by Kyle Swan
We can think of the rule of law and our equal treatment under it, like Hayek did, in terms of a generality norm. Decent society with others in the context of a political order will require limiting state coercion to the enforcement of general, abstract, impersonal, neutral rules that apply to all citizens equally. Rules that fit the norm will not afford special privilege or prioritize the interests of anyone over others. And no one is simply subject to another’s arbitrary will. According to Hayek, the generality of law is the most important feature distinguishing it from specific commands.
Consider this case: “Keith,” I command my neighbor. “Get your dog out of my yard.” Now I don’t, of course, rule over Keith. I don’t provide him with an arbitrary set of marching orders for his day or task him with directives out of nowhere (like “Keith: drop and give me 20 push-ups”) or establish for him a regimented pet-care routine. But in this case, I tell him that he must do this specific thing here and now. Obviously, it’s important in this case that we’re talking about my yard. Most of my other views about how Keith manages his day or his dog aren’t any of my business. In this case, though, the command is an application of a more general rule concerning private property, which always applies equally to everyone. The relevant rule suggests that whatever Keith decides to do “will have to satisfy certain requirements” or observe certain constraints, none of which hang on anything particular to myself or Keith (or his dog).1
Again, I’m not Keith’s master. He’s not simply subject to my will. Imagine he fixates on this and replies to my command thusly: “Hey, you’re not the boss of me. Mind your own business about what I do with my dog.” Keith is confused. His reply misunderstands a notion of authority that is inherent to the generality norm. Consider a different case. “Keith,” I command. “Walk your dog at least twice each day.” Keith’s response to this command would be entirely appropriate, rather than confused. The difference is that, while I don’t have authority over Keith (or his dog), I do have authority over my yard. Commanding him to get his dog out of my yard isn’t (exactly) telling him what he must do; rather, it’s more like telling him that when he’s deciding what he’s going to do with his dog, one of the things he has to take into account is me and my property line.
I review this account of the rule of law and our equality under it as a preliminary to my main question: Can you have the rule of law in a society organized under the rule of the God of traditional theism? It would seem not. All are presumed subject to his will and command. We simply have to wait and see what he will require of us and there is seemingly nothing to distinguish his rules requiring respect for others’ property (“You shall not steal,” Ex. 20:15) from those of the “Drop and give me 20 push-ups” variety (“Whatever in the water has no fins and scales is an abomination for you,” Lev. 11:12). This is simply divine command theory as social theory. However, closer examination of scripture finds God dealing with people covenantally. Accordingly, I will present a view of Biblical equality and attempt to salvage a notion of the rule of law by canvassing five prominent covenants.
1. Adamic
The covenant with Adam is generally understood by commentators as a covenant with creation. It begins with God’s first words to humanity, which includes the following directive: “Be fruitful and multiply and fill the earth and conquer it, and hold sway over the fish of the sea and the fowl of the heavens and every beast that crawls upon the earth” (Gen. 1:28). This is soon followed by two additional commands: “And the LORD God took the human and set him down in the garden of Eden to till it and watch it. And the LORD God commanded the human, saying, ‘From every fruit of the garden you may surely eat. But from the tree of knowledge, good and evil, you shall not eat, for on the day you eat from it, you are doomed to die’” (Gen. 2:15-17). It is, I think, at least odd to be confronted, seemingly moments after initial consciousness, with such requirements and threats. Furthermore, as covenants go, it’s decidedly one-sided — an unconditional or unilateral covenant. There are no negotiations. God doesn’t seek Adam’s input or agreement. Pre-Fall humanity is apparently subject to obligations God creates ex nihilo: fill the earth; take and exercise dominion over it; care for and develop God’s special garden but avoid the one tree.
But we can distinguish conceptually two parts of this covenant. The second part is obviously an unconditional or unilateral imposition of a requirement to avoid the tree of knowledge, good and evil (or else!). Is the rule arbitrary? In one somewhat unfamiliar, formal, legal sense it is. God, creator and owner of the garden and the tree(s), has the standing to arbitrate questions about others’ use of it. In a similar way, my command to Keith to get his dog out of my yard is arbitrary. It is not, however, arbitrary in another more familiar, informal sense, according to which it’s capricious or imposed without reason. In particular, the reason for God’s restriction concerning his tree was simply that Adam and Eve were not ready for it yet. For we know that the restriction concerning its fruit was temporary. God had first told them that “From every fruit of the garden you may eat” (vs. 16, emphasis added).2 When would they be ready to take of it and eat?
The story suggests that they first needed to be clothed with godly authority to take proper dominion. Most commentators say that the nakedness of Adam and Eve at the end of chapter 2 is symbolic of their innocence. Maybe it is, but it is also a symbol of their incapacity. Though sinless and unfallen, they had not yet matured in obedience and conferred the sign of their intended office. It’s the same sign that the prophet Isaiah anticipated: “My soul will be joyful in my God; for he has clothed me with garments of salvation, he has wrapped me with a robe of righteousness” (61:10).3 The plan, then, was for Adam and Eve to prepare themselves for this by, in an act of faithfulness, taking from the other special tree in the garden, the tree of life, confessing their complete dependence on God. He would then invite them to eat from the tree of knowledge, good and evil and bestow priestly robes authorizing them to begin their work transforming the world with the wisdom necessary to do it well. Instead, with a bit of prompting by the serpent, they seized for themselves, prematurely, the office and authority God had intended to bestow at the appropriate time (not to mention violating God’s property rights). The consequence was withholding access to the tree of life.
We are now in a position to examine the mandates in the first part of the Adamic covenant. These are, in an important way, different from the or-else restriction in the second part. These creation mandates are unconditional only at the surface-level and should rather be interpreted as having the following condition: “if you want to take part in my planned dominion project….” There’s no reason to think that Adam and Eve were strictly required to take up the office and authority God intended for them and to do the work of filling the earth and expanding the garden. The text presumes that they were interested — indeed, all too interested — in taking up the role. So there’s no reason to think God here heedlessly imposes a set of arbitrary (capricious) obligations on an unsuspecting couple or humanity in general, and thus no conflict in this covenant with our generality norm. We might look elsewhere.
2. Noahic
In Genesis 9 we find God unilaterally announcing to Noah and his sons, post-flood, a kind of renewal of the Adamic Covenant: “Be fruitful and multiply and fill the earth” (vs. 1). But wait, there’s more. He also will require an accounting for spilled human blood: “your lifeblood I will requite, from every beast I will requite it, and from humankind, from every man’s brother, I requite human life. He who sheds human blood by humans his blood shall be shed, for in the image of God He made humankind” (vs. 5-6). Finally, God announces that “never again shall all flesh be cut off by the waters of the Flood, and never again shall there be a Flood to destroy the earth” (vs. 11). This is confirmed by God symbolically setting his bow of wrath aside, up in the clouds (vs. 13-16).
The background to this further stipulation is God’s recognition of how badly the big project had been going. In chapter 6 God “saw that the evil of the human creature was great on the earth and that every scheme of his heart’s devising was only perpetually evil. And the LORD regretted having made the human on earth and was grieved to his heart” (vs. 5-6). To make good on the original plan, then, God finds he must, via a great flood, reverse creation. All will be destroyed apart from a faithful remnant — Noah and his family — plus “from all flesh, two of each thing…” (vs. 19). So what is to keep this from happening again and again? What will restrain and limit the effects of humanity’s evil such that God will not again feel the need to start the project over? This is the function of the central promise in the Noahic covenant: a general system of (apparently retributive) justice is introduced.4
Once again, we see that this is a unilateral imposition. The rule isn’t conditional on Noah or anyone agreeing to the terms. As before, Noah isn’t necessarily under an obligation to play any direct, intentional role in God’s plan for humanity and the earth (the first part of the covenant), but all will fall under God’s no-killing rule and be subject to sanction if they don’t comply (the second part of it).
Does God have the standing to unilaterally foist this obligation on humanity? It’s tempting to answer this question the same way as above: it was God’s garden and God’s trees, and he said not to eat of one of them. Likewise, humanity is God’s creation and so he has the authority to set the terms of their mutual interaction. Accordingly, “from humankind…I will requite human life” (vs. 5). Maybe there’s something to this answer, though we should note that people are different in important ways from trees. One normatively significant difference is that people are agents, possessing the capacity to engage in conscious, reflective deliberation about what to do, make a decision, and act on it. Maybe you’d really like it if another person would do something (like do 20 push-ups, or walk their dog twice each day), but you don’t generally have the standing to obligate others to do it. The best reason to think you don’t is because of the standing they have in light of their agential capacities. And, though God doesn’t have an obligation to create such creatures, if he decides to create them, then it makes sense that he shouldn’t treat them as mere things that he can unilaterally and arbitrarily (capriciously) bind, threaten, or enlist in whatever project he comes up with.
The generality norm reveals that the no-killing rule isn’t like that. Every rational agent has compelling reasons to insist on a common-sense no-killing rule that obligates others. These reasons fall out of their interest in functioning as a decision-making agent. In that case, my reason for insisting upon it is the same as yours. At a minimum, it would be weird to violate the generality of the no-killing rule by insisting that others exercise restraint and respect it when it comes to my life, while exempting myself from having to follow it. I’m obligated to follow the rule because I’m rationally committed to it. I’m subject to the rule, but also (in a sense) author of it, whether or not God announces his intention to enforce it. It isn’t, therefore, some arbitrary imposition God simply springs on us. If anything, it’s an assurance that he has it in mind to protect this clear interest we have. Accordingly, most commentators interpret the Noahic Covenant as a covenant of “common grace” given to all of humanity equally. A no-killing rule is the most obvious candidate for one satisfying the generality norm. Maybe “don’t take other people’s stuff” is another.
3. Abrahamic
We can’t say the same about God’s covenant with Abraham. Without so much as a “hello,” God confronts him with a stark directive: “Go forth from your land and your birthplace and your father’s house to the land I will show you. And I will make you a great nation and I will bless you and make your name great, and you shall be a blessing. And I will bless those who bless you, and those who damn you I will curse, and all the clans of the earth through you shall be blessed” (Gen. 12:1-3; see also Gen. 15 and 17).
As we have recognized above, it may be plausible to interpret this interaction as an unconditional demand placed upon Abraham to “go forth,” etc. In that case, it is simply God exercising the prerogative of a ruler over one who is ruled. Abraham may have some interest in the arrangement (the promised blessings), but this is of little (zero?) normative significance concerning the authority of the directive. God said “go forth,” but he could have just as easily said “stay put” or “hop on one foot” or “drop and give me 20 push-ups.”
Though this may be plausible, we have seen that it isn’t necessary to interpret the scene that way. Alternatively, we may also interpret the requirement to go forth as conditioned on Abraham’s agency and his wanting to go along with God’s project. Despite God being scant on details, Abraham evidently had sufficient confidence that God would deliver on his promised blessings. So he “went forth as the LORD had spoken to him” (vs. 4), which effectively sealed the deal.
In that case, Abraham actually consents to the covenant, but it is an example of implied rather than express consent. Abraham never explicitly says “Ok, I’m in. I will follow you; you will bless me.” But anyone should reasonably infer Abraham’s agreement from his objective actions. Implied consent, of course, is a valid mode of consent, and it would be very inconvenient if it weren’t. For example, when I order a Double-Double with grilled onions at In-N-Out, I agree to pay for it even if I never say so, and I’m not confused when the cashier presents the bill. I created the expectation that I would pay by making the order. Moreover, though unexpressed (explicitly, verbally), my agreement has decisive normative significance. Even though I have some interest in the arrangement (the promised burger), In-N-Out can’t unilaterally impose food on me and expect payment just because it’s such a good deal. Plausibly, the same goes for God and Abraham. God promises to make from Abraham’s seed a great nation and other blessings if he follows. If Abraham doesn’t signal his agreement by going forth, then no deal.
Perhaps consent isn’t everything, neither always necessary nor sufficient for the kind of freedom that is worth wanting or preserving by the rule of law. We can distinguish between the freedom people have to enter a covenant and the freedom they have in it. Even if Abraham was at perfect liberty concerning the former, in it he is subject to some rather ad hoc commands about where to go and what to do next (see, for example, Gen. 17:9-11). Hayek writes concerning consent: “It would be difficult to maintain that a man who voluntarily but irrevocably had sold his services for a long period of years to a military organization such as the Foreign Legion remained free thereafter in our sense; or that a Jesuit who lives up to the ideals of the founder of his order and regards himself ‘as a corpse which has neither intelligence nor will’ could be so described.”5 This is a fair complaint and perhaps for some a good reason not to agree. As for Abraham, “he trusted in the LORD, and [God] reckoned it to his merit” (Gen. 15:6).
4. Mosaic
The covenant at Sinai is distinctive from others in scripture in a few ways. First, it primarily sets out explicit rules of conduct, ten commandments, rather than mostly relatively vague promises of blessing. Second, God makes the covenant with an entire people, lately delivered from Egyptian captivity, establishing them as a national entity. This provides an added dimension in the covenant where there are not only rules and obligations between those covenanted and God, but also rules and obligations among covenant members, the citizens of Israel. But commentators also identify lines of continuity with God’s previous dealings with people. For example, the ragtag group wandering around in the desert doesn’t look like much, but they represent the nascent “great nation” God promised Abraham. The land God sent him to is the same “promised land” Moses is leading the people of Israel to inhabit. When famine in Canaan sent Abraham’s “seed” into Egypt’s Goshen (Gen. 47:4-6), they relaunched the Adamic mandate and “were fruitful and multiplied greatly” (vs. 27), which drew the ire of a new regime in Egypt “who knew not Joseph” (Ex. 1:8).
These lines of continuity suggest that all the post-Fall covenants are part of a single restoration project of which Exodus 19-20 is the next approximation. Eden was an earthly place where humanity could meet with God and where they were supposed to have the role of a kind of priestly vassal king to watch over the garden and extend its boundary lines to encompass the entire world. The Fall threw a wrench into the works, but Plan B was under way and the promised land would be the base of operations where God would tabernacle with his people and from which they would renew the effort to spread his righteousness throughout the earth.
And so at Sinai, “the LORD called out to [Moses] from the mountain, saying, ‘Thus shall you say to the house of Jacob, and shall you tell to the Israelites: You yourselves saw what I did to Egypt, and I bore you on the wings of eagles and I brought you to Me. And now, if you will truly heed My voice and keep My covenant, you will become for Me a treasure among all the peoples, for Mine is all the earth. And as for you, you will become for Me a Kingdom of priests and a holy nation. These are the words that you shall speak to the Israelites’” (Ex. 19:3-6).
God is once again offering people a role in his project for the earth and humanity. How will they respond? Will they agree? “And Moses came and he called to the elders of the people, and he set them all these words that the LORD had charged him. And all the people answered together and said, ‘Everything that the LORD has spoken we shall do” (Ex. 19:7-8).
Did they know what they were getting themselves into? “And Moses came and recounted to the people all the LORD’S words and all the laws, and the people [apparently, the elders] answered with a single voice and said, ‘All the words that the LORD has spoken we will do….’ And Moses wrote down all the LORD’S words…. And he took the book of the covenant and read it in the hearing of the people, and they [not just the elders] said, ‘All that the LORD has spoken we will do and we will heed’” (Ex. 24:3-4, 7).
“Nah, dog,” you might have said. “That ain’t for me.” Fine. In that case, the laws wouldn’t apply to you. These people were being given an opportunity to get in at the ground floor of God’s relaunch, and they expressly agreed (explicitly, rather than it being merely implied, and at least two times). But the opportunity to opt in implies an opportunity to opt out. After all, the laws cover more than a basic no-killing rule that every rational agent has compelling reason to follow. The covenant includes all kinds of strange cultic practices, dietary restrictions, etc. God presents these as necessary if Israel was to perform its special role, but they don’t apply to those outside the covenant. For example, most of you can, just like Israel’s contemporaries could, permissibly eat all the scallops you like. No consent? No covenant. Otherwise, it would be implausible (impossible?) to maintain the idea that people have the free and equal moral status of genuine agents.
5. The “new” covenant
Hebrew scriptures reveal that the Israelites were not overly diligent covenant keepers. There were a few bright spots, but they ultimately made little progress in the project to make the earth “filled with the knowledge of the glory of the LORD, as the waters cover the sea” (Habakkuk 2:14). Instead, “every man did what was right in his own eyes” (Judges 21:25). Their instincts were to solve this problem by having the prophet Samuel “set over us a king to rule us, like all the nations” (I Sam. 8:5). So they cast God aside (vs. 7) despite Samuel’s warning concerning the subjugation and arbitrary commands they open themselves up to under a king: military conscription, corvée labor, other takings and taxation (see vs. 11-17). It turned out even worse than advertised, with most of the kings leading the nation astray and frequently into bondage and captivity.
The prophet Jeremiah looked forward to a future delivery: “‘Behold, days are coming,’ declares the Lord, ‘when I will make a new covenant with the house of Israel and the house of Judah, not like the covenant which I made with their fathers on the day I took them by the hand to bring them out of the land of Egypt, My covenant which they broke, although I was a husband to them,’ declares the Lord. ‘For this is the covenant which I will make with the house of Israel after those days,’ declares the Lord: ‘I will put My law within them and write it on their heart; and I will be their God, and they shall be My people’” (Jer. 31:31-34). This would make good on all of God’s covenantal promises. Jeremiah continues, “I will bring them back to this place and have them live in safety. They shall be My people, and I will be their God…. I will make an everlasting covenant with them that I will not turn away from them…. I will rejoice over them to do them good and will faithfully plant them in this land” (32:37-40).
But the point isn’t, with apologies to Joni Mitchell, to get back to the garden. Remember, the covenant mandated the expansion and transformation of the garden. In the Revelation to John, the transformed garden is presented as a city: “And I saw the holy city, new Jerusalem, coming down out of heaven from God…. And I heard a loud voice from the throne, saying, Behold, the tabernacle of God is among the people, and He will dwell among them, and they shall be His people, and God Himself will be among them” (Rev. 21:2-3). And guess what we find there: “In the middle of its street, and on either side of the river, was the tree of life…” (22:2).
Christians say this new covenant was initiated by the ministry of Jesus and his atoning death and glorious resurrection. The “good news” is that he suffered agony in a garden (Matt. 26:36-39) so that faithful covenant members could have the life associated with the original one. Entry is nonetheless voluntary. For some, this heavenly city might seem like hell. In that case, God provides a place of continued separation for those who aren’t interested.
It’s true that societies regimenting an explicit, concrete telos don’t have a great track record with respect to the rule of law and people’s equality under it. Too often, political pursuit of the goal takes precedence over whatever protections there are against the arbitrary exercise of power. I have argued that protections are more robust than many think in the Biblical vision. There we see normative relations that condition divine authority. Most often it is based on actual consent, though we identified a model of presumed consent in the Noahic covenant and implied consent in the Abrahamic covenant. Furthermore, we saw that these covenants are established against a background of jurisdictional rights — both those God has over his creation and those people have as full-fledged agents.
NOTES
- So Hayek says that “law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.” ↩︎
- Also, in Genesis 1:29: “And God said, ‘Look, I have given you every seed-bearing plant on the face of all the earth and every tree that has fruit bearing seed, yours they will be for food.‘” ↩︎
- See also James Jordan, “The Dominion Trap.” He connects the robe motif with John’s vision in Revelation 19 where “the glorious white robes of the saints signify not only their cleansing, but also…investment with robes of office….” ↩︎
- Robert Alter’s translation note on verse 6 speculates that “the ban on bloodshed at this point suggests that murder was the endemic vice of the antediluvians.” The Five Books of Moses (NY: Norton & Co., 2004), p. 51. ↩︎
- But it’s not obvious that the covenant was irrevocable from Abraham’s side. After all, he could just not “go forth” or even turn back if the move wasn’t all it was cracked up to be. God might have then withheld the covenantal blessings, but there were no threatened covenantal curses. Therefore, a notable sense of equality and freedom is yet maintained. ↩︎
Kyle Swan is the Director of the Center for Practical and Professional Ethics at CSU-Sacramento, and a Professor of Philosophy there, too. Send him mail.
Isonomia Quarterly 