Wednesday, February 27, 2008

Natural Law Symposium Questions: Is Mercy Part of the Natural Law?

One of the questions raised at Liberty’s Natural Law Symposium was whether or not mercy is a part of the natural law. Some of the professors in attendance indicated that they believed it was not. They thought that only justice was required by the natural law or the moral law and that mercy is something else altogether.

I believe that mercy is part of the natural law. To begin with, it is always difficult when we begin attempting to completely parse and radically separate divine attributes. Both mercy and justice are attributes of God. They find their pure expression in His own nature. As a result, true justice and true mercy must be in some way compatible or reconcilable in the person of God and in the person of Jesus Christ. Certainly we see this in God’s fulfilling the law in Christ and providing for our salvation through His sacrifice of Himself in atonement for our sins. But what do justice and mercy mean for human government?

As this blog has pointed out before, human law cannot be based on the pure totality of the moral law. All human beings violate aspects of the moral law every hour of every day. As a result, we cannot enact the moral law into human law and then enforce it in its entirety. To begin with, many violations of the moral law are simply beyond the state’s power to find out. And it would not be good to have a state with the totalitarian power to figure out what we thought or said. All human legal systems have to be a compromise. They must be based upon true morality but they cannot require everything that is moral or forbid everything immoral. If they did so, no human being could stand before the law. Since this is true at the very root of the nature of human legal systems, and since the natural law is a revelation from God intended in large part not only to encourage human self-government but to provide an international and trans-cultural standard for human government, it follows that it must be part of the natural law to recognize that human government must incorporate a compromise with pure morality. It should be the case that all human beings are aware of the fact that they are incapable of meeting the demands of pure and absolute morality. Hence they all know by reason and intuition that human government must be a compromise with the demands of absolute morality that both restrains evil for practical purposes and also allows human freedom in some way so that we are not all constantly guilty of violating the government’s rules all the time. Human law should forbid only the worst crimes, things that most of us can avoid doing most of the time. It would seem obvious from the nature of human government as ordained and designed by God. The inherent limitation of the scope of human law is an inclusion of mercy in human law – an inclusion supported by the Natural Law as in tune with God’s nature, God’s design for human government, and necessitated by human nature.

Many people try to deal with this question of the limited power of government by asserting that government’s power is limited by its “jurisdiction.” In the Scriptures they seek to find implied jurisdictional mandates limiting the power of government. While I respect this effort, I do not believe that it is really the strongest argument. While there are implied jurisdictional notions in the Bible, none of them are discussed expressly. In addition, while we do see substantive discussions of the roles of government in advanced non-Christian societies, we do not see the concept of jurisdiction as such appearing internationally and trans-culturally to the degree that one would expect if it were the primary limitation on government in the natural law or divine order of creation. Instead, I would say that the notion of jurisdiction is partially related to the application of other deeper concepts. One of these deeper concepts is the idea of mercy - that government must to some degree be merciful instead of requiring absolute morality and absolute justice.

We can see that Mercy is part of the Natural Law if we look at human reactions to an historic situation. One of the rulers of ancient Athens was Draco. Draco’s name is tied to the origin of our word “draconian.” Draco’s law ordered the death penalty for nearly all crimes. Draco said “the lesser crimes deserve death, and I have no greater penalty for the greater crimes.” Draco was succeeded by the Solon, the composer of Athens democratic constitution. Solon replaced the laws of Draco with a new legal system that did not punish all crimes with death, and allowed juries to choose between a penalty offered by the prosecution and a penalty offered by the defense. The Draconian code could be said to be supported by the moral law because “the wages of is death.” If there was no mercy in the Natural Law or in Justice then the Draconian code might be the most just. But we do not recognize it as such. Instead, generations of people, including generations of Christians have heralded the laws of Solon as more just and more in accord with Natural Law and Justice than those of Draco. While generations of humans can be wrong, their opinion on the application of universals like justice is some evidence of the truth – especially when not contradicted by scripture.

Proportionality of penalties to crimes and the mitigation of sentences when appropriate are both aspects of Natural Law, Justice and Mercy. The three go together rather than being in strict opposition.

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