Integrative Jurisprudence: A Critique of Harold J. Berman's "Faith and Order"
The following is a mini-critique of Harold J. Berman's Faith and Order: The Reconciliation of Law and Religion (1993). Jurisprudence is the "theory of law" and, believe it or not, law theory impacts society in a multitude of ways ~ for better or worse. For instance, in a recent Equality Act debate, Rep. Jerry Nadler (D-NY) reportedly stated, "...[W]hat any religious tradition describes as God's will is no concern of this Congress..." Tony Perkins, Nadler on God: He's 'No Concern of This Congress' (March 1, 2021), https://www.frc.org/updatearticle/20210301/nadler-god. The primary legal traditions of the world are built upon religion. It is imperative that all Christians and citizens of the world know where the true concept of "law and order" derives from. There is one Source: the one True God. (See Exodus 20:1-21.) The Bible is the time-tested foundation of freedom. Christ Jesus and the Holy Spirit create the inward motivation for legislative bodies and citizens to pursue good conduct and moral behavior according to the Word of God. While Berman appeals for a reintegration of jurisprudential theories, he falls short of pointing to a Biblical worldview as the primary and historically proven compass for freedom and morality. The humanist/progressivist agenda to depopulate the planet (i.e., legalized drugs and traffickers; abortion/forced sterilization; same-sex propaganda aimed at youth) is a death and cancellation theory presumably "justified" due to limited natural resources. It is anti-freedom. Uncovered, it is an atheistically manufactured ploy for power reserved to the elite few accessed through the big business of the sole-State. While grave issues such as poverty and hunger need church/state cooperative solutions, the answer is not sin! It is not government mandated despondency or a corporate distortion of what constitutes "law". There are no short-cuts. The answer is simply faith and wisdom, leaning on God to provide as He always has. The biblical worldview lends toward life and acceptance of all human beings as God's precious created. It fosters a vision of a positive, commonsensical future. In essence, biblical jurisprudence holds that there is room in this world for every life. This alone expels unnecessary chaos and reintroduces peace.
Harold J. Berman describes an interconnected and internationalized “non-violent” world which is “entering the third millennium of the Christian era,” and simultaneously formulating a “new global legal tradition.” Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion 277, 278, 309 (1993). He observes this globalization phenomena, primarily governed by voluntarism to international law, is occurring at the same time the Western legal tradition is experiencing a crisis. Id. Krisos is the “judgment of God,” presumably transpiring due to the secularization and other blatant sins internally weakening a legal tradition which should be (as it once was) solidly and unapologetically grounded on a biblical worldview and, therefore, categorized by the blessings of God—a city shining on a hill. Matthew 5:14 (New International). While Berman suggests an “integrative jurisprudence—a legal philosophy which combines the three classical schools: legal positivism, natural-law theory, and the historical school” is the solution to this national, Western and global legal identity crisis, this author contests this is only plausible if by natural law, one means biblical law (Law of Nature and of Nature’s God; Old and New Testaments combined). Id. at 289. Berman attests this was the view held by “Pre-Enlightenment Christian” legal philosophers and writers. Id. at 292. Unfortunately, at the onslaught of religious and governmental freedom (which requires accountability to know and adhere to the Word of God, independently and collectively), mankind slipped into secularization and pluralism—the forerunners of anarchy. Brian H. Bix characterizes postmodernism as “rejecting the ideal of a foundational or transcendent source for truth…[and] all grand narratives” of a collective, purposeful history or meaningful future. Brian H. Bix, Jurisprudence: Theory and Context 293 (8th ed. 2019). Now, “the naturalists say that the ultimate source of law is reason and conscience, and its ultimate sanction is moral condemnation…” Berman, supra, at 293. But who sets this moral standard?
With no direct reference to God and/or Christ, segregate veins of secularist jurisprudence cannot reach biblical consensus and national, Western, and indeed global “law” is on dangerous ground. To illustrate the point, Berman’s hot topic is abortion, in which he claims the “President of the German Constitutional Court…did not [personally] oppose abortion [on moral grounds]” but made it “perfectly clear that after the Nazi experience of genetic engineering and racial extermination the German Constitution could not possibly be interpreted as permitting abortions.” Id. at 301. While a national lesson was learned, Berman’s argument for integrative success based on predominantly secular theories does not hold per this example, in that:
Germany is one country out of many which never engaged in such fanatical Nazism (therefore the “historical school” context does not directly apply on a global scale);
It is an adage that history repeats itself, and a historical event that is more than one generation past may not have the jurisprudential influence for those generations not directly affected, particularly in a self-aggrandizing culture; and
Post-Enlightenment natural law (morality based on man’s understanding of right or wrong over God’s stated truth) may subjectively shift argument-based “morality” off the objective biblical foundation.
For example, the biblical worldview is strictly against murder or taking a life which God has created. Abortion is clearly contrary to God’s universal standard and unchangeable law. Exodus 20:13 (King James). This view of morality has been skewed nationally, in Western law, and globally, with the primary forerunner being Roe v. Wade, along with the communist agenda (such as gender-selective abortion in China). The pro-abortion philosophy includes the following reasoning:
There is no common law history regarding abortion as crime—no set precedent, no “historical school”;
(Void of biblical standards), humanist morality or “secularized natural law” can be swayed to sympathize with the mother as a victim in all cases, therefore, the child is dehumanized and found guilty of invasion of privacy or property trespass, punishable by death;
Positive law is whatever man decides to make it; therefore, it becomes acceptable due to sociopolitical and economic factors to permit abortion for preservation of natural resources or to relieve the state of financial dependents (acts passed by a sinful majority). Anita Bernstein, Common Law Fundamentals of the Right to Abortion, 63 Buff.L.Rev. 1141, 1145 (2015).
In unique stance and stark contrast, the objective truth of God’s Word “shines on a hill” and holds regardless of the peg in history’s timeline, humanistic opinion, national or global jurisdiction, economic factors, or sociopolitical influences—aspects subject to change on a whim.
Allan C. Hutchinson muses, “The law is a profession of words; language is its stock-in-trade. Nevertheless, lawyers have shown little sustained interest in the nature of language and its relation to thought and action.” Allan C. Hutchinson, From Cultural Construction to Historical Deconstruction, 94 Yale L.J. 209 (1984). Berman states, “[H]istory alone…is as futile and as demonic as…morality alone.” Berman, supra, at 305. This is an unfortunate statement. Though Berman is advocating for checks and balances between his three main legal philosophies, there is something basically sad, and inevitably dangerous, in the deconstruction of biblical language. Morality is not demonic. Morality is a character trait of God and a biblical worldview is the only way to discover and maintain what morality means. Mark 10:18 (New International). Likewise, law cannot be morphed into strictly secularist terms. Law is God’s. The absolute truth found in the Bible cannot be hijacked to suit sin. Therefore, this author contests (if natural law is defined according to Berman’s Post-Enlightenment manner), secularized natural law, legal positivism, and historical jurisprudence cannot be successfully integrated to reach a result consistent with biblical principles—particularly over the spread of a millennium, without openly reintegrating the Bible into national, Western and global jurisprudence. It is this author’s considered recommendation that the United States step up morally and lead the nations, not in abortions, but in biblical morality, education and freedom in conjunction with honorable government and true law.