Christian Philosophy and the Foundation of Law

by James Reed

Readers of this periodical have been regularly updated about the plight of Canadian Ernst Zundel. Zundel has been a publisher of so-called 'race hate' literature questioning the alleged six million figure of Jews killed in the Holocaust. He has been hounded by those whose task it is in the Orwellian State of Canada, to hound the politically incorrect and keep under constant police surveillance. At present, he is in prison facing unlimited gaoling without charge or trial, as a Canadian judge has decided that the 64-year old was a 'terrorist' and a threat to Canada's 'national security'. Yet, in his entire life, Zundel has not been charged or convicted of any violent act. Zundel remains a prisoner of the Canadian State, based upon 'secret evidence' that neither Zundel nor his counsel have seen and which, of course, they cannot refute.

Anti-terrorist laws across the West, passed in the aftermath of the September 11 terrorism attacks have fundamentally eroded basic liberties that have for centuries been the foundation stones of Western culture. An assault on such freedoms was begun a number of years previously when various 'race hate' laws were passed by parliaments in Britain, France, Germany, Australia, Canada and most other nations in the West, with the notable exception of the United States. What, from the perspective of the philosophy of law - jurisprudence - is wrong with Zundel's treatment, if anything? If an anti-terrorist law is passed which states that people may be imprisoned on the basis of 'secret evidence', what, if anything is wrong with that?

Nothing, Say Legal Positivists
The ruling philosophy of law of the 20th century was legal positivism. Positivism philosophy had some anticipation in ancient Greek thought with the Sceptics and Sophists, but is primarily a product of the rise of science and industrial society. Whereas in the classical world theology and philosophy yielded knowledge, for the positivist knowledge comes from sensory experience alone.

This philosophy of empiricism was set out forcefully by the Scottish philosopher David Hume (1711-1776) who in his A Treatise of Human Nature, attracted the metaphysical systems of his day. His Dialogues Concerning Natural Religion, attacked the traditional arguments for the existence of God and miracles. In the Treatise of Human Nature, Hume introduced the is - ought distinction which has influenced law, ethics and the social sciences ever since.

The is - ought thesis is that moral conclusions cannot be validly inferred from non-moral factual premises. Facts are value-neutral. This immediately raises a difficulty about how moral statements can be grounded in reality and justified at all. A school of 20th century philosophy derived from Hume known as moral subjectivism holds that moral statements are not objectively justifiable but are mere expressions of emotional support.

For centuries Natural Law theorists (more on this below) held that morality and law are entwined and ultimately grounded upon the religious realities of the Christian Faith. In England a school of thought known as Utilitarianism, involving philosophers such as Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873), abandoned the Christian foundation of law in favour of the view that justice is grounded in utility, the greatest happiness for the greatest number. Benthem and Mill directly influenced the legal positivist philosopher John Austin (1790-1859). In his principle works, The Province of Jurisprudence Determined (1832) and The Lectures on Jurisprudence or The Philosophy of Positivist Law (1863), Austin distinguished between two questions: What is law? and (2) what ought law to be? Austin's answers constituted the core of legal positivism.

He stated legal positivism in two theses
The separability thesis: there is no necessary connection between law and morality. The social thesis: what counts as law in a particular society is a matter of convention or social fact. Without a grounding in God and morality, Austin turned to the power of the State to ground his legal theory. Law is an order of a sovereign backed by sanctions and force.

The Oxford don H.L.A. Hart gave the most significant statement of legal positivism in the 20th century in his book A Concept of Law (1951). Hart took Austin's godless legal positivism and made it even more atheistic, if that's possible. Instead of the sovereign Hart substituted sets of legal rules. For Hart the sovereign should be an office, not a person and an office is an institution and an institution is made up of rules. Rules authorise actions by public officials such as judges.

On Hart's position anti-terrorism laws or "race hate" laws are authoritative because officials such as judges accept such rules from an "internal point of view"! That is, they believe that such rules are authoritative and binding. So, law is valid because it is accepted by the legal community.

As with all atheistic systems of philosophy, there is a problem of a collapse into relativism or conventionalism, that is, that a system is true only because it is thought to be true. Why should a relevant official accepting a law from an "internal point of view" constitute a ground for obedience? Why should citizens accept such officials as legitimate and authoritative? To say that we should obey because such officials are agents of the State is circular reasoning because on Hart's analysis the State's legal system is itself comprised of rules. The question of the ultimate ground of legal authority is not addressed in a satisfactory fashion by legal positivism.

Law Founded Upon God
A much older tradition of legal philosophy, natural law theory maintains that laws can be unjust because they are contrary to moral law or God's law. All natural law theorists, both traditional and modern believe in the existence of a "higher law" by which social laws can be judged. The idea of a "higher law" can be found in the work of Greek dramatists such as Sophocles (496-406 BC) in his play Antigone and in Greek philosophers such as Plato (428-348 BC) Politics, Nichomachean Ethics.

Common to all of ancient thought were the ideas that:
(1) law is unchanging over time;
(2) there is no social relativity;
(3) reason enables access to this "higher law";
(4) only "just" laws are really laws and
(5) truth and justice is inherent in the idea of law.

The same concerns are also present in Roman law. Marcus Tullius Cicero (106-43 BC), a Roman Statesman and philosopher in his Republic gave a good summary of the classical natural law position:
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions… And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations for all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator and its enforcing judge.

For the Christian, God is the creative source of Being who brings into existence the natural law binding on all mankind. Thomas Aquinas (1224-1274) the greatest Christian natural law theorist, in his Summa Theologia defined law as "an ordinance of reason for the common good, made by Him [i.e., God] who has care of all the community and promulgated." Law must therefore be just "having the power of binding the conscience". Just laws are ordered to the common good. For Aquinas, citizens have no obligation to obey unjust laws: "an unjust law is not law" and unjust laws "are acts of violence rather than laws."

Richard O'Sullivan KC in his article "Christian Philosophy in the Common Law" (No. 6 of the Aquinas Papers) has performed an excellent act of scholarship in documenting the Christian philosophical basis of common law. Common law is the law made by judges in deciding cases, by contrast to the laws enacted by parliament. The common law had its origins in England in the 12th and 13th centuries and naturally enough had a Christian inspiration and character.

Christian kings and Churchmen were also Canonists. From the time of at least the tenth century, the Coronation Oath had expressed an undertaking to honour God and keep the Christian Faith inviolate. William of Norman continued this tradition. The "father of common law" Henry of Bracton also re-affirmed this divine duty of kings.

William of Norman made a decree, the Charter of William which separated the "spiritual" and "temporal" Courts so that all bishops could not hold pleas in the "Hundred Court". There was to be a separation of Church and State authority, each supreme in its own sphere, but both deriving its authority from God. This view of the relationship between the Church and the State was put forward in the fifth century by Pope Gelasius I.

Unlike in ancient Rome, with its doctrine of State absolutism, Christianity introduced the idea that man's moral and spiritual life was beyond the reach of the State. "Render unto Caesar the things that are Caesar's and to God the things that are God's." All of the great lawyers and jurists until the 18th century in England accepted that jurisprudence, the philosophy of law, was grounded upon Christian morality. "The king is under God and the law," said the jurist Bracton, a principle which was restated in the famous quarrel between the jurist Sir Edward Coke and King James I.

Christian theology held that man by nature was free. Without free choice, original sin made no sense. The free and lawful person also became the fundamental conceptual framework of the common law. Such free persons also possessed human dignity, having been made in the image of God. "Everyman" is thus free, responsible and good - and the burden of proof showing otherwise in a trial must therefore rest entirely upon the State.

Returning to Zundel
This very brief 'cook's tour' of the philosophy of law is sufficient for us to see what is wrong with Zundel's treatment by imprisonment based upon secret information. Eric D. Butler in Constitutional Barriers to Serfdom noted that the Magna Carta was a profoundly important Christian document because it outlined a foundation of individual sovereignty. It defined the fundamental common law principle that "all persons, officials, no less than private individuals are equal before the law, are judged by the same tribunals, and are subject to the same rules." That is the doctrine of the rule of law. The purpose of government, Butler soundly argued, was not to be an end in itself, but rather to be a means for "electors to lay down the rules under which the individual can provide his own security in free association with his fellows."

If this was not so then governments could "legally" put people to death for no stated reason - or imprison them. With all the great classical and modern natural law thinkers, we can say that such "laws" are not real "laws" but mere expressions of corrupt political power, totally lacking in a moral imperative for acceptance. Such punishments and imprisonments are thus contrary to the moral law and the law of God.