Just because a law exists in a statute or precedent does not make it right.
Psalm 94:20 speaks of “wicked rulers… who frame injustice by statute,” making a clear distinction between what is right, and what is law.
Most people resonate with that idea.
ACTU secretary Sally McManus, for example, caused controversy in 2017 when she said workers should be able to break “unjust” laws.
This idea that there is an eternal and unchanging standard of morality which even governments cannot bend is something well entrenched in most people’s minds.
So, too, is the idea that a law which infringes that standard should not exist. Some go further and say it should not be obeyed, either.
The Christian position probably depends on the circumstances of each case, but most would agree: Injustice should not be framed in our statutes.
And yet our academic institutions teach that there is no necessary connection between law and morality; between law as it is, and law as it ought to be.
They also teach that a law is valid so long as it was properly made by an established authority, such as the parliament. Its validity depends on nothing more than that.
These are two of the key principles which inform a theory called “legal positivism.” It is the theory according to which our modern legal system operates.
What some may not know is that the theory was set up in opposition to the way we used to think about law in the West.
The early writers of legal positivism – men like Jeremy Bentham and John Austin – lived in a time when law was conceived of quite differently.
It was a time when thinkers like St Thomas Aquinas wrote that, “an unjust law is no law at all.”
Because a law depends on its connection to divine, eternal, and natural law, for its validity. If some human law is not consistent with God’s law, then it is not valid. It is not valid because laws must reflect morality.
What is moral must be legal, and what is immoral must be illegal. If human laws err outside of those parameters, then they are not “laws” at all, in the true sense of the word.
The West passed through more than a millennium, during which it was believed that law and morality must be connected.
That is no longer the case.
Academics still ponder the nuances between these two ideas, but here’s a fundamental difference: legal positivist thinking has detached law from its true source. God has been cut out of the picture. There is no higher authority upon which law depends, and from whom law must be derived.
Men like Sir William Blackstone (1723 - 1780) – the great English common lawyer – said that laws flowed from the mind of God. He observed that God’s laws include immutable laws of nature, like gravity and motion. They also include those principles according to which men and women are commanded to order their lives.
So, God’s law is moral, it is unchanging, and it gives us the rules of right conduct for our lives.
Consider Sir Edward Coke’s (1552 – 1634) words on the subject:
“For as in nature we see the infinite distinction of things proceed from some unity, as many flowers from one root, many rivers from one fountain, many arteries in the body of man from one heart, many veins from one liver, and many sinews from the brain: so without question the law rises from the divine mind, and this admirable unity and consent in such diversity of things, proceeds only from God the fountain and founder of all good laws and constitutions.”
These men were the towering giants of the legal profession in their time. They represented the mainstream.
They were steeped in faith and scripture. In fact, Blackstone said that the holy scriptures (the Bible) was the most authoritative law of all, because it had been delivered to us by God’s direct revelation.
“Divine providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the divine law, and they are found only in the holy scriptures.”
There is little doubt that these men were in lock-step with the truth.
Scripture could not be clearer that earthly governments are charged with a ministry to promote good and punish evil. It is a ministry of righteousness.
I wrote an entire blog to prove it last week.
But when rulers frame injustice by statute – when their laws become disconnected from the law of God – then we face a problem.
It will no longer be that those who do good are rewarded with the “peaceful and quiet life” of which the Apostle Paul speaks (1 Tim 2:1).
It will no longer be that the wrongdoer faces the “punishment” of “God’s wrath” through the law enforcement powers of the governing authorities (Rom 13:4).
Worryingly, now that law is disconnected from morality – now that the statute books no longer follow God’s authorship – we have unhinged law from its relationship to ultimate righteousness and justice.
Now, as the moral compass reverses, we see the prophecy of Isaiah fulfilled in our times:
Woe to those who call evil good
and good evil,
who put darkness for light
and light for darkness,
who put bitter for sweet
and sweet for bitter! [Isa 5:20]
And that is precisely why Kathy Clubb must win when the High Court hands down its verdict tomorrow.
Because she did a good thing.
Kathy and the rest of ‘The Helpers’ have stood on the sidewalk in East Melbourne making simple offers of help to women for years.
More than 300 babies have been saved from death.
Their mothers have been given the support they needed, often in desperate times.
As Kathy said, “When I am involved in pro-life work, I feel that I can be an apostle of God's mercy. Life advocacy outside the abortion facilities is an act of mercy to the women and the men who go in there...”
And yet she is criminally convicted for handing a piece of paper to a couple who were approaching the facility. Nothing more, and nothing less than that.
She is convicted under laws that were passed in the full knowledge that their only impact would be upon people like The Helpers, and the remarkable work they do.
Many detractors have argued that Kathy broke the law and therefore that’s all that matters.
But nobody really thinks that. There are very real few legal positivists out there, when the chips are down.
The Nuremberg trials grappled with this very issue – just because something is lawful, or even required by law, it does not make it right. It doesn’t even make it excusable.
Slavery was lawful. Slavery is wrong.
Abortion is lawful. Abortion is wrong.
Tomorrow, we find out whether offering a woman help to save her baby is unlawful.
But whatever the result, we know that it is a right thing to do.
At its root, this is a simple issue of right and wrong. And the verdict will tell us a very great deal about the state of the nation in which we live.
Pray for Kathy’s case.