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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
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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
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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
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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
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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.
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