Herman Bavinck: A Prescient Theologian of Law

Over the course of the past couple of months I've been working my way through "Essays on Religion, Science, and Society" (John Bolt, ed. 2008) by early twentieth-century Dutch theologian Herman Bavinck. Bavinck was a contemporary of the better known Abraham Kuyper and, if truth be known, probably the better theologian. (Although, in Kuyper's defense, Bavinck didn't simultaneously maintain careers as journalist and political leader.)

Bavinck made the following extraordinarily insightful comment in his essay, Ethics and Politics (adapted from a speech delivered in 1915):

In ancient times it was the Sophists who maintained the right of the strongest as the only natural right .... In more recent philosophy, similar ideas were proposed by Machiavelli, Spinoza, and Hobbes .... There is truth in the argument ... that the English spirit is more inclined to sacrifice right to expedience and the German to sacrifice right to might.

It took two World Wars to reorient German political thought away from the Sophists. Sad to say, the English root of expediency has taken root in America where we we find one or the other versions of law and economics as the leading schools of jurisprudence. From the pragmatism of Oliver Wendell Holmes, Jr. to the neo-classical economics of Richard Posner, we see a willingness to sacrifice the right to the efficient.

Maximization of individual welfare is often the effect of the right but it's not the cause.