How Law and Faith Can Guide us to a Better World

Delivered by Georgetown Law Professor (and UNMC Member) David Super Sunday March 4.

Two of the most important forces guiding us toward constructive behavior are law and faith. Neither can do the job alone, and attempts to rely on one without the other have proven disastrous. But how can law and faith work together, complementing one another while remaining distinct and true to their respective ideals? UNMC member and law professor David Super explores how we can get the most out of both.

Romans 2:6-15

God “will repay each person according to what they have done.” To those who by persistence in doing good seek glory, honor and immortality, he will give eternal life. But for those who are self-seeking and who reject the truth and follow evil, there will be wrath and anger. There will be trouble and distress for every human being who does evil: first for the Jew, then for the Gentile; 10 but glory, honor and peace for everyone who does good: first for the Jew, then for the Gentile. 11 For God does not show favoritism. 12 All who sin apart from the law will also perish apart from the law, and all who sin under the law will be judged by the law. 13 For it is not those who hear the law who are righteous in God’s sight, but it is those who obey the law who will be declared righteous. 14 (Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. 15 They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them.)

Matthew 5:17-26

17 “Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them. 18 For truly I tell you, until heaven and earth disappear, not the smallest letter, not the least stroke of a pen, will by any means disappear from the Law until everything is accomplished. 19 Therefore anyone who sets aside one of the least of these commands and teaches others accordingly will be called least in the kingdom of heaven, but whoever practices and teaches these commands will be called great in the kingdom of heaven. 20 For I tell you that unless your righteousness surpasses that of the Pharisees and the teachers of the law, you will certainly not enter the kingdom of heaven. 21 “You have heard that it was said to the people long ago, ‘You shall not murder, and anyone who murders will be subject to judgment.’ 22 But I tell you that anyone who is angry with a brother or sister will be subject to judgment. Again, anyone who says to a brother or sister, ‘Raca,’is answerable to the court. And anyone who says, ‘You fool!’ will be in danger of the fire of hell. 23 “Therefore, if you are offering your gift at the altar and there remember that your brother or sister has something against you, 24 leave your gift there in front of the altar. First go and be reconciled to them; then come and offer your gift. 25 “Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. 26 Truly I tell you, you will not get out until you have paid the last penny.

 

May my words be pleasing to you, oh God.

Seventy-five years ago, legal philosopher Roscoe Pound urged modesty about the Law’s role, declaring it to be only one of the “major agencies of social control” along with morals and faith.[1] Pound noted the close intertwining of the early development of religious rites, ethical standards, cus­­tom more generally, legislation, and the adjudications. In recent times, however, we have marginalized faith and ethical considerations as “law has become the paramount agency of social control” and our society “order[s] conduct through the orderly and systematic application of … force.” Instead of encouraging people proactively to act pro-socially, we rely on law to adjudicate rewards for good acts and punishments for bad. Pound say that this heavy reliance on a coercive, reactive expression of law brings con­sider­able risk: “if law as a mode of social control has all the strength of force it has also all the weakness of dependence on force.”

In truth, law and faith have always shared responsibility for guiding people to pro-social paths.

Periodic attempts to have law supplant faith, or to have religion supplant law, have consistently proven disastrous. Societies that rely only on the force of law to keep order can only develop as far as enforceable legal rules will allow. More complicated forms of social and economic organization fall out of reach as they are beyond the capacity of the law to supervise effectively. Such societies rapidly conform to Thomas Hobbes’s description of the State of Nature, a war of all against all in which life truly is “solitary, poor, nasty, brutish, and short.” The officially Godless Soviet Union was anything but a workers’ paradise. Before long, it tried unsuccessfully to make Marxist ideology a substitute for faith in promoting pro-social behavior. Eventually, the limits of state coercion, and the absence of viable substitutes, imposed severe limits on its economic and social development, leading to its demise.

Attempts to rely solely on religion have fared no better. The absence of true law quickly becomes so problematic that religion contorts itself into a law substitute, leaving the society with neither true law nor with the clear guidance of faith. Few epochs in English history were more tyrannical than the rule of the religious leaders who overthrew the monarchy in the Puritan Revolution. Iranian clerics’ rule so distorted their faith that fellow Shiite clergy in neighboring Iraq embrace the Quietist school, which prohibits senior clerics from becoming part of the legal or governmental administration.

It was the subordination of Faith to Law – the desire to curry favor with Roman authorities – that

caused some of the priests of Jerusalem to plot against Jesus even though they knew he was innocent.

Law and Faith long have been closely intertwined. For all its pretensions, Law is very much an offshoot of Faith. Judicial, academic, and clerical robes look so much alike because early judges, and early academics, were clergy.

Throughout Anglo-American history, the division of responsibility between law and faith has been continually readjusted.

Early English law relied heavily on Trial by Ordeal. The accused might be tied up in a sack and tossed into a pond. If she or he floated, that was taken as a divine sign that the accused was impure, being rejected even by the water. She or he was then put to death. If the accused sank, she or he was deemed innocent – although by then the accused might well have drowned. As religious beliefs ceased to accept the highly mechanical vision of God implicit in the Ordeal, the law came to rely more on modern trials.

The conduct of trials, too, changed as prevailing faith changed. Initially, the notion that people would lie under oath, and sacrifice their immortal souls, seemed so preposterous that once a party took a particular prescribed oath as to his actions, the case was concluded. Lawyers would maneuver over what, precisely; the party would be required to say under oath. As the notion of people lying under oath came to seem more possible, courts began requiring “oath-helpers”, additional people who would stake their immortal souls on the side of one of the litigants.

Eventually, in the late 19th Century, lying under oath had become sufficiently commonplace that religion could no longer claim to contain it. Faith then did a hand-off to Law, and the modern ideas of cross-examining witnesses and prosecuting perjury took prominence.

Religion secured the abolition of slavery in Northern states, but entrenched economic interests in the South were too much for it. Then Faith did another hand-off to Law, resulting in the Civil War and finally full abolition.

A far less successful attempted hand-off of responsibility from Faith to Law was Prohibition. Although today the Eighteenth Amendment today is widely mocked as constitutional folly, in truth much of the core of the prohibitionist movement consisted of domestic violence survivors. They had been failed by both the Law, which explicitly refused to intervene when a man beat his wife with a stick no thicker than his thumb, and by the church, which failed to use its then-considerable leverage to prioritize an end to drunken domestic violence. The real tragedy of the Prohibition episode is that, after Law bowed out with the repeal of the Eighteenth Amendment after thirteen years, Faith did not pick the cause back up to any significant degree.

In our own time, social progress has typically required the combined efforts of Faith and Law. Decades of excuses and evasions on civil rights would likely have continued had Thurgood Marshall not won his landmark victories before the Supreme Court, including Brown v. Board of Education. But those victories likely would have been rolled back had not the Reverend Dr. Martin Luther King, Jr., mobilized courageous people of faith to expose the deep immorality of white supremacy.

Overall, however, Roscoe Pound was surely right: we have been shifting more and more responsibilities from Faith to Law and are increasingly over-dependent on its heavy hand to secure the kind of society we want. This approach has failed us time and again.

The Warren Court’s legalistic attempts to reform the criminal justice system failed sensationally when its decisions were watered-down or reversed by subsequent Courts. The result was the explosion of over-incarceration that Michelle Alexander documented in The New Jim Crow. Today, religious leaders across the theological and ideological spectrum are taking aim at this great blight on our nation.

The current Administration’s Environmental Protection Agency and Department of Interior are demonstrating the limitations of legalistic approaches to protecting the environment. As our leading environmental groups have long recognized, a crucial part of ensuring the durability of our environmental laws and of securing the future lies in the wide and growing range of Faith communities that view us as stewards of God’s creation.

Getting the balance between Law and Faith has proven exceedingly difficult. On a political level, the kinds of sentiments that support one often oppose the other. A single-minded believer in Law may deride Faith-based outreach to troubled teens as rewarding wrong-doing or as in­ef­fectual responses to the personal moral failings that lead to criminality. Those with a Faith-based outlook may regard increased policing and greater reliance on informants as pouring gasoline on the fire of social unrest.

On an individual level, legalistic and moral incentives to behave cooperatively tend to crowd one another out. For example, researchers have found that as audit rates and penalties for tax evasion increase, individuals’ intrinsic moral commitment to compliance declines.[2] Indeed, threats directed at honest citizens alienate them from legal institutions and make them less likely to behave cooperatively.

Researchers also have found that “higher monetary compensation crowds-out … inner motivation in important circumstances”, making people less committed to their work and less likely to perform well.[3] Intrinsic motivation is doing things because they are enjoyable. “Intrinsic motivation is of great importance for all economic activities. It is inconceivable that people are motivated solely or even mainly by external incentives.”[4] “The use of monetary incentives crowds out intrinsic motivation under identifiable and relevant conditions”.[5] Other external motivations such as commands or regulations can drive out intrinsic motivation.”[6] External interventions may enhance intrinsic motivation under some conditions”.[7] Changes in intrinsic motivation may spill over to areas not directly affected by monetary incentives or regulations.”[8]

Yet Faith and Law also have complementary effects. Legal enforcement that compliant individuals perceive as directed against deviant misanthropes can improve compliance.[9]

We should seek a productive division of labor between Law and Faith. This mutually reinforcing approach should draw on the strengths of each. It should also allow each to help address the weaknesses of the other.

One of Law’s great weaknesses is that it requires cumbersome adjudications. Because Law is a machine for converting facts into legal outcomes, it must spend enormous resources trying to adjudicate facts. Faith does not: each of us knows the content of our hearts, as does God. We know countless facts that no court could effectively prove.

So as our society gets more and more complex, as we face choices that were unimaginable to prior generations, Law can only go so far. If Faith does not coordinate and guide our actions in a positive, pro-social direction, our grand projects will fail as surely as the Tower of Babel did.

Another problem with Law is that it risks over-concentrating earthly power. A recurring, indeed intensifying, conflict in our society is whether the biggest threat to our freedom comes from government or from other large actors whom government can help restrain. All of those, however, are creatures of Law: without law, there is no government and no corporation.

But while excesses of Law pose grave dangers, excesses of Faith do not, at least not unless they start to seize Law-like powers. Expanding the scope of Faith in moving us toward a just society, rather than reflexively always expanding Law, can help meet our need for more guidance without concentrating more power in earthly hands.

Jesus suggested as much when he counseled minimal, but only minimal, deference to the Law. Caesar handed out coins with his likeness, and Jesus did not object to giving them back to Caesar’s tax collectors. In the continuation of our Gospel passage today, Jesus lists out several ways in which Faith demands far more of us than law alone:

27 “You have heard that it was said, ‘You shall not commit adultery.’[e] 28 But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. 29 If your right eye causes you to stumble, gouge it out and throw it away. It is better for you to lose one part of your body than for your whole body to be thrown into hell. 30 And if your right hand causes you to stumble, cut it off and throw it away. It is better for you to lose one part of your body than for your whole body to go into hell. … 38 “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ 39 But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. 40 And if anyone wants to sue you and take your shirt, hand over your coat as well. 41 If anyone forces you to go one mile, go with them two miles. 42 Give to the one who asks you, and do not turn away from the one who wants to borrow from you.

The point is not to break the Law. The point is not to treat the Law as a substitute for the higher callings of Faith.

Faith, however, also has its limitations as a force for achieving a just society. One limitation is that it is not shared as widely as would be desirable. And by that, I do not mean any particular Faith. Like this Church, I believe social progress has no creedal test for membership. As the passage from Romans suggests, even those outside of a specific Faith community can act conscientiously and will be judged accordingly.

But one need not insist on any particular religious doctrine to believe that in the power and importance of conscience, under any definition, and to worry that it is becoming less common than it needs to be. I am alarmed at the temerity of declarations of contempt for the whole concept of guiding morality that crop up in popular culture and across the spectrum of politics.

God recognized the flagging of Faith in His people and sent Jesus to restore it. And Jesus reached out, by preaching the Word but also through leading by example. Living as a human, Jesus did occasionally anger, and He could be harsh indeed with demons and even with a fig tree. But He never struck out at humans, even those that taunted, tortured, and murdered him. He warned His disciples that they would be abused and betrayed repeatedly because of their Faith but that they must not allow that to deflect or corrupt them. At worst, he counseled abandoning a place where people were unable to appreciate the Word.

So, too, we need to spread Faith by modeling Faith. Revenge is not a dish best served cold: it is a dish best left off of the menu. When people try to shame us for our compassion, or for our failure to pursue material goods at every turn, they are attacking our Faith as surely as if they took Jesus’s name in vain. We should not be embarrassed by our kindness for Jesus told us not to hide our lights under baskets. The more we act out our Faith, the more normal Faith will seem to those around us.

Another shortcoming of Faith is that people who follow God and their consciences sometimes wonder whether they are being suckered when they see others drawing apparent benefits from behaving badly. This was a recurring theme in Jesus’s ministry, and it comes up repeatedly in the epistles. Jesus taught us not to count on material rewards in this life. Instead, He sought to keep us fixed on the intrinsic benefits of living a just life and the rewards that God would bestow on the Faithful in the next life.

For example, earlier in Chapter 5 of Matthew’s Gospel He said

11 “Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me.12 Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you.

This is a message that we should struggle to keep foremost in our hearts and minds. But we should recognize that some of those experiencing great hardship will naturally question the justice of the world and their own place in that world. About half of the Beatitudes are messages of patience for the oppressed, but the other half are calls for people of Faith to act to remedy oppression: “the peacemakers”, “the merciful”, and “those who hunger and thirst for righteousness”, among others.

In this area, the Law can be a buttress to Faith rather than its competitor. We need to manifest our Faith in our Law through programs like food stamps and Medicaid, through interventions on behalf of the survivors of domestic violence and sexual assault, and through welcoming rather than fearing refugees and those seeking to reunite their families. A society that treats white supremacy as just another viewpoint to be weighed and considered cannot unite its people in Faith.

In place of our nation’s current habit of shifting more and more responsibilities to Law, we should seek ways for our Faith, and that of others, to make this country a better place to live in ways that Law cannot. And we should seek to employ Law to create the conditions of justice that will foster the growth of Faith.

When we hear someone defending abhorrent behavior as being technically legal, we should not let it drop there, any more than Jesus did. Most of the actions Jesus decried were and are legal. If mere legality were enough, He would have had little reason to carry out His ministry.

Speech is a good example. Granting Law the routine power to regulate speech is extremely dangerous: that power can too easily be twisted to entrench in power those that bear little loyalty to either Law or Faith. Yet words can cut horribly.

In our Gospel passage for today, Jesus warns us that just because we can say something does not mean that that is acceptable to God. I am not talking about so-called “political correctness”. I am talking about simple decency. God knows what is in people’s hearts, but you and I do not. So we should not be attributing negative motives to others even we believe the evidence is clear. When someone’s actions are problematic, call for improved actions: do not dismiss or diminish the humanity of the actor. Yes, even in politics. Indeed, especially in politics.

Our overcrowded court dockets suggest another place where our Faith can help. Jesus, in our reading, suggests avoiding courts as much as possible by settling disputes amicably without litigation. Certainly part of His reason was that the courts of His day were grotesquely unfair, as He was later to experience. Yet His lesson has resonance in our time.

You cannot hope to just work things out with an airline, a bank, or a credit card company. Those are creatures of the Law, not of Faith, and you must meet them in the courts of Law. Law, at its best, is a means of counteracting great discrepancies in power.

But rather than celebrating, and creating reality TV shows about, the litigation of petty disputes among neighbors, we should seek to resolve as many of these problems as Jesus suggested. Perhaps the parties have become so embittered that they cannot see a way out, but often there may be others that can see the dispute as it is arising and can mediate.

Law can be exciting; Faith, not so much, at least not in the worldly sense. We see booming headlines when the Supreme Court, Congress, or the President takes some important action or when others demand that they do.

A decent woman or man quietly doing the right thing in the obscurity of a home or a workplace does not make the headlines on earth, which makes it all too easy to ignore or forget. But without the Faith of those decent women and men, our economy would collapse, our society would crumble, and the Law would be reduced to an empty and useless husk.

Amen.

 

[1]Roscoe Pound, Social Control Through Law 18 (1942).

[2]Bruno S. Frey, Not Just for the Money: An Economic Theory of Personal Motivation (1997).

[3]Bruno S. Frey, Not Just for the Money: An Economic Theory of Personal Motivation ix (1997).

[4]Id. (emphasis in original).

[5]Id. (emphasis in original).

[6]Id. (emphasis in original).

[7]Id. (emphasis in original).

[8]Id. at ix-x.

[9]Frey.