Law, Neurobiology, and the Soul: Part II — Sin, the Soul, and Secular Law

Polish food and drink!).  I’m presenting a version of my paper Towards a Critical Realist Theology of Law, Neurobiology and the Soul.  This paper in many ways serves as a sketch of my dissertation project, which I’m sure will change and develop as I proceed.  I’ll post portions of it in this series of posts.  Below is Part II, and here is a link to Part I.

Sin, the Soul, and the Need for Secular Law

If the rational soul inclines human beings to God, why do we end up with the chaos of Judges 19 when “everyone does as he or she sees fit” and gross violence ensues?  The answer – or at least a significant part of the answer, particularly in Western Christian theology – is sin.  Augustine, in particular, connected the need for a King – secular law – to sin.  Without sin, man would live by the divine law and would not become subject to other men.  Because of sin, men need the scourge and penalty of human law:

And beyond question it is a happier thing to be the slave of a man than of a lust; for even this very lust of ruling, to mention no others, lays waste men’s hearts with the most ruthless dominion. Moreover, when men are subjected to one another in a peaceful order, the lowly position does as much good to the servant as the proud position does harm to the master. But by nature, as God first created us, no one is the slave either of man or of sin. This servitude is, however, penal, and is appointed by that law which enjoins the preservation of the natural order and forbids its disturbance; for if nothing had been done in violation of that law, there would have been nothing to restrain by penal servitude. And therefore the apostle admonishes slaves to be subject to their masters, and to serve them heartily and with good-will, so that, if they cannot be freed by their masters, they may themselves make their slavery in some sort free, by serving not in crafty fear, but in faithful love, until all unrighteousness pass away, and all principality and every human power be brought to nothing, and God be all in all.[1]

The rational soul’s natural inclination towards God and the good, then, is corrupted and must be disciplined by positive law.  The extent of this corruption remains a lively debate in the Christian tradition.  Is reason erased or merely limited by sin?  Catholic, Reformed and Eastern Orthodox thinkers disagree with each other, and often among themselves.[2] Yet all agree that human beings, absent divine grace, are bound to, or at least (in the Eastern tradition) are deeply influenced by, sin.  Indeed, we find this theme embedded in the heart of St. Paul’s theological anthropology in Romans 7:

So I find this law at work: When I want to do good, evil is right there with me. For in my inner being I delight in God’s law; but I see another law at work in the members of my body, waging war against the law of my mind and making me a prisoner of the law of sin at work within my members. What a wretched man I am! Who will rescue me from this body of death? Thanks be to God—through Jesus Christ our Lord!
So then, I myself in my mind am a slave to God’s law, but in the sinful nature a slave to the law of sin.[3]

The interplay of reason, sin, and law is ingrained in the Western legal and ethical tradition.  As Harold Berman traces the trajectory of Western jurisprudence, in the interplay of Roman law with Biblical sources, the canon law came to focus on the role of positive law in preparing the soul for life with God after death.[4] Initially, the Christian theology had little use for temporal law.  Christ was expected to return within the Church’s founding generation, and  “[a]s long as the Last Judgment was understood solely as the inauguration of divine rule in the world to come, imminent or already present, it did not inspire the creation of parallel legal institutions for the interim period on earth.  The vision was essentially apocalyptic rather than prophetic.”[5]

Western Christian thinking began to shift toward the end of the first millennium, however, when it became clear that Christ’s return would not be immediate.  Elaborate doctrines of purgatory and penances were developed by the Church to deal with “ordinary” life in the absence of Christ’s return.[6] Under this system, “sin” took on a legal character, “as specific wrongful acts of desires or thoughts for which penalties must be paid in temporal suffering, whether in this life or the next.”[7] The hierarchy of sins and punishments “was to be established primarily by the moral law revealed by God first in Scripture (divine law) and second in the hearts and minds of men (natural law); but it was to be further defined by the positive laws of the church.”[8]

The resulting legal system heavily emphasized notions of human culpability.  Penitential works became identified with punishment that would expurgate the sinner of taint so that time in Purgatory could be remitted.[9] Penance was a means of God’s vengeance against human rebellion.[10]

These connections between soul and will, and law and penance, led to detailed canon law rules for assessing a criminal’s mental state so that the appropriate punishment could be meted out.[11] The canon lawyers required “a specific inquiry into the mind and heart and soul of the accused.”[12] The canon law required proof of both an intentional act and proof that the external act “revealed a depraved mind and heart and soul,” thus anticipating modern criminal law’s categories of actus rea and mens rea.[13] They developed defenses for wrongful acts committed without requisite malicious intent, for example, as a result of mistake or pursuant to a just reason such as self-defense.[14]

Although the ferment of the Age of Anxiety and subsequently of the Protestant Reformation broke down the explicitly ecclesial and salvific functions of positive law, the tradition that positive law serves to punish and correct intentional behavior persisted.  In the Reformed traditions, law was no longer understood as serving any purgative function.  Indeed, particularly in the Lutheran tradition, “law” was considered antithetical to “grace” in the economy of salvation.[15] Sin could be expurgated only by God’s grace in applying the merits of the Christ’s atoning death to the sinner.  Nevertheless, particularly in Reformed traditions influenced by Calvinism, positive law was understood as part of the sanctification of the elect within the covenant community.[16] John Witte summarizes the Calvinist-Puritan view of positive law as follows:

Every person is a prophet, priest, and king, and responsible to exhort, minster and rule in the community.  Every person thus stands equal before God and before his or her neighbor.  Every person is vested with a natural liberty to live, to believe, to love and serve God and neighbor.  Every person is entitled to the vernacular Scripture, to education, to work in a vocation.  On the other hand, every person is sinful and prone to evil and egoism.  Every person needs the restraint of the law to deter him from evil, and to drive him to repentance.  Every person needs the association of others to exhort, minister, and rule him with law and with love.  Every person, therefore, is inherently a communal creature.  Every person belongs to a family, a church, a political community.[17]

In both the Catholic and Protestant traditions, then, positive law served a penal and restorative function.  Law ultimately was designed to bend the will towards God and to lead the inner person, the “soul,” into fellowship with Him.