I AM TOLD THAT JUSTICE OLIVER WENDELL HOLMES said every judge should keep a roll of toilet paper on his desk to remind him that he's human. Sounds like a humble sentiment, but he didn't mean what you think. The idea was that men in black should not presume to be speaking for God-because they don't know any more than anyone else, and are just inventing it as they go along.
In his book The Common Law, Holmes wrote that "truth is the majority vote," and that the ultimate question of corpus juris is "what do the dominant forces of community want, and do they want it hard enough to disregard whatever inhibitions may stand in the way?"
The question of law, in its simplest terms, is the following: Does there exist an absolute standard that all human law must adhere to? Or is law only the evolving and changeable will of the people?
The great idea once was to elect Christians to the legislature. That was before Roe vs. Wade in 1973, the same year the American Psychiatric Association declassified homosexuality as an illness. It was before Canada legalized gay marriage and Bride magazine featured a gay wedding. It was before Chili's eatery ran an ad showcasing a de-closeted gay athlete, and lesbian couples were enlisted to sell Volvos. It was before "Boy Meets Boy" went from fringe to family fare. It was before the Episcopal church not only accepted homosexuality but gave it a bishop's mitre, and before Massachusetts' highest court made ready to consider the legality of gay unions.
So then we said the judiciary-and not the legislative branch-is where it's at. The name of the game is to get conservatives appointed to the courts of the land. But that illusion too evaporated when a majority on the United States Supreme Court nullified the 13 remaining state anti-sodomy laws-and lo and behold, the decision was read by a former appointee of President Reagan, and four of the six on the majority side were appointed by Republicans!
As if speaking out of time, Abraham Kuyper (1837-1920) described the present distortions:
"There is no other right but the immanent right which is written down in the law. The law is right, not because its contents are in harmony with the eternal principles of right, but because it is the law. If on the morrow it fixes the very opposite, this also must be right. And the fruit of this deadening theory is, as a matter of course, that the consciousness of right is blunted, that all fixedness of right departs from our minds.... That which exists is good, because it exists; and it is no longer the will of God, of Him who created us and knows us, but it becomes the ever-changing will of the State, which, having no one above itself, actually becomes God, and has to decide how our life and our existence shall be" (Lectures on Calvinism).
And you know what that Dutchman did? (This was an interesting fellow: journalist, pastor, theologian, and just for good measure, the prime minister of Holland.) He built himself a Christian university called the Free University of Amsterdam, and he fought to wrest it free of the Heemskerk law of 1876 that refused the granting of diplomas to any graduates who would not submit to the State examinations. (Kuyper didn't think it fair that students should have to master all the wrong stuff as well as the right stuff.)
And most interestingly, he insisted on a faculty of Law in his new institution-but not a school for the purpose of producing parrots of the world's law system. Rather, his Juridical faculty would start from square one, to "develop the idea of Justice itself ... as established by God Himself in the ordinances of His Creation and ... in His special Revelation" (Principles of Sacred Theology). He went beyond the generically conservative analyses to engage in a distinctively, self-consciously, rigorously biblical undertaking.
Might it not be time, a century later, to revive this statesman's proposal? Might we not even do for jurisprudence what Jay Adams did for psychiatry in the early '70s, when he wrested the discipline from its secular captivity and brought it to its biblical roots? Carting away 5,000-pound Scripture-enscribed slabs is easy, but the real battle is in the marketplace of ideas. Recovering the true foundations of law is a labor for a generation, but short cuts will not suffice.