A recent promotional e-mail from Jay Sekulow’s American Center for Law and Justice informs us that “a Justice Souter replacement [on the U. S. Supreme Court] will more than likely maintain a strict view of church-state separation, will apply international precedence to the U.S. Constitution, and will be strongly in favor of abortion rights.” This is no doubt an accurate assessment, but it is interesting to observe that among the future evils sure to accompany a liberal judicial appointment Sekulow includes the indictment we have italicized: the importation of international (i.e., non-American) legal notions into the American legal scene.
This is a common criticism among conservative American, and especially evangelical, jurisprudents. In line with traditional American isolationism, we are told in effect that American law is always best, and is invariably contaminated by notions deriving from other legal systems and especially by international law. “Stay away from the foreigners,” is the byword. “Above all, do not ratify international conventions and treaties.” “Do not allow foreign law to serve as precedents in American legislation or judicial decision-making.” The justification? An assumption that American law is, by definition, more in line with revelational, i.e., biblical, law than is the law of any other nation—and certainly more so than any international law could be.
May we go on record as opposing, root and branch, this philosophy? Not because we live in Europe (or because we love French cuisine more than hominy grits) but on strictly scriptural and factual grounds.
First: no human legal system or constitution is divinely inspired; only Holy Writ offers an inerrant revelation of the Divine Will. The U. S. Constitution, though it reflects the morality of Scripture in many wonderful ways, never mentions Jesus Christ, atonement, redemption, the proper distinction between law and gospel, or the central, salvatory message of the Bible. The reason, of course, is that the leading “Founding Fathers” (Jefferson and Franklin, as egregious examples) were in no sense believing Christians: they represented the Deism of the 18th century, so-called “Enlightenment,” which held that—in the words of Thomas Paine—the “Book of Scripture” needs to be replaced by the “Book of Nature”—both individually and societally. (Cf. Montgomery, The Shaping of America [Minneapolis: Bethany, 1976]; available from www.ciltpp.com).
It follows that there is no guarantee of infallibility for American law or the American legal system. Scriptural principles must stand in judgment over our legal activities in exactly the same way as they do over the legal actions of other countries operating nationally or internationally.
If the reader doubts the fallibility of American legal institutions, consider a couple of legislative examples which I cite in my book, The Law Above the Law (Minneapolis: Bethany, 1975; available from www.ciltpp.com): “One thinks of a Kansas statute that changed the meaning of p from 3.1416 to an even 3, and another that declared: ‘When two trains approach each other at a crossing, they shall both come to a full stop, and neither shall start up until the other has gone.’” Far less humorous and far more damnable is the U. S. Supreme Court decision in Roe v. Wade, which has created abortion-on-demand (cf. Montgomery, Slaughter of the Innocents [Westchester, Il: Crossway, 1981], available from www.ciltpp.com; and “The Rights of Unborn Children, Simon Greenleaf Law Review, Vol. 5 [1985-1986]).
But is it possible that foreign legal systems or international law could ever improve on American law? Certainly—since original sin, being uniformly spread around ever since the Fall of Man, impacts the American legal scene, not just other geographical areas! Here are just a few thought-provoking examples:
In the United Kingdom: The Abortion Act 1967 requires, for an abortion to be legal and not subject to criminal penalties, that two physicians give their approval and that the abortion be performed in an approved hospital or facility (the approval of one physician suffices and the hospital requirement is waived only if the physician “is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman”). This is, to be sure, no bar to abortions in general, but it affords far more protection to the unborn than does American law, where, during the first trimester, abortion on demand is an absolute right of the pregnant woman.
In France: The French Code pénal (1994) includes severe criminal penalties for “non-assistance to a person in danger” Art. 223-6). This means that if I have the capacity to help another in such a situation and do not do so, my non-action is prosecutable criminally. The Anglo-American common law contains no such requirement. In 1964, thirty-eight New Yorkers watched for half an hour as one of their neighbours, Kitty Genovese, was being murdered in the street; no one called the police or did anything to help her; not a single one of these people were prosecuted, or could be prosecuted, for allowing the girl to die. If I watch a child drown and do nothing, I perform no illegal act under American common law. True, if I start to help and then walk away, I can be liable for my neglect; but only where statute has modified the common law am I guilty before the law if I simply do nothing at all. It should be all too obvious that the French law, unlike the Anglo-American common law, far better fulfills the biblical principle of being “my brother’s keeper.”
Also in France: The French Code civil (art. 144), unlike the American Constitution, defines the nature of legal marriage: it is the union of a “male” and a “female.” Thus, a few years ago, the mayor of a Bordeaux suburb was suspended from his duties for performing a “marriage” between two homosexuals (which, of course, under French law was a legal nullity). This is in complete contrast to the American scene, where any State can, if it wishes, legalise same-sex marriage—and States such as New Hampshire have in fact done so.
Moreover, the French Civil Code (art. 205), unlike American law, makes it a criminal offense for a child not to support his mother and father if they are incapable of supporting themselves. This principle is directly justified by the biblical command to honour father and mother. And Art. 909 of the Code civil prohibits physicians from receiving any gifts from terminal patients they are treating: a fine recognition of the potential effects of original sin on the medical profession!
Most important of all, the French Civil Code expressly prohibits judges from “making law” in the American fashion—as the U.S. Supreme Court did in its Roe v. Wade abortion decision. The Code states in no uncertain terms that no French magistrate may “make general, regulatory pronouncements” (art. 5) and that “a judicial decision is authoritative only for the specific matter being decided” (art. 1351). This is to stop judges in their tracks from substituting themselves for the elected members of the legislature—who alone have legitimate law-making power, since they, unlike judges, are the people’s representatives.
Finally, international law (yes, international law!). Article 4 of the American Convention [i.e., Treaty] on Human Rights, ratified by most American nations (but not the U. S., for fear of being dragged before the Inter-American Court of Human Rights because of Roe v. Wade), protects human life “in general, from the moment of conception.” This means that abortion on demand, as practiced in the United States, is contrary to the international law of the Americas. (See Montgomery, Human Rights and Human Dignity [Calgary, Alberta: Canadian Institute, 1995], available from www.ciltpp.com).
But what about the current flap over children’s rights? Is it not true that international conventions give rights to the child which could potentially fly in the face of parental rights (home schooling, etc.) as we understand them? It may well be that the interpretation of international law in the children’s rights area goes too far. But the fundamental principle of chldren’s rights—as concretized in England’s Children Act 1989 through the efforts of former Lord Chancellor (and President of the Lawyers’ Christian Fellowship!) Lord Mackay—has bright-line scriptural justification: “of such little ones,” declared our Lord, “is the Kingdom of heaven.” Untrammeled and unrestricted parental rights over children can result in Jehovah’s Witnesses’ and Christian Scientists’ refusing critical medical treatment to their children and Satanists’ educating their children in the ways of damnation. The issue is not the alleged evils of international law, but the de facto content of biblical standards, which may–or may not—be bettered reflected in one legal system over against another, or in domestic law over against international legislation.
We are hardly arguing that foreign law or international law is always better than U. S. law. But we are arguing that U. S. law is not always better than foreign or international law. The point here is that Holy Scripture should be used as the judge of all human law—not just of law different from our own. Let’s admit it, difficult as it may be for our chauvinistic nature as a nation: we, too, are sinners, and the revelation of our Lord needs to judge us as well as others. And it is always possible that we might learn something from legal systems elsewhere, if we would but exercise the humility to listen.
In September, 2009, your editor co-chaired a session at the 24th World Congress of the Philosophy of Law and Social Philosophy, held in Beijing, China, and delivered a paper which will be included in a later issue of the Global Journal. At another session of the Congress, a remarkable essay was presented by Vaidotas A. Vaièaitis, Associate Professor in the Department of Public Law at Vilnius University, Lithuania. It dealt with “The Concept of Law in Biblical Narrative,” and we are particularly fortunate to have obtained the author’s permission to publish it in this issue, particularly since virtually all of Professor Vaièaitis’s writings are otherwise available only in Lithuanian. We would have introduced into the discussion Genesis 3:15 as protoevangelion, and we worry a bit about seeing the serpent in that chapter as modeling what lawyers and judges would do in subsequent history! But the Professor’s essay covers important ground not treated elsewhere and readers will find it fascinating.
The Global Journal provides, from time to time, the opportunity for student contributions–when they are in every sense on the level of the professional scholarly article. This issue contains two such papers: one dealing with the thought of deconstructionist philosopher Jacques Derrida and the other with the apologetic of “Reformed epistemologist” Alvin Plantinga. The latter paper will identify problems in Plantinga’s thought of a considerably different nature from those discussed from a presuppositionalist standpoint in K. Scott Oliphint’s review essays, “Plantinga on Warrant” and “Epistemology and Christian Belief,” in the Westminster Theological Journal, 57/2 (1995) and 63/1 (2001).
— John Warwick Montgomery
——————————————————————————– At least “fifteen countries, all but one on the European continent, now recognize such a legal duty”—Aleksander W. Rudzinski, “The Duty to Rescue: A Comparative Analysis,” in The Good Samaritan and the Law, ed. James M. Ratcliffe (reprint ed.; Gloucester, MA: Peter Smith, 1981), p. 92.