Sotomayor Says She’s For “Fidelity To The Law” But What Is Law? What/Who Is The Source Of Law?
The following is slightly edited and from Dr. R.J. Rushdoony’s book “Sovereignty,” the chapter titled “What Is Law?” This book and other works by Rush are available from “The Chalcedon Foundation” here — J.L.
To summarize, law can be, first, customary law based on clan requirements and involving torts; these are wrongs done by one person against another in which the prosecution is the work of the aggrieved. Second, punishable offenses can be crimes against the state’s law (as against family, clan, or tribal law), and the state, having made the law, is the aggrieved and prosecuting party. In the United States, the victim’s hurt is, according to more than a few judges, incidental to the state’s concern. Third, because for Christians, God is the source of all law, all offenses are sins. Some sins are punishable by the civil authorities, but not all. Any reading of Biblical law makes it clear that many offenses are not punishable by any agency of man because God reserves that power to Himself. For men to believe that all offenses are punishable by some human agency is for them to play god (Gen. 3:5).
Thus, prior to Augustine, theologians like Tertullian asserted religious freedom. The sins of apostasy, heresy, and unbelief, among many others, are not punishable by man but only by God. For the state to define offenses, and then to punish them, means ultimately totalitarianism. If the state is the source of law, then it is the source of punishment for all transgressions, and no dissent is permissible. As a result, systematically humanistic societies become totalitarian and tyrannical. They move from punishing offenses to punishing dissent. They move from the control of criminals to the bureaucratic regulation of all men and all institutions. The possibility of dissent and of violations of law is ostensibly obviated by controlling all in order to prevent offenses by total regulation. Laws to effect the redistribution of wealth and resources then follow. Not the evil-doer but the law-abiding and productive are controlled and in effect punished.
For Tertullian, because the offense was against God, men could not intervene unless required to do so by God’s law.
But this is not all. Tertullian said of the emperor, “Caesar is more ours than yours, for our God has appointed him.” The fundamental government and order come from God. He is the sole source of law, the determiner of good and evil. This reduces all caesars to ephemeral objects, because the government is upon Christ’s shoulders (Isa. 9:6), and He alone can prevail. It is God who is our refuge and strength, not caesar (Psalm 46).
Law is the expression of the will of the sovereign power, and nothing and no man can prevail against the sovereign. If man or the state is the sovereign, then the sovereign will prevails, and the sovereign, as the source of law, cannot be bound by any law. If, however, God is the true sovereign over all things, all things are subject to Him, under His law-word, and shall be judged by Him. The importance of the Last Judgment has receded in theology and life as Biblical law has been neglected.
In 1885, Dicey set forth the three meanings attached to the expression, the Rule of Law. First, it means the absolute supremacy of regular law as opposed to the arbitrary power of the state. Second, the Rule of Law excludes the exemption of state officials from obedience to the law and subjects all classes equally to the law. Third, the Rule of Law means that the law of the constitution is not the source but the consequence of the freedom and rights of individuals.
The creation in recent years of agencies given powers to make regulations not subject to legislative review and approval has seriously undermined the Rule of Law. The Rule of Law concept presupposes the ultimacy of God as Sovereign over the nations and the source of law.
The question, What is law?, can be answered, first, by stating that the definition of law varies from one culture to another in terms of the religious faith of each society. There is a difference between Soviet law and Biblical law, to cite two extremes. Since law is the will of the sovereign, what or who the sovereign is will deter mine what the nature of the law will be, and how it can be defined. Second, apart from Biblical faith, law sooner or later evaporates into nothing. In Buddhism, nothingness is ultimate, and it is thus a logical conclusion to hold that men and laws are nothing, and some Buddhists have affirmed this. Soviet law is the will of the dictator ship of the proletariat; it changes, and is basically an irrelevant concept because it is subordinate to the plan of the Soviet elite rulers.
Human laws are variables of human willing. Thus, in the United States, in 1928, it was a crime to have in one’s possession a bottle of whiskey, but legal to have a bar of gold. Then, in a few short years, the matter was reversed; the whisky became legal, and the gold illegal. In either case, the “law” was an arbitrary act of the state, not an expression of fundamental morality, as with the Ten Commandments. Beginning with Justice Holmes and on to the present, American justices have held that religion and morality have nothing to do with law, which is the will of the state. This was the position also of National Socialism, a faith much despised by speech in the United States while pursued in action. Hallowell some years ago traced the origins of Hitler to the philosophers of law who reduced law to the will of the state.
In the United States, we have seen law steadily being replaced by regulations. Without agreeing with the validity of man-made laws, it must be recognized that all the enacted laws of legislative bodies are few when compared with the annual libraries of bureaucratic regulations which are held to be binding by the courts. This drift from laws to regulations is a logical one in humanistic cultures. If the state is sovereign, the state does not need the ratification of its will by the people nor by their representatives. As sovereign, it has a lawmaking power independent of the people, and it progressively asserts this power. The drift then into a totalitarian order can only be arrested and reversed by a return to the sovereignty of God. No laws passed to arrest that drift can succeed. No sovereign can be bound by the laws of a subject. Men cannot bind God by their laws and wills, and, when the state is accepted by men as sovereign, it is freed from all human restraint. Only a return to the one true God and Sovereign can reverse man’s condition of bondage.