Government

Free Speech: In Search of True Defenders

Note: the bulk of this article below was written before the outcome of the recent parliamentary inquiry into proposed changes to Section 18C. I have left the article largely intact, with just a few nods to events of the past month.

Free speech advocates have every reason to feel aggrieved with the current government. Why, just a few weeks ago – after a parliamentary inquiry into proposed changes to Section 18C of the Racial Discrimination Act – Coalition politicians somehow managed to combine pusillanimity with pugnacity. Scott Morrison brusquely claimed to “know” that “this issue doesn’t create one extra job”, failing to “see any intersection between the issue and those [i.e., economic] priorities” (Michael Koizol, “Scott Morrison Warns Against Internal Fight Over Free Speech Laws: ‘It Doesn’t Create One Job’”, The Sydney Morning Herald, March 1st, 2017). Other ministers made the same attempt at compensating for their lack of ideological fortitude by publicly scorning the expansion of free speech.

This is not a new claim, by any means. Morrison’s argument reminds me of some rather tremulous comments the Prime Minister uttered last August in response to the same issue:

“With all due respect to the very worthy arguments surrounding it, it is not going to create an extra job or…build an extra road” (Paul Karp, “Labor Accuses Coalition of Changing Stance on Racial Discrimination Law,” The Guardian, August 19th, 2016).

Around the same time, one of Turnbull’s ministers, Mitch Fifield, said much the same thing on ABC’s Q and A program (even repeating the phrase “worthy arguments” to ensure everybody knew he was on message):

“While I appreciate many of the worthy arguments that some of my colleagues put forward in relation to 18C, it’s not something that we have an intention to change” (Q and A, August 22nd, 2016).

Fifield went on to offer a rather insipid rationale for inaction, which sounded uncannily like his leader’s. And last December, John Alexander (the Liberal member for the federal Sydney seat of Bennelong) urged the government to concentrate on “productive things rather than political things [i.e., debates over amending 18C]” (Rosie Lewis, “Malcolm Turnbull Faces Section 18C Test Amid Ethnic Opposition,” The Australian, December 29th, 2016). It seems that this kind of febrility is endemic within the Liberal Party.

To be sure, Turnbull has softened his opposition to changing 18C, and his government is now proposing certain amendments to the offending act. He’s offered a welcome rationale for the public modification of his assessment, saying “there is a view” that “the bar has been set too low” with regards to the law in question, thereby constituting an unwarranted “restriction [upon] free speech”. This is quite reasonable: as recent controversies have indicated, views that appear to fall outside the definition of racially offensive speech have nonetheless proven vulnerable to legal censure. To what extent Turnbull’s change of heart has been the result of a genuine shift in perspective – as opposed to a restive backbench – is uncertain. But even some of his more recent reflections on the subject are relatively muted: witness the way he talked about freedom of speech in the abstract (“there is a view…”), as if he himself were too afraid to own the opinion to which he was referring. A full-throated shout of defence it was not.

The lack of conviction is still a worry, particularly from someone who supposedly holds to the tenets of classical liberalism. That other segments of the Liberal Party – you know, that party of small government and personal liberty – should also be shy on this issue is equally troubling. Even if the Coalition is successful in securing changes to 18C, the fact remains that a number of senior ministers have staked a lot on the argument that amending the law is a mere distraction from the task of financial and economic management. Moreover, they seem to suggest that trying to change the parameters of 18C – even if successful – would do nothing to improve the budget’s parlous state, ease the country’s financial woes, or expand employment opportunities for people. These two concerns are, it seems, mutually exclusive.

However, the basic assumptions resident in the above comments raise crucial and abiding questions about the kind of culture we want to see prevail in this country; the fundamental values that undergird Australia’s liberal democracy; and even the relationship (if indeed there is one) between basic politico-philosophical values and economic prosperity. Their Quisling character aside, the arguments proffered by Turnbull, et. al., revealed a surprising degree of ignorance regarding the relationship between free speech and a healthy body politic. I’ll say more as I proceed.

A Hollow Vision

In making their argument against pursing changes to 18C, Coalition ministers repeatedly offered what could be called the “technocratic defence”. Theirs were the words of dry administrative experts – of elite technocrats, committed only to solving the impersonal problems of a modern industrial economy. They seemingly lacked sufficient interest in more substantive, indeed existential,[1] issues such as freedom of thought and expression; instead, they preferred to hide behind a supposedly exhaustive obligation to the nation’s technical-economic challenges. In other words, their justification represents the evacuation of philosophical and cultural substance from the project of governance, reducing it to a hollowed-out form of managerialism. Worryingly, their views implicitly devalue the constitutive importance of the basic liberties this country possesses, and upon which our politics – and indeed our society – are built.

As one of those basic liberties, freedom of speech has made an essential contribution to the enviable character of contemporary Australia. Similarly, it is integral to the tolerant and intellectually rich societies that have developed over the centuries in the West. Freedom of speech has been astonishingly successful in enabling Western states to resolve a complex array of problems across virtually every field of inquiry. Without liberality of speech, one loses many of the other important freedoms we cherish: freedom of religion as a crucial subset of free speech; freedom to assemble peacefully for the purposes of, say, political expression; or the freedom to vote for the party of one’s choice (and to later criticise it), as a further instance of the citizen’s articulation of his or her views. Moreover, freedom of speech cannot be separated from freedom of thought: curtail the one, and you inevitably restrict a person’s right to pursue the other. Liberal democracies, which have come to represent the fruits of Western culture in political form, cannot properly survive without these elements. They are intrinsically, indissolubly, connected. Almost by definition, Western culture prizes freedom of speech as the public manifestation of rational, free-thinking individuals. Restrict it, and one ends up desiccating the culture to which it gives life.

Advocating for the liberal expression of one’s views – in this case, by urging amendment of an illiberal law – is therefore no mere symbolic act. Conversely, to leave it alone as too controversial is far from inconsequential, such is the deep relationship between this feature of the West’s cultural legacy and the kind of convivial, open society modern Australians enjoy. By contrast, the vision of the putative technocrat, with his narrow dedication to achieving a balance between economic inputs and outputs, is largely empty. It appears satisfied with a rather barren political culture – bereft of the vibrancy that stems from a vision of what makes for a mature, responsible, truly flourishing citizenry. As John Roskam, head of the free-market think-tank Institute for Public Affairs, recently quipped, if things like road-building are the final measure of good governance, there really is nothing to separate Australia from North Korea.

To be sure, I am not arguing for an activist administration; states should never be the final guarantors of free speech and ideational exchange (as if all depended on their paternalistic largesse). Nevertheless, there is much they can do to limit themselves so that individual liberty is preserved, even expanded – including divestment of any powers they might have to improperly police individual expression. Anything less is an abnegation of responsibility on the part of liberal democratic politicians and lawmakers. It is therefore surprising in the extreme that elected officials – particularly those in the liberal mould – should have thought that road-building and budget repair, as important as those activities are, rank higher than one of the supporting pillars of Western culture.

But the hollowness of vision to which I am referring runs deeper than that. In many ways, political questions can ultimately be reduced to questions regarding the nature of the human person, and the proper ordering of human relationships. That is, one of the fundamental issues lying behind political debates is what it means to be truly human – and, hence, what kind of community or social order is likely to be most conducive to human flourishing. Listening to Turnbull, Fifield, Alexander and Morrison trying to play economics off against philosophical concerns, one would get the impression that for them, a human being can be reduced to a determinable economic unit, who will respond appropriately to positive material stimuli. It’s a view that casts individuals as pure consumptive actors, without reference to the kinds of core principles or qualities that animate a person. This is, of course, incredibly shallow. Humans are not simply objects that can be deterministically manipulated by mere material considerations. They are conscious beings, possessed of rationality and free will, capable of exercising these powers as they receive and analyse the world around them. Humans are, as it were, agents, acting and engaging and negotiating with reality on the basis of a fundamental orientation – sometimes misaligned, but nonetheless present – towards the attainment of truth.

Freedom of speech respects these insights into the human condition. It rests on the presumption that humans are rational beings, capable of using logic and evidence to explore and determine their views on a particular issue. It places faith in the capacity of human beings to combine intellectual concepts in a coherent and ordered way, such that they may arrive at (rough) approximations of various aspects of reality. To that end, advocates for freedom of speech – correctly, in my view – argue that the best way for grasping the truth, or of deciding on a matter of public importance, is to allow all views to be heard; that way, the individual can, with relative liberty, reason through different lines of argument. This isn’t perfect by any means, since nothing that humans devise ever is. But comparatively speaking, liberality in speech provides a surer means of developing adequate knowledge about the world, and securing correspondence between one’s beliefs and that which is true. To paraphrase the late Michael Novak, free speech gives “play…to [the] unlimited drive to ask questions, and to [the] unrestricted desire to know” as humans seek out truth.

Such accounts also implicitly assume the human person is more than the sum of her biological or socio-cultural parts. They tend to conceive of the individual as a positive entity (rather than the mere intersection of broader forces), possessing a self-regarding, self-critical ability to interpret the world around her, and to make decisions accordingly. It respects the fact that whilst a person is obviously shaped by various external factors, she is no mere passive receptacle or programmed automaton. Favourable treatments of free speech assume that the person still bears the freedom of will to select some truth-claims over others, and to decide for herself (based, one hopes, on rational thought) where the truth might lie. Of course, presuppositions, unacknowledged self-interest, or the effects of social conditioning will invariably insinuate themselves into the structures of an individual’s thinking. However, free speech advocacy takes seriously humans’ capacity for reasoned choice. On this view, an unrestricted exchange of views promotes intellectual virtue, and provides the most expansive context within which human rationality may flourish.

Unwarranted restrictions on speech, on the other hand, undermine crucial aspects of human uniqueness. Beliefs that have been coerced (or manipulated via the proscription of unpalatable views) are neither rational nor free: they aren’t rational, because coercion as a means of guaranteeing “correct” belief breaks the logical link between adherence to a certain truth-claim and its rational or evidential merits; and they aren’t free, for the self-evident reason that force or arbitrary restriction is the very antithesis of political – even volitional – liberty. Indeed, to accept veridical claims on the basis of active compulsion or government censorship represents the very negation of rational discourse between responsible, thinking beings. To suggest that the concerns of the modern, technocratic state are more important than amending an affront to freedom of speech doesn’t just mute a key aspect of the West’s cultural heritage; it also invites a diminished view of the individual, and inhibits a crucial mechanism for the intellectual thriving of human beings.

A False Choice

If what I have written were the only reasons for criticising Turnbull and his ministers, then I’d say it was enough. But in addition to implicitly deprecating the substantive value of free speech, their comments represent a false choice between economic concerns and philosophical principles. The idea that they are separate and separable fails as a general argument, precisely because of the intrinsic connection between the free exchange of ideas and the generation of wealth and economic prosperity. Whilst Coalition ministers sought to play the “productive” off against the (so-called) “political”, they were seemingly unaware that the former is, in many ways, reliant on the latter. That is, communication that is largely unrestricted forms a necessary pre-condition for the sort of mesmerising prosperity Western countries have historically enjoyed. More prosaically, the ability to freely debate important issues offers a society the best chance of developing credible – and, for our purposes here, economical – solutions to complex problems. The economist and economic historian, Deidre McCloskey, has argued the Great Enrichment experienced by the Western world since the middle of the nineteenth century can be explained in large part by the success of certain ideas. As McCloskey suggests:

“What mattered [in relation to the enrichment of the West] were two levels of ideas: the ideas for betterment themselves (the electric motor, the airplane, the stock market), dreamed up in the heads of the new entrepreneurs drawn from the ranks of ordinary people; and the ideas in society at large about such people and their betterments – in a word, liberalism” (Deidre McClosky, “The Great Enrichment,” NRO.com, November 7th, 2015).

According to McCloskey, the West’s unprecedented levels of economic development (unprecedented in historical, and even current global, terms) cannot be understood unless one takes note of their intellectual basis. At one level, that meant the ideas of betterment themselves: technical innovation that led, either directly or indirectly, to expanding prosperity. It hardly needs saying that advances such as these are offered a boon when ideas can be freely exchanged, without restriction. And indeed, at another level, McCloskey seems to be saying exactly that: the “massive ideological shift towards market-tested betterment”, generating not merely technical innovation, but a fundamental change in the way (Western) societies were composed, as well as the manner in which individuals – now seen as beings possessed of freedom and equality – related to each other. McCloskey is clear: “our riches [came] from piling idea on idea…”

This should hardly come as a shock. After all, there exists a connection – one that can be intuitively grasped – between freedom of speech and economic prosperity. It may not always be direct, but it is there. Considered as an economic doctrine, freedom of speech promotes the open transmission of ideas conducive to social and material betterment – ideas that, when co-mingling, have the potential to generate profound advances in technological sophistication and material wealth. The zoologist and science writer, Matt Ridley, has cheekily called this process “ideas having sex”. By that, he means that the complex marriage of diverse concepts – sometimes from very different fields of enquiry – generates new knowledge, driving significant economic progress. Freedom of intellectual exchange stimulates creativity, leads to an intellectually fertile citizenry, and ultimately spurs on all manner of innovations. As the academic Brett Christensen has written, “free flowing ideas and debates contribute to creativity…education, and cultural evolution”. The thinking that some of our elected officials have recently showcased relies on a spurious division between two phenomena that are intimately intertwined.

There is, of course, one obvious rejoinder to what I have just said – namely, what any of this has to do with proposed amendments to a law which putatively concerns racially offensive speech. Indeed, whilst some may well concede the above points as theoretically valid, they might still argue that issues relating to free speech and racial vilification (on the one hand), and economic progress (on the other) are simply unconnected. To put the point in the form of a question: just how would amending or abolishing 18C of the RDA help politicians improve productivity or tackle the country’s budgetary woes?

But if the rejoinder is obvious, so too is a surrejoinder: it is simply impossible to predict what ideas may flow, interact or “copulate” as a result of the removal of restrictions to speech and the exchange of ideas. This may not happen immediately or directly. But if the history of economic and technical progress is anything to go by, the germination of some ideas by others (including those that may, at first blush, appear entirely unrelated) can occur in the most surprising of ways.

Please bear in mind, I am not making the rather outlandish argument that giving space to racially insulting speech might somehow lead to economic enrichment, or usefully contribute to policy discussion. What I am saying is that winding back 18C might provide clear air for views that have been illegitimately captured by the law – views that might, if given an honest hearing, open up discussions around important issues that touch on both society and economics (however obliquely). Indeed, as UQ professor of law James Allan has remarked, the remit of 18C has expanded to the point where it is now invoked to try and silence serious views regarding culture and public policy, on the spurious grounds that they are racist. This is in large part because of problems with the law itself. Amend it, and politicians and policy-makers wrestling with complex, multifaceted problems might find themselves aided by propositions that now fall under the shadow of legal sanction.

I think this response can be sharpened up a bit by focusing on one particular manifestation of the wider controversy. Recall the original context in which Turnbull made his comments. They were partly sparked by a complaint (using 18C) against the late cartoonist, Bill Leak, and a cartoon he’d drawn in The Australian of an Aboriginal man who didn’t know the name of his wayward son. Leak sought to go behind the events of the day, which were related to a contemporaneous report on Four Corners, alleging despicable treatment of young indigenous men at a youth detention facility in the Northern Territory. Leak wanted to ask why these young men were locked up in such facilities in the first place. His point, pungently made, was that the real scandal lay in the neglectful environments in which the boys had grown up, where parents had commonly failed in their duty to model responsibility, moderation and self-control. Certain individuals began legal proceedings in response to the cartoon (since abandoned), which led to several fraught weeks for Leak and his employer.

What has all this to do with economic issues? At first glance, very little. But think about it for a moment. The ongoing ill-health of many indigenous communities – particularly those in remote areas – is very costly. It is costly in human terms, of course, as lives are sometimes irrevocably damaged. But it is also costly economically. All those young indigenous men who languish in prisons and detention facilities around the country obviously aren’t contributing to the economy: they’re consuming public resources and they’re not in the workforce. Their previous crimes have cost individuals and the state both resources and money. Looking at the issue through a purely economic lens, it’s clear that those young men are adding to the overall financial burden of both the states and the Commonwealth.

Leak’s visual commentary sought to provide one explanation for why dysfunction prevails in certain Aboriginal communities – dysfunction that, whilst devastating on a purely human level, also has an important economic dimension. It is an urgent issue that warrants open debate. If the reasons for the existence of such deleterious environments – environments that seem to produce an inordinate number of young men with a propensity for delinquency and criminality – can be found, so much the better. However, if certain views are deemed illegitimate, and attempts are made to silence them via the threat of litigation, then an important public conversation is curtailed. Such restrictions ideas and opinions simply chills free debate, deprives people of possible solutions, and risks perpetuating tragic and costly problems.

Effective public policy cannot long survive without the existence of facts. I’m not referring to dominant narratives, nor comforting ideologies, but to stark, uncomfortable, messy facts. That is the only way a country’s socio-economic problems can be properly tackled. If policy is founded upon a bed of truth, then politicians can better target their efforts. But it becomes exceedingly difficult to achieve such a goal when communication and inquiry is diminished – haunted – by the spectre of state-sponsored censorship. Ultimately, this is not a question of whether, say, Bill Leak’s views are correct (although for what it’s worth, I think his cartoon was spot on). The point is that the susceptibility of certain views to legal censure, before they have even been discussed or debated, represents an irrational, arbitrary approach to public discourse and the resolution of such desperate issues.

Indeed, if it can be shown why some Aboriginal communities are seedbeds for the kinds of young offending we have seen, then policy (to the extent that government policy should be wielded in this area) can be effectively applied. That, of course, can have economic and budgetary flow-on effects, as communities are stabilized, children are properly educated, young men are kept out of jail, people are placed in employment, costs are reined in, and the financial burden shouldered by the state is reduced. In point of fact, then, changes to certain race-based laws have the potential to (indirectly) contribute to the very goals our fearless leaders claim to be concerned about. As such, the argument that economic issues and possible amendments to 18C are incompatible or unrelated is false, and anyone making it is either being obtuse or disingenuous.

***

Again, the government’s recently-proposed changes to 18C is a welcome development. But one gets the feeling that its heart is still not in this fight. And it is just one of several debates around principles and philosophy from which the Coalition has tried to run, or on which it has remained frustratingly silent. By dragging this particular debate out over several months (and more), the government has needlessly wasted time and political capital. More importantly, by grounding so much of its resistance in spurious arguments, it has undermined its own political and philosophical outlook. Despite the current shift, the vehemence and consistency with which the above views have been articulated by members of the Coalition makes it difficult to believe that they have simply withered away. This is either a sign of political cravenness or a basic loss of liberal values. Is it any wonder, then, that voters have begun to look elsewhere?

[1] ‘Existential’ in the sense of the deeper character and quality of existence, not its mere presence.

Christian Theology and Democratic Politics: Part One

This piece is the first of a series of essays looking at the links between Christian theology and democratic thought. Not only does it contain the first substantive part, but also the introduction to the entire series.

Introduction

“What does Athens have to do with Jerusalem?” This question, famously asked by the early church theologian Tertullian, was meant to interrogate the alleged relationship between Hellenistic philosophical methods (“Athens”) and a Christian-revelatory understanding of knowledge (“Jerusalem”). The implication of Tertullian’s rhetorical riposte to those who sought some kind of concord was that no such relationship existed; Christian theology and Greek philosophy were strangers on the road to truth.

The question came to mind as I pondered the relationship between Christianity and democratic politics. It’s particularly apt, since Athens is conventionally seen as the cradle of Western democratic thought – the place where the notion of participatory politics (variously defined) was first nurtured. Has Christianity – “Jerusalem”, in other words – contributed anything to that project? Is it possible to discern traces of Christian thought in the long, winding enterprise we call democracy? Or is the relationship characterised by antagonism and (mutual) misunderstanding? For my money, I think it is possible to uncover ways in which Christian theology has succeeded in shaping democratic political thought. To draw a straight line between the two is, of course, impossible; a number of influences, whether religious, philosophical, historical, economic, cultural or nakedly political, have contributed variously to the evolution of democracy, especially its liberal iterations in modern, Western experience. Although it’s unrealistic to think that those factors can be neatly distinguished, my concerns nonetheless lie with Christianity’s intellectual contribution to the democratic project. Here, I want to substantiate the proposition that Christianity has played an important – one might even say formative – role in the later development of democracy.

As such, if it’s difficult to argue that Christianity did not give rise to democracy in simple, one-dimensional fashion, then I think it’s equally implausible to say that it had nothing, or little, to do with this most cherished of Western inventions. For starters, given that democracy evolved in precisely those nation-states that were, for many centuries, soaked in Christian teaching (however corrupted it may have become), it would seem reasonable to posit some kind of connection. More than that, Christian theology has provided some of the deeper philosophical and ideological resources for later democratic thinking: not the democracy of ancient Athens (which preceded New Testament Christianity by some centuries), but of later stages of thought composing the substructure of Western politics. To be sure, uncovering those resources might require some work, so much of it being latent. Rather than forming part of the democratic superstructure (like voting and fixed terms for elected individuals), Christian theology helped form the bedrock of thinking that eventually produced ideas, individuals and institutions explicitly committed to many of those features we normally associate with modern democracy. Instead of being responsible for any one element of democratic politics, it is truer to say that Christianity fostered a culture conducive to this kind of political arrangement in the first place. It was, in other words, the seedbed in which democracy, watered and nurtured by further streams of thought, came to flourish.

The complicated, circuitous (though nonetheless strong) relationship between Christianity and democracy is one caveat that I wish to include. There are, however, others. Whilst I will point out the multifarious connections between Christian theology and democratic thought – such that the roots of democracy could even be said to have been nourished by religious doctrine – I am also aware that the church has had something of a chequered history when it comes to the evolution of Western political systems. Far from being a champion of liberty and equality, it has seemingly been a purveyor of tyranny, oppression and rigid hierarchy. Rather than furthering the cause of democracy, it has often seemed to have a retarding effect on its advance. I am certainly aware of the criticism, and wish to take it seriously (often made by rabid atheists, who seek to divest Western culture of anything resembling positive Judeo-Christian content). I also want to take seriously the beneficial influences of other intellectual and cultural traditions upon the evolution of democracy. I do not intend to claim that Christian thought and theology is uniquely responsible for the modern Western system of democratic government that many of us enjoy today. Such an assertion is not only supremely arrogant; it is also patently false. That said, only wilful blindness – a consequence, perhaps, of the searing glare of ideology – could lead one to deny the bequests Christianity has made to Western political thought.

As yet another qualification, I must also acknowledge the ambiguous relationship between ideas and history generally. This phenomenon presents itself in the form of two main contentions, both of which are germane. First, one might argue that I am implicitly trading in abstractions of both Christianity and democracy, without attending to their diverse historical incarnations. Some might even argue that such “Platonic forms” do not exist at all; only the relative, and relatively messy, examples of what we have come to call Christianity and democracy have any purchase on reality, forever eluding universal definition. Second, I could be accused of failing to appreciate the complex historical circumstances surrounding the development of democracy. One might suggest that what follows ignores the myriad forces related to democracy’s evolution, as well as the vicissitudes of concrete historical experience, which blunts the otherwise marked influence of pure ideas. To be sure, I am cognizant of falling into the trap of some sort of idealism, without according due respect to history. And although my reflections will concentrate largely on the ideational structure of the connection between Christianity and democratic thought (whilst occasionally referring to the way it has manifested itself historically), I am sensitive to the ever-present influence of the often piecemeal, inchoate nature of so much of history. I certainly do not want to neglect the historical-cultural matrix, especially as it pertains to the development of Christian dogma and its relationship with democracy.

At the same time, however, I am no historicist, and I think that ideas – complexes of coherent intellectual concepts, formed with intentionality and deliberation – can, and indeed do, participate in the trajectory of the historical process. Similarly, it is possible, even advisable, to try and define Christianity and democracy (even at the risk of illegitimate abstraction). Unless we’re prepared to give up the pursuit and propagation of truth through language, then we must accept that words have limited fields of meaning. For present purposes, then, when I speak of Christianity, I am thinking of a religious and theological tradition that accords primacy to the Bible as a divinely-ordained witness to God’s ultimate revelation in Jesus Christ, and which holds to the major creeds of the early church. Furthermore – and despite its own diverse traditions – I think democracy (at least in its modern, Western, liberal guises) could be minimally defined as an institutional, political and philosophical concept that variously combines the following features: the rule of law; accountable government as an expression of the people’s will; legal and political equality; and the separation of political power, such that no one branch of government has unmitigated pre-eminence. Words, like suitcases, can carry a great deal, and these ones – “Christianity” and “democracy” – carry at least the kinds of contents I’ve just described.

Some Focal Images

So much for clearing the decks. How might the influence of Christianity upon democratic politics be detected today – if not in explicit statements of ideals, but in the marrow of Western political culture? I propose to examine this question through several focal images, each of which crystallizes the deep connections between Christian theology and dogma, on the one hand, and crucial features of later democracy on the other. Those images can be described as follows: the transcendence of law; servant leadership; human dignity in excelsis; a new way of social ordering; and the plurality of the triune God. Though distinct, they are, as we’ll see, deeply interrelated. In this first Part, I shall concentrate on the rule of law.

Part One: The Transcendence of Law 

Christianity has often appeared to have an ambivalent relationship to the concept of law, especially as it manifests itself in the various legal codes of the OT. In certain parts of popular evangelicalism, valuing the law means flirting with legalism; it was just such an attitude that saw the Jews reject Jesus (so it is argued), spurning the grace of God in an effort to merit their own salvation. Other streams of Christianity recognize, as the first Christians did, the ongoing relevance of the law. Thus, for example, the Gospel tradition preserved Jesus’ own declaration that he came, not to abolish the law, but to “fulfil it” (Matthew 5:17). The complexities involved in interpreting this statement are legion; but at the very least, it suggests the enduring importance of law, even in the new dispensation inaugurated through the ministry of Christ. Further, a letter like James indicates that the primacy of the law, however its appropriation may have changed as a result of the advent of Christ, was something to which the early church adhered. This is clearly seen in 2:1-13, where James’ condemnation of partiality in the church is grounded in an extended application of the OT law of neighbour love (Leviticus 19:18; cf. Jas 2:8ff). This and other admonitions reflect James’ broader dependence on Torah, particularly in the realm of social concern (cf. 1:25, 27; 2:8-12). How the notion of “ongoing relevance” is parsed remains a thorny issue, to be sure; but the theological and legal traditions the early church inherited when it appropriated the Hebrew Scriptures has ensured the enduring transmission of those texts – as well as the basic moral and political precepts they embody – throughout much of Western history. The influence of a Jewish – and subsequently Christian – understanding of law upon democratic thought extends, not merely to individual strictures or ordinances, but to the entire conceptual architecture of biblical legal thinking, and its importance to the ordering of a political community.

The transcendence of law is a necessary (though by no means sufficient) condition for the flourishing of a democratic political culture. It is certainly crucial to the establishment of a democratic framework that safeguards individual rights and substantiates equality of all citizens within a particular polity. Law’s supremacy ensures that people’s activities are judged and regulated, not according to the arbitrary whims of a capricious ruler or state system, but within the context of a transcendent and impersonal legal framework to which all are subject. It affords people predictability in their dealings with each other and with the state, where disputes and disagreements may be resolved with relative transparency. Meanwhile, it constrains behaviour (including governmental behaviour), which might otherwise undermine the basic aspirations of a polity that seeks to guarantee political equality and the integrity of its citizenry. Thus, the codification of an abstract body of law is absolutely essential to the ordered functioning of a community, holding together its diverse parts in relative harmony. As Hayek said, “Only the existence of common rules makes the peaceful existence of individuals possible”. Modern theories of constitutionalism owe something to this principle: a king or government that operates according to a prior legal structure (i.e., a constitution) is one whose behaviour is regulated. The rule of law tames governmental and state institutions, and the community itself is ultimately “constituted”, not by any one individual, or even by a cabal of individuals, but by an originating framework which stands supreme (even where it has been formulated by such a cabal).

Without the sovereignty of law, one of two states may prevail: either anarchy or tyranny, both of which are inimical to democracy. First, there is anarchy. The absence of a supreme legal code, siting above the diverse (and sometimes discordant) desires and goals of which a putative community is composed, can lead to the breakdown of civil order. Such a framework helps restrain and harmonise potentially conflictual interests that individuals seek to pursue. Remove it, and those interests are left to mutate, even metastasize, in a chaotic and wanton fashion. In such an environment, where law’s restraining power is non-existent, the powerful are able to dominate and exploit the weak, thereby destroying any aspirations towards political equality or individual liberty. All this may be news to devotees of anarchism, who naively believe that humanity’s fundamental goodness is such that the broad architecture of law is unnecessary, or even oppressive. But even a cursory glance at those states that have experienced the dissolution of law and order provides some evidence that apart from law, individual and communal existence rapidly descends into a Hobbesian state of nature. Here, the frail are preyed upon by the strong, and an enervating suspicion of one’s fellows (beyond, perhaps, family or kin) abounds.

Second, tyranny. A despotic ruler is well poised to use his power to establish himself as the embodiment, the very repository, of all legal wisdom. Law no longer possesses a transcendent reality apart from any one individual; on this view, it, too, it is subject to the impulses of a single ruling power (whether this is an individual or a clique of individuals). Again, empirical and historical evidence – not to mention a basic conceptual understanding of different political forms – suggests that despotic rule is antithetical to a democratic culture that affords each individual a degree of security, personal liberty, or the privilege of political participation. In those polities that are dominated by a single, tyrannical leader, the law is reduced to a plaything – the existence of which cannot be separated from those who claim to manifest it in themselves. Whereas anarchy represents the radical pluralization of law, such that everyone is a law unto themselves, tyranny substitutes that for a comprehensive legal monism, where all power to establish the boundaries of lawful (and unlawful) behaviour is focused in the person or body that rules. He, or they, sit atop whatever legal strictures have been enacted, untrammelled by any kind of institutional constraints. In either case, the suppression or contravention of individual rights, and the denial of democratic co-operation, is likely to swiftly occur.

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Of course, the normative character of law cannot, by itself, quarantine democratic politics from Charybdis of anarchy and the Scylla of tyranny. Its mere presence is not enough to guarantee either adherence or harmony; here, an anarchic state of affairs is a constant threat. And, as noted, law itself is susceptible to use as a weapon by tyrants and dictators, and can become an unwitting agent in the attempt to legitimise the suppression of a person or people. Nevertheless, the rule of law – that is, the law as king – is of fundamental importance, providing a necessary pre-condition for successful navigation between these twin dangers. And it is this idea of law’s supremacy, to which every member of the community is accountable, that finds expression in the establishment and development of biblical law. There, the law maintained a pristine transcendence over every individual, and, as the Pentateuch has it, helped to constitute the very community of God. Both its identity and its status as a coherent entity were (in principle) safeguarded and substantiated by the law’s normative character. Here, we see the ancient stirrings that subsequently found expression in later constitutionalism. It was the law that bound the community together – an integrated body of people, drawn together through mutual deference to common rule. One only needs to glance at, say, Deuteronomy 4:1-14, to recognize the function of the law’s paramountcy over, beneath and within the redeemed community.

Importantly, even the king of Israel himself, who was otherwise well-positioned to test the law’s sovereignty, was subject to it. Deuteronomy 17:14-20, which functions as a kind of charter for kingship, is crucial to understanding this point. There, the people of Israel are told that if they desire to have a king rule over them upon entering the land, that man is to be selected by Yahweh (vv.14-15). After prohibiting any future regnant from accumulating too much wealth – lest he rise too far above his compatriots (vv.16-17) – Moses (assuming for the moment Mosaic authorship) commands complete royal devotion to the law he is propounding (vv.18-20). A prospective king is to assiduously study the law, so that he may come to know and obey it. However, what is most important is the assumption lying behind these strictures – namely, that the king does not create the law; he, along with every other Israelite, is to submit to it. The OT scholar Gordon Wenham suggests that this way of conceiving of the role and nature of law within a political community was unique to ancient Israel. In contrast to the nations and kingdoms of Mesopotamia, where the king was the author of law (and, to that extent, the author of ethical reality), an Israelite king was himself a subject – subject to the overarching covenantal legal code instituted by Yahweh, whose character formed the basis for its own, enduring transcendence. In theory at least, biblical law was meant to regulate and restrain behaviour – even the behaviour of those residing in the upper echelons of power – precisely because they themselves depended for their authority on that which was both more fundamental and utterly supreme. Indeed, we witness the unfolding of the principle of law’s supremacy over the Israelite community – not to mention the king himself – in later OT history. Even a cursory glance at the books of Kings and Chronicles reveals that the various kings were evaluated, not by military prowess or territorial expansion, but by fidelity to a legal code that was greater than themselves. The king lived under the law, to the same extent as the sojourner or servant. The repeated cycles of royal sin and divine judgment testify to the outworking of the idea that not even one so powerful as the ruler of Israel was above it.

In a slightly different – though no less relevant – vein, we see the umbilical link between the absence of law, and the consequent trampling of the rights and dignity of the vulnerable, in the book of Judges. There, in chapters 17-20, we find the repeated refrain, “In those days Israel had no king [everyone did as he saw fit]” (17:6; 18:1; 19:1; 21:25; I will examine this a little more below). At the time, Israel was operating in a liminal phase of its existence: constituted as a people, identified by its possession of the law, it was not yet a nation in a formal, institutionalised sense. One of the major themes of Judges concerns Israel’s attempts to struggle against both external enemies and internal discord. By the time we reach the end of the book – that is, chapters 17-20 – we are confronted with a poisonous mix of broad-based anarchy and the intimate, personalised tyranny, flowing from a general lawlessness. The twin dangers that inevitably result from the absence of law are on display in this section of Judges, to which the thematic refrain, quoted above, emphatically points. The author laments the fact that the nation had frayed, and the sovereignty of law had been abandoned – such that every man was a law unto himself.

The dark consequences of this chaos are plain, above all, in chapter 19. That passage – which frames the subsequent events by lamenting that Israel had no king (v.1) – sees a travelling Levite giving his concubine over to a group of rapacious men (19:22-26, esp. v.25). In response to her rape (and consequent death), he callously takes her body, dismembers her, and sends the pieces to the various tribes of Israel (vv.29-30). The meaning here is two-fold. First, the concubine’s broken body symbolized the fractured people of Israel, divided and without the unifying presence of the covenantal law. The author appears to be making a point, amongst other things, about the devilishly anarchic implications of the people’s abandonment of the law. However, the author makes a second, and subtler, point, critiquing both the prevailing situation and the Levite’s ruthless actions as a reflection of that situation. Indeed, there is no hint that whoever wrote Judges approved of what the Levite did. Quite the opposite, in fact. He implicitly condemns the priestly man’s actions as just one more example of what happens when anarchy, instead of God and his law, reigns (cf. v.1). Earlier, I spoke about the twin dangers of chaos and tyranny in the absence of a coherent body of law to restrain behaviour and harmonise the diverse members of a community. Here, they both find sad expression in the violent negation of one woman’s dignity and life.

But it should be noted that the author of Judges was not simply longing for a king who would put his despotic stamp upon the nation – thereby swapping the extreme pluralization and privatization of law for totalitarian legal monism. His sad refrain was not merely for the imposition of regal order, by whatever means, but for a righteous royal who would mediate God’s just and wise order to the community by devoting himself to obedience to the divine law. Even for the book of Judges, the law is pre-eminent, and a king is only desirable to the extent that he, too, submits to it. The writer stands against lawlessness and disorder, on the one hand, and the mere presence of a “lawless” ruler, on the other. Underlying his view is a firm belief in the normativity of law – an expression, he might say, of the transcendent God’s character – as something to which all are bound, and upon which the reality of an ordered society is possible.

Law’s sovereignty is incomplete, however, without the accompanying commitment to equal application to all citizens. Actually, it would seem that they go hand-in-hand, for the natural concomitant to an abstract body of legally binding rules is the narrowness of interpretation and application: only those features of a person’s behaviour that are relevant to the rule in question are to be taken into account. Thus, if someone is accused of murder (for example), it is simply irrelevant whether they have white skin or black, or whether they worship Jesus Christ or Vishnu. All that matters is whether they are guilty of breaking the identified rule. For all intents and purposes, legal subjects are abstracted subjects, and it is this abstraction – part of the same foundation upon which modern democracies are constructed – that also helps to protect individuals from arbitrary exercises of power, making predictable the consequences of one’s behaviour (whether for good or for ill).

How much this commitment owes to biblical thought is a question I can’t definitively answer. I merely observe that this, too, is an idea that finds some expression, however it is inflected, in OT legal codes. That is why, for instance, judges are commanded to determine cases with impartiality (Deut 16:18-20). Numbers 15:15-16, 30-31 also provides the raw ingredients for a fully-fledged conception of legal abstraction. There, we find Yahweh laying down instructions for offerings at the Temple. He declares that both native-born Israelites and foreigners are bound by the same rules, and in the same way. Notwithstanding other laws that reflect an imbalance between ethnic Israelites and non-Hebrew foreigners (for instance, some of the laws around slavery; foreigners appear to be a different category of people from aliens, in any case), it would seem here that ethnic and national differences are irrelevant to the duties prescribed for individuals living within the community of Israel. Equality before the law – and with that, equal application of the law – can be seen in verse 15: both types of people, Israelite and non-Israelite, will be the “same before the Lord”. It was precisely because of the law’s overarching role in regulating, prescribing and proscribing behaviour that there was no variance between an Israelite and a member of another tribe living within the confines of the covenant community. Anything less – say, if laws relating to Sabbath-keeping could be applied differently, depending on whether or not the individual was a Hebrew – would have meant the raw primacy of ethnic identity as the foundation of the community (as opposed to the law). Whilst OT law is not framed in so abstract or conceptual a manner, one may discern a relationship between Torah-inspired accounts of law, and later Western legal principles regarding equal application of rules and the fundamental parity of legal subjects.

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OT law operated in a political environment sharply different from what prevails in Western societies today. Ancient Israel was no proto-democracy; it was a theocracy, with the king acting as God’s appointed representative, upholding and exemplifying his law. Further, we must recognize other streams of legal thought, particularly those of Ancient Rome, which have subsequently influenced Western democratic thinking. Nonetheless, we ought to consider the power of the general importance of the biblical concept of law-as-sovereign as it has been transmitted through the various stages of Western political evolution. As but one example, we may cite the framers of the Magna Carta, that great landmark in the development of the Western political system. In an interview with Mercatornet.com, freelance researcher, Thomas Andrew, commented that the charter codified the concept of the rule of law, such that even the king himself was subject to it. But he also suggested that this emphasis had strong theological roots. Medieval thinkers drew on the reflections of St. Augustine, whose writings on law and justice found their way into a conception of human authority – even royal authority – that was subordinated to law. This principle was eventually enshrined in the Magna Carta, reflecting the influence of both Christian theologizing and ecclesiastical influence. But of course, the views of Augustine and others were shaped by, and soaked in, the concerns and emphases of Scripture. The esteemed place that law occupies in the OT was woven into the very structures of Western legal and political thinking as a result.

Even if it has shed its explicitly religious trappings (e.g., its identity as the expression of God’s character and will for his people), the concept of the law’s supremacy, when transposed into a secular key, provides the basis for an ordered community, in which no one individual – and no one body – may act with unrestrained power. To be sure, one may question the ultimate basis upon which a secular society constructs a transcendent legal framework in the absence of an ethical standard that is itself grounded in God. However, the notion of law’s normative status certainly bears the hallmarks of an OT (and subsequently Christian) understanding of the concept. Despite having moved away from an explicitly Christian view of the world, secular Western societies have nonetheless retained and developed the idea that law exercises sovereign influence over all people, and that an ordered political community requires adherence to a legal code beyond the reach of even the most powerful institution or individual (with the caveat that it may be changed only in accordance with a pre-existing body of law, and only in accordance with a strict set of rules that limit legislative caprice). Indeed, the normativity of law has engrained itself into the political culture and the collective consciousness of the West, providing a necessary plank in a foundation which undergirds institutional restraint and respect for individual dignity.