Beyond the Law?
God and His Law in Relation to Ours: a Review of The Law Above the Law by John Warwick Montgomery
John Warwick Montgomery is an under-appreciated thinker. For someone like me, he is something to read deeply. He's a lawyer, theologian, and philosopher who has spent his career practicing law, preaching apologetics, and debating with the world's foremost atheists, (usually coming out on top.)
In The Law Above the Law, Montgomery explores the relationship between our laws and jurisprudence and God's divine revelation provided to us through the Ten Commandments and other biblical instruction.
The first chapter makes the case for a "higher law," a case for why we must not separate society's laws from God's. The second looks at witchcraft as a means of understanding the jurisdiction of human law versus the jurisdiction of God’s law, and how biblical revelation can inform human law.
First, I think it's important to state what Montgomery is not arguing for. He is not arguing for a theocracy. He does not believe that the President must be a Christian. In fact, religious belief doesn't quite come into it. Rather, he is making the case that the law must stem from something. And that something should be biblical law.
The Case for a “Higher Law”
The most frightening example of a separation of biblical law from society's law–especially when Montgomery was writing in 1975–was the events of World War II. "The horrors of the Nazi Party," he wrote, "demonstrate the danger of a law unto itself. If law is relative to the morals of society, anything can be legal regardless of its morality." (21-23) But of course, it is not so difficult to point to WWII and the Nazi Party and pin whatever evil you identify on them, state that is a consequence of what you argue against, and feel at once morally superior. That isn't what Montgomery does here. No, rather he outlines with specificity how a horror such as Nazi Germany, a completely legal enterprise at the time, can occur when society's laws are not held accountable by the "law above the law."
I think this is something we all intuitively know, deep down. Do you ever wonder, "why is that illegal?" or "why did they make that a law?" American society, separating church and state as explicitly as it does, has no connection to scripture on a legal level.
The first question to ask is this: if not from divine revelation, from what do we determine our laws, ethics, and morals?
One answer is "natural law." This position argues that we innately know right from wrong, and that this can be seen across cultures. Murder, in some form or another, is considered immoral across cultures and time. C.S. Lewis produced an effective summary of these "universal morals" in his appendix to The Abolition of Man.
The problem Montgomery has with natural law is its ambiguity. It is "vague and meaningless" apart from the revealed moral law, being able to be "interpreted in a number of ways to suit the specific situation." (23-25) Indeed, all cultures might agree that murder is immoral in general, but when you get down to the specifics, it isn't quite so easy. Is it murder to kill the husband of your daughter when he is committing adultery? Not in the U.S. Is it murder to kill an unborn child? Not if you're a doctor, but if you're driving a car recklessly and hit a pregnant woman, you've committed two murders, not one.
How are we to determine the veracity and morality of these laws? If we look to natural law, we simply don't get an answer. Determining the "eternal" natural law from the "temporal" law is near impossible without direct revelation. (38) Montgomery also points out the "fallacious assumption known as the naturalistic fallacy that what is universal is necessarily right." (38-39) We cannot assume the natural morality of something just because it is a practice considered universally immoral. What if we're all wrong?
While this might sound a little silly—what are the odds that everyone is wrong?—we have all been wrong before. Remember heliocentrism?
Montgomery puts forth biblical revelation as the proper foundation for society's laws, but recognizes that to "make a claim is hardly to prove a case." (43) He makes the argument–made by him elsewhere in an apologetic context–that biblical revelation stands apart "from other claims to direct revelation when subjected to scrutiny." The Christian Scriptures withstand historical investigation in a manner that other religions don't. The events of the Bible are, to an extent, historically verifiable. And they have yet to be struck from the pedestal. (If you find yourself disagreeing with this statement, this is a discussion for another time… and one I intend to have here on Substack, so be sure to subscribe.)
For now, we'll focus on a summary of Montgomery's argument, that "when analyzed by the most rigorous standards of historical scholarship, the accounts of Christ are the very opposite of hearsay: they are primary-source records produced by eyewitnesses." (44) And the historical records do back this up.
So, what does this biblical law provide us? Both the high standards to which we should strive, but simultaneously the destruction of our self-image. It forces us to rely on God's mercy in Christ. (51) Unlike many's conception of Biblical law, it is not the ruthless and unaccepting xenophobia that many tout it as. Rather, through Christ the revealed God who dwelt among us, it both gives us the means to reflect on our own sinfulness and provides the means of grace and forgiveness available to each of us.
Early 20th Century jurisprudence in America focused on positive law. Montgomery chalks this up to a centuries-long campaign of destruction. In the 18th century, we destroyed the Bible. Thomas Jefferson famously removed all the "spiritual" or "non-realistic" sections of the Bible. In the 19th century, we destroyed God. e.g., Nietzsche. And in the 20th century, we destroyed man. (WWI and WWII constituted the grossest destruction of lives in the recorded history of the world.) (55) "Going it alone" did not seem to work out. The "prodigal lawyer tried it out on his own and must return home," Montgomery writes, paralleling the Parable of the Prodigal Son. Fortunately, he writes, the lights are on. The lawyer can return home and ground his jurisprudence in the way of the Father.
Putting it into Practice: Thinking About the Witch-Trials
Montgomery claims that the witch trials are a common source of objection to the church having any sort of say in legal matters. Those trials are a clear example, people argue, of religious zeal and conviction overcoming the legal impartiality we value so highly and should serve as a lesson to keep religious convictions as far away from legal matters as possible.
This book is fast approaching its fiftieth anniversary. I might argue that the christian church has suffered so many disturbing and difficult controversies since its publication that the witch trials are hardly the first issue that comes to mind in ecclesiastical criticism. However, they serve as an interesting example in this context. Furthermore, while they are beginning to lose their historical nearness, they are still a uniquely captivating event worthy of study. When I taught a class on American history at Concordia University Irvine last academic year, I spent a week on the witch trials with my class.
The trials occurred at a time when society has progressed to the point of maintaining strong legal structures and procedures. Persons had legal rights (even if not all persons were afforded the same legal rights…) Yet at the same time, belief in witchcraft was commonplace. As Montgomery rightly points out, putting a witch to death is "no more cruel or otherwise blameworthy than the impulse to put a murderer to death" in the 16th and 17th centuries. (61)
While these events may not serve as the most relatable subject to turn to when contemplating revealed law's place in our society, they serve us well to make the following argument, which is a nuanced once: while biblical law should serve as the foundation for societal law, we should not presume we have jurisdiction over what is solely God's jurisdiction to punish.
To explain, let us continue with Montgomery's arguments. At the end, we will return to that thesis and I believe it will make more sense if it does not already.
You see, Montgomery does not deny that the witch trials are deserving of criticism. But, he argues, the criticism lies not in the acts themselves–for viewed in their times and place, they were, in fact, rather reasonable–but they must be criticized on a legal basis. The substantive and procedural laws of the time must be criticized. (62-63) And this leads us not to a criticism of biblical law, but of Roman law.
At the time of the witch trials, there were two legal systems at work in the United States: the anglo common law system and the civil tradition on the continent. The civil/continental law sought a revival of Roman jurisprudence by the 17th century. The irony here is that the largely Christian nations on the continent were reintroducing the legal system that permitted the torture of Christians. (64-66) The anglo common law, importantly, did not permit of torture.
In analyzing the witch trials, one must begin with the understanding that at that time, witchcraft was not only real, it was considered such a heinous crime. Furthermore, it was "so difficult to detect" that special procedures had to be designed to stamp it out. (74) And where Roman jurisprudence had its influence, the permission of torture was not a far step.
Let us first note the difference between anglo common law and Roman jurisprudence, and then we shall return to the argument laid out at the beginning of this section concerning God's jurisprudence.
The clear separation of anglo common law jurisprudence and the "neo-Roman" jurisprudence on the continent is found in their respective attitudes towards torture. The anglo common law–with its roots in Scripture and Christian society–does not permit torture. Where torture of "witches" was permitted under this jurisprudence, it is the people to blame, not the legal system itself. (This is where many atheists will agree, and point to the people's religious zeal as the cause of this unjust torture in their argument against a "law above the law." We will address this shortly.) Roman jurisprudence, on the other hand, permitted torture and the heinous acts against the "witches" were perfectly in line with its legal system. Notice the difference here: the legal system that has no one to answer to and functions as a "law unto itself" is the system that legally permitted torture (again, ironically, at first of Christians!) The legal system that uses as its foundation the Scriptures did not legally permit torture.
But what about this religious zeal issue? How were these courts and judges able to circumvent legal procedure and permit the torturing and sentencing to death of witches without a proper trial? It was quite literally a witch-hunt. This is where we can find our nuanced position on the law above the law.
Remember the argument made earlier: we should not presume to have jurisdiction over what is solely God's jurisdiction. While we have a law divinely revealed to us, we were not given authority over everything, just over this land. What does this mean in concrete terms? In the context of witchcraft, it means that a "witch" cannot be sentenced to death without first acts of harm can be proven in the courts. It is harm to one's neighbour that we are to prevent and punish through the courts. One "mustn't forget that God is still in heaven and will provide final judgment. We mustn't attempt to prosecute hellish misdeeds with human law." (74-75) And where the people holding witch trials attempt to prosecute the devil himself and his unknown acts through witches, the prosecutors "dehumanize themselves" and unwittingly do the devil's work themselves.
When I was teaching my class about the witch trials, I asked my students whether perhaps the devil's work was not in the witches, but in the people who were putting them to death. Whether those who desperately attempt to stamp out evil are themselves the evil. Whether there is something a lot darker at play in the universe, much more difficult to pin down. Like trying to find your reflection in the dark, evil works its way through banality and good intentions, taking advantage of our lack of reflection and broader thinking. It is where man wants to "carry out God's functions" that we should be most wary. (80) When he wants to build "new towers of Babel to reach heaven"–remember the positive law movement mentioned above– or subdue hell as well as the earth, he is making the gravest of errors and welcoming the evil spirits in.
We should confine ourselves to "legislate where provable harm to the body politic will arise in the absence of law" (82) in accord with Holy Scriptures.
All references are to:
Montgomery, John Warwick. The Law Above the Law: Why the Law Needs Biblical Foundations, How Legal thought Supports Christian Truth, Including Greenleaf’s Testimony of the Evangelists. Dimension Books, 1975.