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A Jurisprudence of Aspiration

Here follow some rather informal meditations on the relationship between law and morality, which I typed up at the suggestion of Oliver O'Donovan as groundwork for my paper on Old Testament Law.  They are something of a stab in the dark, and may be off the mark, and at points they may be simply stating the obvious.  But they helped me make sense of some ideas that have been banging around in the dark recesses of my mind since I came upon the quote regarding a "jurisprudence of aspiration" in an essay by Stanley Hauerwas, a kernel long buried that is now proving extraordinarily fruitful for my work in Old Testament Law.
In today’s permissive liberal society, we draw a rather stark distinction between law and morality.  Indeed, one could say that such a distinction is a pillar of Western liberalism, which, abandoning the goal of a public consensus regarding virtue, restricted the task of law to that of restraining vice, and thus protecting a vast sphere in which individuals or groups could pursue their private conceptions of morality.  The original impetus for this was ostensibly not the atomization of the quest for virtue, but the tolerance of various Christian denominations to pursue their differing visions of dogma and morality.  Virtue was still conceived, within many of these Christian groups, as public and social, to be regulated by authority and pursued for the common good.  Nevertheless, the trajectory set by liberalism proved difficult to restrain, and increasingly the communities engaged in shared pursuit of public virtue were dissolved until society consisted of myriad warring private pursuits of moral virtue, all permitted within the broad parameters of public law.  

In our modern conception, law is now more or less “that which we are not allowed to do”; what we are then supposed to do is quite another matter, falling under the heading of “morality,” and is our own business.  
Concomitant with this attenuated role of law has been a sharpening of its coercive character.  Given that law now functions as the boundary for protecting minimal order and the very possibility of moral behaviour, it needs to police this boundary with uncompromising physical force.  As Stanley Hauerwas says, “Ironically, exactly because liberal societies have tended to undercut the moral aspirations fo the law in the name of individual freedom, the law has become increasingly coercive in the interest of maintaining order.”  Indeed, so far has law fallen from being a statement of moral consensus that it is now generally felt that law is only meaningful to the extent that it is coercive, and only insofar as it is enforced is it in any way binding.  Law extends only so far as the reach of the policeman’s baton, and beyond that lies the purely voluntary morality.  Law, we may say, is the boundary, morality or virtue is the goal.  
If this is so, it is surely worthy asking why, in our experience, the reach of law and government in modern societies seems so much more invasive now than ever before.  If law now confines itself to preventing harm, rather than promoting virtue, why should the invasive reach of law has actually increased?  The answer, I would hazard, is that the surest and simplest way to prevent harm is to promote virtue.  When the pursuit of virtue is abandoned, the potential vices that fill the remaining vacuum are potentially infinite, and so the possible harms that can be caused will continue to multiply.  As law seeks to react to each of these sources of harm, and prevent them, law must multiply and multiply until society is intolerably burdened with its weight.
In any case, Christianity has by and large accepted the neat division between law and morality, with the liberals accepting that morality is, more or less, completely voluntary, and conservatives continuing to insist that moral choices should be censured but, by and large, uncensored.  That is to say, conservatives by and large contend for the necessity of right moral action, but continue to place the responsibility for the pursuit of virtue within the private individual, who may may only be influenced by rational persuasion.
It is no secret, of course, to any student of political or church history that this conception of law and morality was not necessarily shared by pre-modern civilizations, which generally accepted both that law extended beyond the bounds of enforceability and mere restraint of particularly harmful vices, and that morality could be imposed by more coercive tools than mere rational persuasion.  While it would not be accurate to say that no distinction existed between civil commands that achieved their effect via more visible forms of reward and punishment, and religious commands that did so through more invisible or imprecise forms, the two certainly stood in much closer relationship, and the lines occasionally blurred.  Civil codes, charged with religious language, expressed principles of expected and normative virtuous behaviour that were not necessarily enforced by police and magistrates, but which were not thereby ineffectual.  Religious codes, overlapping with the decrees of civil authorities, were far from voluntary recommendations, but enforced obedience through ecclesiastical and ritual sanctions of inclusion and exclusion, obligations of penance and purification, and threats and promises of divine punishment and reward.  
This blurriness tended to be mutually reinforcing; inasmuch as ancient societies did not have the tremendous resources and structures for coercive law enforcement that we have today, it made sense for them to encourage a more full-orbed approach to law, in which motives of honor and piety were wrapped up with the more penal motivations toward law-obedience.  Likewise, inasmuch as religion dominated the societies and united them in in the pursuit and regulation of virtue, there was less need to emphasize or resort to the more coercive functions of the law.  Accordingly, once this synthesis began to collapse, the retreat of religion into the voluntary sphere and the enhancement of coercive civil institutions went hand-in-hand, each encouraging the other. 
Not, of course, that we can trace a straightforward ancient/modern dichotomy, as St. Augustine’s critiques of Roman public sentiment in Civitas Dei Book II remind us:  “Law should not be rigorous; low indulgences should not be proscribed.  Rulers should not bother themselves with getting virtuous subjects, simply quiescent ones.  No one should be liable to court proceedings if he has not infringed or done harm to the property, real estate, or physical safety of another person without consent; but everyone should be free to do with himself, his dependents, and consenting associates exactly what he likes.”  However, it is worth remembering that the reason this critique has such force for Augustine is that classical Roman thinkers (e.g., Cicero) would have accepted that this kind of law was a perversion, and would have vigorously defended Rome against the charge. 
Christianity’s role in changing conceptions of law has been complex and ambiguous.  On the one hand, since St. Paul, there has been a strong anti-law strain in Christian thought, claiming that law is an enemy to be overcome by love, the source of true virtue.  On the other hand, others like Aquinas have given law a central and exalted place, and is a chief means of creating a virtuous society.  With Augustine we can see the ambiguity, for he simultaneously criticizes, as we have just seen, a permissive view of law that is not oriented toward true virtues, yet at other points (within the same work) shows great skepticism about the power of law to embody or create morality, and seems to advocate a fairly minimal, pre-moral function for law. 

The anti-law (or the low view of law) tendency in Christian theology certainly owes much to the New Testament itself, which, New Perspective on Paul granted, still tended to deemphasize the value of external observance of law in favor of internally motivated righteousness.  Christ called on his followers to radicalize the external precepts of the Old Testament law by living out the goal of the law from the heart, through love.  Action motivated by love was more praiseworthy (as well as more effective) that action motivated by external constraint, and Christians thus began to favor a righteousness led by the Spirit rather than by civil laws.  However, this shift, while certainly real, should not be overemphasized in light of the much more radical shift that new interpretations of the New Testament spawned in the Reformation.
Luther, with his polemics against law and polarization of outward works-righteousness and the inward righteousness of faith, helped pave the way for a much more disjunctive reading of Christ’s relationship to Moses.  Christ’s reminder that “I came not to abolish, but to fulfill the law” was increasingly forgotten or marginalized.  Since the righteousness of Christ now came from a faith that was antithetical to law, a gap was opened between the Church’s cultivation of true virtue in the heart, and the State’s restraint of vice (but not cultivation of virtue) in the public realm by law.  This gap opened slowly, but inevitably, as civil laws increasingly came to confine themselves to policing the boundaries of social order by force, and the churches took on an increasingly voluntary role in encouraging morality within these boundaries.
If we wish to avoid this trajectory of modernity, what shall we say about law and morality.  Liberalism’s error, it would seem, does not consist necessarily in characterizing law as the boundary and morality/virtue as the goal.  Even Aquinas believed that law was not in itself the goal, and could not itself ensure the goal; it could encourage virtue, but it could not create it.  Aquinas, too, believed that law was a boundary around the pursuit of virtue, the goal.  The difference between our modern conception and his, then, is the size and shape of that boundary.  For liberalism, law is a broad fence encircling an amorphous space within which individuals may freely range in pursuit of the elusive goal of moral virtue.  In the older Christian understanding (and, it would seem, in the Torah), law functions as the walls on either side of a road leading men to a virtuous goal.  Law does not in itself reach or guarantee the moral goal, it is not in itself the pathway of virtue, but (in contrast to liberal theory) law recognizes that such a pathway exists, and it safeguards it, preventing those who wander from missing by too much the straight path, and guiding them towards its destination.  
But in this understanding, in which law functions as a pointer as much as a boundary, law is not so inseparable from coercion.  This conception has much in common with what Robert Rodes calls “jurisprudence of aspiration,” in which the law functions as 
“an expression of what we aspire to as a community, ‘which is not necessarily what we can realistically hope to accomplish.  If as a community we aspire to live virtuously, to deal virtuously with one another, to encourage and support one another in leading virtuous lives, then the law must bear an effective witness to the whole of that aspiration rather than merely coerce or manipulate a measure of compliance with some part.  It was no sentimentalist or visionary, but the ever-practical Justice Holmes who said that “The law is the witness and deposit of our moral life.  Its history is the history of the moral development of the race.  The practice of it, in spite of popular jests, tends to make good citizens and good men.”  If we concern ourselves only with what can or should be enforced, we overlook this function of our law, and, as a consequence, badly attenuate the moral life of our society.’”


"inasmuch as ancient societies did not have the tremendous resources and structures for coercive law enforcement that we have today, it made sense for them to encourage a more full-orbed approach to law, in which motives of honor and piety were wrapped up with the more penal motivations toward law-obedience. Likewise, inasmuch as religion dominated the societies and united them in in the pursuit and regulation of virtue, there was less need to emphasize or resort to the more coercive functions of the law."

Your post was interesting, and as of now, this is the only part I really was skeptical about. Man's sin has always been a sort of atheism, a belief that God will not judge him for his actions. I'm just not sure I really believe that ancient societies were any different than ours in the need for coercion. It seems more likely that religion and law was more tied because emperors were both civil and religious leaders. In other words, their religious cult was indistinguishable from their civil authority.

Of course, you could draw some comparisons between that and our present situation, since our civil pursuits are obviously religious, but I won't dive into that one quite yet.

Anyway, fun post. Thanks.

February 24, 2010 at 4:20 PM  

Hey, good eye. O'Donovan focused on that claim too. After some discussion, we decided that the claim was basically accurate, but it requires some fleshing out. I intend to offer such fleshing-out in a separate blog post within the next couple days.

February 28, 2010 at 10:23 AM  

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