How about the law that requires graduated income taxes? That one is based on the moral idea that some people ought to be made to pay for the benefits that other people receive. And so on. The law that sets speed limits is based on the moral idea that we ought to have regard for the safety of our neighbors; the law punishing murder is based on the moral idea that innocent blood may not be shed; and the law permitting abortion is based on the moral idea that innocent blood may be shed if the victim is still in the womb.

Now if all laws are based on moral ideas, then obviously we ought to scrutinize them to make sure that they are based on true ones instead of false ones. The root of the enacted law is the moral law. Even the everyday pagan can understand this.

Second mooring hook: The root of the moral law is the design of the created order.

The fact that human beings are designed is part of the universal common sense of the human race. We are not a mish-mash, but fashioned according to a plan. Human nature means human design.

Now to make proper use of something that has been designed, we have to know how it works. That means knowing how each feature contributes to the fulfillment of its purposes. In the body, the heart is for pumping blood; each valve, nerve, chamber and vessel does its part to move the blood along. In an automobile, the motor is for getting the car to go; each cylinder, piston, shaft and wheel contributes in its own way to propulsion. No sensible surgeon tries to make the heart pump air instead of blood. No sensible mechanic bolts eggplants to the axles instead of wheels. The reason is simple: When you thwart a thing's design, it either works badly, stops working, or breaks. Something goes terribly wrong.

Design is obvious not only in our circulatory system but across the whole range of human capacities. The function of hands is to manipulate objects; the function of fear is to warn; the function of minds is to know and plan. Everything in us has a purpose; everything is for something. Consider just our sexual powers. Like everything else in us, they are part of the design. All human societies recognize that one of their inbuilt purposes is to bond the man and woman, and that another is to make new life. It is equally plain that these two purposes go hand-in-hand, for although the bonding of a man and a woman is wonderful in itself, it also motivates them to stay together and raise the new life they have made. All of the other features of the sexual design revolve around these purposes. Notice for example that men and women aren't merely different, but complementary: Their differences are coordinated in such a way that each contributes what the other lacks. In every dimension, physical, emotional, and intellectual, they fit like hand and glove; they "match."

However dimly, we see that the principles of morality aren't arbitrary; we need to live a certain way because we are made to live that way. The root of the moral law is the design of the created order.

Third mooring hook: The root of the created order is the Creator.

Design presupposes a Designer. If we are fashioned to live in a certain way, then, it is pretty hard to escape the conclusion that we were fashioned that way by Somebody. In fact this is the common sense of almost all people in all times and places. For a short hundred and fifty years, it was the boast of the Darwinists that we only seem to be designed; that man is the result of a meaningless and purposeless process that did not have him in mind. Today we have overwhelming evidence that this is not so. Living things contain immense and irreducible complexity that cannot be accounted for by the mechanism that Darwin proposed. Natural selection is supposed to proceed by small modifications, one bit at a time. But the living cell has turned out to be a maze of molecular machines, in each of which the parts interact in such a way that unless all of them are present at once, the machine either doesn't work right, or doesn't work at all.

Even if human beings could have descended from early life by natural selection, the Darwinian mechanism does not explain where life came from in the first place. Even if it could explain where life came from in the first place, it doesn't explain where the universe came from. And even if it could explain where the universe came from, it doesn't explain why the universe is so exquisitely fine-tuned for the possibility of life like us. These things are so plain that even a nonbelieving astrophysicist writes, "A common sense interpretation of the facts suggests that a superintellect has monkeyed with physics, as well as with chemistry and biology, and that there are no blind forces worth speaking about in nature." And so our third mooring hook snaps shut. The root of the created order is the Creator.

One short step

Once people realize that the root of the enacted law is the moral law, that the root of the moral law is the design of the created order, and that the root of the created order is the Creator, they are only one short step from understanding what happens when the roots of law are severed. Again I will speak in threes, but this time much more quickly.

Point 1 is that enacted law, severed from moral law, is tyranny. If everything is permitted, then everything is permitted to the government. Any king who says "Everything is permitted" must add "But I decide for everyone what 'everything' includes."

Point 2 is that ethics, severed from the design of the moral order, is chaos. Is it any wonder that when we try to live in ways that thwart the inbuilt purposes of the sexual powers, we find ourselves in a world of howling loneliness — a world in which boys grow up without fathers, girls secretly cut themselves with razors, and men and women look upon each other as enemies instead of friends? What goes for sex applies with equal force to the other parts of our design.

Point 3 is that creation, severed from the Creator, is an idol. Idolatry is refusing to look beyond the things that God has made to God Himself. Yet apart from their Creator, these things are meaningless. God has set eternity in the hearts of men, and we can never escape the haunting sense that none of our idols can save.

A tale of two lawmakers — revisited

Let's return to the tale of two lawmakers, but this time give it a different ending. How should the two Evangelical Christians, Trent Lott and Dick Armey, have responded to the questions they were posed? How would they have responded if, instead of quoting the Bible, they had followed the biblical example? What could they have said if they had moored their civic rhetoric to the roots of law?

Armey lost his listeners completely. Lott was on the right track, because, unlike Armey, he did try to explain himself in terms that nonbelievers could understand. Even so, he could have done better than to talk about kleptomania. Analogies among psychiatric disorders that few people know about are too arcane. He would have done better to talk about what everyone knows.

I hear the conversations going something like this:

Question for Senator Lott: "Senator, do you consider homosexuality a sin?"

Reply: "As a public servant, I'd rather speak in terms that all Americans can understand, whether they share my religious views or not. Same-sex urges are a sad misfortune. I sympathize with anyone who is burdened with such desires, but if he gives in to them, he harms both himself and other people. You see, Armstrong, we aren't designed for such behavior. We aren't designed for it physically, and that's why it causes disease and early death. We aren't designed for it reproductively, and that's why it can't make new families. We aren't designed for it emotionally, and that's why the gay lifestyle is so unhappy. It would be irresponsible to regard such terrible damage to precious human beings with indifference. The good news, though, is that people can change."

Question for Representative Armey: "Representative, yesterday Senator Lott said that homosexuality is a misfortune. Do you agree with your colleague's views?"

Reply: "I do."

Follow-up question: "Do you hold these views because of your religion?"

Reply: "Of course my religion addresses the matter, but I don't demand that my fellow citizens agree with me about the Bible. I hold these views for reasons which most people find pretty clear — people of my own religion, of other religions, and of no particular religion. Anyone can see that its not a good idea to act contrary to the way we are designed. Homosexual behavior causes death, disease, and misery, and it can never make new life. As Senator Lott said, though, the good news is that people can change. Thousands already have."

As you can see, talking with our nonbelieving neighbors is not as hard as we sometimes think. Not even the pagan has completely lost his common sense. By God's common grace, there are certain things we can't not know — things that every human being knows at some level, even if he pushes them down and hides them under a false bottom. The great goal of conversation is to get past that false bottom and bring that deep-down knowledge to the surface. We can do that with the roots of law.