What is Legal is not always Right.
Does the law determine what is right? Where do we determine what is right? Is our country based in majoritarianism or are we in submission to God? Much debate surrounds the appointment of the next Supreme Court justice to replace Justice Scalia. Will the Republicans confirm Obama’s appointment? Will the next President choose the appointment? Five of the eight current justices are Catholic (Kennedy, Thomas, Alito, Roberts, and Sotomayor) The other three are Jewish (Ginsburg, Breyer, Kagan) One might expect them to come to overwhelming decisions that reflect that true justice can only be obtained if the law comes from God. This seems not to be the case.
Let us back up though. Arthur Leff in 1979 may have framed the situation best in an article in the Duke Law Journal regarding constitutional law. “I want to believe—and so do you—in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoratively and unambiguously direct us how to live righteously. I also want to believe—and so do you—in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.”
By “findable” rules, he’s referring to the Torah. It is the law of God written down. It is a natural law of the universe that is found by man and written down. Something that is more eternal than creation. However, we want to rule ourselves. We want to create the law that fits us best. However, we cannot escape the sensation to want to find an order that is right outside of ourselves. As Leff puts it, each law that is written down ultimately someone may ask, “sez, who?” Who will enforce it? By what authority does it come?
We can think of many different setups of government. 1. A majority of the people decides what is law. 2. A committee of people decides the law. 3. A tyrant decides. If we talk about a democracy or majoritarianism, does the majority always choose what is right? Put another way; is the majority always in the right? In our country, blacks and women would have a very different position if the majority were right. If a minority had not pointed to a higher law, blacks and women would have much different standing.
If we speak of a committee ruling or communist party or socialist group or even a republic, or ultimately a small group of people, either chosen by the people or not, do they decide correctly what is right? Or perhaps a king, dictator, despot, or supreme leader, can they decide what is right?
Where do these people come up with the law? Is it in nature? Is it from God? Is it from inside themselves and how they feel? Eventually, we find that the speaker(s) of the law must have power. It is the ones with power ruling over the ones without. Even if those with the so-called “power” may be minority groups. The question of law comes down to, “sez who?” These are the legislators of the law.
The judges of the law are to determine what the law says. They are to judge whether any action is lawful or not. In the United States, we separated the powers of the legislators of the law and the evaluators of the law. My question is: how do we know that the law is right if God’s Word is not the foundation? How do we keep a legislator (or group) from deciding something “legal” but that does not agree with the natural law? How do we keep the judge honest? If they are not submitted to God, does not their power come from themselves? God is the only one who is the Ultimate Legislator and Ultimate Judge.
God’s speech is in the form of “performative utterances.” An example of a “performative utterance” is “I apologize” or “I promise.” The act of saying the speech is the action as well. God is the only one Who when He says, “Light be!” light instantly appears. He is the ultimate backer of His Word. He will judge those in eternity whether they have met the requirement of the law. Only in Him can we find true justice. He determines and judges what is right.
The law of our world today is about power; not about justice. I would argue that everyone knows that “the taking of an innocent life is wrong.” What we have done today is to add-on qualifications for that understanding. We redefine what “innocent” is and what “life” is. “Life begins at 24 weeks…err…sometime around then…” “Having cystic fibrosis or Downs syndrome is not really a good life. It is a life of suffering.” Where do legislators and judges get their power to say when a life begins? Scientifically we know that an implanted fertilized egg has everything needed chromosomally and environmentally to grow into an adult person. How is removal from the uterus premature not unlike suffocating or starving an adult? Why is convenience (99% of the time), whether be it financial, emotional, or social convenience, a justifiable reason for ending this human’s life? To be an ethical abortionist, one would have to set out with the premise that “life is utterly absurd and meaningless.” It would not be hard then to ethically end any human life.
“But I don’t have the resources.” Or “this child will be suffering and deformed.” Is not all life about suffering? Does not suffering tell us that something is wrong? Where is the justification not to finish off any one who might break an arm or even stub a toe? Even the most deformed person can bring a joy to those around them.
Before 1973, every child born had the “right” to exist. After 1973, every child was “chosen” to exist. It was your “legal” right to end your pregnancy after 1973. It disagreed with the natural law that “all life is sacred.”
But what if I’ve fallen short of that natural law? What if I’ve had an abortion? Here’s the good news, the Ultimate Judge and Legislator is also the God of mercy. He is able to heal your wounds. We know that all have fallen short of the glory of God (Rom 3:23) and the penalty (wages) for sin is death. (Rom 6:23) But God established His righteousness apart from the law in Christ. (Rom 3:21-22). He paid the penalty for our sin. He established your right to life by Christ’s faithfulness.
What is legal is not always right. The founders of this nation knew that we had the “right” to life, liberty and the pursuit of happiness. All of the current Supreme Court justices claim to come from Judeo-Christian beliefs. The law of the court and the judge of the justices may not agree with the natural law. Some may not find justice in this world. It took over a hundred years for us to recognized that a black man/woman had the “right” to life, liberty and the pursuit of happiness. We set out knowing that “all men are created equal.” We had to relearn what we already knew that a black man is a man. We have redefined what is “innocent” and what is “life” in order to justify our convenience. Where will it end if any “minor defect” will be criteria for ending a pregnancy? Between a Muhammad Ali or a Stephen Hawking in utero, who would we choose? Should we discard a man with Marfan’s-like characteristics with multiple endrocrine neoplasias; a man with a large jaw, drooping eyelids and “pseudo-depression”; a man that likely has MEN2B malformation? Would we be better off without that tall intermittently depressed Abraham Lincoln?
And what about liberty or freedom? “For freedom Christ has set us free. Stand firm, then, and do not be subject again to the yoke of slavery.” (Gal 5:1) Christ set us free for freedom’s sake. He set us free so that we are not under the bondage of men. If the law is from God, we are FREE to serve Him. We are not free to do whatever we want. (Gal 5:13-14) True freedom is granted in serving Him. And for the Christian, happiness is tied up in trusting the Lord. “Taste and see that the Lord is good. How Blessed is the one who takes shelter in Him” (Psalm 34:8) How happy is the one who trusts in Him!
It may be legal but it isn’t always right. Nevertheless, “He chose us in Christ before the foundation of the world that we may be holy and unblemished in his sight in love.” (Eph 1:4) We were deformed and imperfect but He adopted us as His own through Christ. (Eph 1:5) What shall we do now then? “He has told you, O man, what is good; And what does the Lord require of you? But to do justice, and to love kindness, and to walk humbly with your God.” (Micah 6:8)
Arthur Leff’s “Unspeakable Ethics, Unnatural Law”