21 June 2005, 09:52
IV. Christian ethics and secular law
IV. 1. God is perfection, therefore the world created by Him is perfect and harmonious. Life is observance of the divine laws, as God Himself is life endless and abundant. Through the original fall, evil and sin entered the world. At the same time, fallen man has retained the freedom to choose the right way with God's help. In this effort, the observance of God-given commandments asserts life. But deviation from them leads inevitably to damage and death, as it is noting else but deviation from God, hence, from being and life, which can be only in Him: 'See, I have set thee this day life and good, and death and evil; in that I command thee this day to love the Lord thy God, to walk in his ways, and to keep his commandments, and his statutes and his judgements, that thou mayest live: But if thine heart turn away, so that thou wilt not hear, but shalt be drawn away: ye shall surely perish, and ye shall not prolong your days upon the land' (Deut. 30:15-18). In the earthly order of things, sin and retribution do not often follow each other immediately but may be intervened by many years and even generations: 'For I the Lord thy God an a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generations of them that hate me, and shewing mercy unto thousands of them that love me and keep my commandments' (Deut. 5:9-10). This distance between crime and punishment keeps man free, on the one hand, and compels the reasonable and pious people to study the divine commandment with a special attention, on the other, in order to learn to distinguish between right and wrong, lawful and unlawful.
Among the oldest monuments of the written language are numerous collections of homilies and statutes. Undoubtedly, they go back to the even earlier, pre-alphabet, existence of humanity, since 'the work of the law' is written by God in human hearts (Rom. 2:15). Law has been there in the human society from times immemorial. The first rules were given to man as far back as the paradise time (Gen. 2:16-17). After the fall, which is violation by man of the divine law, law becomes a boundary and trespassing against it threatens the destruction of both the human personality and human community.
IV. 2. The law is called to manifest the one divine law of the universe in social and political realms. At the same time, any legal system developed by the human community, being as it is a fruit of historical development, carries a seal of limitation and imperfection. Law is a special realm, different from the related ethical realm, as it does not qualify the inner conditions of the human heart, since God alone is its Reader.
Yet it is human behaviour and actions that is the subject of the legal regulation, which is the essence of legislation. The law also provides for coercive measures for making people obey it. The legislative sanctions to restore the trampled law and order make law a reliable clamp of society unless, as it has often happened in history, the whole system of the enforced law capsizes. However, as no human community can exist without law, a new legislative system always emerges in place of the destroyed law and order.
The law contains a certain minimum of moral standards compulsory for all members of society. The secular law has as its task not to turn the world lying in evil into the Kingdom of God, but to prevent it from turning into hell. The fundamental principle of law is: 'do not do to others what you would not want to be done to yourself'. If a person has committed a sinful action against another, the damage inflicted on the integrity of the divine law and order can be made up by the suffering of the offender or pardon whereby the moral consequences of a sinful action is assumed by the person (ruler, spiritual father, community, etc.) who issues pardon. Suffering heals the soul affected by sin, while the voluntary suffering of the innocent for the sins of a criminal represents the highest form of redemption the ultimate of which is the sacrifice of the Lord Jesus Who took upon Himself the sin of the world (Jn 1:29).
IV. 3. The understanding of where the 'wounding edge' separating one person from another lies was different in various societies and in various periods. The more religious a human community the greater its awareness of the unity and integrity of the world. People in a religiously integral society are viewed in two perspectives, both as unique personalities, who either stand or fall before God (Rom. 14:4) and who cannot be judged by other people, and as members of the one public body in which the illness of one member leads to the sickness and even death of the whole body. In the latter case, every person can and must be judged by the whole community, since the actions of one make an impact on many. The seeking of the spirit of peace by one righteous man, according to St. Seraphim of Sarov, leads to the salvation of thousands around him, while a sin committed by one culprit may entail the death of many.
This attitude to sinful and criminal manifestations is firmly grounded in Holy Scriptures and the Tradition of the Church. 'By the blessing of the upright the city is exalted; but it is overthrown by the mouth of the wicked' (Prov. 11:11). St. Basil the Great taught the people of Caesarea in Cappadocia: 'Because of a few, disasters come upon a whole people, and because of the evil deeds of one, many have to taste their fruits. Ahab committed sacrilege, and all the chariots were defeated; already Zimri committed whoredom with a Midianitish woman, and punished was Israel'. St. Cyprian of Moscow writes about the same: 'Do not you know that people's sin fall upon the prince, and the prince's sin fall upon the people?'
That is why old statute books also regulated those aspects of life which are outside regulation by today's law. For instance, by the legal provisions of the Pentateuch, adultery was punished by death (Lev. 20:10), whereas today it is not regarded as a legal offence in most states. If the vision of the world in its integrity is lost, the field of legal regulation becomes reduced to the cases of the visible damage done, and the boundaries of the latter become more narrow with the erosion of public morality and secularisation of consciousness. For instance, today's law treats sorcery, which was a grave crime in ancient communities, as a imaginary action not to be punished.
The fallen nature of man that has distorted his awareness does not allow him to accept the divine law in all its fullness. In various periods, people have been aware of only part of this law. This is evident from the Gospel's talk of the Savoir about divorce. Moses permitted divorce 'because of the hardness of our hearts', but it was not so 'from the beginning' because in marriage a man becomes 'one flesh' with his wife, making marriage indissoluble (Mt. 19:3-5).
However, in the cases where the human law completely rejects the absolute divine norm, replacing it by an opposite one, it ceases to be law and becomes lawlessness, in whatever legal garments it may dress itself. For instance, the Decalogue clearly states: 'Honour thy father and thy mother' (Ex. 20:12). Any secular norm that contradicts this commandment indicts not its offender but the legislator himself. In other words, the human law has never contained the divine law in its fullness, but in order to remain law it is obliged to conform to the God-established principles, rather then to erode them.
IV. 4. Historically, both religious and secular laws originate from the same source. Moreover, for a long time they only represented two sides of one legal field. This idea of law is also characteristic of the Old Testament.
The Lord Jesus Christ, in calling those faithful to Him to the Kingdom that is not of this world, separated (Lk. 12:51-52) the Church as His body from the world lying in evil. In Christianity, the internal law of the Church is free from the spiritually-fallen state of the world and is even opposed to it (Mt. 5:21-47). This opposition, however, is not the violation but the fulfilment of the law of the divine Truth in its fullness, which humanity repudiated in the fall. Comparing the Old Testament norms with that of the Gospel, the Lord in His Sermon on the Mount calls people to seek the full identity of life with the absolute divine law, that is to deification: 'Be ye therefore perfect, even as your Father which is in heaven is perfect' (Mt. 5:48).
IV. 5. In the Church founded by the Lord Jesus, there is special law based on the Divine Revelation. It is the canon law. While other religious statutes are given to humanity as fallen away from God and can be essentially part of the civil law, the Christian law is fundamentally supra-social. It cannot be part of the civil law, though in Christian societies it can make a favourable influence on it as its moral foundation.
The Christian state normally used the modified law of the pagan times (for instance, the Roman law in the Codex of Justinian), since it included the norms consonant with the divine truth. However, any attempt to develop the civil, criminal and public law based on the Gospel alone cannot be efficient, for without the full churching of life, that is without complete victory over sin, the law of the Church cannot become the law of the world. This victory is possible, however, only in the eschatological perspective.
However, the experience of the Christianization of the legal system inherited from the pagan Rome under Emperor Justinian proved to be quite successful. It was so not in the least because the legislator, in developing the Codex, was fully aware of the dividing life between the order of this world, marked with the fall and sinful erosion even in the Christian era, and the statutes of the grace-giving body of Christ, the Church, even its members and the citizens of a Christian state are the same people. The Codex of Justinian determined for centuries the Byzantine legal system and made a considerable impact on the development of law in Russia and in some Western European countries both in the middle ages and the modern time.
IV. 6. The idea of the inalienable rights of the individual has become one of the dominating principles in the contemporary sense of justice. The idea of these rights is based on the biblical teaching on man as the image and likeness of God, as an ontologically free creature. 'Examine what is around you', writes St. Anthony of Egypt, 'and see that princes and masters have power over your body alone, not over your soul, and always keep this in mind. Why when they order, say, to kill or to do something else, inappropriate, unrighteous and harmful for the soul, it is not proper to obey them, even though they torture your body. God has created the soul free and self-ruled, and it is free to do as it wills, good or bad'.
The Christian socio-public ethics demanded that a certain autonomous sphere should be reserved for man, in which his conscience might remain the 'autocratic' master, for it is the free will that determines ultimately the salvation or death, the way to Christ or the way away from Christ. The right to believe, to live, to have family is what protects the inherent foundations of human freedom from the arbitrary rule of outer forces. These internal rights are complimented with and ensured by other, external ones, such as the right to free movement, information, property, to its possession and disposition.
God keeps man free, never forcing his will. Contrary to it, Satan seeks to possess the human will, to enslave it. If the law conforms to the divine truth revealed by the Lord Jesus Christ, then it also stands guard over human freedom: 'Where the Spirit is, there is liberty' (2 Cor. 3:17). Therefore, it guards the inalienable rights of the personality. Those traditions, however, which do not know of the principle of the freedom of Christ, often seek to subject the human consciousness to the external will of a ruler or a collective.
IV. 7. As secularism developed, the lofty principles of inalienable human rights turned into a notion of the rights of the individual outside his relations with God. In this process, the freedom of the personality transformed into the protection of self-will (as long as it is not detrimental to individuals) and into the demand that the state should guarantee a certain material living standard for the individual and family. In the contemporary systematic understanding of civil human rights, man is treated not as the image of God, but as a self-sufficient and self-sufficing subject. Outside God, however, there is only the fallen man, who is rather far from being the ideal of perfection aspired to by Christians and revealed in Christ ('Ecce homo!'). For the Christian sense of justice, the idea of human freedom and rights is bound up with the idea of service. The Christian needs rights so that in exercising them he may first of all fulfil in the best possible way his lofty calling to be 'the likeness of God', as well as his duty before God and the Church, before other people, family, state, nation and other human communities.
As a result of the secularisation in modern times, the theory of natural law prevailed, which in its constructions did not take into account the fallen humanity. This theory, however, did not lose links with Christian tradition, for it proceeded from the conviction that the notions of good and evil were inherent in humanity. Therefore, law grew up from life itself, based on conscience ('the categorical moral imperative'). This theory was dominant in the European society up to the 19th century. Its practical consequences included, firstly, the principle of the historical continuity of the legal domain (law cannot be abolished as conscience cannot be abolished; it can only be improved and adjusted also legally to new situations and cases). Secondly, it gave rise to the principle of precedent (in conformity with conscience and the legal tradition, the court can pass a right sentence, that is a sentence consonant to the Divine Truth).
In the contemporary understanding of law, views apologetic towards the positive law in force have prevailed. Law is viewed as a human invention, a construction that is built by society to benefit itself and to fulfil tasks defined by itself. Hence, any changes to the law, if approved by society, are considered valid. The written law has no absolute legal basis whatsoever. This view gives validity to the revolution that rejects the laws of 'the old world' and to the full rejection of the moral norm if this rejection is approved by society. Thus, if in contemporary society abortion is not believed to be murder, it is not such legally either. Apologists of the positive law believe that society can introduce very diverse standards, on the one hand, and consider any law in force to be legitimate by virtue of its very existence, on the other.
IV. 8. The law and order of a particular country is a special version of the common worldview law characteristic of a given nation. The national law expresses the fundamental principles of relations between persons, between power and society and between institutions in accordance with the peculiarities of a given nation moving in history. The national law is imperfect, for imperfect and sinful is any nation. However, it establishes a framework for the people's life if it translates God's absolute truths into and adjusts them to the concrete historical and national existence.
Thus, law and order in Russia gradually developed and grew ever more complex for a millennium as society itself developed and grew in its complexity. The conventional Slavic law, which had preserved the ancient common Aryan forms until the 10th, due to Christianization incorporated some elements of the Byzantine legislation. It did it through the Codex of Justinian tracing back to the classical Roman law and the church canon law, which at that time was fused with the civil law. From the 17th century, the Russia law drew intensively on the standards and legal logic of the Western European law, doing it in a fairly organic way, since the Roman legal tradition, basic for Europe, was borrowed by Russia from Constantinople together with Christianity as far back as the 10th-11the centuries. The Old Russian Russkaya pravda (Russian truth), princes' statutes and charters, legal documents and books, the Council of the Hundred Chapters and the 1949 Conciliar code, Petrine articles and decrees, legal actions by Catherine the Great and Alexander I, reforms of Alexander II and the 1906 Basic Law - all represented one legal fabric of the creative people's organism. Some standards became out of date, while other come replace them. Some legal novations failed as inconsonant with the order of people's life and ceased to be applied. The flow of the river of Russian national law whose sources were lost in distant history was stopped by the year 1917. On November 22 of that year, the Council of People's Commissars, in conformity with the spirit of the positive law, repealed the whole Russian legislation. After the collapse of the Soviet statehood in the early 90s, the legal system in the CIS and Baltic countries is still in the making. At its foundation are the ideas dominating in the contemporary secularised sense of justice.
IV. 9. The Church of Christ, preserving her own autonomous law based on the holy canons and keeping within the church life proper, can exist in the framework of very diverse legal systems which she treats with respect. The Church invariably calls upon her flock to be law-abiding citizens of their earthly homeland. At the same time, she has always underlined the unshakeable limits to which her faithful should obey the law.
In everything that concerns the exclusively earthly order of things, the Orthodox Christian is obliged to obey the law, regardless of how far it is imperfect and unfortunate. However, when compliance with legal requirements threatens his eternal salvation and involves an apostasy or commitment of another doubtless sin before God and his neighbour, the Christian is called to perform the feat of confession for the sake of God's truth and the salvation of his soul for eternal life. He must speak out lawfully against an indisputable violation committed by society or state against the statutes and commandments of God. If this lawful action is impossible or ineffective, he must take up the position of civil disobedience (see, III. 5).