Abstract- Christianity has been dropped by the positivist school of thought, this school believes that law is derived from the values, norms and aspirations of the people. To contrast with the positivists, the Natural school of thought believes that law is a set of rules that come from God as the good deeds and morals as provided for in the Ten Commandments. These rules shape human beings into who they are supposed to be thereby harmonizing the society. Hence this research paper is meant to examine the relevance of Christianity in the legislative and judicial processes.
Introduction
The divorce of modern Western legal scholarship from its Christian heritage is usually attributed to a decline of Christian faith in the West, at least among scholars, since the so-called Enlightenment of the late eighteenth century, and to the accompanying tendency in all the social sciences to look to political, economic, and other material factors, rather than to moral or spiritual values, in explaining social institutions and public policies. On looking at jurisprudence, it must be noted that there are basically two categories or camps; those that find a necessary relationship between the nature of law and morality, and those that view law as a social artifact, conceptually divorced from morality, whatever their contingent similarities may be. Theories that affirm a necessary relationship between law and morality are called “natural law” theories, while theories that emphasize the social creation of law fall under the appellation “legal positivism.” It is evident that there is a clear similarity between ‘natural law ‘and some of the foundational principles of a Christian jurisprudence, Jonathan Edward Maire1 lists the following as the defining features of a Christian jurisprudence :-
The renunciation of the construction of law and morality as radically distinct realms, which construction entails an ontology and epistemology that sees law as comprised of the historical facts called ‘rules’ which are objectively known and applied, while morality is comprised of values and preferences which are known or believed in only subjectively.
The acknowledgement of a transcendence-existence independent of purely subjective belief or objectivity discoverable human convention- as a preeminent feature of a moral order.
The acceptance of a notion of personhood in which true humanness is seen in the light neither of the enlightenment glorification of man as autonomous nor in the scientific determinism of modern times, but rather in the light of the biblical truth that we are made in Gods image, with a concomitant recognition of moral legal obligation as being founded upon notions of responsibility to neighbor rather than rights.
The recognition that legal judgment doesn’t proceed as is supposed by legal positivists in a preeminently deductivists mode from the rule to fact to conclusion, but that the ampliative forces of moral reflection play in many cases a preeminent role and in all cases , some role , in legal judgment , while rejecting the claims of the radical –skeptics that rules plat virtually no part in the thought processes of the judge, whose decisions are in reality the product of social , cultural, or psychological forces over which the judge has no control.
Historical background
Prior to the so-called Enlightenment of the 18th century, it was almost universally presupposed among Western legal philosophers that the tri-une God is the ultimate source of order, of justice, and of human destiny. However a cursory look at the recent history illustrates a clear deviation from the above understanding. Today the positivist interprets legal rules according to their plain meaning or, in case of ambiguity, according to the policies they represent, while the naturalist considers also the implicit moral purposes of the rules in the light of the system of justice of which they are a part. Which permit or even compel an accommodation between politics and morality? The important question to be asked therefore is what Christianity has to do with the law?
This paper seeks to reconcile Christianity and the law, viewing Christianity as the back drop on which the law has to be made, I trace the challenges that Christian jurists have had in determining the impact that Christianity has had on jurisprudential schools of thought. There has been reluctance by scholars to acknowledge the interdependent nature of law and morality. The basic Christian tenet is the recognition of morality as a base line for Gods revelation. ‘The moral context in which Christianity operates is one informed by the written word.
The resources of a Christian morality are to be found not only in the law- like prohibitions and injunctions of scripture, but as well as in what we learn from God’s revelation of his character, the parabolic utterances of Jesus, the particular histories of the bible characters’2
Christianity, Morality and the law
In the twenty-first century fundamental issues now confront lawmakers. The Western legal tradition is now in crisis partly because of the weakening of the belief system on which it was originally based and partly because it now confronts other legal traditions in the gradual construction of a body of transnational and Trans-cultural world law. The relevance of morality in legislative drafting has been the contentious issue amongst scholars, relying on Jonathan Edward Maire’s description of the defining features of a Christian jurisprudence; we note that morality is proposed as the back bone on which laws must rest, This is fundamentally a Christian’s understanding of what the law must consist of and in a way reveals the role that Christianity can play in the Legislative and adjudicative process.
The Famous Debate- Morality and the law
This question has primarily been a point of contention for the last 150 years, the naturalist have embraced the concept of morality being the platform on which rules are developed and applied, they believe that the law ‘ought’ to be interpreted in the moral context. There is definitely some form of allegiance of the naturalist towards Christian belief although one must not think that they are one and the same, Jonathan Edward Maire argues that his point of contention with the naturalist is their failure to recognize the ‘sovereign’ as the eternal God of heaven and earth. The most resistance comes from the legal positivists.
The main tenet of the legal positivists is that rules are competent to decide cases without reference to moral principles or values. This is the belief I hope to refute on the ground that Christianity has played and can play a large role in legislative advancement and thus must not be ignored. Positivists argue that once a law is born, it gets a life of its own, independent of morality and that it is the job of judges merely to apply the law with out reference to moral considerations. The late legal fathers of legal positivism tradition Jeremy Bentham and Austin3 reject any relationship between law and morality, Bentham considered natural rights as merely ‘none sense on stilts’, The alienation of law from morality is known as the ‘separability thesis’ Coleman4 states that the positivists share two central beliefs : first that what counts as law in any particular society is fundamentally a matter of social fact or convention (“the social thesis”): second, that there is no necessary connection between law and morality (“the separability thesis”). The latter belief may be interpreted as being the possibility of identifying a community’s law without necessarily having recourse to its morality. A critical analysis of such considerations made by the positivist do reveal inconsistencies in their argument , Ronald Dworkin sites out situations where the moral norms in a community form part of the law, this being in force for the ‘truth’ that they hold out .
For Dworkin the fact that Moral principles have the force of law, because they are appropriate and true, or accepted even though they are formally enacted establishes for Dworkin that first, the positivist conception of law as rules must be abandoned.
Secondly; the claim that judges exercise of their discretion –the authority to extend beyond the law to appeal to moral principles to resolve controversial cases. The belief that judges only apply the law is easier said than done, for it means making a substitution of the role that the personality of a judge plays in the adjudicative process. Jonathan Maire in his essay, ‘The possibility of a Christian jurisprudence’ believes that ‘Judges have a larger role in court decisions, than the positivist make us believe, the values of a judge do play a large role on the out comes of a case’5
In resolving hard and controversial cases, judges typically appeal to principles of political morality for example in determining how much weight to give to precedent; Judges may often apply alternative conceptions of fairness. It is evident that the judge shall not rely on his basic knowledge of the law alone. It might be argued by the positivists that the procedure of a judge making a decision based on his morality which in turn will be legally binding upon others is violating the old shibboleth law against legislating morality, to the extent that the judge creates law in light of his morality.
Melvin Eissenberg6 readily acknowledges the significant part played by moral norms in common law reasoning, Alexander Bickel7 too says that judges are immersed in social tradition and its history, which will permit them to extract ‘fundamental presuppositions from their deepest selves’ from the evolving morality of our traditions. Certainly I believe, one reason some positivists have insisted upon the distinction between law and morality and in that regard have discarded the relevance of Christianity in legislation is the following:- while both law and morality provide standards by which the affairs of people are regulated, morality is inherently controversial, people disagree about what morality prescribes and uncertainty exists concerning the limits of permissible conduct and nature and scope of one’s moral obligations to others.
Anthropologists such as Margaret Mead8 have tried to find a ‘nexus’ or unifying set of moral values that unite people across the globe, these are merely limited to such moral norms such as murder, incest etc but the positivist would ask , whether there is a unifying moral value on obeying traffic rules? The answer to this Dworkin advances in making reference to Hart’s9 rule of ‘recognition’ is that even if some moral principles are legally binding, not every moral principle is a legal one. Jonathan Edward Maire insists that although such rules are not predominantly moral in nature, they are set out with the motive to encourage ‘order’ which is a sub-set of the greater rule of not harming another which is a moral value.
Consequently the rules of a legal system can not be understood in abstraction from moral context, it is rather evident Jonathan Maire argues that the law and morality are interdependent, he sees a relationship between legal rules and morality and sights out several examples where the two form a union for example, rules prohibiting the innocent killing of others fall under legal and moral rules. It is quite easy to see Christian teachings or law being incorporated here, take for example the biblical commandment which condones killing, ‘thou shall not murder’10, it says. It must however be noted that the positivist may find it difficult to see the relationship between some rules and morality for example, he may find it remote to associate rules of a traffic code with the law but Jonathan Maire argues that the very essence of such rules is founded on the ‘basal norm of order which in turn is justified by the fundamental norm of avoiding harm.
This is perhaps the foundation on which tort law developed in England: the presumption that a person should act reasonably so as not to cause injury to others, is in turn based on the larger premise of maintaining moral order in society, this being the same principle on which the Christian doctrine is based on. There is thus a suggested frame work in which morality under the wider umbrella of Christianity could be incorporated in the legislative process, legal history is evidence of such a relationship for example; In the English case of Donoghue V Stevenson11 the plaintiff had consumed part of the contents of a bottle of ginger beer produced and bottled by the defendants when she discovered the remains of a decomposed snail, she sued for her resulting shock and what she alleged to be Gastro-enteritis, on the theory that the defendant bottling company owed her a duty to take reasonable care in the manufacturing and bottling process, the judges had differing opinions of the matter but Lord Atkins is worthy of noting for he suggested the neighbor principle, he said ‘the rule that you are to love your neighbor becomes in law: you must not injure your neighbor and the lawyers question is , who is my neighbor receives a restricted reply. You must take reasonable care to avoid acts and omissions which you can reasonably foresee would likely injure persons who are so closely affected by your acts that you ought to have them in contemplation as being so affected when you are directing your mind to acts or omissions which are called in question’
Jonathan Maire suggests that lord Atkins could have arrived at the same result without using a religious metaphor and the cynical observer might argue that his ruling was ‘really’ based upon notions of social policy and that the religious imagery was superfluous, whatever lord Atkins real motivation, the ruling demonstrates a principle of Christianity being worked into a legal rule. A possible integration of the law and morality encompassed under the larger umbrella of Christianity is not something alien, as the above case demonstrates. It does not however suffice that we reject immoral rules and consider them non-legal, for even the positivist does not deny that many factors including morality may and do concur in the development of a legal rule and that where there is a possible choice of adjudication, moral or other extra-legal consideration may induce the coming to a decision, this was put to practice in Dudgeon V the United Kingdom12 where the dissenting Judge Walsh while ruling on a case of homosexuality stated that ‘the law has a role in influencing moral attitudes and if the respondent Government is of the opinion that the change sought in the legislation would have a damaging effect on moral attitudes then in my view it is entitled to maintain the legislation it has.’
However what the positivist insists on is that once the rule is laid down or determined, it does not cease to be law because it may be said or shown to be in conflict with morality.
The possibility of reconciliation between the positivists, natural law proponents and Christians alike is therefore not an abstract concept or a long shot; the possibility of a Christian oriented legal system is real and tangible, but it can only be possible with the elimination of some constraining factors such as liberalism and secularism that have encouraged the divorce of the law from morality and in the wider sense Christians value, for reason is the sole pedestal on which, the positivists lay out their argument. The current trend of things though might be encouraging to the Christian for we have moved from the stage of Hard ‘positivists’ the likes of Bentham and Austin to the’ soft’ positivists like Hart who are inclined to recognize the relevance of Morality to the law, the prayer of every Christian would therefore be for a further Softening of the positivist views towards Morality and the law for then and only then can we recognize a fully functioning Christian Jurisprudence!
BIBLIOGRAPHY
Texts
1. Harold J. Berman, ‘The interaction of law and religion’ 1974
2. J. Coleman ‘Negative and positive, positivism’ University of Arizona
3. Jonathan Edward Maire ‘The possibility of a Christian jurisprudence’ 4. 4. American Journal of jurisprudence, Notre Dame Law School Vol.40, 1995
5. J. Omony, ‘Key issues in jurisprudence’ 1st edition
6. Ronald Dworkin ‘Taking rights seriously’ (1977)
CASE LAW
1. Donoghue V Stevenson (1932) AC 1 562
2. Dudgeon V United Kingdom (Application no. 7525/76)
Moses Ngorok
LLB
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