This talk was delivered to a Bench and Bar celebration of Law Day in an Episcopal Church in Baldwin County, Alabama on Sunday, May 15, 1994. I was invited to make this presentation by my colleague, Judge Pamela Baschab, then a Circuit Judge, and who later served as a Justice on the Alabama Supreme Court. The group may have expected a different approach, such as the approach of Judge Roy Moore, and some may have been disappointed with this approach.
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Baldwin County –
Sunday, May 15, 1994
“Law Day”
When the relationship between law and faith is mentioned in a meeting of lawyers, there is an immediate knee-jerk reaction that causes us to think of the Doctrine of Separation of Church and State. That idea is embraced in the United States Constitution; and, basically, there are two parts to the idea–the freedom of expression clause and the establishment clause. Basically, the Constitution says in one sentence that Congress shall make no law respecting the establishment of religion or preventing the free exercise thereof. Despite the existence of this sentence in the Constitution and all of its practical wisdom, there is a growing realization that there is a necessary relationship between law and faith which we will ignore at our peril. Neutrality, the official position of our courts, is as pretentious and unrealistic as the value-free observer in the social sciences. At an institutional level, the Doctrine of Separation of Church and State is entirely sound; however, at a personal level, one cannot separate what he or she believes from behavior in which he or she engages. In order to understand the dimensions of the problem, we must look beyond the mere wording and interpretation of our Constitution. We must look to the history of our culture and the effect of the Judeo-Christian heritage.
When we look to the origin of law in the mythical past of our culture, we find many examples of the gods delivering the law for the benefit of the people. God delivered the law to Moses on Mt. Sinai; and in the Shavuos Celebration, the Jewish people still celebrate the gift of law as one of the great gifts of God. The Code of Hammurabi, the earliest known code of law, is depicted in a stele discovered in 1901 as delivered by the god Shamash to Hammurabi, seated on the top of a mountain. Such examples are numerous. At the time the Roman Empire was entering its finest hour, the great jurist Cicero argued that in matters of law it was necessary first to cause the people to believe that all things are ordained of the gods.
The trajectory of the evolution of law has not been a steady one. In the New Testament, we find Jesus in trouble with the law for healing a man’s withered hand and for allowing his Disciples to eat corn on the Sabbath. In the central redemptive act of Jesus Christ, we are introduced to the concept of grace which overcame some of the legalism that had crept into the law. In the waning days of the greatness of the Roman Empire and after the first invasion from the Germanic tribes from the north, we find St. Augustine writing in The City of God a comparison of the City of Jerusalem and the City of Babylon. Both cities of course were used in an analogical sense, and the comparison shows how God’s grace is the source of human orderliness. In the Eastern Empire a hundred forty years later, Justinian compiled his code of Roman laws. Then intellectual darkness spread over the events that we have come to regard as civilization. Despite a brief Carolingian revival in the ninth century, it was not until the twelfth century that the concept of law began again to stir the hearts of humankind in western civilization.
The great Roman-Catholic theologian Thomas Aquinas then described what is now known as the first modern theory of natural law. According to Aquinas, by the exercise of right reason, humankind can discern the existence of law in the created moral order which was established by God. He synthesized the philosophy of Aristotle, which had arrived through the great Islamic philosophers through Moorish Spain, with the Platonic tradition that came through the church. You will notice a slight twist in the kaleidoscope from the earlier belief in a law that originated in the divine mind and was physically handed to the people as a gift. At the same time, both the church and the fledgling nation states were searching for the remnants of Roman law in order to justify their respective positions. The Justinian Code was discovered in the City of Pisa. The University of Bologna, the first university established in Europe, obtained the Code of Justinian and became the law school of the whole of Europe. Through this route Roman law found its way even into the English law through the chancery courts and concepts of equity.
There has been a purpose in the reciting of these events other than simply to remind you of things you have probably known in the past but may not have thought about lately. In the entire panorama of events that I have described, there is a common thread. The Creator God is the author of all human orderliness. This is firmly entrenched in our belief systems and in the basis of our culture. The existence–the authenticity–of law always depends on its acceptance in the deepest system of beliefs of the people. When our attempts at law and justice fall short of the mark, we appeal to a “higher justice,” as Dr. King did in his famous Letter from the Birmingham Jail. In doing so, we implicitly recognize a higher authority, as did the patriots in the Declaration of Independence.
At the time that Aquinas described his theory of natural law in the twelfth century, the church and state were engaged in a tremendous struggle for control of the social order. When Aquinas used the term moral order, the church was standing in the wings to pronounce the meaning of morality. In those days, there was no void of metaphysics to yawn at the mere mention of platonic ideals. The universality of law was firmly contained in the belief systems. But, of course, you recall what happened next. The Bubonic Plague–Black Death–swept over Europe in the next century or two, killing twenty-five percent of the population. The Catholic Church became a bit corrupt and received sharp criticism because of the sale of indulgences. There was renaissance and reformation. The age of science ushered in a new basis for the ascertainment of truth in matters natural. The power of social control directly administered by the church was splintered and diminished by the reformation. The power of social control gradually came to be firmly planted in the nation state.
The mighty dreamers of the age of enlightenment introduced the blue print for the modern world. Galileo, Kepler, and Copernicus planted the earth far from the center of the universe. Newton described laws of nature which provided a predictable cosmos that would yield its truths to the scientific method. Descartes said, “I think and therefore I am,” thereby establishing the duality of man as a mind that has a body and establishing rationality as the god that should rule over the emotions and nature. And law became the rule of reason. Thomas More described Utopia; Francis Bacon described the New Atlantis in which the world would be ruled by philosopher kings and by men of science. Thomas Hobbes described life in an imagined state of nature that was short and brutish. He described government—Leviathan—as the artificial creation of the human mind. A little later, Adam Smith wrote The Wealth of Nations. The world was a great clock that God created and wound in the beginning, and deserted for us to discover. These great dreamers searched in vain for natural formulas for human law that would correspond to the physical laws of nature. The nation state, de facto became the source if not the origin of law.
Against this background, it was not difficult for Jeremy Bentham and John Austin, a little over 200 years ago, to come forward with the theory of legal positivism. The nation state makes the law. “Law is the command of the sovereign,” they said. “When courts act as an agent of the sovereign, they legitimately make law,” John Austin echoed. Bentham and Austin could not have drawn the same conclusions six hundred years earlier, when the church was still a temporal power to be reckoned with. Their contemporary, Blackstone, still mouthed the ancient theories of natural law but with a strangely positivistic tone. Blackstone’s works were published in America in the 1770s, which were very critical years, you may recall. Bentham and Austin probably did not carry nearly as much weight as Blackstone with the writers of the Declaration of Independence and the Constitution. But the point is that prior to Bentham and Austin, there was no theory of law that did not depend in some way on God’s creative power. Even the pagans ascribed law to the gods or at least to an ominous power of fate, of definite moral and religious bent. Fate was consulted through oracles and augury to ascertain divine approbation. When we reflect on the death of Socrates, we often forget that the administration of hemlock awaited the arrival of the ship from Delos—which fate could surely have aborted.
Natural law is evident in the writing of the Declaration of Independence. “We hold these truths to be self-evident that all men are created equal; that they are endowed by their Creator with certain inalienable rights.” Men who framed the Constitution had a firm belief in the importance of religion. They did not write a clause into the Constitution separating the function of church and state, and guaranteeing the freedom of exercising religion, as an attack on religion or on religious practices. It was about 1940 before anybody even dreamed that the framers of the Constitution had anything like this in mind. David Smolin of Cumberland Law School writes:
“The religion clauses of the first amendment originally were conceived to regulate competition between Christian denominations. It was the splintering of the church and the ugly specter of intra-Christian religious wars, rather than relations with those who professed other religions, or no religion, that produced America’s separation of church and state.”
At the height of the Civil War when this nation was struggling for its own soul, President Abraham Lincoln declared a National Day of Prayer and Humiliation. He did so at the request of the Senate of the United States. His proclamation declared, “Whereas, the Senate of the United States, devoutly recognizing the supreme authority and just government of Almighty God in all the affairs of men and of nations, has by a resolution requested the President to designate and set apart a day of national prayer and humiliation;” and he went on to set aside the 30th day of April, 1863, as such a day. He called on the people to engage in prayer and fasting. In 1871, Dean Langdale established the case method at Harvard Law School. What better way to study law than to observe what courts actually do? It’s empirical and scientific. In 1882, Oliver Wendell Holmes, Jr., a Civil War Veteran, suggested that law is what a court does, or that law is a reasonable prediction of what a court will do. This is sage advice, if not taken literally. It, in shorthand form, incorporates the actual forces of the social and moral order that create law. But positivists seized upon these statements to prove that it is the function of courts to make law. The case method is a self-fulfilling prophecy. We might as well conclude that butchers make ham. The courts have adeptly moved from the curtailment of congressional law in Marbury vs. Madison, to the declaration of positive law in Miranda vs. Arizona.
We must recognize our Constitution for what it is. It may be the greatest document ever written to describe a formula for the governance of the affairs of humankind. Today we celebrate the wisdom and power reflected in our Constitution, and the liberty that it protects. It is not, however, an oracle which can provide mystical answers to each and every moral crisis which may confront us.
Until a little over two hundred years ago, there was little or no suggestion in western civilization that law has its origin solely in the artificial activities of the human mind. There was little or no question that law is a part of the handiwork of God’s order of creation. The history of positive law—law created by human artifice—coincides with the history of our country. But there is more to law than our own creative power. Faith in law as a gift of God, a part of the order of creation, is essential to its moral force. We approach law and justice only through the Grace of God. There is no question that whatever orderliness exists in society depends on our faith. It depends on what we really believe–and what we believe is not immaterial.
There is no question that we will live by faith. We cannot possibly scientifically prove the very things that are necessary even to be human. Science does not address the great questions of love, of loyalty, of dedication, of devotion. Science and rationality can invent atomic bombs and weapons of mass destruction as easily as they can invent Salk vaccines. We have no guarantee that the Congress of the United States will always act wisely in the enactment of law. We have no assurance that the Supreme Court of the United States will always make the right decisions in interpreting the fundamental documents that constitute our national existence. We have no assurance that the State of Alabama and its courts and legislatures will always be correct and will always truly enact those measures which are just and needful. The origin of law should not be confused with its immediate human sources. Law is entitled to veneration and respect because it originates in the realm of justice and is created by a power greater than our own minds. We search for just answers because we believe they are there.
To utilize Plato’s parable, we may be forever chained in the cave and always see mere shadows of justice and other ideals, but we must have a faith in a reality that is in the bright light beyond the cave. Like St. Paul, we may see only through a glass darkly; but, nevertheless, we have confidence that there is truth and justice which we will someday see face to face. Unquestionably, law comes into our immediate view through the medium of human beings. Law is always a mere approximation of justice. Nevertheless, justice which is the polestar of our aspirations to law, is the greatest article of faith which was ever posited in the belief system of western civilization. We must not lose the essential connection between our law and our faith.
Lest you think that I have departed from the tradition of our law, rather than giving it powerful affirmation on this Law Day, in which we celebrate law, let me close with these haunting words from George Washington’s Farewell Address.
“Of all the dispositions and habits, which lead to political prosperity, Religion, and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure–reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.
” ‘Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of Free Government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?”
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