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
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