A PLAIN GUIDE TO ...
In the Western world, there is frequent talk of "doing the right
thing". There's nothing intrinsically wrong with proclaiming and
championing morality and right living. But on what criteria are our morals
based? Who is to say what's right and wrong living? This is an important
question because in principle law should be based upon morality rather
than expediency. In pre-modern times it was argued that God's law is
supreme. Today the pendulum has swung away from traditional Christian
Paul, being a Jew, came from a
society which did not distinguish between religious and secular as many
nations do today. He thought that man's law derives from God's law.
Most Christians recognise the concept of "God's Law"
from the Old Testament and Paul's letters.
God's Law as Paul refers to it was believed to have been
handed down to the Hebrews first in the Ten Commandments, given verbally
by God to Moses on Mount Sinai; and then in the Scriptures (Exodus,
Leviticus, Numbers and Deuteronomy). For the Hebrew, God's law
is equated with the Mosaic law.
Roman law (ius civilis) in Paul's time was very
different. Unlike Hebrew law it was not regarded divine in origin. It was
originally built upon custom (ius non scriptum) in the period up to
Customary law was gradually codified into written laws (ius scriptum)
passed by the Roman Senate and various emperors. Law was also codified
according to precedent even, in some cases, precedent from non-Roman law (ius
The Christian Church adopted a dual-track legal system
after it became the official religion of the Roman Empire in the fourth
century. On the one hand was Roman civil law. On the other was the
Church's Canon Law - the Law of the "Measure" or "Standard" (the standard
for all human law being God's revealed law). The
Medieval Church thought that Canon Law dictated civil law because the
former is revealed by God rather than derived from the corruptible will of
the people or its rulers.
In contrast to traditional Christian orthodoxy, most
Westerners today think that laws regulating society should be based upon
popular consensus. In many other societies, custom and the authority of
inherited position, or of caste or of coercion may underpin law.
In contemporary Muslim societies, religious and civil
law tend to blend into a whole because all morality is is regarded as
based on the Koran. The Koran in turn is God's revealed wisdom and
therefore can't be subordinate to man-made laws.
Christian orthodoxy still accepts divine revelation as
the source of morality and therefore Canon Law. God's will
 has been revealed to the Church through the
Bible and directly to some of its members by the Holy Spirit. Many
Christian leaders therefore maintain that they have the right and duty to
correct civil leaders on principles and practice of good law.
I don't intend to argue for or against revelation here
. I should point out, though, that those who
accept the principle of revelation logically can't oppose laws based on
it. Revealed laws are God's laws and therefore must be right.
In common with many other people, I find myself unable
to simply accept absolute moral maxims based on revelation. It seems to me
that revelation is a fundamentally unsound basis for law governing right
and wrong because the assumptions upon which it is based cannot be tested.
They can only be accepted without question - an attitude often called
"faith", wrongly so in my opinion .
If revealed law ceases to be a measure (that is, a
"canon") might our only source of good law therefore be ius non
scriptum and ius scriptum? Customs arise from social debate and
usage. "The people" in a democracy pass laws through their
An interesting problem arises with the concept of law as
a social contract. It is possible for a society to enact consensual laws
which are not approved of by other societies. Examples in the modern era
# Anti-Jewish laws of the German government
before and during the Second World War;
# Racial segregation laws promulgated by the
South African government from 1949 onwards;
# Sharia laws of some Muslim communities
when applied to non-Muslims.
In such cases it seems important to ask on what grounds
should any law, even though the result of due process, be pronounced
"wrong"? Why should a nation not kill Jews if a majority votes to do so?
And why should non-Muslims not be subject to religious laws sanctioned by
the Koran? If segregation laws are maintained by a powerful minority for
perceived the good of a nation, according to which criteria are those laws
pronounced intrinsically wrong?
It seems to me that if one wishes to avoid accusations of
arbitrariness, law must be based upon some kind of criteria. To put it
another way, laws can't be evenhanded if based on opinion or dogma.
Is it possible to find objective standards upon which to base morality
and therefore law, given that revelation is no longer a satisfactory
source of absolute truth?
Some claim that humanity should live by a single criterion called
"love" (agape in Greek). This approach is apparently lent extra
force by its occurrence in the New Testament as a summary by Jesus of
Hebrew Law (Matthew 22.37-40; Mark 12.30-31; Luke 10.27).
Joseph Fletcher  argues that provided a person
has agonised over the rights and wrongs of an action in a spirit of
goodwill, whatever is then decided is by definition loving. In other
words, a loving action is one motivated by goodwill and chosen by reason.
This is a powerful argument. But, strictly speaking, it merely pushes
the search back a step. Euthanasia is an example of a case in which the
killer may be motivated in every sense by goodwill. And yet there are
strong arguments against killing someone just because he or she wants to
die. We still have to ask, "Why should reason and an attitude of goodwill
bestow rightness on human behaviour?"
Fletcher and others hold that the context of love is neither revelation
nor consensus but the situation. Not only does this go back to Jesus
himself, they say, but it has been enshrined in the Church's teaching. A
notable example would be Augustine of Hippo's "Dilige et quod vis, fac"
("Love with care, and then what you decide, do"). Love is a process of
weighing up the situation and then acting according to what seems best for
all involved. Social justice is "love distributed".
According to modern theologians who take this line, love therefore
shouldn't and can't be constrained by laws. The capacity to love is a free
gift to be exercised freely. Love is concrete, immediate, reasonable and
intensely personal. Law is abstract, distant, unreasoning and coldly
Legalists, it is said, fail to recognise that no law can cover all
situations. They are therefore forced into casuistry if they wish to act
lovingly. That is, exceptions to otherwise rigid laws must be found if
real-life situations are to be adequately addressed. A mare's nest of
rules and exceptions to rules inevitably develops out of casuistry. In
short, the law is an ass and only love is wise.
The question remains. On what grounds should anyone choose one action
over another? Who is to say what is loving and what isn't? What is it
about love which gives a dying person absolute discretion to demand his or
her own death? And what is it about love which makes one act of euthanasia
differ from any other?
Fletcher doesn't do away with law entirely. It remains in force - but
if loving choice so demands, any law can be broken with justice. Human law
can and should be set aside if "love" so decides because love is God's
There are those who want to do away with law entirely.
Antinomians propose that law stifles and eventually destroys freedom and
autonomy. The best outcomes result if each of us is left free to choose
without being forced into this or that action by law. Laws, and
particularly any law claiming to come from God, is therefore of no
account. Anarchists might well be classed as militant antinomians,
dedicated to resisting by force all law and the authority behind it.
Some propose that traditional Church law should be
superceded by the guidance of the Holy Spirit. This, by implication, is
the only true revelation. Martin Luther, for example, rejected the notion
that we can earn God's forgiveness by obeying the Church's rules about
good behaviour. True law, he said, is spiritual - which implies that lives
of grace and faith don't need law. In the new Christian order, says
Luther, faith ultimately rises above reason and law.
Yet others claim access to special knowledge (gnosis)
which guides them to behave as they should. Some religious sects say, for
example, that their founders have received guidance from angelic or
non-corporeal visitors sent by God. Their version of God's Law colours or
replaces traditional Christian laws.
There are, not unsurprisingly, unwritten laws in all
societies. They are usually enforced by exclusion of offenders or by
extra-legal violence (such as lynching or other mob action). Despite the
wide range of public morality in the West, some politicians who transgress
unwritten laws of sexual conduct, for example, have felt the weight of
powerful public sanctions.
Even this cursory survey indicates a variety of approaches to law. The
criteria upon which social laws are based vary greatly. Tradition that
God's Law rules human law is rapidly fading. The present situation is
confused and uncertain now that traditional Christian concepts of law are
 See A Plain Guide to
Knowing God's Will
 See A Plain Guide to Revelation
 See A Plain Guide to Belief and
 Situation Ethics, Joseph Fletcher, 1965