Notes Towards a Doctrine of Christian Liberty: Liberty and Human Law

Richard Hooker, Lawes of Ecclesiastical Politie, Book V, ch. 71, sect. 3:

It is not they [the Puritans] saie in the power of the Church to commande rest because God hath left it to all men at libertie that if they thinke good to bestow six whole daies in labor they may, neither is it more lawfull for the Church to abridg anie man of that libertie which God hath graunted, then to take awaie the yoke which God hath laid upon them and to countermande what he doth expreslie injoigne.  But without some expresse commaundement from God there is no power they saie under heaven which may presume by any decree to restraine the libertie that God hath given.  Which opinion, albeit applied here no farther then to this present cause, shaketh universallie the fabrick of government, tendeth to anarchie and meere confusion, dissolveth families, dissipateth colleges, corporations, armies, overthroweth kingdomes Churches and whatsoever is now through the providence of God by authoritie and power upheld.  For whereas God hath foreprised thinges of the greatest waight, and hath therein precisely defined as well that which every man must perform, as that which no man maie attempt, leaving all sortes of men in the rest either to be guided by their owne good discretion if they be free from subjection to others, or els to be ordered by such commaundementes and lawes as proceed from those superiors under whome they live, the patrons of libertie have heere made sollemne proclamation that all such lawes and commandementes are voide, in as much as everie man is left to the freedom of his owne minde in such thinges as are not either exacted or prohibited by the law of God, and because onlie in these thinges the positive preceptes of men have place, which preceptes cannot possiblie be given without some abridgment of theire libertie to whome they are given, therefore if the father commaund the sonne, or the husband the wife, or the Lord the servant, or the Leader the souldier, or the Prince the subject to goe or stand, sleepe or wake at such times as God him selfe in particular commaundeth neither, they are to stande in defense of the freedom which God hath graunted and to doe as them selves list, knowing that men maie as lawfullie comaunde them thinges utterly forbidden by the law of God, as tye them to any thinge which the law of God leaveth free.  The plaine contradictorie whereunto is unfalliblie certaine.  Those thinges which the Law of God leaveth arbitrarie and at libertie are all subject unto positive lawes of men, which lawes for the common benefit abridg particular mens libertie in such thinges as farre as the rules of equitie will suffer.  This wee must either maineteine or els overturne the world and make everie man his own commander.

 

 


The Gun Control Debate: Let’s Have a Cease-Fire

Since the Newtown tragedy last month, American public discourse, apparently feeling that it was at risk, after the election, of falling into a rut of humdrum agreeability—or still worse, rational debate—has fallen to new lows of backbiting, caricaturing, grandstanding, sloganeering, and demonizing.  Liberals rushed to capitalize on the tragedy to advance gun-control legislation, and conservatives responded by painting all this as some ploy to establish a liberal tyranny—to rob us all of our means for self-defense so that the government can establish a virtual dictatorship do whatever it wants.   A moment spent looking around at the other Western nations that have adopted substantial gun regulations should put our minds at ease on this front.  Most notably, in 1996, Australia enacted dramatic gun legislation that involved the government buying the majority of firearms from private citizens and destroying them.  Since then, Australia has shown no hint of degenerating into a Stalinist dictatorship.

Leaving its (rather large) conspiratorial fringe aside, the Right’s rhetoric over the past month has still been dominated by a substitution of sloganeering and fear-mongering for genuine reasoning.  Of course, so has the Left’s, but as a conservative, I find the failures on the Right more depressing, and I’d like to confine my remarks here primarily to addressing those.  There is liberal lunacy to be opposed on this issue, and I salute those who are doing their best to oppose it.  That’s just not my purpose in this post.  

What follows is not an attempt to tell you what to think about the gun control issue, or to engage in any detail with the concrete proposals Obama has advanced or with the complex and debated precedents of Second Amendment law, but only to provide a common-sense framework for how to think about the issue, a framework that seems to be sorely lacking in much of the recent discourse.   I apologize in advance for the length—to paraphrase C.S. Lewis, I wrote a 5,000-word post because I didn’t have time to write a 500-word one.

Argument 1: Guns Don’t Kill People; People Kill People.

This is one of the most frequently-touted slogans on the Right’s side of the debate, and one encounters the basic reasoning in myriad forms:  
Guns are a neutral tool; it’s how they’re used that matters. You shouldn’t punish innocent gun owners for the moral failings of certain individuals.  
Gun violence is a result of a social breakdown, or widespread cultural degradation—the embrace of a culture of violence, the abandonment of Christian values, whatever; only by combatting that can we address the root problem.  
It’s lawless people who commit gun crimes, not law-abiding folks.  Passing laws will only ensure that good people don’t have guns; the bad guys won’t be deterred, and will be as well-armed as ever.

Let me address the slogan itself before tackling each of these related variants.  We might just as well say “Cars don’t kill people; drivers kill people.”  “Alcohol doesn’t harm people; drunkards harm people.”  “Darkness doesn’t rape people or steal stuff; rapists and thieves do.”  Yet none of these facts prevent us from taking measures, often legal ones, to make it more difficult for the potential perpetrators to inflict harm on others.  We make traffic laws and speed limits to reduce the risk of car accidents.  We make laws about where and when alcohol can be consumed to reduce the risk that intoxicated individuals will become a public menace (or perhaps to reduce the risk that they will become intoxicated in the first place).  We install night-lights and surveillance cameras in shops and alleyways so that criminals will be deterred from stealing and raping.  This is how societies operate.  We hope for well-formed, rational, peace-loving citizens, and do our best to cultivate such, but we also take practical measures to mitigate the risks arising from the fact that not all citizens we always be rational and peace-loving.  Of course, the fact that we are dealing with unpredictable, resourceful, and sometimes reckless, sometimes cunning individuals means that any such measures may have limited effectiveness, and may be either badly designed or well-designed.  A universal speed limit of 30 mph might, if actually followed, mean no fatal accidents, but instead it would simply guarantee that no one took speed limits seriously.  Complete prohibition of alcohol was obviously a bad idea.  A society of complete surveillance might reduce crime, but at too great a moral and social cost.  So a great deal of prudence is needed, and it may be that particular gun control policies being touted will be ineffective, or too repressive, or what have you.  And that’s a debate that needs to be had.  But let’s not short-circuit it by pretending that governments have no right to ever regulate behavior for the sake of public safety.

To the “guns are a neutral tool” claim, we should ask “really?”  This is the oldest trick in the book for any defender of any technological invention, but as George Grant effectively argued in “Thinking About Technology,” this is a vacuous claim that avoids the serious task of moral assessment.  Technologies come to be in a particular social context, and are designed to fulfill certain purposes.  When we ask about the moral status of some invention, obviously we are not asking about the moral status of the object as an inert bundle of rods, screws, etc., but as an instrument geared toward the achievement of certain ends within certain practices.  Are those practices good ones?  Are those ends good ones?  To be sure, many technologies prove remarkably adaptable, capable of uses quite different from their original purpose, and thus needing new moral evaluation.  But the gun, unfortunately, is a pretty unambiguous one.  Its purpose is to kill, and that’s about it.  When we move beyond a relatively narrow class of single shot rifles and such to consider handguns, assault weapons, automatics, etc., the purpose is more precisely to kill human beings.  “Neutral” is much too bland a word to use in this context.  The gun is an instrument of evil, although sometimes a necessary evil—killing in self-defense.  To this extent, it is not an intrinsically immoral tool to use, since there are morally licit uses, but it is, we might say, a morally compromised tool, one that warrants society’s careful and suspicious scrutiny.  Are we really prepared to say that a society and government does not have an interest in carefully evaluating the distribution and use of instruments whose chief purpose is the taking of human life?

As far as “punishing” innocent gun owners, we come back to my point above about cars, alcohol, surveillance cameras.  Living in community, in society, imposes certain limitations on one’s behavior.  If you live alone on a ranch in the Yukon territory, then you’re basically free to barrel down the wrong side of the road at 100 mph.  But once you live among other people, such pure freedom is not an option.  Even if you’re a perfectly safe and careful driver, you have to obey traffic laws.  Why?  Because the law, by its very nature as law, has to bind all impartially.  Which means that laws will sometimes need to be passed in order to restrain the actions of a few which thereby impose an inconvenience on all.  This is regrettable, but it is less regrettable than the alternative—in which no one was restrained and peace-loving citizens, instead of bearing the inconvenient burden of regulations, lived in perpetual fear of violence.  Again, both justice and prudence will be necessary to determine when such regulations are appropriate and effective, and sometimes, they will be foolish.  But there is no a priori reason why “innocent” members of society cannot be inconvenienced by laws intended to reduce the risk of public harm.

What about the claim the the root causes of gun violence are much deeper than mere access to guns, so we should be addressing the root of the sin, not the instrument that it happens to use?  This presents us with a simple false dichotomy.  Obviously, we should to reduce the root causes of all evil behaviors, at every level.  To the extent that mental health is an issue, we should work to make sure treatment is available.  To the extent social or family breakdown is an issue, we should find ways to build stronger communities and networks of support.  To the extent, violence in the media is an issue, perhaps we should work to reduce that (although this might involve considerably more government interference than gun control would).  Where general spiritual decay and the loss of the gospel is to blame, we should seek to re-evangelize our nation.  By all means, do all these things (some of which will involve purely private initiative, while others may involve government action as well).  None of these needs to be pursued to the exclusion of one of the others, and certainly, none of them need exclude concrete action in the present to make access to lethal weapons more difficult for the violently-inclined.  Again, to apply the same logic elsewhere reveals its vacuousness—just because the root causes that lead to drunk driving are not cars themselves, this doesn’t mean that we don’t sensibly take measures to restrict alcoholics’ ability to drive. 

The last claim—”only those disposed to be law-abiding will obey the laws, so they’re useless in restraining evil”—is perhaps the most plausible in the current situation, but if broadened into a general principle, would destroy the basis for all laws.  If it were in fact true that laws only serve as guidelines for the virtuous, and have no effect in restraining the vicious, then there would be no point in passing them.  No point in outlawing theft or rape or assault, because those disposed to thieve and rape and assail would ignore the laws.  But in fact, the very opposite is the case.  The existence of vicious dispositions is the reason why we have positive law in the first place.  Richard Hooker puts it well:

“Laws politic, ordained for external order and regiment amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience unto the sacred laws of his nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they do accordingly provide notwithstanding so to frame his outward actions, that they be no hinderance unto the common good for which societies are instituted: unless they do this, they are not perfect.”  

In other words, the purpose of coercive laws is precisely to restrain the outward actions of those who are otherwise not restrained by inward compunction to do good.  Of course, there are bad and good ways to do this, and often less is more.  Hyperactive attempts to police outward actions in Prohibition and in the war on drugs had little effect in restraining the evils it meant to, and led to a host of other evils.  Perhaps guns are another such area.  (Although I will note just in passing that the analogy with both of these fails at one key point: alcohol, and especially drugs, are considerably easier to smuggle, suggesting that restrictions on guns would be at least somewhat easier to enforce.)  But let’s decide this by evaluating the concrete policies that are proposed, not by proclaiming a priori that the law is useless in restraining evildoers.

Argument 2: The Only Thing that Can Stop a Bad Guy with a Gun is a Good Guy with a Gun

This argument does not rest content with defensively shooting down the idea of gun control, but takes the offensive, contending that in fact gun proliferation is the only way to a safe society.  What has surprised me most about this argument is how often I have found it on the lips of Christians, whose faith consists in the conviction that it was in fact  a single man’s non-violent act of self-sacrifice that constituted the most effective “stopping of bad guys” in the history of the world; that indeed, in this sacrifice is the power to overcome evil altogether in the end.  Now, I don’t want to go all woolly and pacifist on you.  I don’t in the end believe that Scripture teaches that just because Christ overcame his enemies by the sacrifice of the Cross, violence is never justified. But what Scripture certainly teaches us is to reject any form of an ontology of violence, an account of the world that understands violence as inescapable and supreme, such that only more violence can overcome it.  Because we live in a world of sin, there will be times when force must be used to restrain force—indeed, government regulation of guns is itself founded upon coercive authority—but this is not something to be gloried in, and we should look for ways for the force to achieve its end without bloodshed or taking a life.  Certainly, therefore, the rhetoric of this claim is out of line, and not something that should attract Christians.  The mindset it represents is reminiscent of the Cold War era political realism, which still infects so many American conservatives—the idea that the only way to ensure world peace was to make sure that you wielded a bigger stick, or a bigger hydrogen bomb.  If we ever find ourselves automatically prone to think that more lethal weaponry and more violence is the best solution to a problem, we should stop and examine whether we truly have the mind of Christ.

Now, rhetorical overreach aside, what if you’ve got a guy on a shooting rampage—wouldn’t you rather have a good guy with a gun nearby?  To be sure, if we focus myopically on the moment of the violent shooting rampage, then of course it may seem a truism that the only thing that can stop a bad guy with a gun is a good guy with a gun.  But this is to short-circuit the whole debate, which is about whether there are ways of preventing the shooting rampage in the first place.  It’s worth noting, for starters, that this argument runs counter to the conservative argument above, which asserted that we must fight violence at its root—sin, mental illness, social isolation, etc.  Looking at the broader context, sometimes it will take a pastor or a psychiatrist or a mother to stop a bad guy with a gun.  Or maybe it will take a government-mandated background check.  The problem with this argument, then, is it takes it as proven that no gun control legislation could possibly succeed in curtailing gun violence, and on this basis jumps to the conclusion that, if you’re going to still have gun violence either way, you’d be better off having as many deterrents in place as possible.  But again, this is to beg the question.  

In any case, though, considering how prominent this argument is, let’s assess for a moment its plausibility.  We have lots of school shootings, we are told, because schools are “gun-free zones”—would-be killers know that this is the place to go.  You don’t see mass murders at gun shows now, do you?  I must say that I’m quite skeptical that this empirical claim will hold up once we move beyond slogans to careful reasoning.  At the broadest level, the claim that a more thoroughly-armed populace translates into greater public security does not seem to stand scrutiny.  After all, the US has the world’s highest rate of gun ownership and the world’s highest homicide rate.  Not that one can draw a very clear correlation in that direction either, as gun control advocates would like to; a glance at worldwide statistics shows that there are clearly many factors involved.  In any case, though, declining homicide rates throughout the developed world over the past few centuries seem to owe primarily to a more thoroughgoing imposition of the rule of law, expansion of police forces, etc., not to any proliferation of weapons ownership.  More concretely, we should ask how effective a more widely-armed populace would have been in preventing recent mass shootings.  As for the Colorado cinema shooting in July, it strains credulity to argue that a handful of moviegoers, reflecting beforehand on the wisdom of carrying along a weapon to their midnight showing, would have had the skill and the presence of mind, not to mention the night vision, to whip out their weapons and take down the shooter when he lobbed smoke grenades and opened fire during the film.  A more likely scenario is that additional bystanders would’ve been shot in the frenzy.  Even in a society where a large proportion of citizens bore arms, there will be times and places that present a high concentration of unarmed or unprepared victims, and would-be killers will hone in on those places.  In the absence of a concerted attempt to arm teachers, schools will be another such place.  

It should also be obvious that it does little good merely to have a weapon—you need to be thoroughly-trained in its use, or you are likely to do more harm than good.  Given that even highly-trained soldiers and police officers usually take a few moments to gain their composure when they are fired upon, it seems clear that we would need not merely to arm teachers and other would-be civilian guardians of the peace, but offer them thorough training in firearm use and combat situations.  Such a thought experiment quickly veers into the realm of the absurd, as we contemplate schools where teachers are no longer hired on the basis of their ability to teach and to mentor young children, but by their resemblance to Arnold Schwarzenegger.  Advocates might respond that this is a caricature—the mere fact that some teachers might be armed would act as a powerful deterrent against potential shooters.  But given that many of these shooters are deranged and even suicidal, it is hard to see why we should be so confident in their rational response to potential deterrents.  In any case, regardless of whether an armed and trained populace were a viable proposition, we should pause and consider for a moment if that is really the sort of society we would want to live in.  As a powerful article in The New Yorker  put it, “When carrying a concealed weapon for self-defense is understood not as a failure of civil society, to be mourned, but as an act of citizenship, to be vaunted, there is little civilian life left.”

In any case, there are many reasons for believing that the proliferation of weapons would reduce violence on the whole.  The good Christian doctrine of total depravity should caution us against such optimism.  It might be going a bit far to say that each of us is a potential killer, but more of us are than we’d like to admit.  Anyone who has a serious anger problem, or who, liable to become unhinged by sudden grief or a broken, is not really a the sort of person you want to be carrying a deadly weapon around town.  There are relatively few people who are liable to commit mass murder, but there are plenty who, under the right circumstances, and with a weapon ready to hand, might commit a crime of passion, or might use lethal force in “self-defense” when the situation did not call for it.  Even if every armed teacher or cinema-goer could be completely trusted only to use their weapon in self-defense, could we assume that they could all be trusted to ensure that no one else ever got access to their weapons?  Fill schools with armed teachers, and you’re inviting any deranged and violent young male to sneak over to his teacher’s desk when she’s not looking and pilfer the weapon.  Again, perhaps there are certain concrete measures we could take to ensure more deterrents to aggressors in high-risk areas, but these should be carefully and specifically argued for, not defended by recourse to the principle that more guns always equals more safety.

Argument 3: But the Second Amendment says…

The fact that the Constitution, the supreme law of the land, guarantees the right to bear arms certainly circumscribes this discussion somewhat.  We are not free to deliberate in a vacuum about what would be the most ideal or prudent policy in the abstract.  Or rather, we can so deliberate if we wish, but sooner or later we will have to consider not merely what is ideal but what is legal.  Not, of course, that the Constitution is un-amendable.  Although practically speaking, it is hard to imagine a repeal of the Second Amendment, it’s worth pausing on this point for a moment to ask whether such a repeal could possibly be just.  Many conservatives, it seems, are liable to confuse constitutional rights with natural rights, and to number the right to bear arms along with those inalienable rights to “life, liberty, and the pursuit of happiness.”  This, however, is problematic.  I’m uncomfortable with “rights” language to begin with, but adopting it for the sake of argument, it is generally understood that natural rights must undergo a certain conditioning and limitation when they are translated into political rights.  That is to say, I always have a right to life, but once I go from being a solitary nomad to a member of a political society, the terms under which I can pursue this right are limited.  I can’t in ordinary circumstances just kill and eat my neighbor’s cow when I’m hungry, for instance.  Moreover, in the forming of political society, we delegate the exercise of certain liberties to our representatives and rulers.  Rather than pursuing life, liberty, and happiness as individuals, we exercise a corporate agency; national defense is perhaps the preeminent example.  Here, rather than attempting to each defend ourselves individually against the threat of external aggression, we pool our resources and authorize certain people to fight on our behalf.  That doesn’t mean that if an enemy combatant somehow made it into our backyard, we couldn’t do our best to fight him on our own, but we wouldn’t prepare for that eventuality.  There is no reason in principle why internal security should be different.  If a society decides that it wants to exercise the right of self-defense against criminals through its police forces, and not through an armed citizenry, such a law would not, it seems to be, violate the law of nature.

The Second Amendment, therefore, is a human law, and as such in principle changeable.  In considering its applicability today, we should keep in mind two dictums from Richard Hooker.  First,

“Whether God bee the author of lawes by authorizing that power of men whereby they are made, or by delivering them made immediatly from him selfe, by word onely, or in writing also, or howsoever; notwithstanding the authoritie of their maker, the mutabilitie of that end for which they are made doth also make them chaungeable” (LEP III.10.2).  

In other words, simply to appeal to the Constitution doesn’t settle the discussion.  If God himself had declared the Second Amendment, it might still be changeable, if the end for which it was made no longer pertains.  What is that end?

Well, it depends whom you ask.  From my position high up in the cheap seats, it looks like there’s room for disagreement even among legal scholars on the question, but that it’s hard to deny that the main objective of the amendment was tied in with the affirmation of local militias.  The grammar of the amendment makes this fairly hard to argue with—”A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Early American militias served two potential purposes.  The first was to provide protection, not primarily against internal threats (criminals) as against external threats (attacks by natives, primarily), though in some places, the threat of slave insurrection may also have been part of the picture.  The second, certainly around the time of the Revolutionary War, was to start insurrections, against governments perceived to be tyrannical—militias were there to hold rulers to account with the threat of armed insurgency.  The first purpose seems to be essentially irrelevant now, and if this were all the Second Amendment was about, then on Hooker’s principle, it would be essentially a dead letter.  What about the second?  Given that it was precisely the potential for such insurrections as Shay’s Rebellion that led to the Constitutional Convention, we may safely assume that many founding fathers were not too keen on this function of militias.  Aside from that, however, should be we keen on them today?  Remarkably, an awful lot of conservatives are; in recent gun-control debates, one hears this rationale for gun ownership explicitly invoked.  The ethics of rebellion is complex subject that I couldn’t possibly go into now, but suffice to say that historically those calling themselves “conservative” have been highly suspicious of armed revolution, as have, all the more so, those calling themselves Christians.  Christian political theory has always found it extremely difficult to find a Biblical justification for popular revolt, and Christians today should be wary of breaking with that tradition.  

Perhaps, though, the Second Amendment was framed also to the end of ensuring private means of self-defense against ordinary criminal threats.  Well then, that end remains unchanged, so the law must as well.  Right?  Hooker’s second principle interjects here:

“lawes are instruments to rule by, and instruments are not only to bee framed according unto the generall ende for which they are provided, but even according unto that very particular, which riseth out of the matter wheron they have to work.  The end wherefore lawes were made may bee permanent, and those lawes neverthelesse require some alteration, if there bee anye unfitnes in the meanes which they prescribe as tending unto that end and purpose (Ibid.).”

In other words, it could be a perfectly just law for a perfectly just end, an end that still applies, and yet the law may need to be changed?  Why?  Well, subsequent experience might demonstrate that the law was in fact ill-suited to achieve its purpose, that it has done more harm than good.  Or, it might be that although once well-suited, society has since changed to the extent that the law no longer effectively serves its purpose.  Weapons today are not what they were in 1790.  Back then, a mass shooting was unthinkable—you could fire one shot, and while you laboriously reloaded, there would be time for a dozen unarmed bystanders to tackle you.  The conditions of modern life have changed dramatically.  For one thing, we have a much more sophisticated and effective system of public law enforcement than back then, and so have less need to rely on private self-defense.  The vast majority of us today will go through our entire lives without any need to draw weapon in our own defense.

None of this is to contend that the Second Amendment is necessarily obsolete.  In certain respects, it will have enduring relevance.  But these need to be carefully parsed out and argued for—we get nowhere merely by invoking the amendment like a magic word and pretending that gun-control advocates have no respect for law.  Of course, even if we did deem the Amendment mostly obsolete, it would still impose constraints on how far gun control legislation could go, and this is an important point to make.  There are certainly some in the current debate who might like to see all guns banned, and would like to do so without repealing the amendment.  To these, it is the duty of true conservatives to point out that the laws of our ancestors still bind us, whether we like them or not, until they can be undone by proper authority.  Good old Hooker can be relied upon to remind us of this principle too.  Nonetheless, we are not left with the alternatives “No guns” or “unrestricted guns.”  The language of the amendment itself presupposes the existence of careful regulation in this area, so it is regulation does not ipso facto constitute an infringement of the right. 

Our task, then, is to determine, within the constraints provided by legal precedent, under what conditions the right to bear arms may most prudently be exercised today.  This will require careful legal scholarship; it will require careful empirical investigation of the nature and causes of gun violence, of the effectiveness that various preventative measures have had in different times and places; it will require thoughtful political consideration of the unforeseen consequences of gun legislation, of the extent to which it will reduce civil liberties as a whole or encourage the growth of bureaucratic law enforcement behemoth.  All of these considerations need to be weighed in the balance, and from different judgments regarding them, a variety of plausible proposals, some quite conservative, others more liberal, may be advanced.  A careful debate needs to be had about these proposals, for a great deal may hinge on them.  But let’s not short-circuit that debate by ignoring both common sense and the basic principles of political theory and jurisprudence.  And above all, let’s not shame the name of Christ by identifying the “Christian” cause in the public debate with a commitment to individual rights and to violent solutions to violence.


Libertine Legalists

(This is an excerpt from a thesis chapter I am drafting, “Richard Hooker and the Freedom of the Christian Commonwealth”–it explores the paradoxically libertine yet legalist implications of the Puritan rejection of human authority)

For Hooker, the problem with Puritanism is a warped doctrine of Christian liberty which will assuredly destroy the liberty of the Church (and along with it, the State and the individual).  As we have seen already, the doctrine of Christian liberty declared that Scripture alone had authority over the conscience, and that therefore, no other authority outside Scripture could bind the believer.  Given the original thrust of this doctrine as a weapon against papal authority, it is no wonder that it should tend to abridge the liberty of the Church, pitting against it the freedom of the individual and the authority of Scripture.  Rightly qualified, of course, this exclusive authority of Scripture applied only in matters of faith and salvation, in “the spiritual kingdom” into which, by definition, no man could reach, and the doctrine did not need to pose any threat to suitably humble human institutions.  But as the Puritans had made Church discipline and ceremonies to be matters of faith and salvation, a clash was inevitable.  

The problem this posed for the Church of England is revealed in a fascinating passage in Book V, chaper 71, where Hooker, discussing the particular case of the Church’s power to command holy days, takes the opportunity to unfold the alarming implications of Puritan biblicism:

“It is not they saie in the power of the Church to commande rest because God hath left it to all men at libertie that if they thinke good to bestow six whole daies in labor they may, neither is it more lawfull for the Church to abridg anie man of that libertie which God hath graunted, then to take awaie the yoke which God hath laid upon them and to countermande what he doth expreslie injoigne.  But without some expresse commaundement from God there is no power they saie under heaven which may presume by any decree to restraine the libertie that God hath given.  Which opinion, albeit applied here no farther then to this present cause, shaketh universallie the fabrick of government, tendeth to anarchie and meere confusion, dissolveth families, dissipateth colleges, corporations, armies, overthroweth kingdomes Churches and whatsoever is now through the providence of God by authoritie and power upheld.  For whereas God hath foreprised thinges of the greatest waight, and hath therein precisely defined as well that which every man must perform, as that which no man maie attempt, leaving all sortes of men in the rest either to be guided by their owne good discretion if they be free from subjection to others, or els to be ordered by such commaundementes and lawes as proceed from those superiors under whome they live, the patrons of libertie have heere made sollemne proclamation that all such lawes and commandementes are voide, in as much as everie man is left to the freedom of his owne minde in such thinges as are not either exacted or prohibited by the law of God, and because onlie in these thinges the positive preceptes of men have place, which preceptes cannot possiblie be given without some abridgment of theire libertie to whome they are given, therefore if the father commaund the sonne, or the husband the wife, or the Lord the servant, or the Leader the souldier, or the Prince the subject to goe or stand, sleepe or wake at such times as God him selfe in particular commaundeth neither, they are to stande in defense of the freedom which God hath graunted and to doe as them selves list, knowing that men maie as lawfullie comaunde them thinges utterly forbidden by the law of God, as tye them to any thinge which the law of God leaveth free.  The plaine contradictorie whereunto is unfalliblie certaine.  Those thinges which the Law of God leaveth arbitrarie and at libertie are all subject unto possitive lawes of men, which lawes for the common benefit abridg particular mens libertie in such thinges as farre as the rules of equitie will suffer.  This wee must either maineteine or els overturne the world and make everie man his own commander.”

Here Hooker attributes to the Puritans the claim that, in all matters on which Scripture is silent, the individual is left free, and human authority cannot claim to interpose itself.  Although not explicitly stated, the comparison with Anabaptism, which was a standard of conformist polemics and which makes an open appearance several times in the Lawes, is clear enough.  The Puritans would have vociferously denied it, to be sure, and with good reason–they certainly held that the magistrate, in properly “civil” matters, could bind by positive law on matters which Scripture left at liberty.

  Nonetheless, when it came to “spiritual” matters, and the public order of the Church, many Puritans certainly held something like what Hooker attributes to them here–and since Hooker will argue that laws of ecclesiastical polity are of the same nature as civil polity, he is not unfair in here drawing out the Anabaptistic implications of their doctrine.

 

Clearly, however, this apparent libertinism was not incompatible with the starkest legalism.  It is this latter which Hooker is seeking to combat in III.11.  In the Admonition Controversy, Cartwright had argued that if God had given through Moses a thorough constitution for the people of Israel, then how could he omit this gift to the much greater new Israel, the Church of Christ?  The more laws given, the more blessed, reasoned Cartwright, so we must assume that Christ gave to the Church more and stricter laws than ever Moses gave to Israel.

When Whitgift objected that on the contrary, it appeared that the opposite was the case–whereas the political organization of Israel was strictly determined, little or nothing was said of civil matters in the New Testament, Cartwright retorted that 

“the leaving of us at greater libertie in things civill is so farre from proving the like libertie in things pertaining to the kingdome of heaven, that it rather proves a streighter bond.  For even as when the Lord would have his favour more appeare by temporall blessings of this life towards the people under the Lawe then towards us, he gave also politique lawes most exactlie . . . so his care for conduct and government of the life to come, should (if it were possible) rise, in leaving lesse to the order of men then in times past.” (255)

Since divinely-given law is the key to receiving blessings, then just the temporal blessings of Israel’s commonwealth were provided for by detailed divine law, so the spiritual blessings of the Church cannot come except by detailed laws.

Hooker responds by refusing to accept Cartwright’s presupposition that God must have blessed the Church with detailed laws, insisting on the simple empirical fact that he didn’t: “it is manifest that our Lord and Saviour hath not by positive laws descended so far into particularities with us as Moses with them . . . [therefore] to us there should be freedom and liberty granted to make laws.”  Here then it is Hooker arguing that we are “left at liberty” when Scripture is silent; only the liberty is that of an institution to make laws, not of an individual to be free from law. 

The strange dynamic between legalism and libertinism that Hooker identifies in Puritanism was a recurrent one in various forms of radical Reformation movements.  On the one hand, the Puritan platform asserts the absolute authority and massive scope of Biblical law, regulating in detail the conduct of a believer and leaving him, it would seem, very little liberty before God.  On the other hand, so all-encompassing is this divine law that it muscles out of the way all other forms of authority–since it leaves no matter in need of legislation untouched, we are to assume that no further legislation is permissible where it does not speak.  The believer is thus left a great deal of liberty before man.  By failing to distinguish the different planes on which divine and human authority operate, so that freedom of conscience before the one can coexist with bondage before the latter, the Puritan has imagined the two to be competing for territory on the same plane, necessarily in conflict, and with the latter sure to give way before the superior claims of the former.  Thus the assertion of Christian liberty strikes directly at the foundation of institutional liberty.

On the contrary, says Hooker, those things left uncommanded by divine law, being matters of adiaphora, are grants of liberty to political societies to frame positive laws “for the common benefit,” not chains restricting them from any legislation.  If we do not say this, then nothing is left to the authority of such institutions, but all to the individual or to Scripture.

The result of this, Hooker is convinced, will be the crippling of any capacity for corporate action and hence the destruction of society. 


Getting Rights Wrong

In his book The Victory of Reason (which I scathingly reviewed last year on my old blog), Rodney Stark provides a first-class exhibit of how hopelessly confused moderns are on the issue of property rights.  Moderns–perhaps especially modern Christians–tend to slide unstably back-and-forth from pragmatic defenses of private property (it’s essential for prosperity and good order in society), which treat private property as the product of a good legal system, and natural-rights defenses, which treat it as a sacred and fundamental God-given right that must be protected for its own sake.  Although this distinction was recognized as crucial by everyone from Cicero to John Locke, Stark seems paradigmatic of our modern Christian wannabe-economists in being simply unable to recognize the difference.

He begins his discussion of property rights with the familiar assertion, “The Bible takes property rights for granted.” (78)  He then narrates that the early Church regrettably considered private property to exist only as a result of sin, before crediting St. Augustine (incorrectly, as it turns out–Augustine shared the Patristic consensus) for regarding private property “as a natural condition.” 

“By late in the eleventh century,” he goes on, “the writer known only as Norman Anonymous wrote in one of his influential tracts that private property is a human right: ‘God made poor and rich from one and the same clay; poor and rich are supported on one and the same earth.  It is by human right that we say ‘My estate, my house, my servant.’” (78)  In this passage, Stark commits such an elementary misreading that it is hard not to laugh at the poor fellow’s expense, as he anachronistically imports the very modern notion of “human rights” into an altogether different argument.  The Norman Anonymous’s claim is precisely the opposite–that private property is a matter of the ius humana (“human right” or “human law”), in contrast to the ius naturale (“natural right” or “natural law”); it exists only by the agreement of human society.  This is in contrast to the natural state described in the first sentence of the quote (which makes no sense on Stark’s reading), in which the earth belongs equally to poor and rich alike.  

Stark goes on to cite scholastic authorities John of Paris, Albertus Magnus, and Thomas Aquinas, all arguing that private property was “instituted” for “the convenience and utility of man” (79)–all three authorities are making pragmatic human-law arguments, not natural-right arguments; he states correctly that Aquinas considered private property to be “in accord with natural law,” but ignores the other side of Aquinas’s nuanced position–that it was not by natural law, but could be instituted as a legitimate outworking of natural law.   

Finally, he moves straight to the Lockean-libertarian application, citing William of Ockham in favor of the conclusion “that since it is a right that precedes the laws imposed by any sovereign, rulers cannot usurp or arbitrarily seize the property of those over whom they rule.  A sovereign can infringe on private property only when ‘he shall see that the common welfare takes preference over private interest’.” (79)  Again, Stark’s quote works against his interpretation.  Ockham, in line with his predecessors, is merely asserting that a ruler cannot override private property at his personal whim; of course, says Ockham, since private property is instituted by society to serve society’s interests (a Franciscan like Ockham would never grant that it was a “right that precedes the laws”), any private right to property to property can be overridden when the “common welfare” demands.  

 

A reading this careless shouldn’t have passed a freshman philosophy class, and yet somehow it passes muster in an acclaimed book of economic history, enthusiastically blurbed by modern Catholic leaders like Richard John Neuhaus and George Weigel.  So far have we fallen out of touch with our tradition, that we don’t blink an eye when someone stands it on its head.



Sola Scriptura in the Public Square, Pt. 2

(In this second half, I use Richard Hooker’s development of the tripartite division of law to suggest a healthier approach to understanding Scriptural authority in political life.)

****Edit: As this paper will be published in an extended form by T&T Clark in a volume entitled The Bible: Culture, Community, and Society, they would obviously prefer if I did not have the full-text available here.  I have thus removed most of this post, and the previous one, leaving only some tantalizing excerpts.**

First, against the Puritan impulse to draw all things to the judgment of Scripture, Hooker contended strongly for a distinction between “things necessary” and “things accessory” to salvation.  He in no way backed down from the Protestant insistence on Scripture’s sole authority, but he insisted that we must not claim for this authority a broader scope than Scripture itself claims.  We may think we honor Scripture by claiming for it the authority to govern every area of human decision-making, but we deceive ourselves therein: “Whatsoever is spoken of God or thinges appertaining to God otherwise then as the truth is; though it seeme an honour, it is an injurie” (II.8.7).  Not only that, but by seeking to make of Scripture something that it is not, and requiring Scriptural warrant for any decision, “what shall the scripture be but a snare and a torment to weake consciences, filling them with infinite perplexities, scrupulosities, doubts insoluble, and extreme despaires?” (II.8.6)

….

However, it should be evident from the way that Hooker has set up the distinction that he will have no truck with the use of natural law theory that gives Scripture exclusive authority over sacred or spiritual matters, and natural law exclusive authority over everything else.  For clearly not everything of which Scripture speaks is “necessary to salvation”; it sheds light on a great deal else, not merely of a historical nature, but of an ethical nature as well.  So to say that “only Scripture speaks authoritatively of spiritual matters” is not to say that “Scripture only speaks authoritatively of spiritual matters.”  To set up such a dichotomy would remain, in Hooker’s eyes, a product of a Puritan bifurcation between nature and grace.

 … 

So if it is in fact true that we should not expect unaided man to come to a fully adequate understanding of morality and application of it in politics, if it is true that we should expect Scripture to shed light on such questions, indeed, to clarify for us the fundamental principles of morality and how to apply them in any number of situations, then how exactly does this differ from the Puritanism above?  How is Scripture’s authority in these matters “accessory to salvation” different from in matters “necessary to salvation”?  

This is where Hooker’s doctrine of “human law” comes in.  For while God is the same, yesterday, today, and forever, and the means of calling upon Him and being united to Him has not changed, human affairs change every day.  

 

So even to the extent that Scripture illumines for us general principles of natural law, and provides particular applications, it does not supersede the need for human beings to deliberate together and make laws for their own circumstances.  Against Puritan opponents who insisted that if Scripture declared a law for human action, we would be arrogant to ever make other laws, Hooker insists, “Lawes are instruments to rule by, and that instruments are not only to bee framed according unto the generall ende for which they are provided, but even according unto that very particular, which riseth out of the matter wheron they have to work.  The end wherefore lawes were made may bee permanent, and those lawes neverthelesse require some alteration, if there bee anye unfitnes in the meanes which they prescribe as tending unto that end and purpose.” (III.10.3)


Of course, anyone, when pressed, will grant such a distinction between general ends and particular circumstances, and thus the need to use reason and some degree of flexibility in applying Scripture.  But the point that Hooker presses against his Puritan opponents is that this is nothing to be ashamed of.  God does not reap glory at human expense, but by empowering humans to imitate him.  Therefore, we need not grudgingly admit that unfortunately, Scripture doesn’t give us precise directives on some ethical or political question, and try to resist all social change so as to keep ourselves from having to make new applications and interpretations.  On the contrary, we happily embrace our God-given task of using all the resources at our disposal–nature, experience, Scripture, and the existing laws of our societies–to seek fresh applications of very old principles to very new problems.