What is Law?
It has been over forty years since I graduated from law school and, to the best of my recollection, the question “What is law?” was never addressed in any of my required courses. During law school, one was left to acquire a general sense of the nature and purpose of law, but it was never explicitly addressed. By studying the cases and the statutes, we were left with the presupposition that law was really only an instrument to be used by those in power to accomplish what they wanted. This is called “pragmatic instrumentalism” and is the perspective of law patently or latently taught in most law schools.
The problem with this view is that law becomes only a means to an end—an instrument—and the law can be used for righteous and just ends or goals, or for unrighteous or unjust goals depending on the worldview of those in power. If a society has the Biblical worldview that God has established fixed laws which establish the parameters of our nation’s legal and governmental structure, then man’s law will reflect God’s law. This, of course, is the perspective of our Founding Fathers as evidenced in the seminal document that created this nation, the Declaration of Independence. Thomas Jefferson penned the Declaration of Independence and in later years he stated that it was the intention of the Founders not to articulate any new theory of government. Therefore, we know that the Founders had this perspective or worldview of law as articulated in the Declaration.
The Declaration states that it is the laws of nature and of nature’s God that are the parameters for this nation. If a society has a humanistic or man-centered worldview, which has no real parameters other than what man decides for reasons of utility or because it is pragmatic, the law becomes just a tool. Rather than being under law, man asserts himself to be the law. We no longer have the view that God and the law are supreme but that man himself is supreme. This results in a legal system that reflects the ever-changing values of society, rather than the view that law is to establish the standard of behavior to which citizens need to conform. I Timothy 1:8–11 states:
But we know that the law is good, if a man use it lawfully; Knowing this, that the law was not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane, for murderers of fathers and murderers of mothers, for manslayers, for whoremongers, for them that defile themselves with mankind, for menstealers, for liars, for perjured persons, and if there be any other thing that is contrary to sound doctrine; According to the glorious gospel of the blessed God, which was committed to my trust.
The Scriptures reveal that law, by its nature, is a standard of conduct to which we must conform. Galatians 3:24 says, “Wherefore the law was our schoolmaster to bring us unto Christ, that we might be justified by faith.” The law sets the standard, and that standard in the Kingdom of God is perfection. Obviously, none of us can meet that standard and that is why we are so grateful for Jesus Christ who not only fulfilled the standard, but also paid the penalty for our failures.
The former view of law, that law is to reflect the ever-changing values of society, was advocated by Roscoe Pound, Oliver Wendell Holmes, and others. This view has been labeled “sociological jurisprudence.”
I would like to give briefly the perspective of law that our Founding Fathers had. I want to do this by looking specifically at William Blackstone.
Sir William Blackstone (1723–1780) was a jurist in England whose Commentaries on the Law of England served as the basic text for the study of law during the early history of America. Blackstone’s exposition on the law of nature and the law of revelation (Scripture) greatly influenced the thinking of our Founding Fathers. He defined the law of nature as the “will of the Maker,” and said that if any human law is contrary to the law of nature, that law is not valid. This objective legal order prescribed by the Creator, and revealed in nature and the Bible is what Thomas Jefferson referred to in the Declaration of Independence as the “laws of nature and of nature’s God.” Thus, while Blackstone was not a supporter of the American Revolution, his writings are essential to an understanding of the foundations of our legal system.
Psalm 11:3 says, “If the foundations be destroyed, what can the righteous do?” The principles of government upon which our nation was founded are rooted in the Scriptures. These foundations are still there because our seminal documents have not been totally destroyed. However, these principles and foundations are generally ignored by those in power because they have adopted a false view of the nature and purpose of law as a result of the humanistic teaching they received in undergraduate and law schools.
Blackstone’s general definition of law is “a rule of action dictated by some superior being” or authority upon those under its authority. Blackstone then indicated in his Commentaries that there are different types of law. First, there is the law of nature, second, the law of revelation, and third, municipal law. Blackstone made it quite clear that the law of nature was the “will of the Maker;” the immutable laws of nature which God imposed upon His creation, both the inanimate and animate world. This, of course, includes man. Blackstone said, “Considering the Creator only as a Being of infinite power, He was able, unquestionably, to have prescribed whatever laws He pleased to His creature, man, however unjust or severe.”
The second type of law that Blackstone discussed is the law of revelation. This law is the revealed or divine law as found in the Holy Scriptures. He said, “[T]hese precepts, when revealed, are found upon comparison to be really a part of the original law of nature.” Thus, the law of nature is God’s will and the law of revelation is the portion of God’s will revealed to us in Scripture.
But, God did not specifically prescribe laws with respect to all of man’s activities. Blackstone indicated that there is law that exists to govern the affairs of man in civil society. That law is called municipal law. He defined municipal law as a “rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong.” We see that this definition is directly taken from Romans 13:4 which indicates that the civil magistrate is a minister of God to punish those who do evil. The municipal law should reflect God’s will with respect to civil conduct. It includes law devised by man which man deems to be in the best interest of the society as a whole. Because God has not dictated a specific commandment in all areas of life, man has the liberty to establish rules and regulations as he deems best within the boundaries of the law of nature.
However, Blackstone made it very clear that all law is dependent upon the law of nature and the law of revelation. He stated, “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Therefore while there are areas of our civil society which both the divine law and the law of nature leave to man’s liberty, no law which is deemed necessary for the benefit of society can be in opposition to the law of nature or the law of revelation.
Blackstone further stated that the “law of nature, being coeval with mankind” existed from the very beginning of mankind “and [was] dictated by God Himself.” Therefore, it “is of course superior in obligation to any other. It is binding all over the globe, in all the countries and at all times. No human laws are of any validity if contrary to this and such of them as are valid derive all their force and all their authority mediately or immediately from this original.”
In summary, Blackstone had a Biblical worldview that acknowledged the existence of the unchangeable principle of design. The law of nature is the will of God and part of that will includes the law of revelation revealed in Scripture. Man’s law must reflect or be consistent with the revealed will of God and the law of nature as man is best able to discern.
It is important to recognize the difference between the “law of nature” and “natural law.” While many have used these terms interchangeably, from a Blackstonian perspective there was a distinctive difference between the terms. The law of nature was the objective standard that God imposed upon His creation. Natural law was man’s best attempt to discern by his reason that standard. Blackstone was very skeptical of man’s ability to discern the law of nature by his reason. He acknowledged that it was necessary to use reason to apply the law of nature in every circumstance of life but that man had to be careful with his reason since we have a fallen nature and our reason is corrupted. Blackstone said that we could not conclude that knowledge of the truths of the law of nature were attainable by reason in its present corrupted state. Therefore, one needs to rely upon the law of revelation to properly discern the law of nature.
This general view of the types of law was not new with Blackstone but was shared with others including Sir Edward Coke and even Bracton, who is considered the father of the Common Law. Although different terminology is used, Thomas Aquinas also had the view that there was the law of nature, which he called the eternal law, the law of revelation (divine law), municipal law (human law), and natural law.
I have discussed the types of law from a Blackstonian perspective and now I want to touch briefly upon the nature of law. Remember Blackstone said that law was a rule of action. All law, whether the law of nature, law of revelation, or municipal law has this characteristic. By a rule, Blackstone meant that law is fixed (permanent), uniform, and universal. By fixed he meant fixed as to time; that is, it doesn’t change over time. A rule can be contrasted with counsel or advice. A rule is also not a compact or covenant.
Secondly, to be a rule it must be uniform as to a person or situation; that is, the law must be applied equally upon all. God tells us that it is wrong to show partiality in judgment.
Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment. Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous (Deuteronomy 16: 18–19).
These things also belong to the wise. It is not good to have respect of persons in judgment (Proverbs 24:23).
This is why Blackstone said judicial opinions were not law, but only evidence of law. Because the decision of a court is only binding upon the parties to the case, it does not satisfy the uniformity element of what constitutes a rule.
Blackstone said that judges are “the depositories of the law; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.” While he acknowledged that court opinions should be “held in the highest regard” they were not law but only “evidence of what is common law.” And when “the former determination is most evidently contrary to reason; much more, if it be clearly contrary to the divine law” it should not be followed by a judge in a subsequent case.
Lastly, law is universal as to place. The law is binding everywhere in a given jurisdiction and the rule is not relative to place.
In summary, law is a rule of action imposed by an authority upon those under authority commanding what is right and prohibiting what is wrong. A law is permanent as to time, uniform with respect to all persons, and universally applied in all locations.
This view of the types and nature of law held by Blackstone was held by our Founding Fathers and continued in American jurisprudence for well over 100 years. James Kent, the Blackstone of American law, wrote in his Commentaries (1873) that:
It would be improper to separate this law (positive law) entirely from natural jurisprudence and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of divine revelation as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state in its relations with other states is bound to conduct itself with justice, good faith, and benevolence . . .
So the law of nature and the law of revelation are the foundations of our legal system in this country and for one to deny or ignore these foundations would be to deny reality. The specific reference to the laws of nature and of nature’s God in the Declaration of Independence is an explicit reference to the laws God imposed upon His creation and an implicit reference to the will of God revealed in the Scripture.
Psalm 19:7–8 says, “The law of the Lord is perfect, converting the soul. The testimony of the Lord is sure, making wise the simple: the statutes of the Lord are right, rejoicing the heart: the commandment of the Lord is pure, enlightening the eyes.”
In these passages we see that there is a distinction between the law, the testimony, the statutes, and the commandment of the Lord. The law of the Lord is God’s moral law, or the will of the Maker. It is the law of nature. It does convert the soul because it convicts us of sin. The law of the Lord is not necessarily the specific “do’s” and “don’ts,” but the general will of the Maker. The testimony of the Lord is a source of wisdom as we see the law of the Lord applied to specific situations. The statutes of the Lord rejoice the heart because they give us clear direction of what to do and the consequences for not obeying. The commandment of the Lord is his specific direction to us, in the form of the Ten Commandments, the commands of Christ, or specific direction from the Holy Spirit. These commands do enlighten our eyes because they give us vision and purpose.
Just as the specific statutes in the Scripture are consistent with God’s general will, so man’s laws should also be consistent with God’s will and His design. If man’s laws violate the law of nature, Blackstone said they are invalid. Such laws constitute the mere exercise of power without the Biblical foundations that, as one examines the history of the legal system, are inseparable from the correct view of what law is in the United States.