The Crisis of Civil Law (eBook)

INTRODUCTION

It is not difficult to see that law is in crisis in the West.

In 2019, an English judge said that the belief that sex is unchangeable is a belief that is “not worthy of respect in a democratic society” and is “incompatible with the human rights of others.”1 In the same year, a Canadian court held that referring to a child by the child’s birth name and sex and attempting to persuade the child to abandon treatment for gender dysphoria would be considered family violence.2 The child’s father was jailed for speaking publicly about the case.

During the Covid-19 pandemic, a woman from northern New South Wales, Australia, who was pregnant with twins needed urgent medical attention. She was told by government officials that if she entered the neighboring state of Queensland for medical treatment, she would have to be quarantined for fourteen days under border rules. She decided to fly to a hospital in Sydney to avoid crossing the border, resulting in a delay of sixteen hours. Tragically, one of the babies died—while she was obeying a law that was intended to protect life and health.3

Those hoping for greater clarity within the church would be disappointed. The global Covid-19 pandemic exposed fault lines among Christians about how to think about civil law. In response to the pandemic, governments across the world locked down entire communities for months on end, closing churches, schools, and businesses, with harsh penalties for noncompliance.

Christians responded to these laws in radically different ways. In Canada, church leaders vocally opposed government restrictions on gathering for worship, citing Christ’s lordship over his church, and some were jailed for their stance.4 In Australia, many churches enthusiastically implemented government restrictions by (among many other things) requiring those who wished to serve in any capacity to get vaccinated and dividing their congregations according to vaccination status, citing the mandate to obey government in Romans 13.

There is a crisis within Western legal systems and little unity within the church. Underlying the crisis in the Western view of law is a rejection of any sense of higher law or moral order to which lawmakers are subject. Law is simply whatever the lawmaker declares to be law. More than this, it is widely held that God’s moral order is actually harmful and needs to be suppressed. What are Christians to make of this? How can we respond to the crisis in law and confusion among Christians about what law is?

Prior to the twentieth century, there was much more agreement among Christians about questions of law. While of course there were differences, writers within the Roman Catholic, Lutheran, and Reformed traditions all held similar principles about law.5 I suggest that there is a need to recover the historic understanding of the Christian tradition regarding law, and those principles can provide valuable guidance in helping us to think well about law today.

This book aims to help Christians to think about civil law. It sets out key principles to guide Christians in their thinking, drawing on the catholic teaching of the Christian tradition regarding law. It aims to answer the following questions: What does the Bible have to say about law? What is the relationship between Scripture and civil law? How should lawmakers go about making law? Should Christians obey all laws, even unjust ones?

CHALLENGES IN THINKING ABOUT LAW

Law is a difficult subject to think well about. The first reason for this is that law often conflicts with Christian values. Law tends to follow societal trends, although at a fairly leisurely distance, and a change of law can be the outcome of a process of societal change in attitudes toward things like sexuality, human rights, or the sanctity of life. Law functions as a kind of barometer of community views and can be the focal point for Christian concerns with the direction of society.

More than this, law is increasingly being used as an instrument to suppress Christianity and Christian views. Western society has been deeply influenced by Christianity, reflected in such principles as the idea of a higher law and the presumption of innocence. But now the sword of the state is increasingly being turned against Christianity, especially for what are now considered to be intolerant and bigoted attitudes in matters of sexuality and gender. In many ways, law is no friend to the church today. Given this, it is perhaps unsurprising that Christians often have a suspicious attitude toward governments and law.

A common strategy adopted in response to feeling threatened by law is to seek to influence the political process to enshrine Christian values in law, whether this be through lobbying politicians or getting the right candidates elected. Now, of course, a Christian voice in the public square can be extremely valuable. The difficulty with this approach, however, is that it does not challenge the dominant narrative about law but simply subsumes Christians within it. While Christians may be successful from time to time in enshrining “Christian values” in various pieces of legislation, this approach does not challenge the fact that law is often seen as little more than the product of the political process, and “Christian values” are simply one of many potential sources of influence on the law. The long-term fruit of such an approach is an increasingly bitter polarization of warring political camps who do battle to have their values recognized in law.

Second, Christians rightly have a high view of the Bible and are accustomed to resolving disputes by appealing to Scripture. Some Christians argue that there is a distinctive Christian viewpoint on issues of law and that Christians should be having a transformative effect on the culture. Christians often look to Scripture for an authoritative, objective standard against which to measure human laws, and, as a result, Scripture is called upon to resolve everything from gun rights to refugee laws to how to respond to a pandemic.

While seeking to be faithful to Scripture is of course a good thing, there are clear limitations to such an approach to law. While the Bible contains many laws, it is not intended to be an exhaustive legal code and does not contain all the answers to the questions we might have about law. It would be silly, for instance, to suggest there is a distinctly Christian perspective regarding which side of the road we should drive on. And we hardly need the Bible to tell us that there should be a law requiring all road users to drive on the same side of the road.

Thus, while there is clearly a distinctly Christian viewpoint on many issues, especially questions of life and sexuality, on many other questions it is much harder to discern a distinctly Christian viewpoint. It is not clear, for example, that there is only one scriptural answer to the question of whether company directors should owe fiduciary duties to their shareholders, or only to the company. Or what non-statutory powers the executive ought to possess. Or whether non-parties to a contract ought to be able to enforce that contract. Or what disclosure obligations should apply when companies make a public offer of securities.

In this way, the notion that we can look to Scripture’s commands to resolve our legal crisis eventually comes up short in the face of reality. And yet Christians have not been provided with any other tools for thinking about law. In practice, transformational approaches tend to lead to a deflated withdrawal in the face of most questions of law because we lack the categories to think about law in terms other than scriptural faithfulness.

A third challenge to thinking about law well is the complexity of biblical law and its remoteness from our own context. Some parts of scriptural law can make us decidedly uncomfortable, being far removed from our modern-day values. Exodus 21:7 appears to condone—or at least it does not clearly prohibit—the practice of fathers treating their daughters as disposable property, to be bought and sold for profit. Deuteronomy 25 states that “when men fight with one another and the wife of the one draws near to rescue her husband from the hand of him who is beating him and puts out her hand and seizes him by the private parts, then you shall cut off her hand. Your eye shall have no pity” (Deut 25:11–12). To say the least, it is difficult to know what to make of laws such as these.

A fourth challenge is the tribalism of Christians themselves, given that many Christians today identify strongly with one or the other side of the right-left divide in politics. Ideally, Christians ought to be disposed to accept truth wherever it may be found, but in practice that is often not the case. Some perspectives on law are associated with a particular side of politics, so even though they may be true, that association can hinder their acceptance, especially if we see those on the other side of the divide as our enemies.

However, the Bible does not neatly fall into either the left or right wing of politics. Scripture shows great concern for the weak and underprivileged (a typical preoccupation of the left) and is also the source of many “traditional values” (a typical preoccupation of the right). While it is true that both left and right express something of the truth, neither side is a full statement of the truth, and both need correcting at points. Reading Scripture through ideological blinkers can blind us to the full force and import of the scriptural teaching about law.

A fifth challenge is that of...