No Mercy: Cartwright on the Death of Jesus and the Death Penalty

2 Comments

Among the most disturbing passages in Thomas Cartwright’s Second Replie to the Answer of the Admonition, which, it must be confessed, rarely makes for edifying reading, and still more rarely for pleasant reading, is the lengthy section in which he undertakes to argue that not only are the death penalties of the Mosaic law still legitimate, but they are in fact strictly required of the Christian magistrate.  He is particularly interested in showing this with regard to adulterers blasphemers, and idolaters (worrisome because of how many people Cartwright would class in the latter two categories), all groups that John Whitgift had argued that the New Covenant magistrate had liberty to spare from death.

Cartwright begins, arguing that Christ’s sacrifice was intended merely to deliver from spiritual death, not corporal death, and hence in no way affected the temporal penalties which should belong to evildoers:

“It remaineth to show that there are certain judicial laws which cannot be changed, as that a blasphemer, contemptuous and stubborn idolator, etc., ought to be put to death.  The doctrine which leaveth this at liberty, when they can allege no cause of this looseness but the coming of our Saviour Christ, and his passion, faulteth many ways.  And first, it is a childish error to think that our Saviour Christ came down to exempt men from corporal death, which the law casteth upon evildoers; whenas he came not to deliver from death, which is the parting of the body from the soul, but from that which is the separation both of body and soul, from the gracious presence of the Lord.  And if it were not that our Saviour Christ had born in his own body this civil punishment of public offenders, it must follow thereupon not (which the Doctor [Whitgift] fancieth) that ‘it is in the liberty of the magistrate to put them to death’ but that he must, will he, nill he (if they repent) kepe them alive.  For if our Saviour Christ hath answered that justice of God in his law, whereby he hath commanded that such malefactors should be put to death, it should be great injustice to require that again in the life of the offender.”

Whitgift’s argument, in other words, proves too much, for if the death of Christ should make any difference at all for these judicial laws, it should be one that requires that mercy be shown, rather than merely permitting it.  (Whatever one thinks of the logic of this argument here, it is a typical move for Cartwright, who can almost never think in terms of permission—God either requires, or forbids.)  Cartwright goes on to argue, further, that Whitgift’s argument would make Christ’s sacrifice into a foolish thing indeed, since by inviting temporal mercy toward sin, he would encourage more evildoing:

“Again, this opinion is injurious unto the death and whole appearing of the Son of God in flesh.  For where he appeared for this cause, that he might destroy sin, which is the work of the Devil, the Answerer [Whitgift] in his imagination of choice, which he leaveth to the Magistrate touching the putting of such horrible offenders to death, doth at unawares as much as in him lieth make our Saviour Christ build again that kingdom of sin which he hath destroyed.  For when both in common reason and by the manifest word of God before alleged, the Lord giveth this blessing unto the punishment of such grievous offenders by death, that others not only which see but also which hear of them have the bridle of fear put upon them, whereby they are withholden from the like crimes; it must needs follow that whosoever maketh our Saviour Christ author of this looseness in punishing such offenders, maketh him forthwith to lose the bridle whereby others are stayed from throwing themselves down the hill of wickedness which was before committed.  And what is this if this be not to make our Saviour Christ a troubler commonwealths?”

Cartwright concludes by insisting that God has put the sword into the hand of magistrates not to permit them to use it, but to require that they use it, whenever it is called for, without mercy:

“In that the Apostle putteth a sword in the hand of the Magistrates, and in the use of it maketh him a  Minister and servant of the vengeance and justice of the Lord against sin; he striketh through this opinion which imagineth that our Saviour Christ came to hang the sword of the Lord’s justice upon the pleasure and will of men.  For the magistrate being the Lord’s officer, as the Sheriff is the Magistrate’s, it is no more in his choice to withhold the sword, which the Lord hath put in his hand to draw, then in the power of the Sheriff to stay the execution of that judgment which the magistrate himself hath lawfully commanded.  Now seeing there is a sword in the Magistrate’s hand by the doctrine of the Apostles, and that also which the magistrate must of duty draw, I would gladly know of the Answerer where that necessity can be found if it be not in these crimes of blasphemy, etc., which I have set down?”

This last part is really the crucial bit, manifesting as it does Cartwright’s conviction that God never, if he can help it, leaves humans, particularly authorities, at liberty to do as reason and prudence might dictate, but meticulously defines their responsibilities in advance.  What kind of God would he be, Cartwright asks rhetorically, if he left us to our own devices?  

 

It is this conviction which leads Cartwright to a classic theonomist stance regarding the continuing validity of the Old Testament civil laws, one which departs radically from that of earlier Protestant reformers.  I hope to explore this issue, in particular Cartwright’s fascinating distortion of Calvin’s language about the “general equity” of the Mosaic laws, in a subsequent post next week. 

Obamacare in Perspective

15 Comments

[EDIT FOR CLARIFICATION: A lot of people are being directed to this as a response to Wilson’s recent “Sermon to the Government and Legislature of Idaho.”  In fact, it was written and posted before that sermon.  However, many of the concerns voiced here certainly apply (along with additional ones) to what was said there.]

Let me begin with a few (big) caveats.  I’ve been out of the country for three years now.  That provides some helpful perspective, I hope, but it also means I’m pretty ignorant.  Way back three years ago, when the original healthcare battles were being fought, I paid a good deal of attention, but never read up in detail on the final bill, which seemed to me to be a very poor piece of legislation, a compromise that combined the worst elements of both sides.  Since then, I’ve turned a blind eye to the continued bickering, protesting, anathematizing, and so on that has continued to dog “Obamacare.”  I mostly ignored all the lead-up to the Supreme Court decision, and I’ve read very little on the details of that decision.  I’m basically glad John Roberts did what he did, if only because I felt like the whole brawl needed a referee to step in and say “Time out.  Let’s not do anything rash in the heat of the moment.”

So, if you want to lob rotten tomatoes at me, I understand.  But as a few folks really encouraged me to post these thoughts, I’ll go ahead and stick my neck out there anyway.  In any case, the important questions here are at the level of theo-political principles, not the particular details of Obamacare.

Among Christians, perhaps particularly Reformed Christians, one is likely to hear these days that this is the last straw.  Our government has crossed the line.  It is the Leviathan, the Beast now.  It has thrown out of the window “biblical principles of limited government,” making itself out to be infinite, to be God, to be Savior. Christians have a duty to resist it now, in some form or other (whatever that means…).  If we aren’t going to stand up for “biblical principles of limited government,” then who is?  Needless to say, I think this is a deeply misguided line of attack.  

 

For one thing, if it’s really so black and white, and so serious, then what do these statements say about the tens of millions of American Christians who support something like Obamacare?  Or the scores (maybe hundreds) of millions of Christians worldwide who support universal health care?  For another, if these biblical principles of limited government are so obvious, could we at least hear a frank admission from most of their advocates that they have only become obvious to Christians quite recently.  We could pick examples from the 4th century or the 19th, but let’s just stick with the Reformation, since I know that best, and that’s when all our greatest heroes lived, right?  Calvin’s Geneva—really limited government, right?  Ha!  It would be hard to think of a more meddlesome commonwealth!  Almost every aspect of the citizens’ lives—religious, economic, entertainment, apparel—were closely regulated.  “Oh, but that was by the church, so it was OK.” (People will really say that, you know.)  Well, not really, no—just check out my recent post on the politics of Geneva.  How about Martin Bucer, author of that great Biblical treatise on government, On the Kingdom of Christ.  If he published that book during the Cold War, he probably would’ve been imprisoned as a Soviet propagandist.  Bucer’s Christian magistrate has his hands in everything—agricultural legislation, suppressing trade of luxury goods, education, church-building, welfare, etc., etc.  

Now, we’re perfectly free to say, “Well yes, the Reformers were a bit totalitarian in their view of the Christian prince’s scope of responsibility, but we have since learned better, and we have the Bible verses to prove it.”  But if men so zealous for fidelity to Scripture in every area of life saw no contradiction between what we now would call “command economies” and the Bible, this should at least temper the zeal of those who think that the plain teaching of Scripture is at stake.

 

But let’s turn now to ask what this plain teaching of Scripture is.  The only possible guidance one can get out of the New Testament is Romans 13:4, which only helps you if (as a remarkable number of otherwise intelligent people have done) you take it as providing a complete description of the legitimate scope of governmental activity. Is universal healthcare a way of executing wrath on the evildoer?  Doesn’t look like it, so obviously it’s not legitimate—so the argument goes.  In the Old Testament, libertarians must face the inconvenient fact that Exodus through Deuteronomy seems to offer an incredibly meddlesome law code, complete with shocking infringements on private property like the gleaning and jubilee laws.  Of course, the ready response at this point is that these are “laws” only in the moral sense, which God’s people, as individuals, are responsible before him to obey, but they aren’t civil laws, so it’s OK.  Having done a good bit of work in this area, I have little hesitation in saying that this is anachronistic to the point of incoherence.  

Ah, but then we come to 1 Samuel 8, a favorite passage among the monarchomachs, which portrays various kinds of governmental overreach as a divine judgment upon the people.  Indeed, our modern-day Christian libertarians are eager to point out vs. 15 and 17, where Samuel tells the people the appalling prediction that this new king will tax 1/10th of their produce.  Well, there you have it, we are told.  Tax rates of 10% and over are unbiblical.  But one might just as well complain that we have police forces, complex legal institutions, separation of powers in our government, standing armies, and pay our taxes in cash, not grain—all contrary to ancient Israel.  The simple fact is that a more complex society demands a more complex (and more expensive) government structure.  In any case, it’s worth noting that Scripture itself appears to recognize this, praising expansions of administration under godly kings—Asa, Jehoshaphat, Hezekiah, Josiah. The godly kings are involved in all kinds of stuff—religious reform, economic reform, judicial reform, major building projects, military expansion, etc.—and they’re praised for it.  It’s not so much the scope of royal power per se that seems to the problem, but the use of it. The problem with the wicked kings is that they used the great scope of their power for wicked ends.

To be sure, in Scripture, we are given certain key principles of “limited government.”  Above all, the principle that God stands above and behind all governments, it is He who raises them up and casts them down, it is to Him that they are accountable.  Governments cannot therefore seek to usurp his place.  They cannot claim powers that are only his.  They can not claim dominion over the whole world, or over human hearts.  They cannot claim to define good and evil; rather, they are bound to the moral law he has established, and will be judged by Him if they violate it.  While certainly not explicit in Scripture (all the attempts of 17th-century republicans notwithstanding!) we can also certainly develop from Scripture they idea that it is good for government to find ways to incorporate the consent of the governed.  Indeed, we could continue along such lines, attempting to extrapolate reasonable principles from Scripture as to what governments ought to do and not to do.  But already, we have moved beyond clear biblical principles (the violation of which is rebellion against God) into the realm of prudential reasoning. 

 

If we’re looking for a list of enumerated powers, some very clear limits on the sorts of things government can legitimately take responsibility for, I’m afraid the US Constitution is where you’ll have to look, not the Bible.  Christians today who claim about the ungodly expansion of government tend to confuse these two—the generic Biblical limits on government (don’t usurp the place of God)—with the concrete American constitutional limits on government.  We seem to think that if a government transgresses these latter, it has claimed freedom from all bounds, has claimed equality with God.  In particular, we are told that the judicial decision last week constituted a claim that the US government has a prerogative “without limit.”  Really?  Did John Roberts yesterday just certify that the US government has sovereignty over any territory on earth it desires to occupy?  Did John Roberts just certify that the US government can tell you what you’re allowed to read? which church to attend?  which God to believe in?  Hardly.  Of course, there is no doubt that the US government, by its sheer scale and pervasive wickedness, has bestial proclivities, a tendency to make itself into an idol which must be served, to make its own glorification the end of its existence.

But where will we draw the limit, if we abandon the enumerated powers of a strictly construed Constitution?  If we don’t draw the line in the sand here, then where will it stop?  There are no criteria, we are told.  But this is to assume that the only criteria we have to work with are neat, concretely defined little checkboxes: national defense? Check.  Police service? Check. Regulate interstate commerce? Check. Issue drivers licenses? Check. Define the meaning of marriage? Check. Ban abortion? Check. 

The fact is, a great many nations of the world get by just fine without the kind of written limit that we are asking for.  The idea of a Constitution with enumerated powers is by no means a ubiquitous one.  Britain has no such thing.  Britain relies on a slowly developing common law tradition, in which precedent, popular consent and the principles of natural equity serve as limits upon the legitimate scope of government action.  Of course, I suppose most of the Christian Right, would have few qualms about dismissing much of the rest of the world, including Britain, as totalitarian.  But this is just a combination of naïveté and hubris, or else depends upon the possession of a reliable concrete standard for defining what counts as totalitarian.  And in any case, ultimately, the US too must fall back on these kinds of limits. If nothing else, this controversy is proof that a constitution with enumerated powers is insufficient.  There is too much room for disagreement about how much these powers may be stretched, and even how much of a straitjacket a 220-year-old Constitution should be.  Ultimately, while the Constitution provides certain limits on the scope of our government’s powers, legal precedent, popular consent, and the sense of natural equity play a bigger role.

 

But, aside from the Constitution, do we have no standard for determining the just limits of government?  What do Scripture and natural law have to tell us?  A good two kingdoms theology  will warn us against the danger of seeking for detailed guidance on matters pertaining to the civil kingdom in Scripture.  Even where Scripture does give detailed guidance, it is the nature of such matters is to be variable according to time and circumstance, so there is no a priori guarantee that the guidance still applies (e.g., the 1 Sam. 8 taxation question above).  What does necessarily still apply (the “equity” of the law) does so because it belongs to the natural law, with which Scripture is “fraught,” according to Hooker.  The general principles of Scripture and the natural law will coincide in helping us see that certain things governments might try to do are intrinsically beyond their God-given limits.  So, although it is somewhat question-begging, we can of course start by saying that government oversteps its limits if it ever commands us to act contrary to the moral law, such as ordering its citizens into a blatantly unjust war, or requiring doctors to prescribe abortifacients, or requiring ministers to marry gay couples.  Of course, such situations may require a good deal of discernment, and most cases are not so obvious.  Natural law will also require that government abide by principles of justice, commutative and distributive.  These too require discernment, and it is not always clear what belongs to the fundamental moral law and what are mere changeable positive laws of Scripture; thankfully, the Christian tradition of moral theology has already done a lot of the heavy lifting for us on this point.   Most importantly, we can lay down, on the basis of a good two kingdoms theology, that government must never seek to intrude itself upon the realm of belief or to idolatrously claim religious devotion (though again, it requires a great deal of work to cash out what constitutes such violations and what does not).

In any case, though, natural law does not function well as a detailed set of prescriptions, or even a set of deductive principles from which we may arrive, a priori, at a detailed set of prescriptions.  That is not the sort of thing it is, since it reveals itself in prudential reasoning in ever-changing circumstances which pose ever-new demands.  Rather, it functions best as a means of testing, a posteriori, certain proposed actions, and seeking to discern whether they violate fundamental norms—in other words, much more in the manner of a common law tradition than an attempt to establish enumerated powers.  So we do have means of determining the just limits to government, but they are no silver bullet or infallible answer key; they require a great deal of attention to particular needs and constraints.

 

So, finally, to come back to Obamacare, what might such limits have to say to this particular question?  Has some fundamental line been crossed, now that the government can “coerce us to buy something”?  Well, hardly.  Although I haven’t read the opinion, I think Roberts was quite right in his basic view of the situation.  To describe the individual mandate as a market transaction that you were required to engage in was the Obama administration’s attempt to compromise with the market model they were confronted with.  In most health care systems, it is quite clear that the government is ensuring the provision of a service, and requiring you to pay for it in some way or another—in other words, taxing you for it.  

Now, you can try to be a consistent anarchist and insist that all taxation is theft, but if not, you’re going to have to grant that we already accept any number of “coerced purchases” through taxation.  We pay, through our taxes, for defence from enemies and from criminals, for the provision of justice at the courts, for the maintenance of a stable currency, for government safety inspections in various industries, for a transportation network, for weather measurement and forecasting, for public parks for disaster management and response, etc. (just to pick a few items that even arch-conservatives are unlikely to object to, though you never know these days).  Of course, I have argued before, and will continue to argue, that it’s really misguided to think of such taxation in terms of coercion—or rather, it is only coercive if you first choose to think of it as such.  But in any case, is there something special about healthcare that makes it categorically inappropriate for us to be taxed for the provision of, whereas it is perfectly fine to tax us for the provision of firefighters?  In both cases, the reasoning is, “Some unforeseen peril or harm may suddenly come upon a citizen, which he does not have the means to rescue himself from on his own. As part of ensuring that we, as a society, take care of one another in our need, we tax citizens to provide the means to protect and care for them in their need.”  Indeed, it seems rather easier to justify taxation for healthcare than taxation for transportation, for instance.  Now, none of this is to say that universal public healthcare is necessarily a good idea, and certainly not that the particular ugly hybrid enacted in the US is a good idea.  It may be poorly-conceived in any number of ways.  But this is quite different from saying it is a grave injustice, a mark of rebellion against God, etc. 

When we want to ask whether government has become tyranny, the chief question to be asked is whether it is seeking to serve the common good of its people, or whether it has turned aside to serve the private good of the governors.  The tyrant has classically been identified as the one who turns on his own people, plundering them for his own private gain (to be sure, there are ideological tyrants, like Hitler, who oppress for the sake of some perverse higher end—but is that really what we’re dealing with?).  This is the problem with Tea Party-type cries of “tyranny.”  Where are the millions and billions that Obama is stealing from the American people to fill his own bank account?  Actually, he, and almost all other government officials, make considerably less than most private sector executives.  “Oh, well it’s not money, of course,” we’re told, “it’s the quest for power for power’s sake.”  Well maybe, in the case of some people.  But in general, most people who advocate universal healthcare do so on the basis of genuinely trying to serve the common good.  They may certainly be going about it in the wrong way, but that doesn’t make them tyrants.  

 

To show the ways in which Obamacare is flawed, we cannot point to some cut-and-dried Bible verse, or some blindingly obvious principle of justice.  We will have to resort to detailed arguments and analyses, to the much more difficult but more rewarding task of persuasion, to show the ways in which justice and the common good are undermined, rather than advanced.  And we will have to live with the fact that some Christians of good will may continue to disagree with us.  And wherever there is legitimate room for disagreement about what the common good requires, then we are not talking about an issue of conscience on which we are bound “to obey God rather than men.”  Many are loudly declaring that Christians need to stand up and resist this evil; otherwise, we are obeying men rather than God. The implication, of course, is that the tens of millions of Christians who disagree with them on this (within the US alone) are in rebellion against God.  Really?  Are we willing to go that far?    No, it seems quite clear to me that what we are differing about is a question of the best pursuit of natural goods within the civil kingdom, a matter in which Scripture and the natural law will inform us but may not lead us to any one certain conclusion.  That being the case, we are certainly free to continue to argue our case, but we are not free, it seems to me, to disobey our rulers.  “Our judgments we are bound in this case to suspend,” as Hooker would tell us on such a matter—obeying the law even as we critique it.  

O’Donovan, Law, and Scripture Lecture, Pt. 2

Leave a comment

(see Part I for context)

Now, let’s turn to consider in detail O’Donovan’s article, “Towards an Interpretation of Biblical Ethics.”  In this essay, O’Donovan seeks to address the question, “Do the commands of the Bible apply to us?”  He does so in two stages.  First, he asks the question of the Old Testament, and looks at the way that the Church has traditionally wrestled with the question of the applicability of Old Testament law.  Then, he turns to consider whether a similar strategy could bear fruit when it comes to the moral content of the New Testament.

As soon as he raises the question, though, O’Donovan calls out attention to a distinction: between “claim” and “authority.”  If I am walking down the street and someone calls out, “Stop where you are and don’t move a muscle,” I have first to decide whether the voice is addressing me, or someone else—this is the question of “claim”—and second, whether the voice is one of someone whom I am obliged to listen to (e.g., a police officer), which is the question of authority.  Of course, even a voice without authority may be one worth listening to if it knows something that I do not—perhaps a passerby has noticed that I am about to step into a sinkhole and is trying to warn me of my peril.  In any case, though, O’Donovan says that when it comes to Scripture, including the Old Testament, the Church has from earliest times insisted that it does speak with authority.  The question, then, is one of claim.  To address whether or not Old Testament law laid claim to us—spoke to us, or merely to ancient Israelites—the Church developed a threefold distinction. 

There were three categories: the moral, which do continue to claim us, for they are in fact universal, claiming all people at all times; the ceremonial, which do not, but served only for Israel until the coming of Christ, to whom they pointed—once Christ came, we must still learn from them theologically, but need not heed them as rules for action; finally, the judicial, which were intended only for the political entity of Israel, so they do not continue to claim us directly, although, inasmuch as our own political circumstances may have some parallels, we should continue to learn from them and occasionally apply them.   

O’Donovan raises two chief objections to this categorization: (1) It is anachronistic, because Israel did not see its commands this way; (2) all the commands were contextually time-bound, including the moral ones.  The first objection, he says, misunderstands the purpose of the distinction, which is to say how we can subsequently analyse the commands, not how they were originally understood.  The second will be addressed in what follows.

Now, O’Donovan does not propose to use this distinction in its classical form, although what he ends up with, after drawing his own distinctions, is something quite similar.   

 

O’Donovan proceeds to show us three different sorts of Old Testament commands that would not continue to claim us: 

  1. Individual commands
  2. Socially-regulative commands
  3. Theologically obsolete commands

Let us look briefly at each of these.

First, he says, some commands are addressed to individuals (e.g., God’s command to Abraham to leave his home); others are addressed universally.   Although it is quite obvious that God’s command to Abraham is addressed only to Abraham (though we may still learn by example), this distinction does run into some objections.

First, some might like to say that all Biblical commands, because all divine commands, because all morality, should be understood to be particular, not universal.  This is the contention of Karl Barth: God addresses each one of us in a unique, immediate summons, and we cannot tell in advance what form this summons will take.  To this, O’Donovan offers the rather commonsensical response that even Barth himself cannot resist talking of summaries that can capture what God summons every individual to (e.g., the Ten Commandments, with universal commands such as the prohibition of murder).  Second, we might ask whether some of God’s commands to Israel were intended, not in as particular a sense as Barth has in mind, but for Israel as a people, a political unit.  This leads us to O’Donovan’s second category—socially-regulative commands.

We have a basis within Scripture itself for the relativization of this category, says O’Donovan: Jesus’s response to the Deuteronomic divorce-law.  

Why can Jesus take this cavalier stance toward Moses?  We might say, “Because the original command was context-dependent.”  But of course, all past commands are context-dependent in some sense, and that does not make them irrelevant.  Context can either tell us that the command did not in fact mean what we might take it to mean, or it might tell us the purpose for which the command or permission was given.  For instance, my son might protest, “But Mommy told me last week that I could watch movies in the afternoon for up to two hours,”to which I could respond, “That was only because you were sick, and she knew you didn’t feel up to anything else.  Now you need to go play outside.”

Jesus approaches the Deuteronomic divorce-law like this.  A complete prohibition of divorce, while ideal, would not have been practically achievable for Israelite society as a whole, so Moses compromised.  This sort of compromise is intrinsic to politics.  

Clearly, then, there are many Old Testament laws of this sort—laws by which God’s people are directed toward the good, but which get only partway there, and do not fully describe the good.  This does not mean they are useless for us; indeed, the Christian legislator, confronted with the same imperfection in society, may want to imitate some of these compromises, as for instance Britain did eventually do on the subject of divorce.

Finally, there are Old Testament commands such as the duty of circumcision, which the Apostle Paul makes clear are no longer binding on the Christian.  How can this be?  He does not see it as a merely particular command addressed to Abraham.  Nor does he argue that it was dependent on Israel’s identity as a political society, and not applicable after the exile.  He argues on theological grounds that the purpose of this command, and many others like it, has been fulfilled in Christ and thus they are superseded.  The early Church, however, only felt at liberty to make this sort of argument for commands of an essentially ritual nature, concerned with the liturgical and purity codes of the Old Testament.

 

So, what about the New Testament?

Many theologians have not wanted to speak of moral law in connection with the New Testament at all.  Jesus, we are told, offers gospel—good news—a proclamation of God’s embrace of sinners.  He does not come to condemn us by telling us more things that we are meant to do, and which we will surely fail to do sufficiently.  Thus, theologians have wanted to try and translate these imperative statements into descriptive statements—from, “This is what you should do” to “This is the sort of behavior that characterizes my disciples.”  Now, while there is something to this, in that Jesus obviously intends us to extrapolate from some of his specific commands to a more general way of life that we are to follow, we cannot get around the fact that this is a way of life that he is calling for us to follow.  He does not merely describe it as some interesting hypothetical—“wouldn’t it be interesting if people lived like this?”—but is summoning us to make this way of life our own.  So, the New Testament does contain authoritative moral commands.  We are then back to the question of claim: to what extent can we take these commands to be addressed to us?  We cannot, certainly, claim that they are theologically obsolete, like the ceremonial law of the Old Testament; for that was brought to fulfilment by Christ, and there has been no new Christ.  We must then argue that these commands were somehow particular, not universal.  

It is here that O’Donovan turns to face the biggest criticism brought against the concept of Biblical ethics: the problem of historical distance—how can we take seriously for today commands given two thousand years ago?  

To this, O’Donovan says, “We are perfectly entitled to say, if we wish, that a New Testament norm does not claim us, but we are bound to do more than appeal to the lapse of time to prove our case: we must show how circumstances have changed to make the New Testament norm inapplicable to our own situation.”

Now, very often, there will be very significant changes in circumstance.  For instance, many will argue that Jesus’s prohibition of divorce was given in a society where divorce meant that a woman was left entirely on her own resources, liable to fall into poverty and be exploited.  Nowadays, structures are in place to ensure, usually, that this is not the case.  That being so, might we not say that the command no longer applies?  It is as if my son were to say that he can’t walk in the kitchen, because his Mommy told him not to yesterday.  I might point out to him that she only said that because she had just mopped the floor and didn’t want him to walk on it while it was wet; as it is no longer wet, he may walk.  Does this mean that many or most New Testament commands will not apply to us?   The question, O’Donovan thinks, is too simplistic.  Inasmuch as the relevant circumstances have in fact changed, the commands have changed.  However, the fundamental human condition has not changed in two thousand years.  A great many of our experiences, our temptations, our needs, remain basically the same as ever they were before, and to this extent, when the Bible says “do not become angry with your brother” or “do not lust after a woman in your heart” as we saw in last week’s readings, it speaks timelessly.  Even when conditions have changed, though, the command is not thereby devoid of moral content.  Perhaps the kitchen floor is now dry, but the bathroom has just been mopped today.  My son now knows that he is free to walk in the kitchen, but he may extrapolate from yesterday’s command to conclude that he ought now to avoid walking in the bathroom.  We must, says O’Donovan, first exegete the command—determine its original meaning and purpose—and then “re-specify” it to fit a new context.  

Finally, O’Donovan briefly considers the possibility of “socially-regulative” New Testament commands, like the Old Testament judicial law: commands given by church authorities to regulate the life of the community, but not necessarily intended to directly convey enduring moral principle.  There do appear to be some examples, and here the principle of application will be the same—a modern church leader is not bound to follow them, but he should give them serious respect and attention, and inasmuch as circumstances have not changed, he should consider making use of the original law.

 

What then have we learned?  O’Donovan has tried to pick apart the common claim: “A text thousands of years old cannot be a moral authority for us now, but only for its own particular time and place.”  He has sought to draw our attention to the careful distinctions whereby we can discern which aspects of Scriptural moral teaching are universal, and which are particular, and how even those that are particular are not without any instructive value or enduring relevance.  Commands addressed to particular individuals of course lay their claim only on those individuals.  Commands addressed to humans as a whole will often continue to lay their claim on the human race inasmuch as the fundamental human condition has not changed, although changes in society, culture, and technology may render them inapplicable (though not thereby un-instructive).  Perhaps most liable to change will be those commands intended for the people of God as a social or political unit, since the changing circumstances of time and place render many of these only distantly applicable.  Moreover, in these commands, we should be alive to the possibility that something less than a full moral ideal is being given. 

 

Having learned all this, then, what might someone committed to the moral authority of Scripture say about the examples at the beginning?   

Specific Old Testament laws against homosexuality do not bind, to be sure.  Even in the New Testament, though, homosexual conduct appears to be condemned.  Perhaps we could argue, however, that this was due to particular forms in which homosexuality appeared in the ancient world.  If so, then inasmuch as circumstances have changed, perhaps the prohibition no longer applies.  We would have to look carefully at the Scriptural texts to discover how particular, and how universal, the rationale was.  Finally, mindful that public legislation does not necessarily aim at perfect morality, but at what is reasonably achievable, we might say that even given a Biblical condemnation of homosexuality, no Christian legislator should try to apply this at a societal level.

Likewise, specific Old Testament laws about debt release do not continue to bind.  Perhaps we would view them as specifically cultic in purpose, and hence entirely obsolete after Christ.  Or else, we would view them as specimens of judicial law, intended to help provide justice in the Israelite polity, but not binding on other polities.  However, inasmuch as the command is predicated on the universal concern that the poor not be exploited because God demands mercy, we might well ask how this command continued to lay its claim on us today.  We must “re-specify” in our own circumstances and look for creative opportunities to end the cycle of debt-slavery and landlessness that afflicts so many in developing countries today. 

O’Donovan, Law, and Scripture Lecture, Pt. 1

Leave a comment

Last week, I had my first opportunity to lecture for undergraduates.  The course was “Christian Ethics: Sources”; the topic, “Law and Scripture”; the text, Oliver O’Donovan’s 1975 (!) lecture “Towards an Interpretation of Biblical Ethics” (published Tyndale Bulletin 27 (1976), pp. 58-69).  The lecture is very introductory, and has to cover a very wide range of issues in very cursory fashion, so don’t expect anything profound.  But as the role of Scripture as an authority for ethics (and particularly the role of Scriptural law) is such an important and contentious issue in today’s discussions, and so central to my own projects, hopefully this lecture may provide a useful orientation.  

So here is the first half (with all Q&A and references to Keynote slides expurgated):

 

Rick Santorum is one of many conservative American Christian politicians who will say that the Biblical prohibition on homosexuality must be reflected to some extent in our laws today: God has made clear that marriage must be between a man and a woman and that homosexuality is deviant behaviour, therefore, a Christian president must pass laws forbidding homosexual marriage and discouraging homosexual conduct.  

This might seem, here in Europe, a pretty hardline position, but someone could conceivably argue that it’s not hardline enough.  After all, if we are taking the law of Scripture as our standard, we might well observe that in the Old Testament, homosexuals were not merely forbidden to be married, but they were to be stoned.  Does that mean that a Christian president who wants to take the Bible seriously should actually campaign for homosexual execution?  And if not, then is he really taking the Bible seriously?  What is his ground for not taking such a hardline?  

Here are a few options:

  1. judicial law to be distinguished from moral law—OT judicial rules no longer binding on a Christian polity, which may enshrine the same principles in a different way.
  2. concept of a Christian polity has been done away with, since the political identity of the people of God was done away with in the New Testament
  3. Jesus has taught us a different way, one of overcoming evil through love, so while a Christian may oppose homosexuality, he will not do by means of law.
  4. Jesus’s gospel proclaims love and acceptance of all, so homosexuals are not to be excluded in any sense.  
  5. The Bible is a story of liberation for the oppressed, and this overarching hermeneutic must trump any particular passages; homosexuals are the oppressed in our day, whom the God of the exodus will liberate.

 

Now, someone might also say, “Regardless of what the Bible says on homosexuality, we should not take it seriously for ethics or law?”  Three common forms of this objection are:

  1. Regardless of what the Bible said, it cannot be taken seriously because it gives us only the morality of a group of Near Eastern people 2,000 years ago.
  2. Biblical teaching on this goes against other sources of ethical knowledge—e.g., science, or consensus.  
  3. The Bible legitimates all kins of patriarchy and oppression; it enshrines an ideology of power and injustice, and we are required to critique it.  

 

Now, just to prove that all this Biblical law stuff is not all negative, let me use another example for you.

Leading up to the year 2000, a large number of Christians began to campaign for a “Jubilee” at the turn of the millenium, a massive forgiveness of Third-World debt.  It was cruel and unjust that millions of desperately poor people in the Third World should continue to bear the burden of huge, unpayable debts racked up by dictators three decades ago, while the First World countries prospered at their expense.  Many involved in this campaign used an explicit Biblical rationale, hence the name “Jubilee.”  In particular, they draw on the “Year of Jubilee” law of Lev. 25 and the “Sabbath year” law of Deut. 15.

Now, here too, someone, on the basis of taking the Bible seriously, might suggest that the Jubilee campaigners were not going far enough.  After all, they were only cancelling debts (Deut. 15); they weren’t making sure that all real property was returned (Lev. 25) to these poor nations.  Someone else, though, could easily show that the whole project was misguided by attending carefully to the text.  If we’re using the Bible as rationale, do we need to make sure to follow seven-year and fifty-year cycles?  Do we need to insist that these Third World nations neither sow nor reap their fields in the year of this debt release?  Perhaps most seriously, what about in Deuteronomy, where it says that this only applies to fellow Israelites, not foreigners?  Doesn’t that mean that this whole idea of forgiving the debts of other countries is misguided?  Or does it mean we should only forgive the debts of other Christians?

 

One can readily see how some of the points we made earlier about homosexuality could be brought to bear on this discussion.  We could say that the transition from Old to New means that this Jubilee principle now should be widened to include everybody, not just those of our own nation, or we might say that as it was a law specifically for the political entity of Israel, which is gone, it shouldn’t be applied by any political entity today.  We might say that the principle is fulfilled in Christ, who declares his Jubilee mission in Luke 4: 

“The Spirit of the Lord is upon Me,
Because He has anointed Me
To preach the gospel to the poor;
He has sent Me to heal the brokenhearted,
To proclaim liberty to the captives
And recovery of sight to the blind,
To set at liberty those who are oppressed;
To proclaim the acceptable year of the Lord.”

Of course, this might mean that we are to try to apply this principle all the time, or else we could say that it had a spiritual application, which Christ has fulfilled, so it no longer applies. 

We could use other criteria, such as a hermeneutic of liberation, to say that regardless of the specific OT law is, Christians should apply the liberating message of Scripture as a whole to forgive Third World debt.  Or we might dismiss the ethical normativity of a 2,000-year-old text altogether and make our decision, for or against forgiving the debt, based on independent criteria of natural justice.  

These two examples, then, highlight for us the many obstacles confronting the attempt to adapt the law of Scripture for ethics and law today; but hopefully, they will also show that such an attempt is not pointless, and may teach us a great deal.

 

Now, let’s summarize some of the issues that have been raised here, and that are often objected when we talk about Biblical law as a foundation for morality. 

  1. To what extent does “law” imply a political embodiment of morality?  Does the political form of much Old Testament law make it un-generalizable?  
  2. The category of “law” treats morality as coming to us a set of general, universalized rules.  In fact, we might want to say, moral demands can only ever be addressed to the individual, summoning him to particular actions in a particular time and place in accord with his particular vocation.
  3. Alternatively, we could complain that Biblical law is too particular a category.  The concern here is the relation of natural law to biblical law—are Biblical commands binding “just because God said so” or because they point us toward what is already the good, which we ought already to be able to recognize as such?  Dr. Northcott has raised this issue in Tuesday’s lecture, and the quarrel between “natural law” and “divine command” theories in his previous lecture.  There’s no reason that an appeal to Scripture as the highest authority requires a rejection of natural law or the acceptance of a “divine command” theory.  However, certainly many forms of “biblicism” have tended in this direction.
  4. The problem of historical distance—can 2,000-3,000-year-old texts be meaningful for us today?  This claim can take the modernist form, which denigrates Scripture because it fails to rise to the level of “enlightened reason,” by which we can judge Scriptural morality and find it wanting. Or it can take the postmodernist form, which denies that any particular era’s claim to morality can be normative—every age is bound within its own assumptions and circumstances, and no past era can claim to provide the norm for any future era. 
  5. The ideological suspicion of Scripture, as providing the justification for oppressive regimes.  This is another version of the postmodern critique, insisting as it does that every community and culture has its own values, which are in fact power-plays on the part of some privileged elite, and that we can recognize these in Scripture and condemn them as immoral for their oppressive results
  6. The diversity of the Scriptural text: Old Testament vs. New.
  7. The diversity of the Scriptural text: a variety of contrasting voices within each Testament, some of which seem to call us toward moral actions that are condemned by others.

Most of these issues are addressed in some fashion in the O’Donovan article, and I will address them in some depth in this lecture.  Those which are not are addressed elsewhere in O’Donovan’s work and we will give brief attention to them as well in what follows.

 

First, though, an introduction to O’Donovan’s life and work may be helpful. 

O’Donovan was born in 1945 and did his Ph.D on St. Augustine under the great Augustine scholar Henry Chadwick at Oxford.  From 1972 until 1977 he taught at Wycliffe Hall, Oxford, and then until 1982 at Wycliffe College, Toronto. There he married Joan Lockwood O’Donovan, who has since become an eminent scholar in Christian political thought in her own right.  After that, he received the Regius Professorship of Moral Theology at Oxford, where he remained until 2006, at which point he came to take up the Professorship of Christian Ethics and Practical Theology here in Edinburgh.  He has written many books, though not as many as you might expect over such a long career—he prefers to pack several books’ worth of thought into each volume he publishes, and to take his time before bringing out another one.  His three most significant works are Resurrection and Moral Order (1986) which provides a general framework for Christian ethics; Desire of the Nations (1996), which provides the principles of a Christian political theology; and The Ways of Judgement (2005), which applies those principles in an account of how political power should be exercised.

Although he has been writing on ethics now for forty years, his work has been remarkably consistent across that period; indeed, you can recognize in this 1975 article features of his thought that he has continued to develop in his writings up to the present:

—evangelical Anglican: O’Donovan identifies with the historic Reformational commitments of the Anglican Church, and thus his thought is grounded in the authority of Scripture, and more importantly, in the revelation of Jesus Christ attested in Scripture.  All of Christian ethics must be a response to the authority of Christ, and it must always be ready to return to its starting point in Scripture.  For this reason, O’Donovan gives a central focus to Scripture and its exegesis throughout his work, which is in fact quite a rare trait among Christian ethicists of his generation.

—historically grounded: O’Donovan is, much more than most modern ethicists, very interested in the history of Christian ethics; this is particularly striking in his focused attention on the history of Christian political thought, which is generally neglected among modern ethicists who think the principles of a “Christendom” era simply irrelevant to today’s pluralist context.

—an apologist for Christendom: Although that is an oversimplification, and one with which he wouldn’t be comfortable, O’Donovan does believe both in the possibility and the importance of a political order being self-consciously Christian, and has opposed the popular Constantinian accounts (like that of Yoder) which see Christendom as a corruption of the Church as it tried to seize power.

—keen sense of history: Related to this, O’Donovan is, in good Anglican fashion, very attuned to the complex, shifting nature of historical circumstances which require the ethicist to be always provisional in his judgments and prescriptions.  However, he is resolute in his opposition to “historicism,” which is the idea that moral norms as such must be historically contingent. 

—importance of creation: O’Donovan opposes historicism by appeal to the objective ground of creation, of the ordered structure of the world which God has established, and the ordered shape of the moral life which follows from this.  In this respect, he is in large measure within the natural law tradition, which emphasises that morality finds its ground not in arbitrary divine commands, but in the structure of the world which God has created.  However, he balances this Thomistic orientation with a dose of Barthianism, which insists on our inability to rightly grasp the order of creation apart from its revelation in Christ, who is the centre to which it all points and from which we perceive its meaning.

 

Having highlighted these issues, we are now in a good position to revisit some of the problematic questions facing the use of Scripture, and especially Scripture as law, as the standard for ethics today.  How might O’Donovan address the seven issues we identified above?

  1. The political implications of the concept of law.  O’Donovan certainly believes that not merely individuals, but politics, must be responsive to the law of God, but he is certainly careful to distinguish the way that Scripture speaks to both of these dimensions today, as well as distinguishing the way these two dimensions are addressed in Scripture itself.  Some biblical law is political law for the society of Israel, whereas some is moral law of enduring significance.  The article we are looking at will deal with this in much more depth.
  2. “Law” addresses itself to all without distinction, whereas morality must address individuals in their particularity.  O’Donovan addresses this objection to in the article, and we will look at it in more detail in a bit.
  3. The relation of natural law to biblical law.  O’Donovan does not address this in this article, but elsewhere in his work, he makes clear that there is a natural law, to which biblical law draws our attention, rather than replacing it.  But we are too prone to err on our own, so natural law is not sufficient; plus, natural law cannot reveal to us Christ or the  and the particular shape that he confers on morality.  
  4. The problem of historical distance.  O’Donovan will address this directly in the article, so we will wait and return to this one as well.  
  5. Scripture as legitimating oppression.  O’Donovan does not address this directly in this article, but we may say a thing or two about how he would reply.  The accusation, of course, in protesting against injustice, assumes some standard of justice whereby Scripture can be called to account: there is a moral authority that can be used to judge Scripture.  But for the Christian, the highest moral authority can only be Christ.  Some of the attack on Scripture as ideology, then, proceeds from a value system at war with the Christian value-system, and hence cannot be accepted.  Some are legitimate complaints, but a close and sympathetic reading of the Biblical texts shoes that they in fact misreading Scripture in making their criticisms.  Finally, some would be legitimate complaints if portions of Scripture were to be read in isolation from one another, but by taking Christ as the centre, who makes sense of the whole, we can recognize the moral problems with these portions of Scripture, without  thereby attacking Scripture as a whole.
  6. The diversity of the Scriptural text: Old Testament vs. New.  Again, if we accept Christ as the centre, the different emphases and trajectories between the two Testaments can be in large part resolved narratively.  There will still be tensions and difficulties, but not necessarily irreconcilable ones.  The article we are looking at will address some key questions regarding the relationship of Old and New Testaments, so we will return to this.
  7. The diversity of the Scriptural text—contrasting voices within each Testament.  O’Donovan does not address this in the article, but some of the points he makes there could help us here.  If we are attentive to the particular contexts in which various moral commands are given, and the particular justifications for them, and if we look at these within the whole narrative of Scripture, we will find that the tensions which we thought were so irresolvable are in fact usually in harmony.  

(to be continued…)

License to Kill? The Morality and Legality of Self-Defence

7 Comments

In a recent exchange on Facebook, I tried to explore the legal and ethical questions raised by a recent shooting in Oklahoma, and, having failed to get a debate going there, thought I would explore them further here.  A young teen mother, recently widowed, and home alone with her infant son, was besieged in her home by two men, one armed with a 12-inch hunting knife, demanding entry.  The woman grabbed her pistol and 12-gauge shotgun (what do you expect? it’s Oklahoma!), retreated to her bedroom with her baby, called 911, and aimed both guns at the front door.  She asked the 911 operator if it was fine for her to shoot the intruders if they entered.  The operator replied more or less, “I won’t tell you should, but I won’t tell you shouldn’t.”  As soon as the man with the knife broke down the door, she fired the shotgun and killed him instantly; the other man, on the other side of the house, fled as soon as he heard the shots fired.  The woman was not prosecuted.   

In the media, this was reported with a clear tone of approbation, hailing the gritty heroism of the young mom, and the woman, without any hesitation or apparent remorse, declared that she would do the same thing again if need be.  My friend on Facebook (whose response was fairly typical of most readers) linked to the story as a case of why gun laws and self-defence laws in the US were so great; in France or England, he said, the woman would be prosecuted (for the record, this is not quite true: both French and English law permit the use of reasonable and proportionate force in self-defence and defence of one’s home; while gun laws in those countries would certainly limit the range of acceptable weapons that the young woman could have had in her home, she would not have been left without viable options.  And, for the record, there is no indication that these strict gun laws make society more dangerous, as my friend implied; on the contrary, murder rates in the UK and France are 1/4 of the US murder rate).  Others joined into the discussion more or less to vaunt about how this was a fine example of the American way—”if you set foot in my house, I’ll shoot ya!”

But is this a cut-and-dried case of legitimate self-defence?  Not quite.  Of course, before going any further, I should say that my point here is not to impugn the actions of the young mother.  One could hardly have asked her to have been less trigger-happy in such a terrifying situation, and no equitable legal authority, it seems to me, should prosecute her.  Nonetheless, there is a difference between the right thing to do and what is understandable and forgivable, and the gloating response of most readers of the story suggests a disturbing lack of ethical sensibility. So I would like to use this as an opportunity to reflect on what law and ethics ought to say about such cases in general, not to cast any blame in the woman in this particular case (especially as I know far too little about the details of the case to be certain if the conditions discussed below were met or not).

 

There are, it seems to me, potentially four different levels at which to consider this question—the ethical ideal, the ethical permissibility, the legal permissibility, and the legal enforcement (though these will not always be different).  The first concerns the question: what is the morally best response, from a Christian perspective at any rate?  I confess that I am still not clear on the answer to this question.  Most of the Christian ethical tradition has always considered killing in self-defense to be perfectly appropriate, but I have never been entirely comfortable with this conclusion, or with the arguments usually used to reach it; certainly, the New Testament and the earliest Christian tradition do not seem to share this perspective.  Of course, it might be argued that the young woman was killing in defence of another—her infant son—which all but pacifists would endorse as the right thing to do, but this is perhaps not a strictly accurate description, given the apparent intentions of the intruders (However, if it turns out it was a matter of defending her son, not herself, that would not change any of the principles below, I don’t think).  On the whole, my (unsettled) view is that to kill in self-defence is not morally ideal, but it may well be morally permissible, which is to say it can be done without sin.  

However, for it to be an un-sinful action, certain conditions would have to be met, among which the following four appear to me particularly salient: (1) there is strong indication that the assailant intends to do potentially mortal harm to you; (2) there is no escape route; (3) the assailant is warned of his peril, and given every opportunity to reconsider and retreat; (4) the intention is to simply to stop the assailant, not to kill him unless that is absolutely necessary (e.g., if you are pinned down with no escape route and he is armed with a gun, in which case merely disabling him might not neutralize the threat).  I do not know all the details of this situation, but it appears that only the first two conditions were met—there was good reason to believe the assailants intended to attack her, not merely her property, and because there were two of them, one on each side of the small house, there was no escape route.  However, it does not appear that the third condition was met, since (a) the assailants were armed only with one knife between them, and would have been rash indeed to continue the attack if they knew they were up against a pistol and 12-gauge shotgun, (b) the second assailant fled as soon as he heard the sound of gunfire, suggesting that this was not something they were prepared to face, and (c) the first assailant was shot as soon as he broke down the front door.  Nor does it appear that the fourth condition was met, given that (a) he seems to have been killed immediately, and (b) the woman implied in subsequent interviews that she had fully intended to kill him.

Now, what should the law say?  Well, my first instinct is to say that the law ought to approximate the moral permissibility as much as is possible.  This will not always be the case (there are certainly a number of things that we would say are morally impermissible, which the law ought not to attempt to regulate), but when we are talking about matters of life and death, the law should be concerned to draw the line right at the point of moral impermissibility.  Now, I say “as much as is possible,” because many of the factors that might make a given action morally unacceptable may be beyond the reach of the law to accurately determine.  In this case, however, I think we would want to say that a good law would for the use of reasonable and proportionate force in self-defence—which is to say that, to the extent that one’s person genuinely was (or genuinely appeared to be) threatened, and to the extent that force was one’s only (or only reliable) recourse, to that extent, force is justified.  So, if an intruder is unarmed (and otherwise unlikely to be capable of inflicting mortal harm), deadly force would not be justified; and if an assailant can be disabled or otherwise eluded without deadly force, deadly force would not be justified.  Now, as a principle, the standard of reasonable or proportionate force may be difficult to apply in particular circumstances, but it seems a good legal principle, more ethical at any rate than the so-called “Castle Doctrine,” operative in Oklahoma and most US states, which allows a homeowner to employ deadly force against any intruder believed to have unlawful intent, with no duty to take advantage of an opportunity for retreat. 

As it turns out, the biblical guidance we have on the subject appears to bear out my first instinct here (always nice when that happens, eh?).  In the Old Testament law, which, while not always functioning as a good guide to ethical ideals, often serves as a good indicator of what should be considered morally permissible, or at any rate, worth socially tolerating, we have a case law that bears directly on this in Exodus 22:1-3.  This case law stipulates that if a thief is killed breaking into a house at night, the killer will not be held guilty before the law; however, if he is killed in the day, it will be homicide.  The Jubilee Foundation has an excellent discussion of the intention and application of this law, and how it might apply to contemporary issues of self-defence.  The gist, however, appears to be that at night (before artificial lighting), a homeowner will probably not know the intention or the threat posed by an intruder, and will probably not be in a position to seek assistance if he or his family is mortally threatened.  Therefore, he is permitted to kill first, ask questions later.  However, if it is daylight, then he is in a better position to assess the threat, to escape, or to seek assistance, and may only kill in direct self-defence, not merely  because an intruder has broken into his home.  Now, of course the application of this law will be somewhat different in a modern setting, when we have firearms, 911, and electric lights.  The general principle, however, seems to be that (1) deadly force is only justified in defence of life, or when there is good reason to believe that life is being threatened, and no time to determine clearly if it is or isn’t; (2) deadly force is not justified when mere property is being threatened, or when one may ensure one’s safety without deadly force; (3) when in doubt, the law should give the benefit of the doubt to the person attacked. 

This last point leads to the last question, that of legal enforcement.  In the Old Testament law just mentioned, law-as-written and law-as-enforced are elided, since what we have here is a case law, and a system in which justice simply does not exist outside of its concrete administration by local judges.  For us today, the concrete administration of justice is separated from the creation of legislation, and it is in the administration of justice that the important principle of “equity” comes in—the idea that it is not always necessary or helpful to impose the full rigour of the law, given the circumstances.  This is important in the Oklahoma case before us.  To my mind, the Oklahoma law (which follows the Castle Doctrine) is unjust.  The young woman’s actions (killing as first resort, not last resort) were also unjust.  However, no equitable judge should punish her for them.  She was 18, had been widowed the previous week, had a infant child, and was alone and terrified at night.  Did she fail to warn the intruders that she had a gun and was prepared to shoot simply because she was scared, or because she wanted to kill them?  Perhaps we will never know.  But she should be given the benefit of the doubt, and considered to have acted in what seemed to her at the time the only way to defend herself.

 

Nonetheless, excusing her action is not the same as praising it, glorying in it, or using it as proof that every citizen should be armed and empowered with sweeping rights to kill in defence of self and property.