A PLAIN GUIDE TO ...
God's Law (Continued)
A single question, it seems to me, is increasingly pressing. It asks if
it's possible to find new criteria upon which to base laws?
- Revelation no longer serves because it is based on an ancient world
view which contradicts the entire body of contemporary human knowledge.
- The ius civilis or social law depends primarily upon
precedent and human choice, both of which are ephemeral.
- Love appears too indefinite and fluid a concept to be much help
(though it rightly focuses on reason as a servant of justice).
- There is no intrinsic reason why criteria decided by a majority
should be better than those chosen by a minority or a dictator.
Perhaps we should rest our case with Thomas Hobbes (1588-1679) who
wrote, "No law can be unjust" . Hobbes thought
that because he couldn't find a priori criteria for justice, it's
absurd to ask whether or not laws are just. Humans make laws for various
reasons, he said, and that's all there is to it. Hobbes would say, I
think, that theft is defined by us as wrong because we like possessing
things. Staying pain-free and physically capable is preferable to being
hurt and handicapped, so we outlaw grievous bodily harm except in defined
circumstances like war.
Good law, if we follow Hobbes' line, should reflect as well as
possible the interests of people. If our interests change, then so can the
law which protects and promotes those interests.
The problem of finding suitable objective criteria for law, once God's
revealed law has been put aside, seems insoluble.
But I think there is hope for a solution. The search for an objective
standard or standards to underpin law may rest in reformulating what is
generally called "Natural Law".
Aristotle distinguished between man-made law (nomikon) and
natural law (phusikon). By "natural" has meant until recently some
"essence" more comprehensive and enduring than the shifting needs and
perceptions of human beings. A law is thought good and valid if it can be
shown to exist in nature independently of ourselves.
If this is a worthwhile avenue to explore, then the question shifts
from "What's the basis of justice?" to "How do we discover what justice
demands?" In other words, criteria for justice exist normatively in
Thomas Aquinas and others tried to isolate normative justice in nature
by proposing, as did Aristotle before them, that nature is purposeful (or
"teleological" to use a technical term).
If nature is purposeful, we should be able to discover some indication
of the end or purpose to which it moves. For example, isn't it natural for
human beings to want to stay alive? Isn't life itself perhaps one reason
why the universe exists? If so, might it not be that laws which seek to
preserve human lives are essential if justice is to be realised? If so,
any society which allows arbitrary killing of people would by definition
Natural functions or needs such as the universal drive for
self-preservation might provide objective criteria for law in general.
To extend this line of thought a little further, it might be useful to
ask if it's possible to be so objectively certain about natural norms that
laws based on them are self-evidently valid?
First, we might ask if natural norms are self-evident in the existing
laws, formal and informal, of most societies. If the vast majority of
cultures exhibit certain common laws, doesn't that indicate that we might
find underpinning them the criteria for which we're looking?
Second, if norms in nature are not obvious, perhaps they can be
searched out. This line of thought starts us inevitably on a philosophical
pilgrimage. Anyone who has ventured along this path will know that there
are two kinds of philosopher. The first has arrived at the truth and the
second knows that the first is wrong. Less facetiously, however, I think
that all philosophical systems depend upon axioms. Questions about axioms
inevitably mire one down in the complexities of the theory of meaning
. Who is to say which theory is right?
In the face of what appears to be an intractable problem it seems to me
that a promising approach is nevertheless to ask if the scientific method
(or rather, that collection of methods we call "the scientific method")
might be brought to bear. Many assert that this is impossible. Science and
the humanities (including religion) are incompatible, they say. But I
don't think the picture is that bleak. Perhaps an example would help.
Edward Wilson  suggests aspects of scientific
knowledge which appear to indicate what is both "good" or "natural" for
humanity. If so, they could form valid criteria for law. And for those who
hypothesise a created universe, they could therefore be called "God's Law"
since everything created by God must by definition be good.
Wilson proposes that science and the humanities are in a basic sense a
mutually coherent body of knowledge (in his terms "consilient"). The two
are not incompatible. It is merely that we have not spent the time
and effort to explore and describe the terrain which lies between them.
He describes, to give one instance, how avoidance of incest might be
thought of as a good test of a right behaviour and could therefore be used
as a legal criterion. If one accepts a created universe it would become a
criterion of God's Law as well.
He points out that incest is [a] without doubt genetically damaging to
the human race; [b] is almost universally banned in law; and [c] is
prevented by the mechanisms of normal human development.
There can be no doubt, given the available data, that incest increases
the incidence of human malformation. Children born of incestuous unions
display a far greater degree of physical and mental problems than those
born of normal unions. Genetic patterns are so disrupted that a human
population founded on incest would cease to be viable.
Wilson's survey of incest laws and customs over a wide range of
societies show that incest laws and taboos exist not so much to repress
and control wayward human nature (the traditional Christian and Freudian
line) as to express human nature. We legislate against incest not
to clamp down on something evil, but to encourage right behaviour. Incest
avoidance regulates a fundamental aspect of human nature.
Point [c] above needs some explanation. Research shows that children
brought up together in the first two years of their lives lack sexual
interest in each other. Wilson writes: "... it is evident that that the
human brain is programmed to follow a simple rule of thumb: Have no
sexual interest in those whom you knew intimately during the earliest
years of your life" (his italics).
The conclusion seems indisputable. Laws against incest are not
arbitrary. Rather, they are fundamental to humanity. They help prevent
behaviours which undermine the viability of human offspring and therefore
of the future of the human race. That most societies legislate (formally
or informally) to prevent incest is remarkable, particularly because
incest is banned even when the genetic malfunctions it causes are not
recognised as such. Wilson adds that "... the factual picture emerging
from research on human incest avoidance is one of multiple, successive
If Wilson is correct - and I find his evidence compelling - then we have
here a potential source of criteria for a ius gentium. In effect,
the "nature" in natural law is redefined as those aspects of the universe
essential to humanity's ongoing viability and development in the
One way of focusing the search for natural criteria might be to examine
the main concerns of most legal systems. If anti-incest laws are almost
universal and independent of scientific awareness, might it not be that
other laws have been founded on a similarly intuitive reading of nature?
I'm no expert in this field, but a cursory examination indicates that
Western law focuses primarily on
- preserving human lives;
- continuing the human race;
- fulfilling human potentials; and
- managing human difference.
Each fundamental aspect is huge in scope and manifold in its
implications. The size and complexity of law as a subject witnesses to
this. But I think it might be possible, given time and effort, to describe
in scientific terms some aspects of the human condition which can be
identified as "natural" and which could therefore taken up as criteria for
For example, laws to preserve human life involve penalties for killing
another human being unless certain conditions are met. Such laws appear to
be almost universal. Can their universality be proven? If so, are there
any significant qualifications in their application?
It may be that such laws reflect natural, inbuilt inhibitions against
killing our own, inhibitions which are loosened but not removed by legal
war. It should be possible to investigate murder just as incest has been
researched. Can it be demonstrated, for example, that murder negatively
affects the human gene pool? Do deaths by unnatural means harm humanity as
a whole and if so, how? Are we normatively hard-wired in childhood to
guard rather than destroy human life?
It is not self-evident that human life should be preserved as a
matter of principle. None of us likes the idea of dying. Laws against
taking life could merely be projections of a universal human desire to
stay alive. The search for criteria, given what hangs upon the findings,
must surely be hard-headed.
The need for objective criteria is rapidly becoming more critical.
There is much talk about a developing global community. It may be
centuries before our planet truly becomes a global village. I think it's
highly likely, however, that in the 21st century we will see the founding
of a body of international law which begins to act as a global ius
gentium. If it is to prove convincing to all, international law's
criteria must be in some powerful sense universal.
What about God's law, to return to the title of this essay? Christian
tradition has attempted to settle the problem of finding criteria for
right behaviour by asserting that certain laws have been given to humanity
by God. But a significant number of Christians and a majority of others no
longer accept this teaching.
It seems to me that our focus must begin to switch from answers to
questions, from conclusions to method. Only the scientific method
(not that ubiquitous thing called "science") appears likely to be able to
firmly establish what is intrinsic to our nature and could therefore form
the basis of law.
It seems highly unlikely that a created universe will ever be proved -
any more than God's existence will ever be proved. We're unlikely,
therefore, ever to recover God's Law in the traditional sense of a
revealed and therefore absolute truth.
Revealed truth by definition ends all exploration and debate. As
traditional Christian theology gradually changes we can hope that the
debate about natural law becomes more dynamic and fertile. But I doubt,
given the provisional nature of scientific knowledge , that
it will ever become cast in concrete in the way that revealed knowledge
inevitably does. Elements which might be formed into nature-based law will
never be so certain as to preclude either dispute or reformation.
 Leviathan, quoted by R Wollheim in The Encyclopedia of
 See Epistemology
 Consilience, 1998
 The Structure of Scientific Revolutions, Thomas S Kuhn, 1962