The link between morality, law, and reason

Fred Hutchison, RenewAmerica analyst

Originally published November 19, 2006

In this essay, we shall consider the nature of moral reasoning and why it essential to the health of a republic. We shall also take a look at natural law theory to find a basis for clear moral reasoning in a religiously diverse Democracy.

Day of reckoning for Republicans

The defeat of many Republicans in the 2006 election compels us to consider the moral radar of the voters. When the political party in power fails to behave morally and does not use clear moral reasoning in public policy debates, the morally sensitive voters are justified in removing that party from power.

Historically, the public is more forgiving when Democrats stray from the path of virtue than when Republicans fail to walk the straight and narrow path. Democratic politicians, as a rule, do not pretend to be paragons of righteousness or clean living. In contrast, Republicans have historically tended to regard their party as the party of moral rectitude. The public expects more of them and has little patience with their hypocrisy.

The decline of moral reasoning

It is easier to set a moral example during a time when the moral reasoning of the public is lucid and astute. However, during this era of moral relativism and mushy political correctness, a lot of the moral reasoning one hears from politicians, pundits, and journalists is fuzzy and confused.

Moral leaders in this current environment must be not only good examples, but also articulate guides in moral reasoning. Americans need to be sent back to "the school of moral reasoning" for a refresher course. Conservatives who are contemplating a career in politics should be the first to "register" for that "course." The elected legislator is not fit for his task of making law if he is not adept at moral reasoning.

Law is based on moral reasoning

Moral reasoning is necessary to the legislator and jurist because the penalties for crimes require moral judgments. For example, most people agree that first degree murder is a more serious crime than second degree murder, even though the victim is just as dead and the murderer intended to kill in both cases. The difference between the two crimes is the degree of moral culpability.

The first degree murderer premeditated the crime. The second degree murderer did not premeditate the crime, yet killed willfully in cold blood. Premeditation is the sole moral difference between first degree and second degree murder.

Premeditation indicates a greater degree of moral culpability because the killing takes place "with malice aforethought." The killer makes a conscious choice to plan and carry out an act that defies the universal moral law. He does not defy the moral law casually or impulsively, but defies it willingly, knowingly, and purposefully. He goes to great trouble to find a way to violate the moral law and get away with it. He usurps the power of life and death as though he is God. He acts as judge, jury, and executioner, in place of a legitimate court following the due process of law.

Human courts regard purposeful defiance of law and the authority behind them as the essence of criminality. At the last judgment that lies beyond this mortal life, the rebellion of the human will against the paramount Authority of the universe will be reckoned as the very essence of sin.

Notice how closely entwined are moral judgments of the motives of the human heart and the administration of justice through law. A strong moral sense and an intelligent reasoning process are both necessary to make these moral judgments. The rationality of moral judgments is displayed by the hierarchy of moral judgments that we find in criminal law.

The hierarchy of moral culpability

The moral judgment of premeditation is at the top of a hierarchy of moral judgments for homicide. There are seven degrees of homicide in a hierarchy of moral culpability: 1) 1st degree murder, 2) 2nd degree murder, 3) Voluntary manslaughter, 4) Involuntary manslaughter with criminal negligence, 5) Involuntary manslaughter with reckless indifference, 6) Involuntary manslaughter with intoxication, and 7) involuntary manslaughter as a misdemeanor.

As one descends the hierarchy of homicide, the punishments get progressively lighter. Justice is served when the punishment fits the crime. A lesser degree of moral guilt warrants a less severe punishment. The sophisticated hierarchy of homicide was developed by Western jurisprudence through careful moral reasoning.

When the legal system establishes a clear difference in punishment between level 1 (1st degree murder) and level 2 (2nd degree murder) in the hierarchy, the moral reasoning behind this distinction is vindicated. This reinforcement of an indispensable moral distinction provides a foundation for the entire hierarchy of moral judgments.

Both 2nd degree murder (level 2) and voluntary manslaughter (level 3) are intentional acts, but voluntary manslaughter is done in the heat of passion or in response to provocation. Involuntary manslaughter is an unintended killing through negligence or carelessness. Involuntary manslaughter might be judged to involve "criminal negligence" (level 4) or "reckless indifference" (level 5).

Each of these differences in the severity of crime is determined through moral reasoning about criminal malice in the human heart. Thus, morality is at the heart of law. Unfortunately, judges who are moral relativists often misunderstand the nature of the laws. Their confusion is due to a moral lawlessness or moral blindness in their own hearts. Their inner lawlessness wrestles against the very concept of morality and law. They prefer to come up with some instrumental, pragmatic, compassionate, or social engineering rationale for their decisions. Therefore, their rulings often contradict the moral reasoning of the legislators who drafted the law. The liberal activist judge understands neither law nor the role of a judge.

Capital punishment vindicates the law

How might the legislators make the greatest possible distinction between the first and second levels of the hierarchy of homicide? By calling for a sentence of death for first degree murder.

If capital punishment is removed from the law books, the moral culpability for premeditation will carry less weight in the scales of justice. The difference in punishment between 1st and 2nd degree murder will be blurred.

As long as there is a possibility of a sentence of death, when a) the guilt is beyond a reasonable doubt, and b) no extenuating circumstances lighten the full weight of the moral culpability of premeditation, then the moral distinction between 1st and 2nd degree murder has the full moral force of legal retribution behind it. The possibility of a death sentence is a powerful vindication of the moral law that stimulates the human conscience to more fully realize the moral horror of premeditation. The citizen trembles at the execution, fears the moral righteousness of the law, and eschews the dark thoughts of desiring a neighbor's death.

When the moral condemnation of the premeditation of murder is vindicated, the moral reasoning for each of the six stages below premeditation in the hierarchy is reinforced. Capital punishment vindicates the law not only at the top of the hierarchy, but helps to vindicate the entire hierarchy of law. Respect for the moral authority of law by the citizenry is enhanced.

In contrast, if capital punishment is abolished, moral culpability is diminished at the top of the hierarchy of moral judgments, and moral culpability will inevitably be weakened all along the descending hierarchy of moral judgments.

In spite of a lot of shoddy homemade theology, the command "thou shalt not kill" applies only to the individual, not to government. The correct translation is "You shall not murder," which is an individual act. The Apostle Paul explains in Romans 13:1-5 that God delegates authority to rulers to be his avenger against evil, and to bear the sword for this purpose.

Much of the passion against capital punishment in our day is driven by a general rebellion against the moral law and a rejection of the idea that evil exists and should be punished. Moral relativists oppose capital punishment because it is unmistakably a condemnation and punishment of evil.

Moral relativism and judicial lenity

Judges who are opponents of capital punishment are sometimes weak in their moral reasoning for criminal acts lower on the hierarchy than premeditated murder, or crimes outside the hierarchy of homicide. Without the moral vindication of the law at the top of the pyramid of homicides, it is easy to become intellectually and morally mushy in judging other crimes.

News stories of the astonishing lenity of judges toward pedophiles is an example of intellectual and moral mushiness. When clear moral reasoning ceases to prevail in our courts, children are not protected from predators, and predators lose some of their moral stigma. For example, Judge John Connor of Columbus, Ohio, gave a predator probation so he could receive "therapy" for his "illness."

The idea of moral culpability has vanished from the fuzzy mind and the pillow-soft moral conscience of Judge Connor. Compassion for predators has replaced compassion for children. Let the lamb be eaten so we may coddle the wolf. Such an upside-down moral world can exist only when the hierarchy of moral judgments is overthrown. The hierarchy cannot be overthrown until capital punishment is abolished.

As we shall see, those who are trying to separate morality from law are opposed to the very idea of a universal moral law.

Universal assent to the hierarchy of punishments

The severity of punishments is the subject of constant debate, but the idea of the hierarchy of punishments is seldom questioned. We are not hearing arguments that a drunk driver who accidentally kills someone on the highway should get the same punishment as one who poisons his neighbor's well or burns down his house in the middle of the night. The idea that punishment should decrease as moral culpability decreases is a universal principle – much like a universal moral law.

The almost universal assent to the hierarchy of moral judgments implies that universal moral laws are integral to criminal and civil law. We are now in a position to propose three axioms.

Universal moral laws and rational principles exist such that: 1) the severity of punishment should correspond to the weight of moral culpability; 2) there is a hierarchy of the discrete stages of moral culpability; and 3) the relative weight of moral culpability at each level in the hierarchy can be measured by moral reasoning.

It is no accident that the statue of "lady justice" holds a set of weighing scales in one hand and a sword in the other. She weighs moral guilt in the scales in one hand to measure the degree of moral culpability. She wields a sword in the other hand, which is the ancient weapon of the executioner.

The emergence of the universal moral law in our discussion brings us to natural law theory, which is helpful in integrating law and morality.

Natural Law

Natural law theory holds that law and morality intersect, a concept known as the "overlap thesis." This concept has had a powerful effect on American law. Therefore, we are obliged to take a look at natural law theory.

There are many varieties of natural law philosophy, theology, legal theory, and political theory. Some academic studies of natural law theory are complicated beyond belief. However, six straightforward propositions resonate with the main stream of natural law theory that has had historical traction:

1) The moral law has objective existence. One does not invent the moral law, one discovers it. The moral law is universal and changeless, and exists independently of the subjective feelings and opinions of men.

2) Natural law and human conscience are in agreement.

Thus, either a) the innate nature of man is the source of the moral law, or b) the moral law came into being independently of man, yet naturally resonates with the conscience of man. The atheist's version of natural law is that nature produced man, and the moral law flowed from nature of man. The Christian version of natural law is that God created the moral law according to his own nature, and designed human reason and conscience to understand, honor, and obey the moral law.

3) The moral law can be discovered and understood by human reason. Moral reasoning is natural to man. Without moral reasoning, one is not fully human.

4) Some norms are authoritative by virtue of their moral content.

5) There is some degree of overlap between law and morality.

6) Natural law can be the basis for majority consensus in a pluralistic democracy. Most Evangelicals, a majority of Catholics, Protestants, and Jews, some Muslims and Pantheists, and a smaller selection of Agnostic and Atheists, can reason together and potentially agree about most of the preceding five propositions. However, a long project of educating the public is required to achieve this consensus.

The famous argument of C. S. Lewis

C. S. Lewis made a famous argument for the existence of God in Mere Christianity. He started with a lengthy argument that all men in every nation are agreed upon the essentials of the universal moral law.

Lewis used the expression "the tau," a word of Eastern origin, as shorthand for the universal moral law. His reason for using a word of non-Western origin was to emphasize that the universal moral law is everywhere on earth and not just in Christian cultures. Lewis concluded that the moral law must be universal.

Finally, he reasoned that the existence of a universal moral law is proof of a divine creator and lawgiver. This may be one of the most convincing proofs for the existence of God in the history of apologetics.

A brief history of natural law

The historical emergence of the belief in a universal moral law led to the development of natural law theory. Let us look at a few of the highlights of humanity's awakening to the universal moral and natural law:

1) In the Old and New Testament, there are passages about "God writing his law on the human heart." The Apostle Paul said that a pagan can have the moral law written upon his heart (Romans 2:14). This was the nucleus of the idea of a universal moral law, a moral law for Jews and Gentiles and for believers and unbelievers.

2) Aristocratic Roman Stoics of the second century A.D. spoke of a universal moral law. They thought that the moral law and human reason were both "precipitated" from the "divine fire" and are accessible to all mankind. For the Stoics, reason, morality, and law had a common origin and were highly compatible.

3) The medieval scholastics – most notably St. Thomas Aquinas (1225-1274) – were masters of moral reasoning. Aquinas' theory of natural law is still taught at Catholic universities and seminaries. Aquinas said that moral behavior is rational because it accords with "nature" – that is to say, human nature as designed by God. Thus, immorality is against nature.

Aquinas was an "epistemological optimist" and an "ontological realist." As an "optimist," he believed there can be a high degree of correlation between a concept understood through human reason and objective things. As a "realist," Aquinas would say, "We did not invent the moral law, it objectively exists and is really out there." Aquinas was optimistic that we can discover and define the moral law and get it right, or come close to being right. His confidence in reason and in the accessibility and clarity of the moral law was unprecedented.

4) The second generation of Protestant theologians after the Reformation grappled with natural law theory. Magisterial denominations with strong traditions and formal confessions (Anglican, Lutheran, and Presbyterian) developed modified natural law theories. Some of the American founding fathers learned about natural law theory from learned pastors.

Parts of the reformed tradition of Protestantism rejected natural law theory because of complicated issues of history, authority, and revelation, and controversies about Medieval and Reformation theologians. Some Protestant groups who individualistically and inductively reasoned from particular Bible verses in order to develop a body of doctrine never accepted natural law theory. Other Protestant groups were pessimistic about the reliability of the rational faculties of fallen man, and distrusted the optimism of Aquinas and the confident metaphysics of his natural law theory.

5) During the Scottish and French Enlightenment (1750-1800 A.D.), Deism became popular among intellectuals. Natural law ideas, based on the social contract theory of John Locke (1632-1704), were the foundation of Deist theology. The Deists held that God designed and created nature and man according to an orderly design. He gave man reason so man could discover the laws of nature and the moral law. Then God retreated and left man alone on earth to find his own way, using reason as his guide and free will as his instrument of power.

The idea of a Deist god who abdicates from ruling the world he created and is indifferent to the fate of the individual met with contempt among Evangelicals, and drove some of them away from natural law theory in the nineteenth century.

Many of the American founding fathers were well versed in Deism and Locke's social contract theory. The rationally-discerned intersection of morality with law deeply impressed American legislators, lawyers, and jurists.

6) Metaphysics fell from favor in the nineteenth century, partly due to the influence of philosopher Immanuel Kant (1724-1804). As a result, natural law theory, which contains metaphysical ideas, also went into decline.

7) Due to the influence of Karl Barth in the early twentieth century, natural law fell from favor among some Protestant groups.

8) Modern "Neo-Thomism" was a return to St. Thomas Aquinas by Catholics in the twentieth century. This has revitalized natural law ideas in conservative Catholic circles.

9) The sexual revolution and the culture war prompted many American Evangelicals to examine natural law theory. Some of these Evangelicals belonged to denominations that had never previously subscribed to natural law theory.

Politically-sensitive Evangelicals discovered that they could use natural law theory to argue their case on morality and culture war issues in a more effective manner in certain public forums than if they used a straightforward argument from the Bible.

10) The use of the phrase "separation of church and state" has often been used to silence those who make moral arguments in politics and law. However, a) natural law theory has philosophical-metaphysical foundations that do not require theological support; and b) natural law is universal, and can be embraced by people of any religion and those of no religion. Therefore, the "church and state" argument is irrelevant.

Catholics and Evangelicals can now join hands in promoting natural law theory as a common rational set of ideas they share for fighting the culture war and restoring morality to American law and society. Ancient hostilities between Catholics and Evangelicals have melted away in many cases.

The potential solidarity of a natural law coalition resonates with the natural law ideas of the American founding fathers. Natural law ideas can help us restore America according to the design of the founders. Therefore, natural law ideas are patriotic!

Natural law ideas create a moral climate in which Christian ministries can thrive. Natural law can serve both God and country. In fact, natural law can play a part in the rise of nations.

Moral reasoning and the rise of nations

The carefully articulated hierarchy of moral judgments built into criminal law is a tour de force of reason and morality. It is an indispensable contribution to civilization from men seasoned in the rationality and morality of the historical Christian cultures of Great Britain and America. The legal system of Britain provided a foundation for its rise to prominence on the world stage in the nineteenth century. In like manner, America's rise to sole superpower status in the twentieth century was made possible by its own legal system. An enlightened and just legal system opens the way to prosperity, freedom, order, and the flourishing of families and churches.

Americans never thank God sufficiently for the blessing of living in America. Our hierarchy of laws, based upon the universal moral law, creates an atmosphere that is uniquely encouraging to human freedom within boundaries, and to the development of individual potential. A nation of flourishing people must eventually enjoy prosperity and national power.

The three richest and most powerful regimes in the history of the West – the Roman Empire, the British Empire, and the American Superpower – all had strong legal systems based upon moral reasoning and elements of natural law theory. In contrast, the Soviet Empire, which had a kangaroo court legal system, collapsed of its own dead weight.

The Ten Commandments

Any discussion of the universal moral law must bring us to the Ten Commandments that were part of the laws of Moses.

Only those laws of Moses that were universal moral laws were brought forward to the New Testament – e.g., do no steal, do not commit adultery, etc. All of the Ten Commandments are recapitulated and amplified in the New Testament with the exception of the Hebrew Sabbath, which was purely a day of physical rest. However, the old Sabbath is replaced in the New Testament by a new Sabbath of spiritual rest, in which one "enters into his rest" through faith. (See Hebrews 3 & 4.) Spiritual rest by faith is a blessing for all people. Hence, the New Testament transformed the parochial Sabbath of the Hebrew nation into an international and universal spiritual principle of faith for all people. Christianity borrowed from Judaism in order to make the principles universal.

Even though the universal moral law, as briefly summarized by the Ten Commandments, is the foundation of our laws, liberal judges are trying to destroy that foundation. These willful men symbolically express their defiance of the universal moral law by decreeing that the Ten Commandments must be removed from displays at state courthouses.

The Ten Commandments are a moral law. Secular liberals do not understand the moral content of law and the chastisement of moral evil that is inherent in the punishment of crime. Blind to the nature of law and moral judgment, they reduce law to an instrumental tool in the hands of government for social engineering schemes. They ignore the fact that the purpose of law is the punishment of evil, not the re-designing of the social fabric. As we shall see, the condition of the heart of the judge is essential to his understanding of the intersection of morality and law.

The moral law written upon the heart

The moral law was magnified as it entered the New Testament. Not only must one not kill his brother, but one should not hate his brother, which is secret murder in the heart. The Christian emphasis on the motivations of the heart made possible a more precise reckoning of moral culpability. It was now possible to consider premeditation in terms of the evil intentions of the heart. Therefore, it also became possible to build a hierarchy of laws based upon moral reasoning.

One additional event had to happen to make moral reasoning fully available to the Gentile nations. God promised to the Hebrew nation that one day he would write his laws upon their hearts (Jeremiah 31:33-34). In the New Testament, this promise was offered to Christians (Hebrews 10:16). After Christ was crucified, resurrected, and ascended to heaven, Christ sent the Holy Spirit to live in the hearts of those who believe in him. That is one way that God's moral laws can be written upon the heart.

As this was happening to believers, some of the outpouring of grace spilled over onto the pagans, such as the Roman stoics. They too began to believe in a universal moral law.

The coming of Christ changed the whole world, and some of that change preceded the witness of missionaries. "That was the true Light (Christ), which lights every man..." (John 1:8). By the time the missionaries showed up, the pagans already knew they were sinners because the true Light had shined upon them, imparting knowledge of the universal moral law. However, the missionaries were necessary to carry the gospel (a message of good news) of saving grace through Christ. The success of the gospel opened doors to a new kind of law for new republics.

A new kind of law for new republics

A Gentile nation of believers, like Great Britain and America, where many read the Bible and had God's laws written upon their hearts, were now able to develop a legal system that embodied the universal moral law.

Why did this not happen in Catholic countries first? The French and Italians taught Western man to think rationally with their scholastic philosophy and theology. Equipped with this foundation, the British and American legislators and jurists had the reasoning powers at their disposal to bring about a revolution in law.

The Anglo-Saxon Protestants did not invent moral reasoning, of course. Catholic scholastic philosophy and theology were loaded with moral reasoning. The magisterial denominations of Protestantism adopted and adapted St. Thomas Aquinas' natural law theory, which included the idea of an overlap of morality and law.

Anglo-Saxon civilization had three advantages for a revolution in law that Catholic Europe lacked for a while: 1) a democratic legislature, 2) a judiciary seasoned in the accumulating wisdom of English common law, and 3) ordinary people reading the Bible. Protestant lawyers, unlike their counterparts in France and Italy, read their Bibles and pondered how Christ magnified the law and exposed the secrets of the human heart.

A new kind of law for a new kind of Republic – made possible by the coming of Christ – was established in England and America. This new law for new Republics was able to spread to Europe and other parts of the world. There is no theoretical limit to its spread because the universal moral law is written in all men's hearts.

Unfortunately, evil men will always oppose such a law, whether they are lawless warlords abroad or liberal judges in America. "And this is the condemnation, that light has come into the world, and men loved darkness more than light, because their deeds were evil. For everyone that does evil hates the light, neither comes to the light, lest his deeds be reproved. But everyone that does truth comes to the light, that his deeds be made manifest, that they are wrought in God." (John 3:19-20)

For Christians only

The moral perversions of Congressman Mark Foley and the fall of Evangelist Ted Haggard were both news items during the 2006 election season. However, these two stories were not in synchronicity, because different moral and spiritual dynamics were at work.

Let us assume that Foley was an unbeliever, and Haggard was a true believer in Jesus Christ. Foley had access to the universal moral law as do all men, but as a homosexual toying with teenage boys, it is probable that Foley was morally confused and had what the Bible calls "a reprobate mind." As such, he might be one of those who trampled the universal moral law underfoot. In contrast, Haggard knew and embraced the moral law and sinned anyway.

Every Christian should be taught the moral law so that he clearly understands right from wrong. The law has moral clarity, but unfortunately it does not have power. The law instructs one's mind about good and evil, but has no power beyond feeble human willpower to keep one from sin.

Every Christian faces an inner battle between the "new nature" and the "old nature." We are born with the old nature, which has a powerful appetite for sin. The new nature – which is imparted by God when true faith in Christ begins – hates sin and loves righteousness.

Sometimes, a Christian loves the moral law and resolves to be righteous – and falls into sin anyway. During a moment of weakness and temptation, the old nature erupts with astonishing power and overwhelms the Christian. The Apostle Paul describes this phenomenon in Romans Chapter 7. Supernatural power from God (i.e., "grace") is required to defeat the old nature and keep the moral law.

The cross and the resurrection

Divine grace works through the death and resurrection of Christ to give us victory over sin. Only the supernatural power of the cross of Christ can vanquish the sin nature, and only the supernatural power of the resurrection of Christ can impart the power to live a holy life.

There are two works of the cross: 1) substitution, or "Christ died for me" (this work of atonement by Christ on the cross is for our "justification," which makes it possible for us to go to heaven); and 2) identification, or "I died with him" (this work of the cross is for "sanctification"). As one participates by faith in the death of Christ, the power of the cross puts to death the sin nature. Both justification and sanctification are entered into by faith – but justification is a one-time event and sanctification is a lifetime process.

One must enter into the power of the resurrection though the cross. As we die with Christ, we also live in His resurrection. Crucifixion must precede resurrection. Holiness is impossible in this life without the supernatural power of the resurrection – and that power comes in progressive stages as one dies with Christ.

Ted Haggard might have escaped destructive sexual temptation had he appropriated the power of the cross and resurrection by faith instead of trying to be holy through willpower in keeping the moral law. (For further information on sanctification, refer to my book, The Stages of Sanctification at Xlibris.com, or Amazon.com.)

Conclusion – a grand paradox

When Christians have moral victory through grace as they follow the process of sanctification, they set a moral example for society. The universal moral law lives within their hearts through grace and shines out to their world. Paradoxically, when Christians try to be righteous through keeping the moral law by their own willpower, they are bound to fail, and their bad example will publicly discredit the very moral law they are trying to follow.

The citizenry has more confidence in the universal moral law when they see it personified in Christians. However, when they see moral defeat and hypocrisy among Christians, they become skeptical about the moral reasoning in law and the potential of natural law ideas for restoring America.

Paradoxically, when Christians trust in grace and not law for personal moral victory, they can be a victorious example of a shining moral life that can help to renew American politics, government, and law through the application of the moral law. Paradoxically, lives glowing with grace give birth to societies flourishing under law.

---

© Fred Hutchison