Whenever we speak about the kind of law that defines a crime, we are talking about making certain people conform to a pattern they don’t want to conform to. Law in this sense is a function of coercion. This is why I am a minimalist when it comes to law. The fact that something is a sin is not grounds for making it a crime. Covetousness is a very serious sin, prohibited by the last of the Ten Commandments. God thought it was a big deal. And yet throughout the entire Mosaic code, you cannot find a criminal penalty for covetousness. There were no covetousness cops.
If something is to be “against the law,” as marrying your sister ought to be, for example, we need to be prepared to give our reasons for the coercion. Pragmatic arguments won’t cut it. Utilitarian arguments just provide the perverse with an obstacle course to try to get through, and they usually can. It is like what happens when a girl doesn’t want to go out with a guy, and so she gives a lame reason. She is busy Friday. This is nothing but an invitation to provoke him into asking about Saturday. If we say that we cannot have brother/sister marriages because of the possibility of birth defects, what do we do when brother Billy and sister Suzy promise to get both a vasectomy and a hysterectomy because they don’t want any details like that to get in the way of their love. Now what?
Utilitarianism does have an implicit morality built into it, but my purpose here is not to chase that particular nonsense down the road. Let us accept the pretension that utilitarianism does not propose a moral absolute. In legal argumentation this is called the willing suspension of disbelief, which is why there are so many orcs and dragons in contemporary legal theory, but I am digressing again.
What is necessary in discussions of this kind of thing is plain, old fashioned vanilla bean morality. And it has to be a sturdy enough morality to provide a foundation for criminal law — you know, where we apply coercion. Some people don’t want to impose morality. I wonder why we would want to apply anything else.
This is a point I have made before, but on things like this, it is a point that comes back with a vengeance. The real test of your moral system is not so much what you would die for, but what you would be willing to kill for. Not only must a legal theory deal with moral issues, but it deals with moral issues that have to be enforced.
Because coercion is such a big deal, I want it to be safe, legal, and rare. But in order to be like this, it has to be a coercive morality. Who wants a legal system that is coercive only? Besides Obama and all the camp followers in the EPA, I mean. And who wants a non-coercive limp-wristed “it seems to me” morality that never makes it out of the graduate seminar room, and never makes a bad man stop it? That is not a legal theory; it is mere throat-clearing.
Laws make people do things, or refrain from doing things. If you belong to the anabaptist tradition and think the whole thing is Satanic, then go away. Stop giving advice to Satan about what improvements he might be able to incorporate. Go build a separated community out in the woods, and good luck to all of you. If you are a soft leftist with an anabaptist veneer (“with the look of real wood!”), then you should call for more “funding” for more “programs,” because, as we all know, programs are essential.
But if you are a Christian who believes that civil societies have obligations to God, whether they acknowledge Him or not, then tell us what those moral obligations are. And also, in God’s name, tell us your grounds for what you are claiming.
If they are not moral obligations at all, then shut up. If they are moral obligations, then stick around after your lecture for the Q&A. Why? Who says? And then, when during the Q&A it becomes apparent that you are arguing for a law, which has to be imposed because there is not universal consent to it, and not because there is, you will discover why so few argue this way. It takes courage.
So in response to a question that was posed in an earlier comment thread, this is why I believe natural law keeps one thing clear in a way the phrase natural revelation does not. At the same time, I still prefer natural revelation so long as I get to make this caveat — one of the things revealed is law. I can look at the things that have been made and conclude that God is infinitely intelligent. But the reason unbelievers want to deny the inference is because it also ends with a God who is infinitely holy and authoritative about that holiness. He gives us His law.
So as I have mentioned, the test case for everybody is homosexual marriage. It is a current issue, it is relevant, it is pressing — what do you say about it and why? As I have seen the climate shifting on homo marriage among respected (a central part of the problem, is it not?) academic evangelicals, it started to become clear to me that in distancing themselves from the phrase natural law, there is a contemporary incentive built into our gonadal zeitgeist to help evangelicals to scurry away from the law part of natural law, all the while pretending that the difficulty was with certain Thomistic formulations. Confronted with some muddled cleric solemnizing a lifetime of unnatural acts, they are more concerned about some other cleric solemnizing this demolition of their secret hide-out cubby. And if they rebuke anybody in the church, it is much more likely to be the Bayly brothers for using the word sodomite than the poofter bishop just down the road, the one who likes to wear the sodomitre, the one that makes him look fabulous. Oh, did I just help perpetuate a stereotype? So sorry.