Disciplining the Law: A Conversation with Joan Lockwood O'Donovan
We can sometimes take law and its institutions for granted. The rule of law is so solidly established in Western democratic societies that we can almost forget that it is a cultural creation, a web of human institutions, habits, and practices that are the products of our making. In this conversation with theologian and ethicist Joan Lockwood O'Donovan, we explore the history of law in the West in order to situate pressing questions of policing and justice—and how forgetting that history only exacerbates distortions and injustice.
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To restore the theological fabric is a critical as well as a constructive exercise, which has to involve uncovering the potential for tyranny and injustice in our liberal democratic, law-ruled, rights-ruled states.
JKAS: Your work has been a real prompt for us as we've conceived the spring issue of Comment on the rule of law and the way of love, so thank you for making time for a conversation. One of the themes that has bubbled up is this sense in which, in Western societies, we have almost taken the rule of law for granted. We think it's just this natural, given thing, and we almost forget how remarkable it is that we have the institutions of law that we do. We forget that we are heirs to a particular contingent history that got us to where we are. Is that something you think we need to do a better job of remembering? What would happen if we forgot that history?
JLO: Well, let me begin by saying that Western political institutions of ruling by and under law, which constitute the political core of our liberal societies, are as remarkable as the particular—I stress particular—history of Christian political thought from its earliest development in the Western Roman Empire.
Christian political thought early on situated Greek and Roman ideas about ruling by and under law within a more comprehensive theological understanding of law. In doing this, it situated classical ideas about the political reality of human freedom within a more comprehensive theological understanding of human freedom. I would suggest, then, that for most of Western political history theories of ruling by and under law, which along with other factors have generated and sustained Western political institutions, are woven out of, and also woven into, this larger fabric of Christian political thought with its rich, multilayered interdependence of law and freedom.
Now, of course, no one can deny that the histories of these theories have been and are currently disputed by scholars, as well as the contributing sources—that is, biblical, philosophical, Roman legal. Nevertheless, it seems to me that two generalizations are beyond dispute, even among scholars: first, that until the seventeenth century, the theories and their associated practices largely developed within a biblical and theological matrix; and second, that they have subsequently become progressively detached from this matrix or fabric, in academic and political as well as popular circles—at least outside of ecclesiastical and theological circles.
This detachment does, I think, constitute a collective forgetting of the longer Western tradition of law and freedom, stretching from, as I've indicated, the early church to, I would say, the post-Reformation period of scholastic revival.
From a more integrated theological perspective, the detachment has entailed theoretical and practical distortions in the field of law, and this despite the valuable advances in analytical and technical refinement of the field. Some of these distortions are quite widely recognized among practicing lawyers and academics today, and others are not widely recognized; and I hope, perhaps, as our conversation goes on, I'll be able to point to certain distortions that are entailed in the pervasive rights agenda of contemporary Western law and political culture. Here let me just say that to restore the theological fabric is a critical as well as a constructive exercise, which has to involve uncovering the potential for tyranny and injustice in our liberal democratic, law-ruled, rights-ruled states, as well as an exercise in unfolding alternative ways forward.
To understand this, we would need to understand more about the fabric of freedom and law in the longer biblical tradition.
JKAS: Say more about that, because I think in some ways, in the popular imagination, people almost tend to assume a mutually exclusive relationship between freedom and law, right? It's like we've all become functioning libertarians, and so we tend to think the assertion of any law is some sort of impingement on their freedom.
JLO: Let me be as concise as possible and begin by saying that the tradition, the theological tradition, which I refer to largely as "the longer biblical theological tradition"—
JKAS: By that you mean it's a sort of ongoing extension of Israel's heritage, the biblical tradition more specifically, and then its unfolding through the course history.
JLO: Yes, indeed, and stressing that this tradition has an important patristic component which, it seems to me, we today are inclined to overlook at our peril.
This tradition, I would say, sets forth human freedom as a dynamic reality of human beings responding obediently to God's manifold revelation of his will, of his law. The value, the worth, the significance of human freedom lies in its reality as a positive human response to God's ongoing communication, so that there is no free human action that is not also a receiving of what God has already done and given.
God's foundational revelation of his will to human beings is in and through the intelligible structures of their creaturely reality. These constitute an order of universal goods: physical, intellectual, spiritual; and as well, the patterns of right relationships entailed by these goods: relations of persons to God, to themselves, to one another, and to the nonhuman creation. As law is the very form of each good as willed by God, there is in every created human good a unity of love and law. This means that human beings fully partake of these goods, obtaining the objects of their deepest needs and desires, only by freely conforming in their intentions and their actions to the transcendent claim these goods embody.
The reality of human sin, then, is that this junction between love and law, desire and obedience, is rent asunder, characterizing the human failure to respond to what God has done and given. Sin is human beings' refusal of the God-given restraints inherent in the fulfillment of every rational desire. The result of sin is the degrading of common human freedom by the isolation and discontent of individuals, and by their self-serving oppression of one another.
To sinful human beings, God has given the commands of his law, to restrain their destructive waywardness, and in so doing to preserve their fragmentary freedom and also by convicting them of sin, to prepare the way to repentance. More importantly, God has brought about the restoration and perfecting of human freedom in the saving work of Jesus Christ, and summons all human beings to receive from Christ the gift of a new and perfected freedom, according to his revealed law of our salvation. While the reception of this gift will be fully accomplished only in Christ's kingdom, it has already begun in those who have become Christ's faithful disciples, being baptized into his earthly body, the church universal.
Finally, it is by situating the enterprise of political rule within this complex dynamic of divine law and human freedom that Christian theologians have understood its purpose, form, and limitations. The longer theological tradition of the West, guided importantly by key New Testament passages—above all by Saint Paul's exhortations in Romans 13:1-7—has situated the human legal enterprise within the saeculum, that is, within the reality of disordered human life struggling under the destructive tendencies to sin.
It is the restraining and condemning commands of God's law that call forth the human freedom of giving public law: that is, the human freedom of giving binding public judgment concerning matters of right and wrong for the punishment, correction, and prevention of wrongdoing and vindication of well-doing. In remotely reflecting God's providential judgments on the fruits of sin, which it is important to stress is by no means the fullness of God's judgment in Christ, human law—human lawgiving—mercifully preserves for all persons, including the offenders against human law, the goods of sinful human life in the face of the menace and the assault of evildoing.
JKAS: In the way you've just framed it, there's an inherent creaturely creational dynamic in which human freedom is actually called forth as a response to God's law. Is that a fair summary?
JKAS: Thinking about, now, the way law calls forth submission in the saeculum, in societies now between the fall and the eschaton, does human law have the same dynamic? Is the rule of law itself sufficient to elicit submission, conformity? I love what you're suggesting, that in fact there is something built into our creaturehood and that, in the best sense, we would respond to that as a gift, that our conformity is actually how we find flourishing; it's God channeling us into what is best for us.
To the degree that a contemporary political culture is ideologically secular, that is, openly hostile to Christian teaching, mores, and institutions, support for public laws and for political submission will be attenuated, to say the least.
But is that also true of human law, or does there also have to be something else on the "subject side," so to speak, that creates a people that is willing to submit, to conform? Does that make sense as a question?
JLO: Yes, it does, and if you'll permit me, I would like to stay with a historical approach to this question, at least initially.
I'd like to observe, first off, that in the Christian West there has been a continuous awareness among members of political societies, whether they be subjects or citizens, that human lawgiving can and should accord with divine lawgiving, and that the fundamental authority of human lawgiving resides in this accord. At the same time, there has been a continuous awareness that human laws do contribute to the protection and the conservation of—and I would stress this—preexisting social goods: goods, for example, of marriage, family life, the nurture and education of youth, goods of economic well-being, the production and just exchange of commodities and services that are beneficial to all. Also goods of spiritual community: truthful communication and particularly communication about God and his revealed will for human beings, individually and collectively.
This twofold moral awareness has entailed faith in and love of the God who has revealed himself in Christ through the Scriptures, and as well, it has entailed esteem and desire for created goods and right human relationships, and correspondingly, repugnance toward attitudes and actions destructive of these goods and relationships.
Now, admittedly, within Christian cultures, there have been different emphases on the God-directed and creation-directed aspects of this awareness, as it gives rise to law-abiding conduct, but both aspects have regularly been deemed necessary. Insofar as rulers and ruled have digested Christian teaching and been formed by Christian discipline, they have, to a considerable extent, been conscientiously subject to the rulings of public judgment and to those authorized to give them, on account of the divine and the human rights that public judgment upholds, and the common goods that it protects.
The law does, then, elicit obedience, but only by resting on common understandings and common inclinations that transcend the law itself.
To invoke the longer Christian tradition poses the issue of how continuous the political cultures of contemporary political societies are with the Christian past. To the degree that a contemporary political culture is ideologically secular, that is, openly hostile to Christian teaching, mores, and institutions, and determined to suppress their political influence, continuing Christian support for public laws and for political submission will be attenuated, to say the least. But even a professedly pluralist political culture, ostensibly open to Christian influence, may have an ideological core of unbounded egalitarian pluralism, productive of laws that assault social goods and right relationships, and in that way undermine the moral support for obedience.
I would just say that the contemporary political and social ideology of unbounded egalitarian pluralism is the terminus of a long evolution of natural law and natural right theories in the West, insufficiently informed by sound theological doctrine, and so increasingly captive to rationalism, individualism, voluntarism, and finally subjectivism, and that this ideological culture has very little understanding of the social nature of human goods, and of the spiritual practices necessary to maintaining them.
JKAS: Could I pause for a second? That's very helpful. Would you that say then that, in a way, this kind of ardently secularist liberal individualist ideology and culture doesn't really have resources internal to it to form a people who would receive the rule of law well?
JLO: Yes, I think that's right.
It seems to me that in this broad sense, policing is pervasive and excessive throughout contemporary society and perhaps the most corrosive threat to social goods.
JKAS: My friend Jonathan Chaplin sometimes says that liberalism is kind of inherently antisociety in a way, right?
JLO: Absolutely, I'm one with Jonathan on that. Absolutely.
JKAS: Related to this, I wonder . . . obviously a lot of your work has reflected on the institutions of law and even magistrates and so on. I'm equally intrigued whether you think policing is something that a society would have to overly rely on now, precisely because those formative sources that make citizens willing to conform have been lost. Might that overreliance on policing as a kind of external force also explain why we seem to be seeing so many examples of egregiously distorted forms of policing?
JLO: This is a little bit mischievous, I realize, given your question, but I do think it's important, actually, to take policing first in the broader sense of bureaucratic surveillance and accountability.
JKAS: That's very helpful. I would love to situate it in that broader conversation, really.
JLO: Okay, because it seems to me that in this broad sense, policing is pervasive and excessive throughout contemporary society and perhaps the most corrosive threat to social goods. As individuals and communities have a weaker purchase on the substance of social, vocational, and institutional goods, they respond by attempting to manufacture these goods by generating rules to be followed and outcomes to be scrupulously charted and mathematically measured. The rules and the outcomes are not only superficial but also, in my judgment, often misguided to the extent of being incompatible with the substance of the goods in question.
Many academics will, I think, agree with me that a glaring example is education at all levels, driven by misguided, frequently reductionist conceptions of the purpose and nature of education (for instance, a conception of it as accumulating skills for jobs in the workforce); these conceptions, then, being expressed in targets that require the mathematical measurement of attainment.
Policing in the narrower vocational sense of the institutional force responsible for responding to and preventing crimes also suffers from the same bureaucratic distortions as other institutions, but the emergency and coercive character of the work make the pressures just that much more intolerable. Police forces suffer most acutely from the inflated public expectations as to what they can achieve, expectations generated in part, I believe, by a generalized moral panic. Especially when combined with a high level of media surveillance, they are more likely to feed, rather than to suppress, corruption in forces that are already possibly plagued with inadequate personnel and sometimes inadequate training.
Possibly more importantly, inflated public expectations of the police relate not only to their traditional work of intercepting criminal acts and apprehending offenders and preventing crimes by detectives' investigations, but more disturbingly, they relate to a more general social remit thrust on the police of reducing the moral anomie infecting communities, especially the youth in communities, anomie resulting largely from moral and social ills that are entirely out of the control of the police, and which, speaking as a theologian, I would propose, can only be effectively addressed in the first place by the mission of the church and, in a more religiously diverse society, by other religious groups and institutions as well.
It must be understood that police work belongs to coercive law enforcement and not to social pedagogy, or worse, therapy. To make that point is not to say that policemen and policewomen do not need to act conscientiously with informed and mature judgment, and, where possible, be trusted and admired by the communities they serve.
JKAS: Sure. I find it very illuminating to see, in a way, the disproportionate expectations put on police are part of a broader bureaucratic policing where we're increasingly asking the state to do more than it could or ever should be expected to do.
To read the rest of our conversation with Joan Lockwood O'Donovan, subscribe to Comment and ensure access to the spring 2016 issue, "The Rule of Law and the Way of Love."Subscribe