Tuomala, Jeffrey C.

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Liberty University Law ReviewVolume 2 | Issue 2 Article 42008A Response to Dean Herbert W. TitusJeffrey C. TuomalaFollow this and additional works at: http://digitalcommons.liberty.edu/lu_law_reviewThis Article is brought to you for free and open access by the Liberty University School of Law at DigitalCommons@Liberty University. It has beenaccepted for inclusion in Liberty University Law Review by an authorized administrator of DigitalCommons@Liberty University. For moreinformation, please contact scholarlycommunication@liberty.edu.Recommended CitationTuomala, Jeffrey C. (2008) "A Response to Dean Herbert W. Titus," Liberty University Law Review: Vol. 2: Iss. 2, Article 4.Available at: http://digitalcommons.liberty.edu/lu_law_review/vol2/iss2/4RESPONSETHE BIBLE AND AMERICAN LAW:A RESPONSE TO DEAN HERBERT W. TITUSJeffi-ey C. TuomalatDean Herb Titus once counseled me as a young law professor not to addresscontroversial issues too gingerly because it is important to evoke a livelyresponse from students. He then acknowledged that his own teaching tended attimes not to evoke a response, but to provoke a reaction, and that reactions cansometimes interfere with learning.The proclamation that the law governing people and nations is revealed inthe Bible, as Dean Titus asserts in The Bible and American Law,' is bound toprovoke a reaction in some listeners. They will scoff. Other listeners willrespond and want to hear more. Still others will believe it, and theirprofessional lives will be inexorably changed.2The claim that the Bible is singularly important for American legal educationis not novel. As Dean Titus notes in God, Man, and Law: The BiblicalPrinciples,3 David Hoffman, professor of law at the University of Maryland,required his students to read the Bible as part of their legal education. Hiscontemporary, Joseph Story, in his inaugural discourse as Dane Professor ofLaw at Harvard University, stated: "There never has been a period in which theCommon Law did not recognize Christianity as lying at its foundation. ' 4 DeanTitus has provided examples and, in effect, argued the case that God's truth asrevealed in the Bible not only establishes the foundation of civil law, it providesthe superstructure and many of the furnishings as well.At the heart of the Western Legal Tradition is an idea that there exists a bodyof law, a corpusjuris, in which all of the particular rules of a polity are relatedto one another and are summarized by principles in ascending levels ofgenerality.5 That law forms a corpus juris in which all rules cohere as acomprehensive and consistent whole is distinctly biblical. Christ instructed thet Associate Dean for Academic Affairs and Professor of Law, Liberty UniversitySchool of Law, Lynchburg, Virginia.1. 2 Liberty L. Rev. 305 (2008).2. "When they heard about the resurrection of the dead, some of them sneered, but otherssaid, 'We want to hear you again on this subject.' At that, Paul left the Council. A few menbecame followers of Paul and believed." Acts 17:32-34(a). All references are to and quotationsare from the New International Version unless otherwise indicated.3. HERBERT W. TITUS, GOD, MAN, AND LAW: THE BIBLCAL PRINCIPLES 15 (1994).4. THE LEGAL MIND IN AMERICA 178 (Perry Miller ed. 1962).5. HAROLD J. BERMAN, LAW AND REvOLUTION: THE FORMATION OF THE WESTERN LEGALTRADITION 9 (1983).HeinOnline -- 2 Liberty U. L. Rev. 329 2007-2008LIBERTY UNIVERSITY LA W REVIEWlegal experts of his day that the Two Great Commandments, to love God and tolove your neighbor, provide the general principles, or foundation, if you will,upon which all the particulars are understood as holding together. We mustturn to the entire Bible in order to build the superstructure and provide thefurnishings of the body of law. Conversely, it is to all the particulararticulations of truth revealed in the Bible that we must look in order to fullyunderstand the meaning of the Two Great Commandments.The Ten Commandments stand in something of an intermediate positionbetween the Two Great Commandments and all the particular commands of theBible.6 While the Ten Commandments provide a particularized exposition ofthe Two Great Commandments, they also provide a general framework forunderstanding all the particulars. The relationship is such that to changeparticular rules risks changing the meaning of the general principles. 8 Forexample, to know when we may take life without violating the SixthCommandment we must look to the entire Bible. The more particularexpositions of the law found in the Bible enable us to understand when lifebegins, whether capital punishment is lawful, when and how it is proper to6.Hearing that Jesus had silenced the Sadducees, the Pharisees got together. Oneof them, an expert in the law, tested him with this question: "Teacher, which is thegreatest commandment in the Law?"Jesus replied: "'Love the Lord your God with all your heart and with all yoursoul and with all your mind.' This is the first and greatest commandment. Andthe second is like it: 'Love your neighbor as yourself.' All the Law and theProphets hang on these two commandments."Matthew 22:34-40.The Bible communicates a moral order in which all of the particulars ("the law and theprophets") are summarized in the Ten Commandments, and these Ten Commandments are inturn summarized by the Two Great Commandments. The Bible in this way reveals law as acorpusjuris, so much so that a violation of any one law is a violation of the entire law. See,e.g., James 2:10.7.Let no debt remain outstanding, except the continuing debt to love one another,for he who loves his fellowman has fulfilled the law. The commandments, "Donot commit adultery," "Do not murder," "Do not steal," "Do not covet," andwhatever other commandment there may be, are summed up in this one rule:"Love your neighbor as yourself." Love does no harm to its neighbor. Thereforelove is the fulfillment of the law.Romans 13:8-10.The Golden Rule also provides a summary of all the entire law found in the Bible. Jesussaid; "So in everything, do to others what you would have them do to you, for this sums up theLaw and the Prophets." Matthew 7:12.8. "For this is the love of God, that we keep his commandments." 1 John 5:3 (KJV).[Vol. 2:329HeinOnline -- 2 Liberty U. L. Rev. 330 2007-2008A RESPONSE TO DEAN HERBERT W. TITUSwage war, whether we may be angry, and whether we may be angry withoutsinning. Left with only the general principles, to love God and your neighbor,we would be unfettered in following the vain imagination of our hearts as wethink about law.9 Any course of action might be rationalized as the most"loving." As we study and practice law, we must approach the Bible expectingthat God will answer when we pray the Psalmist's prayer, "Open my eyes that Imay see wonderful things in your law."'10Not surprisingly, most lawyers and law professors believe that the Bible isirrelevant for the study and practice of law. Even many Christian professors,lawyers, and law students share the perspective that the Bible has little or norelevance for civil law. Perhaps more tellingly, many have never given it anythought. There are also Christians, of extremely diverse theologicalperspectives, who having given it thought, share a "natural law" perspective.They assert that appeals to the Bible are unnecessary, imprudent, or evenimproper."l For the sake of convenience, I will refer to those holding theseviews as naturalists, and, for the sake of brevity, I will only address theirassertions that appeals to the Bible are unnecessary. The naturalists' basicargument is that the general principles of moral law, the content of which is,incidentally, quite similar to the Ten Commandments, is revealed in nature orwritten on the heart.' 2 They believe that it is not necessary to look to the Bible9.The goal of this command is love, which comes from a pure heart and a goodconscience and a sincere faith. Some have wandered away from these and turnedto meaningless talk. They want to be teachers of the law, but they do not knowwhat they are talking about or what they so confidently affirm.We know that the law is good if one uses it properly. We also know that lawis made not for the righteous but for lawbreakers and rebels, the ungodly andsinful, the unholy and irreligious; for those who kill their fathers or mothers, formurderers, for adulterers and perverts, for slave traders and liars and perjurers-and for whatever else is contrary to the sound doctrine that conforms to theglorious gospel of the blessed God, which he entrusted to me.1 Timothy 1:3-11.10. Psalm 119:17.11. See, e.g., C.S. LEWIS, THE ABOLITION OF MAN (1943), in THE ESSENTIAL C.S. LEWIs 428,435, 441, 448 (Lyle W. Dorsett ed. 1998); J. BuDzIszEwsKI, WHAT WE CAN'T NOT KNOW(2003). I have encountered this natural law perspective among Episcopalian, Baptist, RomanCatholic, Reformed, and Church of Christ law faculty members.12. Romans 2:12-16 is often cited in support of the naturalists' position. Romans 2:12-16reads:All who sin apart from the law will also perish apart from the law, and all whosin under the law will be judged by the law. For it is not those who hear the lawwho are righteous in God's sight, but it is those who obey the law who will bedeclared righteous. (Indeed, when Gentiles, who do not have the law, do by nature2008]HeinOnline -- 2 Liberty U. L. Rev. 331 2007-2008LIBERTY UNIVERSITY LAW REVIEWto gain an understanding of the general principles of the moral or natural law.Because the moral or natural law is written on every person's heart, naturalistsbelieve that we simply "can't not know" it.13Some naturalists believe that they can convince non-Christians toacknowledge the content of the moral law written on their hearts.14Presumably, once this task is accomplished, the naturalist and non-Christianlegal positivist are able to agree on a conception of the common good-thatstate of society in which people abide by the moral law written on their hearts.The formulation and enforcement of the civil law becomes an important, if notthe most important, means of promoting the common good.Unless the naturalists believe that the particulars of the civil law are alsowritten on the heart, they must switch methodologies as they attempt toformulate the particulars of civil law. Naturalists fail to reckon with the factthat they are in the same untenable predicament as the legal positivists, andmust rely upon the same impoverished methodologies, when it comes togenerating the particulars of civil law from the extremely general moralprinciples written on the heart. For example, legal positivists are unlikely todisagree with the basic principle that murder is wrong. But how are particularlaws regarding the taking of the lives of burglars, enemy combatants, convictedmurderers, and unborn children to be determined? By some utilitariancalculation of societal costs and benefits?The legal positivists' methodology of choice for generating the particulars ofcivil law is happiness-enhancing, efficiency-maximizing, empiricism.15 For thenaturalist and legal positivist alike, the civil law becomes little more than autilitarian instrument for creating a social order in which people are compelledto do that which promotes the common good. Civil law, when enlisted as aninstrument for establishing the desired social order, contains little necessarythings required by the law, they are a law for themselves, even though they do nothave the law, since they show that the requirements of the law are written on theirhearts, their consciences also bearing witness, and their thoughts now accusing,now even defending them.) This will take place on the day when God will judgemen's secrets through Jesus Christ, as my gospel declares.Id.13. See BUDZISZEWSKI, supra note 11.14. See generally LEWIS, supra note 11; BUDZiSZEwSKI, supra note 11.15. For an introduction to classical Benthamite utilitarianism and its impact on legalpositivism see GEORGE H. CHRISTIE AND PATRICK H. MARTIN, JURISPRUDENCE 502-17 (2d ed1995). For an introduction to Law and Economics, a more contemporary school ofjurisprudence based on efficiency and hedonic values, see id. at 1147-78. Budziszewski doeshint at a methodology for deriving particulars not based on a utilitarian calculus. BUDZasZEwsYI,supra note 11, at 48-50, 227-34.[Vol. 2:329HeinOnline -- 2 Liberty U. L. Rev. 332 2007-2008A RESPONSE TO DEAN HERBERT W. TITUSmoral content. The enterprise of civil lawmaking becomes an invitation for thenaturalist and legal positivist to embark on a venture of arm-in-arm social,political, and economic experimentation on a grand scale. Without the moreparticular formulation of law and guidance found in the Bible, the naturalistbecomes in effect a practicing positivist.The Bible, in both the Old and New Testaments, provides a clear statementof those general principles of moral law that are written on sinful human hearts.It seems to be an unnecessarily daunting task to discern general principles oflaw without looking to the Bible where they are written. It is even morechallenging, if not impossible, to discern more particular principles and theirapplication without looking to the whole Bible. Without that particulardirection the naturalist's methodology is likely to become little more than vainimagining.God has promised to equip us for every good work. 16 The legal profession isa good work-it is a ministry of justice. Our chief equipment is a properunderstanding of the weightier matters of the law-"justice, mercy, andfaithfulness."' 7 Fortunately, we are not abandoned to pursue that good workwith little direction other than the moral law written on our sin-darkened hearts.The Apostle Paul tells us that "all Scripture is God-breathed... so that the manof God may be thoroughly equipped for every good work."' 8 The entire Bibleaddresses every good work, including lawyering.Our nation places itself in a precarious position as it rejects the Bible asirrelevant for law and policy. We are in much the same position as God's OldTestament people, Israel. The prophet Amos pronounced God's judgment onIsrael for its perversion ofjustice.19 The sanction was a famine of the hearingof God's word.20 The involuntary removal of God's word from the public lifeof his people was a curse. Contemporary legal education embraces this curse.It is not simply famished, it is anorexic; refusing the very sustenance that canrestore its life. Justice Oliver Wendell Holmes, Jr. was wrong when he wrote16. 2 Timothy 3:17.17. "Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth ofyour spices-mint, dill and cummin. But you have neglected the more important matters of thelaw-justice, mercy and faithfulness. You should have practiced the latter, without neglectingthe former." Matthew 23:23.18. 2 Timothy 3:16-17 (emphasis added).19. Amos 1-9.20. "'The days are coming,' declares the Sovereign LORD, 'when I will send a faminethrough the land-not a famine of food or a thirst for water, but a famine of hearing the wordsof the LORD."' Amos 8:11.2008]HeinOnline -- 2 Liberty U. L. Rev. 333 2007-2008LIBERTY UNIVERSITY LA W REVIEWthat the life of the law is experience. 21 Rather, the life of the law is every wordthat proceeds from the mouth of God.22Considering the founding and history of this nation, it can be dishearteningto realize that the Bible, which is the foundation of law and which gives it life,could be so utterly forgotten, neglected, and discarded. Neglect of the Bible innational life is nothing new, but neither is its rediscovery and restoration.During the reign of King Josiah, as the priests were repairing the Temple, theyhappened upon the Bible, which had been lost.23 The high priest gave it toKing Josiah's secretary who then read it to the King. Judging from Josiah'sreaction, public policy based on the discernment of the law written on his hearthad not served him or the nation well. He ripped his clothes and ordered:Go and inquire of the LORD for me and for the people and for allJudah about what is written in this book that has been found. Greatis the LORD's anger that bums against us because our fathers havenot obeyed the words of this book ....Hopefully, those who hear or read Dean Titus's message will react andrespond as King Josiah did. Josiah reacted with horror-not scoffing-whenhe realized how far astray Israel had gone from the Bible. Then he respondedby seeking to understand the full meaning of the law written in the book andimplementing it.Sometimes, Dean Titus, provoking a reaction is a very good thing.21. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (MacMillan 1887) (1881).22. "Jesus answered, 'It is written: 'Man does not live on bread alone, but on every wordthat comes from the mouth of God."" Matthew 4:4.23. 2 Kings 22.24. 2 Kings 22:13.[Vol. 2:329HeinOnline -- 2 Liberty U. L. Rev. 334 2007-2008

A Response to Dean Herbert W. Titus

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A Response to Dean Herbert W. Titus

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