In my opinion, the integration of theology and secular disciplines, or theology and culture, ought to take place. In this article, therefore, we're going to deal, first of all, with the subject of why law needs theology. And after we've done that, we're going to turn it around and we're going to see why theology needs law. As we do this, you'll be picking up apologetic approaches that it seems to me are vital for the effective proclamation of the gospel in the secular age.
History Shows Law Needs Theology
We go back to the classic period of legal theory, which extends from the Greeks on to the 18th century, and during that long period of time, a particular understanding of law existed. This is called Natural Law Theory. It has nothing to do with physical law, it isn't natural law in the sense of Newton sitting in his garden and having an apple bop off his head and thereby creating the basis of gravitation. What is meant by Natural Law here is that God has built into human life certain absolute moral and legal standards. There is an innate sense of justice that is given to man and all true law must reflect that innate understanding. The term natural here means that it is already built in. Now, during those long centuries, the conviction existed that the purpose of a legal system and the purpose of a state was to arrive at justice, to approximate those inner standards of right that people knew to exist. One of the classic illustrations of Natural Law theory is in the Justinian Code. The Justinian Code was the great Christian law code of the 6th century, sponsored by the emperor Justinian, and it gathered together the best of classical Greco-Roman law and it put it into a Christian framework. And at the beginning of the digest, which is one of the parts of the Justinian Code, there is a definition of the Natural Law: To live honestly, to harm no one, and to give each one what he actually deserves, or to attribute to each person what is, in fact, his own. In other words, all law and the structure of the state ought to be achieving this sort of thing–ought to be maximizing honest living, the elimination of the possibility that one person can harm another, and the proper attribution of resources to those who ought to have them. The Justinian Code epitomizes the understanding of Natural Law over those centuries. It also helps us to see why even at times when there were absolute monarchs, they weren't absolute, because the expectation was that they would bring about a conformity to the Natural Law. They were under that kind of structure of law that is built into the human heart.
Now, as modern pluralism appeared on the scene, as the unity of Christian civilization broke up in modern times, this theory of natural law fell apart. One of the reasons that it fell apart was it ambiguity, its lack of specificity. What exactly did constitute this unwritten law? One of the most horrendous illustrations of the ambiguity can be found on the metal doors leading into the death camp at Buchenwald, one of the two worst death camps of the Nazis during the Second World War. For years I took groups behind the Iron Curtain at a time when East Germany was not even recognized by the U.S. government, and I would always take them to Buchenwald, and there on this wind-swept plain above the enlightenment city of Weimar was this hideous camp. Engraved on the metal doors going into the camp is this expression: "Each man gets what he deserves." It is the German translation of the third element in the definition of Natural Law in the Justinian Code. In other words, because the nature of what each man deserved was not accurately spelled out, when modern pluralism came on the scene, it became possible to inject into this notion of Natural Law virtually anything that one wanted to. So, the Nazis said, Well, they are Jews–they go in here and they never come out! But let's go back to the 18th century when the Natural Law theory first unraveled.
In the 18th century and in the decades immediately preceding it, there were political theorists in Western Europe known as "contract theorists." These were people who said, In order to determine the nature of an ideal state, you want to imagine people in a state of nature before the state arose. These people are in a pre-political condition and they will contract with each other to bring about a state, a state that will reflect the Natural Law within them. The unraveling is seen by the fact that the different contract theorists come out with totally different views of the state. Plus we have Thomas Hobbes, the English atheistic philosopher who did The Leviathan. Hobbes saw human nature as "nasty, brutish, and short." So, the purpose of the state turns out to be, simply, to keep people from eating each other. And Hobbes has all of these people contract with each other to give up all of their rights to one of them who acts as an absolute ruler. Why must they do this? Because if they retain any rights or powers of their own whatsoever, they will use them to bash each other. So, the idea is that they must be controlled by some political entity that will prevent that. This of course, is the political basis of a modern totalitarianism: People don't know what is good for them. If left to themselves, they'll destroy themselves. So, we turn the thing over to someone who presumably can handle the whole business in a better fashion. Hobbes called that leviathan a "mortal god" that controls everything in the state.
In diametric opposition to this we have Rousseau. Rousseau in his work, The Social Contract, began it by saying that man was created free. Man was born free, and everywhere he is in chains. Now, says Rousseau, we've got to get rid of those shackles. How do we do it? We create a situation in which each individual is able to do "his thing," exactly the opposite of Hobbes.
Then John Locke, who had such an influence on the American Declaration of Independence, as a Christian believer said that man is fallen, but that he is a creature of God, so there are two sides: There is a positive and a negative side. Locke came up with a theory of limited rights. That is to say, man gives up certain of his rights to the state, but there are other rights he must never give up. These are the inalienable rights which he must retain, because if those were man's to give, they would also be man's to take away. The inalienable rights are the ones that the founding fathers believed ought to guaranteed by the Bill of Rights and the Constitution. Of course, that begged the question, how could one establish those rights, or be sure that those were in fact inherent to human nature and that they represented the positive and not the negative side of human nature. All of those questions were left up in the air by the contract theorists, and they indicated clearly that the natural law theory was insufficient.
We come to the middle of the 19th century in which a new philosophy of law replaces Natural Law theory. Natural Law theory moves to the wings and a new approach is now at stage center. This approach is known as legal positivism, or realism. The principle of it is simplicity itself: There are no natural law standards, there is no innate sense of justice–the only law that exists happens to be the law of the land. That is to say, the law that the state brings into existence. Law is a creature of the state, or as John Austin said, "Law is the commands of the sovereign." The only law that there is, is the law that the sovereign commands. If you are in a representative democracy, it means law consists of what the congress or parliament passes. Or if you are in a common law country, where in a very real sense law is made by judges in judicial decision, whatever the judicial decision is, that is the law, and you can never ask any other question about it. You can never say, for example, "It may look like law, taste like law, and smell like law, but it is against justice! And therefore it isn't law at all." You can't say that, because there is no higher standard any longer. The two foremost representatives of legal positivism in our own time are H. L. A. Hart and Hans Kelson, who died twenty years ago. Hart died just in the last few months. He was Professor of Jurisprudence at Oxford. These two gentlemen, even though they came from very different backgrounds, one from an English liberal background, the other from an Austrian/German strict philosophical background, arrived at the same conclusion. Namely, that you can't use any higher standard to judge the law. You simply look at what the state does, and that is it. Said Hart, if you try to judge the ultimate principle in the legal system, what he called the rule of recognition, this is like two trains passing in the night because you will only be able to judge it by another legal system. Therefore, it could be turned around and the other person could judge you. So that is of no consequence. Hans Kelson said this is a lecture at the University of California:
It is of the greatest importance to be aware that there is not only one moral or political system, but at different times, and within different societies, different moral and political systems. These systems come into existence by commands or custom, and if men believe that the personalities who created them, like Moses, Jesus, or Mohammed are inspired, well, they will consider them absolute. But as a matter of fact, there are, there were, and probably always will be different moral and political systems, and therefore the values constituted by them are only relative.
Those positions were set forth before the Second World War. During WWII it appeared that something especially messy was going on, namely, hideous atrocities–inhumanities beyond imagining. At the end of WWII the Nuremberg war trials took place to deal with exactly that. The Nazis who were on trial were very satisfied with legal positivism. Why? Because it made it possible for them to say, "Of course you don't agree with us. Of course we did things that you think were wrong, but we operated within the framework of our own legal system, and there is no higher standard by such we can be judged. Our legal system is internally consistent, we just didn't think that people like Jews were genuine persons who deserved legal protection. The only reason we are trial is that we lost, and you won!" This forced the prosecution at Nuremberg to appeal to "higher" standards. Robert Jackson, associate justice of the Supreme Court of the United States, one of the prosecution team at Nuremberg, in summing up said this, "We rise above the provincial and transient, we seek guidance, not only from international law, but from the basic principles of jurisprudence of philosophy of law, which are the assumptions of civilization."
Of course, the Nazis were not impressed, they regarded this as rhetorical puffing, and nothing more. There is no attempt to show where such assumptions of civilization come from, or how they can be identified, or how they can be justified. That of course, created a gigantic question mark over legal positivism. The subsequent history of this has been attempts by secular legal scholars to shore up legal positivism, because they don't think there is any hope in hell of getting Natural Law theory back into the picture. They see that as hopelessly ambiguous, just as people have since the 18th century. A couple of examples of people who have tried to do something with legal positivism. One of them is Hart's successor at Oxford, Ronald Dworkin. He is American, with a chair at Yale and also this very prestigious chair of Philosophy of Law at Oxford. I had contact with him recently at a seminar at Oxford. Dworkin criticizes Hart by saying that Hart limits himself just to legal rules. Dworkin says it is more sophisticated than that. You must go beyond legal rules to legal principles. Principles are wider and more general, so they can give us a more comprehensive picture of a legal system. A legal principle, for example, would be that no one must profit from his own wrong.
These wider principles will always have exceptions, for example, adverse possession. That is to say, if you sit long enough on your neighbor's land, under certain conditions, it can become yours. This is known as legalized stealing. It's an exception to the general principle that you must not profit from your own wrong. These principles, says Dworkin, can create a more sophisticated system. And judges, says he, have got to work with these wider principles. He hypothesizes a judge by the name of Hercules, and Hercules takes these wider principles and brings them to bear on the rules of the system so as to arrive at a genuine concept of justice. Now, this sounds just fine, but of course, the main question is, Where do the principles come from? Listen to Dworkin in his book Taking Rights Seriously, "We argue for a particular principle by grappling with a whole set of shifting, developing, and interacting standards, themselves principles rather than rules about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent. the relation of all these to contemporary moral practices and hosts of other such standards." We discover that Dworkin's sources are so diverse that it is as impossible to get anything as it was from old Natural Law standards. But we also discover that these are all horizontal, they are all human and nothing more than that. There's no God in the picture injecting absolute standards. What you do here is try to derive these from the chaotic mess of human culture. This opens the door to any particular biases that the investigator has personally. Therefore, a person like Dworkin, who is a very nice type, will find good principles embedded in the society. But other people will look at the society and find the kind of principles that fit their own nastiness. If Genghis Khan were to engage in this analysis, the results would be very different from the results when Dworkin engages in it. Mr. Justice Hercules turns out to be a very god-like figure on the bench, but how does he get those powers and abilities, we'd like to know.
Also, an attempt to help this messy situation comes from John Rawls, also an American, the greatest political philosopher of our time, who has influenced the whole scope of political philosophy in every country where his great work A Theory of Justice is available. Rawls delivered a lecture at the seminar previously mentioned sponsored by Amnesty International to try to show the grounding of human rights. Rawls' approach is to go back to those contract theorists. He thinks that he can build up a proper society from man in a pre-political state of nature. What he does is to abstract all the prejudicial, personal quantities from man's activities so that people cannot base their political decisions on their own interests. He takes away their relative age, their strength, their wealth, and all of that, so as to get them to a point of basic, rational equality. Then they come up with principles of justice and a kind of modern liberal state.
The problem with this is exactly the problem of the contract theorists that we talked about, Hobbes and Rousseau and Locke. The problem is that human nature is not purely rational, and people are not going to make rational decisions. The decisions people make are based upon the differences that they perceive exist within them. You go to Genghis and you say, "Genghis, what you need is a liberal state." And Genghis says, "Arhhh!" You say, "Now listen, Genghis! We can't bring strength into this. Granted, you are stronger than the average person, but we can't consider a thing like that. That's got to be abstracted from the situation." Genghis then grabs you by the throat, and says, "Really?!" And He turns you upside down, pounds you into the ground, and proceeds to establish a state in which he can rape and pillage.
To assume that there is this overarching rationality that everybody ought to conform to is incredibly naïve. As the psychoanalysts have pointed out, many decisions that are made are not based on a rational ground anyway. Other things bubble up.
Now, this has been a long, agonizing trip through the history of modern jurisprudence, what is my point? My point is simply this, that if you want a standard of justice (and you do, otherwise you can't handle the Nuremberg trial problems of the modern world), you are going to have to get it from outside the human situation in order to make sure that it is, in fact, absolute. Water doesn't rise above its own level. Standards that human beings try to create will not rise above the level of the human beings that create them.
Even Rousseau in a fairly sober moment said, "It would take gods to give men laws." You can't derive them by analyzing human nature, because human nature is a mixed bag. Human nature consists of the original created goodness, but it also consists of the fallen nastiness. Locke, Rousseau, and Hobbes were all right, in that they were looking at different aspects of human nature. Even Rawls is correct that there is the rational element. But the fact is that that is not the full picture. Which elements do you pick in order to establish true human nature? The mixed bag means that you can't derive from an analysis of human nature the ultimate principles that you need. What you do need to solve this problem is standards breaking in from the outside. If they are transcendent, if they are created outside the human situation, they are validated by the very God of the universe, then you can say regarding particular laws, "These are not what they ought to be. These need to be changed and brought into conformity with God's eternal standards."
This is why Law needs theology. Only theology can take you to those ultimate standards which are not built up inductively by looking down someone else's throat (or your throat) to find out what's going on inside, but instead, take what God has already given as an absolute. The only inalienable rights will have to be rights that God has created, because if man creates them on any level, then man can take them away. That's why Law needs theology.
Why Theology Needs Law
Now, let's look at the other side of the reversible reaction. Why does theology need law? Because in a pluralistic age you can't just go out, stand on a soap box with a long beard and a white robe, and say, "Lo, here are the absolute, divine standards!" People will not accept that simply because you say so, and they shouldn't, because there are all sorts of kooks out there maintaining the same thing. Claiming divine absolutes is a very facile operation. There is no problem in doing that whatsoever. It becomes mandatory in a secular, pluralistic age, if you want to provide absolute standards to a legal system, that you be able to justify them.
One of the greatest skills within the law is the skill of evidence. Evidence is a central discipline within the law, because legal systems are dispute-resolution systems. When people cannot solve their intractable disputes they go to court, so this can be handled in a fairly civilized manner. Lawyers can be seen as substitutes for the parties, so that instead of the parties bashing themselves over the heads to determine who is the stronger, there then becomes (in substitute) a verbal bashing which makes it possible to resolve the dispute with more pleasant consequences for the society.
In order to resolve disputes in society by a legal system, you've first got to find the facts. Then you bring the law to bear upon the facts. So, lawyers have to have techniques for finding facts. The techniques are the evidential techniques that make it possible to determine the difference between what is fact and what isn't. Theology is not strong in that area. Theology tends toward proclamation, tends toward the pulpit, raised up above the level of the humble masses beneath. The idea is that you simply present the truth, and people are supposed to take it.
Through much of Western history that's exactly the way it went because there weren't any very significant alternatives offered. But now we are in the modern, pluralistic world that caused the breakup of Natural Law theory, and in this modern, pluralistic world, every body and his brother maintains a different basic understanding of the universe. If everybody just shouts at each other or tries to build higher pulpits than the other person has, it really doesn't accomplish very much. It becomes necessary to take these viewpoints and arbitrate them to determine where the facts do lie, if anywhere, in these disputes. That's where the law can help theology, in its method. It can get theology to a more sophisticated and mature view of establishing facts. Now, I can't go into all the details of how this all works, but I can give some illustrations.
Some Illustrations
First, law deals with probabilities. It does not deal with absolute certainties or with mere possibilities. The significance of this is that in arbitrating diverse religious claims, people invariably either expect absolute certainty, and/or they will introduce any lame-brained possibility imaginable. The pendulum swings from the extremes of an alleged absolute certainty to mere possibility. Say in a discussion, you present evidence for the resurrection of Jesus Christ. A non-Christian might ask, "Is that evidence 100% certain?" Well, no, it isn't, because that evidence is based on observation, and observations can be mistaken. There is the possibility that there might be a problem there. But there is strength to the testimony. The non-Christian responds, "Aha! I've got you! It isn't absolutely certain, and yet, you expect me to make a 100% commitment to this. I will not commit myself 100% unless I have 100% certainty." And you might leave with your apologetic tail between your legs feeling immensely depressed.
But you shouldn't feel depressed at all. If you operated in terms of legal reasoning you would be able to deal with that, because absolute certainty is possible only where facts are not in the picture at all! Absolute certainty occurs only in pure mathematics, deductive logic, and tautologies, where the statement has the same predicate as the subject. Those are realms of definition. The minute you enter the realm of fact it is a matter of evidence–that's how courts work! When it is a civil case, the judge says to the jury, preponderance of evidence will decide the case. Weigh the evidence. If it's 51% for the plaintiff, he wins. If it's 51% for the defendant, he wins. In a criminal case, which is much more severe because of the consequences of it, the jury needs to be convinced to a moral certainty beyond reasonable doubt. It is not absolute certainty, it's moral certainty, and it is not where there are no doubts at all. There can be reasonable doubts, but there cannot be unreasonable doubts. The doubts that can operate here are in the reasonable realm.
In the case of the resurrection argument, the non-Christian might say, "Listen, isn't it possible that Jesus was a Martian, cleverly dressed in a Jesus-suit, so that he was able to perform miracles like he did. It's possible, isn't it?" In a contingent universe, anything is "possible," but we must look at the evidence. "But it's possible! It's possible, therefore I don't need to accept Christ."
Suppose that went on in the law. If a murderer is caught with a bloody axe in his hand, and the jury refuses to convict because of the possibility that invisible Martians did it, the courts will not accept nonsense like that in the slightest. The fact of the matter is that you've got to go with the admitted evidence, and you must draw conclusions from that. If you can take any possibility imaginable, then of course, all logic falls. The whole universe crumbles under those circumstances.
The law of evidence can take us back to reasonable probabilities in handling situations. But what about absolute commitment? When jury brings in a guilty verdict in a murder case (in a jurisdiction that exercises capital punishment), that murderer will 100% lose his head on the basis of that probabilistic evidence.
This is part and parcel or ordinary life. When you cross a street you check the probability of getting across safely. It is never 100% because this is an area of fact. But if the probabilities look good you go across the street, and you take 100% of yourself! All that Christianity asks is that we act reasonably in terms of the weight of the evidence in its behalf. And that's not any different from what all realms of life expect. There is no absolute certainty of things going well in a marriage, yet you make a 100% commitment after evaluating your relationship. In the case of Christian faith, you are working on the basis of a high level of probability for the evidence that God was in Christ. You commit yourself to this by adding to the evidence the dimension of faith. Faith jumps the gap between probability and certainty. Once you have been willing to make that commitment, you enter into a personal relationship with Christ. In terms of the concept of reasoning, you get immense help from the law in the area of theology.
Finally, I'm going to illustrate this by a very concrete instance. A few months ago in London's Inns of Court School of Law, I debated the foremost English rationalist historian, G.A. Wells, Professor at Berbeck College, University of London. Wells has written four books on Jesus, and these are published by Prometheus Press in Buffalo, NY. Anyway, the debate with Wells turned on questions of fact: Was Jesus an historical person? Did His acts really occur, as set forth? Did He really say what they claimed? And, is this sufficient for making a commitment for eternity?
Wells, of course, answered all of these questions in the negative. I employed a legal style of reasoning to deal with him, and I want to give you several illustrations to show how this all worked. Take the matter of the New Testament manuscripts–How good are the manuscripts? Wells said the manuscripts are of no value whatsoever because we don't have a sufficiently absolute basis for establishing them. Wells needed careful instruction as to how probability works in historical scholarship. We compare the strength of the case for the New Testament documents with the strength for other historical materials which everyone accepts. If it turns out that the case for the biblical documents is stronger than the case for other historical material which everyone accepts, then you cannot logically reject the New Testament documents. They should have been accepted first, rather than rejecting them.
This points out the fact that if this the situation, in rejecting the biblical documents, it is on some ground other than evidence. Of course, that ground is a moral ground. If these documents are sound, and Jesus turns out to be the Lord God of heaven and earth, you may be in big trouble, and you can no longer function as the god of the universe. You have been demoted and must conform to something. This is exactly what autonomous man does not want. He wants to run the universe himself. It has been said, first God created us in His image, and ever since, we've been returning the compliment. I was able to show that the New Testament documents are immensely better historically than the documents we all accept. The documents of the classical world don't have the same kind of solid bibliographical internal and external evidence in their behalf as the documents of the New Testament. And that means that if we accept the one, we must accept the other. It is obvious we can't throw out our classical knowledge merely to be rid of Jesus Christ. The lawyers who have looked at the New Testament documents have invariably been willing to go with them.
A. N. Cherwin White said, I don't understand what the higher critics are doing. I compare the evidence for the best known contemporaries of Jesus and particularly the four documents which give evidence for Tiberius Caesar, and I find that all four of these are inferior to the four Gospels in terms of objective, historical criteria. I can't very well get rid of Tiberius, and therefore, I must confront Jesus Christ. Lord Haleshim, the Lord Chancellor of England (retired), came into the faith much like C. S. Lewis, dragged into the kingdom by the sheer weight of the evidence. He was involved in a forgery case when he asked himself, could anyone have gotten away with literary forgery where the New Testament was concerned? The answer was absolutely not! Why? Because of the presence of hostile witnesses. These documents were in circulation while people were still alive who had been instrumental in the crucifixion of Jesus. They would not have stood by and allowed that kind of material to circulate without refuting it, if the material had been forged, altered, or turned into the faith-experiences of the early church. The Jewish religious leaders would have gone after them, hammer-and-tongs. They never could have pulled it off. Haleshim examines this and says that the only consistent conclusions we can reach are that these documents are worthy of belief.
Take the resurrection itself. Legal reasoning applied to the resurrection is found in Frank Morrison's Who Moved the Stone? Morrison says, if Jesus did not rise from the dead, there must be an explanation for the missing body. There were only three interest groups here: the Romans, the Jewish religious leaders, and the disciples. Romans and Jewish religious leaders are not going to move the stone, for it is against their interests. The Romans did not want more of a fuss, which would have certainly resulted if they had taken the body from its burial place. The Jewish religious leaders would have been the last people on the face of the earth to take the body, because then rumors would have started that Jesus rose from the dead. The documents tell us they were worried about this, and they asked the Romans to put the guard on the tomb to prevent it. As for the disciples, they aren't going to steal the body, and then go out and proclaim that Jesus rose from the dead, and get executed for it. They would not be willing to be executed knowing that what they presented was untrue. There have been many deluded people through the centuries who have been willing to die for things they thought were true that weren't, but that is not the case here. We are talking about people who allegedly knew that what they were proclaiming was false and still went out and died for it.
There is a doctrine in legal evidence: the thing speaks for itself. Let us say, that you go to the hospital to have your left leg amputated. So you go under the anesthetic, and when you come out in the hospital room, your left leg has indeed been amputated, but so has your right arm. Now, you were not able to see anything during the operation. In a case like that, does the burden of proof lay on you to prove that the hospital staff did something they shouldn't have? Not on your life! The thing speaks for itself. There was negligence, and the negligence was under the sole control of the defendant, and you as the plaintiff were entirely passive. Under those circumstances, the burden of proof shifts, so that it is necessary for the wretched hospital and its staff to show why there is now an extra limb in their supply cabinet. Now, in the case of the resurrection of Jesus Christ, nobody was present at the moment of resurrection. But Jesus was assuredly dead before he was put in the tomb (Read the excellent 1986 article in the Journal of the American Medical Association on the examination of the crucifixion), and for forty days after Easter morning he was assuredly alive. He ate fish and allowed Thomas to touch the nail prints in his hands. This was a physical, concrete resurrection of the same person. If he was dead at point A, and alive again at point B, the thing speaks for itself, and the burden of proof lies on the person who says, "There ain't been no resurrection!" The evidence is on your side, not on his side.
Well, where does this lead? It leads in the following direction. People in theology must not operate in a vacuum, only reading theologians. Or, Christians must not operate in a vacuum, just coming into the warm womb of their church. Theologians and Christian believers need to have contact with the disciplines that can help in the defense of the faith. Apologetics does not exist in a vacuum. This is the biggest problem with presuppositionalists, who think that they can start from a clear a priori and deduce everything from it. Since the Christian faith is a matter of fact, there is no self-evident starting point of that sort, so their whole system falls apart. More than that, they are isolated from what is going on elsewhere.
The law is one illustration of fields that can be of tremendous help in the defense of the Christian faith. At the same time, all of these fields in their fundamental principles, are in desperate need of absolutes. These fields lack absolutes, and the absolutes can only come from the transcendental source of theology–they can only come from God himself. And so theology, or the average Christian, can go to people in other areas of life and tell them, "You have been worshipping unknown gods. Let me tell you should properly be worshipping." Thereby supplying the ultimate foundations that those fields need. And these same fields can simultaneously offer bridges by which the Christian faith can demonstrate its factual validity to those who so desperately need it.
