CHRISTIAN COUNSELING AND THE LAW Jerome Strickland Strickland Reprinted by permission from the Journal of Pastoral Practice Jay E. Adams, Editor-in-Chief Vol. V, No. 4 – 1982
The positive, often referred to as the secular, law is one of the most inﬂuential and decisive elements in our society. Its extent is mind boggling. It touches on every role in which we function—individually and collectively. collectively. Every facet of our complex society is involved with the law from cradle to grave, womb to tomb: education, welfare, business, labor, family, family, church, etc. The scope of the law
penal punishments—men would trample on the rights of others. The law administered by government is to meet this need. There is an absolute, concrete need for order , for peace, for balance, for justice in society. The eminent English jurist, Lord Blackstone, deﬁned law as “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”
has undergone almost geometric expansion.
This is the point:
It is not an overstatement to say that the law affects everything. It cannot leave our lives untouched. It has to do with the way we live and the way we are as a people.
Because law governs man and society, because it establishes and declares the meaning of justice and righteousness (what is right and wrong in our society and with what due) law is inescapably religious, in that it establishes in practical fashion the ultimate concerns— functional morals of a culture. Law is in every culture religious in origin.
It has been said on this evidence: “Nothing more clearly reveals in fact the religious change in a society than a legal revolution.” A legal revolution has been under way in this country for the past 40 years. This legal revolution was initiated in high places—the Supreme Court of the United States—and it has been for some time expanding into the hinterlands in the form of overt and subtle changes in state and in federal law bearing most directly on the daily lives of Americans. This revolution is in the form of a change in the philosophy of the law, jurisprudence. Now, the public in general, and the bar in particular, particular, both have a “made in America’’ attitude about our system of justice— ”It ”It may not be perfect, but by George I don’t see any better, etc.” No one is offended if any one of the system’s system’s component parts is criticized or attacked; indeed they are under constant siege by the bar, the courts and the public. But if you go to the heart—its philosophy, its blood, if one
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based, whatever the defects that had been imposed by Pharisaical inﬂuence. Eventually, under Justinian I, there was a radical Christianization of Roman law that continued under the Christian emperors. In the Middle Ages towns and cities developed in Europe, principally as a result of merchants coming together into communities, and these commercial enclaves were largely Jewish. Thus commercial law had its origin in Jewish communities with their commitment to biblically based law. Alfred the Great, in ninth-century England, had these laws placed on the books: If an ox gore a man or a woman, so that they die, let it be stoned, and let not its ﬂesh be eaten. The owner shall not be liable if the ox were wont to push its horns for two two or three days days before and he knew it not; but if he knew it and would not shut it in, and it then shall have slain a man or a woman, let it be stoned; and let the master be slain, or the person killed be paid for, as the “witan” shall decree to be right. And as another example: If a man strike out another’s tooth in front of his head, let him make “bot” [compensation] for it with 8 shillings; if it be the canine tooth, let 4 shillings be paid as “bot.” A man’s grinder is worth 15 shillings. If the shooting ﬁnger be struck off, the “bot” [compensation] is 15 shillings. For its nail, it is 4 shillings. I’m sure it’s obvious to you that these are simply and clearly biblical laws adapted to the times (Exod. 21:28-29, 33-34). It is just as clear and obvious to me as a lawyer, and perhaps even to you, that the substance and spirit of these two laws have their exact counterpart in American tort law, and that the substance is the concepts oifault and corresponding personal responsibility or liability demonstrated in restitution for the damage done. The call of the Protestant Reformation was “What saith the Scriptures?” and this concept was by no means ignored in the legal systems developing during the Reformation. Wycliff wrote, “This Bible is for the government of the people, by the people and for the the people.’’ Another source by means of which biblical law exercised a very major inﬂuence on Western civilization and Western law has been through the common law. The common law is that body of law and juristic theory, which originated, developed and was formulated in England. It is distinguished from law created by legislature or congress or parliament—it consists of principles and rules of action dealing with government and security of person and
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Jerome Strickland property which derive their authority from usages and customs of antiquity originally and then and now from the judgments and decrees of courts. In a simple sense, it is strictly case law precedents—a body of law formulated by courts deciding deciding cases on a case-by-case basis that that then become precedent. John Warwick Montgomery, in his treatise, The Law Above the Law, says: Much of the common law of England was founded upon Mosaic law. Primitive Saxon codes reenacted certain precepts taken from the Holy Scripture and King Alfred in his Doom Book adopted the Ten Commandments Commandments . . . together with the Golden Rule in the negative form as a foundation of the early laws of England. Eugene Rosenstadt-Hussy, in his book Out of the Revolution (the auto biography of Western man), has stated that common law was for all practical purposes Christian law. George W. Keeton, in the Norman Conquest Conquest and the Common Law, said, “The judges of earlier times spoke with a certainty which from their that the common law was wasderived an expression ofconviction Christian doctrine, which none challenged.” The common law of England was brought full bloom to the colonies and was adopted by the States on the formation of the Union as their law. The short-lived Puritan experience, in which the Bible formed the only basis for their law codes, had its positive effect on the substance of American common and statutory law: ‘ ‘New England had begun its existence as a law order; its adoption of biblical law was both a return to Scripture and a return to Europe’s past.” Now let me make one thing crystal clear. I don’t, by pointing out that that Western law, English English and and American law, This website stores data such as was basically biblical in origin and thus in foundation cookies to enable essential site mean to suggest that it was by any means exclusively functionality, as well as marketing, or purely biblical, because You there were variations on this personalization, and analytics. biblical and there wastime a laxity in faithfulness to may changetheme, your settings at any it. There obviously or accept thewere default settings.abrogations, misunderstandings and misapplications, but, nevertheless, the basic foundation of the law and law system of Western civilization Privacy and ofPolicy the American colonies and especially of the United States was biblical at the very least in its underlying moral Marketing absolutes and for America in the law’s view of man and his government. Personalization Analytics Leave this for a moment. Let’s move from the founding of this nation back to the Middle Ages, because at some point back in the Middle Ages Save Accept All there grew up a theory, a philosophy of law, that was more or less less molded from the observance of existing circumstances and conditions. This
philosophy was was not conceived and then implemented, implemented, but rather was gleaned from the evidence available. It was the result of a search for a rationale for the secular system of laws. This theory was called the Natural Law Theory Theory. The essence of this theory is that absolute ethical standards and fundamental legal rights are implanted in the human situation and that these can be discovered as a common element in the moral codes and positive legislation of all civilized nations. Cicero articulated one tenet of the theory before it existed when he said: “I ﬁnd that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom and command and prohibition.” At least initially, in my very humble judgment, the Natural Law Theory did little to in any way interfere with or threaten the continuing biblical foundations of Western law. The civilized nations that were under observation to supply those universal moral absolutes were Christian in their heritage, and the eternal moral absolutes, which were biblical in origin, predated predated the theory. The concept of natural law long dominated jurisprudence. It was in place at the time of the formation of this nation. It has been said, “Even those who were infected by Unitarianism or who were essentially Deistic felt that they were worshipping God, however vaguely, as they worked with a natural law philosophy and approach in formulating positive law.” Natural Law Theory had broad appeal for those times because it taught that law was rooted in the very nature of things, in the framework of the universe, and was expressive of the will of God. There was much truth in some tenets of the theory, and it probably initially had much to do with keeping America’s law fundamentally biblical. But the Natural Law Theory contained two seeds of its own destruction. First, as you will recall, the fundamentals were deduced by observation of society looking for that common element in the moral codes of all civilized nations that would represent absolute ethical standards and fundamental legal rights. Thus, in theory the source for the basics was not the inerrant Word of God, but rather society society,, which reﬂected by common existence moral absolutes of the Creator, thus accommodating the Unitarian and the Deist while lulling the Christian. The theory contains the fallacy that what is universal is necessarily right, that society can look into itself to comprehend the moral absolute of the Creator Creator.. Secondly, as Natural Law Theory withdrew from biblical principles because of changes in the society it observed, it became increasingly vague—and spoke of living honestly, of harming no one, of giving to each its own—without ever deﬁning these terms or giving speciﬁc case law examples of how they were to be im plemented in positive law. law. Thus it became hollow, meaningless; it literally bled to death
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Christian Counseling and the Law on its own vagueness. Although it speciﬁed that law had or should have a certain ﬁxed and absolute quality, it was unable to deﬁne that quality. Thus the genesis of the legal revolution in these United States was the Natural Law Theory itself and the changes in the society on which it focused. It served to create a vacuum in jurisprudence. Thus a new legal philosophy came into vogue, principally through the Supreme Court of the United States, whose philosophy it has been unquestionably for the past 40 years. The origin of this view of law would probab probably ly be ascribed to Justice Oliver Wendell Holmes, who, after the Civil War, began to develop legal ideas that ultimately led to this speci ﬁc view.. Holmes became the primary proponent of what has view come to be known as Sociological Jurisprudence. This philoso phy as such was ﬁrst introduced into the Supreme Court in 1908 by Justice Louis Brandeis and achieved dominance in the Court in 1937, through the work of Justice Felix Frankfurter. Justice Holmes said in his work on the spirit of common law that, “In the last century we studied law from within. The jurists of today are studying it without. The jurists today to enable and to from compel law making and of also the seek interpretation and application of legal rules, to take more account and more intelligent account of the social facts upon which the law must proceed and to which it is to be applied.” Roscoe Pound, a legal scholar, described Sociological Jurisprudence in part as “a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assume ﬁrst principles; as putting the human factor in a central place. ...” So you see, instead of a ﬁxed, absolute quality to law, sociological jurisprudence denied the existence of such changeless principles. The new view stressed tolerance, adaptability, anddata ﬂexibility, This website stores such aspragmatic rather than principledtodecisions, adapting cookies enable essential siteto man’s need as perceived at the time. as well as marketing, functionality, personalization, and analytics. You magazine Newsweek The Brethren and said, may change your settingsreviewed at any time “for most this century, lawyers and law professors have or accept theof default settings. talked about Sociological Juris prudence. In plain language, this means they know that judges are only human and that their Policy decisions often are based on personal politics, class Privacy or [gut feelings], as much as a neutral reading of the law. WithMarketing the publication of The Brethren that message has beenPersonalization delivered to the public with unprec unprecedented edented detail and force.” The Supreme Court makes the law of the land Analytics without regard to objective standards, based exclusively on the composite ideas, wills, pride and inherent proneness Save AcceptJurisprudence. All to err. That is Sociological The right, the wrong, the good, the bad, the righteous, the
just, the moral, the immoral, what man is due is to ﬁnd its foundations in sociology, in psychology—situation ethics, societal standards, a judge’s fundamental seat-ofthe-britches idea of what is just. Of course, underlining this entire approach is man, as preeminent. It is his knowledge, his society, his view, his intellect, from which he is to determine what are the fundamental concepts supporting the law, law, what is best for man in his law and law systems. The law and justice, in theory, and increasingly in practice, have become subject to societal standards and subservient to the government and its policies. There is nothing concrete or absolute about it. Modern humanism locates law exclusively in the province of the state as to philosophy and enactment and thus makes the state, or the people as they ﬁnd expression in the state, the god of the system. As Mao Tse-tung has said, “Our God is none other than the masses of the Chinese people.” Which is exactly what sociological jurisprudence is premised on. In Western Western culture the law has steadily moved away from God, from biblical precepts to the people (or the state) as its source, although, as has been noted, the historic power and vitality of the law, and indeed of the Western Western civilization, has been in many scholars’ judgment its biblical faith. There is unquestionabl unquestionably y a great residue of Christian tradition, ideas and precepts still ﬁrmly entrenched in our law and law system, but it is being almost daily displaced by putting into practice this idea of sociological jurisprudence. It is no longer con ﬁned to the Supreme Court of the United States but is expressed by our state legislators, the Congress, and judges of trial and appellate courts who tend more and more to make law as they decide or help decide cases. What better than to capture the law that has much to do with who and what we are as a people! What is happening as this new philosophy works its will and way—in fact, what has happened and what has been happening for some time—is that as biblical precepts, as biblical foundations foundations pass pass away in the law, law, the law has less and less to do with justice and the law becomes more and more an instrument of Satan. Society, shaping the law through sociological juris prudence, is simultaneously being corrupted by it—a chain reaction, each corrupting the other. Let me give you some concrete examples. Divorce
Let’s brieﬂy consider the area of divorce and the relatively recent development of no-fault divorce. The English law concerning divorce as it existed prior to the American Revolution was the ecclesiastical law of England, administered by the ecclesiastical courts, or Christian courts, as they were sometimes known. These
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Jerome Strickland courts and their judges had no counter part in our system, but the laws laws of of divorce divorce that that were enacted by the legislators legislators of the various states were copied very closely from the rules in the ecclesiastical courts in England. There were two fundamental concepts underlying the divorce laws in all the various states of this country. First, the state has always been deemed a party to any divorce action because ‘ ‘it is deeply concerned in maintaining the integrity and permanence of the marriage relationship” (24 Am. Jur. 2nd Divorce and Alimony). Thus one of these fundamental principles was that the state should seek to preserve marriage, and it should should not facilitate divorce—it divorce—it should not be easy to dissolve the marriage relationship. Divorce was considered not just a matter of two persons, or a family; the whole of society was deemed at interest, affected and involved.
would accept the opinions of behavioral scientists about what was best for society in the area of the law, marriage and divorce. As a result, the rates of divorce have accelerated enormously in the states where it’s easy to get a divorce, including Georgia. The fundamentals of the law—that the societal standards succeeded in corrupting— are now corrupting society. Divorce has become so easy it’s almost forced on an individual experiencing any type of marital dif ﬁculty as the course of the least resistance. A divorce on no-fault grounds is no longer a matter of justice. Justice—”rendering every man his due”— has nothing to do with what occurs in the judgment of the court granting a divorce. The court’s only concern is what one of the parties has decided unilaterally is his or her due, that is, to be released from his/her marital obligation and duty because he/she has the opinion that the marriage is irretrievably broken. Let’s look at the example of abortion, where the change in the fundamentals fundamentals of the law came through the vehicle of the Supreme Court of the United States rather than through the legislature. The Court, in Roe v. Wade, after examining the societal standards on abortion in ancient Persia, Greece and Rome, and the positions of the American Medical Association, the American American Public Health Association, the American Bar Association, as well as progress in medical science being able to perform abortions without jeopardizing the life of the pregnant woman, held that the right of privacy founded in the Fourteenth Fourteenth Amendment’s concept of personal liberty and restrictions upon state action “. . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent. Speci ﬁc and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent’. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases as in this one, the additional dif ﬁculties and continuing stigma of unwed motherhood may be involved.” The court held in practical fact that the murder of an unborn child, at least during the ﬁrst and second trimester, quick and viable, is a constitutional right of a pregnant woman for these reasons! This new constitutional right is now exercised over a million times a year and climbing. Subsequent to this decision the state courts in Massachusetts
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that doesn’t mean we are to give up working to change it. It does not mean we are to close our eyes to its errors. If law is severed from righteousness and truth, it leads to the anarchy of a lawless and meaningless world. William Penn wisely observed, “Men must be ruled by God or they will be ruled by tyrants.” This is an arena of spiritual warfare. The corporate church is not involved in this struggle strugg le per se, but individual Christians arc as an obligation, as a part of doing their all to His glory. I believe the church has a duty to educate Christians in this area that it is largely ignoring. ignoring. Sir Patrick Devin. in his dissertation. Enforcement of Morals, states:. No society has yet solved the problem of how to teach morality without religion. So the law must base itself on Christian morals and to the limit its ability enforce them, not simply because they are the morals of most most of us, nor simply because they are the morals which are taught by the established Church—on these points the law recognizes the right to dissent—but for the compelling reason that without the help of Christian Christ ian teachings the law would fail. St. Paul makes it clear that there is no power but of God, in Romans 13:1. Christ says in Matthew 28:18, “All authority has been given to me in heaven and on earth.” Since God is absolute power, all subordinate and creative powers derive their of ﬁce, power and moral authority only from God; they must exercise it only on His terms, in His sphere and under His jurisdiction or else face His judgment. We are told by our Lord in Jeremiah 18:7-10, **At what instant I shall speak concerning a nation, and concerning a kingdom, to pluck up, and to pull down, and to destroy it; if that nation, against whom I have pronounced, turn from their evil, I will repent of the evil that I thought to do unto them.” I close by submitting that it is time to turn again to the words of Isaiah 33:22, “For the Lord is our Judge, the Lord is our law giver, the Lord is our King; He will save us.” *Jerome Strickland is a trial lawyer and an elder from Macon. Georgia. This is one of four lectures delivered at the June Institute, 1980.