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.
[1] Augustine, City of God, Ch. 15.
[2]The Western Christian tradition’s concept of “original sin” holds that all human beings share in the “Fall” of Adam, the first human, and consequently that all humanity is enslaved to sin. See Alister McGrath, Christian Theology: An Introduction (Blackwell 2001), at 445-446. All orthodox Western Christian traditions resist “Pelagianism,” the doctrine taught by the monk Pelagius that human beings could improve themselves and gain salvation and true goodness by their own merit. However, Catholic thinkers, such as Thomas Aquinas, held that sin did not erase the human capacity for reason. Human beings, therefore, remain capable of understanding what is right and good according to “natural reason” even after the fall. All human beings, according to Aquinas, “possess a natural aptitude for understanding and loving God; and this aptitude consists in the very nature of the mind, which is common to all men” (Summa Theologica, I.93.4.). The “likeness” of God, however, is a resemblance to God’s glory, which can only be recovered by those who are regenerated by God. (Ibid.) A person can only “habitually” know and love God through grace. (Ibid.) People therefore are capable of knowing and doing good, but can only habitually do good through divine grace, and can only become perfect and thereby have the “likeness” of God restored through ultimate divine salvation.
In contrast, Reformed thinkers held that sin thoroughly corrupted human will and reason, albeit without erasing the “image of God” in humanity. See Donald Bloesch, Essentials of Evangelical Theology (Hendrickson 2006), at 90-92 (summarizing Reformed thought on “total depravity”). This is stated with Puritanical clarity in the Heidelberg Catechism:
Question 8. Are we then so corrupt that we are wholly incapable of doing any good, and inclined to all wickedness?
Answer: Indeed we are; except we are regenerated by the Spirit of God
Both Catholic and Protestant / Reformed thinkers have always agreed, however, that sin infects all of human life. Indeed, there has been significant progress in recent years in ecumenical dialogue between Catholics and some Protestants concerning the contentious relationship between original sin, the nature of human depravity, and salvation. See Joint Declaration on the Doctrine of Justification by the Lutheran World Federation and the Catholic Church (1999), available at http://www.vatican.va/roman_curia/pontifical_councils/chrstuni/documents/rc_pc_chrstuni_doc_31101999_cath-luth-joint-declaration_en.html (last visited March 8, 2010). The Joint Statement states that:
We confess together that all persons depend completely on the saving grace of God for their salvation. The freedom they possess in relation to persons and the things of this world is no freedom in relation to salvation, for as sinners they stand under God’s judgment and are incapable of turning by themselves to God to seek deliverance, of meriting their justification before God, or of attaining salvation by their own abilities. Justification takes place solely by God’s grace.
Id. ¶ 19. The Eastern Christian perspective is somewhat different. For Eastern Orthodoxy, humanity is tarnished by sin, but the essence of human nature cannot be corrupted, because it was created “good” by God. See James R. Payton, Jr., Light from the Christian East: An Introduction to the Orthodox Tradition (IVP Academic 2007), at 112-17. Nevertheless, in the Eastern tradition, “[s]ince our first parents’ original sin . . . human beings suffer from the terrible disadvantage that humankind has a long history of mortality, sin and disobedience. . . . We thus freely but inevitably fail to live up to our logos — and so fail God.” Id.. at 114. A detailed treatment of the Eastern view is beyond the scope of this Chapter, which focuses on the Western theological and legal traditions.
[3] Romans 7:21-25 (NIV).
[4] Harold J. Berman, Law and Revolution (Harvard Univ. Press 1983), at 166-71.
[5] Id. at 169.
[6] Id. at 170. Berman marks the creation of the All Soul’s Day holiday shortly after the year 1000 as the watershed in changing attitudes about the relationship between temporal and eternal judgment. Id.
[7] Id. at 171.
[8] Id.
[9] Id. at 172.
[10] Id. Berman quotes an influential eleventh-century tract as follows: “punishment (poena) is a hurt (laesio) which punishes and avenges (vindicat) what one commits.” Id. (quoting De Vera et Falsa Poenitentia, chap. 10),
[11] Id. at 185-98.
[12] Id. at 189.
[13] Id.
[14] Id. at 189-90.
[15] See, e.g., Martin Luther, On the Bondage of the Will, available at http://www.ccel.org/ccel/luther/bondage.titlepage.html (last visited March 8, 2010).
[16] See generally John Witte, Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (Cambridge Univ. Press 2007).
[17] Id. at 15.