Reading: Notes Chapter 13

1.    Dooyeweerd, New Critique, vol. 3, 380.

2.    The historical process by which states arose and assumed differing forms is another side to their variation. That side is accounted for by Dooyeweerd’s analysis of the historical “opening process” of social communities alluded to in note 12 to chapter 12. (In addition to the references given in that note, see also the New Critique, vol. 2, 181- 92, 335-65). This allows for the fact that at times states have been nothing more than organizations to defend territory, while laws emerged from the decisions of courts rather than being statutes of the state — as in the case of Anglo-Saxon common law. So the account of the nature of the state I’m about to give assumes a fully developed, or “opened up” state aimed at establishing an order of public justice. That this is the nature of a fully developed state was recognized as early as Aristotle when he remarked, “Justice is the bond of men in states, for the administration of justice, which is the determination of what is just, is the principle of order in political society” (Politics, 1253a37-39).

3.    Two comments: The first is that this contrast in punishments was drawn with the treatment of adults in mind. Parents are often obliged to use force to restrain young children, for example, when a toddler is put in a playpen or a child is punished. At   the same time, of course, the state surely has a duty to protect children from abuses   of such parental force, especially where the life or health of the child is at stake. The second concerns the mention of the death penalty. The biblical sanction of death for premeditated murder is not only clear in both the Torah and the New Testament (cf. Gen. 9:6 and Rom. 13:4), but is based on the victim’s being in the image of God and so cannot be dismissed as relative to the particular time or circumstances of its writing. I therefore find its widespread abolition in Europe to reflect a humanist, rather than biblical, basis for the interpretation of justice. Moreover, the argument that if it’s wrong to kill another human then the death penalty is also wrong, is absurd. There is no action that can be taken to punish crime that would not itself be a crime were it not legal punishment for a crime. For example, it would be stealing to take others’ money against their will unless it’s a fine for a crime imposed by a rightful authority; and it would be kidnapping and unlawful restraint to incarcerate another person unless that is likewise a punishment for crime imposed by a rightful authority. The same holds for execution. I do think, however, that capital punishment should be meted out only for premeditated murder, when the evidence is overwhelming, and after there has been an appellate court review to ensure that proper judicial procedure was observed. In addition I advocate a second review, by an independent board, of the facts in such cases to check on evidence and witnesses.

4.     Augustine, The City of God bk. 19, 12-17. Dooyeweerd himself also held this view in The Christian Idea of the State (Nutley, N.J.: Craig Press, 1968), 40. There he specifically sides with Augustine against Aquinas, who held (as I do) that it is only the state’s need for military power which is the result of sin. (I do, however, agree with Dooyeweerd in rejecting Thomas’s reasons for his view).

5.    James Skillen, “The Bible, Politics, and Democracy,” paper delivered in a conference sponsored by the Centre for Religion and Society of the Rockford Institute, Wheaton, Ill., Nov. 1985, 

6.   We often overlook the fact that the exercise of force need not be violent or threaten violence. The erection of a toll gate or the placing of a temporary barrier across a street is also a form of force. So is the padlocking of a confiscated property or the attachment of wages. Cf. N. K. Smith, “The Moral Sanction of Force,” The Credibility of Divine Existence (New York: St. Martin’s Press, 1967), 214 ff.

7.    This is not to suggest that the state can never be the injured party. In cases such as treason, theft of state property, or tax evasion, it clearly is.

8.    The course materials provided by the state of Pennsylvania for the driver’s education course I took in high school explicitly made this claim.

9.    The distinction between a per se right and the right to a freedom is that a per se right concerns benefits that citizens receive directly from the state, such as the protection from invasion and crime. A secondary right, on the other hand, is a right of citizens to be free to act in a certain way whether or not they wish to exercise that freedom. Thus, while we do have a per se right to be protected from crime, we do not have a per se right to marry or do business since no one violates our rights who refuses to marry us or do business with us. What we have is the right to be free to marry or to do business. So while driving is not a per se right, on the sphere sovereignty view it is a right in this secondary sense of being a freedom.

10.     Cf. the remarks of Otto Von Bismarck justifying his editing of the Ems telegram in order to incite the Franco-Prussian war (Bismarck, the Man and the Statesman: Being the Reminiscences of Otto, Prince of Bismarck, trans. A. J. Butler [New York: Harper & Row, 1899], vol. 2, 97-101).

11.     It is fascinating to notice how the individualism of the Declaration gives way to a collectivism of majority rule in the U.S. Constitution. For where the Declaration speaks of inalienable rights, the rights listed in the Constitution are all amendments which can be repealed by vote of the Congress or the states. Thus, there is not a single right listed in the U.S. Constitution that is guaranteed to be inalienable.

12.     Jefferson had originally proposed the wording: “We hold these truths to be sacred and undeniable.” Franklin thought that sounded too religious and talked him into substituting the more rationalistic phrase: “We hold these truths to be self-evident.” Nevertheless, there had been a strong connection made between self-evidency and religious truth among the Puritans, who (prior to Locke) had also connected biblical teaching to the idea of limited government. It was a combination of Locke’s theory with the older Puritan heritage that was advocated by the colonists. See Staughton Lynd, Intellectual Origins of American Radicalism (New York: Pantheon, 1968), 20, 24-31.

It should also be noticed that although the term “rights” doesn’t occur in scripture, the idea does. Since a right is a benefit or immunity that cannot be denied a person without injustice (in the case of a legal right) or without lack of love (in the case of an ethical or moral right), then both the law of Moses and the story of the Good Samaritan, e.g., clearly teach that all humans have rights in virtue of being in the image of God.

13.      Jefferson does refer to the “Laws of Nature and Nature’s God” in the opening paragraph. However, he does not specifically connect this allusion to his point about individual rights. Rather, he connects it only to the “separate but equal station” to which he says the United States are entitled among nations. Many subsequent discussions of rights have since followed his lead by failing to connect rights to norms.

14.      At times it has been suggested to me that we don’t really need any theory to account for the belief in rights, because they need be nothing more than pragmatic constructs. All we need do, it is said, is to agree to say that people have rights, and   all the same limitations on state power will ensue. Nothing could be further from the truth. In fact, the pragmatic view of rights is pragmatically self-defeating. Once it is agreed that there really are no such things and that we are only pretending they exist, the practical result will be twofold: on the one hand no one will be constrained by  any statement of them, while on the other hand everyone will want them declared to be whatever favors their own interests. The practical political result would be utter mayhem. Besides, if rights are viewed as the inventions of those in political power, and thus whatever the state deems it useful to confer on its citizens, the pragmatic view of rights immediately results in a collectivist view of the state and so provides no principled limit to state power. Thus a pragmatist view of rights destroys the most important practical consequences that the belief in real rights has produced.

15.       For example, Mary Warren, “On the Moral and Legal Status of Abortion,” Monist 57, no. 1 (Jan. 1973): 55; and Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs 2 (1971).

16.     Thomas Hayes, “A Biological View,” Commonwealth 85 (March 1967): 677-78.

17.     It is interesting in this connection that still other writers have tried to avoid these consequences by basing rights on the ability of a being to feel rather than to think, and so have concluded that animals also have rights. From standpoint of the law framework view of rights, both theories are still too limited by being tied to the subjective condition of the beings in question. On our view, not only animals, but the whole of inanimate creation has rights — at least indirectly. This is because humans have justitial (and ethical) obligations not only to other humans, but to God and thus to the whole of His creation. We have, for instance, been charged with caring for and improving upon the creation because it has been entrusted to our care by God. It is on this ground that we can explain why it is wrong, e.g., to pollute the air or water even if doing so won’t harm anyone now living. Other theories, however, cannot explain how a future generation could have rights with respect to our actions when it doesn’t yet exist.

18.      It is a source of great confusion that most political and legal discussions of what is called “ethics” fail to distinguish adequately between the ethical aspect and the justitial aspect. Frequently the issues of justice which are not of a public character, and are therefore not matters about which the state should enact laws, or even public justice matters about which the state has yet to pass a statute, are called “ethical” or “moral” issues even though they still fall under the norms of justice rather than love.

19.     Resorting to the fiction that corporations are persons in order to give them legal standing before the courts, still fails to cover the legal standing of non-corporations. The inadequacy of this view has come to be recognized especially since the work of Hohfeld. That courts cannot adequately provide legal remedies on the assumption that only individuals have rights, is shown by cases such as class actions and others involving non-Hohfeldian parties. See R. Cover, O. Fiss, and J. Resnik, Procedure (New York: Westbury, 1988).

20.      James Skillen has put this part of the theory very well in his article “Going Beyond Liberalism to Christian Social Philosophy” in Christian Scholar’s Review 19, no. 3 (March 1990). Skillen emphasizes that the law framework theory’s insistence on government even-handedness toward all is not a concession to relativism. Instead, it is a point of justice whose biblical basis is this: God is long-suffering and patient until the final judgment. . . . [This is] a testimony not to God’s relativistic nonchalance about sin but rather his mercy and grace. If God is patient. . . then we, too, must be the same. . . . If government restrains itself from forcing all citizens to confess one faith, or forcing all parents to send their children to a single school system, or forcing all friendships to meet the same sexual behavior patterns, it does not thereby act as a relativist. . . . Government fulfills its duties before God when it seeks to advance public justice which includes full protection of the confessional rights of those non-political, non-governmental institutions and relationships which must be free to obey or disobey God’s laws in their own realms.

21.       See the comments of Bob Goudzwaard in Capitalism and Progress (Grand Rapids, Mich.: Eerdmans, 1979), 110-13.

22.       In November 1986, the Japanese prime minister, Yasuhiro Nakasone, commented publicly that the United States was suffering a national decline because it was allowing its population to be diluted with a mixture of races.

23.      More than that, we would say that even if a school advocates a particular religious, political, or ethical point of view, it should still receive equal support from  the taxes government imposes to pay for whatever education it requires citizens to have. This is because (1) there is no such thing as a religiously neutral education, as every theory or interpretation presupposes some divinity belief or other, and (2) sphere sovereignty requires that government not favor one religious point of view over another. Present educational policy in the U.S. does exactly that, however. It funds a school so long as its teachers are unaware of the religious assumptions of the views they teach, and it refuses funding to schools whose teachers are aware of their religious presuppositions and try to teach their subjects from that unified point of view. From the sphere sovereignty perspective, justice requires that all schools be supported equally or not at all. As J. S. Mill argued, the duty of the state is to require universal education not to supply it. Mill adds that if government adopted such a policy it could then leave to the parents to obtain the education where and how they pleased, and content itself with [supporting it]. . . . that the whole or a large part of the education of the people should be in state hands, I go as far as any one in deprecating. . . . A general state education is a mere contrivance for moulding people to be exactly like one another; and . . . the mould . . . is that which pleases the predominant power in government . . . it thereby establishes a despotism over the mind, leading by natural tendency to one over the body. (On Liberty, ed. D. Spitz [New York: W. W. Norton Co., 1975], 97-98)

24.      For more on social or political theory generally, see P. Marshall and R. Vander Vennen, eds., Social Science in Christian Perspective (Lanham, Md.: University Press of America, 1988); Bruce Wearne: The Theory and Scholarship of Talcott Parsons to 1951–A Critical Commentary (Cambridge: Cambridge University Press, 1989), “Elias and Parsons: Two Transformations of the Problem-Historical Method,” in Talcott Parsons Today: His Theory and Legacy in Contemporary Sociology, ed. J. Trevino (Lanham, Md.: Rowman & Littlefield, 2001), and “Deism and the Absence of Christian Sociology,” Philosophia Reformata 68 (2003); D. Koyzis, Political Visions and Illusions (Downers Grove, Ill.: InterVarsity Press, 2003); and D. Strauss, Reintegrating Social Theory (forthcoming, 2005).

For more on the issue of government’s proper role in education, see R. McCarthy et al., Society State, and Schools (Grand Rapids, Mich.: Eerdmans, 1981); R. McCarthy, J. Skillen and W. Harper, Disestablishment a Second Time: Genuine Pluralism for America’s Schools (Grand Rapids, Mich.: Christian University Press and Eerdmans, 1982); Charles Glenn, The Myth of the Common School (University of Massachusetts Press, 1987); James Skillen, ed., The School Choice Controversy (Grand Rapids, Mich.: Baker Books, 1993); Charles Glenn and Jan de Groof, Finding the Right Balance: Freedom, Autonomy, and Accountability in Education (Utrecht: Lemma, 2002); and Steven Vryhof, Between Memory and Vision: The Case for Faith-Based Schooling (Grand Rapids, Mich.: Eerdmans, 2004).

On the issue of how elections are conducted, see Justice for Representation, a position paper of the Center for Public Justice, Washington, D.C., by James Skillen, the Center’s Research Director. The Center is devoted to educating people to the connection between biblical faith and political issues via the law framework theory. The Center can be contacted at: inquiries@cpjustice.org while www.cpjustice.org is the address of its website.