Making Sense of the Usury Prohibition

A friend asked me recently to share some of my thoughts on usury--the meaning of the OT prohibitions, their validity in the NT, and their applicability in the modern world.  As usual, my thoughts turned out to be rather wordy, so I decided it was worth exploring them in a two- or three-part blog series.  

So, what was the original purpose of the ban on usury in the Old Testament?

I do not buy the idea that the ban on usury was simply on charitable loans, that commercial loans of any sort were not envisioned, because they weren't relevant in that sort of economy.  On this reading, they were relevant in the economy of trading with non-Israelites, and that was why the law in Deuteronomy permitted them to charge interest to aliens.  From the reading I have done, it seems the main function of loans in the ANE economy at the time the usury laws were given was to finance farmers--either simply to buy seed to plant extra crops for the next year, or to expand their fields to increase their production; a hefty portion of the crop's yield was then usually demanded as interest.  Now, this means that such loans fell somewhere along a spectrum between commercial and charitable.  For the very small subsistence farmer, who was so poor he hadn't been able to save any of his seed from the year before, and had to take out a loan to buy seed to plant a crop for the coming year, the loan would have much of the character of a charitable loan.  For a more well-off farmer, who was looking for an opportunity to rapidly boost his production, such loans would have been basically commercial loans.  Clearly there was then a significant place in even a rather agrarian economy like ancient Israel for productive commercial lending.  So I don't buy the idea that the ban was simply not envisioning the possibility of such loans.  

Why then would God have wanted to ban usury, even in cases when it wasn't straightforwardly exploiting a brother?  Three reasons, it seems to me.  First, because even prudent commercial loans, for clearly profitable enterprises, can quickly become enslaving.  Human nature being what it is, people tend to grasp for more than is wise, overconfident in their abilities, and so a borrower will borrow a little more than he can really afford at a higher rate than he can really afford, and will soon find himself and his farm at the mercy of his creditors; this would be particularly so in an agrarian economy where so much one's production depended on factors outside one's control.  The instability and unhealthy dependency that widespread credit introduces into an economy can be readily seen in our current financial crisis.  God wanted his people to be free, and such freedom would quickly be endangered if for-profit lending was allowed a large foothold in their economy.  

Second, because credit-driven production requires aggressive expansion.  To make an interest-paying loan worthwhile, you have to use it to expand your business and boost your production at a higher rate than the rate of interest; and of course, credit enables you to expand much faster than you would otherwise be able to do.  Of course, this is why credit is viewed as so wonderful and absolutely necessary in the modern economy--we are told that it is the only way in which we could generate as much economic growth as we have seen in the past couple centuries, and this is the way we're going to overcome poverty.  But of course, the problem is that credit-driven growth does not end poverty, because it increases inequality, at least, it certainly does in an economy like ancient Israel, where, with a limited amount of land to go around, and most of the economy dependent on the land, the only way for a borrower to expand his enterprise is to dispossess other smaller producers.  And then, of course, once he has expanded his enterprise so that he is much larger than nearby producers, he can command a much lower rate of interest than smaller borrowers, and so is able to continually strengthen his position relative to them.  In short, interest-bearing credit helps to consolidate larger and larger slices of the pie in certain hands at the expense of others.  

Third, because usurious credit reduces the need for cooperation and interdependence, since its absence would have to be filled either by interest-free loans or capital investments.  Interest-free loans would be more likely to establish brotherly relationships among Israelites, instead of the master-slave relationships that usurious credit would tend to engender.  If such loans were not forthcoming, then an Israelite wanting to embark on a risky business enterprise would need to solicit cooperative investment from fellow Israelites, who would share both the risk and the profits of the venture with him, instead of having a low-risk claim on his assets should he fail, as the creditor would.  This would mean a greater likelihood that Israelite society would be characterized by relationships of cooperation and interdependence.

The chief rationales for banning usury then, it seems to me, are just the same as that for the seven-year debt cancellation and the Jubilee law: to maintain a well-distributed possession of the land and its produce, in which each family maintained its patrimony; without these policies, there would have been a tendency over time for the land ownership to become gradually consolidated in wealthier hands, while more and more Israelites would become landless serfs.  With these policies, the people of God would be more likely to be free, equal, and interdependent.

Why then were they allowed to lend to foreigners?  The answer seems simple enough, if the problem with usury was not so much that there was something inherently unjust about charging it, but rather that its regular practice would have baleful implications for the economy of God's people.  Since the economies of the foreigners already operated on usury, with the inequalities and difficulties this created, then for the Israelites to lend to them would not have any serious effects on them, and such lending would presumably have remained a relatively small part of the Israelite economy--clearly, the law was not designed for the kind of permanent Diaspora that made money-lending the core of the Jewish economy for two millenia.  

Taxation and Theft Supplement: More about the OT Economic Laws

Since daring to post that taxation and theft essay on Facebook, I’ve been snowed under responding to comments and objections there, so instead of posting a bit on Just War theory, as I was hoping to, I will just offer instead one of the more substantive clarifications I posted in the taxation and theft discussion:

One thing worth dealing with properly here and now is the issue of the OT laws. For the sake of conciseness, I offered in my initial post a rather brief appeal to the matter of the OT laws, a matter which I’ve been studying for a long time (largely in order to get a handle on these very issues). Two main lines of objection have been raised. The first is that the Old Testament laws never authorize a centralized government authority to tax money from one group of people, pool it, and then hand it out to another group of people. I substantially agree with this objection (though I shall offer something of an exception in a moment). My point was not to say that the OT laws authorized this. 

Indeed, I made a point of saying this: “Of course, we cannot make simple one-to-one applications from the OT laws to welfare laws today; far from it.” Many pertinent facts are quite different--for one, we're now living in the New Covenant! My appeal to the Old Testament laws is to establish a more basic point--that it can be just for law to “require that resources be taken from those who have surplus to help supply the needs of those who, for whatever reason, do not have enough,” as I put it in the initial post. They generally do not accomplish this goal by taxation (again, with it seems to me, one exception), but indeed, it seems they are more radical, more “intrusive” upon property owners than mere taxation. Let me spell out the most relevant laws to make sure this is clear. Dt. 15:1-18 requires that in the Sabbath year, debts be released. This means that if I’ve loaned you money, money that is “rightfully” mine, that you ought to pay back, I am required by law to let you keep it after a certain amount of time (worse, the law goes on to say that I’d better not hesitate to lend to you on that account!). This is, it seems to my mind, at least as intrusive as taxation. In the Jubilee year, all property was to be returned to the original owner (Lev. 25:8-22); this is to prevent any Israelites from becoming permanently landless and thus chronically impoverished. Now, this is not a straightforward rich/poor redistribution; in fact, it is something rather more radical. It’s a mechanism for preventing, as much as possible, such a distinction from arising, in any long-term form. No matter how bad things got for someone, he could always be assured that he’d be alright, because he could get his property back, and his debts cancelled, at the expense of those who had amassed a lot of property and wealth. Such legally-mandated equitable (not egalitarian) distribution seems to be a much more radical imposition than mere taxation. Now we move on to the more directly relevant laws: we have laws like the gleaning laws (Lev. 19:9-10; Dt. 24:19-22) and the requirement that all the produce of the land in Sabbath year be shared (Lev. 25:1-7). In other words, a portion of what you produced, on your property, was, by legal mandate, to be free for the taking of anyone who required it (though they, in their turn, weren’t to abuse this right--Dt. 23:24-25). Not a terribly huge portion, because, on account of the debt release and Jubilee laws, poverty should not have been a terribly big problem. Now, these laws are still different in form from redistributive taxation--which would be leaving the corners of the field for the local magistrate to come reap (or handing over a share of your reapings), and for him to then distribute to the local needy--but they are essentially the same in effect, and in the underlying principles. Indeed, one could say that the OT law is in some ways more instrusive than taxation, because although a lot of us resent paying taxes, I think we would resent it rather more if the law gave the poor to come into our field, or our store, or our office, and take enough for their sustenance that day. That said, I prefer the minimum of gov’t involvement that the gleaning approach offers. 

Finally, we have one law, the triennial tithe, that seems like straightforwardly redistributive taxation (this is the one exception I mentioned). Deuteronomy 14:28-29: “At the end of every three years you shall bring out all the tithe of your produce in the same year and lay it up within your towns. And the Levite, because he has no portion or inheritance with you, and the sojourner, the fatherless, and the widow, who are within your towns, shall come and eat and be filled.” Again, it is a very modest tax by our standards, because, on account of the laws to prevent poverty in the first place, it didn’t need to be very large. But it was a tax all the same. 

Now, all this with regard to the first objection. The second objection claims that, while all these laws are in the Torah, they are not really laws...not in the sense we are discussing, anyway, because no one would’ve enforced them. They are, we are supposed to believe, more like “Thou shalt not covet,” moral principles that God lays down. Now, so far as I have been able to determine--at least, so far as it has ever been explained to me--this interpretation relies on a single, simple criterion for determining this sweeping and remarkable judgment: it never says how they might have been enforced, ergo, they obviously weren’t to be enforced--that means you couldn’t make someone give land back at the Jubilee, or stop someone from trying to wring debt payments out of someone after the Sabbath year, or stop someone from charging their brother interest, etc. Now, to be frank, this sort of hermeneutic seems an awful lot like those people who insist that, in order to take the Bible seriously, they have to read every prophecy “literally,” so that they insist, for instance, that clearly Isaiah’s prophecies against Babylon haven’t been fulfilled, because the moon hasn’t yet turned to blood; obviously, Babylon is going to be rebuilt, and then destroyed once again, complete with celestial fireworks, in fulfillment of the prophecy. Now, when someone gets a hermeneutical principle that enshrined in their head, to the exclusion of all other considerations, it’s hard to argue. But let me make a stab at it in this case.

First of all, that objection seems to display an ignorance of how legal science works. I am not a law expert, and I hope someone who is can help clear this up for us, but my understanding is that even modern law codes, which are extremely systematic, thorough, and all-pervading, do not prescribe precisely what the punishments are to be for every offense, particularly for civil, rather than criminal prosecutions (and almost all OT prosecutions were of the former kind). That’s why you sometimes get these judges handing down these absurd rulings, like the old lady who gets $5 million for burning herself on a McDonald’s coffee--the law leaves the determination of the penalty up to the court. Now, how much more should this be the case for a law code in the ancient world, when law codes were never as systematic, precise, and all-pervading! Particularly when, as was especially the case in ancient Israel, the structures for enforcing justice were highly localized and decentralized. The Torah was to be for the whole nation, but there wasn’t a Supreme Court responsible for enforcing it; rather, the Torah states what should and shouldn’t be done, and, though in quite a number of cases it spells out precisely what ought to be done to those who violate its commands, in other cases, it leaves this underdetermined, or entirely undetermined, since no doubt in many cases, the local court would want to be able to exercise its discretion in resolving the problem as seemed to suit the particular circumstances. 

As it is, it seems clear, from the form in which the Torah law-codes have come to us, that they were never intended to be exhaustive, but rather, a large number of representative examples of what was and wasn’t to be done in various situations, and what sorts of punishments were to be imposed on offenders. It never presents itself as trying to give all of the relevant facts. 

Now, I know the die-hards aren’t buying it yet. So I will attempt to show a) that many laws that it would seem would have been enforced do not have an enforcement mentioned; and that b) some laws that don’t have an enforcement mention were, indisputably, enforced. 

So then, let’s look at the first set of laws in Ex. 21-23. We begin with a long series of laws in what’s called the casuistic form, which is basically, “If anyone does this, this shall happen to him.” This form generally tells us the penalty as part of telling us the law. Not always, though. For example, 21:2: “When you buy a Hebrew slave, he shall serve six years, and in the seventh he shall go out free, for nothing.” Ok, but what if I don’t want to let him? What if I refuse to let him go free? It doesn’t say. Does that mean there could have been no enforcement? What about the law in the same form, near the end of this section, “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him?” Is this drastic imposition upon the “free market” to be enforced? The laws then turn to the apodeictic form--”You shall, you shall not”--this form often does not include any word as to enforcement. “You shall not revile God, nor curse a ruler of your people” (22:28); “You shall not spread a false report, or bear false witness in a lawsuit” (23:1-2); “You shall not oppress a sojourner” (23:9)--none of these would have been enforced? 

How ‘bout Leviticus? Right after the gleaning laws, which we are told would not have been enforced, because no enforcement is mentioned, we have “You shall not steal; you shall not deal falsely; you shall not lie to one another....You shall not oppress your neighbor or rob him....You shall do no injustice in court....You shall not go around as a slanderer among your people.” (Lev. 19:11-16) None of these would’ve been enforced? What about Dt. 19:14: “You shall not move your neighbor’s landmark, which the men of old have set, in the inheritance that you will hold in the land that the Lord your God is giving you to possess”? I could go on, but I’ll stop.

What about b)? Do we have proof that laws for which no enforcement was mentioned were in fact enforced. Sure we do. We know that by the time of Christ, laws regarding the Sabbath day were being quite rigorously enforced, for instance, even though the Torah, so far as I know, never says what you’re supposed to do with someone if they do not keep the Sabbath holy. Ah, but these were Pharisees. Ok, what about Nehemiah? I quote from Nehemiah chapter 5 (thanks to my Dad, who suggested peeking around in Nehemiah for some guidance): 

“Now there arose a great outcry of the people and of their wives against their Jewish brothers. For there were those who said, "With our sons and our daughters, we are many. So let us get grain, that we may eat and keep alive." There were also those who said, "We are mortgaging our fields, our vineyards, and our houses to get grain because of the famine." And there were those who said, "We have borrowed money for the king’s tax on our fields and our vineyards. Now our flesh is as the flesh of our brothers, our children are as their children. Yet we are forcing our sons and our daughters to be slaves, and some of our daughters have already been enslaved, but it is not in our power to help it, for other men have our fields and our vineyards."  I was very angry when I heard their outcry and these words. I took counsel with myself, and I brought charges against the nobles and the officials. I said to them, "You are exacting interest, each from his brother." And I held a great assembly against them and said to them, "We, as far as we are able, have bought back our Jewish brothers who have been sold to the nations, but you even sell your brothers that they may be sold to us!" They were silent and could not find a word to say. So I said, "The thing that you are doing is not good. Ought you not to walk in the fear of our God to prevent the taunts of the nations our enemies? Moreover, I and my brothers and my servants are lending them money and grain. Let us abandon this exacting of interest. Return to them this very day their fields, their vineyards, their olive orchards, and their houses, and the percentage of money, grain, wine, and oil that you have been exacting from them." Then they said, "We will restore these and require nothing from them. We will do as you say." And I called the priests and made them swear to do as they had promised. I also shook out the fold of my garment and said, "So may God shake out every man from his house and from his labor who does not keep this promise. So may he be shaken out and emptied."

Here we have a clear account of Nehemiah bringing charges against wealthy men for violations of the usury laws and, it appears, debt-slavery laws, even though, in the Torah, we have no mention of anyone enforcing these. 

All of this does not prove that the gleaning laws or the triennial tithe, for instance, would have also been enforceable in court, but it means that there is no prima facie reason to suppose that they weren’t, and, once we look at the context and the larger goals of the law, it seems to me fairly convincing that they were. 

However, I wonder if the whole question about whether the gleaning law would've been "enforced," for instance, is not a bit beside the point.  The key question, as I have tried to insist, is whether "theft" is strictly speaking, the proper accusation, and if so, why.  That all seems to depend on the question: "who has a right to the property?" Now, suppose that I have been entrusted with a number of gifts, that I am supposed to hand out to my siblings.  I keep them for myself instead.  So my siblings go into my room and take them.  Now, this was perhaps a breach of some kind of charity or etiquette, but was it “stealing”?  It doesn’t seem like it.  What if my parents ordered me to hand over the gifts to them, and then distributed them to my siblings?  Would that be stealing?  Or, to try an analogy more alien to our experience--suppose my father goes away, and leaves me with orders to care for my younger brother, who is sick and unable to earn his keep, and therefore will depend on my income for sustenance.  If I refuse to give him any money for food, is it “stealing” for him to take some from me?  Is it stealing if he appeals to a friend who has been appointed mediator between us, who then requires me to supply him what he needs?  Both the brother or the mediator could do all kinds of things wrong in the way they take the money, but I don’t know if they would be “stealing” by taking it.  All this then comes back to a question, raised in a discussion on here last fall, as to whether the requirements to share these resources with those in need of them are duties of charity or duties of justice.  I’m contending, as seems to me clear from the OT and from historic Christian teaching, that they are duties of justice.  Which means that, if the law is requiring me to fulfill these duties via taxation, it might be doing a lot of things wrong, but it’s not “stealing.”  So the OT laws, in this discussion, serve to show that I really do legally owe it to my poor brother to make sufficient provision for his needs, and thus these are duties of justice, however they may have been enforced in the OT.  Of course, a tension for me is that I have unanswered questions about the nature of the distinction between charity and justice.  So any contributions on that front would be most welcome.

Will the Real Biblical Teaching on Property Rights Please Stand Up?

I have mentioned a couple times before, I think on this blog, but certainly elsewhere, Aquinas’s (in)famous teaching that it is just for a poor man in great need to “steal” what he and his family need for life from someone who has resources to spare (assuming, of course, that he has no other way to get them).  Although this teaching is a long tradition of the Church (and indeed, Aquinas is being rather conservative, compared to Basil and Chrysostom--see previous post), I always get remarkably violent reactions when I mention this.  

Why?  Somewhere along the way, conservatives picked up the idea (oddly enough, in direct contradiction to at least the first millenium of Christian teaching) that the Bible is especially concerned to safeguard the right of private property, indeed, that this particularly distinguishes Biblical ethics, over against surrounding pagan nations.  (This last part is particularly odd, given that both the pagan societies surrounding ancient Israel and the Roman society surrounding the early Church were noted for legal structures that favored unrestricted and absolute private property rights, against which the Bible seems to be directly aiming.)  Christian conservatives have gone even further, and, defining capitalism (again, in my mind, very oddly) as consisting fundamentally in an affirmation of private property rights (see, for example, here, and Rodney Stark’s The Victory of Reason), have concluded that the Bible is a blueprint for free-market capitalism.  

So, I wanted to take this opportunity to establish that Aquinas’s claim is firmly in line with Scripture.  The main objection, so far as I have seen, consists in pointing out that Scripture says “Thou shalt not steal,” but that entirely misses the point, because if steal means “to take that which rightfully should belong to another,” then Aquinas certainly does not advocate stealing.  In fact, his point is that the act of the poor man is not an act of theft, because he has taken only that which should rightfully belong to himself, which is to say, enough for his sustenance, since no one’s property right extends to the point of denying another the right to sustenance. 

Before going any further, I should make sure we’re all on the same page, by quoting Aquinas precisely (from ST II-II, Q. 66, a. 7):

“It would seem unlawful to steal through stress of need....

On the contrary, In cases of need all things are common property, so that there would seem to be no sin in taking another's property, for need has made it common.

I answer that, Things which are of human right cannot derogate from natural right or Divine right. Now according to the natural order established by Divine Providence, inferior things are ordained for the purpose of succoring man's needs by their means. Wherefore the division and appropriation of things which are based on human law, do not preclude the fact that man's needs have to be remedied by means of these very things. Hence whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor. For this reason Ambrose [Loc. cit., 2, Objection 3] says, and his words are embodied in the Decretals (Dist. xlvii, can. Sicut ii): "It is the hungry man's bread that you withhold, the naked man's cloak that you store away, the money that you bury in the earth is the price of the poor man's ransom and freedom."

Since, however, there are many who are in need, while it is impossible for all to be succored by means of the same thing, each one is entrusted with the stewardship of his own things, so that out of them he may come to the aid of those who are in need. Nevertheless, if the need be so manifest and urgent, that it is evident that the present need must be remedied by whatever means be at hand (for instance when a person is in some imminent danger, and there is no other possible remedy), then it is lawful for a man to succor his own need by means of another's property, by taking it either openly or secretly: nor is this properly speaking theft or robbery.”

Now, is this Biblical?  I think that can be shown rather straightforwardly:  Here’s three passages: 

Lev. 19:9-10: "When you reap the harvest of your land, you shall not wholly reap the corners of your field, nor shall you gather the gleanings of your harvest. Etc...." Deuteronomy 24:19-22: "When you reap your harvest in your field, and forget a sheaf in the field, you shall not go back and get it; it shall be for the stranger, the fatherless, and the widow. Etc...." 

Deut. 23:24-25: "When you come into your neighbor's vineyard, you may eat your fill of grapes at your pleasure, but you shall not put any in your container. Etc...." 

All of these establish the same principle that Aquinas is at pains to establish--the right to private property is not absolute, but is relative--it exists as a means to serve the common good. Therefore, property cannot justly be held in a way that seriously harms the common good, so no one has the right to hold their property so tightly as to restrict access to it by those in great need. Those in need, of course cannot abuse this right (see especially the last verse), but within these reasonable limits, they are always permitted to go into a neighbor's field or vineyard and take enough for their sustenance. Obviously, if someone was doing this regularly because they were chronically lazy, rather than absolutely unable to provide for themselves, the community might see the need to restrict this right.

Of course, one might object that this is different--gleaning wasn't stealing, because God gave the poor the right to that food. But that's precisely Aquinas's point--the desperate man's taking of a loaf of bread isn't stealing, because no property right extends so far as the impairment of another's access to it in great need. The only difference is that in the OT, this principle has been institutionalized, whereas Aquinas is imagining what the hungry man would have to do in a situation where this right of his has not been institutionalized. 

And while we’re on the subject, it’s worth pointing out many other features of OT law that clearly relativize property rights.  In the Old Testament, just because you’ve purchased something or have lawfully brought it into your possession does not mean that you are free to do with it as you will--either to use it exclusively, or to dispose of it entirely as you would like.  Here’s some examples, from Leviticus 25 alone:

The Jubilee law (Lev. 25:8-22)--you cannot sell your land in perpetuity, however much you would like to, nor can you buy a property and have rights to it for more than fifty years.

Rules for Hebrew slaves (Lev. 25:39-46)--even if someone sells himself to you, he is not thereby your property, but your hired servant.  Your rights over him are quite limited.

Rules of property redemption (Lev. 25:23-24)--if you purchase a property from someone, his kinsman-redeemer can buy it from you, and you have no right to refuse him.  It’s kinda like eminent domain, only the kinsman, not the State.

Sabbath year laws (Lev. 25:1-7)--the owner is not to reap the land in the seventh year, but its produce is to be shared with all, rather than belonging to its owner.  In other words, the Israelites were basically communists in every seventh year.  (Ok, not exactly, I just said that to be provocative.)

And then of course, there are the usury prohibitions, which put a very big limitation on one’s freedom to use the most important and flexible kind of property--money.  

So, Aquinas is actually being rather conservative about property rights, in comparison to the Old Testament--he never limits the right of someone to buy or sell their land, nor obliges them to let everyone come and take food from their fields every seven years. 

This seems rather straightforward, but everyone insists in telling me how adamant the Bible is about property rights.  So please tell me, am I missing something?

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.’”

Aquinas on Old and New Laws

February 17, 2010

In his intensely provocative and insightful discussion of law in the Summa, Aquinas alleges three fundamental differences between “the Old [Testament] Law” and “the New Law.”  I’m not convinced on any of three headings:

“First, we have stated that the purpose of law is to be ordained to the common good, and this can be twofold.  The one is material and earthly benefit; this was directly envisaged by the Old Law, which from the start invited the chosen people to the promised land of Canaan.  The other is spiritual and heavenly good; to this we are directed by the New Law.  At the opening of his ministry our Lord invited us to the kingdom of heaven: ‘Repent, for the kingdom of heaven is at hand’ (Matt. 4:17).  Accordingly Augustine (Contra Faustum 4.2) says that the Old Testament contains the promise of temporal things, which is why it is called ‘old,’ whereas the New Testament offers the promise of eternal life.

Second, it is the role of law to guide human acts according to the plan of justice, and here also the New Law is much fuller than the Old Law by governing also the inner acts of heart and soul; ‘Unless your righteousness shall exceed that of the Scribes and Pharisees you shall in no case enter the kingdom of heaven’ (Matt. 5:20).  Hence the saying that the Old Law restrains the hand, but the New Law the spirit (Lombard, Sentences 3.40.1).  

Third, it is the office of law to lead men into keeping its commandments.  This the Old Law did through fear of penalty, but the New Law through love shed in our hearts by the Old.  So Augustine remarks, ‘fear and love--the difference in brief between the Law and the Gospel’ (Contra Adimantum 17).”

So, according to Aquinas, Old Testament law aims only at earthly benefit, and the NT at (only?) spiritual benefit; OT law guides only external acts, but the NT also guides the heart; and OT law functions by fear, but NT by love.  I would argue that while all three have an element of truth, the first posits a false disjunction, and dozens of counterexamples from the OT could be offered on the second and third points.