The Sources Of Law

A. INTRODUCTION. The purpose of this chapter is to begin to seek an answer to the question, Where does law come from? At this point, the concern is not with finding out where to look for the latest legislative enactment, judicial opinion or executive order, nor even to locate more organic laws, such as constitutional texts, etc. Rather, the initial focus is on finding out where the very first laws, or the most foundational laws, came from. Necessarily, as the following evidence indicates, this will require inquiry as to the source of God's law, or the law of the Creator. Once this matter is determined, it will be easier to establish a context in which to examine the various organic and other laws of human origin.

1. Biblical record. God has revealed His will concerning all things, including law, in two ways. The first is the revelation of His will in the created order, which may be referred to as "God's Work." The second is the revelation of His will in special verbal form, that is, "God's Word." These two kinds of revelation, though different in form of expression, are perfectly consistent with each other, since both originate in the will of the one uncreated Creator.

2. Historic understanding. Historically, many great legal expositors have recognized that law is ultimately based on the will of God, the uncreated Creator. In parallel with the biblical record, the historic view was that God had revealed His law in two forms, namely, in the law of nature and in the Bible. These two revelations of law were understood to be the bases of all human laws.

B. GOD'S WORD - THE DIVINE LAW. In addition to the revelation of law in the created order and the human conscience, God has seen fit to reveal His law in verbal form, referred to as the Word of God, or "God's Word."

1. The Bible. The Bible is the written word of God revealed to mankind. That it is the most authoritative verbal expression of the law of God available to us today is discussed supra.

a. The Bible contains rules of right and wrong behavior by which we may know what conduct is lawful and unlawful. These rules are not merely the opinion of one or more people, but originate with God Himself.

b. The Bible was written by eyewitnesses to the events and messages recorded, and the biblical writers claim to have received such messages from God Himself.

2. Biblical examples. The Bible contains many revelations of God's law which cannot be known simply by a reasoned observation of the creation or self-reflection, but which are uniquely made known in the written word.

a. The Jewish feasts are an example of God's law which was specially revealed to ancient Israel through verbal revelation.

b. Similarly, God's will for the Church was specially revealed through the written word.

Now you are Christ's body, and individually members of it. And God has appointed in the church, first apostles, second prophets, third teachers, then miracles, then gifts of healings, helps, administrations, various kinds of tongues. 1 Cor. 12:27-28.

4. Multiple forms of revelation. The Bible does not support the view that all law, or even all of God's law, must come from a unitary source to the exclusion of all others. Thus, God has revealed His laws in multiple forms, all of which are valid, and all of which must be taken into account if a person would know the "whole counsel of God" concerning His laws. In this there is no contradiction, because each law has the same lawgiver.

"But the witness which I have is greater than that of John; for the works which the Father has given Me to accomplish, the very works that I do, bear witness of Me, that the Father has sent Me. And the Father who sent Me, He has borne witness of Me. . . . You search the Scriptures, because you think that in them you have eternal life; and it is these that bear witness of Me." Jn. 5:36-37,39.

5. The divine law. Historically, the revelation of the law of the Creator in the form of God's Word was variously referred to as the divine law, the revealed law, or the law of nature's God. However, each of these terms connoted the same thing, namely, the law of the Creator as found in the Bible. Although the law of nature is evident to all men and discoverable by a reasoned observation of the world, the divine law is ascertainable exclusively from the verbal revelations of God's will as found in the Bible.

Divine providence . . . in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. Blackstone, 1 COMMENTARIES *42.

"The dignity of its original, the sublimity of its principles, the purity, excellency and perpetuity of its precepts, are most clearly made known and delineated in the book of divine revelations; heaven and earth may pass away and all the systems and works of man sink intooblivion, but not a jot or tittle of this law shall ever fall. Root, Laws in Connecticut, 1798, 35.

6. The law of nature and the Bible. The law of nature and the divine law are perfectly consistent with each other, since both reflect the will, and the law, of the same Creator.

a. Ever since the original Fall into sin by Adam and Eve, human reason has been corrupt, and our ability to accurately discern the law of nature has been imperfect. Therefore, to the extent the Bible reveals aspects of the law of nature, it confirms them, and also acts as a more authoritative guide for discerning the will of the Creator than human reason applied without the benefit of the Bible.

And if our reason were always, as in our first ancestor before his transgression, clear and perfect . . . discovering the law of nature would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. . . . The divine laws when revealed, are found upon comparison to be really a part of the original law of nature . . . But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since . . . the revealed law is (humanly speaking) of infinitely more authority that what we generally call the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. Blackstone, 1 COMMENTARIES *41-42.

b. Although perfectly consistent, the law of nature and the Bible are not the same. There are some aspects of God's law which command or prohibit things which the law of nature does not command or prohibit. (For Grotius, "volitional" divine law means the same thing as "positive" divine law as revealed in the Bible.)

The law of nature differs . . . from volitional divine law; for volitional divine law does not enjoin or forbid those things which in themselves and by their own nature are obligatory or not permissible, but by forbidding things it makes them unlawful, and by commanding things it makes them obligatory. Grotius, LAW OF WAR.

c. As discussed infra, there are also some aspects of God's law which have been given to some people and not to others. Thus, the divine law also differs from the law of nature in this respect as well.

C. NATURAL LAW THEORIES. Natural law theories have played an important role in shaping the jurisprudence of western society for many centuries, and there are still natural law proponents among modern legal scholars. The purpose of this section is to distinguish a jurisprudence based on the law of nature and the Bible from some modern natural law theories, and to answer some criticisms.

1. Natural law distinguished. In some historic writings, "law of nature" and "natural law" are used interchangeably, and when so used, it is often obvious that the writer acknowledges God as the author of that law. However, some historic writers, such as Aristotle, viewed natural law as a purely materialistic phenomenon, that is, they assumed natural law did not originate with God. In order to distinguish these two systems of thought,it may be useful to adopt a convention of terminology for this work.

Accordingly, "natural law," as used here, refers to the observation of the natural universe and the use of reason alone to derive principles of law from it, but without any recourse to, or acknowledgement of, the will of God or any verbal revelation of His will. The phrase "law of nature," on the other hand, will be used to denote the biblical-historical view of jurisprudence which is based on the law of nature as tested and confirmed by the Bible. Natural law theories, therefore, are not the same as a jurisprudence founded on the law of nature and the Bible.

Many criticisms have been levied against natural law theories by modern legal writers. Some of these criticisms, to the extent applicable to a law of nature jurisprudence, are described next, along with some possible responses.

2. The "non-universality" problem. This criticism points out that so-called "natural" beliefs are not shared universally, or even generally, among people or cultures. In fact, a comparative study of legal systems indicates that the normal state of affairs is cultural pluralism and a diversity of legal rules which are culture dependent.

A possible response to this criticism may be as follows:

a. Some legal commentators, such as Grotius, viewed common assent as a form of validation for the existence of the law of nature. However, as to Grotius, the focus of his examination of the law of nature was directed toward the law of nations, which in many ways depends on international agreements defining the relationships between nations. C.S. Lewis demonstrated the existence of inter-cultural assent as to eight principles of natural law in what he called the Tao. Indeed, we might expect some inter-cultural common assent on particular legal norms if there is a truly objective law of nature.

However, neither Grotius nor Lewis would concede that the law of nature is a function of human agreement. That is, the existence of the law of nature does not in any way depend on whether people follow it. In fact, Lewis expressly disclaimed this position, in accordance with the biblical-historical view.

I am not trying to prove its validity by the argument from common consent. Its validity cannot be deduced. For those who do not perceive its rationality, even universal consent could not prove it. C.S. Lewis, The Abolition of Man, 95.

b. Because a law of nature jurisprudence accepts biblical revelation, it is not confined to what people can reason from an observation of the world. In other words, the Bible is the only objective measure of what constitutes the rules of the law of nature. When people embrace laws contrary to biblical revelation, it may only indicate the extent to which people are in rebellion against the Creator. Such rebellion does not mean that the law of nature does not exist. The validity of the criticism of "non-universality" entirely depends on the non-authenticity of biblical revelation, which was shown not to be a well-reasoned position, supra.

3. The vagueness problem. This criticism notes that a natural law theory based solely on a reasoned observation of the universe will yield little in the way of specific legal rules. In fact, whatever legal rules are derived will be vague and difficult to apply in any particularcase.

A recent natural law theorist has framed the "inner morality of law" in solely procedural terms, that is, that law should have the following attributes: 1) generality of application; 2) promulgation of the law to the party affected; 3) prospective legal operation (no ex post facto laws); 4) intelligibility and clarity; 5) avoidance of contradictions; 6) avoidance of impossible demands; 7) constancy or permanence through time; and 8) congruence between official action and declared rule. The implication is that natural law contains no rules of substantive content. See, Lon L. Fuller, The Morality of Law.

A possible response to this criticism may be as follows:

a. A law of nature jurisprudence, in which recourse is had to the verbal revelation of God's law in the Bible, provides a source from which we may derive many rules of substantive law. Historically, this was often done. For example, James Madison argued in favor of the U.S. Constitution's scheme of separation of powers based on reason and experience, or if you will, natural law principles. See, The Federalist No. 47. Such a scheme has support from the experience of ancient Israel and even the language of Isa. 33:22. Madison would be astounded at the inability of modern scholars to discern this basic principle of substantive law from nature.

b. The Bible often summarizes the over-arching principles of law in such formulas as to do justice, love kindness, and walk humbly with your God (Mic. 6:8) or to love the Lord with all your heart and love your neighbor as yourself (Mat. 22:37-40). However, these formulas do not define the limits of specificity with which the Bible speaks about law. These formulas are summaries of, not limitations on, law and in no way negate the detailed legal rules expressed elsewhere in the scriptures. Again, the validity of the criticism of "vagueness" entirely depends on the non-authenticity of biblical revelation, which was shown not to be a well-reasoned position, supra.

4. The "naturalistic fallacy." This criticism recognizes that natural law theory contains no objective criterion of truth. After all, natural law can, and has, been bent in any direction people have wanted. If the criterion is reason, what makes one person's reasoning better than another's? Another way of stating this objection is that values (or ought) cannot be derived from facts (or what is). Accordingly, all legal values are infused into the facts by the observer.

A possible response to this criticism may be as follows:

a. This criticism, however, is itself founded on an objective criterion of truth, that is, that it is objectively reasonable to assume that all reason is subjective. It could be argued that this criterion is itself unreasonable and subjective. Thus, the objection is self-defeating.

b. Although the use of reason is a valid means of ascertaining legal truth, it is not the exclusive means, nor is it the most authoritative means. Whatever we reason to be a rule of the law of nature must be checked against, and is controlled by, God's law revealed in the Bible. It is the validity of the Bible which lends greater certainty to knowledge of a rule and guards against a continued and corrupted use of reason.

But know this first of all, that no prophecy of Scripture is a matter of one's own interpretation, for no prophecy was ever made by an act of human will, but men movedby the Holy Spirit spoke from God. 2 Pet. 1:20-21.

5. Behavioral v. Physical laws. This objection states that normative laws of human behavior are not like the physical laws of science. One form of this criticism says that behavioral laws are of a purely human origin, because natural laws are necessarily amoral. Another form of this objection asserts that physical laws and behavioral laws are necessarily of a different nature because behavioral laws can be disobeyed, whereas physical laws cannot.

A possible response to this criticism may be as follows:

a. Historically, the idea that the will of the Creator would include the governance of both inanimate objects and human behavior was not viewed as inherently contradictory. In other words, nature is not amoral (without moral quality).

Law . . . is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. The whole progress of plants . . . the method of animal nutrition . . . and all other branches of vital economy - are not left to chance, or the will of the creature itself, but are . . . guided by unerring rules laid down by the great creator. Blackstone, 1 COMMENTARIES *38-39.

The instinct common to other animals, or that peculiar to man, does not constitute another kind of law. The distinction, which appears in the books of Roman law, between an unchangeable law common to animals and man, which the Roman legal writers call the law of nature in a more restricted sense, and a law peculiar to man, which they frequently call the law of nations, is of hardly any value. Grotius, LAW OF WAR.

b. The true difference between physical and behavioral laws is in their enforcement. God has delegated authority to enforce many (but not all) of the behavioral laws to mankind, but enforces all remaining laws Himself (see infra), although often in ways that are known only to Him. Although people may disobey a law, in an ultimate sense, all violations are eventually accounted for and punished where appropriate. Therefore, in this ultimate sense, no one "gets away" with violating any of the behavioral laws originating in the law of nature. Thus, the difference between physical and behavioral laws lies in the means and timing of their enforcement, not in their inherent nature or quality as laws.

Do not be deceived, God is not mocked; for whatever a man sows, this he will also reap. For the one who sows to his own flesh shall from the flesh reap corruption, but the one who sows to the Spirit shall from the Spirit reap eternal life. Gal. 6:7-8. This scripture has in view the laws of human behavior, not the laws of vegetation.

Similarly, God will bring every act to judgment, everything which is hidden, whether it is good or evil. Ecc. 7:14. And I saw the dead, the great and the small, standing before the throne, and the books were opened . . . and the dead were judged from the things which were written in the books, according to their deeds. Rev. 20:12.

6. The problem of "ontological dualism." "Ontology" is a term referring to the nature of reality. According to this criticism, belief in a transcendent God necessarily involves two realities, whereas only one reality exists.

A possible response to this criticism may be as follows:

A law of nature jurisprudence does not presuppose the existence of two realities. There is only one reality, but that reality has both a spiritual and a physical component. This criticism is just a restatement of the age-old "mind-body problem" philosophers have struggled with for many years. Human experience indicates that people have both a mind and a body, and these are not exactly the same. Philosophers have been unable to explain how these two "realities" coexist and interrelate with each other. A common "solution" to the problem is to assert that the mind does not exist apart from the body and thoughts are merely chemical and electrical in nature.

Such a "reductionist" approach postulates that the only things which really exist are physical (that is, only matter and energy) in nature, and that God cannot exist. However, if a transcendent and immanent God does exist, as discussed supra, then the reductionist hypothesis must be wrong. There is no inherent contradiction in God, a spirit, having created people with both a physical body and a spirit. That God would be unable to govern the creation He has made by laws He has revealed makes no sense. The only thing that makes sense is that God can, and does, reveal His laws to us and hold us accountable to them.

7. The problem of avoiding responsibility. According to this criticism, no certainty exists in making moral decisions because nature cannot provide answers to moral dilemmas. Consequently, moral choices are all made by man. When people base legal decisions on the law of God, they are really attempting to escape responsibility for making laws.

A possible response to this criticism may be as follows:

It is by the imposition of a law of divine origin that people can be held accountable at all. By laying down rules of right and wrong behavior which apply to all people in all places and at all times, the Creator has set the ultimate standard of accountability to which all people, whether rich or poor, weak or powerful, must answer. A law of nature jurisprudence does not avoid responsibility, it requires and defines it.

Perhaps the question should be, when people refuse to acknowledge the existence of God's law, aren't they just attempting to escape responsibility for enforcing and obeying it? After all, it is God's law which holds men accountable. Without a truly objective legal order, that is, a legal system of divine origin, people are free to do whatever they wish - and what kind of accountability is that? Therefore, the people who deny God and His laws seem to be the ones who are trying to escape responsibility.