Feb 20, 2015

PPsA on Authorities Without Authority, Gods without Divinity

Pseudo Not Stringfellow
This ersatz excerpt from Pseudo-Pseudo-Augustine's* dialectical political theology,  De Auctoritatibus Sine Auctoritate, sive Deis Sine Divinitate [Concerning Authorities Without Authority, or Gods Without Divinity], IV.iii, here interpreting Psalms 2, traces some arguments very similar to Milton's in the last post:
... With reason, therefore, King David's second psalm describes all human rule [imperia mortales], as in some way, lifted against God, and shows all human rulers [reges humani] as united in a form of opposition to Him. David sings: 
The kings of the earth have stood up, and the leaders have joined together as one     against the Lord and against his Christ, saying 'let us shatter their chains and cast their yoke away from us.' [Vul.] 
When we hear this of the kings and leaders of the earth, we cannot understand that all rulers, at all moments, individually intend to exercise their rule against God and Christ. We would need only to consider Saul or David himself and the moments when each wanted to attain faithfulness! Moreover, most rulers intend and accomplish some limited good, though with a mixture of motivation in which the importance of serving themselves, their vanity, pride or ambition predominates. Still, they often suppress their real venal motivations from their mind... . 
David also cannot be read to claim that all rulers have made conscious covenant together as an openly disclosed alliance against God; rulers mainly labor continually in trying to destroy or dominate one another, often purporting to punish one another's impiety. The Psalm does not mean these things. Rather, as we see in our own day, most rulers simply do not think of God or Christ directly at all... . 
But, this direct disregard of God and Christ -- the filling of the ruler's mind with self-regard, striving against others for dominance, pursuing justice only as a means to these goals -- is the universal rebellion. The open conspiracy against God and Christ is the mutual agreement of the rulers of the earth to exclude God from their thoughts and discourse and planning and law. The rebellion of the rulers against God consists in the general tendency of human rule to ignore Christ, not in their direct intentions or expressed feeling of animus against Him. Thus, even rulers who are making war against one another can be said to be cooperating with one another in warring against God because their war purporting to be between themselves contains an ultimate expression of indifference about God... . 
Now, with the true song of David ringing in our ears, who could claim that these rebels against God have an essential authority over men, that is, that they possess authority by their own nature or right? But equally, who could deny that they exercise authority, and that not from themselves but from God? For it is God who calls them  kings and rulers and elsewhere even "gods." [Psalms 82] They are authorities, though they lack authority, just as they are "gods" though they lack divinity... .
All this reminds me of Psalms 33, proclaiming God's antagonism with the nations: "The LORD foils the plans of the nations; he thwarts the purposes of the peoples." Ps 33:10. God's antagonism does not arise simply because some nations are better or worse, but because the nations choose kings beside Him. 1 Sam. 8:7. They prefer their gods to God, and they treat their authorities as if they had authority. Christians, by contrast, do not obey the king for his own sake, but for the sake of the Lord. 1 Peter 2:13. We obey and serve, but only insofar as necessary to avoid contending with God. Romans 13:2. We pray and work for the peace of Babylon, not for its own sake or for its own merit, but so that they may heed the command of God and so that the people of God may prosper within it.

The correct reading of the natural-law tradition is to draw off from politics and law any immanent justification, to credit all the law's legitimacy to its inner obedience to God. When we emphasize the derivation of natural law from God's eternal providence, then we accomplish this. But if we insist that law and politics have a sufficient basis in the created order cut off from creation's relation to God, then we misuse natural law to proclaim a real, non-derivative and immanent authority in man.

* N.B. Minge, Patrologia Latina XL, mccxxxiii-mccclviii, provides conclusive reasons to reject either Augustine or Pseudo-Augustine's authorship of this excerpt. I believe that the attribution to Pseudo-Pseudo-Augustine, however, is reliable.

Feb 7, 2015

Mouw: Can a City with Nice Roads be a Mother of Harlots and Abominations of the Earth?

There We Sat Down and Wept When We Remembered Zion
Here, the great Richard Mouw relates his realization that governments do not arise from the Fall. Along the way, perhaps choosing the wrong foe, he raises a Kuyperian cudgel against William Stringfellow:
During the 1970s, I [Mouw] attended a gathering that focused on “radical discipleship,” and one of the speakers kept describing the United States as given over to “the way of death.” His primary example, of course, was the war being waged in Vietnam—this group was critical of that military operation. He formulated his case theologically by citing William Stringfellow’s argument, quite popular at the time, that the United States was the present-day manifestation of the biblical portrayal of fallen Babylon.
Maybe Stringfellow says this somewhere, but my sense is that Stringfellow never meant to argue that the likeness of a modern nation to Babylon was the result of a specific set of policies (e.g., not being pacifistic or collaterally killing too many civilians in war) but of any policies arising from various national idolatries endemic to modern nation states. A national healthcare system or sewer system could be as Babylonian as militarism if it was an expression of a state's self-deification, an encouragement to the people to believe that the state was the proper object of faith.

As I understand it, Stringfellow's motivation was that, especially with respect to institutions in well functioning societies, we tend to underestimate the Fall. After the Fall, he thought, all human institutions, like individual human persons, are under the power of death. No less than individuals, social institutions are under the rule of death, even if they are doing things that are "life" giving, like feeding themselves and keeping themselves physically safe.

The fact that one individual is "more ethical" than another, in the Pharisaical sense, does not show he is free from the rule of death. A confident reliance on one's own ethical superiority, in the place of faith in God, is in fact a dangerous spiritual condition.

Similarly, the fact that one nation is larger, richer, safer, stronger or more populous than another does not show that it is not Babylonian. Indeed, since those richer, bigger, better functioning nations tend to encourage their subjects to regard the State rather than God as the source of peace and grace, they are very likely to be given over to the root sin of idolatry and, hence, its proximate consequence, death.

Can You Spot the Traffic Lights in Las Vegas?
Anyway, Mouw says he realized the U.S. was not Babylon because of traffic signals, stop signs, speed limits, crossing guards:
As I listened, I was struck by the gap between this un-nuanced rhetorical depiction of the American political system as given over to death dealing and my own experience that week of accompanying our son on his way to school. ... I was especially aware, as a parent concerned for the safety of our son, of the places where there were traffic lights and stop signs. ... I passed another school where a uniformed crossing guard was taking children by the hand to lead them across the street. These things that I had taken special notice of as a concerned parent—traffic signals, stop signs, speed limits, crossing guards—struck me as life-promoting services provided by the government. ... In the light of those services, the passionate denunciation of “the American system” as given over to “a way of death” was evidence of a theological myopia. 
For those too readily convinced by this argument, here's a link to a website selling pamphlets of Nazi-era crossing guards and traffic signals. To conclude that Nazi Germany was not given over to death because of traffic guards and signals seems a stretch. As you can see above, Babylon had good roads but this doesn't mean it wasn't Babylonian. Mussolini had the trains running on time, but he was still a totalitarian. This kind of thinking reminds me of humanistic arguments that men cannot be comprehensively fallen, totally depraved, because they do so many good deeds, produce such great science, make such pretty pictures.

Of course, Mouw is not guilty of such a coarse error. He concludes:
My uneasiness with that kind of [Stringfellowian] perspective was grounded in what I am presenting here as a basic Kuyperian impulse: there is something about government, when it is functioning properly, that fits nicely into God’s basic creating design for human life.
So Mouw doesn't end by concluding that traffic signals show that America is not Babylonian, though I think his rhetoric shades that way. Properly, he concludes only that God's pre-Fall design for government is proportionate (i.e. "fits nicely") with "something" in governments when they are "functioning properly."

The problem with taking this argument too far is plain. "Something" in each thing currently in existence "fits nicely" with God's prelapsarian design, otherwise God would not have brought it into being and sustained it. But we are not thereby entitled to identify certain functions of contemporary governments as free from sin, atavistic leftovers unspoiled from Eden. This would be like our saying that because Adam and Eve ate, drank and were naked before the Fall, therefore, contemporary eating, drinking and nudity is free from sin.

On Mouw's account, Kuyper's account of government as grounded in prelapsarian life was properly cautiously expressed:
Kuyper was not content, however, to restrict the role of government in God’s plan simply to a post-fall function. He insisted that what we experience as political authority under fallen conditions is a manifestation of something already implicit in the original creation design. Kuyper argued in his Stone Lecture on politics that even if the fall had not occurred there would have developed a need for government. Political authority in an unfilled world would not have taken the form of coercive nation-states; rather there would have emerged “one organic world-empire, with God as its King; exactly what is prophesied for the future which awaits us, when all sin shall have disappeared.” Here government is not fundamentally a remedial response to human perversity, but a natural provision for regulating—“ordering”—the complexity of created cultural life.
On Mouw's account, Kuyper only concludes that pre-Fall and post-Fall governments share one function: ordering and regulating life. Even if there had been no Fall, someone would have had to decide which side of the road to drive on. But this does not mean that prelapsarian government and postlapsarian governments are the same, even when they perform the same function: ordering. The critical difference, which Kuyper notes, is that we are governed by "coercive nation-states" whereas without the Fall, there would have been "one organic world-empire, with God as its King."

The difference between God providing order and regulation and any man doing so is as deep and wide as can be. The problem is related to Stringfellow's concern. God has proper political authority. It is right for Him to rule. Man lacks natural, inherent political authority and when any man claims natural priority over his brothers, he tends to idolize himself. Here's how Milton's angel Michael relates the rise of Nimrod, first king of Babylon, in Paradise Lost, 12.25 ff.:
                                         ... one shall rise
Of proud ambitious heart, who not content
With fair equality, fraternal state,
Will arrogate dominion undeserved
Over his brethren, and quite dispossess
Concord and law of nature from the earth;
Hunting (and men not beast shall be his game)
With war and hostile snare such as refuse
Subjection to his empire tyrannous:
A mighty hunter thence he shall be styled
Before the Lord: that is, in despite of heaven
 Adam replies, 12.63 ff.:
Oh execrable son so to aspire
Above his brethren, to himself assuming
Authority usurped, from God not given:
He gave us only over beast, fish, fowl
Dominion absolute; that right we hold
By his donation; but man over men
He made not lord; such title to himself
Reserving, human left from human free.
But this usurper his encroachment proud
Stays not on man; to God his tower intends
Siege and defiance: wretched man!...
If by natural law, in the older sense of the Roman jurists, no man has political right over man, then even if the ordering functions of prelapsarian and postlapsarian governments are the same, the action of political rule is essentially different. When God orders man, it is an action of right. When man orders man, even if he does so in exactly the way God would have, it is an action violating natural law because man has no fundamental right of dominion over man.

Focusing on the issue of man ruling over man in the place of God, Milton has Michael conclude that government arises from God's postlapsarian judgment on man, 12.78 ff.:
Since thy original lapse, true liberty
is lost, which always with right reason dwells
Twinned, and from her hath no dividual being:
Reason in man obscured, or not obeyed
Immediately inordinate desires
And upstart passions catch the government
From reason and to servitude reduce
Man till then free. Therefore since he permits
Within himself unworthy powers to reign
Over free reason, God in judgment just
Subjects him from without to violent lords;
Who oft as undeservedly enthral
His outward freedom: tyranny must be,
Though to the tyrant thereby no excuse.
I think reading Milton with Mouw improves both.

Sep 18, 2014

"Public Policy" and Non-Enforcement of Contracts

For the first decade or so of law teaching, my classes worked through the Baby M case to demonstrate the sort of circumstances that would justify non-enforcement of a contract on the ground of public policy. For those who don't remember, the battle in Baby M was over the enforceability of a contractual obligation to terminate parental rights. The gestational surrogate (and biological mother) who gave birth to "baby M" refused to surrender the newborn to the sperm-donor father and asserted her parental rights, both in contravention of the contract she had signed.

The New Jersey Supreme Court held the contract was unenforceable as against the state's public policy of terminating parental rights only when in the best interests of the child. In other words, the biological mother could not contract away the rights entailed by motherhood.

I no longer teach this case in part because "Baby M," Melissa Stern, is now an adult who has graduated from law school. More to the point, the case is out of date because no longer does the gestational surrogate contribute her egg to the child in her womb. Instead, the child is conceived in vitro outside anyone's womb and only later implanted in the one who bears the child through the course of pregnancy and delivery. We now read and discuss two cases on the enforceability of such contracts, one concluding "no problem" and the other reaching the contrary result. We also look at Virginia's statute that requires judicial pre-approval for such contracts.

All of this is a long introduction to "You Are Obligated to Terminate This Pregnancy Immediately: The Contractual Obligations of a Surrogate to Abort Her Pregnancy (download here). Cribbing form the abstract:
When Crystal Kelley learned that a couple wanted to hire her as their surrogate, she was ecstatic. Raising two children of her own, Crystal yearned for the opportunity to help another couple achieve their dream to become parents. And while Crystal’s motives were certainly altruistic in part, she was a single mother with a high school degree, doing her best to provide for her own family. The $22,000 fee that Crystal would be paid would help not just with medical expenses, but also with rent and birthday gifts for her own girls. It seemed to be a perfect situation for everyone, especially when one of the two embryos that the intended parents already had frozen was successfully implanted and Crystal became pregnant.
About halfway through her pregnancy, Crystal and the intended parents learned some heartbreaking news about the fetus. The fetus appeared to have a cleft palate, a heart abnormality, and potentially Down syndrome. While Crystal was devastated by the news, the response of the intended parents was simply shocking: the intended parents mandated that the child be aborted — and soon. When Crystal refused, even after being offered $10,000 for her to have the abortion, Crystal and her lawyer returned to the surrogacy contract that the parties had signed months before, which included a clause discussing the termination of the pregnancy. The surrogacy agreement, which was signed in Connecticut where surrogacy contracts are legally enforceable, stated in part that Crystal would abort "in case of severe fetus abnormality." Crystal adamantly believed that the child should be given a chance to survive, even if it meant a childhood of countless surgeries and likely lifelong disabilities, so when her options were to abort the fetus, to surrender the child to the intended parents — who made clear that they intended to abandon the child to the foster system immediately upon her birth — or to flee to a state that did not legally recognize surrogacy agreements, Crystal took her two children and moved to Michigan. A few weeks later, Baby S was born and adopted by a loving family.
The shocking nature of the facts of this particular case and its contract, whose "termination term" is standard, recall to mind the limits of contract law. There would be no objection to enforcement of a termination term in a purely libertarian world, at least one in which there was no philosophical anthropology. I urge folks to download and read Brittney Kern's complete article.

A thick notion of human nature provides warrant for limits on the tool of contract. For my thoughts about that "nature" feel free to read Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

Sep 13, 2014

More Intolerance From Up North

A whopping 137 out of 1,600 members of the New Brunswick Law Society (the equivalent of an American state bar association) voted to ask their bar council to reverse its decision to permit graduates of Trinity Western University's law school (scheduled to open its doors to students in the fall of 2016) to practice law in New Brunswick. Sadly, however, 137 were a majority of those who voted. Read the details here.

Yet another step along the road to "totalitarian libertarianism." (For earlier comments go here, here, and here.)

Prayers for strength, perseverance, and justice for the leadership and future students of TWU are in order.