June 4th 2005

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Articles from this issue:

COVER STORY: Schapelle Corby and Australia's drugs problem

CANBERRA OBSERVED: Alexander Downer - a field-marshal's baton in his knapsack?

ENERGY AND PRIMARY INDUSTRY: Day of biofuels has arrived

SCHOOLS: Teaching values and building character

AUSTRALIAN LABOR PARTY: Behind the branch-stacking allegations

IN VITRO FERTILISATION: The games bureaucrats play (at our expense)

SOCIETY: Too many abortions, according to survey

CIVILIZATION: Christian foundations of the rule of law

DEVELOPMENT: Micro-credit - an antidote to poverty and political extremism

CHINA-TAIWAN: China double-crosses Taiwan over WHO

STRAWS IN THE WIND: Fools rush in / Shonky lending practices / Pinning the tail on the donkey / Vietnam: decadence now / Mother, I never knew you

Ho Chi Minh: the man and the myth (letter)

Electronic referenda (letter)

Bali and the Indonesian tsunami victims (letter)

Brisbane-Melbourne trunk rail route (letter)

Second thoughts on Labor Split conference (letter)

CINEMA: Finale in the bunker - The Downfall

Malice In Media Land, by David Flint

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Christian foundations of the rule of law

by Augusto Zimmermann

News Weekly, June 4, 2005
The modern roots of our individual rights and freedoms in the Western world are found in Christianity, writes Professor Augusto Zimmermann.

The modern roots of our individual rights and freedoms in the Western world are found in Christianity. The recognition by law of the intrinsic value of each human being did not exist in ancient times.

Among the Romans, law protected social institutions such as the patriarchal family, but it did not safeguard the basic rights of the individual, such as personal security, freedom of conscience, of speech, of assembly, of association, and so forth. For them, the individual was of value "only if he was a part of the political fabric and able to contribute to its uses as though it were the end of his being to aggrandise the state".

According to Benjamin Constant, a great French political philosopher, it is wrong to believe that people enjoyed individual rights prior to Christianity. In fact, as Fustel de Coulanges put it, the ancients had not even the idea of what such rights meant.

No-one above the law

In 390, Bishop Ambrose, who was located in Milan, forced Emperor Theodosius to repent of his vindictive massacre of 7,000 people. The fact indicates that under the influence of Christianity, nobody, not even the Roman emperor, would be above the law.

And in the 13th-century, Franciscan nominalists were the first to elaborate legal theories of God-given rights, as individual rights derived from a natural order sustained by God's immutable laws of "right reason". For these medieval thinkers, not even the king himself could violate certain rights of the subject, because the idea of law was attached to the Bible-based conception of Christian justice.

The notion that law and liberty are inseparable from one another is another legacy of Christianity. Accordingly, God's revealed will is regarded as the "higher law", and, therefore, placed above human law. If so, people have the moral duty to disobey a human law that perverts God's law, for the purpose of civil government is to establish all societies in a godly order of freedom and justice.

St Augustine once wrote that an unjust law is a contradiction in terms. For him, human laws cannot be out of harmony with God's higher laws, and rulers who enact unjust laws are wicked and unlawful authorities. In The City of God, St Augustine explains that a civil authority that has no regard for justice cannot be distinguished from a band of robbers. "Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?"

In the same way, St Thomas Aquinas considered an unjust law a "crooked law", and, as such, nobody would have to obey it. For St Aquinas, since God's justice is the basic foundation for the rule-of-law system, a "law" that permits murder or perjury is not really law, for people would have the moral right to disobey unjust commands. Rulers who enact unjust "law" cease to be authorities in the rightful sense, becoming mere tyrants. The word tyranny comes from the Greek "secular rule", which means rule by men instead of the rule of law.

In declaring the equality of all human souls in the sight of God, Christianity compelled the kings of England to recognise the supremacy of the divine law over their arbitrary will. "The absolutist monarch inherited from Roman law was thereby counteracted and transformed into a monarch explicitly under law". The Christian religion worked there as a civilising force and stranger to despotism. As one may say, "The Bible's message elevated the blood-drinking 'barbarians' of the British Isles to decency".

At the time of Magna Carta (1215), a royal judge called Henry de Bracton (d.1268) wrote a massive treatise on principles of law and justice. Bracton is broadly regarded as "the father of the common law", because his book De legibus et consuetudinibus Anglia is one of the most important works on the constitution of medieval England.

For Bracton, the application of law implies "a just sanction ordering virtue and prohibiting its opposite", which means that the state law can never depart from God's higher laws.

As Bracton explains, jurisprudence was "the science of the just and unjust". And he also declared that the state is under God and the law, "because the law makes the king. For there is no king where will rules rather than the law".

The Christian faith provided to the people of England a status libertatis (status of liberty) which rested on the Christian presumption that God's law always works for the good of society. With their conversion to Christianity, the kings of England would no longer possess an arbitrary power over the life and property of individuals, changing the basic laws of the kingdom at pleasure.

Ensuring freedom

In explaining why the citizens of England had much more freedom than their French counterparts, the famous English preacher Charles Spurgeon (1834-1892) declared:

"There is no land beneath the sun where there is an open Bible and a preached gospel, where a tyrant long can hold his place ... Let the Bible be opened to be read by all men, and no tyrant can long rule in peace. England owes her freedom to the Bible; and France will never possess liberty, lasting and well-established, till she comes to reverence the gospel, which too long she has rejected ... The religion of Jesus makes men think, and to make men think is always dangerous to a despot's power".

The state is a "necessary evil" that has to be subject to God's higher laws. After sin entered in the world, it became necessary to establish the civil government in order to curb violence (Gen 6:11-13).

Limitation of state powers

The understanding of civil government as a result of our sinful condition justifies the doctrine of limitation of the state powers. It inspired in both Britain and America the establishment of a constitutional order based on checks and balances between the branches of government - namely legislative, executive, and judicial. Such division obeys the biblical revelation of God as our supreme Judge, Lawgiver, and King (Isa 33: 32).

Since all human beings are born of a sinful nature, the functions of the state ought to be legally checked, because no human being can be trusted with too much power.

Because God instilled in each of us a sense of freedom, political tyranny, as Lord Fortescue (1394-1479) explained, is the attempt on the part of civil authorities to replace natural freedom by a condition of servitude that only satisfies the "vicious purposes" of wicked rulers.

As Fortescue put it, the law of England provided freedom to the people only because it was fully indebted to the Holy Scriptures. Thus he quoted from Mark 2:27 to proclaim that the kings are called to govern for the sake of the kingdom, not the opposite. In this sense, he also remarked:

"A law is necessarily adjudged cruel if it increases servitude and diminishes freedom, for which human nature always craves. For servitude was introduced by men for vicious purposes. But freedom was instilled into human nature by God. Hence freedom taken away from men always desires to return, as is always the case when natural liberty is denied. So he who does not favour liberty is to be deemed impious and cruel".

By placing God's higher laws above human law, Sir Edward Coke (1552-1634) considered that the basic laws of England were not designed by the state, but "written with the finger of God in the human heart". Coke described the constitution of England as a "harmonious system" sustained primarily by God's higher laws. Then he went on to declare that no statute enacted by the Parliament is valid if it does not respect God and the law.

The notion that human law is always subject to God's higher laws started to be more deeply challenged in the 19th-century. Many people interpreted Charles Darwin's theory of evolution as proving the non-existence of God's natural moral order as a primary source of positive law.

Thus legal positivists decided to regard the positive law of the state as a mere result of sheer force and social struggle - in brief, a product of human will.

But if laws were caught up in the faith of "evolution", laws can no longer be regarded as possessing a transcendental dignity. Then the very idea of government under law lost its philosophical foundations, and, as a result, societies started to lack a moral condition of legal culture that allowed them to effectively restrain the emergence of an all-powerful state.

As J.R. Rushdoony pointed out, "When man is made controller of his own evolution by means of the state, the state is made into the new absolute. Hegel, in accepting social evolution, made the state the new god of being. The followers of Hegel in absolutising the state are Marxists, Fabians, and other socialists."

Whenever the law of the state is regarded as the only source of legality, civil rulers become all-powerful authorities over the life and liberties of the individual. For no legal protection can be reasonably afforded against tyranny, if the supremacy of God's higher laws are not made to prevail.

The complexity of things that are held together in the universe indicates the existence of a Supreme Lawmaker. As we see the world as it really is, we must concede that its motions are directed by invariable and fixed rules of law. If there are laws sustaining the world, our question is: who has created these laws?

In this regard, as Montesquieu commented: "Those who assert that a blind fatality might have produced the various effects we behold in this world are guilty of a very great absurdity; for can anything be more absurd than to pretend that a blind fatality could be productive of intelligent beings?"

The human intellect, however, should not be our basic reference in terms of legality because everyone is affected by a sinful nature.

To avoid tyranny, William Blackstone (1723-1780) once declared that no human law could be valid if it contradicted God's higher laws which maintain and regulate natural human rights to life, liberty, and property. According to Blackstone's biblical understanding of the rule of law, "No human laws should be suffered to contradict [God's] laws ... Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine."

When God delegates His supreme authority to human rulers, they have no liberty to use it in order to justify tyranny. God has established the state as delegated authority, not an autonomous power above the law. When we obey the state it is not that we obey individuals who are in charge of the state machinery, but it is rather for obedience to a God-given authority who is commanded by God to promote natural principles of liberty and justice.

Samuel Rutherford (1600-1661), a Scottish Presbyterian, developed in Lex Rex a consistent doctrine of lawful resistance against political tyranny. According to Rutherford, if people wish to effectively stay free from such tyranny, then they will have to preserve their inalienable right to eventually disobey unjust legislation.

Power to oppress

For him, "A power ethical, politic, or moral, to oppress, is not from God, and is not a [lawful] power, but a licentious deviation of a [lawful] power". And in answering to the royalists who liked to use St Paul's Letter to the Romans (ch 13) in order to condemn any form of resistance against the government, as a resistance against God Himself, Rutherford boldly proclaimed:

"It is a blasphemy to think or say that when a king is drinking the blood of innocents and wasting the Church of God, that God, if he were personally present, would commit these same acts of tyranny."

John Locke (1634-1704), whose legal and political ideas provided legal justification to the 1688 "Glorious Revolution" in Britain, argued that lawmakers put themselves into a "state of war" against the society whenever they endeavour to destroy our God-given "natural" rights to life, liberty and property. For Locke, no government has the right to reduce these basic rights of the individual citizen.

The American Founding Fathers fully acknowledged the principle of lawful resistance against tyranny, and drew heavily from this in order to justify their revolutionary actions against the British government, in 1776.

Of course, any revolutionary uprising, as Pope Paul VI comments in his encyclical Popularum Progressio, can only be justified in extraordinary situations "where there is a manifest, long-standing tyranny which would do great damage to fundamental personal rights and dangerous harm to the common good of the country".

However, the recourse to violence, as a means to right the wrongs of the state against the rule of law, risks itself to produce new forms of injustice. Therefore, Paul VI also states that revolutionary uprising can only be carried out as the last remedy against long-standing tyranny, because, as he put it, "a real evil should not be fought against at the cost of greater misery".

In declaring that we all stand on equal ground before God, Christianity gives the best moral foundations for social and political equality. If Christianity is found to be true, the individual, male or female, is not only more important but incomparably more important than the social body.

A visible fact in these days of moral relativism is the gradual abandonment of the Christian faith and culture in the Western world. As a result, the moral foundations for the rule of law have been seriously undermined.

Any honest analysis of contemporary Western history would have to recognise that no effective legal protection against tyranny can in the long run be sustained without the higher standards of justice and morality brought into the texture of Western societies by Christianity.

  • Augusto Zimmermann is a Brazilian law professor completing a PhD at Monash University, Melbourne. This article is an extract from a longer paper due to appear in a forthcoming issue of the Technical Journal.

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