Video Transcript: Civil Law
So how are we now to think of the nature of the state as an institution? It's an artifact. It has a founding function that's historical formative with people create states. And it has a leading function, that of justice. That's what it's formed in order to ensure. A state then we may define as a political institution in society, citizens organized under a government. What more can we say about the state? That's what we get from its qualifying its leading functions for the distinction among the different aspects. There's also matter of its type law, remember that for individuals. There are also laws that govern which combinations of parts and properties are possible in the creation. And so we now want to know what the type law for the state is. Its internal organization. That just about everyone has ever written about the state agrees on on this arrangement of parts. That is it, everyone agrees that the state has to do with a relation of might that is power. And the right, that is justice, the state's the institution that's charged with establishing the legal order and then enforcing the legal order. So the type law is going to have something to do with a relation of might and right. And as you might expect, we're going to say, from a Christian point of view, that the right way to think of this type law, is there organs of determining what is right. And there are organs of the exercise of might or power. And then it's the right that should lead the might. And that is, the law determines what it is that will be compelled or forbidden. And the power of the state is used to enforce the law. Now, as with other institutions, and other artifacts, it's possible for something to not conform to its type law. Exactly. Say a marriage has a type law it requires spouses who pledge love, exclusive love to one another. What happens then, when one of the spouses doesn't fulfill that doesn't seem to love the other or is brutal or cruel, is it no longer a marriage? Well, that's calls for judgment. There are some cases in which, yes, that would be the conclusion others in which it would be? No, it's now a distorted marriage. It's an abnormal one. But but perhaps there are ways to save it with counseling, we can restore it to its proper, the proper arrangement between the the married spouses here, same thing is true. There can be states that approximate this very closely, states that approximate it almost none at all, there are some states that actually reverse this, and have might determine what is right. In other words, it's just the most powerful, the people that are richest, that have the most influence, exercise control over the armed force, the military or the police, and then force anything that they want to be declared right? And right, in accordance with law. Laws can be unjust, just as people can be. And we know plenty of examples of that sort of thing. So we're saying that a state that's distorted in that way, is still a state, but a deformed one. The truth is that many kinds of things are able to violate their type law to a great extent before they cease to be that type of thing. There's wiggle room, especially when norms are involved, normative behavior, and that's what we have here about rules of justice. The next thing we're going to notice is that Dooyeweerd adds to this, that what God has built into the world in way of
justice is the norm. The overarching law that we are to be just in our dealings with one another. So this differs from natural law theory that holds that somewhere and it may be a Platonic dimension, something there's a put this into the mind of God. Somewhere there are, there is a set of perfect laws. That govern every possible contingency here in creation, and our laws are just if and only if they copy those laws or to put it another way, they're just to the extent that they copy those, those laws that were in another realm altogether. Dooyeweerd finds that excessively speculative, we're not told anything like that, or there is no hint in that direction and scripture, taking the norm of justice, that we are treat one another as just, Dooyeweerd's contention is that the elected officials of the state the lawmakers, must then determine the set of laws that is most just for the most citizens that it can and in most ways that it can. And that set of laws may differ from one time to another one place to another, they can be different in one place or another place at the same time. It's not true that if you have a Christian point of view, and you have a state that's close, closely corresponds to its type law, that you'll again, get the same set of laws for everybody. No, that's not true. People are living in different circumstances have different needs, and so on. But one of the examples he gives of this is that during the time when the economy in Western Europe was pretty much barter, by trade do this for that very few people had any money. The Roman Empire had collapsed. Or very hard times, the state, the church made it a rule that taking interest on money was wicked and evil. Dooteweerd says, That was right, the only people that had money at all were extraordinarily wealthy, and for them to charge anyone else interest charge, the poor. Interest is a terrible case of usury. But after the monetary system shifted to, after the economic system shifted to being monetary, to having representational coins or whatever, for the value that you are trading for. So I'm not trading this sheep for that goat, I'm not trading this cow for those pairs of shoes, or whatever it is. But actually, the trade is in money. Money's in wide circulation, that prescription that forbidding of taking you three doesn't necessarily have to apply anymore. And that was Calvin's point and we didn't need apply it. It was right when it was passed. Now it no longer is. So it's not that the laws, as the natural laws are envisioned by the people hold that theory. The laws are eternal, immutable, they never change, a just society would be exactly the same in every place for all people. No, no, it varies very much with what how people make their living, where they live, varies with the climate, and all kinds of other things that influence people's needs, and which goods are scarce, and can be given a monetary value and that needs to be governed by rules of justice. So for any in any state, though, there are going to be organs of determining right. That might be the king's decree. But most of us nowadays think it's much better to elect lawmakers from the people qualified people who know who can represent the people's interests, and vote on laws and pass them and then their are organs of enforcement. These include the
military, or for foreign matters that require force and the police for domestic ones. No, there is no controversy in Christian thinking about whether the state is really a proper and necessary institution in human society, or whether it's only an ad hoc arrangement to restrain sin. This goes back to Augustine. Augustine thinks about it. And he says, Well, you know, if there'd never been a fall into sin. If humans had rebelled against God seemed to him we wouldn't need the state at all. We wouldn't need laws, we wouldn't need enforcement. And so he proposes what becomes an influential view about the state. That it's not natural to human life. It's only to restrain sin. All due respect to an esteemed thinker. I think he's not right about that. The state is not there just to punish evildoers. That's one of the things it's there for, but it's not the only one. And we are told that in God's final kingdom, his son will be the king who will rule that's a political office and who will bring forth justice for everyone So I don't see that the state itself is unnecessary except for sin. It's going to even be in God's final kingdom, someone's going to make decisions about what's just when and where conflicts people have the people may have honest conflicts and nothing's who was said, I'd like to know where my yard ends and your yard begins. My neighbor would like to know that too. But we have a way of finding out there are record keepers, there are people that can calculate that and keep records. And that would be part of a state duties as it is now. I like what Jim Skillen political philosopher from the United States has to say about this point of Augustine's, biblically speaking, Skillen says, family life was created by God for a positive, loving, nurturing, God revealing purpose. Part of our identity as God's image is that we are the sons and daughters and frequently mothers and fathers. The family did not arise as a technical invention to spank bad children. Punishment and negative discipline are not the reason for the family. We recognize, of course, that due to sin, parents will have to incorporate punishment into the raising of their children in order to foster healthy families. But spankings or other forms of retribution Fit the deeper broader and more original meaning of family life, that fit into that They don't replace it. Life in political communities is quite different from family life to be. Sure. I don't intend to describe civil family life, civic life as family life were it large. Rather, the analogy is this The purpose for government the reason for political life is not first of all to punish wrongdoers, through police officers, trial lawyers in the military, rather, the central meaning of political life is to be found in the positive reality, That of a public community that's there to foster healthy inner relationships with people through public legal means. So that commerce, family, life, agriculture, industry, science, art, education, and many other things can all be carried on at the same time, in the same territory in a harmonious fashion. I think that's a wonderful way to put this point. And it's my reason for thinking that Augustine was wrong about that point. Thomas Aquinas had it right. instead And many people said so, of course, we're talking about Kuyper and, Professor Dooyeweerd saying that the state is part of human life.
Of course, by saying that we have a different view of the state, as Christians, we're referring to things like the social background and Kuyper's theory of sphere sovereignty. We're not saying we have a wholly new theory that doesn't isn't anything like anybody else's? No, we're saying that there are some ways the general view of what constitutes constitutes a state can be tightened up, it can be cleaned up from some errors and mistakes. And I think it might help if I give you just a simple example of what I mean. I'm going to refer now to the difference between civil law and criminal law. In civil law, if I accidentally do something that injures another person, I'm liable. I'm assessed a fine or something like that in order to compensate this person for their loss. If through my own clumsiness, I tripped someone on the stairs, and they break a leg. I am responsible for that. And to see that I pay the doctor bills and that this person is healed. The odd part is that if I do it on purpose, if I deliberately trip somebody and they fall down the stairs and break their leg, then I'm arrested for assault. And I may be jailed or punished in some other way. But the injured party isn't compensated at all. I hope that strikes you as loony. Why should I pay if I accidentally cause you injury, I pay for it. But if I do it on purpose as a criminal act, I don't pay you for it. Instead, I'm jailed by the state. I think what lies behind this blind spot in the civil law, between civil law and criminal law is a false view of the state. I had it up on the board just going to point to it, but I've erased it. I had it up on the board in, there's one view that sees that authority originates in the state. And that's what's at work here. The reason that I pay my I'm punished by the state, and pay my penalty to the state rather than the injured party, is the view that the criminal law originates with the state, that's where the authority comes from. And the state is there for the injured party, I've broken the state's law. So now I must pay for it. I pay the state, not the victim, not the injured party. Law of Moses did better than that 3000 years ago. But it comes out of this false view that the authority originates with the state, I made this point before you might think sounds like nitpicking, In the Christian view, the authority in the state, for the home, or the school, or the business, or the marriage comes from God. All authority originates with God. People may bear that authority. If they're ordained clergy, if they own the business, start a business and own it. Then they have that authority that parents have in the family, because they marry and have children. They may bear authority, but they are not the originators of it. And what this difference in the way the law treats an accident, from criminal activity has to do with regarding the state as the originator of that authority, so that the offended party is the state. So we even have the expression that if someone has been convicted of a crime, and served the term and then is released, that person has paid their debt to society, where society is a synonym for the state. But society isn't the injured party. The state wasn't injured when somebody broke that law. It was another human being that was injured who should have been compensated. We're going to have a lot of examples like that was as we
go through and expand on the Christian view of the state, and then take a look at how what effect that would having that view would have on specific laws. But I hope this illustration is enough to get us started. When we come back, we'll go further into the nature of the state and look further at how our sphere sovereignty biblical view that looks for its qualifying function, it's type law. Placed in the context of sphere sovereignty would lead us to make laws differently