Editorial: The Rule of Law and the Way of Love
There is no opposition between law and mercy
Now is not the time to stand up defending "law and order." Trust has been lost. The ruling face of "law" we've seen broadcast from Ferguson and Baltimore and Chicago has too often been thuggish. And the maintenance of "order" seems selective and biased, like Lady Justice is peeking through that blindfold and picking favourites. While young (overwhelmingly black or Aboriginal) men who have committed minor infractions languish in a sprawling system of incarceration, branded with a record that prevents gainful employment when they return to society, the unmitigated greed of (mostly white) bankers who plundered the hard-won savings of a generation remain immune from prosecution. And so we can understand a widening suspicion: Whose law? Justice for whom?
And yet, the mechanisms of law, policing, punishment, and (hopefully) rehabilitation are a crucial feature of human society in the saeculum, this long era between the fall and the eschaton. In a redeemed but broken world, our cultural labours are not only creative and generative; sometimes they have to be remedial and protective. This is why the Christian tradition reflected in the legacies of Augustine and Reinhold Niebuhr has often been described as "realist." At times it can feel like sustaining social architecture amounts to little more than trying to corral the darkness as best we can. But that, too, is good work.
The place to start thinking about the law is not in the courtroom or the prison, even if that's eventually what our cultural critique needs to target.
Thus a huge yet often hidden sector of our social architecture is a sprawling, complex web of crime and punishment, incarceration and justice, detention and discipline. This includes an array of cultural institutions and practices that exhibit the remedial role of the state envisioned by Abraham Kuyper—as a postlapsarian gift that exists to curtail the effects of the fall. But notorious episodes of abuse and injustice have moved these systems and structures from the periphery of our awareness to the centre of journalistic attention. Graphic, widely witnessed abuses in policing and interrogation have generated both protests and calls for reform in policing. Similarly, both the horror and ineffectiveness of "the incarceration state" have galvanized calls for prison reform across the political spectrum. These, in fact, are enduring Christian concerns. Whether you read Augustine's fifth-century letters to governors in North Africa, pleading with them to show mercy in their judgements, or look to the Quakers' passionate devotion to prison reform in the nineteenth century, the best Christian thinking about institutions of crime and punishment has never been a simplistic apologetic for "law and order." Rather, Christian public theology articulates a nuanced call for the rule of law suffused with the way of love. Even Kuyper exhibited outrage at the way law and the courts had been hijacked by the wealthy and powerful in nineteenth-century Europe. In The Problem of Poverty he decries the "rule of money" and the ways that the "plutocracy" has overtaken the reins of government in order to turn it into an engine for their own gain, producing
a world in which the stronger devours the weaker, much as if we lived in an animal society rather than in a human society. The stronger, almost without exception, have always known how to bend every custom and magisterial ordinance so that the profit is theirs and the loss belongs to the weaker. . . . And whenever the magistrate came forward as a servant of God to protect the weak, the more powerful class of society soon knew how to exercise such an overpowering influence that the government, which should have protected the weak, became an instrument against them.
In the face of such abuses, Kuyper—like a host of Christian voices before him—calls for the state and its institutions of law enforcement to recognize their subservience to a higher law, and to answer the call as institutions that enable the flourishing of all. In cases where those institutions have been commandeered by the self-interest of the powerful, that will entail a strident critique of prosecutors, police, and prisons, not in the name of anarchy but rather in the name of gospeled concerns for what Augustine calls "the tranquility of order."
But the trick is to do this in a way that doesn't demonize the law as such. The animating conviction of this issue of Comment is that if we want to understand law in the narrow, "juridical" sense—and especially if we want to prophetically critique how it is legislated, enforced, and administered—we need to zoom out to a wider appreciation of the lawlike nature of creation itself. This wide-angle consideration of law points to a very different way to imagine the law—as a gift woven into the very fabric of creation, not merely a remedial response to sin. As Davey Henreckson encapsulates it in his contribution to this issue, while it is "difficult for many of us to imagine law as something other than a principle of intimidation and control in our lives," the early Protestant tradition offers a very different picture: not merely as a stick to punish us but also "as a staff to keep humanity from falling."
This has been a long-standing theme in the Reformational tradition that nourishes the work of Cardus and Comment. The clunky shorthand for Herman Dooyeweerd's thought was "the philosophy of the cosmonomic idea"—referring to the law (nomos) woven into the very structure of the creation (cosmos). This is meant to capture the sense that there is a "grain" to the universe and that life flourishes when we work and play "with the grain." Humanity, in that sense, has been deputized to discern the laws and norms that are built into creation because these, in fact, are invitations to flourish. Good agriculture gives us insight into the "laws" that govern the soil; good engineering grasps the laws that govern materials and physics; and a good hockey game is, in fact, more fun when the rules of play are clear, when everyone is happy to play by the rules, and the referee is there to gently "remind" us of this. (As a young man, I spent quite a bit of time in the "remember-the-gift-of-the-law" box.)
So the place to start thinking about the law is not in the courtroom or the prison, even if that's eventually what our cultural critique needs to target. This issue invites critical reflection on what we usually talk about when we talk about law and order and policing by expanding our appreciation for the dynamics of law and discipline beyond the juridical. And it does so with a view to redeeming law in the public imagination, even while calling contemporary institutions of law to account. But the merciful and compassionate response to unjust law and its disordered enforcement will, in fact, look like better laws and rightly ordered enforcement. The diminishment of law only leaves the vulnerable more exposed to danger and injustice.
This is why the psalmist can say, "Oh, how I love your law!" (Ps. 119:97). In the beautiful cadence of the King James Bible, "Mercy and truth are met together; righteousness and peace have kissed" (Ps. 85:10). As Joan O'Donovan emphasizes in our conversation in this issue, this is realized above all in the person and work of Jesus Christ, in whom grace and truth are met (John 1:17). The "law of the Spirit" is life-giving (Rom. 8:2–3). And it is this new reality, broken into history, that transforms how we can imagine even human law ordered to mercy and compassion.
The conjoining of law and love is well captured in the Peter Paul Rubens painting that graces our cover. In this seventeenth-century masterpiece, Rubens captures the essence of Saint Ives, "Patron of Lawyers, Defender of Widows and Orphans." There is no opposition between law and mercy, justice and compassion. To the contrary, the writ in his hand is a gift. It is precisely the law that guards the vulnerable. The painting is a parable of the rule of law and the way of love.
Sometimes, the law is how we love. But the enforcement of law is now always haunted by the self-giving sacrifice of the Judge who submitted himself to the punishment we deserved. As O'Donovan points out, our public work as Christians includes helping our societies remain haunted by this reality.