The theological foundation of law

Cahiers théologiques de l’actualité Protestante #15

by Jacques Ellul

Significant cover and page wear, minimal marking throughout

Genres: Religion, Nonfiction

140 pages, Hardcover

First published January 1, 1946

About the author

Baptised Catholic, Ellul became an atheist and Marxist at 19, and a Christian of the Reformed Church at 22. During his Marxist days, he was a member of the French Communist Party. During World War II, he fought with the French Underground against the Nazi occupation of France.

Educated at the Universities of Bordeaux and Paris, he taught Sociology and the History of Law at the Universities of Strausbourg and Montpellier. In 1946 he returned to Bordeaux where he lived, wrote, served as Mayor, and taught until his death in 1994.

In the 40 books and hundreds of articles Ellul wrote in his lifetime, his dominant theme was always the threat to human freedom posed by modern technology. His tenor and methodology is objective and scholarly, and the perspective is a sociological one. Few of his books are overtly political -- even though they deal directly with political phenomena -- and several of his books, including "Propaganda: The Formation of Men's Attitudes" and "The Technological Society" are required reading in many graduate communication curricula.

Ellul was also a respected and serious Christian theologian whose 1948 work, "The Presence of the Kingdom," makes explicit a dual theme inherent, though subtly stated, in all of his writing, a sort of yin and yang of modern technological society: sin and sacramentality.

Reviews

[Drew Norwood · Rating 4 out of 5]

This one caught me off guard. I picked it up expecting a defense of natural law. What I got instead was an unconventional refutation of natural law. But, that is not all the book consists of. There are two main reasons to read this book. First, for Ellul's discussion of natural law *as a historical phenomenon.* And, second, for Ellul's discussion of justice and, more particularly, the connection he makes beteeen God’s righteousness and human justice. Overall this is a great work. It's unfortunate that it seems to have received so little attention.

I was not persuaded by Ellul's refutation on natural law. While he throughly dismantled the Enlightenment’s version of natural law, he didn’t squarely address the shortcomings of a metaphysical natural law, and he consistently conflated the two variations into one single theory. Heinrich Rommen’s book, The Natural Law: A Study in Legal and Social History and Philosophy, shows why such a conflation is inadequate, and Rommen gives a much fuller picture from which to view natural law theories.

Yet, that notwithstanding, Ellul does lodge a serious challenge to those seeking to recover natural law. He questions the ability for a nation to *recover* a natural law perspective after the religious/metaphysical framework has been abandoned. In other words, Ellul recognizes natural law theory as a historical phenomenon, though not as an adequate legal principle. He steps back and looks at the historical development of law in Western societies. What he finds is a common trajectory in the progression of prevailing legal theories, which can be summarizes as: (1) law grows out of religious convictions; (2) law becomes secularized and begins to become a tool for social, political, and economic development; (3) natural law arises as a legal theory intended to return the society to its legal sources. The kicker, as Ellul explains it, is that: "Although easily identified as the high point for natural law, this moment [number 3 above] is really its decline. It is indeed the moment when man ceases to be spontaneously 'within the law.' He places himself outside the law and examines it. Law becomes an object of speculation and interpretation." At this point--a "point of no return"--the law is increasingly made a creature of the state (not by natural law proponents, but by the other legal experts and jurists of the era), and its purpose is manipulated so a to become a mere embodiment of the majority's will.

Yet, the inability to retrieve natural law notwithstanding, Ellul warns of the dire consequences which come when natural law is lost. He names five consequences, in chronological order of when they generally present themselves (these hit a little too close to home): (1) "The law ceases to be measured against a certain sentiment or idea of justice and becomes purely a combination of technical rules." (2) "When natural law is rejected, juridical technique is at the disposal of whoever wishes to take advantage of it." (3) "[W]ith the disappearance of natural law, the state has a free hand. It is no longer restricted by limitations [of a higher law or natural law]. Hence the state, alongside the jurists, will be one of the factors in the establishment of technical law." (4) "[L]aw gradually ceases to be observed and respected." He captures the mindset of the populace living in the "first phase" of legal development as compared with those living in the third stage, which is a move from respect for the law and its religious character toward suspicion of law based on the view that it is a tool for those in power. (5) "At this stage in the evolution of law, an attempt is usually made artificially to revive natural law, with the hope of bringing law back to life. . . But man is doomed to fail in this attempt. Natural law cannot be revived by the intervention of the state. The relationship between man and law is broken and cannot be renewed by a philosophical or juridical theory." The point of no return has been reached. If Ellul is correct, we would be wise to pay attention and to think about how we react to the prevailing views of justice we are currently faced with. But, it is not clear what he suggests as an alternative. In other words, if we cannot recover natural law when positivism triumphs, what should we advocate for?

Turning to the more affirmative part of the book, Ellul puts forward a positive conception of justice. The foundation of law, for Ellul, lies in a theocentric--one might say a cosmic--understanding of justice. He's not arguing for a "Christian law" but he does affirm that human law, to be just, must be based in divine law that is applicable to all persons, regardless of faith or religion. We must first appreciate the simple fact that "[j]ustice has no dwelling place on earth, neither in the heart of man nor in nature. 'Righteousness will look down from the sky' (Psalm 85:11). It is always a gift of God. It is grace. Where man is not guided by the will of God, disorder and injustice reign (Isaiah 24:5)."

Ellul's chapter progressions and organization are helpful for demonstrating how we should come to a right understanding of human justice. Ellul begins with the word "justice" itself and the proper conception of justice and righteousness. He examines the Hebrew words that are associated with justice (mishpat and tsadiq) and shows how the twin word groups correlate to one another and capture the full picture of justice. The word mishpat implies the idea of judging or guiding, justice, law, statute, customs, and manners; whereas the word tsadiq embraces the idea of righteousness. These two terms seems to go in different directions but at times they are used interchangeably. And the passages which use these terms show us that justice is never divorced from righteousness, rightness, and that justice includes mercy and love, as numerous Old Testament passages demonstrate. Because of the evidence, such as Deut. 1:16-17, "it is inadmissible to affirm that there is a divine righteousness and a human justice separated one from the other, and forming two merely coexisting, yet independent entities. In reality, there is but one single righteousness."

Next, Ellul considers divine law, which includes: (1) righteousness and judgment, (2) law in its relation to just order, and (3) the covenants God has made with humanity which establish our relationship to him. Ellul maintains that the divine law cannot be considered apart from the person of Jesus Christ: "the foundation of human law resides in Him, the realization of human law is accomplished by Him, the qualification of human law is given by Him." In a similar vein, he shows that "[l]aw by itself, as an autonomous entity, does not exist in the Bible. . . Law in the scriptures . . . is that which conforms to or follows an already existing path. . . Law is what is in accordance with the will of God." When we pray, "your will be done on earth as it is in heaven" we are asking for justice. We are not autonomous creatures, and the law is not an autonomous rule. Both are subject to reality--that we are created by God, in His image, and we can live only by His norms.

Then, he moves on to human law. Human law, he argues, consists of three elements: (1) institutions, (2) human rights, and (3) justice. The section was a weak spot, and Ellul's explanation of human rights is by far the weakest part of the book. He never gives a sufficient explanation of what these rights are or their scope. He simply affirms that man has rights by nature of being created by God and made in his image.

Next, Ellul seeks to bridge the gap between divine law and human law. This, in contrast to the discussion of human rights, was one of the strongest sections. He shows that justice involves, essentially and fundamentally, acts of judgment on the part of the civil ruler. In order to judge, a position must be taken on the content or substance of the juridical law enforced in the community. "An abstract or objective judgment is entirely ruled out. He who judges becomes himself involved. He ceases to be indifferent to the juridicial situation of man." This also implies God's presence in human judgment. "[N]o act of justice is exhausted by its value and its consequences within the juridical realm. It has a theological dimension. . . Law is designed constantly to remind man of his proper responsibility before God at the very moment he makes use of law. Man is responsible for justice because he gets God’s power into the act. He is responsible as judge because he plays God’s role. Man is responsible for judgment because he acts in behalf of God . . . [E]very judgment announces the coming, even the presence of this absolute judgment of God. . . Here lies the greatness of the role performed by the human judge. When the magistrate pronounces judgment, he is a prophet. He prophesies the actual presence of God’s righteousness and the coming of his judgment. This is a responsibility as well."

Lastly, Ellul deals with the relationship between state, the law, and the Church. He affirms that the state is not above the law but rather is subjected to it. The state does not create the law; it is, in fact, established by law. The state's role is tied to law--it exists to enforce the law and to guard it. Where it fails in these duties, the state fails its God-given task. "The lawless nation does not fall by itself. It falls because God condemns it. . . [H]uman law is an expression of divine law. A people devoid of human law violates divine justice, and a nation which neglects human justice breaks the covenant with God." The state is also responsibility to protect the Church and its mission (of spreading the gospel and living as the kingdom of God). Church and state are two separate institutions, but both are under God and accountable to Him. The Church in exchange, testifies to the true nature of law and the eschatological dimension of God's coming judgment in Jesus Christ--a judgment that includes a merciful offering of forgiveness and reconciliation.

Ellul packs a lot in this book (more than I have relayed above), especially considering it is only 136 pages long.

[Matt]

The Theological Foundation of Law is an early book by the French theologian and sociologist Jacques Ellul. In it he shows his expertise in the field of law (Ellul was a professor of History and the Sociology of Institutions on the Faculty of Law and Economic Sciences at the University of Bordeaux where he would later write a lengthy history of Institutions) and his familiarity with both the Bible and theology. This results in, as with most Ellul books, a fascinating, learned, and thought-provoking analysis.
In The Theological Foundation of Law Ellul writes an unconventional, Christocentric critique of natural law. He starts first with a historical analysis of natural law as a phenomenon. Natural law exists as an event. How do we explain this?
Ellul starts out by pointing out that natural law is a Western concept. We don’t have the historical knowledge which would make us able to articulate natural law for any other culture. With what we do have, Ellul sees a historical progression. First, law is religious. It is divinely given or instituted by a priest or some such. At a later stage, the law becomes increasingly secular. With this comes the emerging power of the state, which is distinct from the power of religion. This leads to the second stage of the law, which Ellul calls the stage of natural law. In this stage law is established by custom or legislation independent of religious authority. It springs from within society, from the common will.
The next step is the elaboration of this law into a theory of natural law. Ellul points to multiple examples where this has happened (Greece, Rome, Italy, France, England, and Germany). This is often thought of as the high mark of natural law, but in reality, is its decline. Because at this point, man is no longer within the law, but steps outside of the law and examines it. This destroys spontaneity. This is the third phase of natural law.
The fourth phase is when the law becomes a creation of the state. “Principles are pronounced, judicial hierarchies are determined, laws are coordinated, a juridical technique is worked out which is increasingly precise, increasingly rational, and increasingly removed from spontaneity.” At this point law is made by jurists and administered by the state.
At this point, civilization is dead and decadent. We cannot recover the spontaneity of the law under the current civilization. Once we are at this point, we are in danger of natural law being rejected. This is a serious concern, as books such as C.S. Lewis’s The Abolition of Man shows.
Ignoring Lewis and turning back to Ellul, what are the consequences when natural law starts to be rejected? The law ceases to be measured against justice and instead becomes a combination of technical rules. We lose any ability to have a norm by which to go by. Justice is lost and social expediency becomes what laws are made to fit.
When natural law is rejected, juridical technique is at the disposal of whoever wishes to take advantage of it. This is what happened in both Communism and Nazism, when the law was made to support either the proletariat or the Aryan people.
When natural law is accepted, the state is limited in what kind of law it can make. But when natural law is rejected, the state has a free hand. No more limitations are applied. The law then becomes a tool for the profit of the state.
A further consequence of the negation of natural law is that the law ceases to be respected and followed. Man is no longer attached to it, nor does he see it as divinely given, so he no longer sees why he should obey this law.
At this point, natural law is often attempted to be revived. However, this attempt is doomed. Natural law cannot be revived by the state. The relationship between man and law is broken, and no philosophical or juridical theory can fix it. The only way we can fix it is “a simultaneous transformation of the inner existence of man, conditioning his adherence to society, as well as of the outside, on the part of the state and the law.” But this means the end of a civilization.
Given the severe consequences of natural law, it is understandable that we would want to salvage but can it be done? Is natural law a Christian concept? Before answering this question, I will mention briefly Ellul’s fascinating take on justice. Justice, for Ellul consists in judgment. There is not an abstract set of moral standards by which we can judge someone or something. Judgement is always particular to a specific scenario. Anything just is part of God’s judgement and anything God judges is just. Judgement then is bound up tightly with God.
As can be guessed from the above summary, Ellul sees no room for natural law. According to Ellul, Christian defenses of natural law are based upon three concepts: a concept of man, a concept of justice, and a concept of law. He critiques each of these.
First, the concept of man necessarily includes the idea that the fall did not cause complete separation from God. Man retained a measure of free will or certain sense of justice or capacity for knowing and doing good. Ellul rejects this. He thinks the fall brought about a total break between God and man. And, with this complete break, man is incapable of doing good and human law cannot have any value at all.
Second, there must exist a certain conception of justice which consists of universally valid imperatives. This justice has value in itself and is the measure of any action. Ellul thinks this is projection and a temptation. What man knows due to his own reason he thinks is justice itself. It is not divine justice, but a creation of man that we are dealing with here. God is then judged according to this justice.
Third, Christian defenses of natural law affirm that God has revealed true law in the OT. We now know the foundation and content of law and need only to apply it. Ellul doesn’t think the OT torah is law. It is part of revelation, not a juridical system. He also recognizes that this law is contingent, not universal. He thinks that, before we can start applying OT laws we need to first adequately address difficult problems such as: the analogy of faith, the continuance of law through its fulfilment in Christ, and the relationship between church and state in Israel. Only after addressing these problems can the Law be turned into something universal.
We are left with a set of contradictions between our natural conception of law and divine law as Ellul understands it.
1. Law is not self-sufficient and independent, yet natural law requires an independent law.
2. Humans have no inherent law in their nature. It must be revealed law.
3. Law is not a product of human reasoning, but only of God’s activity in the world.
4. Law is not static and based upon principles but is active and the eternal expression of God’s will.
5. Positive law is not derived from natural law but from the fact that God ordains it as a means for His work
6. Justice is compliance with the will of God, something man naturally knows nothing about.
7. Justice is revealed to man only in the covenant, not some ideal law.
8. The covenant doesn’t give rise to juridical principles but to ethics or which law is a part.
9. Divine law is rooted in both creation and eschatology, whereas natural law is rooted in creation only.
10. Law is entirely Christocentric. Natural law cannot know Christ.

What then is the purpose of the law? Ellul doesn’t reject the law as useful. It is given by God to uphold man’s rights. What these rights are isn’t entirely clear from the book, or at least my reading of it, but they are not abstract timeless rights. They are instead given by God in the covenant and are particular to every situation. The law recognizes these rights and upholds them, and by doing that is able to both execute vengeance upon evildoers and uphold a society.
All human attempts at creating and defining law are attempts to create a sustainable situation. Ellul argues that this is what we see happening in Rom 2:14-15. Ellul argues that this passage does not refer to knowledge of the law, but to doing the law. It refers to action in compliance with the law, which is all the Gentile is capable of doing. Man is always called to act, and his actions may sometimes be just. This does not mean that man knows the law, or knows what is just. When man acts, he does not try and act according to a perfect norm of justice. Instead, he tries to establish a viable organization. Institutions and organizations are set up which permit the preservation of life, and man adjusts to this reality. Successful preservation results in the creation of law. Tangible results, not an ideal, are the law man knows. This may or may not be just in God’s sight.
Turning finally to the church, Ellul recognizes a unique role for the church. Similar to how man has divinely given rights, the church has divinely given rights which correspond to her role given to her by God. The church should be recognized as a legal body. As such, it can claim rights from the state. These rights are around the church’s mission. The church “must be granted the fundamental freedom to proclaim the word of God. God sends the Church into the world mainly for this purpose. The state becomes an unjust state from the very moment it denies the Church the possibility of proclaiming the gospel.” These rights include not only the right to verbal proclamation, but they extend to the concrete and material implications of this proclamation. To uphold the rights of the church is to uphold her rights to proclaim and live in a way consistent with her calling.
The church has a unique calling with regard to the law. The church alone is able to recognize man’s unique rights that need protecting. Without stepping into this role, man’s rights are chosen by revolutionaries or others, and are always inadequate.
The church is called to, first of all, affirm the limits of the law. This cannot be done in the abstract, but in regard to concrete situations. It is always by “test” not an intellectual system that the church can tell where the law is transgressed.
Following from this, the church must judge the legal system. And it must also rectify the law, or even fight against it.
When the church does this, the law is no longer at the disposal of the state. As Ellul puts it “No longer can the state pretend to be the creator of law, to be superior to law, and to arbitrate justice. The state truly becomes a servant. Not the servant of the Church (this was the error of the papacy in the Middle Ages), but the servant of God in matters of law.”

[Leandro Dutra · Rating 5 out of 5]

Pour un universaliste, surprenante orthodoxie & proclamation de la gloire de Jésus & de la Trinité dans le Droit.

[Amelia and John · Rating 5 out of 5]

For those who read mostly nonfiction, the majority of books that one comes across are read for rather mundane reasons. Perhaps it is a text that would be helpful in developing one’s methodology, or in learning the background of one’s field, etc. It is a rare occurrence when a text impresses itself onto a person, when an author writes exactly how one thinks, when a book pushes the boundaries of one’s way of thinking so much.

This book by Ellul did it for me.

The book in the main is a critique of natural law theory. Best known by its Thomistic formulation, natural law is a medieval understanding of law designed to help us discern just from unjust laws. Just laws are laws in accord with our practical reason, and our reason should be in accord with God’s laws. The citizens of a state should therefore be able to deliberate on which laws are just and which are not through rational discourse. And a law that is rational and just should command respect from people who should be rationally inclined to respect them.

Ellul takes an interesting move, casting natural law as a historical instance in society when everyone shares common values about what law is and should be. But once people try to theorize law, the people no longer have such an organic relationship of reverence for the law, and law becomes just a set of rules that people don’t really want to follow.

This is such an important idea for contemporary America, a society which is reckoning with its horribly sinful past, and a society which is decentering itself from the past hegemony of (white) cultural and political values. America is—indeed it has been—pluralistic. Natural law, law based on reason, is impossible in a society where people operate on different logics.

What is brilliant about Ellul is that he tries to thread a line between simply giving up on law in such a situation, and trying to impose a Christian religious law over everyone else. He takes great care to think about law and what law is for in light of Christ’s Lordship. Law must exist so that life can flourish, so that death and suffering would be abated, so that people can hear the proclamation of the Word. And the Church’s task is to ensure that the law of the land is sensitive to people’s rights and lives. Law is supposed to uphold an order which preserves life and is open to God. When law fails to do this, it is not law at all, but is, as Aquinas would day, it is violence. It is oppression. It is death.

I still have a lot to process, but these are just my preliminary thoughts and reactions to Ellul’s book. This absolutely makes me want to re-read it and read more of his texts. 100/10 absolutely recommend.