A Jurisprudence of Aspiration

Here follow some rather informal meditations on the relationship between law and morality, which I typed up at the suggestion of Oliver O'Donovan as groundwork for my paper on Old Testament Law.  They are something of a stab in the dark, and may be off the mark, and at points they may be simply stating the obvious.  But they helped me make sense of some ideas that have been banging around in the dark recesses of my mind since I came upon the quote regarding a "jurisprudence of aspiration" in an essay by Stanley Hauerwas, a kernel long buried that is now proving extraordinarily fruitful for my work in Old Testament Law.

In today’s permissive liberal society, we draw a rather stark distinction between law and morality.  Indeed, one could say that such a distinction is a pillar of Western liberalism, which, abandoning the goal of a public consensus regarding virtue, restricted the task of law to that of restraining vice, and thus protecting a vast sphere in which individuals or groups could pursue their private conceptions of morality.  The original impetus for this was ostensibly not the atomization of the quest for virtue, but the tolerance of various Christian denominations to pursue their differing visions of dogma and morality.  Virtue was still conceived, within many of these Christian groups, as public and social, to be regulated by authority and pursued for the common good.  Nevertheless, the trajectory set by liberalism proved difficult to restrain, and increasingly the communities engaged in shared pursuit of public virtue were dissolved until society consisted of myriad warring private pursuits of moral virtue, all permitted within the broad parameters of public law.  

In our modern conception, law is now more or less “that which we are not allowed to do”; what we are then supposed to do is quite another matter, falling under the heading of “morality,” and is our own business.  

Concomitant with this attenuated role of law has been a sharpening of its coercive character.  Given that law now functions as the boundary for protecting minimal order and the very possibility of moral behaviour, it needs to police this boundary with uncompromising physical force.  As Stanley Hauerwas says, “Ironically, exactly because liberal societies have tended to undercut the moral aspirations fo the law in the name of individual freedom, the law has become increasingly coercive in the interest of maintaining order.”  Indeed, so far has law fallen from being a statement of moral consensus that it is now generally felt that law is only meaningful to the extent that it is coercive, and only insofar as it is enforced is it in any way binding.  Law extends only so far as the reach of the policeman’s baton, and beyond that lies the purely voluntary morality.  Law, we may say, is the boundary, morality or virtue is the goal.  

If this is so, it is surely worthy asking why, in our experience, the reach of law and government in modern societies seems so much more invasive now than ever before.  If law now confines itself to preventing harm, rather than promoting virtue, why should the invasive reach of law has actually increased?  The answer, I would hazard, is that the surest and simplest way to prevent harm is to promote virtue.  When the pursuit of virtue is abandoned, the potential vices that fill the remaining vacuum are potentially infinite, and so the possible harms that can be caused will continue to multiply.  As law seeks to react to each of these sources of harm, and prevent them, law must multiply and multiply until society is intolerably burdened with its weight.

In any case, Christianity has by and large accepted the neat division between law and morality, with the liberals accepting that morality is, more or less, completely voluntary, and conservatives continuing to insist that moral choices should be censured but, by and large, uncensored.  That is to say, conservatives by and large contend for the necessity of right moral action, but continue to place the responsibility for the pursuit of virtue within the private individual, who may may only be influenced by rational persuasion.

It is no secret, of course, to any student of political or church history that this conception of law and morality was not necessarily shared by pre-modern civilizations, which generally accepted both that law extended beyond the bounds of enforceability and mere restraint of particularly harmful vices, and that morality could be imposed by more coercive tools than mere rational persuasion.  While it would not be accurate to say that no distinction existed between civil commands that achieved their effect via more visible forms of reward and punishment, and religious commands that did so through more invisible or imprecise forms, the two certainly stood in much closer relationship, and the lines occasionally blurred.  Civil codes, charged with religious language, expressed principles of expected and normative virtuous behaviour that were not necessarily enforced by police and magistrates, but which were not thereby ineffectual.  Religious codes, overlapping with the decrees of civil authorities, were far from voluntary recommendations, but enforced obedience through ecclesiastical and ritual sanctions of inclusion and exclusion, obligations of penance and purification, and threats and promises of divine punishment and reward.  

This blurriness tended to be mutually reinforcing; inasmuch as ancient societies did not have the tremendous resources and structures for coercive law enforcement that we have today, it made sense for them to encourage a more full-orbed approach to law, in which motives of honor and piety were wrapped up with the more penal motivations toward law-obedience.  Likewise, inasmuch as religion dominated the societies and united them in in the pursuit and regulation of virtue, there was less need to emphasize or resort to the more coercive functions of the law.  Accordingly, once this synthesis began to collapse, the retreat of religion into the voluntary sphere and the enhancement of coercive civil institutions went hand-in-hand, each encouraging the other. 

Not, of course, that we can trace a straightforward ancient/modern dichotomy, as St. Augustine’s critiques of Roman public sentiment in Civitas Dei Book II remind us:  “Law should not be rigorous; low indulgences should not be proscribed.  Rulers should not bother themselves with getting virtuous subjects, simply quiescent ones.  No one should be liable to court proceedings if he has not infringed or done harm to the property, real estate, or physical safety of another person without consent; but everyone should be free to do with himself, his dependents, and consenting associates exactly what he likes.”  However, it is worth remembering that the reason this critique has such force for Augustine is that classical Roman thinkers (e.g., Cicero) would have accepted that this kind of law was a perversion, and would have vigorously defended Rome against the charge. 

Christianity’s role in changing conceptions of law has been complex and ambiguous.  On the one hand, since St. Paul, there has been a strong anti-law strain in Christian thought, claiming that law is an enemy to be overcome by love, the source of true virtue.  On the other hand, others like Aquinas have given law a central and exalted place, and is a chief means of creating a virtuous society.  With Augustine we can see the ambiguity, for he simultaneously criticizes, as we have just seen, a permissive view of law that is not oriented toward true virtues, yet at other points (within the same work) shows great skepticism about the power of law to embody or create morality, and seems to advocate a fairly minimal, pre-moral function for law. 

The anti-law (or the low view of law) tendency in Christian theology certainly owes much to the New Testament itself, which, New Perspective on Paul granted, still tended to deemphasize the value of external observance of law in favor of internally motivated righteousness.  Christ called on his followers to radicalize the external precepts of the Old Testament law by living out the goal of the law from the heart, through love.  Action motivated by love was more praiseworthy (as well as more effective) that action motivated by external constraint, and Christians thus began to favor a righteousness led by the Spirit rather than by civil laws.  However, this shift, while certainly real, should not be overemphasized in light of the much more radical shift that new interpretations of the New Testament spawned in the Reformation.

Luther, with his polemics against law and polarization of outward works-righteousness and the inward righteousness of faith, helped pave the way for a much more disjunctive reading of Christ’s relationship to Moses.  Christ’s reminder that “I came not to abolish, but to fulfill the law” was increasingly forgotten or marginalized.  Since the righteousness of Christ now came from a faith that was antithetical to law, a gap was opened between the Church’s cultivation of true virtue in the heart, and the State’s restraint of vice (but not cultivation of virtue) in the public realm by law.  This gap opened slowly, but inevitably, as civil laws increasingly came to confine themselves to policing the boundaries of social order by force, and the churches took on an increasingly voluntary role in encouraging morality within these boundaries.

If we wish to avoid this trajectory of modernity, what shall we say about law and morality.  Liberalism’s error, it would seem, does not consist necessarily in characterizing law as the boundary and morality/virtue as the goal.  Even Aquinas believed that law was not in itself the goal, and could not itself ensure the goal; it could encourage virtue, but it could not create it.  Aquinas, too, believed that law was a boundary around the pursuit of virtue, the goal.  The difference between our modern conception and his, then, is the size and shape of that boundary.  For liberalism, law is a broad fence encircling an amorphous space within which individuals may freely range in pursuit of the elusive goal of moral virtue.  In the older Christian understanding (and, it would seem, in the Torah), law functions as the walls on either side of a road leading men to a virtuous goal.  Law does not in itself reach or guarantee the moral goal, it is not in itself the pathway of virtue, but (in contrast to liberal theory) law recognizes that such a pathway exists, and it safeguards it, preventing those who wander from missing by too much the straight path, and guiding them towards its destination.  

But in this understanding, in which law functions as a pointer as much as a boundary, law is not so inseparable from coercion.  This conception has much in common with what Robert Rodes calls “jurisprudence of aspiration,” in which the law functions as 

“an expression of what we aspire to as a community, ‘which is not necessarily what we can realistically hope to accomplish.  If as a community we aspire to live virtuously, to deal virtuously with one another, to encourage and support one another in leading virtuous lives, then the law must bear an effective witness to the whole of that aspiration rather than merely coerce or manipulate a measure of compliance with some part.  It was no sentimentalist or visionary, but the ever-practical Justice Holmes who said that “The law is the witness and deposit of our moral life.  Its history is the history of the moral development of the race.  The practice of it, in spite of popular jests, tends to make good citizens and good men.”  If we concern ourselves only with what can or should be enforced, we overlook this function of our law, and, as a consequence, badly attenuate the moral life of our society.’”

A Very Contrary Berry

A sparkling gem of a quotation mined from Wendell Berry's fantastic The Unsettling America, which offers innumerable other nuggets of brilliance to be mined (or perhaps, to choose a metaphor more to his liking, kernels of brilliance to be gleaned):

"The first, and best known, hazard of the specialist system is that it produces specialists--people who are elaborately and expensively trained to do one thing. We get into absurdity very quickly here. There are, for instance, educators who have nothing to teach, communicators who have nothing to say, medical doctors skilled at expensive cures for diseases that they have no skill, and no interest, in preventing. More common, and more damaging, are the inventors, manufacturers, and salesmen of devices who have no concern for the possible effects of those devices. Specialization is thus seen to be a way of institutionalizing, justifying, and paying highly for a calamitous disintegration and scattering-out of the various functions of character, workmanship, care, conscience, responsibility....

"The beneficiary of this regime of specialists ought to be the happiest of mortals--or so we are expected to believe. All of his vital concerns are in the hands of certified experts. He is a certified expert himself and as such he earns more money in a year than all his great-grandparents put together. Between stints at his job he has nothing to do but mow his lawn with a sit-down lawn mower, or watch other certified experts on television. At suppertime he may eat a tray of ready-prepared food, which he and his wife (also a certified expert) procure at a cost only of money, transportation, and the pushing of a button. For a few minutes between supper and sleep he may catch a glimpse of his children, who since breakfast have been in the care of education experts, basketball or marching-band experts, or perhaps legal experts.

"The fact is, however, that this is probably the most unhappy average citizen in the history of the world. He has not the power to provide himself with anything but money, and his money is inflating like a balloon and drifting away, subject to historical circumstances and the power of other people. From morning to night he does not touch anything that he has produced himself, in which he can take pride. For all his leisure and recreation, he feels bad, he looks bad, he is overweight, his health is poor. His air, water, and food are all known to contain poisons. There is a fair chance that he will die of suffocation. He suspects that his love life is not as fulfilling as other people's. He wishes he had been born sooner, or later. he does not know why his children are the way they are. He does not understand what they say. He does not care much and does not know why he does not care. He does not know what his wife wants or what he wants. Certain advertisements and pictures in magazines make him suspect that he is basically unattractive. He feels that all his possessions are under threat of pillage. He does not know what he would do if he lost his job, if the economy failed, if the utility companies failed, if the police went on strike, if the truckers went on strike, if his wife left him, if his children ran away, if he should be found to be incurably ill. And for these anxieties, of course, he consults certified experts, who in turn consult certified experts about their anxieties."

Hart on Christ and Nothing

In this flat-out phenomenal essay, David Bentley Hart argues that there is no danger of our culture reverting into a kind of paganism; on the contrary, the only remaining alternative to Christianity in Western society is the nihilism of individualist self-love. This is far worse than the rather more noble ancient paganism, which, for all its problems, at least had some sense of the numinous, some sense that there was something to be feared, that man ought to stand in awe at. Christianity, he suggests, in asserting the absolute ultimacy and universality of God, devoured all that was good in the ancient pagan faith, all the traces of nobility which held nihilism in check, showing that they were properly fulfilled in the Christian God. Because of this, paganism was so thoroughly demolished that it is no longer a genuine option for Western civilization…all roads to paganism ultimately lead to Christ now. All that is left is the husk of nihilism that was left when Christianity plundered paganism.
I really shouldn’t give it all away, but here’s the last page, just to give you an idea of how amazing it is:

Modern persons will never find rest for their restless hearts without Christ, for modern culture is nothing but the wasteland from which the gods have departed, and so this restlessness has become its own deity; and, deprived of the shelter of the sacred and the consoling myth of sacrifice, the modern person must wander or drift, vainly attempting one or another accommodation with death, never escaping anxiety or ennui, and driven as a result to a ceaseless labor of distraction, or acquisition, or willful idiocy. And, where it works its sublimest magic, our culture of empty spectacle can so stupefy the intellect as to blind it to its own disquiet, and induce a spiritual torpor more deplorable than mere despair. But perhaps Christians—-while not ignoring how appalling such a condition may be—-should actually rejoice that modernity offers no religious comforts to those who seek them. If this is a time of waiting, marked most deeply by the absence of faith in Christ, it perhaps good that the modern soul should lack repose, piety, peace, or nobility, and should often find the world outside the Church barren of spiritual rapture or mystery, and should go about vainly looking for terrible or merciful gods to adore. With Christ came judgment into the world, a light of discrimination from which there is neither retreat nor sanctuary. And this means that, as a quite concrete historical condition, the only choice that remains for the children of post-Christian culture is not whom to serve, but whether to serve the God Christ has revealed or to serve nothing—-the nothing. No third way lies open now, because—-as all of us now know, whether we acknowledge it consciously or not—-all things have been made subject to him, all the thrones and dominions of the high places have been put beneath his feet, until the very end of the world, and—-simply said—there is no other god.