Breaking The Law

"And sometimes you have to go above the written law, I believe."

“And sometimes you have to go above the written law, I believe.”

I would suggest that the greatest danger to this tradition today does not come from those who wish to push back with simplistic law-and-order thinking — as dangerous as that can be. The greatest threat comes from assumptions that there is no such thing as divine moral law.

At particularly arrogant times in history, some have scoffed at the moral law and insisted that the very idea of law is nothing more than a set of norms constructed by society. This claim may allow for change, and that is good. But it respects no eternal standard of dignity and can end up sanctioning heinous policies. – Rev. Chris Momany, United Methodist News Service

As I’m old enough to remember the Iran-Contra scandal, back when Presidential scandals were real things, whenever I hear or read someone defending the concept of “higher law”, my mind immediately turns to Fawn Hall, who thought she was above the law of the United States, sneaking classified documents out of the White House and shredding others in service of this higher law.  So it was with trepidation indeed that I read Chris Momany’s editorial at The United Methodist News Service.  I do not know Rev. Momany’s political or theological leanings – nor do I care all that much – but invoking MLK in defense of the notion of some “higher law” to which human law is accountable is always an interesting exercise.  For instance, Momany doesn’t note that Rev. Dr. King and his companions were quite willing to abide by human law even as they protested its unrighteousness, submitting to arrest and jail time.  Whether or not one acknowledges such a thing as “higher law” does not, nor has it ever in the tradition from which King drew inspiration, advocated ignoring the possible penalties for defying human law.

I have to admit that Rev. Momany’s piece is puzzling.  Writing in defense of Divine Law as the basis for human law is neither new nor interesting.  Furthermore, there seems to be little more than the bare assertion that such exists – Momany tosses around not only King, but Immanuel Kant’s categorical imperative and Martin Buber (this latter, however, is odd in this context) – without any other goal.

The assertion that positive law is rooted in Divine Law is indeed old, given its most thorough formulation in the works of St. Thomas.  Martin Luther, however, made the distinction between Divine Law and Human Law in his Two Kingdoms theory; the appeal the Radical Reformers such as Thomas Muntzer were making to Divine Law to overthrow municipal and human law was anathema to Luther, who wrote repeatedly to Muntzer to submit to human law before things got out of hand.  Muntzer, however, was a believer in the supremacy of Divine Law and ended up being burned at the stake.

The idea Momany mentions, that rights are prior to civil society and positive law, our Founders drew from thinkers as various as Montesquieu and John Locke.  Ripped out of context, and void of any sensible coherence to a 21st century audience, they are little more than categorical assertions without foundation.  Unless, of course, Rev. Momany wants us all to be 17th and 18th century philosophers, completely ignoring four centuries of advances in thought.  The growth of positive law is a direct response to the crumbling of the assumptions behind the very categorical statements Momany insists are the basis for “higher law”.

With the establishment of the Church of England, with the Monarch as titular head of the Church, Great Britain established what one author, Roy Jenkins in a biography of William Gladstone, has called “a mild Erastian” compromise.  The Church, rather than dominating the state – a theory that extended back to the high middle ages when Popes demanded obeisance from kings and princes – is the state’s servant.  The state provides the Church space in which to do its work in exchange for the church (with the exception of archbishops, who served in the House of Lords) staying out of civil affairs.  Our tradition, coming from Wesley, is steeped in this kind of via media approach, with the addition, here in the United States, of ideas from Martin Luther regarding the Two Kingdoms.  While always politically active, the United Methodist Church and its forebears recognize the supremacy not of Divine Law but of the Constitution’s guarantee of free exercise, provided churches are neither partisan nor in violation of positive statutes when pursuing their ministries (just ask the Latter-Day Saints how their revelation regarding polygamy suddenly changed when that became the stumbling block for Utah statehood).

To argue for a “higher law”, however, offers me the opportunity to quote from one of my favorite passages from Dietrich Bonhoeffer.  Now, his Ethics were never complete.  Some scholars and those close to him during his lifetime insist they shouldn’t have been published, at least under the pretense of some kind of coherent theological statement.  All the same, at the very beginning, Bonhoeffer drops the boom on the whole “moral law” or “higher law” tradition from a Christian perspective:

The knowledge of good and evil seems to be the aim of all ethical reflection.  The first task of Christian ethics is to invalidate this knowledge.  In launching this attack on the underlying assumptions of all other ethics, Christian ethics stands so completely alone that it becomes questionable whether there is any purpose in speaking of Christian ethics at all. . . .

Already in the possibility of the knowledge of good and evil Christian ethics discerns a falling away from the origin.  Man at his origin knows only one thing: God.  It is only in the unity of his knowledge of God that he knows of other men, o fthings, and of himself.  He knows all things only in God, and God in all things.  The knowledge of good and evil shows that he is no longer at one with this origin. . . .

. . . The knowledge of good and evil is therefore separation from God.  Only against God can man know good and evil. . . .

The freedom of Jesus is not the arbitrary choice of one amongst innumerable possibilities; it consists on the contrary precisely in the complete simplicity of His action, which is never confronted by a plurality of possibilities, conflicts or alternatives, but always only by one thing.  This one thing Jesus calls the will of God.  He says that to do this will is His meat.  This will of God is His life.  He lives and acts not by the knowledge of good and evil but by the will of God.  There is only one will of God.  In it the origin is recovered; in it there is established the freedom and the simplicity of all action. . . .

The will of God is not a system of rules which is established from the outset; it is something new and different in each different situation in life, and for this reason a man must ever anew examining what the will of God may be.. . . It is no longer a matter of a man’s own knowledge of good and evil, but solely of the living will of God; our knowledge of God’s will is not something over which we ourselves dispose, but it depends solely upon the grace of God, and this grace is and requires to be new every morning. . . . . The voice of the heart is not to be confused with the will of God, nor is any kind of inspiration or any general principle, for the will of God discloses itself ever anew only to him who proves it ever anew. – Dietrich Bonhoeffer, Ethics, pp. 17-18, 30, 38

From a Christian perspective, then, there is no “higher law”.  There is only and ever the pursuit of the will of God, not an eternal thing, but something that changes each day, as our circumstances change.  Whether he realized it or not, Bonhoeffer was doing ethics for a universe in which entropy and quantum mechanics dominate our material reality.  The very idea of some eternal law that exists in all times and places and to which especially we Christians should adhere flies in the very face of the call of Christian Discipleship, which it always and only to seek the will of God each day, in each circumstance of life.

Finally, what would a post of this title be without the following?


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About gksafford

I'm a middle-aged theologically educated clergy spouse, living in the Midwest. My children are the most important thing in my life. Right behind them and my wife is music. I'm most interested in teaching people to listen to contemporary music with ears of faith. Everything else you read on here is straw.
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