Law, Downstream From Culture

A trial in France recently sent off cultural waves with strong moral and cultural implications. A group of Roma (also known as gypsies) was accused of selling child brides and training them to steal. One of the intriguing aspects of the case was the legal defense offered on behalf of the Roma: they simply were operating on long standing cultural traditions- going back to the Middle Ages- that operated outside of western norms.

Even more indicative of our Western culture’s lack of moral hegemony was the tack of the prosecution. They demonstrated over and over again that the Roma don’t operate outside many standards of western culture. They have great wealth. Some of these prosecuted individuals do have opulent dwellings. And many of them use cell phones.

Apparently neither side of the case came to the seemingly obvious conclusion that stealing is simply wrong.

France isn’t quite the United States, and we don’t have an explicit “gypsy problem.” We do, however, see the same lack of moral hegemony. Our universal standards, our norms, and our very basic cultural behavior are increasingly disintegrating. Simple appeals to right and wrong, such as the immoral behavior of stealing, hold little cache in solving disputes. With such fraying at the cultural edges, we seek less and less to solve problems with others on the basis of universally held dogmas. We seek the redress of our grievances in court.

Law, then, at many levels becomes the functionary of power and not of truth. Consider the recent appeals of the Supreme Court to resolve disputes on millennia-old definitions of marriage. Why must the Supreme Court resolve this dispute? Doesn’t the sheer weight of hundreds of long-dead cultures provide an overwhelming majority opinion already? Even if we set aside the conclusions reached by the Supreme Court for the time being, we have to acknowledge that our culture had to seek the Supreme Court’s finality to resolve the dispute because we lack a cultural unity on the question of marriage. What was inconceivable even 20 years ago now is the majority opinion on marriage, and the Supreme Court validated such an opinion, even though it isn’t universally held. Power, then, lies with a slight majority, exercised and promoted now by the highest court in the land.

In light of such a reality, we must acknowledge that in significant ways the American legal system responds more to cultural norms than creates it. This truth shocks the system of political change that many Christians over the past 30 years have sought. James Davison Hunter levels a devastating critique against both Christian Left and Right in his book, To Change the World. If we are seeking a deeper vision of law, one in keeping with universal moral norms, the ballot box might not be the best place to seek it, even if it’s a role that the Christian cannot abandon altogether.

So, what to do with the legal profession? In a culture without universal moral norms, the legal profession becomes the place to exercise power. I have many lawyer friends (perhaps some will think this a dubious distinction) who basically confirm that legal positivism is the primary source of ethics taught in most law schools today. Basically, the view of legal positivism is that the norms of society and the rule of law are what the courts and legislative bodies say they are. Why is such a view troubling? Because there is no higher view of truth or justice that lawmakers or interpreters are subject to. And if law is not ultimately in the service of justice, then we have little hope of cultural flourishing or the promotion of an objective good.

This means that the profession of law is not just a precarious trek for constitutional law scholars. All manner of law suffers from the appeal to seek power in the courtroom. How else do we explain the insufferable amount of television court shows? A lack of universal moral norms is a problem for any lawyer who practices civil law, real estate law, family law, oil and gas law, and on and on ad nauseum. How can a lawyer be a Christian in a place where the finished work of Christ proclaims that in weakness there is strength? How can a lawyer be a Christian in a profession where he must seek power, as opposed to renouncing it? God, after all, comes in the form of a human baby to Bethlehem: what greater renunciation of power is there?