Law and Lawfulness, Obedience and Justice

When a moral norm that had been honored in Christendom for two millennia came tumbling down, to my knowledge only one person in any official position, a county court clerk in Ashland, Kentucky, protested its enforcement to the extent of risking imprisonment.

When the decision of the Supreme Court was questioned, the answer was, “It’s the law of the land.” This is an answer that would have been given in Rome, Constantinople, Wessex, Georgian England, and in the United States, but it is also an answer that would have been given in the Third Reich and that is now given in China, Russia, Cuba, and various other tin-pot tyrannies, which suggests that to the question at hand “It’s the law” is an answer so ambiguous as to be morally useless.

The right answer to the question why must any law be obeyed is that it must be obeyed because it is just. There have been other attempts to stake political positions on the grounds that positive law, court decisions, or custom, being only enactments of courts or legislatures, were in fact unjust. The abolition movement, the suffragettes, and the anti-war protests all in some way represented or claimed to represent an appeal against positive law to a (usually poorly defined) higher law.

Whether or to what degree those who make such appeals know it or not, they are invoking one of the most ancient principles known to jurisprudence, at least until day before yesterday: the principle that positive law should, but sometimes may not, reflect or represent natural law. Now this is not a principle that can rightly be used to justify every complaint or grievance, or to justify civil disobedience—there is always a practical assumption in favor of authority—but nonetheless the appeal to natural law is the principle that underlay the vast medieval texture of claims to legitimacy or lawfulness. The same appeal to the natural law was implicit in Magna Carta and the charges brought by the Declaration of Independence against George III.

The classic structure of law upon which the lawfulness of positive law rests, while assumed by Cicero, Saint Paul (it underpins Romans 2:14-16), and by Saint Augustine, was stated comprehensively in St. Thomas in the Summa Theologica, Ia-IIae. It was reiterated at the turn of the seventeenth century by Richard Hooker in his controversy with the Puritans, who tended to the fideistic view that the only source of morality was divine revelation, and therefore to the belief that only the regenerate could govern.

Deism, the revelation-less philosophy of the eighteenth-century Enlightenment, persisted in speaking of some transcendent moral norm—but careful; nature’s law or laws as referenced in the Declaration of Independence and explained in Joseph Butler’s Analogy of Religion are not quite the same as natural law, which is transcendent metaphysical reality. But as the rationalists spoke the ancient position that positive law depended upon natural law and natural law upon the eternal law (God as he is in himself) was slowly ground to dust between the upper millstone of fideism, the belief that the only source of certain knowledge is divine revelation, and the lower millstone of philosophical idealism, the belief that the good can be guessed at but not known.

Idealism can be a noble philosophy depending upon the presuppositions one chooses to assume as its ground, but it proceeds on the assumption that while one can think constructively about God and truth neither God nor truth can be known in the sense that Plato and Aquinas would have recognized. In the realm of moral philosophy the end of the nineteenth-century triumph of idealism was H. A. Prichard’s “Does Moral Philosophy Rest on a Mistake?” and with it G. E. Moore’s Principia Ethica, both of which argued (in somewhat different ways) that what is right has nothing to do with “the good;” that the ethical decisions we make are, with some qualifications, just our decisions.

What then can be the transcendent ground of any moral decision? Justice Anthony Kennedy has told us: that ground is what each of us thinks life should be like. Or, put more simply, the realization of our desires, under-girded by an appeal to that one all-embracing principle: equality; the conviction that no one idea is to be privileged above any other, which in practice will come increasingly to mean that any assertion of any moral claim that transcends the boundaries of a sentimental egalitarianism is anti-social and finally ‘illegal.’

The absence of any relation between positive or civil law and natural law has not impeded the claim to legality on the part of ‘positive’ state, which in its practical operations tends, as Thomas put it, to become a kind of violence in which laws having some comforting accidental correspondence with traditional morality, yet disclaiming any ground in justice, become essentially an assertion of power.

Now this county court clerk in Ashland, Kentucky didn’t know anything about Saint Thomas or Richard Hooker, but she has read the Bible, she has a conscience, she had recently, after a life of marked irregularity, gotten saved in the best Kentucky and John 3:5 way, and she wasn’t about to issue over her signature to a license that cast the illusion of rightness over a union dedicated to the implicit assertion that what Saint Paul considered the ultimate evidence of rebellion against God was in fact lawful. Perhaps one can see in Kim Davis the unreflective brashness of a recent convert, but her behavior raised a question that will not go away.

Cardinal George, the late archbishop of Chicago, speaking in 2010, said “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.” There is hyperbole in this; there is also truth. The bishop of Chur in Switzerland is in danger of imprisonment for citing Leviticus at a Church conference in Germany. And Kim Davis went to jail.

Perhaps the suffering of persecution and the rebuilding are in a way diastolic and systolic, but it is certain that for the present there will be more Kim Davises. After all, the Church came into public notice because of its resistance to the practice of emperor-worship which everybody considered right and normal while Christians were considered un-civil and unenlightened because they claimed allegiance to a higher law. Given the presumption that laws of the state deserve obedience, it is still worth remembering that law is not always lawful. Although the post-modern, secular state may write codes, exact penalties, and levy punishments, these legal entities are responsible before a higher court than sits in Federal City for enactments that while ‘legal’ should court the contempt of every just heart, and which cannot claim obedience on any ground higher than expediency.