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The positive, often referred to as the secular, law is one of the most influential and decisive elements in our society. Its extent is mind boggling. It touches on every role in which we function—individually and collectively. Every facet of our complex society is involved with the law from cradle to grave, womb to tomb: education, welfare, business, labor, family, church, etc. The scope of the law has undergone almost geometric expansion.
It is not an overstatement to say that the law affects everything. It cannot leave our lives untouched. It has to do with the way we live and the way we are as a people.
Titre original
2006 Issue 4 - Christian Counseling and the Law - Counsel of Chalcedon
The positive, often referred to as the secular, law is one of the most influential and decisive elements in our society. Its extent is mind boggling. It touches on every role in which we function—individually and collectively. Every facet of our complex society is involved with the law from cradle to grave, womb to tomb: education, welfare, business, labor, family, church, etc. The scope of the law has undergone almost geometric expansion.
It is not an overstatement to say that the law affects everything. It cannot leave our lives untouched. It has to do with the way we live and the way we are as a people.
The positive, often referred to as the secular, law is one of the most influential and decisive elements in our society. Its extent is mind boggling. It touches on every role in which we function—individually and collectively. Every facet of our complex society is involved with the law from cradle to grave, womb to tomb: education, welfare, business, labor, family, church, etc. The scope of the law has undergone almost geometric expansion.
It is not an overstatement to say that the law affects everything. It cannot leave our lives untouched. It has to do with the way we live and the way we are as a people.
The positive, often referred to as the secular, law is one of
the most inuential and decisive elements in our society.
Its extent is mind boggling. It touches on every role in which we functionindividually and collec tively. Every facet of our complex society is involved with the law from cradle to grave, womb to tomb: education, welfare, business, labor, family, church, etc. The scope of the law has undergone almost geometric expansion. It is not an overstatement to say that the law affects everything. It cannot leave our lives untouched. It has to do with the way we live and the way we are as a people. 1. When you nd yourself obeying a red light in the middle of the night even though there is no one to observe and clearly no trafc to interfere with you, the well-spring of your action isthe law. 2. It is the highest plaudit to label someone a law- abiding citizen. It means much more than simply that he obeys the law. It means he is a goodeven righteous man in the eyes of his peers. 3. J ustice for all is the sought end product of the law. J urisprudence is the study of justice, of what is right, what is just, the science or the philosophy of the law. In jurisprudence justice is dened as the constant and perpetual disposition to render every man his due. It is a simple observation that the reaping of what one sows, ones due, has much to do with the forming of the nature of society. 4. The Bible teaches that man is infected with a disease called sin. One of the symptoms of this disease is a propensity to act in ones own interest rather than in the interest of society as a whole, or even ones neighbors interest. In mans natural state this symptom tends to generate disorder in society. Without legal restraints the lawthe fear of imposition of both economic and penal punishmentsmen would trample on the rights of others. The law administered by government is to meet this need. There is an absolute, concrete need for order, for peace, for balance, for justice in society. The eminent English jurist, Lord Blackstone, dened law as a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong. This is the point: Because law governs man and society, because it establishes and declares the meaning of justice and righteousness (what is right and wrong in our society and with what due) law is inescapably religious, in that it establishes in practical fashion the ultimate concerns functional morals of a culture. Law is in every culture religious in origin. It has been said on this evidence: Nothing more clearly reveals in fact the religious change in a society than a legal revolution. A legal revolution has been under way in this country for the past 40 years. This legal revolution was initiated in high placesthe Supreme Court of the United Statesand it has been for some time expanding into the hinterlands in the form of overt and subtle changes in state and in federal law bearing most directly on the daily lives of Americans. This revolution is in the form of a change in the philosophy of the law, jurisprudence. Now, the public in general, and the bar in particular, both have a made in America attitude about our system of justiceIt may not be perfect, but by George I dont see any better, etc. No one is offended if any one of the systems component parts is criticized or attacked; indeed they are under constant siege by the bar, the courts and the public. But if you go to the heartits philosophy, its blood, if one CHRISTIAN COUNSELING AND THE LAW Jerome Strickland Reprinted by permission from the J ournal of Pastoral Practice J ay E. Adams, Editor-in-Chief Vol. V, No. 4 1982 the COUNSEL of CHALCEDON 20 based, whatever the defects that had been imposed by Pharisaical inuence. Eventually, under J ustinian I, there was a radical Christianization of Roman law that continued under the Christian emperors. In the Middle Ages towns and cities developed in Europe, principally as a result of merchants coming together into communities, and these commercial enclaves were largely J ewish. Thus commercial law had its origin in J ewish communities with their commitment to biblically based law. Alfred the Great, in ninth-century England, had these laws placed on the books: If an ox gore a man or a woman, so that they die, let it be stoned, and let not its esh be eaten. The owner shall not be liable if the ox were wont to push its horns for two or three days before and he knew it not; but if he knew it and would not shut it in, and it then shall have slain a man or a woman, let it be stoned; and let the master be slain, or the person killed be paid for, as the witan shall decree to be right. And as another example: If a man strike out anothers tooth in front of his head, let him make bot [compensation] for it with 8 shillings; if it be the canine tooth, let 4 shillings be paid as bot. A mans grinder is worth 15 shillings. If the shooting nger be struck off, the bot [compensation] is 15 shillings. For its nail, it is 4 shillings. Im sure its obvious to you that these are simply and clearly biblical laws adapted to the times (Exod. 21:28-29, 33-34). It is just as clear and obvious to me as a lawyer, and perhaps even to you, that the substance and spirit of these two laws have their exact counterpart in American tort law, and that the substance is the concepts oifault and corresponding personal responsibility or liability demonstrated in restitution for the damage done. The call of the Protestant Reformation was What saith the Scriptures? and this concept was by no means ignored in the legal systems developing during the Reformation. Wycliff wrote, This Bible is for the government of the people, by the people and for the people. Another source by means of which biblical law exercised a very major inuence on Western civilization and Western law has been through the common law. The common law is that body of law and juristic theory, which originated, developed and was formulated in England. It is distinguished from law created by legislature or congress or parliamentit consists of principles and rules of action dealing with government and security of person and questions the American law systems general health that is almost un-American. Our made in America attitude is compounded by this factor: It is common to think of our own time as standing at the apex of civilization, from which the deciencies of the preceding ages may be patronizingly viewed in the light of what is assumed to be progress. We tend to think our progress has been a geometric expansion. The result of these attitudes is that by and large the public and the great majority of the bar never really question or examine the heart of the proposition, but go merrily on their way oblivious to the what and why of what has and is happening, assuming that the American legal system, our law system, is the best, and that great progress since its creation has been made improving it. Its deciencies are thought to be: a. It has too many lawyers in it, behind it, under it. Kill off about half or more and everything would be O.K. Its deciencies are thought to be among those somewhat more perceptive and less personal. b. It is antiquated and needs dressing up around the edges, principally in the area of efciency, overbreadth, sheer volume and cost/avail ability. The basic idea is that justice is there. c. The general attitude is that nothing is really wrong with the law that the legislature at the next session cant x or that the Supreme Court wont get around to remedying, and its making progress. All these notions are far off the mark; these are symptoms; there is too much law, the system is cumbersome and needs to be made more efcient, the cost of justice is high, too high, and its availability needs to be broadened there even may be too many lawyers. All these things are true, but the notion that they represent the real defects in the system is wrongit is the heart and soul that need examinationthat need change. The problem is marrow deepas I say, there has been a legal revolution grounded upon a basic change in legal philosophyand people (including Christians) are generally indifferent or unaware of what has happened. Some background is in order, and forgive me if I generalize and oversimplify; I pray that I wont warp anything in the process. When Christianity came into being as such, there were two highly de veloped legal systems in placethe Hebrew and the Roman. Of course, the Hebrew system was biblically the COUNSEL of CHALCEDON Christian Counseling and the Law 21 property which derive their authority from usages and customs of antiquity originally and then and now from the judgments and decrees of courts. In a simple sense, it is strictly case law precedentsa body of law formulated by courts deciding cases on a case-by-case basis that then become precedent. J ohn Warwick Montgomery, in his treatise, The Law Above the Law, says: Much of the common law of England was founded upon Mosaic law. Primitive Saxon codes reenacted certain precepts taken from the Holy Scripture and King Alfred in his Doom Book adopted the Ten Com mandments . . . together with the Golden Rule in the negative form as a foundation of the early laws of England. Eugene Rosenstadt-Hussy, in his book Out of the Revolution (the auto biography of Western man), has stated that common law was for all practical purposes Christian law. George W. Keeton, in the Norman Conquest and the Common Law, said, The judges of earlier times spoke with a certainty which was derived from their conviction that the common law was an expression of Christian doctrine, which none challenged. The common law of England was brought full bloom to the colonies and was adopted by the States on the formation of the Union as their law. The short-lived Puritan experience, in which the Bible formed the only basis for their law codes, had its positive effect on the substance of American common and statutory law: New England had begun its existence as a law order; its adoption of biblical law was both a return to Scripture and a return to Europes past. Now let me make one thing crystal clear. I dont, by pointing out that Western law, English and American law, was basically biblical in origin and thus in foundation mean to suggest that it was by any means exclusively or purely biblical, because there were variations on this biblical theme, and there was a laxity in faithfulness to it. There were obviously abrogations, misunderstandings and misapplications, but, nevertheless, the basic founda- tion of the law and law system of Western civilization and of the American colonies and especially of the United States was biblical at the very least in its underlying moral absolutes and for America in the laws view of man and his government. Leave this for a moment. Lets move from the founding of this nation back to the Middle Ages, because at some point back in the Middle Ages there grew up a theory, a philosophy of law, that was more or less molded from the observance of existing circumstances and conditions. This philosophy was not conceived and then implemented, but rather was gleaned from the evidence available. It was the result of a search for a rationale for the secular system of laws. This theory was called the Natural Law Theory. The essence of this theory is that absolute ethical standards and fundamental legal rights are implanted in the human situation and that these can be discovered as a common element in the moral codes and positive legislation of all civilized nations. Cicero articulated one tenet of the theory before it existed when he said: I nd that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom and command and prohibition. At least initially, in my very humble judgment, the Natural Law Theory did little to in any way interfere with or threaten the continuing biblical foundations of Western law. The civilized nations that were under observation to supply those universal moral absolutes were Christian in their heritage, and the eternal moral absolutes, which were biblical in origin, predated the theory. The concept of natural law long dominated jurisprudence. It was in place at the time of the formation of this nation. It has been said, Even those who were infected by Unitarianism or who were essentially Deistic felt that they were worshipping God, however vaguely, as they worked with a natural law philosophy and approach in formulating positive law. Natural Law Theory had broad appeal for those times because it taught that law was rooted in the very nature of things, in the framework of the universe, and was expressive of the will of God. There was much truth in some tenets of the theory, and it probably initially had much to do with keeping Americas law fundamen- tally biblical. But the Natural Law Theory contained two seeds of its own destruction. First, as you will recall, the fundamentals were deduced by observation of society looking for that common element in the moral codes of all civilized nations that would represent absolute ethical standards and fundamental legal rights. Thus, in theory the source for the basics was not the inerrant Word of God, but rather society, which reected by common existence moral absolutes of the Creator, thus accommodating the Unitarian and the Deist while lulling the Christian. The theory contains the fallacy that what is universal is necessarily right, that society can look into itself to comprehend the moral absolute of the Creator. Secondly, as Natural Law Theory withdrew from biblical principles because of changes in the society it observed, it became increasingly vagueand spoke of living honestly, of harming no one, of giving to each its ownwithout ever dening these terms or giving specic case law examples of how they were to be im plemented in positive law. Thus it became hollow, meaningless; it literally bled to death the COUNSEL of CHALCEDON J erome Strickland 22 on its own vagueness. Although it specied that law had or should have a certain xed and absolute quality, it was unable to dene that quality. Thus the genesis of the legal revolution in these United States was the Natural Law Theory itself and the changes in the society on which it focused. It served to create a vacuum in jurisprudence. Thus a new legal philosophy came into vogue, principally through the Supreme Court of the United States, whose philosophy it has been unquestionably for the past 40 years. The origin of this view of law would probably be ascribed to Justice Oliver Wendell Holmes, who, after the Civil War, began to develop legal ideas that ultimately led to this specic view. Holmes became the primary proponent of what has come to be known as Sociological J urisprudence. This philoso phy as such was rst introduced into the Supreme Court in 1908 by J ustice Louis Brandeis and achieved dominance in the Court in 1937, through the work of J ustice Felix Frankfurter. J ustice Holmes said in his work on the spirit of common law that, In the last century we studied law from within. The jurists of today are studying it from without. The jurists of today seek to enable and to compel law making and also the interpretation and application of legal rules, to take more account and more intelligent account of the social facts upon which the law must proceed and to which it is to be applied. Roscoe Pound, a legal scholar, described Sociological J urisprudence in part as a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assume rst principles; as putting the human factor in a central place. ... So you see, instead of a xed, absolute quality to law, sociological jurisprudence denied the existence of such changeless principles. The new view stressed tolerance, adaptability, and exibility, pragmatic rather than prin- cipled decisions, adapting to mans need as perceived at the time. Newsweek magazine reviewed The Brethren and said, for most of this century, lawyers and law professors have talked about Sociological J uris prudence. In plain language, this means they know that judges are only human and that their decisions often are based on personal politics, class or [gut feelings], as much as a neutral reading of the law. With the publication of The Brethren that message has been delivered to the public with unprec edented detail and force. The Supreme Court makes the law of the land without regard to objective standards, based exclusively on the composite ideas, wills, pride and inherent proneness to err. That is Sociological J urisprudence. The right, the wrong, the good, the bad, the righteous, the just, the moral, the immoral, what man is due is to nd its foundations in sociology, in psychologysituation ethics, societal standards, a judges fundamental seat-of- the-britches idea of what is just. Of course, underlining this entire approach is man, as preeminent. It is his knowledge, his society, his view, his intellect, from which he is to determine what are the fundamental concepts supporting the law, what is best for man in his law and law systems. The law and justice, in theory, and increasingly in practice, have become subject to societal standards and subservient to the government and its policies. There is nothing concrete or absolute about it. Modern humanism locates law exclusively in the province of the state as to philosophy and enactment and thus makes the state, or the people as they nd expression in the state, the god of the system. As Mao Tse-tung has said, Our God is none other than the masses of the Chinese people. Which is exactly what sociological jurisprudence is premised on. In Western culture the law has steadily moved away from God, from biblical precepts to the people (or the state) as its source, although, as has been noted, the historic power and vitality of the law, and indeed of the Western civilization, has been in many scholars judgment its biblical faith. There is unquestionably a great residue of Christian tradition, ideas and precepts still rmly entrenched in our law and law system, but it is being almost daily displaced by putting into practice this idea of sociological jurisprudence. It is no longer conned to the Supreme Court of the United States but is expressed by our state legislators, the Congress, and judges of trial and appellate courts who tend more and more to make law as they decide or help decide cases. What better than to capture the law that has much to do with who and what we are as a people! What is happening as this new philosophy works its will and wayin fact, what has happened and what has been happening for some timeis that as biblical precepts, as biblical foundations pass away in the law, the law has less and less to do with justice and the law becomes more and more an instrument of Satan. Society, shaping the law through sociological juris prudence, is simultaneously being corrupted by ita chain reaction, each corrupting the other. Let me give you some concrete examples. Divorce Lets briey consider the area of divorce and the relatively recent development of no-fault divorce. The English law concerning divorce as it existed prior to the American Revolution was the ecclesiastical law of England, administered by the ecclesiastical courts, or Christian courts, as they were sometimes known. These the COUNSEL of CHALCEDON Christian Counseling and the Law 23 courts and their judges had no counter part in our system, but the laws of divorce that were enacted by the legislators of the various states were copied very closely from the rules in the ecclesiastical courts in England. There were two fundamental concepts underlying the divorce laws in all the various states of this country. First, the state has always been deemed a party to any divorce action because it is deeply concerned in maintaining the integrity and permanence of the marriage relationship (24 Am. J ur. 2nd Divorce and Alimony). Thus one of these fundamental principles was that the state should seek to preserve marriage, and it should not facilitate divorceit should not be easy to dissolve the marriage relationship. Divorce was considered not just a matter of two persons, or a family; the whole of society was deemed at interest, affected and involved. Secondly, however long the list of grounds may have grown at the hands of the legislatures of the various states, the basic principle was faultthe dissolution of any marriage involved a search for and proof that one party was at fault in forcing a termination of the marriage, be it because of adultery, desertion, mental cruelty, habitual intoxication, conviction of a crime involving moral turpitude, etc. These two concepts were biblical in origin. In 1965 a special committee on uniform divorce and marriage laws, sponsored by the Ford Foundation and the United States Department of Health, Education, and Welfare, initiated a study recommending the ex ploration of the possibility of no-fault divorce laws. The committee was heavy on experts in the area of social and behavioral sciences. The commit tee concluded that the traditional concept of divorce based on fault was ineffective as a barrier to marriage dissolution, because such was overcome regularly by perjury (that, I submit, was a perjurious conclusion, had the report been under oath) and that such a necessity of proof added greatly to the bitterness and hostility surrounding divorce proceedings. This committee formulated the Uniform Marriage and Divorce Act providing for no-fault divorce, which was subsequently adopted very rapidly by ve states, after which a number of other states, including Georgia, followed suit. Despite the fact that the Chief J ustice of the Georgia Supreme Court was saying, the law does, and should, hinder facility in the procurement of divorces, a majority of his court agreed that the adoption of the Georgia no- fault divorce statute represented a change in public policy whereby the state either played the role of facilitating divorce or at the very least became indifferent to it. Of course, the change occurred because of societal pressure simultaneous with a pragmatic view of the law, which would accept the opinions of behavioral scientists about what was best for society in the area of the law, marriage and divorce. As a result, the rates of divorce have accelerated enormously in the states where its easy to get a divorce, including Georgia. The fundamentals of the lawthat the societal standards succeeded in corrupting are now corrupting society. Divorce has become so easy its almost forced on an individual experiencing any type of marital difculty as the course of the least resistance. A divorce on no-fault grounds is no longer a matter of justice. J usticerendering every man his due has nothing to do with what occurs in the judgment of the court granting a divorce. The courts only concern is what one of the parties has decided unilaterally is his or her due, that is, to be released from his/her marital obligation and duty because he/she has the opinion that the marriage is irretrievably broken. Lets look at the example of abortion, where the change in the fundamen tals of the law came through the vehicle of the Supreme Court of the United States rather than through the legislature. The Court, in Roe v. Wade, after examining the societal standards on abortion in ancient Persia, Greece and Rome, and the positions of the American Medical Association, the Ameri can Public Health Association, the American Bar Association, as well as progress in medical science being able to perform abortions without jeopard- izing the life of the pregnant woman, held that the right of privacy founded in the Fourteenth Amendments concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a womans decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent. Specic and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases as in this one, the additional difculties and continuing stigma of unwed motherhood may be involved. The court held in practical fact that the murder of an unborn child, at least during the rst and second trimester, quick and viable, is a constitutional right of a pregnant woman for these reasons! This new constitutional right is now exercised over a million times a year and climbing. Subsequent to this decision the state courts in Massachusetts the COUNSEL of CHALCEDON J erome Strickland 24 and the federal courts in Indiana and Michigan have held that a husband and father was without standing to enjoin his wife and her physician from proceeding with an abortion, and that state statutes requiring consent of the parents to an abortion is unconstitu tional. This means that the biblical head of his household has no right to stop the murder of his child! Efforts are underway to prevent parents from disallowing their minor child to have an abortion. (Life is not protected, only a certain quality of life.) A pragmatic view of the law following the demands and opinions of a relatively small, but vocal, fragment of society formulated a law, or really anti-law, that is going to occasion the unraveling of society in the form of the destruction of the family, and it has only just begun. No-fault divorce and abortion are but two results of this legal revolution that is reective and simultaneously productive of the moral decay in our society. There are many others: (1) The effort to decriminalize the so-called victimless crimesprostitution, homosexuality and other perversions, gambling, certain drugs: (2) changes the Supreme Court of the United States brought about in the functional morals of this society by its decisions in obscenity cases, and (3) no-fault systems coming into vogue in connection with personal injury matters for supposed reasons of economics, etc. J ohn Cotton observed, the more any law smells of men, the more unprotable. We have been getting law that stinks of man! As we will discuss later, this philosophy, this approach, is all pointed towards making the law secular, towards taking the justice out of law, towards making law an idol, towards making law the tool of the state and its ideologies and its religion of humanism. The tide rolls on unchecked, for the most part unrecognized. Leviticus 10:1 -2 says. Woe to those who enact evil statutes, and to those who constantly record unjust decisions.... Deuteronomy 16:19, You shall not distort justice. God is a God of justice, and He is concerned with justice in secular law and that it be consistent and in accordance with His higher law. The commandment. Thou shall have no other gods before me. requires that we recognize no power as true and ultimately legitimate if it not be grounded in God and His law-word. It requires that we see true law as righteousness, the righteousness of God, and as a ministry of justice, and it requires us to recognize that the inequalities of just law faithfully applied are basic ingredients of a free and healthy society (quoted from R. J . Rushdoony. The Institutes of Biblical Law [Phillipsburg. N.J .: Presbyterian and Reformed], p. 61). We must submit to the law, yes, but that doesnt mean we are to give up working to change it. It does not mean we are to close our eyes to its errors. If law is severed from righteousness and truth, it leads to the anarchy of a lawless and meaningless world. William Penn wisely observed, Men must be ruled by God or they will be ruled by tyrants. This is an arena of spiritual warfare. The corporate church is not involved in this struggle per se, but individual Christians arc as an obligation, as a part of doing their all to His glory. I believe the church has a duty to educate Christians in this area that it is largely ignoring. Sir Patrick Devin. in his dissertation. Enforcement of Morals, states:. No society has yet solved the problem of how to teach morality without religion. So the law must base itself on Christian morals and to the limit its ability enforce them, not simply because they are the morals of most of us, nor simply because they are the morals which are taught by the established Churchon these points the law recognizes the right to dissentbut for the compelling reason that without the help of Christ ian teachings the law would fail. St. Paul makes it clear that there is no power but of God, in Romans 13:1. Christ says in Matthew 28:18, All authority has been given to me in heaven and on earth. Since God is absolute power, all subordinate and creative powers derive their ofce, power and moral authority only from God; they must exercise it only on His terms, in His sphere and under His jurisdiction or else face His judgment. We are told by our Lord in J eremiah 18:7-10, **At what instant I shall speak concerning a nation, and concerning a kingdom, to pluck up, and to pull down, and to destroy it; if that nation, against whom I have pronounced, turn from their evil, I will repent of the evil that I thought to do unto them. I close by submitting that it is time to turn again to the words of Isaiah 33:22, For the Lord is our J udge, the Lord is our law giver, the Lord is our King; He will save us. *J erome Strickland is a trial lawyer and an elder from Macon. Georgia. This is one of four lectures delivered at the J une Institute, 1980. the COUNSEL of CHALCEDON Christian Counseling and the Law 25