Laws, as many philosophers have opined, seem to be based on one of two foundations: what is good, and what is right. Very roughly, the distinction can be found in the difference between our own two traditions, of Roman law, and English common law; further back, between the ancient Hebrew ritual law, and the code of Hammurabi. Legal experts will, I hope, forgive the many exceptions to these generalizations, for their usefulness as an analytic tool of thought.
The distinction, even more generally, is between what is commanded of us by the gods or God (or, in later ages, by Humanity, by Nature, by Reason, or by Popular Will) on one hand; and what is required of us in the honest fulfillment of a contract, on the other. The former, which finds its Western origins in ancient Israel (and can be found also in the Confucian legal system of ancient China), sees law as a way to enforce the good—the good as a transcendent endowment of human society that we can partly intuit, especially if we are talented, trained, learned, and morally upright. The latter, which can be identified roughly with the Hammurabic, Solonic, and English Common Law traditions, sees laws as the way to make sure the humble contracts that human beings make with each other have the support they need over and above the natural sanctions built into our families, our markets, and our practical agreed systems of mutual trust. The first emphasizes the good, the second, the right.
The Jewish moral law was, for a time, enforced by the civil authorities of ancient Israel. But with the destruction of the Israelite monarchy in 587 BC, a profound reevaluation of the laws of goodness began, one that is still continuing in the Jewish community. God had evidently found something lacking, the Prophets said, in the literalism and the abuses of a law that afforded so much power to the authorities and left so little to the spontaneous free choice of just individuals. Perhaps the law of goodness was to be kept, not in the hands of armed enforcers, but in the human heart and soul enlightened by the inner voice of Adonai. Thereafter Jews found and punctiliously obeyed the laws of contract they found among other peoples, and kept their free ethical observance of the law of the good to themselves—until the coming of the Jewish State in the twentieth century, when with the revival of secular power the enforceability of orthodoxy once more became an issue.
Roman law, though again it was based upon a transcendent conception of the good, made many concessions to the low demands of commerce. It gave much authority over to local magnates, capos, and dons, so that in exchange for a local return to the patriarchal customs of the tribe, there would be a general concession to the legal supremacy of the Senate (and later, the Emperor). However, such laws did not provide for the increasing numbers of helpless indigents that are spawned by mercantile padrón systems everywhere.
Christianity, which began with a purely internal and voluntary law of the good—love thy neighbor—had inherited the inner ideals of the old Jewish moral law. But it was purged now, Christians believed, of a great burden of its literalism and legalism, and reinforced by the blazing hope of salvation and faith in the redemption. This new religion gradually created for itself through energetic private charity the role of the Empire’s welfare system. Finally the Empire itself simply could not manage without it, and was itself forced, under Constantine, to become the secular enforcer of Christian moral law. As the Roman Empire crumbled, the ideal of a society in which the highest moral precepts, enjoined by God, would be enforced by the State, burned brighter and brighter in the imagination of the world. The result was finally the birth of Islamic law, or the Sharia, in the seventh century AD. Sharia systematized and perfected the law of the good, and embodied one of the most beautiful, and tragically flawed, visions of society that our species had yet achieved.
All societies based on the enforcement of a law of good have tended to stagnate, wither, and eventually die. The Soviet Union is a nice test case: based on noble principles of humane goodness, and enforced by a perfect system of coercion, it lasted exactly one lifetime, full of unbelievable carnage, before cracking and falling into dust. It took the Holy Roman Empire much longer to collapse, because it was still “corrupted” by the contractual pragmatism of the law of the right, and was so inefficient and far-flung that it could not fully enforce its own principles. It took even longer for the Islamic empire of the Ottomans and the Confucian empires of China to sink into decay, but decay they did.
Meanwhile another conception of law was gaining ground: the law of right, rather than of good. The code of Hammurabi had arisen at around 1700 BC to protect the golden goose of Mesopotamian business enterprise. Its practical wisdom would eventually leaven the mysterious prescriptions of Leviticus and the pollution-and-purification ritual of Roman law, and give Roman and Jewish civilization the tools to prosper economically. However, in its homeland Hammurabic law could not control the political ambitions of the Persian Empire, which overreached itself and fell victim at last to the Greeks under Alexander. Hammurabi’s core ideas had been incorporated into the new and improved version, the Greek laws of Solon (see The Classical Greek Reader, edited by Kenneth Atchity and Rosemary McKenna), where the laws of contract turned out not to need an emperor to preserve them, but to be equally enforceable by a democracy, a republic, or a legally constrained monarchy of free men. The principles of Hammurabi took on a new lease of life. But Greek law of right was adapted only to the city, and was fatally vulnerable to strict limits of size: it consumed itself in inter-city conflict, was undermined by elitist Platonic yearnings for a law of the good, and was overwhelmed by the more pragmatic ecumenism of the Roman Republic. With the Greek city-states died the first great attempt at a law of right.
The second great attempt at a society based on a law of right—one that succeeded—arose in the north with the slow maturing of the neolithic rules of the Germanic tribes into a haphazard and populist collection of laws to secure and sanction the boundaries of a marketplace. As it evolved with its juries, its torts, its precedents, its limitations on monarchic power, its appellate review, its defense of the local rights of civil society, and its astonishing capacity for commercial and technological innovation, it came to dominate the world. Finally the Christian Church was forced to acknowledge the secular dominance of the law of right. After the agonizing upheavals of the Reformation, Christianity was able to internalize the law of good, as the Israelites had been forced to do two thousand years earlier, and abandon the inquisitorial attempt to enforce it externally by secular means. Render unto Caesar that which is Caesar’s, and unto God that which is God’s; and now that Caesar made no claim to a law of the good, but wanted only to enforce the right, the way was open for the Enlightenment compromise, in which the Church could have men’s souls if the State could claim men’s bodies and enrich—and tax—men’s pocketbooks.
But the yearning for an enforced law of the good could not be eradicated from men’s souls, and though two great regimes—Britain and America—had largely freed themselves from the law of good, Romanticism and the age of revolutions saw a massive swing toward the ideals of the higher moral law. The result was all the various contenders for the role of secular enforcer of world morality—Jacobinism, Communism, democratic socialism, Nazism, Fascism, and so on. Almost all despised Judaism and Christianity for having abandoned, as they saw it, the role of secular enforcer of goodness. They hated Judaism partly for having, in their view, succeeded so very well economically and culturally without the help of a state at all, and for having been able, they felt, to combine an inner, voluntary, community solidarity with an adroit and profitable expertise in the outer realm of contracts.
In the last few decades, however, in the light of the huge economic and cultural success of the nations that clung to the law of right, there has been a decisive swing back in that direction. Dozens of regimes have adopted free market policies, have at least in theory signed on to Hernando de Soto’s drive to give poor people the legal right to their own property (thus freeing them from moral peonage to a paternalistic government), and have submitted themselves to the contractual discipline of the IMF, the WTO, and the World Bank. That movement has indeed been challenged from many quarters; Islamic and Christian fundamentalism, a resurgence of coercive secular moralism under the paradoxical banner of “social justice”, and the new outbreak of populist nationalism. But perhaps the tipping point is already past.
Let it be said at once that the above is not an attack on the law of good, nor simply a paean to the law of right. The laws of good apply the more strongly to the individual conscience as the secular enforcement of them diminishes. They apply also to the free institutions of civil society (protected from each other, as they must be, by the law of right). The absolute claims of the law of good that make it so dangerous when armed with secular power are precisely what generate the decent conduct without which a good society is impossible.
But goodness, in my view and that of almost all ethicists, is essentially bound up with freedom. We cannot praise a coerced virtue, nor blame an enforced crime. The very core of morality, enjoined by God himself in almost all religions, is the spontaneous assent to divine grace. Paradoxically, to enforce the law of good is to destroy it. Paradoxically, the freedom to do evil—as long as it does not violate the right—is required for the freedom to do good. The law of right is at its center the law of freedom, and is thus, paradoxically again, the only thing for which one can rightly resort to coercion and war. All of this is not to say that the law of good must bottle itself up within the individual and the closed community, and render itself impotent. Instead it means that the law of good must win the world the hard way, by the noncoercive means of persuasion, gifts, and the marketplace—must win the population one by one by one. And it can only do so under the wing of the law of right.
Certainly, the laws of right do not make a perfect world. Adam Smith’s Invisible Hand, the miraculous pricing mechanism praised by von Mises and Hayek, that directs resources to where they are most needed, does indeed work, in the large statistical aggregate, when it is protected by the law of right. But it cannot deal with local tragedies, and it cannot by itself create the social and cultural capital that renders people capable of exercising political freedom in a responsible and objective way—nor does it claim to do so. And it cannot per se engender the marvelous overplus of heroism, sanctity, generosity and scientific and artistic integrity that society needs to advance. But neither can the law of good do so when enforced by coercion, for these things are free gifts and cannot of their nature be coerced.
Thus if religion is a natural human need and right, it is one that only the persuasive and noncoercive measures of civil society can guarantee. A civil society which did not do so would tend, if this analysis is correct, to wither on the vine—or at least it would be overwhelmed and outbred by devout immigrants with the greater cohesion, moral strength, and enthusiasm for life provided by their religion. But it would be more dangerous still for the state to enforce religion.
However, natural law of right might very well argue that America’s current anxiety about public displays of religion (except “secular” statist ones) may be deeply misconceived. To insist on them in government buildings is to try to make Caesar do the work of God and thus to betray a lack of faith in the Lord. To try to ban them in public places is just as dangerous, because it implicitly concedes that public space is government space, and thus violates the Constitution’s pledge that all rights not specifically delegated to government are reserved to the people; it is we the people who own public space, not the government. Just as government should not grow food, but should encourage the growing of food, so government should not take on the provision of religion, but should smile upon it as a natural need of its citizens. Further, the recent attempt to suppress by “political correctness” and speech codes civil society’s habits of giving honor to religion, and even its noncoercive but often very uncomfortable sanctions against irreligious and immoral behavior, may also be a mistake.