Roe v. Wade based its pro-abortion reasoning on the 14th Amendment of the U.S. Constitution which provides citizen’s unalienable rights to “all persons born…” The Supreme Court stated, if “personhood” could be adequately defined, then the right (to life) of the unborn would be equally protected by law. The court reasoned, since “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [to the question of when life begins], the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Man’s knowledge evidently declined and the court refuted the constitutional clause for in utero persons: “[No] State [shall] deprive any person of life…[and] equal protection of the laws.” In this landmark decision, the judiciary retracted rights from a voiceless sector of the human race, neglected the legal responsibility to administer justice, and handed the question of morality over to the medical field, citing the legal philosophers’ and Christian theologians’ inability to agree on a definition as the primary reason. Since this blatant severance of the law from the Bible, “sixty-two million abortions have occurred.” This paper will establish adequate definitions of justice and rights, and assert the contemporary issue of “legalized” abortion violates the moral and ethical standards of biblical law.
Justice and Rights
Theories of Justice
Justice and rights are historically interchangeable terms, but both are desperately misunderstood, undervalued and misapplied in today’s pluralistic society. Paul McConnell explains the legal ramifications of basing law on personal “values”:
A perfect example of modern values (rather than moral standards) infecting the law is the decision of the Supreme Court in Roe v. Wade. Although the Court in Roe extensively discussed “rights,” it ultimately balanced one value against another…leaving the law in shambles, public morals shattered and…million[s] of babies dead. Rights cannot be defined outside of an objective standard of law, morality and justice.
Justice (mishpat) entails “righteousness,” allowing each soul the opportunity to be judged by God according to His standard of right.Isaiah 1:17 (New American Standard). Harold J. Berman observes, “Justice [was] called riht (Right)” in Anglo-Saxon folk law. Despite centuries of jurisprudential continuity, contemporary philosophers have sought to dissect and confound these scriptural terms. Consequently, several splintered legal theories of justice have emerged: individualistic, communitarian, symbiotic, and universal.
John Rawls based his “moral theory of justice on…individual rights…derived ultimately from individual liberty.” Rawls defined justice as, “…[A] product of the rational choice of individuals in giving up to society only so much of their liberty and equality as…necessary to prevent arbitrary interference in the liberty and equality of others.” Conversely, Michael Sandel “contended…any theory of justice must be based primarily on public rather than private ends…”
[Rather than] treat[ing] people as essentially atomistic…Sandel argues…real life…[brings people into the world] as part of a family, community, and ethnic and religious group…[This] is an essential part of our identity... Sandel suggests that justice/ethics should centre on…our connections.
Edgar Bodenheimer mediates between the two views: “…[H]uman nature contains both individual and social characteristics and…injustice will result unless a symbiosis of these two conflicting sets of characteristics is achieved.” Richard Rorty has challenged Rawl’s individualistic theory as being based not on human nature, but on the “twentieth-century American experience of democratic individualism,” and propounded a theory of justice based upon universal moral values and human nature. Unfortunately, the philosophers behind these segmented views have stricken the concept of biblical law from “their inquiry into the nature of justice,” crippling the intended meaning and weakening the jurisdictional authority of the word.
Progressivist theories of justice carry “strong overtones” to the “jurisprudential argument between natural law theory [biblical] and legal positivism [secular],” therefore, Berman suggests a holistic and “historical approach” to justice, asserting any valid form of justice must be based solidly on moral law.
It is doubtful that the debate concerning the nature of justice, whether in its classical or in its contemporary forms, can be resolved, or can even make sense, without reference to the historical context…in which justice and rights, individual and community, occur. [It] is necessary to restore and revitalize the historical school [of legal theory] and to combine it with natural law theory and with legal positivism in a new integrative jurisprudence, in which the virtues of each approach—the moral, the political and the historical—would be maintained and its vices corrected.
Many modern theories of justice are severed from the root and, therefore, unviable. Alternatively, Berman traces the lines of contemporary justice from its branches of ever-expanding individual rights and freedoms, down to a basis deeply grounded in “ancient Greek philosophy…Hebrew moral and religious thought, [and] Roman law.” Berman proves justice is sourced through Christianity, with its legal/moral principles integrally interwoven within the progression of European folk law, Roman civil law, ecclesiastical canon law (Catholic and Protestant), and British common law traditions. Contemporary evidence of the Christian legal heritage, which strongly advocates for justice and human rights, can be found in the United States Declaration of Independence and Bill of Rights (explicitly), as well as the Universal Declaration of Human Rights (implicitly). Berman’s historical analysis demonstrates morality and justice are rightly based upon the time-tested foundation of God’s law.
The first mention of a “just and righteous” man in the Bible is Noah. Genesis 6:9 (New American Standard). The base term (tsadeq) means “just; lawful; to turn to right in a moral sense; to be justified to God; [and] to do justice in administering law.”Dikaios is the New Testament Greek equivalent for righteousness, which means “judicial approval; approved by God; just in the eyes of God.” In the administration of justice, one must be true and understand the truth of God’s Word, wisely discerning what is good (holy) from what is evil (sin). Human rights and true justice are “conformity to God’s standard (law) and to God’s own being and will.”
…[T]hat which is due or proper, as to do right to every man. [It entails] the quality of being fair or reasonable. [I]t is certain that law cannot be divorced from morality in so far as it clearly contains, as one of its elements, the notion of right to which the moral quality of justice corresponds.
Justice is a quality of God, administered according to God’s biblical standards, with the expectation and responsibility for natural man to echo. Therefore, justice can be understood in the context of two primary “senses”:
In a moral sense [it means] upright; honest; having principles of rectitude; or conforming exactly to the laws, and to principles…in social conduct; equitable in the distribution of justice; as a just judge. In an evangelical sense [it means] righteous; religious; influenced by a regard to the laws of God; or living in exact conformity to the divine will.
The two senses of justice are to work in conjunction (not contention), according to God’s divine will clearly set forth within the Ten Commandments. Exodus 20:1-17 (Amplified Bible, Classic Edition). Adequate administration of justice includes: distributive justice (“distributing to every man that right or equity which the laws and principles of equity require”); commutative justice (“fair dealing in trade and mutual intercourse”); impartiality; a knowledge of equity; and a secure grasp of biblical morality.
Roman [civil] law defines the word right (jus) as “law,” and within the original Greek, Hebrew and Latin languages, right was not tailored to subjective rights, but objective duties—obligations of the individual toward God and others. Being “just” with “right standing before God,” included observing one’s duty of religion—or the right thing to do. Rights are defined as:
Conformity to the will of God, or to his law, the perfect standard of truth and justice;
Conformity to human laws, or to other human standard of truth, propriety or justice; and
Freedom from error; conformity with truth or fact.
Right is “that which is proper under law, morality or ethics; [it means] to know right from wrong.”Right is a “straight line of conduct, and wrong a crooked one,” the latter prone to “physical and ethical” violence, injury and exposure. “When laws are definite, right and wrong are easily ascertained and understood.” These “natural law” definitions are contrasted by Frederick Pollock’s crass discourse:
Right and wrong, in the legal sense, are that which the law of the State allows and forbids, and nothing else. To understand this is one of the first conditions of clear legal and political thinking, and it is Hobbes’s great merit to have made this clear beyond the possibility of misunderstanding. No one who has grasped Hobbes’s definition can ever be misled by verbal conceits about laws of the State which are contrary to natural right, or the law of nature, not being binding. All such language is mischievous, as confusing the moral and political grounds of positive law with its actual force.
Secular reasoning transfers the knowledge of good and evil from God to the State, which ultimately increases moral confusion. Roscoe Pound claims, “[T]here is no more ambiguous word in legal and juristic literature than the word ‘right.’ In its most general sense, it means a reasonable expectation involved in life in civilized society.” Roman civil law has defined right as “just law” and the common laws of England and common/civil laws of the United States have based “reasonableness” upon civil and canon (Scriptural) law and morality. There is no ambiguity if one draws meaning and guidance from biblical truth. Confusion ensues when theorists take sacred terms and desecrate them into secular ones—they struggle, then, to find adequate meaning, depth, application and authority in language.
Contemporary Legal Issue: Abortion
Regent University warns, “The continued practice of abortion will inevitably erode other unalienable rights, including the rights to liberty, contract, property and association.” Pro-abortionist, Anita Bernstein, calls a child in the womb a Zef—a science-based “acronym for zygote-embryo-fetus,” immediately dehumanizing the opposing party to her immoral argument (something she criticizes common and constitutional law for, regarding distributive justice per historical slavery and oppression of women). In this tactic, an in utero person is not considered fully human, therefore, it follows the full spectrum of human rights would not apply to the infant (i.e. life, liberty). Bernstein cramps inapplicable common law norms to abnormally “fit” her abortionist stance in a way that shocks the conscience:
The Zef [child] has no legal entitlement… By providing for self-defense and defense of property in parallel to the criminal law, tort clarifies that the right to withhold rescue includes the power to take affirmative steps [honoring a woman’s decision ‘to reject, expel, decline to help…and even kill’ the unborn child]. The body of a pregnant individual is a locus of property rights that include possession and dispossession. Unjust enrichment, a venerable common law doctrine, condemns the wrongful gains of a Zef inside its host [mother] when its host does not wish the pregnancy to continue; the common law of contracts supports the decision to withhold what another has demanded without giving anything in exchange.
While Bernstein addresses valid concerns surrounding the complex issue of abortion (rape, financial deficit, domestic abuse, and medical emergencies), she portrays the unborn human being as a threatening parasite guilty of trespass and invasion of property, while the mother is a helpless host-victim (assigned no accountability for illicit sexual relations as self-harm). 1 Corinthians 6:18 (New International). Justice requires living “honourably, not [in a way] to harm your neighbor.” It means, “to give every one his due,” including a child. Abortion fails the biblical test for justice, as an unborn child does not deserve crucifixion. John 10:10 (Amplified Bible, Classic Edition). The Bible states, “…having now been justified by His blood, we shall be saved from the wrath of God through Him,” and this includes little children. Romans 5:9 (New American Standard). To sentence the innocent to death, to not provide adequate remedy to wrongs, to favor a mother’s rights over that of a child, is an inequitable, unfair, and grossly partisan distribution of “justice.”
Likewise, Bernstein’s understanding of rights fails the biblical test, as abortion is not:
In conformity to the will of God, or to his law; and murder is contrary to the perfect standard of truth and justice.
In conformity to human laws, or to other human standards of truth, propriety or justice, which are properly based upon natural (biblical) law.
Freedom from error—it is wrong and out of conformity with truth or fact.
God’s perfect standard of truth and justice states, “You shall not murder (ratsach).” Exodus 20:13 (New American Standard). Ratsach means to “break, bruise, crush, dash into pieces, or kill (especially a human being).” The only way Bernstein could apply property, criminal, or contract law against the unborn infant, removing his or her rights, would be to separate Subsection 2 from Subsection 1 of this paper’s original definition of rights:
Conformity to the will of God, or to his law, the perfect standard of truth and justice.
Conformity to human laws, or to other human standard of truth, propriety or justice.
Freedom from error; conformity with truth or fact.
If the law becomes strictly secularist human law (Subsection 2), and not God’s law (Subsection 1), her outlandish legal basis becomes applicable through idolatry, and a judicial decision solely conforming to a human standard of “truth” (void of God’s standard of truth and justice) becomes plausible. The process of intellectually elevating man over God is erroneous. It divorces justice from human rights and morality from the practice of law. When law is no longer legitimate or authoritative, it becomes infected with corruption which breeds rebellion against the biblical moral compass. When legal theory is entirely secularized, fact or opinion can override everlasting truth. What one considers an “error” becomes subjective. The separation of Subsection 1 and 2 within this test illustrates the reasoning problem created by legal positivists on a mass scale.
Regarding natural justice, G.C. Cheshire wrote (in 1961): “Although the judges have frequently asserted that a foreign judgment which contravenes the principles of natural justice cannot be enforced in England, it is extremely difficult to fix with precision the exact cases in which the contravention is sufficiently serious to justify a refusal of enforcement.”Roe v. Wade was such a case. The court’s erroneous positivist and secularist view of rights and justice, which blatantly ignores all ethical, historical, and biblical definitions, now exposes the United States to potential legal ramifications under International Law. Part III, Article 6 of the International Covenant on Civil and Political Rights, which the U.S. ratified on June 8, 1992, states, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” “Chile, Cote d’Ivoire, El Salvador, Kuwait, Poland, Ireland, and dozens of other countries…” seek to codify abortion as a criminal act according to the natural law theory of justice.Abortion violates the moral and the evangelical senses of justice and any reasonable definition of equitable and fair human rights. While “legalized” abortion may conform “exactly to the laws” of immoral man—it is achieved through killing the innocent, something not “living in exact conformity to the divine will” of God. Abortion is, unmistakably, illegal.
TABLE OF AUTHORITIES
Roe v. Wade, 410 U.S. 113 (1973)………………………………………………............................................................ U.S. LEXIS 159