John Warwick Montgomery, in his The Law Above the Law, began his work with this fable:

"Once upon a time a hare of philosophical temperament invited a politically oriented fox to dinner. During the entrée the hare presented an interesting argument on the relativity of all law and morals, stressing that each beast, in the final analysis, has a right to his own legal system. The fox did not find this argument entirely convincing on the intellectual level, but was much impressed with it practically. For dessert he ate the hare: lapin a la crème.

"Moral: One’s philosophical viewpoint can be of immense practical consequence, especially when the stakes (steaks?) are high." (17-18)

We tend to separate the philosophical from the practical, and sometimes this is warranted; but what we may sometimes fail to appreciate is that philosophies have consequences for practical living (i.e., ideas have consequences). This is the case when it comes to law and justice.

Most understand law to refer to a set of rules by which conduct is measured, established and enforced by authority. In a democratic society, law is established and enforced by elected representatives who are supposed to be accountable to the people who elected them. Further, most would agree that these laws should be "neutral," applying to everyone equally regardless of race or gender, riches or poverty. Complete absence of law would result in total anarchy, and a society without law could not function for long.

Justice is the fair upholding of the law. It has the qualities of honesty, impartiality, and fairness. Most agree that those in charge of upholding law should be fair and impartial, treating similar situations with equality, not basing their judgments on the wealth, fame, race, or gender of those appearing before them. Judgments should be made on the facts of the case, and the punishment should fit the crime.

This is how we typically associate these words today. In the Bible, however, "justice" carries with it more the idea of righteousness. Doing justice, in the Scriptures, is the same as doing righteousness (Micah 6:8). True justice must be associated with doing what is right. But the question is, "right" by whose standards? What and whose laws ultimate measure our behavior?

Two basic views of law are dividing this country: positive law vs. natural law. Positive law is municipal law, that is, a system of rules established by the governmental power of a state. Positive law can be based upon natural law, but generally this view of law is opposed to the classical understanding of natural law. Natural law refers to the standard of conduct that transcends human authority. It is a "law above the law," that is, objective law standing outside of humanity that ultimately governs any laws enacted by a human legislature. Human government is not an end in itself. All of us must answer to a higher law, established not by mere human wisdom, but by God Himself as the Creator.

Christians, of course, should have no problem with this. We recognize that God sets the rules and enables human government to exist by His authority (Rom. 13). We are to obey the laws of the land (1 Pet. 2:13-17); but if these human laws would cause us to disobey God, then our choice is clear: "we must obey God rather than men" (Acts 5:29).

How Did Society Reach This Point?

Today, the rise of relativistic philosophies has affected our own system of law and justice. If positive law is all there is, then there is no ultimate standard to which all should be held accountable aside from what human government initiates. Criminal behavior is not to be punished, but treated. Many crimes are excused on the grounds that the offender couldn’t help it (hard determinism), so we shouldn’t punish someone for what he/she could not avoid. This kind of thinking is turning our justice system upside down. But let’s back up a minute to see how we got to this point.

Several people have helped to influence the thinking of modern society, paving a road whereby society can separate moral behavior from law. Neitzsche (1844-1900) believed that the only meaning attached to life was the meaning that man gave it. Since "God is dead," there were no God-given values and it was up to humans to create their own values and meaning. John Stuart Mill (1806-1873) and others argued for utilitarianism, the idea that the worth or value of anything is determined solely by its utility; in moral theory it is that the aim of all action is whatever brings the greatest happiness to the greatest number of people. It is "the view in ethics that acts are right to the extent that they increase happiness and wrong to the extent that they increase suffering" (Burr and Goldinger 538). Notice it is not based upon God as the standard of moral behavior; it is based upon humanity alone.

With these concepts came the rise of Darwinism. The influence of Charles Darwin (1809-1882) can hardly be overstated. His teachings (evolutionism, survival of the fittest, etc.) eventually became the "intelligent" view to hold, but the practical consequences of the view need to be understood. The belief that humans are only different in degree (not in kind) from other animals has helped to "establish macroevolution as an academic, political, legislative, judicial, and public mindset" (Geisler and Bocchino 193). Marx interpreted evolutionism to provide "absolutely no room for either a Creator or a Ruler." In other words, if there is no ultimate Lawgiver, then there is no moral law on which to base civil law. If there is no moral law, then morality is not necessarily tied to law, and positive law is the default winner.

As Darwinism has been imbibed by the education system, students have learned that values and ethics are created by individuals and society, not discovered as universal absolutes. Therefore, the idea that we are accountable to something higher than human law has been expunged from academic thinking, and the positive law view, upheld by Darwinian thinking, has become the view most widely accepted and practiced in courts of law today. Perhaps you can see where this leads: Darwinism says that everything is genetically determined; how then can anyone ultimately be held responsible to some moral code? That this view is affecting our judicial system should be readily acknowledged.

A Case in Point

In 1991 George Bush nominated Clarence Thomas to the U.S. Supreme Court. Liberals opposed him on the grounds that they feared Thomas’ belief in natural law would influence his interpretations of the Constitution (go figure). The then-Chair of the Judiciary Committee, Senator Joseph Biden, said he also believed in natural law, but thought Thomas might believe in the "wrong kind" of natural law. What does that mean? Basically, Biden’s view is that "good natural law" is to be subservient to positive law; positive law comes above natural law. Of course, with such a view, Biden’s view of natural law is not consistent with the biblical understanding; indeed, it makes a farce out of natural law. This illustrates where we are, however. It’s fine to believe in God and natural law, as long as you don’t try to use these beliefs in making and carrying out positive law. Perhaps this helps us understand why liberal politicians are so frightened by the "religious right." If there is a law above the law, then the thinking of modern society needs to change again, and liberal progressives just don’t want to think about that.

Arguing for Natural Law

The fundamental question underlying this discussion is, do human governments create moral law or discover it? In other words, is moral law something that is based in human reasoning alone, or is there a Creator who sets the objective Standard by which all human institutions are measured? Christians should know how to answer this, but we want to illustrate how we might talk to others about it.

Tied to this question is the issue of human rights. Are human rights created by governments, or are they inherent in humans because of our being specially created by God? The founders of the United States put it into the Declaration: "all men are created equal" (whether or not some of them were consistent with this is not the issue and does not change the proposition). They understood that the nation’s freedom and existence were based upon God as the Creator: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…" To say they are "self-evident" is to say that they are first principles, discovered as part of God’s creation, and not simply created by human government. Human rights spring from this understanding. "Natural-law supporters understand that governments are instituted on God’s moral law in order to secure human rights, while the positivists believe governments create them" (Geisler and Bocchino 213).

If governments do create these laws, then such laws can vary from culture to culture. They can change or be changed at the whims of those who are in power at the time. The positivist view of law and justice must logically accept that "might makes right." It would then be logical that there is no such thing as tyranny of the majority. Justice would have to be transient and local, not universal and objective. How can a positivist logically deny this? In the positivist world an act is wrong if and only if it violates positive law. If there is no violation of positive law, then it cannot be considered wrong. For something to be considered wrong beyond positive law, one would have to appeal to a law above the law, which is the very thing they deny. But it gets worse for them.

The Nuremberg Dilemma

This gets to be a real sticky problem for those who reject God’s moral code. To show why this is so, we ask, why was Hitler wrong?

We ask this question because it gets to the heart of this problem concerning law and justice. Again, if there is no natural law that reigns over municipal law, then on what grounds is someone punished, particularly if this one has not violated the positive law of his land? Enter the Nuremberg trial. Under Hitler’s command, the Nazis performed unspeakable crimes against humanity (particularly against Jews). After World War II ended, in 1945, an international court of judges from the U.S., England, France, and the Soviet Union took top Nazi officials to trial, including Goering and Hoess. These defendants were charged with conspiracy, crimes against peace, war crimes, and crimes against humanity. The pictures coming out of Nazi Germany horrified people. President Truman appointed Justice Robert H. Jackson of the Supreme Court to prosecute on behalf of the U.S. The approaches of the prosecution and the defense illustrate the differences between natural law and positive law.

The defense argued that the defendants were loyally obeying orders of a positive law government. This government had been founded upon Darwinist principles (cf. Hitler’s Mein Kampf: "The stronger must dominate and not mate with the weaker…"). They had rejected any view of a law above the law, so their law was only what had been established by the state. The importance of this must not be missed: those on trial at Nuremberg had not violated the positive law under which they lived. So then how could they be brought to trial as being guilty of crimes against humanity? If you are a positivist, you have a real problem here, for you have no basis upon which to say that Hitler or his agents were wrong. Logically, positivists must sanction the principles used by the defense at Nuremberg. They were only arguing that the positive law of the land was supreme. As one of the defendants said, "Whoever opposes our laws is an enemy of the state because our laws established him as such." Now we realize that not all positivists will agree with the result of this, but the point stands: logically, the principles are the same in the idea that there is no higher law than that established by human governments. If we can do it today, why couldn’t Germany do it then?

Imagine that you are the prosecution. What do you say? To what will you appeal? The defendants didn’t break any of their laws. So on what grounds could you say that what they did was "illegal" and that they ought to be held accountable for horrendous crimes? Shall we take the constitution of one government and use it as the standard of judgment against another government? Once again, that would establish the "might makes right" mentality. As Montgomery wrote, "each society’s ultimate legal foundations are uncriticizable, since any criticism could only come from another society whose rules of recognition have no more absolute validity than those of the society being criticized" (32). If there is no absolute Standard, then criticism of another nation’s laws is unfounded.

The only way that anyone can say that the Nazis were wrong would be to say that they violated some kind of moral code that transcends human law. But once this is admitted, then the proposition that there exists a standard of morality beyond human government must be acknowledged. How could one logically condemn another as being immoral if there is no moral code outside of human law, especially if the other person lives under a different set of human laws?

The existence of natural law means that might does not make right. Human governments can actually be tyrannical and violate basic human rights. Justice is something then that is universal. It is based upon an objective Standard outside of humanity. These are the fundamental assumptions of any civilization. These are "self-evident" truths that cannot logically be denied. And this is exactly what Jackson argued at Nuremberg.

Finally Justice

Justice is a concept that makes sense when there is an ultimate Standard by which every action is measured. C.S. Lewis noted how he at one time argued against God on the ground that the universe seemed cruel and unjust. But then he asked, "But how had I got this idea of just of unjust? A man does not call a line crooked unless he has some idea of a straight line. What was I comparing this universe with when I called it unjust?" (45-46) This hits at the heart of the "law above the law." Where does our sense of justice come from? Where do the concepts of right and wrong come from? From where does that sense of "ought" arise? Are these mere products of evolution? Are they simply the result of chemical reactions, teasing us with an illusory sense of morality? Why try to "behave" at all? Why obey any arbitrary law if there is no law to which we are finally accountable?

No one can escape such nagging questions; and they cannot be answered by any worldview denying that there is a law above the law. As Christians, we believe that God created us in His own image (Gen. 1:26-27), granting to us a moral nature that seeks life beyond this material existence. We live in a world that does indeed seem cruel and unjust at times, but we are witnessing the effects of sin (Rom. 1). We pray that human governments will enact their laws in a way that is consistent with God’s laws; but if not, we also know that God will be the final Judge in all matters. Justice will be served by One who makes no mistakes. No matter how things turn out on this earth, God has the final say as the Sovereign Creator and Ruler. A law above the law implies that there will be final justice as we are held accountable to the Giver of this law. Those who reject a law above the law also reject final justice. In the end, in that view, living as a Hitler is no different than living as the apostle Paul. However, "in the face of the inadequacies and failures of even the best of human justice, biblical revelation assures us of a Last Judgment, where perfect justice shall be rendered" (Montgomery 51-52). It does matter how you live now.

God’s will to us is revealed in His word – God’s law by which we will be judged is also a revealed law. In His word, He tells us how we can receive forgiveness of sins through Christ so that when we stand before Him in a final day of reckoning, we can receive a great reward promised to the faithful (1 Jn. 2:25, 28). On the other hand, if we reject God’s will, then we will be judged for that, receiving the reward of eternal damnation (cf. John 12:48). That is just. What we deserve is death; what God offers is life (Rom. 6:23-24). Either way, justice will have been done. Which side of justice we will be on is our choice to make now.

Works Cited

Burr, John R. and Milton Goldinger. Philosophy and Contemporary Issues, 7th ed. NJ: Prentice Hall, 1996.

Geisler, Norman and Peter Bocchino. Unshakable Foundations. Minneapolis: Bethany House, 2001.

Lewis, C.S. Mere Christianity. NY: Macmillan, 1952.

Montgomery, John Warwick. The Law Above the Law. Minneapolis: Bethany House, 1975.

Doy Moyer