Law occupies a curiously ambiguous position within Christianity which, unlike Judaism or Islam, is not a religion of law. It possesses no obvious primary legal code to which to refer. Moreover Jesus and Paul seemed to take up almost anti-legal positions. Early Christians considered that Jesus was not a legally minded man. There is no suggestion that he flouted the law but, whereas other religious zealots of his time actually added to the multiple small obligations of Jewish legal orthodoxy, Jesus is portrayed as pointing in quite a different direction. ‘Fulfilling the law’ will be realized, not by multiplying minutiae, but by getting back to its central commandment of love, practised in a quite unritualistic way.
The early Church soon decided to reject a demand ‘to keep the Law of Moses’ (Acts 15:5) and required only a minimalist set of obligations that did not even involve keeping the Sabbath. While the latter was of enormous importance to the Jews as one of the Ten Commandments, it was quickly abandoned by Christians. Nor can it be said that the Jewish Sabbath was simply transferred to the Christian Sunday, for all that many Christians have seen it thus. Almost everything special in ‘keeping the sabbath’ simply went. Paul’s rhetoric could go still further. Christians are ‘dead to the law’, ‘discharged from the law’ (Romans 7: 4–6), not because the law is bad but because in Christ they have entered a new kind of existence whose morality is that of a ‘new’ and simpler ‘law of love’. Its combination of moral earnestness and lack of any extended initial law of its own made it particularly open both to embracing and developing other law systems that appeared not too discordant with its own ideals. At the same time, the larger and more complex its own life and organization became, the more it needed an internal ecclesiastical or canon law to regulate its affairs.
Four developments resulted. First, a taking over of Roman law, once the emperors were Christian, as the central civil law of the Christian community. The early Christian communities were deeply law abiding. Secondly, Christian influence encouraged the spread of written law. English legal tradition began with the laws of Ethelbert of Kent who was converted by Augustine. Thirdly, the canons of church councils and the decretals of popes constituted a considerable body of canon law which by the 4th century became codified. The decisive systematization of church law was made by Gratian and the development of the University of Bologna. Fourthly, Christians took over from the Greeks a concept of natural law, that is to say the idea that a system of moral right and wrong is embedded within the rational nature of humankind (something which Paul appears to recognise in Rom 1) as reflecting divine law. Aquinas, making full use of Aristotle, developed a rounded conception of natural law which has remained central to catholic theology.
While the Christian is by conviction a law-abiding person, that does not exclude struggling to embody the higher values of love, justice, mercy and freedom within positive law. For the theologian of natural law, positive law exists only for the common good. Those which do not serve the common good are invalid and cannot command conscientious obedience. It is right, Aquinas argues, to rise up against tyranny. There may well be a moral obligation not to obey the governing authority.
If many laws, while not self-evidently against the common good, appear moderately unjust, then it can be a Christian duty not to disobey them, but to contest them in a way constitutionally allowed.
While positive law is a necessity for every society, and it can never fully embody a Christian ethic, it can almost always be rendered more humane, more convincingly just. The less fair a law is, the more it should be contested; the better a law is, the more it should be cherished.
While there will always be a gap between a merciful fairness on the one hand and positive law on the other, the task of the Christian lawyer is to reduce that gap to a minimum and ensure that positive law effectively serves the persons who form society and the common good they share.
Contributed by Mark Hatcher; drawn from Adrian Hastings, The Oxford Companion to Christian Thought (2000) Oxford, OUP
Some biblical texts to ponder
In the Israel/Palestine of his time there were two laws: The law of the Roman Empire, and the Torah: the Jewish law in the biblical books of Genesis, Exodus, Leviticus, Numbers, and Deuteronomy.
Jesus the Roman taxpayer
Then they sent to him some Pharisees and some Herodians to trap him in what he said. And they came and said to him, ‘Teacher, we know that you are sincere, and show deference to no one; for you do not regard people with partiality, but teach the way of God in accordance with truth. Is it lawful to pay taxes to the emperor, or not? Should we pay them, or should we not?’ But knowing their hypocrisy, he said to them, ‘Why are you putting me to the test? Bring me a denarius and let me see it.’ And they brought one. Then he said to them, ‘Whose head is this, and whose title?’ They answered, ‘The emperor’s.’ Jesus said to them, ‘Give to the emperor the things that are the emperor’s, and to God the things that are God’s.’ And they were utterly amazed at him. (Matthew 12:13–17)
Jesus and the Jewish law
‘Do not think that I have come to abolish the law or the prophets; I have come not to abolish but to fulfil. For truly I tell you, until heaven and earth pass away, not one letter, not one stroke of a letter, will pass from the law until all is accomplished. Therefore, whoever breaks one of the least of these commandments, and teaches others to do the same, will be called least in the kingdom of heaven; but whoever does them and teaches them will be called great in the kingdom of heaven. For I tell you, unless your righteousness exceeds that of the scribes and Pharisees, you will never enter the kingdom of heaven. (Matthew 5:17-20)
Again he entered the synagogue, and a man was there who had a withered hand. They watched him to see whether he would cure him on the sabbath, so that they might accuse him. And he said to the man who had the withered hand, ‘Come forward.’ Then he said to them, ‘Is it lawful to do good or to do harm on the sabbath, to save life or to kill?’ But they were silent. He looked around at them with anger; he was grieved at their hardness of heart and said to the man, ‘Stretch out your hand.’ He stretched it out, and his hand was restored. The Pharisees went out and immediately conspired with the Herodians against him, how to destroy him. (Mark 3:1–6)
Why do we need laws at all?
The heart is devious above all else; it is perverse—who can understand it? (Jeremiah 17:9)
I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. (Romans 7:15)
Individual men may be moral in the sense that they are able to consider interests other than their own … Their rational faculty prompts them to a sense of justice … But … in every human group there is less reason to guide and to check impulse … less ability to comprehend the needs of others … The inferiority of the morality of groups to that of individuals is due in part to the difficulty of establishing a rational social force which is powerful enough to cope with the natural impulses by which society achieves its cohesion … (Reinhold Niebuhr, Moral Man and Immoral Society, Wipf and Stock, ‘Introduction’)
Law is an unfortunate necessity. There is nothing good about it. Discuss.
Notes from Mark Hatcher's introduction to the discussion on the Third Thursday
What do we mean by ‘law’?
What is the essence of a law?
Is it helpful to see a law as being essentially a command by a sovereign authority – as positivist legal philosophers like H L A Hart contend in his Concept of Law,
Heavily influenced Hans Kelsen, Ludwig Wittgenstein and US legal theorist John Austin, who
influenced British and American law
with an analytical approach to jurisprudence and a theory of legal positivism.
They argued against any need for connections between law and morality.
Contrary to the position of proponents of ‘Natural Law’ such as Thomas Aquinas and Judge, Lord (Patrick) Devlin.
For legal positivists law is ‘a norm based on a hypothesis’: if x exists, y follows.
Good example: Section 1(1) Theft Act 1968 which provides:
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.’
Now, is the command: ‘You must eat fish on Friday’ a law?
Not under English law – certainly not in statute law or under the common law.
But it could be if Parliament, which is sovereign, passed a law to that effect.
If Parliament passed an Act which commanded people to eat fish on Fridays it would have made a law
And it would command recognition and enforcement.
But that does not mean the command is inviolate.
It could be challenged.
Lawyers would have a field day.
If not specified in the Consumption of Fish Act 2023, to whom is the requirement addressed?
What does ‘fish’ mean? Does it include crustacea, for example?
Does it include oil produced by fish?
Isn’t a blanket requirement to eat fish on Friday contrary to the Human Rights Act 1978?
How do we deal with a person who has a conscientious objection to eating fish on Friday or indeed at all?
What happens if you don’t comply with the requirement to eat fish?
What happens if you think that the Human Rights Act was totally misguided and unnecessary in the United Kingdom?
And so on.
Another example: If you are worried about the effects of climate change are you justified in breaking the law by obstructing the highway as Extinction Rebellion supporters contend?
At the end of the day someone has to make a decision on whether it is, in fact, mandatory to eat fish on Friday or whether you can legitimately block the highway and, if so, on what terms?
The requirements of ‘the law’ have to be interpreted and a decision made – by a judge (and possibly other judges in the event of an appeal).
And the final decision has to be complied with.
That is what we recognise as the Rule of Law
Dating back to Magna Carta (1215) and reflected in the Bill of Rights 1688.
The rule of law, interpreted and applied by an independent judiciary,
underpins our democratic way of life.
If we don’t like the law we must change it in ways that the law and the conventions of the constitution recognise.
That is the classic statement which you may think will suffice for many perhaps for most cases but not necessarily for all cases.
To go back: there will be variations in the answer to the question: What do we mean by law according to whether we are talking about:
And we need to be clear about the boundary lines around:
All this leads naturally to issues about:
So what about Christianity and the Law …
At 4 p.m. on Thurday the 19th of January: A discussion about LAW with the Rev'd Mark Hatcher, Reader of the Temple, formerly Director of the Bar Council and barrister
The discussion will include comments and questions sent via the contact form on the Word of the Month website page.
Come and go as you wish. The session will continue until we run out of questions to discuss.
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