A PLAIN GUIDE TO ...
God's Law  (Continued)

A single question, it seems to me, is increasingly pressing. It asks if it's possible to find new criteria upon which to base laws? 

• Revelation no longer serves because it is based on an ancient world view which contradicts the entire body of contemporary human knowledge.

• The ius civilis or social law depends primarily upon precedent and human choice, both of which are ephemeral. 

• Love appears too indefinite and fluid a concept to be much help (though it rightly focuses on reason as a servant of justice).

• There is no intrinsic reason why criteria decided by a majority should be better than those chosen by a minority or a dictator. 

Perhaps we should rest our case with Thomas Hobbes (1588-1679) who wrote, "No law can be unjust" [5]. Hobbes thought that because he couldn't find a priori criteria for justice, it's absurd to ask whether or not laws are just. Humans make laws for various reasons, he said, and that's all there is to it. Hobbes would say, I think, that theft is defined by us as wrong because we like possessing things. Staying pain-free and physically capable is preferable to being hurt and handicapped, so we outlaw grievous bodily harm except in defined circumstances like war. 

Good law, if we follow Hobbes' line, should reflect as well as possible the interests of people. If our interests change, then so can the law which protects and promotes those interests.

The problem of finding suitable objective criteria for law, once God's revealed law has been put aside, seems insoluble. 

But I think there is hope for a solution. The search for an objective standard or standards to underpin law may rest in reformulating what is generally called "Natural Law". 

Aristotle distinguished between man-made law (nomikon) and natural law (phusikon). By "natural" has meant until recently some "essence" more comprehensive and enduring than the shifting needs and perceptions of human beings. A law is thought good and valid if it can be shown to exist in nature independently of ourselves. 

If this is a worthwhile avenue to explore, then the question shifts from "What's the basis of justice?" to "How do we discover what justice demands?" In other words, criteria for justice exist normatively in nature.

Thomas Aquinas and others tried to isolate normative justice in nature by proposing, as did Aristotle before them, that nature is purposeful (or "teleological" to use a technical term). 

If nature is purposeful, we should be able to discover some indication of the end or purpose to which it moves. For example, isn't it natural for human beings to want to stay alive? Isn't life itself perhaps one reason why the universe exists? If so, might it not be that laws which seek to preserve human lives are essential if justice is to be realised? If so, any society which allows arbitrary killing of people would by definition be unjust.

Natural functions or needs such as such as the universal drive for self-preservation might provide objective criteria for law in general.

To extend this line of thought a little further, it might be useful to ask if it's possible to be so objectively certain about natural norms that laws based on them are self-evidently valid?

First, we might ask if natural norms are self-evident in the existing laws, formal and informal, of most societies. If the vast majority of cultures exhibit certain common laws, doesn't that indicate that we might find underpinning them the criteria for which we're looking?

Second, if norms in nature are not obvious, perhaps they can be searched out. This line of thought starts us inevitably on a philosophical pilgrimage. Anyone who has ventured along this path will know that there are two kinds of philosopher. The first has arrived at the truth and the second knows that the first is wrong. Less facetiously, however, I think that all philosophical systems depend upon axioms. Questions about axioms inevitably mire one down in the complexities of the theory of meaning [6]. Who is to say which theory is right?

In the face of what appears to be an intractable problem it seems to me that a promising approach is nevertheless to ask if the scientific method (or rather, that collection of methods we call "the scientific method") might be brought to bear. Many assert that this is impossible. Science and the humanities (including religion) are incompatible, they say. But I don't think the picture is that bleak. Perhaps an example would help.

Edward Wilson [7] suggests aspects of scientific knowledge which appear to indicate what is both "good" or "natural" for humanity. If so, they could form valid criteria for law. And for those who hypothesise a created universe, they could therefore be called "God's Law" since everything created by God must by definition be good.

Wilson proposes that science and the humanities are in a basic sense a mutually coherent body of knowledge (in his terms "consilient"). The two are not incompatible. It is merely that we have not spent the time and effort to explore and describe the terrain which lies between them. 

He describes, to give one instance, how avoidance of incest might be thought of as a good test of a right behaviour and could therefore be used as a legal criterion. If one accepts a created universe it would become a criterion of God's Law as well.

He points out that incest is [a] without doubt genetically damaging to the human race; [b] is almost universally banned in law; and [c] is prevented by the mechanisms of normal human development.

There can be no doubt, given the available data, that incest increases the incidence of human malformation. Children born of incestuous unions display a far greater degree of physical and mental problems than those born of normal unions. Genetic patterns are so disrupted that a human population founded on incest would cease to be viable.

Wilson's survey of incest laws and customs over a wide range of societies show that incest laws and taboos exist not so much to repress and control wayward human nature (the traditional Christian and Freudian line) as to express human nature. We legislate against incest not to clamp down on something evil, but to encourage right behaviour. Incest avoidance regulates a fundamental aspect of human nature.

Point [c] above needs some explanation. Research shows that children brought up together in the first two years of their lives lack sexual interest in each other. Wilson writes: "... it is evident that that the human brain is programmed to follow a simple rule of thumb: Have no sexual interest in those whom you knew intimately during the earliest years of your life" (his italics).

The conclusion seems indisputable. Laws against incest are not arbitrary. Rather, they are fundamental to humanity. They help prevent behaviours which undermine the viability of human offspring and therefore of the future of the human race. That most societies legislate (formally or informally) to prevent incest is remarkable, particularly because incest is banned even when the genetic malfunctions it causes are not recognised as such. Wilson adds that "... the factual picture emerging from research on human incest avoidance is one of multiple, successive [natural] barriers".

If Wilson is correct - and I find his evidence compelling - then we have here a potential source of criteria for a ius gentium. In effect, the "nature" in natural law is redefined as those aspects of the universe essential to humanity's ongoing viability and development in the universe. 

One way of focusing the search for natural criteria might be to examine the main concerns of most legal systems. If anti-incest laws are almost universal and independent of scientific awareness, might it not be that other laws have been founded on a similarly intuitive reading of nature?

I'm no expert in this field, but a cursory examination indicates that Western law focuses primarily on

- preserving human lives;
- continuing the human race;
- fulfilling human potentials; and
- managing human difference.

Each fundamental aspect huge in scope and manifold in implications. The size and complexity of law as a subject witnesses to this. But I think it might be possible, given time and effort, to describe in scientific terms some aspects of the human condition which can be identified as "natural" and which could therefore taken up as criteria for law.

For example, laws to preserve human life involve penalties for killing another human being unless certain conditions are met. Such laws appear to be almost universal. Can their universality be proven? If so, are there any significant qualifications in their application?

It may be that such laws reflect natural, inbuilt inhibitions against killing our own, inhibitions which are loosened but not removed by legal war. It should be possible to investigate murder just as incest has been researched. Can it be demonstrated, for example, that murder negatively affects the human gene pool? Do deaths by unnatural means harm humanity as a whole and if so, how? Are we normatively hard-wired in childhood to guard rather than destroy human life?

It is not self-evident that human life should be preserved as a matter of principle. None of us likes the idea of dying. Laws against taking life could merely be projections of a universal human desire to stay alive. The search for criteria, given what hangs upon the findings, must surely be hard-headed.

The need for objective criteria is rapidly becoming more critical. There is much talk about a developing global community. It may be centuries before our planet truly becomes a global village. I think it's highly likely, however, that in the 21st century we will see the founding of a body of international law which begins to act as a global ius gentium. If it is to prove convincing to all, international law's criteria must be in some powerful sense universal.

What about God's law, to return to the title of this essay? Christian tradition has attempted to settle the problem of finding criteria for right behaviour by asserting that certain laws have been given to humanity by God. But a significant number of Christians and majority of others no longer accept this teaching. 

It seems to me that our focus must begin to switch from answers to questions, from conclusions to method. Only the scientific method (not that ubiquitous thing called "science") appears likely to be able to firmly establish what is intrinsic to our nature and could therefore form the basis of law.

It seems highly unlikely that a created universe will ever be proved - any more than God's existence will ever be proved. We're unlikely, therefore, ever to recover God's Law in the traditional sense of a revealed and therefore absolute truth. 

Revealed truth by definition ends all exploration and debate. As traditional Christian theology gradually changes we can hope that the debate about natural law becomes more dynamic and fertile. But I doubt, given the provisional nature of scientific knowledge ^[8], that it will ever become cast in concrete in the way that revealed knowledge inevitably does. Elements which might be formed into nature-based law will never be so certain as to preclude either dispute or reformation.
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[5] Leviathan, quoted by R Wollheim in The Encyclopedia of Philosophy
[6] See Epistemology 
[7] Consilience, 1998 
[8] The Structure of Scientific Revolutions,Thomas S Kuhn, 1962

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