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Law at the Jesus Creed: David Opderbeck


Mission, Accommodation, and the Rule of Law … David Opderbeck is a professor of law at Seton Hall University and blogs at Through a Glass Darkly.


Debates over law and “culture war” issues, particularly concerning abortion and gay marriage, revolve around the extent to which law should encode morality. 

A common secular view is that “law” and “morality” are essentially separate domains.  In this view, “law” ideally serves the “neutral” function of allowing each individual to live out his or her personal moral code without undue interference from others. 


A common religious view, advanced by some Christians, is that “law” and “morality” are substantially overlapping domains.  “Law” should serve as a moral enforcer and moral teacher, at least concerning foundational principles such as the right to life and the sanctity of marriage.  Further, these basic moral principles should be considered accessible to religious and non-religious people alike through exercise of ordinary reason.  This approach often suggests that these “natural law” principles have long been embedded in humanity’s great religious and social traditions, and in particular in “Judeo-Christian ethics.”


What do you think:  can “Law” be morally “neutral?”  Is there such a thing as a “Judeo-Christian ethic” that can or should form the basis for “Law?”

The “neutral” secular view, I believe, is substantially
inadequate, not least because it ultimately refers to at least one “moral”
principle that is not truly neutral: 
that individuals ought to be
as free as possible to self-actualize. 
The “ought” hangs in mid-air. 


The common religious view, however, also seems
anachronistic, because the examples of Biblical law that supposedly encode
“Judeo-Christian ethics” encourage, or at least fail to condemn, cultural
practices that today we consider evil or harmful, such as slavery, concubinage,
holy war, and polygamy.

A fascinating recent book about law in the Hebrew Bible is
David L. Baker, Tight Fists or Open Hands?: Wealth and Poverty in Old Testament Law
(Eerdmans 2009).  Baker compares various aspects of the
Law reflected in the Hebrew Bible to other law codes from the Ancient Near East
(“ANE”).  Baker demonstrates that
Israel’s Law in many respects did not differ substantially from other ANE legal
codes.  However, in some very important
ways – particularly in provision for the poor and for outcasts within the
covenant community – Israel’s Law was more generous than other ANE legal codes.


One example is Israel’s law of slavery.  Leviticus 25:44 states that

“[t]he slaves you may have, male and
female, [are to come] from the nations around you; from them you may buy male
and female slaves.  And you may
also buy children of temporary residents living with you . . . and they may
become your property.  You may
bequeath them to your children after you as inherited property, you may treat
them as slaves in perpetuity. . . .”


As Baker notes, “[t]he existence of chattel slavery was
taken for granted in the ancient Near east, both by the free population and by
the slaves themselves.  There is no
trace of ideological condemnation of the institution as such nor of demands for
its abolution. . . . Turning to the Old Testament, we see that chattel slavery
is still taken for granted.” 
(Baker, at p. 119). 

However, as Baker observes, in the Biblical Law distinctions are made among different kinds of slaves, and members of the
covenant community (i.e., Israelites) cannot become lifetime chattel slaves.  In general, Israelites could be
subjected only to temporary debt servitude.  When the Israelite debt servant’s obligation was fulfilled, the
Law required the master to “[p]rovide generously for them – sheep, grain and
wine – giving to them as the LORD your God has blessed you.”  (Deut. 15:13-15.)  This provision would help the debt
servant get “back on his feet.” 
These requirements are unique among known ANE legal codes.


There are a number of possible “explanations” for the Hebrew
Bible’s slave laws.  One common
view is that, at least to some extent, the provisions for chattel slavery of
non-Israelits laws represent accommodations to the existing ANE culture.  In his outstanding book, Old Testament Ethics for the People of God, for example, Christopher J.H. Wright states that
“[s]lavery was such an integral part of the social, economic and institutional
life of the ancient world contemporary with Old Testament Israel that it is
difficult to see how Israel could have excluded it altogether or effectively
abolished it.”  Another possible explanation
is that the slavery laws, with their distinctions between the covenant
community and outsiders, reflect part of God’s judgment of the nations
surrounding Israel.


These perspectives lead to some important questions about “law”
and “mission”:  Should positive law be adjusted or
“accommodated” to the social norms of the governed population even if those
norms are contrary to fundamental moral principles?  What, if anything, would a principle of “legal
accommodation” mean for contemporary debates about hot button moral-legal
debates such as abortion and gay marriage?  Is it appropriate today in a
representative democracy for the “covenant community” – the Church – to accept
lower moral-legal standards in the broader culture than those that apply inside
the covenant community?  Or should
the covenant community adopt as one of its priorities an “interest group”
function that seeks to influence the democratic process in favor of its
moral-legal standards? 

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posted February 22, 2010 at 9:54 am

You bring up a very interesting question here about what our role is in the “secular” government. Are we to enforce “our” morality on others? I would say that we should use the tools available to us to help others see who Jesus Christ is! IF we can use the legal system and government systems to achieve this goal, then we most definitely should be involved. Also, if we abdicate our position as part of society that is helping make the law, then we leave those decisions to people who have either no, or a different code of morality which can result in decisions that will affect the Judeo-Christian world in a very negative way. There are those who would like to classify Christians as having a mental disorder, it then wouldn’t be a leap to euthanasia of people with mental disorders for the “good” of society. To prevent extremes like that from coming to pass, we must continue to vote our conscience and send people into government that support values and morals we can agree with.

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John W Frye

posted February 22, 2010 at 10:15 am

For secular law to claim that it is morally “neutral” is a fallacy. Even before we discuss “morality” and “law,” we must discuss human identity: we are human beings and morality and laws (should) serve those beings for their benefit, etc. At once, then, the Church will clash with secular society over “what defines a ‘human being’.” In a pluralistic Republic, yes, the Church must advocate her definitions of human identity (Imago Dei-bearers) and her moral values attendant to that definition. At some point it comes back, then, to the reality of a ‘revelation’–a sacred word from the Creator…or not.

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posted February 22, 2010 at 12:14 pm

That comment about euthanizing Christians shows exactly why I typically vote against the “Christian” candidate. Even when they are in charge and forcing their morals and morals-in-action down the rest of our throats, they claim to be persecuted.
They’ll claim to be pro-life, but without the influence of the Christian party* on our government, we wouldn’t be occupying Iraq with the resultant deaths of innocent women and children, while meanwhile in the US our children die for lack of health care. And let’s not forget the innocent people who have suffered the Christian-supported death penalty.
I am a Christian, but I have seen far too much suffering and death caused by red-state Christians to ever accept their morality as state-sponsored law.
* Meaning the unholy alliance between the GOP and evangelical Christianity.

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posted February 22, 2010 at 12:17 pm

Well, these are simple questions for which we can provide simple answers based on applicable bible verses. I’m sure we’ll all agree…ahem…
As John Frye points out, the attempt to entirely separate law and morality is untenable. The substantial majority of laws [even procedural ones sometimes] are based on some form of moral judgment re right and wrong, beneficial/harmful, etc. In each case, society is forbidding or at least discouraging certain conduct and allowing/encouraging other conduct based on such moral considerations.
In the case of the secularist, he brings his moral views to bear on issues that matter to him such as, for example, poverty, the environment, health care, even marriage and abortion. The occasion on which he disputes the “imposition” of morality is when he disagrees with the morality he thinks is being “imposed.” The disagreement is a moral one – not moral v. amoral.
I would say that all law, including secular western, is in a sense a response/interaction with God’s self-revelation in creation by his image bearers upon whom he has imprinted his presence and a sense of responsibility to reflect his character. This is of course twisted and deeply marred by sin/idolatry, including systemic and deeply rooted patterns of sin deeply woven into cultures. It is also diverse according to the different cultural responses to the one God.
At the same time, western secular law in particular cannot be separated from the centuries of Christianity – the particular revelation of God in Christ in redemption – out of which it arises. It is out of the Christian tradition that the western concern for the poor, marginalized, oppressed [unborn children need not apply] arises. These are all of course highly moral concerns. The entire Western human rights tradition is rooted in the reality of human being as the bearer of inherent dignity and value by virtue of his creation by God.
That having been said, for numerous reasons, the covenant community cannot identify its own concerns with that of the state. First, we are called to advance the mission of Christ in the same way he did – without recourse to state power or coercion. Secondly, most commands-exhortations in the Scriptures arise out of the our identity as the people of God in Christ, called to live out of his redemptive and sacrificial love on our behalf. Third is this from the Apostle Paul: “What business is it of mine to judge those outside the church? Are you not to judge those inside? God will judge those outside.” 1 Cor 5:12-13. Our calling is to be the alternate community displaying the glory of God and the world’s hope.
Am I then calling for abdication/withdrawal? No – this is not an option. Now we return to the reality that law necessarily reflects moral judgments. We are also called to act out of love for God and love neighbor in this realm as in others. There’s also the fact that Romans 13, for example, calls for a place for government and its role. The fact is the Lordship of Christ is over all creation. The question is the proper expression of that Lordship with respect to government. What is government’s role and what can we/should we reasonably expect out of the employment of state power under Christ’s Lordship? I tend more towards a limited government view. Just as it cannot make a person good, the law cannot make a society good either [though it can influence for good or evil, sometimes profoundly]. We do not bear the sword to advance Christ’s kingdom, even as we must refer to the truth found in the one in whom all things hold together in endorsing/opposing certain legislation and in appealing to our friends and neighbors.
The challenge re abortion has to do with the fact that it relates to the state’s most basic function – the protection of life. Re marriage, it is not necessarily loving that we withdraw from endorsing marriage as the union of man and woman. Some, for example, endorse withdrawal because they think we ought to give up society to the outworking of its sinful desires and rebellion.
On the whole, I think there are profound tensions here that call for ongoing wisdom and even flexibility, and which must necessarily allow for a broad spectrum of approaches and views among Christians. We need to give grace to one another.

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posted February 22, 2010 at 12:36 pm

John (#4) — really well said. I’m glad you brought out the influence of Christianity on Western law in particular. We’re not talking here, it should be noted, about crude “Christian America” stuff. We’re talking about the roots of Western law well back into the Patristic and Medieval periods, as well as through the Reformation. There’s a wealth of excellent scholarship on this: Harold Berman’s two volumes titled “Law and Revolution,” and an array of books by legal historian John Witte, for example. So I agree that there’s an important sense in which some of these fundamental questions — abortion and marriage among them — run deep into the roots of Western culture as informed by Christian ideas. This isn’t to say that all the fruits of Christendom should be affirmed, but I think it is fair to say that there are points at which the wisdom of many ages, informed by Christian faith, can and should be brought to bear in a robust way.

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Your Name

posted February 22, 2010 at 3:03 pm

Law is always treated in Scripture as the encoding of a minimum standard, the boundaries which, if crossed, would lead to the demise of the society it organizes, as defined by its founder(s). On the other hand, True Morality is a living, un-enforceable web of interconnecting, dynamic relational and personal choices guided by principles that arise naturally from the Truth of the living God and his character: Love.
For example, the 10 Commandments start with “You shall have no other Gods before me”. This is a regulation that focuses on relatively observable behavior, and it undergirded the legal code of the nation of Israel. However, the true moral center of the people of God has always been the resounding invitation “Hear O Israel, the Lord our God is one. You shall love the Lord with all your heart….”. This is the heart of all the law and the prophets, and it is essentially un-enforceable.
Thus, although it would be preferrable for the laws of society to encode a high standard, we cannot rely on them or enforcement of them as a real guide to moral integrity or as the salvation of society. They can only tell us about the boundaries of current society – how far it is willing to go before crying “enough”.
It is in people’s hearts that the quality of a society is ultimately determined. That’s why Jesus focused on rescuing hearts while Himself upholding, though not enforcing, the law. Likewise, neither Paul nor any of the apostles engaged in political or legislative methods to “change society”. Their influence came from the same focus as their Lord’s.
While the establishment of just laws and the appropriate administration of them is an honorable service critical to a healthy society (Lord knows we badly need reasonable people of character doing this!), in order for us to have a lasting effect, as a body we must focus our energy and resources, like Jesus, on winning the hearts of His lost ones, one at a time.

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posted February 22, 2010 at 3:17 pm

(sorry – E-name for previous post should be BJAN)

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posted February 22, 2010 at 4:46 pm

I look forward to your comments since I am in the middle of a week long discussion with my 17 year old son. I have contended that society must have either rules enacted as law or religion to have a thriving morality. Without morality at least being enforced in the law society would degrade worse than it already is.
He believes people will or can be moral without either religion or law. He is quoting Dawkins to me…. I wish I could still think like him.

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posted February 22, 2010 at 8:01 pm

Just curious, has a country or culture ever survived for the long-term without either religion or law? What would such a country look like?

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posted February 22, 2010 at 9:36 pm

Stanley Fish must have read our discussion and decided to expound on it to his NYT readers:

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Ray Ingles

posted February 23, 2010 at 12:08 pm

Dave – Tell your son to look up the 1969 Montreal police strike and ask him if actual experience bears out the idea that people will be good without laws.
I’m not quite so sure about the contribution of religion, though. As H. L. Mencken said, “People say we need religion when what they really mean is we need police.”
We’ve gone over the issue of secular ‘oughts’ before, though. In this very “Law at the Jesus Creed” series, in fact.

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posted February 23, 2010 at 3:24 pm

I took a look at Stanley Fish’s article. He “forgot” to cite C.S. Lewis in Miracles….

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Dave W

posted February 28, 2010 at 3:37 pm

AFAIK in the area where my parents worked in Ethiopia the church allowed new converts to keep all the wives they had upon conversion otherwise the discarded wives state became truly terrible.
I had come to that conclusion in my teens after I had been sent back to North America for schooling and was rather surprised when my dad happened to mention that he had the same position.
To my mind even the church can not always have hard and fast rules about such things.

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