Okay, so we're moving from the essence of law to the expressions of the law, and we saw divine law flowing into natural law, which then flows into civil law, and we saw how the scriptures are a lens over all three of those. It's not as though there's some parallel track where the scriptures don't have any relationship to that, or certainly not any authority over that. It does. But now as we move into the order of law, We're now talking in a sense about a different subject, and particularly the sense in which moral theory flows into legal theory, and a contrast between the Christian way of looking at that, which the Christian explicitly makes the moral dimension inform the legal dimension, because it's theological. Well, there's some views that do that, they reckon with that, the classical liberal idea, But they can't. They can't ultimately root it in the Enlightenment. You had guys like John Locke, or, oh, I don't know. Even take someone like Jean-Jacques Rousseau, who, he's going to make a moral claim. He's going to say that man at a certain state in his nature and history was, you know, the idea of a noble savage, and that was a good thing. So you can't really argue for that. You can't really attach an ought to anything, a moral ought, without assuming some objective standard of right and wrong. We know that in Christian apologetics in general. I guess in a sense what we're going to say is here, Take that idea that you have in Christian apologetics that the unbeliever cannot ascribe an objective moral ought to something because he doesn't ultimately believe in an objective moral law. We'll just transfer that to the realm of politics. If it's true in general, then it's true about politics as well and public discourse. So, all legal theory rests on moral theory. Some legal theories attempt to deny this. Legal positivism And Marxism, for example, dismiss the objectively moral dimension of law as a cultural power play. Yet both assert the right of another kind of power to determine law. And what else is that but that that application of legal power is right and ought to be the case. So they're really trying to have their cake and eat it too. The difference between these two modern legal theories, namely positivism and Marxism, is that while Marxism deconstructs all civil law that runs against the revolutionary purposes of socialism, the positivist retains the right of law only by positing its moral character from the superior vantage point of each more evolved generation of wisdom. So the positivist is so named because it posits moral standards. In a sense, it does what existentialism does with the individual life and soul. Like, if you read Sartre or Camus, the whole project is to, because naturalism led to nihilism and Nietzsche, and that's a bad thing, that there's no meaning in life, well we're simply going to posit a meaning. Existentialists don't necessarily use that word. They're going to authenticate themselves. Well, positivism was just doing slightly more objectively, because socially, Positivism was doing a generation earlier, in the matter of law, what existentialism did to your own individual trip. And its reason for doing it, its ultimate justification, is that each generation is in a superior vantage point to previous generations. So we're not so much concerned with the stockpile of wisdom of the ages and their legal proceedings. We may study that to laugh at those drooling idiots back there. Oliver Wendell Holmes, for example, begins his book on common law surveying the origins of liability and looking at back in the formation of Roman law and even as you had to recover it among the Saxons and among the Franks, you had tribal vengeance and you had to recover that so the idea of justice emerged. So the clear assumption here is very Darwinian. Holmes is coming right after Darwin's origin of species and that makes a beeline, that evolutionary idea makes a beeline right into Harvard Law School. So, classical philosophy in the ancient world and modern liberalism, by contrast to these ideas, classical philosophy and modern liberalism, modern classical liberalism, you know, enlightenment, early enlightenment, each attempt to justify the civil law by a superior moral position. So there's two secular ideas that at least agree with Krishnananda on this point, that civil law has to be justified by a superior moral position that holds over all. That was just as modernism developed in the 17th and 18th century, turned into the 19th century, there's a more cynical view of objective eternal starting points hanging over us. Hegel transformed everything on the continent to this progressing idea, that we are progressing, before Darwin came around and did biology. So neither of those other ideas, classical moral philosophy or modern classical liberalism, neither can actually justify a superior moral right from within the secular city. So in both, there's at least a recognition of the moral priority in law, but there's a failure to produce it. There's a failure to point to this is why this ought to be such and such. So in the most basic sense, All non-Christian views of legal theory are positivistic in that they must posit a moral justification for the right of law, the legitimacy of a law, its principles, its applications. Ultimately, there's no standard that's eternal outside of a Christian view. So the way we're going to do this is, number one, the failure of positing the right of law And then we're going to take a pit stop and we're going to make a distinction between law versus legislation, the law-legislation distinction made most famous in the 20th century by Friedrich A. Hayek, and we'll get to that. But it's latent in Christian theory, even though Hayek was not a Christian. So the failure of positing the right of law, then the law versus legislation distinction, and that's going to show why the Christian moral-legal theory is necessary to begin with. And then thirdly, we're going to actually see the superiority of Christian moral-legal theory. So we're going to look at the failure, we're going to look at the law-legislation distinction, and then the superiority of Christian moral-legal theory. Here is the big idea. A very short one in this one compared to the other ones. Law without eternal justice is might makes right. So I'll say that again. Law without eternal justice is might makes right. You can flip it around any way you want, you can wish it away, you can try to overcome that, but without an eternal standard of justice, you are left with might makes right. Whether that might is sanctioned by the will of the majority, or whether that might is from the pronouncements of nine black-robed judges in a faraway capital in some supposedly independent judiciary, but really at the end of the day, whether it's the majority rule, whether it's a monarch, whether it's nine judges, whatever it is, law without eternal justice is might makes right. So that's what we're looking at here, the failure of positing the right of law, the failure. Let's take Oliver Wendell Holmes, I mentioned him, as a case in point. Since he had taken the philosophy of legal positivism directly into the universities and the judiciary, Holmes wrote the Common Law in 1881 to show within the minute species of legal theory that it is the experience of a people that determines law and ought to. Not logic and not abstract moralizing. So here's the trick. At first, Holmes seems to be saying the same thing as Blackstone and Burke, and we talked about him this morning. And in one sense, they are. They do have one thing in common. Blackstone, Burke, and Holmes are all going to have in common the commonality of law, the commonwealth. The idea that this is the way it is, and it ought to be the way it is, that legal precedent slowly accumulating wisdom represents a larger and therefore more legitimate will of the majority than one madman in a given time who may be given the sanction of the majority vote, but now is applying a priori principles, namely his own vision of what society ought to look like, and calling that progress. So on that one point, Oliver Wendell Holmes is kind of a conservative. And in fact, you'll see that in Thomas Sowell's writings, as you will in Russell Kirk, where he'll talk about Blackstone and Burke. But Sowell will talk about Oliver Wendell Holmes in the same breath as Blackstone and Burke in this sense. And in this one sense, it's true that there's a priority given to precedent. But in Holmes' case, now evolution has run its course. Blackstone and Burke weren't coming from that perspective. In the 19th century, when Holmes had in mind accumulation, One of the things he has in mind is we actually are smarter today. So if you mean precedent and gradually accumulating wisdom in the Commonwealth, if what you mean by that is an evolution of wisdom, that's going to contain the seeds of its own destruction. You're not at the end of the day going to wind up meaning the same thing as Blackstone and Burke. Because what Blackstone and Burke were saying was that this is a reflection of an eternal law. But Holmes disallowed that. So, at the end of the day, what the Commonwealth has come to in this increasing complexity of wisdom is, at least at that moment, more wise than the people, than those savages back there that, when the Saxons and the Franks and everybody were starting to move from vengeance to something like real legal right. Naturally, Holmes is going to define the essence of law differently than the Christian. He says, in order to know what it is, we must know what it has been and what it tends to become. You know, in a sense he's saying what Lyle, or was it Hutton, one of those two early geologists, had said in geology that the key to the present is the past. Or did I just get that backwards? The key to the past is the present. No, it's the key to the present is the past. Anyway, so you have this gradualism If it's true out here in nature, and he's writing right after Darwin, then it's true in law. Holmes' opening chapter on the history and the development of legal philosophy is the most interesting for our purposes. As he calls it, early forms of liability. He traces things back to the earliest record and argues that all earliest forms are rooted in vengeance. Which feud gives way to the composition which ended the feud. You're getting together to end the feud. which is really based on just honor and broken honor and so you would normally, kind of like a state of nature theory of his own, appeals were made for compensation rather than resorting to vengeance. In Anglo-Saxon law, this evolution was complete by the time of William the Conqueror, so 11th century. One difficulty is that rules are set down on the basis of cultural norms which pass out of existence. Those rules can either inspire new rationale befit themselves to the times or else be abolished altogether. And so what you have here is this evolution of the entire essence of law. And you're right back to where we started this morning with that definition from that secular textbook on political thought that the essence of law is never, so the word law or anything in it, justice, take your pick, is never the words conforming to some real state of affairs that just abides. Rather, the essence of things, or the words we use, the meaning we pour into it, is always arising from a particular context. The only difference with that definition is that Holmes is giving a particular evolutionary, inevitable upward trend to that essence, to those contexts. You can be sure of one thing, we're always getting better in our wisdom, in our legal wisdom. And yet, here's the basic picture that we introduced. Moral theory always precedes legal theory. Even views like positivism and Marxism that try to say, no, now the Marxist is being more cynical. He's saying that it's always a prop for power and therefore what you call morality and religion is really just this willing stooge or opiate to the masses for those in power that are using law. The positivist is going to have a more optimistic view of law, but nevertheless he's going to say that you posit this morality, your moral laws and customs are a result, as you proceed in evolutionary history, from law. So law to a secularist must be an expression of custom, must be an expression of context, cultural context. Rules to control naturally unruly classes, or maybe it's whatever the state says it is, Or maybe it's whatever the majority says it is. Or maybe it's whatever reason or progress dictate. Or at best, the secularists can say, they are rules aimed at some transcendent justice, even if that essence of justice is something off in the ideal future. But at the end of the day, you can't say that it's some ideal that's eternally there that we have access to now. That's disallowed. And yet, the modern secularist still needs objectivity in law. And this led one such professor, A. L. Goodhart, to define law as, quote, any rule of human conduct which is recognized as being obligatory. Any rule of human conduct which is recognized as being obligatory. Now the obligation is strengthened. as the majority is strengthened. You might ask him the question, obliged to what? What is this recognition? Are we recognizing an obligation that is inherently there or did it take a majority or something like that? So in his mind, the strength of it is the majority. As more of a majority recognizes it as obligatory, it is to that degree more objectively obligatory. So you need that but he's really just reducing it to majority vote and the greater the majority the better. Now, naturally, this is an utterly democratic definition of law. And just as naturally, it is subject to what John Stuart Mill called the tyranny of the majority. We might reply that a good enough majority carried Hitler's third right to power and upheld the institution of slavery in the South. So in other modern texts, we see no way of setting up the order of law other than restating the fact that this is the way it happened. This is going to become crucial. The normative doesn't just flow from the descriptive. The normative is the descriptive. The way it happened is also, you're going to find in these theories, the way it ought to be. It happened this way and ought to be this way, is what you're going to see. So, custom grew out of primitive needs and some of that custom was asserted into the civil sphere with the force of law. Some issues teeter on the boundary between conventional morality and legality, as for example the obligation to care for one's elderly. This is just one example. Most societies see the care of the elderly as a moral necessity, and they assign that duty to the family itself, whereas more secular societies in the modern era have transferred that duty to the state. And here we can see another downfall of such a shifting standard. Yesterday, it was a matter of indignation for the socialists to make sure the elderly were being cared for, and since the family either would not or could not do it, therefore the state must do it. But now the oldest class has become a burden on the command economy. So same people reasoning this way about the same demographic and particularly the baby boom generation heads into retirement. They're a burden on the economy. and the pleas to work them to death or eliminate them all together are becoming more common, although nicer words are used for both. So if you have a shifting standard of morality that leads into legality, then the same demographic that you have moral indignation over yesterday, you could say is a burden today, if you say that the state should do that. So that's an example of the failure of positing the right of law. So before I get to the Christian superiority to that, let me introduce, this is going to take the bulk of our time, the law versus legislation distinction. By the way, any questions on that at all, what legal positivism implies and how the evolution played into that? Just the ought to dimension, yeah. the way it is, and typically with these guys, the state-of-nature theory, the way it happened, the way it went down, and so it's a description of that. And that's particularly important in evolutionary theory, because in evolutionary theory, you are appealing to something ancient. You have to describe everything in terms of the way it emerged from the simplest life form to the most complex. That's naturally going to have an effect on our expectations of reason. We're always going to get smarter. Our expectation of wisdom, of listening to voices of the past versus voices now. It's going to affect all of that legally. The law versus legislation distinction. If you've followed everything so far, the law is an object that you know right away, as your theology flows into your moral philosophy and as your moral philosophy flows into your legal philosophy, there's going to be a law-legislation distinction. And so when I find non-Christians making this distinction, I'm thinking, good, can you explain the necessary conditions for that kind of a world? Do you have a foundation to your worldview that actually makes an objective distinction between law versus legislation, or do you just recognize that it had better be so? I can't tell you why it is so, but it better be so that the law is over the lawmakers. Okay, so law versus legislation distinction. If we remember the flow from divine law to natural law to civil law, we can understand the difference between the law as such versus human legislation. This distinction was crucial historically in the development of modern European states. Unlike in other civilizations, where the word of the earthly monarch was a heavenly decree, where law and legislation were absolutely inseparable, in the interim between Roman law and the climb out of the Dark Ages, and again, as I use that phrase I always have to footnote, I don't mean Dark Ages the way the Voltaire thesis meant it. I just meant a narrow, a proper way to use Dark Ages. Barbarian invasion, Charlemagne's reforms, you know, in there. And monks were building up civilization. I don't mean this massive thing between Constantine, because he was the bad guy, to Renaissance, because they were the good guys. Everything in there, superstition, darkness, people eating each other. I don't mean that. So I do mean that climbing out of that barbarian frontier, justice and law operated somewhat separately in those barbarian frontiers. Law re-emerged as a collection of several things. Roman writings, canon law of the church, tribal customs were a part of it, but they were certainly not the only thing, but mostly from the norms of scripture, which spoke to institutions which were quite independent from the state. So notice the law of God in scripture is speaking to non-political institutions. And what that does is it creates a context for the objectivity of law which is independent of the state. That's crucial to the psyche of a people and a civilization. law begin to be viewed as independent of the state, prior to the state, speaking down into the state, so that civil law, which is a proper material of the state, is subservient to something that transcends the state, and can be known by those people floating in and out of those other institutions, but by man who exists, same man in the family, as in education, as in the church, as in labor, as in the state, same man, bringing to bear this universal law down upon the state. Now, can a secularist hold to this distinction and rise beyond the merely secular equation of law to legislation? Because again, as we saw, from a secular vantage point, you can't really separate law from legislation. He can try. I'll give you two examples of guys that have tried. One guy who I really like, Friedrich Hayek. We would today call him a libertarian, though at the time he preferred to call himself a classical liberal. Still working on that word and correcting it. And then Francis Fukuyama, who's writing today. He's a bit of a neoconservative globalist. what he would think are free marketing tendencies but they serve a globalist integrating purpose and he's very much attacking the very foundations that Christianity upheld in that, but that's another example altogether. But these are two examples of thinkers who recognize the distinction between law and legislation and try to ground it in something closer to the ground, then religion. So let's look at Hayek first. And you can find Hayek's way of thinking about this particularly in a book called The Constitution of Liberty. The Constitution of Liberty is, quite honestly, the best book on political thought in the 20th century, period. That is the best book written in the modern era on political theory. It's about that thick. Hayek's book, The Constitution of Liberty, 1959, I believe he wrote it. But at any rate, so that's worth your getting. For Hayek, the distinction was mostly critical, that distinction between law and legislation. He was really operating on a critical baseless, namely criticism of what he called the constructionist view of law in the modern West, typically among the French, but on the continent altogether. A criticism of the view of law that elevated the rational innovator to the same place occupied by Adam Smith's invisible hand. So Adam Smith and a guy like William Godwin or Condorcet or one of the French revolutionaries, they would not disagree that the social contract and therefore law is designed. So Adam Smith is not saying that economic development, for example, or law is not designed and ought not to be designed. Smith would say it's designed in two ways. It's designed by each individual pursuing only his own ends. That's more realistic. And that's the part people get from Smith. But then they tend to miss that when he said invisible hand and therefore hands off, and let the individual ingenuity happen, he was not saying that this was not ordered. He was saying the best way to order it is each individual pursuing his own end. And it just so happens that it is ordered from top down as well, just not by a socialist, but by God. The problem is, if Adam Smith would have lived a little bit longer and seen the socialists in their most modern form, he would say, well, your problem is you think you are that invisible hand. So Adam Smith was not against top-down order. He just believed that was God's job through divine providence, and the way to make it run is this more systemic development that arises from these parts, pursuing ingenuity the only way that individuals can. But Smith saw, across the channel, those who saw themselves in that place, rational innovators, in that same place. Socialism was the new providence, the new intelligent designer of the civil sphere. The consequences, in Hayek's mind, of this irrational view were things like the French Revolution and the Bolshevik Revolution. And the basic reason for this failure could be found in the starting points and the naivete of its fundamental premise, namely that one or a handful of enlightened bureaucrats in a distant capital could organize the entire social and economic life of millions of people better than those individuals themselves. But notice that what works by contrast in Hayek's mind is a social order that arises from unintended evolutionary sources. So we've seen for everybody from Aristotle to Adam Smith the genius of each of the diverse parts, a division of labor of intelligent designers, movers. And Aristotle and Adam Smith and Hayek can all see the same thing, but Hayek is operating out of an evolutionary framework. The only things that are designed are the proximate choices of individuals. So Hayek takes the bottom floor of Smith's thinking, the non-theological part. In a way, you can say, you add Smith to the structure of Darwin. So Adam Smith plus Charles Darwin, you've got Hayek. You've got Hayek's thinking. Whether he extended this absolutely to a restriction of any level of providence, that's another matter. I think there might be some kind of an over-reading of Hayek there. I think Hayek and von Mises' point was simply that this isn't the role of the economist anyway, that's theology. I don't think they were saying, therefore I rule out an intelligent designer in any sense. But it just wasn't what they were focusing on. So the social orders are directed by trial and error, and for lack of a better phrase, natural selection. Risks that people take, that work, are retained. Risks that do not are weeded out. you know, in economic choices. The same thing applies to law. So Hayek cites the common law of the English as a major constraining player. In other words, it constrained the lawmakers. Lawmakers who would otherwise try to run the economy. He cites the English common law as a major good constraining force and a major player in the economic expansion in Britain in the 19th century. The essence and the value of the rule of law for Hayek was that there was a superior, ancient, encompassing body of law that represents the will of an entire people over against the will of the current regime, that might claim for one cycle to represent the will of a people, but that lacks that systemic wisdom of the whole people. So this common law severely restricts the claims of legislators through legislation. So Hayek tries to make that distinction, law over legislation. And he does it through common law, but that's as high as you can go. Now, for Francis Fukuyama, this is that book right there, The Origins of Political Order, if you want it aesthetically. And he was most famous for writing a book in 1992 called The End of History and the Last Man. which is a very naive, hideous thesis. It's nice that he likes capitalism and stuff like that and was clapping at the fall of the Berlin Wall, but that's the kind of thing that postmodernists look at. Postmodernists are both guilty of it and lash out any time a modernist talks like that. The end of history in the last minute. The thesis of the book is exactly what the title suggests. In other words, we won. It's over. The clash of ideologies is over. Capitalism is winning and is irreversible. It's irreversible? Well, stick around, buddy. It's a very naive thesis. He writes this book, The Origins of Political Order, I think it was last year, 2011. Very much evolutionary perspective, and he brings more of that state of nature and evolutionary explanation into it than Hayek ever does. For Fukuyama, the law, he's going to make a law-legislation distinction too, so listen to how he defines them. The law is a body of abstract rules of justice that bind a community together. Okay, rules of justice, they're abstract in an objective sense, but I don't think he means that, that bind a community together. They bind, okay, I'll buy some of that, Now he says legislation, on the other hand, corresponds to what is now called positive law and is a function of political power. That is the ability of a king, a baron, president, legislature, or warlord to make and enforce new rules based ultimately on some combination of power and authority. I would say based on some combination of the law which preceded legislation. So you can tell right now he's going to fail to really make the distinction. Because he's saying legislation is based on some combination of that power and authority. Well, I thought you were going to separate them and have the law transcend it, but he's not going to do that. So what holds the law for Fukuyama over the state officials in this thinking is the weight of the law's pre-existence. But it only exists prior in history, in an unbroken succession. So, kind of like the way Catholics define authority, Fukuyama's, in a sense, defining this authority of law over legislation. It all depends on a kind of succession, succession, succession, passing down this wisdom. So, he makes another distinction. The distinction, he says, between law and legislation now, corresponds to the distinction between constitutional and ordinary law. And if you were there earlier today, you know there's a distinction between common and statutory law. It's the same kind of thing. Constitutional in this general sense just means the makeup of the people, the makeup of the commonwealth. It could be written or it could be unwritten. But ordinary law is then legislation. So when you think of law per se, think of constitutional or common law. When you think of Legislation, think of ordinary law. So there's that distinction. The bigger circle's law, per se. The smaller circle inside of that is legislation. But you have to ask them, if legislation is rooted entirely in the power and authority of the current regime, how do you ever hold it accountable normatively to law? Just because it came before? What if that people gets wiped out? Is that law before it irrelevant? So by that standard, the case for American independence from Britain would have been really tough. Although there were some colonists that argued on that basis. In other words, arguing back to Britain what Burke did to the Parliament and saying, this is the ancient way. The British crown is straying from it, not the colonists. So at the Continental Congress in 1774, one representative from Virginia, Richard Henry Lee, argued that the rights of the colonists were built on a fourfold foundation. And this is going to be closer to the Christian view. He listed that fourfold foundation as one, natural law, two, the British Constitution, three, the charters of the colonies, and then, fourthly, what he called immemorial usage, which sounded a little less nebulous when members of parliament like Edmund Burke essentially said the same thing, to plea with his countrymen to leave the colonists alone. But you notice what's added there, natural law. the way things are and ought to be, ought to be as discerned for the way things are. That sounds descriptive like an evolutionist. No, it's different. Because by natural law, remember Aquinas, natural law is of or about divine law. You're saying that we can see by studying the laws of the nations. Not just that this is the way the Greeks and Romans and Chinese did it, but that they were, the reason they failed in trying to apply it is because they did not really adhere to the law as Cicero meant it, an unchanging eternal thing that stands over all people at all times. So by natural law these guys meant an eternal law evidenced through history. Now two other participants in that same Congress in 1774 argued the other way around. James Duane of New York and Joseph Galloway of Pennsylvania. They argued that a much better case could be made to Britain by appealing only to rights recognized solely within the British Constitution, and therefore in the form of the original colonial charters. And in that debate lies the difference between independence or subservience, because natural law was a law above British law. And if you can't say that, it makes it much more difficult to argue your point, that you have rights. At that point George is going to say the same thing the Pope does. decides what's in this constitution, what it means. And the same kind of thing is going to happen here. It's a question of authority. It's a question of truth at this point, legal truth. Well, Fukuyama's equation of this law legislation distinction to now constitutional and ordinary law is ominous for any civilization that reaches such a level of despotism for so long that there's no longer any recourse to turn the ship around. So, if you say that the highest court of appeals is the Constitution, you know, the ones that have stretched back from time immemorial, okay? What if it's been oppressive from time immemorial? A Persian could not argue to Artaxerxes, I have rights because I'm a Persian. And we Persians have been around for a long time. Because our exercise would have said, I know, and my parents have been putting to death idiots like you that say that to people as wonderful as me for a long time. Okay, so there's not a natural law that holds that accountable and explains that it's pretty ominous. For the Constitution is now at long last something wholly unjust in the setup. And this is just another way of saying that might makes right, so long as you give might enough time to be normalized. So if might makes right for a really long time, this distinction by Hayek and this distinction by Fukuyama really doesn't hold it in check. So in this model, the Constitution is the ultimate law of the land in the same way that the Declaration of Independence used to be held as primal. And when somebody from this position, Hayek, Fukuyama, When they look at American law, for them, the Constitution is the highest law in the land, which means the Constitution is the highest law in the moral universe. Whereas the founders would have said that the Constitution is the highest law in the land in accordance with those inalienable rights in the Declaration. The Declaration is actually a higher law in the moral universe that we have access to. It was legally foundational for it, not just because it was on a piece of paper, but because we hold these truths to be self-evident. The paper didn't make them so. That language meant it is the way it is, and therefore the Constitution. So Fukuyama actually comes to disagree with Hayek on how common law emerged and prefers the more evolving sociological definition of the rule of law. His criticism is that if our argument for the way law ought to hold sway over legislation is that this in fact is the way things evolved in history, well then the empirical evidence had better add up. So Fukuyama attempts to show in the course of feudalism's break from the simple tribal acts of vengeance that the emerging states in England and France shaped the common law as much as the common law stretched backwards. So, as we're going to see with Fukuyama's own definition, it doesn't do any better at escaping this descriptive normative cycle. It's pretty much a tautology. Why ought to it be that way? Because that's the way it is. Why ought to that be the way it is, Bill? Because that's the way it happened. That's the way it went down. And so therefore, there isn't anything else. Well, at any rate, Hayek gives us six necessary elements to the rule of law, and I think on this point he's going to agree with the Christian. We just have to redeem the prior categories and put it in its place. Hayek says six things are necessary to the rule of law. This is in the Constitution of Liberty, but this is just a summary of these six. Number one, the laws must apply to everyone, including state officials. But you can't do that unless, number two, the laws must be above everyone, including state officials. Now, how does Hayek do that in that infinite succession of common law? It's not infinite. The laws must be above everyone. So, number three, governmental power must be divided to prevent arbitrary power. Governmental power must be divided to prevent arbitrary power. Fourthly, the laws must be crafted by one body and executed by another. That's just a way to make sure that prevention happens, a division of the governmental powers. Fifthly, the judicial body must be independent to judge the law's fairness. So at this point, Hayek's thinking just like the American Founders did, and on that point we agree. And then, sixthly, the executive body must have little to no discretionary powers. Yeah, that didn't work out. Since that would make them a second legislature except with tanks and hazers and internment camps and bureaucracies and Federal Reserves and IRS's and other tanks and hazers and guns. Anyway, the rule of law comes to mean that we are governed by a general body of laws that control the legal authority and dictates of a particular man or a body of men serving in government. On that point, I think Fukuyama and Hayek want to agree, I just don't think they have any theological underpinning for it. The rule of law means that we are governed by a general body of law. that controls the legal authority and dictates a particular men serving at a time and place. As the 1780 Massachusetts Bill of Rights said it, a government of laws, not of men. So that's not just a maxim, a slogan, a little wishful, idealistic thing. Oh, wouldn't that be nice? But men will be ruling in either case. Okay, then you've not understood the distinction. The distinction is the distinction made by Ben Franklin. I'll quote him again, if he ever said it. When he came out of Independence Hall and the lady asked him, Sir, what have you given us? And he said, A republic, man, if you can keep it. So a republic is to the law what a parent is trying to teach self-control to his child. If you do not ascend to a certain level of A intelligence, B character, you're going to be somebody's cellmate in about five years. If you're not ordered from within, you're going to be ordered from without. That's all Franklin meant. And that's what a republic says, and the other forms of government don't say that. The superiority of Christian moral legal theory has pretty much been implied throughout, but I'll just summarize it and end here. The law is the highest object in civil society because it belongs to the highest part of man and binds him to God. This is the heart of the Christian view. Now we've said that all legal theory must fall back on moral theory sooner or later. Some views are simply more conscious of this dilemma than others. And again, the modern liberal view, championed by guys like Locke, and I'm all for reading John Locke again, his two treatises on government. There's so much, you always consider your source, there's so much nonsense in emerging Christian literature about secular starting points and modern Christianity by which they mean anything that ends in a period. is modern Christianity and John Locke was just a poster child for these people that believe that the state was constructed by a handful of rationally intelligent men coming out of savagery into this thing and so it's autonomous and blah blah blah. But Locke actually does ground his understanding of what life, liberty, and property are into concepts that are in the law in the Old Testament. But we'll come back to that later. Is one secular theory more amendable to the Christian position? Well, it would seem so if we examine the classical liberal tradition emerging among the English and revived in the 20th century by the aforementioned Hayek. So we'll think of guys like Blackstone, Burke, and Hayek as representatives. A good description of it, along with its counterpart, has been offered by Robert Ellickson, who called it a battle between legal centrists and legal peripheralists. And if I had a pen, and I don't, but I would put I put in the center the idea of legal centrists and then an outside circle representing the periphery, legal peripheralists. So a legal centrist, in Alexan's view, is one who believes that legislative laws create moral rules and ought to. So you'll see arrows coming out of the legal center. That's creating moral rules. So notice it is that way and ought to be. So, by contrast, a legal peripheralist is one who believes that informal norms are codified by legislation, and ought to be. Slightly more of an Aristotelian, not so much a philosopher king anymore. Or Adam Smith. These diverse parts, by moving toward their particular ends, come together over the centuries, accumulated wisdom, so on and so forth. But notice that in both of these two views, there's a descriptive and a normative element. So in other words, both views describe the way law and legislation relate in history, and in the same breath, see this as the reason why it ought to be so. The question is whether the reality that they claim to describe really justifies their norm in an objective way. In fact, the secular view is characterized by the descriptive being the normative and never telling us why it ought to be. Why should law relate to legislation in this way? Because it is this way. Now, if you think custom, building this up, is the same thing as Christianity, and sometimes even guys like David Hume are put in the category of conservative, politically, because he thought pretty much the same way. So custom is king. Well, in 1092, the Pope, Urban II, sounded very evangelical in contending with mere custom in this way. He says, quote, Dost thou claim, this is King James E time, Dost thou claim to have done hitherto only what is in conformity with the ancient custom of the land? Thou shouldst know, notwithstanding, thy Creator hath said, My name is Truth. He hath not said, My name is Custom." End quote. So, liberalism does to law and morality kind of like the village, not the village idiot, but the village madman, I think so once, maybe it was Russell Kirk that could Or maybe it was Chesterton, even further back, that compared the village madman, the innovator, the reformer, the guy who says, this is the way it ought to be, irrespective of the past. I'm going to change things right here and now. That's a madman a priori truth. And that's sort of modern liberalism's answer. The elitist, the innovator, the judicial activist. Well, conservatism swings to the other pendulum and says that the ancient way is the right way. Well, neither one of those takes into full account the Christian more sophisticated answer. So that's kind of what we're going to be looking at, and in the fourth final session tomorrow night, we're going to talk about how the Christian is related to the law and really the objectivity of law, and if the law is objective in its application. So we're going to draw it out in application. But if that's the case, what is the relationship of the Christian to the law and to justice in general? Because there's a justice in general that ought to order the Christians in politics.