Chapter 13 - A NON-REDUCTIONIST THEORY OF THE STATE

Dr. Roy A. Clouser

13.1 INTRODUCTION

 The law framework view of society sketched in the last chapter may now be brought to bear specifically on political theory, that is, on a theory about the institution of the state. In referring to this institution, we will be dealing mainly with government, but not only government. A government is the ruling body in a state, as parents are the ruling body in a family or the board of directors is the ruling body in a business. So just as there is more to a family than the parents, and more to a business than the board of directors, there is more to a state than its government. The entire institution of the state includes both government and citizens, and may be defined as: a political community of citizens organized under a government.

Speaking of “the state” in this way should not be confused by the fact that some of them are divided into subdivisions which at times are also — confusingly enough — called “states.” The definition just offered should, however, be sufficient to prevent confusing the two meanings since it makes clear that we will be looking at political communities in their entirety and not merely at their subdivisions. So the term “state” as I will be using it will not, therefore, refer merely to subdivisions of a political community such as the individual states which make up the United States of America. As I will use the term, there is one political state in the nation of the United States.

Despite the ever-increasing role that government plays in modern life, many who believe in God can find almost no guidance from their faith for their lives as citizens. They can see, of course, that it teaches them to demand honesty of state officials, and that it admonishes them to obey the law. But these points are more ethical than political, and are so elementary as to supply no guidance whatever for the multitude of difficult issues that believers in God must decide upon when they vote as citizens. Therefore, we shall now look at how the  law framework theory can draw a tighter connection between belief in God and some specifically political issues. I will do this by briefly suggesting how principles supplied by that theory can be applied to the nature of the state and a few selected topics, so as to illustrate their political consequences. This does not mean that I can develop an entire political theory here in one short chapter. As with the two previous chapters, I can only sketch a blueprint for how such a theory could be elaborated. And please keep in mind that the main purpose of the chapter is not even so much that blueprint, as it is to clarify the concepts and principles of the law framework theory by applying them in this way. For that reason, I will be constantly referring back to points already offered in the two previous chapters, and applying them to what the law framework theory has to say about the distinctive nature of the state.

Dooyeweerd once observed, “Perhaps there is no other . . . community whose character has given rise to such a chaotic diversity of opinions in modern social philosophy and social science as the State.”¹ He then went on to note that not only in modern theories, but also in ancient ones as well, the understanding of the nature of the state has always revolved around the issue of the relation of “might” to “right.” In other words, a central theme in political theory has always been the proper relation between the state’s use of power and its duty to formulate an order of public justice. In keeping with the two components of this central issue, the law framework theory will now be applied to the nature of the state in two parts: one concerning the power of the state, and one concerning justice in the state.

13.2             THE NATURE OF THE STATE: WHAT IT IS

Our theory comes to bear on the nature of the state from several angles. First, it gives us a norm for society — the sphere sovereignty principle — which frees us from being restricted to the two main options afforded by traditional theories: (1) the state is at the top of a social hierarchy and so exercises totalitarian control over all other communities and individuals, or (2) the state has totalitarian control of all other communities but not over individuals. Second, our theory leads us to look for a community’s foundational and leading functions which together qualify it so as to give the aspectual characterization of its nature. Third, analyzing the relation between the foundational and leading functions of a state is, on our theory, the way to discover and approximate its type law which is the structural principle for all states. In this way an analysis of the state’s type law can yield an even more detailed concept of its nature.

The basic significance of the concept of a type law, we saw, is that it denies that any type of entity — the state included — is infinitely variable or utterly arbitrary. A type law is our theory’s explanation for why it is impossible for us to change something in whatever way we wish and still have it remain the same type of thing. Since we hold there is a law for every type of thing in creation, we understand the general internal organization of things of a particular type as something permanent about that type. Because type laws are interaspectual, they do this by relating the foundational and leading functions in each thing of that type, as well as all the other properties each possesses. Interpreting the typical connection of a thing’s foundational and leading functions as guaranteed by these laws of creation, enables us to relate properly its internal components, and to identify the functions essential to it and to all other things of the same type.

But here a reminder is in order: we also saw that while the analysis of a type law can aid us in discerning the components that are essential to all the things of a particular type, it does not guarantee that those components will always be related exactly in the way the law shows to be proper. This is because type laws are (partly) normative. Thus particular things can conform to their type law in a greater or lesser degree, and thus be better or worse examples  of their type. This is true of natural things which are qualified by normative aspects, such as plants and animals, as well as of artifacts. In fact, a thing can be severely deformed before the point is reached at which its variance from its type law is so great that it ceases to be that type of thing altogether. So a type law shows us not only the ways something of a certain type cannot fail to be (shows us its essential properties and parts), but also how it should be (the right relation of its essential parts). For example, a marriage must include spouses or there is no marriage, and a family must include parents and children. But the relations between the partners of a marriage or the members of a family may vary so that one marriage or family is very good while another is very bad.   It was in this connection we noticed that type laws therefore supply an order to creatures which is partly necessary and partly normative; part of what they determine cannot be disobeyed while another part can be. They comprise an inter-aspectual order that both sets the limits of possibility for a type of things and provides a standard for what things of that type ought to be.

In the case of the state, then, analyzing its type law will help us to understand both the components which are inevitable to any state and also how they ought to be related. These two must not be confused. That is, not all the relations it shows to be proper are to be understood as describing all actual states past and present, since any actual state may possess these relations in varying degrees.² For example, our finding that the type law for the state requires that it must have some organization of military power will never justify abuses of this power by any actual state. On the contrary, the justitial leading function that is related to military power by the type law is the norm by which the actual exercise of power in any state may be judged.

A.     State Power

 According to the law framework theory of society, the nature of the state-institution is qualified by a correlation between a historical foundational function and a justitial leading function. This means that on the one hand the state is a product of human cultural formation led by historical norms, while on the other hand its activity in society is led by the norm of justice. Its justitial leading function is the same as what I previously called its structural purpose. For the state, this purpose may be circumscribed as the promotion and achievement of public justice for the entire society living in the territory it governs.

Communities which are historically founded are products of cultural formation, but each type of them also exerts its own sort of cultural-historical influence in society, corresponding to its leading function. For example, a business may be an economic force, a school may exert the power of concepts and ideas, while an artistic organization may have aesthetical influence, and a church or mosque may influence the ethical and religious beliefs of a society. The same is true of the state. It, too, exercises an influence or power which corresponds to its leading function. In the case of the state, this is the power of legislation: the state wields the power to enact laws for the accomplishment of its structural purpose, namely, the administration of public justice.

For these reasons, our first approximation of the type law which structurally determines states is that the internal organization of any state must include   at least two subdivisions: organs for the enforcement of justice (military and police), and organs for deciding what is just (legislature and courts).

Moreover, this type law shows something important about the proper way these two subdivisions should relate within a state. The organs of force correspond to the state’s foundational function, while its organs for establishing and interpreting law correspond to its leading function. Therefore in a properly formed state these two parts of the state should not be identical (as they are in a military dictatorship) nor should the military organ control or direct the establishment and interpretation of law. Rather, the organs of justice should control and direct the organs of the power of enforcement.

This is not to suggest that the state is the only community or social relationship in which justice is a concern, or which may make rules or laws. There needs to be justice in all human relationships and communities — for example, within a school, a business, a marriage, or a family. And one of the most important facets of the notion of sovereignty in our expression “sphere sovereignty” is that the various types of communities all have the right to make laws or rules to govern their internal operations. But it is only the government — the ruling body in the state — which has the duty and right to legislate and enforce justice for the public at large. And it is only the state which does so with the right to use the power of force to back up its laws, as distinguished from other forms of cultural power. This right is conferred by its leading function, in the service of which its power becomes the “rightful” use of force. A family, for example, may seek justice by making rules and may enforce them by means of attitudes of approval and disapproval or punishments connected with family privileges. A business may have its own code, as may a school, a union, or a club. And church law has been highly elaborated. These communities may all impose sanctions up to and including dismissing or ostracizing offending members. But only the state may make laws to establish public justice, and impose the sanctions of confiscation of property, loss of liberty, or even death, by means of physically coercive force.³

For this reason, we maintain that an important consequence of recognizing the state’s type law, as it differs from those of other communities, is that the state is only fully actual where it possesses a monopoly of the power of force in the territory it governs. To the extent it does not possess such a monopoly, its ability to carry out its structural purpose is undercut. In that case, whatever community possesses a competing power is actually a competing government within the same body politic. This can happen in times of civil war, or when  a rival political movement arms itself to overthrow the government, or even when an organization usurps the right to achieve its goals by force (such as organized crime). Thus, while a given society may produce magnificent art or have a strong economy without a strong military force or police protection,   it will never have a strong state so long as it cannot enforce its own laws or defend its own territory.

Because the state is partly characterized by the possession of the right to use force, some writers in the Christian tradition — notably St. Augustine⁴ — have suggested that the state has been established in human society only on account of sin. Seeing the state as essentially a restraint on crime, they maintain the state would have no place in a society where people were not sinful. It is thus an “add-on” institution, with no proper role in human affairs as life was originally intended by God. This view has had two important side effects. On the one hand, it has promoted a very narrow view of the proper task of the state, while on the other hand it has fostered a low esteem of the state and politics. This low esteem has, at times, led some thinkers to invoke theological grounds for the opinion that believers in God should withdraw from political activity altogether. The law framework theory must disagree with this as an overly narrow view of the task of the state. As we shall see later in more detail, public justice is a much wider issue than simply the restraint of crime and would be a genuine human need even if there were no sin. In its positive direction the task of the state is to engender peace and harmony among people and among communities. James Skillen has made this same point by comparing the state and the family:

Life in political communities is quite different from family life, to be sure. I do not intend to describe civic life as family life  writ large. Rather, the analogy is this: the purpose for government, the reason for political life is not first of all to punish wrongdoing through police officers, trial lawyers, and the military. Rather, the central meaning of political life is to be found in the positive reality of a public community — the healthy inter-relationships of people through public legal means so that commerce, family life, agriculture, industry, science, art, education, and many other things can be carried on all at the same time, all in the same territory, in a harmonious and just fashion.⁵

 This helps us to see that even if sin were not a factor, even if people lived in genuine love and harmony with one another, the need for a public order   to define justice would still exist. For example, honest differences of opinion could still arise about property or contracts that would need to be settled by impartial experts on justice. No doubt this is why the Jewish and Christian view of the final destiny of God’s people is that they will be citizens of his kingdom which is to be ruled by his Messiah. Thus, according to the book of Isaiah, even in that kingdom in which no one will “hurt or harm in all my holy mountain” (11:9), there will still be the need for a ruler who “shall bring forth justice unto truth” and who will “set judgment in the earth” (42:3, 4). For these reasons, I think the narrow view is a result of focusing too exclusively on the state’s responsibilities in criminal law and national defense to the exclusion of its duties in civil law and international law.

I agree, of course, that the character of state power is completely altered by the fact of sin in human affairs. Were there no sin, people would not have to be compelled to obey laws or court decisions in the ways that are now needed. In this connection it is significant that the book of Isaiah also foresees that in God’s final kingdom people will “beat their swords into plowshares and their spears into pruning hooks” and “nation shall not lift up sword against nation” (2:4). But even in that case there would still be the need to apply principles of justice to changing human affairs.⁶

As to the second side effect, there cannot be any doubt as to whether political activity is proper for one who believes in God. From a theistic point of view, what is improper is for believers to abandon the concern for justice and the operation of the state to unbelievers — just as it would be improper for us to abandon the doing of science or philosophy to those who have another divinity than God. If our belief in God is to underlie and direct the whole of life, as scripture declares it should, then it must direct political theory and practice also. That is why we propose seeking such guidance via the development of  a non-reductionist theory of reality and society, supplemented by the Christian idea of sphere sovereignty. In that way belief in God can supply political guidance which is far more specific than simply opposing tyranny, favoring freedom of religion, and calling for government officials to be honest. It brings to bear a distinctive norm for society (sphere sovereignty), as well as offers a specific view of the nature of the state which both clarifies its duties and sets the proper limits of its use of power by appeal to its structural purpose.

B.     Public Justice

 According to the law framework theory, there is a distinct aspect of human experience which corresponds to justitial properties possessed by persons, actions, institutions, and rules. There is also a norm which comprises the law side of this justitial aspect. As with the laws and norms of other aspects, we hold that the norm of justice is not merely a human invention, but part of the law framework which God has built into creation. This norm holds, therefore, for all people at all times, even though its effective application may require the enactment of different legal statutes or the need for varying legal procedures under different circumstances. This justitial aspect of our experience is initially known in the same intuitive way as all the other aspects: we simply encounter it as part of the meaning of our experience of life. The intuition of its norm is what we usually call our “sense of justice,” and is common among humans everywhere. This norm can be circumscribed as the idea treating others so as to give them their due. This sounds so overly simple that it should be added that the norm has a number of sides to it. It includes such facets as that our treatment of others should be even-handed, should show a proportionality among various dues, and should involve equity in the distribution of dues. The norm is not, therefore, only one of retributive justice (even though retribution includes both reward and punishment), but it mandates distributive and proportional justice as well.

As was the case with the experience of other aspects, the intuitive recognition of justitial truths is not confined to those of theistic faith. Many insights about justice have been discovered by people whose faith is in other divinities, so here again we need not look for an entirely new understanding of justice. We need not ignore all that has been learned of it in the ancient world, embodied in Roman law, or come down through the Anglo-Saxon tradition of common law, for example. Nevertheless, as was also the case with other aspects, the intuitive recognition of justitial truths is inevitably directed and interpreted under the influence of some divinity belief. And as with the other aspects of life, in matters of justice too religious influence is most clearly seen in the theories made about it: its interpretation is influenced by theories of reality, of human nature, of the nature of society, and of the nature of the state. And where these theories presuppose a pagan religious belief, the resulting reductionism skews the intuitive sense of justice in favor of whatever aspects are regarded as divine. The result is that some justitial issues are overemphasized while others are not given proper weight or are missed altogether.

Consider briefly just one example of this. In the United States, the civil law takes for granted that anyone who causes another an injury should compensate the injured party. This is because it seems an obvious requirement of justice that if I cause damage to your person, property, reputation, etc., I should restore your loss. Isn’t it amazing, then, that this requirement of justice which seems so obvious for civil cases goes unrecognized for criminal cases? Why should it be that if I inadvertently cause you personal injury the law requires me to pay for your medical costs and lost work time, but if I deliberately cause you the same injury in order to rob you the law does not require me to compensate you?

What lies behind this justitial blind spot is a false view of the state — a view argued against in the last chapter. It is the view which sees government’s authority as originating in the state (in this case, the will of the majority) rather than in the divinely established law framework. Where the authority of the law is viewed as generated by the state itself, it is easy to see all criminal acts as offenses against the state rather than against the victims of those acts. So the U.S. criminal code assumes the state to be the injured party in criminal actions! This is why the state receives any fines imposed and any property confiscated, and is considered the party to which any term of imprisonment will count as a debt paid. (Hence the expression that a released convict has “paid his debt to society,” where “society” is clearly a synonym for “the state.”) This view serves to guarantee that the real injured party, the victim, will remain uncompensated for losses sustained, which is a clear injustice.⁷ This failing is all the more remarkable in the face of the fact that the law of Moses did better than that over 3,000 years ago, as do many European countries today.

By contrast, the law framework theory sees the state as the bearer, not the creator, of the authority it wields in enforcing justice. The will of the majority decides who shall be the bearers of that authority, but the authority itself derives from the law framework of creation and thus, ultimately, from God. The state is thus seen as the institution charged with being the justitial caretaker of its citizens. So far as the criminal law is concerned it must therefore act on their behalf, not on behalf of its own offended majesty. In this way, we see  its proper task from a wider angle than does the U.S. criminal code. We see it charged not only with apprehending, punishing, and — if possible — rehabilitating criminals, but also with providing justice for the real injured party, the victim.

This is but one instance of many legal and political insights our theory can provide. Because of its Christian theistic view of the nature of authority, its differentiation of social spheres, and its analysis of distinctive types of social communities, the law framework theory helps to guide our sense of justice so that it does not get narrowly focused on one particular segment of the justitial spectrum to the neglect of others. Perhaps this advantage can best be illustrated by comparing the law framework theory to the two most influential views of justice, individualism and collectivism. We have already seen why both these theories are theistically unacceptable. Each is based on the conviction that the source of authority in social communities is to be located within creation: in individuals possessing a natural right to rule, or in an all-encompassing community.

Against the backdrop of the discussion of these reductionist theories begun in the last chapter, I will now contrast each of them to consequences of the law framework theory for the nature of the state-institution. As I do this, I will continue to draw my examples largely from political issues and circumstances in the United States. I’ll start with a quick perusal of collectivism and a few illustrations of its influence. Then I’ll spend more time distinguishing the law framework view from individualism, since so many people think it is the only way to avoid totalitarianism, and because it is far more influential on the U.S. political scene. Another reason for spending more time with it is that many theists, including a lot of Christians, think that because individualism seeks to avoid totalitarianism, it must be a theistic or even Christian point of view.

On the collectivist theory, justitial rights must derive from the public at large as organized by the state, rather than from either individuals or from creation norms. Since the collectivist view sees the good of society as a whole as paramount, its slant on justice tends to slight both individuals and communities other than the state. Even those socialists who want to allow that rights are not created by the state alone, but derive from society at large, are nevertheless forced in the end to identify society with the state. Try as they will, collectivists cannot escape the consequence of their theory that rights are gifts the state bestows on individuals or communities as it sees fit, and which it can retract or change as it sees fit. This means that the state is, in principle, unlimited in its legal competency. The very idea of justice will then be whatever the state wishes it to be. This allows for a totalitarian state which levels aspectual differences among social spheres, and thus violates the sphere sovereignty of every other social community. Inevitably, this theory is then defended by viewing all other communities as parts of the state, which utterly obscures their distinctive type laws and structural purposes.

We have already seen how the law framework theory, while agreeing that the state has a duty toward the whole of society, restricts state power to the administration of public justice (including public safety). Moreover, it finds this restriction not in some supposedly external limit set by the influence of other institutions such as the church or businesses, and enforced by their competing power, but in the very nature of the state itself. It is the state’s own internal structure which sets its proper limits. And it is the understanding of its nature by its own citizens which is the source of these ideas which then need to be embodied in its constitutional law.

We have also noticed that the political history of the U.S. has been strongly influenced not only by the Christian idea I called sphere sovereignty but also by the individualism of thinkers such as Locke. But despite the anti-collectivist thrust of both these influences, there nevertheless remain collectivist tendencies in U.S. policies and laws. Take, for example, the seemingly minor issue of understanding what a driver’s license is. There are many reasons why it is proper for the state to register drivers. One is that the license is a form of taxation which helps pay for public roads and other state expenses connected with road upkeep. Another is that if a driver is reckless or drives while drunk, the state has the duty to protect others by removing such drivers from the road  by revoking their licenses. But more and more, such licenses have come to be viewed as the state’s granting its permission for a person to drive. On this point, a collectivist view of the state steps into the vacuum left by individualism. For since individualism offers only innate natural rights of individuals as the limits to state power, and since it’s not plausible to claim that we are all born with an innate natural right to drive a car, the conclusion is drawn that no one has a right to drive. In that case, there is nothing left to limit the authority of the state, and the conclusion is drawn that the only alternative is to say that driving is a privilege the state grants.⁸ By contrast, the sphere sovereignty shows why many activities should be seen neither as rights per se nor as privileges in relation to the state, but as freedoms.⁹

The same point may be made with respect to marriage licenses. On the law framework view, the state has a legitimate regulative role with respect to marriages so far as public health is concerned. But that aside, a marriage license should never be seen as obtaining the permission of the all-powerful state to marry; rather, it is a way of registering a marriage with the state so it can take its place in the public legal order. A marriage, we say, is essentially an ethical institution, qualified by the norm of love which leads the relations between spouses. As such, a marriage is formed by a mutual pledge of exclusive love between spouses; it is not created by the state any more than it is created by  a religious institution. In sum: a religious institution may bless a marriage, a state may legally recognize a marriage, and a public ceremony or celebration may declare a marriage. But only the partners to a marriage can make one. But the laws in most of the United States take the reverse attitude. So far as they concern marriage or divorce, they assume that both are privileges granted by government.

Another, more subtle indication of a residual collectivism (and its concomitant creeping totalitarianism) in the public mind of the U.S. is displayed by the way certain expressions have come into common use among both politicians and news commentators. The expressions I refer to usually arise in connection with scandals within a government administration, and consist of remarks to the effect that it would be better for everyone if the scandal were put aside so as not to preoccupy the President’s attention. The way of expressing this point, however, is truly frightening. It has been to say that we should now put this scandal aside and let the President “get back to running the country.” Even if such remarks are not intended to be taken literally — not meant to be a job description of the office of president — there is a real danger that speaking  in that way helps to obscure some extremely important and fragile political principles. Among these are the concepts that the state is only one of many social communities in the nation, that the government is only one part of the state (albeit the ruling part), and that the President heads only one branch of the federal government.

These points would, no doubt, be granted by those who use the expression. But the fact that it’s used anyway both evinces and helps to reinforce the dangerous attitude that whenever no individual right can plausibly claim to limit state power, collectivist assumptions may come into play. Thus even this simple expression can help to entrench the belief that the “country” is en toto properly regulated by government, unless some individual personal right limits it.

Moreover, speaking this way also serves to identify the nation with its government in the popular mind. History shows us the danger of this false identification. In many European countries governments for centuries encouraged citizens to view their state as identical with their nation. To the extent that they succeeded, the people of many nations failed to see their government as but one institution among many in their society. As a result they mistook the pride and power of their government for the honor and dignity of their country. Because of this, governments were enabled to pass off their mutual rivalries as matters of national honor, and thus as supposedly good reasons for war. In this way identifying the pride of the state with the national honor was the single greatest cause of European wars for hundreds of years.¹⁰

Let’s now consider the individualist theory that the state is a contract made between sovereign individuals. An influential statement of this view, which has come to exert a worldwide influence, is the one offered in the American Declaration of Independence. There Jefferson asserted that it is self-evident that “all men are created equal, and are endowed by their Creator with certain inalienable rights” and that “it is to secure these rights that governments are instituted among men.” In its historical setting, the American colonists gave these statements as reasons for dismissing George III of England as their rightful king on the ground that he had violated their inalienable rights.¹¹

The notion of people having rights relative to the state was partly inspired by biblical ideas which came to the colonists from the Reformation through English Puritanism.¹² Nevertheless, to phrase the belief in a limited state only in terms of individual rights which people are supposed to have as qualities innate to human nature, is a distortion of the biblical teaching. It leaves out the crucial point that the right to equal justice, which it is incumbent on the state to guarantee to all citizens, is derived from the norm of justice which governs all creation. The wording of the Declaration ignored the law side of the justitial aspect of reality, and instead attempted to locate the limitations upon the state in the subjective nature of every person.¹³ So our objection to the individualist way of putting the matter is precisely that rights are thought of as individual, rather than as universal because normative. By contrast, then, we maintain that a person’s having a right is but one side of justice, while another side consists of the fact that others have obligations to that person. And a third side is that both rights and obligations devolve on people because the norm of justice has been built into creation by God. Otherwise, how could the notion of individuals possessing such rights be defended? Unless there is a norm of justice over all creation, how could we know that all people have rights or that all people have the same rights? The only adequate basis for the idea of rights is that they are the result of our being governed by a universal norm.¹⁴ Moreover, it is because the norm is universal that it governs not only individuals but also communities; not only individuals have rights and obligations, we maintain, but also marriages, families, schools, businesses, churches, hospitals, labor unions, political parties, etc.

Another adverse consequence of locating the basis for rights in the nature of individual persons can be seen in a number of recent writers who have maintained that for people to possess a right, they must at least be capable of understanding it and desiring what it guarantees. Otherwise, they have said, it makes no sense to speak of people as actually possessing that right.¹⁵ Yet others have pointed out that locating the source of rights in individuals requires that their rights develop along with the biological basis of their capabilities.¹⁶ These views are plausible if rights are taken as identical with certain faculties or powers of the human person such as the natural endowments of sight or hearing, for surely no one has the power of sight who cannot see, or the power of hearing who cannot hear. But the result of viewing rights this way is that infants, the severely retarded, the senile, and persons in a coma would therefore have no rights at all. This would mean, in the extreme case, that it would not be murder to kill them. Or again, a normal adult transported from a primitive culture to a modern state might be unable to understand and desire many of the rights which have come to be recognized in most modern societies and so would not possess these rights according to this theory.¹⁷ In all these cases the individualistic interpretation of rights prevents the recognition that the norm of justice is truly universal.

What is worse, these hypothetical consequences are significantly like ones which have actually occurred in United States history. The framers of its Constitution deliberately avoided extending any political rights to American Indians and African Americans at all, and failed to provide full political rights to women. They seriously debated whether racial differences, e.g., were sufficient to deny that those people were to be included among those “endowed by their Creator with certain inalienable rights.” But it is only because they thought of justitial rights as inhering in the subjective nature of individuals, that it made any sense to question whether such differences as gender or race were sufficient to deny anyone political rights. By contrast, the law framework theory sees it as undeniable that all humans possess rights and obligations, since they do not originate in each individual’s personal capabilities, race, or gender. They are guaranteed by a norm of creation which applies to all people simply because they are human.

There are also other difficulties with the individualist way of viewing rights. One is that unless rights are recognized as the results of aspectual norms, we will be unable to identify them. There is no limit to what people may desire, but those desires can hardly be identical with what they have a right to. Another is that the failure to recognize rights as based on norms will make us more prone to miss the fact that there are different aspectual kinds of rights.

This last point is significantly strengthened when we notice how a crucial element of clarity is missing from any discussion of rights whenever we fail to introduce aspectual distinctions. For instance, there needs to be a distinction between moral rights derived from the ethical norm of love and justitial rights derived from the norm of fairness. It is the latter which set the limits to state power and thus produce political civil rights. It is important not to confuse these two senses of “rights,” since they differ in many ways. Unless the different aspectual kinds of norms, obligations, and rights are distinguished, a gross confusion ensues which has induced some writers to argue that an obligation of one kind produces a right of another kind. An example of such a confusion is any argument which concludes that a moral obligation can create a justitial right. Our theory acknowledges that a normative ethical obligation to be loving to others goes hand-in-hand with a corresponding ethical right of others to be treated with beneficence. And it acknowledges that the normative obligation to act justly goes hand-in-hand with a corresponding right of others to be treated justly. But this will never yield the conclusion that because one person or community has an ethical obligation to another, the other then has a corresponding justitial right which should be enforced by public law. For example, biblical teaching repeatedly makes clear that we have ethical obligations to the poor. But that does not give any particular poor person the legal right to alms from me. Thus it should be clear even from this brief sketch of the nature of the state, that the enforcement of moral obligations of love falls outside the proper legal competence of the state. The state is led by norms of justice, not ethics; the accomplishment of public justice is the structural purpose of the state, not the enforcement of personal, non-public morality.

This does not mean that the state has no interest in public morality, however. If parents began wholesale evictions of their children from their homes, or if 75 percent of the population got drunk every night and could not report to work, the severe disturbance of the public order which would result would certainly have to be dealt with by the state. So while it is not the state’s pre-rogative to rule on all dimensions of human morality, the state has a legitimate concern when any issue of moral weight threatens the public order of which it is caretaker. On the other hand, although the state’s power is properly limited to the enforcement of justice, not every issue of justice in human life can fall under the purview of the state. The domain of the state is public justice. The small-scale injustices that may pass between individuals or within communities cannot and should not all be handled by public law. A parent who favors one child over another, for example, not only does something unloving but also unjust to the slighted child. No one seriously supposes, however, that (so long as the unfavored child is not actually neglected or abused) such a breach of justice is part of the state’s duty to correct. Rather, its duty extends only to those issues which affect the entire body politic in principle.¹⁸ This last point was offered to clarify further one of the proper limits on the exercise of state power. But at the same time it also points us to another weakness in the individualistic theory of society and the state touched on earlier. For one of its consequences is that rights are confined to individual persons, so that no provision is made for public justice and public rights. Once it is thought that the duties of the state and the limits on its power are set only by the rights of individuals, what then happens when there is an injustice which does not violate the rights of any one person? Suppose, for instance, that in the course of manufacturing a product on its own land, a company pollutes a river or the atmosphere, which does not belong to any other individual? Taken neat, the individualist theory provides no basis for any legal remedy in such cases; if only individuals have rights, only individuals could have legal standing before the courts. (In fact, there were instances of U.S. courts dismissing such cases on exactly those grounds in the early nineteenth century.) But what, then, of the legal standing required for one business to enter into a legally binding contract with another or to sue another? This issue was resolved in the U.S. (and some European countries) by having the courts regard a corporation as a “legal person.” In other words, the theory is totally inadequate unless a lie is legally declared to be the truth! And without that fiction, corporations would have no legal standing whatever.¹⁹

So we ask: Why think that only individuals can be legal subjects? Why not acknowledge that communities too are subject to the law, and have rights and obligations the state should protect? For surely if a theory needs to declare a falsehood to be the truth in order to make its view of the law workable, the conclusion should be that it is seriously wrong. Nothing else is needed to see that rights don’t originate and reside only in individuals. Unlike individualism, then, the law framework theory has no problem explaining how it can be that families, schools, unions, clubs, businesses, and even the public at large also have rights even though they are not individuals who were “created equal” by God. This is possible, once again, because the source of rights are the norms found in the law framework of the whole of creation. So although we admire the intent of the individualist theory to have a limited state, we nevertheless object to the way that confining legal rights only to individuals slights the state’s public duties.

In addition to that objection, please recall another point briefly touched upon earlier, namely, the consequences of individualism for the state’s relations to other communities. For individualism has no way to limit the state’s power with respect to them other than the fiction that they, like corporations, are individual persons. Then the “internal” affairs of the other communities are declared off-limits to the state in a way analogous to the way each person’s private life is off-limits to government interference. It was in this spirit, for example, that Jefferson wrote of a “wall of separation” between church and state, and the same idea lies behind the “laissez faire” doctrine that the state should not interfere with business.

But obviously no two communities in the same society can be completely walled off from one another. Nor, as we saw, is it adequate to say merely that the internal operations of a family, business, or church set the proper limits for the power of the state. This is because “internal” is left too vague by the individualist theory. The proper sense of what is internal to each community cannot simply be what takes place in the course of its day to day activities, since that would mean the state couldn’t intervene to prevent spousal abuse, or a company from having a private army, or a church from violating a fire code. Rather, what is properly “internal” and off limits to the state must be defined by the leading function and structural type of each community. Thus, the true limits on the power of the state must be seen by contrasting its own nature with the natures of other communities, and not just by the external boundaries between one community and another. Unlike the individualist contract theory, then, our theory does not set up a potentially totalitarian state and then try    to find external boundaries to limit the exercise of its power. As was already pointed out, the law framework theory finds the proper limits to state power in what the state is, rather than only in what it is not. So we maintain that the state’s duty may require it to exercise its authority in the life of any person or community, so long as that exercise is limited to the administration of public justice. For these reasons we cannot agree with the expression “wall of separation” as an adequate account of the distinct social spheres of the state and religious institutions. 

We contend, therefore, that it is the sphere sovereignty principle, not individualism, that provides the right grounds on which to insist that it is outside the proper use of state power to require or forbid any particular religious belief, or to regulate the doctrine or worship of any religious institution. Moreover, this same principle not only explains the basis for the idea of a distinct sphere for religious institutions, but also restricts state power with respect to other non-state communities. For example, it also establishes limits on the state’s relation to the sphere of economics, so that it is outside the proper competency of the state to take over or control private businesses, or to enter into any sort of collusion which would favor one business (or group of them) over others. Likewise, it establishes the same protections for families. They too enjoy a sovereignty in their own social sphere which insulates them from arbitrary interference from the state such as police invasion or search without a warrant from a court issued on evidence of crime. And the same is true for the state’s relations to all other non-state communities.

I have already explained the sense in which the sphere sovereignty principle is both broadly theistic and specifically Christian. So I want to be as clear as possible about what I just said concerning the sphere sovereignty principle forbidding the state from using its power to favor any one faith. It means the Christian view of the state is that the state should not favor Christianity. Moreover, the sphere delimitations of state and worship institution don’t only mean that since the nature of the state has a justitial leading function while the leading function of a religious institution is fiduciary, the very concept of a state-church is a contradiction in terms. At the same time they also rule out allowing a worship institution to attempt to dictate political policy to the state — or to interfere with the sphere integrity of any other community for that matter. Thus, it should be clear that the law framework theory is not a theistic theory of society and the state in any sense that would distinguish Jews, Christians, or Muslims as a special interest group. It is not an attempt to set a specific agenda for pressuring the government for special treatment for those who believe in God. Rather, this theory is theistic in the sense of bringing the antireductionist fruits of belief in God to bear on our understanding of justice and the state. As such, the theory requires that government not allow justice to be undermined by any demands for special favors, but to concentrate on the goal of bringing about a maximally just society for all people, whether they believe in God or not.

None of these consequences could possibly require the state to be walled off from every religious belief, however. That, as we have seen, is impossible. Every conception of both justice and the state presupposes some divinity belief, so that the state will always be conceived of and operated on the basis of either theistic or non-theistic presuppositions, or some mixture of the two. This is, once again, why it is of the utmost importance that those who believe in God not be discouraged from bringing the social and political consequences of that belief to bear on their political life and on the legislation and governance of their state. And it is why it is so important that they realize more clearly just how their faith provides for a distinctive theory of justice and the state. Without such a theory, those of theistic faith may be tempted to see the relation of their faith to politics as the unjust program of trying to become a majority so as to force their morals by law on those who have alternative divinites.²⁰

I will close this section by returning to a point briefly touched on, in order to illustrate it further. The point was that sphere sovereignty doesn’t delimit state power with respect only to religious institutions, but to all the communities in a society. Neither does it delimit them solely in a negative way, since it sets the parameters for the immunities of other communities from state power by providing a clearer idea of the conditions under which the state can properly exercise its power with respect to them. One of these parameters is the enforcement of sphere sovereignty itself, touched on in the last chapter. That is, our theory requires the state to enforce the mutual sphere sovereignty delimitations among all other communities, as well as observe them itself. Thus, while our theory forbids the state from taking over businesses or trying to regulate the entire economy, it may properly require child labor laws so as to enforce sphere boundaries on businesses. In the U.S., for example, prior to such laws businesses invaded the sphere of family life. They demanded work hours which took young children from their parent’s supervision for sixty or more hours per week, precluding any opportunity for the children’s education and preventing families from worshipping together. Nor does sphere sovereignty protect only minor children in this way. Even as recently as the early twentieth century, some U.S. corporations inspected adult workers’ homes to say how they were to be decorated, and dictated what workers could eat, how they should dress, what books they were allowed to read, and what sort of music they could listen to. The sphere sovereignty principle shows why it is as unjust for corporations to attempt such intrusions into the sphere of the family as it would be for the state to do so.

Similarly, we find anti-trust legislation also to be a proper enforcement of justice when it is guided by the idea of sphere sovereignty. The individualist contends simply that the state should preserve free competition. But we argue that the state has a broader duty to prevent the non-economic spheres of society from being infringed by the economic power of businesses. Especially between 1865 and 1900, this was a real danger in the United States; the large corporations (called “trusts”) not only became monopolies in restraint of free trade but, had they merged their efforts, could have dominated the state to produce a completely business-controlled society.²¹

13.3             THE NATURE OF THE STATE: WHAT IT IS NOT

 In addition to the individualist and collectivist theories of society which distort the role of the state by skewing the idea of justice, there are other theories specifically about the nature of the state itself which are also objectionable compared to our theistically-based theory. For the purpose of making our own theory clearer by contrast, I will briefly mention a few of these.

The first of these is the old idea that only one racial or ethnic stock can comprise the citizenry if there is to be the political unity necessary to form a state. This idea not only was popular long after striking counterexamples showed  it was false, but is occasionally still heard today.²²  We  need only recall that  a strong state developed in sixteenth-century England when its citizens were ethnically divided into Celts, Saxons, and Normans to see that this is a false requirement. Besides, some of the strongest states in the world today are ethnically quite diverse. To be sure, there are extra difficulties to be overcome in fostering political unity where racial or ethnic divisions are strong; nevertheless, “one folk” or “one blood” is not a necessary condition for the existence of such unity. Our contention is that the true nature of political unity is that of a common public legal order. Thus racial or ethnic unity not only is not, but ought not to be regarded as necessary for the unity of a state.

The same is true of the idea that one common language is a requirement for political unity and a strong state. True, the division of a population by language can be a strong disintegrating factor politically. This was a great problem in the low countries in the past and resulted in the separation of Belgium from the Netherlands. In more recent times it has been (part of) a threat to the political unity of Canada. Once again, however, it cannot be a necessary condition for political unity if there are strong states which exist without it. And the fact that such states do exist is evidence supporting our contention about how political unity ought to be viewed. So even though political unity may be easier to achieve in a state whose citizens share a common language, the lack of it does not prevent political unity. Switzerland is perhaps the most notable example of this.

Another idea is that the state needs to enforce a common religious basis for its political unity. This is a sore subject of debate in Israel at present, and is an idea advocated by several countries designating themselves “Islamic states.” Moreover, the national separation of Pakistan from India in the last century was due, in large part, to religious differences. We have already seen why the law framework theory, with its principle of sphere sovereignty, opposes this view. And, once again, we can also point to the fact that many states in the world suffer no disintegrating effects by allowing freedom of religion as evidence that unity of religious belief is not a must. In this case, as in the previous cases, it is a confusion about the nature of the state institution (its type law) which leads to seeing the unity of the state as centered in any other social sphere than that of public justice.

Nevertheless, it should be added that the disintegrating forces of ethnic, linguistic, and religious animosity can be easily underestimated by those who have never experienced them. In North America, for example, there is considerable naiveté about religious liberty in particular, because in many localities there is not much religious diversity and because most people falsely assume that other religions are probably very like the ones they are familiar with. When strong diversities of religion — or any of these other factors — arise where they have not previously existed, they can severely test the unity of even the strongest state. This is why it is so important that, as our theory requires, government be scrupulously even-handed in its treatment of all the diversities it finds in its territory. Differences of culture, custom, language, race, religion, etc., must be recognized and respected because that is required by the norm of justice. The unequal treatment or outright suppression of such differences can never be excused on grounds of political exigency, since they do not affect the real basis of the state’s existence.

This does not, however, entail that the state must disassociate itself from everything religious. Being even-handed to all religious points of view is not the same as equally repressing the public expression of them all. Quite the reverse. It means that all alike may be freely expressed and must be protected without the state endorsing any one of them. Thus there is, for example, nothing wrong with the study of religions in a state-supported school, so long as there is no state endorsement of any of them and no student is pressured to believe any.²³ Another idea of the state which must be rejected by our theistic theory is that of the power-state. This is the blatant adoption of the view which we accused the collectivist theory of encouraging, and the individualist theory of failing to guard against adequately. It holds that the state has no limit to its competence in every sphere of life, so that there is no limit, in principle, to state power. Sometimes this view has been held quite overtly, as was done by Machiavelli, Hobbes, and Hegel, while often it has been disguised in order to present the appearance of a law-state, as was done by the Fascist and Nazi states of the 1930s. In any case, it is clearly opposed by our sphere sovereignty principle, which sees the proper competence of the state limited to the sphere of public justice. It is also at odds with our characterization of the state’s type law, which shows that its organs of power should be ruled by its organs of legislation and its judiciary. This means that it is the enforcement of justice which makes the use of power right, not the possession of power which makes right whatever the state wants to do. From a theistic point of view, then, no state is legitimate without this guidance of might by right. No matter how well entrenched its rule, no matter how widely accepted its authority, such a power state is no more than a band of armed criminals — as Augustine observed long ago.

The last view of the nature of the state to be contrasted to our theory is that of the welfare state. On this view, the state is seen primarily as father-provider of the needs of its citizens. The claim of this  view is that it is as much the state’s duty to provide work, food, clothing, and shelter as it is to provide for protection against crime and invasion.

It is certainly possible that the existence of poverty in a society can be a sign of genuine injustice, especially if that society is, on the whole, wealthy. In that case, it would be the duty of the state to correct the injustices that lead to that poverty. But the injustice involved would have to be a public one since, as we have already noted, it is not the state’s duty to correct every injustice. If it is possible for the state to correct public economic injustices without over-reaching its own proper responsibilities, then clearly it should do so. But if it begins to violate those limits in the name of economic justice, it can easily become totalitarian. In that case, a greater monster will have been created to combat a lesser one. Thus the state must approach economic injustice with the same respect for the distinctness of other institutions that should characterize all its policies. It must recognize that as a state, it does not generate wealth, or housing, or education; the goods and services which need to be justly dis- tributed are produced by farms, businesses, families, and schools, to name a few. Any policy which would call for the state itself to attempt to create the goods and services which its citizens need, would be self-defeating for its own leading function as well as for the leading functions of the other communities that would get preempted.

There are many ways the state can help to promote justice in the distribution of its citizen’s basic needs without overriding the proper roles of other communities. One way is to aid citizens in spreading the cost of such needs over a lifetime through taxation. This is the proper way to view taxation for the sake of covering the cost of educational services, for example. Rather than have families bear the entire cost of education during the years their children are actually in school, taxation spreads the cost over a lifetime so that all families can have access to schooling for their children. Along this same line, our conception of the nature of the state would see nothing amiss in having taxation help to spread the increasing cost of medical care in a similar way.

Nothing just said, however, can justify the view that the state itself should be the universal provider or guarantor of any goods and services other than public justice. This is not to say that there would be anything wrong with the state’s providing a safety net for the distribution of basic sustenance needs for the small segments of its citizenry that are utterly indigent — even if this includes making survival needs available at public expense. But even in that case, the state itself should not be the supplier of those needs; that is, there is nothing about such care for the indigent that requires the state to take over the communities which produce those needs. And still less is there anything about proper state support of the destitute to suggest that everyone has the right to look to the state to provide for them, irrespective of whether or not they are able to obtain them by their own efforts.

13.4             POSTSCRIPT

This sketch of the nature of the state institution has been brief, and is certainly not a fully developed political theory (that would take another whole book). My purpose here was more modest, namely, to clarify the concepts introduced by the law framework theory by employing them with respect to a view of the state. I also hoped, of course, to indicate some of the main differences that ensue from them for the nature of the state and a few allied issues. In recent years, however, other advocates of this theory have been able to do more than this, so that there is now a growing body of literature available from the law framework point of view. These authors have been able to point out a significant number of unique insights by which this theory can contribute needed clarification or correction to a host of important issues. For the U.S. political scene alone, for example, they have been able to expose major injustices embedded in such matters as the ways government relates to education, the laws governing how elections are conducted for the House of Representatives, and governmental policies concerning poverty and welfare, economic justice, human rights, and environmental concerns, to name but a few. They have also been able to provide additional justification for many elements in U.S. political and legal traditions which are sound, and to point out ways these can be deepened and developed further by the law framework theory. There is also a growing body of work devoted to how this theory impacts non-political communities as well, and readers interested in pursuing this approach may want to consult them as well.²⁴

Despite the brevity of these last few chapters, my hope is that they will nevertheless serve to show what a program of distinctively non-reductionist theories could look like, and give an idea of what can be gained when the reductionist strategy for theories is surrendered and replaced by a strategy that presupposes everything in the cosmos to be directly dependent on God. I also hope that they illustrate what can result from combining the non-reductionist program with specifically Christian principles for the understanding of society and the state.