Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Law, Politics, and Society: A Special Challenge for Christians


James W. Skillen

10-13-2014


By James W. Skillen

October 13, 2014

 

In his important book on religion and American politics, The Naked Public Square (Eerdmans, 1984), Richard John Neuhaus saves for his last chapter a discussion of law. In that chapter he tries to give an account of the special, authoritative character of law. When we speak of “the law,” he says, “we imply that it is something distinct from ordinary experience. It has a normative status by which we order, remedy, and judge the interactions that make up what we call ‘life’” (p.249).

This “high” view of law is connected with religion, according to Neuhaus, because we experience law as a normative, binding power. The word “find” or “bound” comes from the same root as the word “religion,” namely, religare (p.250). At the same time, of course, law does not stand outside of reality. It is part of our experience, part of our moral sentiments, part of our sense of right and wrong. Neuhaus does not want to elevate the idea of law so far above experience that it is no longer connected with this world. “The legitimacy of law in a democratic society depends upon the popular recognition of the connections between law and what people think life is and ought to be” (p.258).

Part of the crisis in our society, says Neuhaus, is that Americans have been trying to disconnect the meaning of life from a transcendent source. The crisis will only deepen “unless a transcendent moral purpose is democratically asserted by which the state can be brought under critical judgment, unless it is made clear once again that the state is not the source but the servant of the law” (p.259).

Three important aspects of Neuhaus’ argument require discussion among Christians. First, he is correct that the binding authority of God that lies behind the real function of law will go unheeded in a society where people think that they generate laws from out of their own wills, from out of their own autonomous desires. If laws are treated as not subject to a transcentdent law, they will be regarded merely as an expression of the human power to make laws--a power held by a majority in one place, by a small revolutionary band in another place, or by a dictator in a third place.

Secondly, however, it seems to me that Neuhaus provides us with insufficient help to overcome the legal crisis of our day. While trying to regain an elevated or high view of law, he does so by pitting law over against the state. In the earlier sections of his book as well as in his last chapter, he displays what he admits is a rather “low” view of politics and government. Politics, he says, is the art of “getting, keeping, and exercising” power (p.30). When discussing politics and government, Neuhaus seldom mentions justice, fairness, or divine normativity. Neuhaus does not offer an integral, normative conception of the relation of law, politics, and government.

“Law” and “the state,” I would argue, are not so easily separated. Public laws, for example, are made and adjudicated by human beings who hold legislative and judicial offices. There are no public laws apart from such offices, and there is not state apart from the struggle to make and enforce laws. If we are genuinely to overcome a low view of law, then we must overcome a low view of politics and government as well. A society that wants to regain a high view of law by recognizing divine standards that bind us in our lawmaking responsibility must be a society that develops a high view of public offices --- a biblical view of how God binds and holds accountable the office holders who make and adjudicate the laws. If politics is nothing but a power struggle, laws can never be more than a product of that power struggle. Neuhaus and the rest of us need a new (or perhaps old) and more integral understanding of the state, government, and politics.

Finally, in the third place, a high view of law must be brought down to earth to deal with the full reality of our experience. Law is not simply a generalized norm or expression of moral sentiment and religious experience. Law is a dimension of all the different institutions and associations in our life. Although public laws grow from and are closely connected with the state and judicial offices, there are many other kinds of law that are equally as important to us. Parents lay down law in their homes; teachers impose rules in the classroom; church authorities establish ecclesiastical laws; and clubs hospitals, voluntary associations, and countless other social organizations make laws appropriate for themselves.

Law, in other words, is not a transcendent moral abstraction that hovers above reality, nor is it the exclusive domain of public authorities. God’s binding standards for our life on earth “fit” or “belong to” the full reality that he created --- the reality of families and schools, business enterprises and voluntary associations, churches and states. It is not law in the abstract that connects our conscience with God; it is our full creaturely reality that is bound by God’s ordinances.

Neuhaus would be the first to recognize that political life does not exhaust our social existence; he points to numerous nonpolitical “mediating structures” that are central to human life in society. To grasp the importance of this insight, however, we must seek not only a high view of politics and law, but an equally high view of the rest of life. All of life, not only law, is dependent on and revelatory of God. And the law is not a single, undifferentiated realm of transcendent meaning; it is an aspect of multiple institutions and associations in our life. Many kinds of private laws exist alongside public laws.

The fascinating and insightful discussion of religion and democracy that Neuhaus provides should provoke us to further thought and action as lawyers, government officials, and active citizens. Christians need to offer to America a high view of law, a high view of politics and governments, and a high view of human society in every institutional and associational form it takes. This can only be done if we are willing to look for all the ways in which God binds us with his commandments in the actual diversity and complexity of earthly life.

 

This article was originally published in 1989 for the Christian Legal Society. It has been republished as a collection of pieces in the Journal of Christian Legal Thought (2 J. Christian L. Thought, at 12 (Fall 2012))

 

- James W. Skillen is the former executive director and president of the Center for Public Justice. He is the author of The Good of Politics: A Biblical, Historical, and Contemporary Introduction (2014); In Pursuit of Justice: Christian-Democratic Explorations (2004); and With or Against the World? America's Role Among the Nations (2005). 

 



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”