4 The Humanist Religion 53
And now it is all gone!
In most law schools today almost no one studies William Blackstone unless he or she is taking a course in the history of law. We live in a secularized society and in secularized, sociological law. By sociological law we mean law that has no fixed base but law in which a group of people decides what is sociologically good for society at the given moment; and what they arbitrarily decide becomes law. Oliver Wendell Holmes (1841-1935) made totally clear that this was his position.' Frederick Moore Vinson (1890-1953), former Chief Justice of the United States Supreme Court, said, "Nothing is more certain in modern society than the principle that there are no absolutes."2 Those who hold this position themselves call it sociological law.
As the new sociological law has moved away from the original base of the Creator giving the "inalienable rights," etc., it has been natural that this sociological law has then also moved away from the Constitution. William Bentley Ball,' in his paper entitled "Religious Liberty: The Constitutional Frontier," says:
I propose that secularism militates against religious liberty, and indeed against personal freedoms generally, for two reasons: first, the familiar fact that secularism does not recognize the existence of the "higher law"; second, because, that being so, secularism tends toward decisions based on the pragmatic public policy of the moment and inevitably tends to resist the submitting of those policies to the "higher" criteria of a constitution.
This moving away from the Constitution is not only by court rulings, for example the First Amendment rulings, which are the very reversal of the original purpose of the First Amendment (see pp. 34-35), but in other ways as well. Quoting again from the same paper by William Bentley Ball:
Our problem consists also, as perhaps this paper has well enough indicated, of more general constitutional concepts. Let me refer to but two: the unconstitutional delegation of legislative power and ultra vires. The first is where the legislature hands over its powers to agents through the conferral of regulatory power unaccompanied by strict standards. The second is where the agents make up powers on their own-assume powers not given them by the legislature. Under the first, the government of laws largely disap pears and the government of men largely replaces it. Under the second, agents' personal "homemade" law replaces the law of the elected representatives of the people.
Naturally, this shift from the Judeo-Christian basis for law and the shift away from the restraints of the Constitution automatically militates against religious liberty. Mr. Ball closes his paper:
Fundamentally, in relation to personal liberty, the Constitution was aimed at restraint of the State. Today, in case after case relating to religious liberty, we encounter the bizarre presumption that it is the other way around; that the State is justified in whatever action, and that religion bears a great burden of proof to overcome that presumption.
It is our job, as Christian lawyers, to destroy that presumption at every turn.
As lawyers discuss the changes in law in the United States, often they speak of the influence of the laws passed in relationship to the Mormons and to the laws involved in the reentrance of the southern states into the national government after the Civil War. These indeed must be considered. But they were not the reason for the drastic change in law in our country. The reason was the takeover by the totally other world view which would never have given the form and freedom in government we have had in Northern Europe (including the United States). That is the central factor in the change.
It is parallel to the difference between modern sci ence beginning with Copernicus and Galileo and the materialistic science which took over in the last century. Materialistic thought would never have produced modern science. Modern science was produced on the Christian base. That is, because an intelligent Creator had created the universe we can in some measure understand the universe and there is, therefore, a reason for observation and experimentation to be optimistically pursued.
Then there was a shift into materialistic science based on a philosophic change to the materialistic concept of final reality. This shift was based on no addition to the facts known. It was a choice, in faith, to see things that way.4 No clearer expression of this could be given than Carl Sagan's arrogant statement on public television-made without any scientific proof for the statement-to 140 million viewers: "The cosmos is all that is or ever was or ever will be." He opened the series, Cosmos, with thig essentially creedal declaration and went on to build every subsequent conclusion upon it.
There is exactly the same parallel in law. The materialistic-energy, chance concept of final reality never would have produced the form and freedom in government we have in this country and in other Reformation countries. But now it has arbitrarily and arrogantly supplanted the historic Judeo-Christian consensus that provided the base for form and freedom in government. The Judeo-Christian consensus gave greater freedoms than the world has ever known, but it also contained the freedoms so that they did not pound society to pieces. The materialistic concept of reality would not have produced the form-freedom balance, and now that it has taken over it cannot maintain the balance. It has destroyed it.
Will Durant and his wife Ariel together wrote The Story of Civilization. The Durants received the 1976 Humanist Pioneer Award. In The Humanist magazine of February 1977, Will Durant summed up the humanist problem with regard to personal ethics and social order: "Moreover, we shall find it no easy task to mold a natural ethic strong enough to maintain moral restraint and social order without the support of supernatural consolations, hopes, and fears."
Poor Will Durant! It is not just difficult, it is impossible. He should have remembered the quotation he and Ariel Durant gave from the agnostic Renan in their book The Lessons of History. According to the Durants, Renan said in 1866: "If Rationalism wishes to govern the world without regard to the religious needs of the soul, the experience of the French Revolution is there to teach us the consequences of such a blunder. i5 And the Durants themselves say in the same context: "There is no significant example in history, before our time, of a society successfully maintaining moral life without the aid of religion."6
Along with the decline of the Judeo-Christian consensus we have come to a new definition and connota tion of "pluralism." Until recently it meant that the Christianity flowing from the Reformation is not now as dominant in the country and in society as it was in the early days of the nation. After about 1848 the great influx of immigrants to the United States meant a sharp increase in viewpoints not shaped by Reformation Christianity. This, of course, is the situation which exists today. Thus as we stand for religious freedom today, we need to realize that this must include a general religious freedom from the control of the state for all religion. It will not mean just freedom for those who are Christians. It is then up to Christians to show that Christianity is the Truth of total reality in the open marketplace of freedom.
This greater mixture in the United States, however, is now used as an excuse for the new meaning and connotation of pluralism. It now is used to mean that all types of situations are spread out before us, and that it really is up to each individual to grab one or the other on the way past, according to the whim of personal preference. What you take is only a matter of personal choice, with one choice as valid as another. Pluralism has come to mean that everything is acceptable. This new concept of pluralism suddenly is everywhere. There is no right or wrong; it is just a matter of your personal preference. On a recent Sixty Minutes program on television, for example, the questions of euthanasia of the old and the growing of marijuana as California's largest paying crop were presented this way. One choice is as valid as another. It is just a matter of personal preference. This new definition and connotation of pluralism is presented in many forms, not only in personal ethics, but in society's ethics and in the choices concerning law.
Now I have a question. In these shifts that have come in law, where were the Christian lawyers during the crucial shift from forty years ago to just a few years ago? These shifts have all come, or have mostly come, in the last eighty years, and the great, titanic shifts have come in the last forty years. Within our lifetime the great shifts in law have taken place. Now that this has happened we can say, surely the Christian lawyers should have seen the change taking place and stood on the wall and blown the trumpets loud and clear. A nonlawyer like myself has a right to feel somewhat let down because the Christian lawyers did not blow the trumpets clearly between, let us say, 1940 and 1970.
When I wrote How Should We Then Live? from 1974 to 1976 I worked out of a knowledge of secular philosophy. I moved from the results in secular philosophy, to the results in liberal theology, to the results in the arts, and then I turned to the courts, and especially the Supreme Court. I read Oliver Wendell Holmes and others, and I must say, I was totally appalled by what I read. It was an exact parallel to what I had already known so well from my years of study in philosophy, theology, and the other disciplines.
In the book and film series How Should We Then Live? I used the Supreme Court abortion case as the clearest illustration of arbitrary sociological law. But it was only the clearest illustration. The law is shot through with this kind of ruling. It is similar to choosing Fletcher's situational ethics and pointing to it as the clearest illustration of how our society now functions with no fixed ethics. This is only the clearest illustration, because in many ways our society functions on unfixed, situational ethics.
The abortion case in law is exactly the same. It is only the clearest case. Law in this country has become situational law, using the term Fletcher used for his ethics. That is, a small group of people decide arbitrarily what, from their viewpoint, is for the good of society at that precise moment and they make it law, binding the whole society by their personal arbitrary decisions.
But of course! What would we expect? These things are the natural, inevitable results of the materialenergy, humanistic concept of the final basic reality. From the material-energy, chance concept of final reality, final reality is, and must be by its nature, silent as to values, principles, or any basis for law. There is no way to ascertain "the ought" from "the is."' Not only should we have known what this would have produced, but on the basis of this viewpoint of reality, we should have recognized that there are no other conclusions that this view could produce. It is a natural result of really believing that the basic reality of all things is merely material-energy, shaped into its present form by impersonal chance.
No, we must say that the Christians in the legal profession did not ring the bell, and we are indeed very, very far down the road toward a totally humanistic culture. At this moment we are in a humanistic culture, but we are happily not in a totally humanistic culture. But what we must realize is that the drift has been all in this direction. If it is not turned around we will move very rapidly into a totally humanistic culture.
The law, and especially the courts, is the vehicle to force this total humanistic way of thinking upon the entire population. This is what has happened. The abortion law is a perfect example. The Supreme Court abortion ruling invalidated abortion laws in all fifty states, even though it seems clear that in 1973 the majority of Americans were against abortion. It did not matter. The Supreme Court arbitrarily ruled that abortion was legal, and overnight they overthrew the state laws and forced onto American thinking not only that abortion was legal, but that it was ethical. They, as an elite, thus forced their will on the majority, even though their ruling was arbitrary both legally and medically. Thus law and the courts became the vehicle for forcing a totally secular concept on the population.
But I would say for the comfort of the Christian lawyers, it was not only the lawyers that did not blow the trumpet. Certainly the Bible-believing theologians were not very good at blowing trumpets either. In 1893 Dr. Charles A. Briggs had been put out of the Presbyterian ministry for teaching liberal theology. I would repeat that liberal theology is only humanism in theological terms. Then after Dr. Briggs was put out of the Presbyterian ministry there largely followed a tremendously great silence. Until the twenties and the thirties, few, if any, among the Bible-believing theologians blew a loud horn. By that time it was too late as most of the old line denominations had come under the dominance of liberal theology at the two power centers of the bureaucracies and the seminaries. By then voices were raised. But with rare exceptions, by that time it was too late. From then on, the liberal theologians would increasingly side with the secular humanists in matters of life style and the rulings of sociological law.
And those Bible-believing theologians who did see the theological danger seemed totally blind to what was happening in law and in the total culture. Thus the theologians did no better in seeing the shift from one world view to a totally different world view. Nor did Christian educators do any better either. The failed responsibility covers a wide swath. Christian educators, Christian theologians, Christian lawyersnone of them blew loud trumpets until we were a long, long way down the road toward a humanistically based culture.
But, while this may spread the problem of responsibility around, that does not help us today-except to realize that if we are going to do better we must stop being experts in only seeing these things in bits and pieces. We have to understand that it is one total entity opposed to the other total entity. It concerns truth in regard to final and total reality-not just religious reality, but total reality. And our view of final reality-whether it is material-energy, shaped by impersonal chance, or the living God and Creator-will determine our position on every crucial issue we face today. It will determine our views on the value and dignity of people, the base for the kind of life the individual and society lives, the direction law will take, and whether there will be freedom or some form of authoritarian dominance.