This bonus episode will be published Thursday 26 Sept 2024 https://reformedlibertarians.com/bonusC
Kerry:
This is another BONUS episode. I’m Kerry Baldwin, here with Gregory Baus. In this bonus episode, we interview Dr. David VanDrunen. We consider his reply on several points to Pastor Taylor Drummond’s critical article that we discuss in episode 17. The title of that article is “Fool’s Gold?: A libertarian analysis of VanDrunen’s account of state legitimacy” and it examines particular arguments in Dr. VanDrunen’s book Politics After Christendom.
In this episode Dr. VanDrunen
1. expresses his appreciation for Drummond’s article and our episode discussing it,
2. raises questions concerning immoral complicity if the state is taken to be illegitimate,
3. offers some clarification about his (up to this point) not having differentiated monopoly states from non-monopolistic civil governance in his writing,
4. raises questions concerning what sort of consent is normative for the customary legal order’s own legitimacy and its authorizing function,
5. raises the question of when abuse or injustice might categorically disqualify one from rightfully possessing authoritative office and its relation to political resistance,
6. and, at the end, responds to our proposal how a fuller, non-aggressionist view of proportionality in the lex talionis of the Noahic Covenant entails a conclusive argument in favor of the exclusively protectionist purpose of civil governance law.
David VanDrunen is the Robert B. Strimple Professor of Systematic Theology and Christian Ethics at Westminster Seminary California since 2001. He is ordained as a minister in the Orthodox Presbyterian Church and serves on its Committee on Christian Education. In addition to Politics after Christendom: Political Theology in a Fractured World published in 2020, he’s the author of many other books and articles, some of which we’ll link in the shownotes.
Doctor VanDrunen, thanks for joining us and for offering some responses to Pastor Drummond’s article, and our episode 17 in which it was discussed.
David:
Well, thank you for having me on. I appreciate the invitation. And I suppose to start, I feel like I should probably say that I haven’t really been thinking a lot about the particular question that is our focus, the whole question of state legitimacy. It’s not something that’s a regular part of what I do or what I’m thinking or writing about. And even in my Politics After Christendom, which was what Pastor Drummond was interacting with in his review article, the particular question of state legitimacy wasn’t a major part of the book. It was a topic, but there were all sorts of other things that I was doing as well. So I guess I put that out there maybe as a way of making excuses for myself right away, or at least to say that some of the ways that you think, or maybe some of the topics that you address or some of the way that you talk about them may not be exactly what I’m thinking of. And there may be some disconnects in terms of the terms we use and the like, and you can feel free to stop me and ask for further clarification. But having said that, I want to say that I certainly did appreciate Pastor Drummond’s review. I’ve never met him, so I have no personal connection with him, but as an author, I certainly do appreciate those who read a book carefully and make a really genuine effort to try to understand the author’s concerns and the author’s arguments, and it’s not always the case that you get that. So I certainly appreciated that. And I did appreciate the fact that I received this interaction with this particular argument because as you can probably imagine, the things in my book that got most people’s attention was not the argument about state legitimacy. It was about all sorts of other things. And I’ve read lots of reviews and had lots of discussions with people about it and they’re always about other things in the book other than this. And so to see a review that actually engaged this argument, and I put some thought into this argument, I think I made a somewhat not entirely original argument, but a somewhat original argument. And to see something try to take that seriously was something that I appreciated. And also, as you can probably also imagine, most people who interact with my book, if anything, they kind of push on me for having a sort of a too limited view of government. And so they’re pushing me from the bigger government side. So to have someone beat me up a little bit from the other side is very unusual. So that’s kind of fun too. So all that’s to say is that I appreciate this unique conversation that’s unique in terms of my own experience and engaging people with my book. Maybe I should also say this, that I appreciated the tone of the review and I listened to your podcast interview with Pastor Drummond and I appreciated the tone of that. And it was, I felt like it was done in a cordial, collegial way. And that of course, is not always the way things happen either. So I appreciate all of those things. So, you know, I don’t have a, what you might say is a formal review. I didn’t write up something that I’m going to read to you. I really just have several points that I made note of that I thought might be interesting to interact with, which I think do get at major points of the review. I’m not going to try to respond to every single point. That really wouldn’t be possible and certainly not everything in the review is equally important in terms of the overall discussion. I think it might be helpful, I don’t be helpful for listeners, but I think it seems fitting for me to begin with some biblical issues, In Drummond’s review, he dealt with some of my biblical arguments later in the review of the last section, whereas at least when I was talking about state legitimacy that came early in the book, and that was fine that he wanted to construct his review that way. But of course, I mean, I’m a minister of the gospel. I’m a professor of theology and ethics. And so my first concern really is the biblical exegetical issues. And doing what you might think of more political or legal philosophy arguments is a secondary thing in sort of the big picture of my own life. So I thought it would be fitting for me to address one or two issues in that last part of his review regarding my biblical comments. So I got the review printed out here, page 74 of his review. I’m not assuming that your listeners have it before [them]. So this is more for my own reference here. Pastor Drummond made an initial comment about my, it wasn’t really my argument from 1 Peter 2 and especially Romans 13 early in the book. I did make more extensive exegetical discussion of Romans 13 later in the book, but early on I made a very brief appeal to Romans 13 and a couple other texts as kind of a basic text that suggest state legitimacy. And Drummond makes the comment that it’s entirely plausible, here I’m quoting him. It is entirely plausible that in Romans 13 and 1 Peter 2 Paul and Peter are merely instructing Christians on their duties toward the state, viewed as a de facto holder of power and not as a morally legitimate institution. And I do think that there are certain things that Paul says in that text. I don’t really think there’s anything really that new that 1 Peter 2 brings into this discussion, but it’s focusing on Romans 13. I think there’s something that Paul says that could be amenable to that interpretation that is sort of dealing with an institution that has de facto power. And so Paul is instructing Christians about how you deal with it given the facts on the ground. I do find that to be less persuasive with certain other aspects of that text. Maybe I could put it this way. You can feel free to correct me, but I take it on a sort of libertarian-anarchic view that the state is not that different really from the mafia. The mafia is an organization that holds de facto power. They exact money from people or other kinds of duties from people, and they promise some sort of protection, and dispute resolution in return, and don’t really give people the option to opt out. So if that’s the case, I think it is very possible that Paul could have said pay taxes in the same way that if a mafia hitman showed up at my front door and said give me X number of dollars or I’m going to break your thumbs, I probably would give him the money rather than risk the bodily injury. And yet I would do so obviously not recognizing, well, let me put it this way, in very biblical terms, I probably wouldn’t come away from that engagement saying, well that mafia hit-man was God servant and I probably wouldn’t say I really owe him honor; God really wants me to honor that person in the organization that he represents. So I would just make that very brief comment on Romans 13 and I guess we could talk about it more later if you want. But maybe the one other thing that I thought I would interact with briefly, maybe a little more length than what I said about Romans 13, but a little bit later in his review, Drummond was interacting with my brief argument that the New Testament records the conversion of a number of state officials, which I think is unarguable. That’s just a fact, and that, in these incidences, these people were never instructed to leave their posts. I didn’t make an elaborate argument there, just very kind of briefly noted that in an introductory section of my book. And Drummond’s response to that, he, of course didn’t agree with that, and he —let me just note a couple of things that he said. One thing he said was that the practical effect of these men leaving their office would have in all likelihood been the increase of evil. So if these men, these tax collectors or these military officials, had left their positions, it would have probably increased the evil that these tax collecting and military institutions did. And let’s see, a little bit later he says it is at least plausible, so he puts it kind of cautiously there, is at least plausible that Christian ethics would permit someone to be part of an unjust fallen-world system if by doing so they could mitigate the injustice. So I think it’s a similar point to what he was saying a little bit earlier. And he comes a little bit later, he speaks a little bit about the military men who are converted, and then he comes to the tax collector examples. One is Zacchaeus and he says Scripture says nothing about Zacchaeus remaining tax collector. I guess that’s true of itself. It doesn’t comment about what Zacchaeus did in the future. But he does acknowledge in Luke 3 that when a tax collector came to John the Baptist and said teacher, what shall we do? And John said, collect no more than what you have been ordered to. So he basically tells him to keep doing what he’s doing, but to do it in a different way from the way he was, presumably. And so Drummond actually admits that, and I appreciate the fact he didn’t try to ignore that text or to get away from the issue. And his final statement, in that section, he speaks about his hypothesis that Christians may serve in the state, even in positions that would not exist in a free society, if they may restrain state evil. Now I think I have to say that when I made the brief reference to state officials being converted as a basic hit and run argument for state legitimacy, it never occurred to me that this argument would give a libertarian anarchist such a difficult time. I just don’t think I thought about that. But it strikes me that this is one of the weakest parts of Drummond’s review and I kind of think that he senses that, and I guess I just want to follow up on that a bit. It seems to me, if I understand him, his ultimate response to the, I think, a potential problem for an anarchist position that here someone converted to Christianity and this person is instructed to keep doing the same work, but just to do it in a kind of an honest way. His response to that is that is OK, it’s OK to work for the state as long as it restrains evil or somehow it minimizes evil in the world. I guess that would be my own way of putting what I understand his argument to be. And I, as an ethicist, I find that a problematic argument. Now it seems to me that of course in a sinful world, all institutions are, they’re sinful, there’s evil in all of them. And so of course we as Christians are constantly participating in institutions that are corrupted by sin, whether that be families or businesses or the church for, for that matter. But I think we believe that we can participate in these institutions despite their fallen character because we think that they are inherently legitimate. They are corrupted, but they’re inherently legitimate. But if one draws the conclusion, or if one has a conviction that the state is inherently illegitimate, then I have a hard time seeing the justification for participating in it. Just to try to think of an example, I mean, I think we as Christians would say that a brothel is not a legitimate economic organization. You might say that it’s legal. It might be legal in certain places, but we would say it’s not legitimate. If someone came to me for counsel, someone who had just been converted to Christianity, somebody who worked in a brothel and says, well, thinking about, you know, what am I supposed to do? And if I leave my job, you know, these women who work for it are going to be treated more badly if I leave than if I stay. It seems to me that on Drummond’s argument it would be perfectly legitimate for me to say in response, well, you should, at least, you may keep working in the brothel because you’re gonna minimize evil. And it strikes me that that is, that’s not a valid moral argument. At least it doesn’t strike me as a place where I would want to go. So it seems to me that that is a real weakness in Drummond’s response. If you have any comments or if you think there’s a sense of that, I’d be interested to hear that. I’m actually, I say that very honestly. I’m hoping in the very near future to be doing some research and writing for a chapter of a book I’m writing on the issue of complicity with evil. And this is I think a major issue that we as Christians face in this world. In what ways can we participate in the things of this world without becoming guilty for the wickedness that inhabits these organizations? So I don’t know if you have any follow up.
Gregory:
Well, let me just, I guess, restate what I think are your main points and I’ll see if I understand what you’re saying, that if the institution of the state as such is viewed as illegitimate, it’s not necessarily to say that some things it does, some activities that it engages in, aren’t legitimate. But if the institution itself is illegitimate, like the mafia, so the mafia might run a pizza parlor as part of their organization, but the issue is if you know it’s being operated by the mafia, would participating in its activities necessarily compromise your moral obligations. And I suppose those possible gray areas, or the thing that needs to be addressed is, is there a difference between breaking people’s thumbs for protection money and say, bar-tending or playing the piano in the parlor of a brothel? Those things in themselves aren’t wrong, necessarily. To be a bartender or play piano, but to do so in association with an organization whose basic activities or way of going about them are immoral or illegitimate, to what degree is one made complicit? So I would say, before you addressed that point you did reference Romans 13. And I think as Reformed libertarians we take a somewhat different view than Pastor Drummond does and as I read in your book. But that aside, I think the question of complicity in participation in the state still does require —and then of course not in the abstract, but also how that can be understood on the basis of statements or what the Scripture is teaching, understood in those terms, in terms of what John the Baptist says to the tax collector and so on— I do think that requires some more elaboration. So I don’t have any particular objections or contrary points to make or challenges. But as far as positing the issue that’s involved, would you say that’s, as I’ve described it, what you were saying, or talking about?
David:
I think yes, for the most part. I think it would be worth it, if we were going to explore this further, which I take it we’re probably not going to spend the rest of our time talking about this particular point, but it would be interesting to explore whether there’s a difference. So if you use the example of, you know, what about the busboy at the Mafia’s pizza parlor as opposed to the guy who was actually breaking thumbs. And I think that is definitely, that’s worth thinking about the difference between them and whether or not that requires morally different conclusions about whether it’s legitimate to that. Obviously we wouldn’t say illegitimate busboy, but is it illegitimate to be a busboy working for this sort of organization? But I think at the same time, in the example of Zacchaeus or the tax collector that John the Baptist spoke to, we’re talking about a tax collector. And if I understand where you’re coming from, again, I’m always open to correction for not understanding a particular point, but it strikes me that taxation kind of gets right at the heart of it. It’s one thing to say, well, we think, you know, sweeping the streets should be done by a private organization rather than by a government employee. I think probably the three of us would agree that we would rather have it done privately, but I think it’s one thing to say, well, sweeping streets is still a good thing, it’s nice the streets get swept so we can ask the question is it OK to to work for the state even if you don’t think the state is the ideal institution to do it. But it seems like tax collecting would be the means of funding the whole organization. The whole organization rests on this, so taxation is sort of like the thumb breaking in the mafia, it strikes me. And so —I’m trying to get into your shoes— it seems to me that it requires more thought than just saying it’s OK to play the piano in the brothel or to do the dishes at the pizza parlor for the Mafia. It really kind of strikes at the, I think, at the heart of the state apparatus.
Gregory:
Yeah. So we’ll receive that point of criticism and we’ll let it marinate, as they say. We’ll give it more thought and maybe come back to that in a future episode at some point.
David:
I thought it might be helpful or appropriate, at least for those who had maybe read my book or have read the review or listened to your previous podcast to try to clarify what I think are some fair questions that everything raises about some of my terminology or exactly maybe what I mean by certain claims that I make. And I’m turning over to page 59 in the review, which is fairly early in the document. And Drummond, he notes that I claimed in my book that the state is an involuntary institution, it operates on the basis of coercion or the threat thereof, everything it does, and that the state doesn’t permit those within its jurisdiction to opt out. So I did say those things as I was trying to set the stage for my argument. And I also said as I was making my argument about legitimacy, that, as he puts it, the only thing he (meaning me, Van Drunen) takes exception to from the modern conception of the state is its monopoly status. So in my book, I also, I even, in my defense of state legitimacy, I say I’m not defending monopoly status. And I can understand why that could produce some confusion, especially if you define the state as having monopoly. So it almost sounds like I’m saying, I’m defining a bachelor as someone other than an unmarried man or something. So let me just, I think it’s fair enough that I just try to explain, I think briefly, I’m going to try to do it briefly, what I had in mind. It didn’t seem like a contradiction in my own mind when I said that. So I have to back up I guess to think about my claims regarding the customary legal order. And Drummond talked quite a bit in the review about what I said about the customary legal order. He was for the most part very appreciative of what I said here and I appreciated that. So the customary order as I understand it would be the way that a particular society or community operates, what are the customs that characterize the life in any community. And by customary legal order, I was referring to those aspects of the customary order that are regarded as obligatory or binding upon people. So they’re parts of the customary order that no one’s gonna care if you break it, or that if you act outside of that customary order. But there are certain aspects of the customary order that if you back outside of it people are going to think that you ought to be restrained or punished or provide recompense or something like that. So my broader argument is that we should understand law as the customary legal order. Law is not a top-down idea in which it is decreed by state institutions, but law is more of a bottom-up kind of phenomenon in which the binding norms of a society are those that arise through the ongoing spontaneous customary developments of that community. As I understood the review, Drummond didn’t have a problem with the way I understood law, and it makes sense to me that those of a libertarian-anarchic position would appreciate a bottom-up view of law rather than top-down. It seems pretty clear to me. So back to the bigger question about the state and monopoly. I think what I was envisioning was that it is possible and reasonable that the customary legal order could come to recognize an institution, which we might call the state, that functions at least as a kind of a rights enforcer of last resort. I don’t know how the two of you necessarily talk about this, but at least I think some people of libertarian anarchist view will talk about protection agencies. So you can kind of have rights enforcement privately in the sense that different individuals or families can hire agencies, organizations that will in a sense provide a kind of a police and court services that we now ordinarily look to the police or government courts to do. It strikes me that, and I, for anyone who’s in my book, will know that I am very much in favor of private resolution of disputes and looking to private organizations to foster that. But it seems to me that it’s certainly possible, and I think this is actually what has actually happened, is that the customary legal order recognizes what we call the state or the civil government to be that kind of last resort rights enforcer in that even if one has a protection agency, protection agency may not be able to agree with someone’s protection agency that someone has a dispute with. And there might be an unwillingness or inability to come to a peaceful resolution. And how do you resolve it when you have that sort of situation? It’s reasonable that you could have a government institution that will serve as that kind of Court of Appeal. And it seems that at a most basic level, that is, there’s nothing illegitimate about that and the customary legal order could authorize that. But because I tried to ground the legitimacy of government in that way through the authorization of the customary legal order, I also draw the conclusion that we shouldn’t look at such a government as a monopoly because in that kind of situation, the government or the state is under the customary legal order. It’s not the final authority. It is properly under the legal authority of the customary legal order. And how could something be a monopoly if it’s actually not the supreme authority, at least not the supreme rightful authority? So I think that was my, that’s the basic way I was thinking about it. Of course, I wrote this, probably wrote this section 7 years ago. So it’s possible that I’m not remembering everything entirely accurately, but that’s how I remember my line of thought. So that’s mostly just a point of clarification. That’s not necessarily an argument about, I’m not necessarily defending that argument right now, but that’s really what I had in mind. And so I don’t think it’s a kind of a logical contradiction the way Drummond seemed to suggest early in his review. So I don’t know if you want to follow up on that.
Gregory:
Well, we could just clarify that in the sense that we use the term state. We’re always referring to an institution that claims and seeks to exercise such a monopoly. Whereas you would say normatively customary order, the customary legal order is really the origin of law and therefore no institution could normatively claim such a monopoly. We view the state as an institution that in fact antinormatively does claim such a monopoly as the final arbiter, as someone who claims the ultimate or supreme “legitimized” use of coercion and of final say, so to speak. So if someone else is using coercion, they may permit it, but they’re the ones they’re claiming are to permit it or not. So it’s always on their terms. So that’s how we use the term state, distinguished from some of the functions or activities that most states claim monopoly over. We use the term civil governance to distinguish between those functions, either separately or in any combination, those are activities of civil governance, administering civil justice through any of those functions, so we distinguish that from a state as such. And maybe the terminology, restricting the terminology, or making those distinctions in terminology would help separate out the question from what’s being argued for in terms of a normative arrangement, and then what’s actually may or may not be being practiced and therefore may not be conforming to the norms.
David:
Yeah, thank you. I think that is probably true. And I think it’s a perfectly fair observation that Drummond made somewhere in the review that I tend to use terms like state and civil government interchangeably in the book. And of course, by doing that, I’m doing what the vast majority of people do, that most people do use those terms interchangeably. And I was writing to most people, not to just Reformed libertarians, I’m sorry to say. I certainly do understand that, I guess from your perspective, it would be helpful to make distinction in terminology to try to analyze things with those different terms in mind.
Gregory:
Maybe you have some response to this. I think part of what Pastor Drummond was saying in the article included the fact that whatever your intended stance with regard to monopoly might be certain ways that you describe let’s say civil government then necessarily involve monopoly. So he’s saying, for example, the inability to opt out is a monopolistic feature, so that any government would use its coercive power to prevent competition practically involves a monopolistic exercise.
David:
Yes, I think that is right that he would say that and that’s part of what he was communicating in the review. And actually I wanted to, I think the next thing, which is probably the last main thing I want to say, there’s some other things I might say, if we have time, but I think the last kind of main point I thought I might bring up is related to that, I think. So what was the page, 68-69 in the review. Again, this is for my own reference. It might be helpful to read just a couple sentences that Drummond wrote. So he writes if consent is essential to the law… OK, so maybe I should give a little background. He’s picking up the fact that I’ve been talking about the customary legal order and the customary legal order develops through consent of the people. It’s not imposed from above, but it emerges through the complex interaction of a multitude of people. So if consent is essential to the law and dissent to a judgment or practice makes it not properly part of the law, then if so facto the law’s authorization of the state, to which VanDrunen appeals, as the grounds of its legitimacy is in fact illegitimate, since there exists those who deny the validity of the state. The very existence of anarchists within a society nullifies his thesis. I thought that was kind of an interesting move. So it might say the very existence of the author of this review disproves the claim that I’m making in my book. Clever, but I don’t think it works. At least what I would say is I think that he switched the definitions of consent at this point. But I think it’s a very legitimate question as to what exactly do we mean by consent. That would be very important on a number of levels. When I talk about consent in regard to the customary legal order, I’m not thinking about the private opinion of each and every member of the society. So it seems that the customary legal order is not what everyone thinks. But the customary legal order is what actually happens on the ground. It’s what is the customary legal order. It’s what are the actual customs of the society, what are the actual norms that govern the life of a community? And it seems to me that that’s really important because in any community of any size, even a really small size, differences of opinion and they’re gonna be ways that things are done that certain people will have at least small disagreement with, if not large disagreement with. But that doesn’t mean there isn’t consent because even when there’s disagreement, it still might be the fact that this is the way things work on the ground, as it has developed, as customs have developed through the free interaction of people in society. So the fact that there are a small number of people in American society, we’ll say, that hold an anarchist view doesn’t in and of itself mean that the state is illegitimate. That doesn’t mean there’s no consent. One way to think about this is, I imagine —if this is wrong, you don’t need to tell me, if this is wrong— but I imagine that most libertarian anarchists pay their taxes, and most of them probably will pull over if a cop pulls up behind them with the lights on. I would imagine that you probably do that, not gladly, not because you think it’s proper for the state to be requiring these sorts of things, but you know, like the consequences if you don’t do that. But, I would point out, you’re actually, when you pull over when the cop puts his lights on, when you pay your taxes to the U.S. government or State of New Mexico, you are actually reinforcing the customary legal order, because you’re continuing to, you’re in some sense, you’re abiding by that broad consent of the society that acknowledges that there is this thing called the government or the state, and that the state collects taxes from us and we pay those taxes. Now even apart from that example, it does seem to me that there is an important difference between consent in the sense of private agreement or disagreement, and the fact of the broad practice that represents the customs of a community. I don’t know if I said that as clearly as I could, so feel free to follow up. But it seems to me that, to sum it up, that Drummond is talking about a sort of private agreement. There are anarchists who don’t agree with the legitimacy of the state. Whereas the kind of content I’m talking about is the kind of emergence of a customary legal order through the input of a multitude of people who are in their own way contributing to the development of that customary legal order. If an anarchist doesn’t want there to be a state, wants to change the customary legal order, you might say, you have to do more than just disagree to have to actually change customs and practices of the society.
Gregory:
So we have a few comments. The point you would like to make, you might be able to clarify in light of this. I’ll say in episode 8, I believe, The Boetie Option we call it, the peaceful underthrow of the state, we discussed the difference between what we consider legitimate consent and mere compliance or acquiescence. And so part of that, or another factor involved in making that kind of distinction, might be between what the reality on the ground is —and I think somewhere after Drummond pointed this out when he brought up the idea that there might be customs that are considered unjust, and so by what standard would we ever, could we say such a thing— if the reality on the ground versus any proper normative standard for that being, say, right or wrong? So is there any way to judge whether the reality on the ground is according to a God-given normative standard? And if so, then in some ways you can distinguish, might be other ways too, but you can distinguish between legitimizing consent and say, just complying, particularly under the threat of coercion. You can make a distinction between consent that legitimizes, I’m going along with it because this is really what I want to do at the time, or just a compliance because if I don’t, I’m going to get thrown in jail or fined or beaten up or whatever. And then the distinction between what the reality on the ground is and how that’s evaluated according to some normative standard.
David:
Yeah. So what you’re saying is that you will pull over for the cop as long as you don’t think you can out-run him? I’m just kidding. You don’t need to answer that.
Kerry:
[laughter]
Gregory:
No, that’s not a bad [way to put it]. I’ve said to people before, if you don’t owe the mugger and he’s got a gun to your head and demands your wallet, but you have $200 in your sock, you might give him your wallet and not because you believe you owe it to him. And you certainly don’t need to tell him about the $200 in your sock. So people can just apply that as they see fit.
David:
Right. Well, I would have to listen to episode 8 to hear all you say about that, but it does strike me that there is, it seems plausible that you make a distinction between the kind of compliance, involuntary compliance and voluntary consent, however you put it, does sound like that is, that there is a moral distinction there. I could see the possible argument for that, which I don’t think still quite gets at the customary legal order kind of consent that I was talking about, but I think that is a fair [distinction].
Gregory:
How would you speak to the question, then, between what the reality on the ground is and how that might be evaluated in terms of a normative standard? Because that can be done, in other words, how does the reality on the ground actually function if it’s not itself the standard? What would you say about it, and it’s legitimizing some order, if the thing that legitimizes the order can yet be judged by a standard?
David:
I think the basic way I would approach that is to say, you know, if you’re asking what the law is, what the civil law is, however you want to put it, what our human law is, I would say it’s what the customary legal order is. And it’s always gonna be a reality in a fallen world. Our civil laws are always gonna be flawed to some degree and often to very terrible degrees. And so, I mean, I would take a very traditional Reformed and broader Christian argument to say that our civil legal order needs to be grounded in the natural law. Which doesn’t, by the way, mean our civil law needs or ought to enforce everything that is prohibited by the natural law. That’s never been the position of historic Christian natural law theory. But I do think that we constantly want to be thinking about how we ought to be dealing with each other and what is the just resolution of disputes. And I would say it’s, insofar as we are able in our own small circles of influence, we work to try to change opinion and to change practices that will work for a more just presentation of the customary legal order. So I don’t think my thinking about such customary order is not, at least currently, it’s not the typical way to think about law. If you go back to the medieval time, actually that was a much more typical way of thinking about law. But in terms of the natural law, human law relationship, I hold a pretty traditional Christian view of that.
Kerry:
Concerning the nature of legitimacy and customary law as you’ve defined it, I’m imagining some more extreme, obvious examples. Take more Middle Eastern countries that have customary laws that here in the West we would say are absolute rights violations concerning certain people. So are you saying that the customary law just is what it is or is it legitimate because it’s customary?
David:
Yeah, I think one issue that immediately comes to my mind, especially when you use the example of the Middle East and human rights violations. I mean, you didn’t say which ones you have in mind. It might be the way women are treated and the opportunities that they have. The one that comes immediately is, well, they’re approximately half the population. Is this really customary legal order or is this the imposition of an elite of men who have imposed this upon the society, about which, you know, maybe most of the men in society would agree with it. So at least I think that’s a question. Just because certain rules are enforced in certain countries, I wouldn’t say that’s customary legal order. So part of my argument would be: law ought to be customary legal order, not necessarily every dictate that comes down from some autocrat. So that would be the first thing that would come to mind. Then I think you get a further question, I suppose is, how to put this, I don’t think I have a neat resolution to this. I’m not sure there is a neat resolution to this frankly, that when a legitimate institution, let’s just say the family, we’ll say we’re not going to the family is a legitimate institution, what happens when say the husband or father of a family treats his wife and children horribly and we’d say by any moral evaluation, this is morally illegitimate treatment. That doesn’t in and of itself make that family an illegitimate institution and it doesn’t —I’ve already betrayed this person as a monster— but every husband and father sins. I’m sure I’ve done plenty of things, said plenty of things to my wife and my son that I shouldn’t have. That didn’t immediately strip me of the authority that I have in those roles. And so I think it’s a question of how, at what point does the abuse of power in a certain institution, abuse of authority, justify people no longer submitting to that authority or seeking to supplant that authority? I think we all want to say there comes a point when that happens, but it doesn’t come about just because there’s one sin committed at one point, or one mistake made at one point, or else we couldn’t live together at all. There would be no institutions in this world that are legitimate. I guess that’s the bigger issue. And put in the abstract, you put your question sort of in the abstract, and I don’t know, it’s hard to give a concrete answer to that. And we’re not talking about the larger argument of my book really, but I do make what I think is a fairly robust attempt to defend civil resistance, even rebellion or the overturning of political government when there’s grave abuse of power. And I try to root that in the Noahic covenant, which is a major part of the way I developed my argument in the book. I make the argument, too, that Romans 13 and the kind of authority that is acknowledged for, let’s just say civil government there, that is actually rooted in the Noahic covenant, and that Paul actually, whether directly or indirectly, was building on that foundation of the common grace covenant. And I think it’s very interesting and important that the Noahic covenant doesn’t give the power of the sword, the power of retributive justice to any organization, to any state government organization. It simply gives it to the human community. And so whatever kinds of institutions that we develop that are in some way going to in some way exercise that power of the sword, I think ultimately rest on the human community. And you can’t get away from that, and I think that always gives a, trying to think of the way to put it here, it always leaves in the background that accountability for how one exercises the authority that one has. I’m sorry if that answer got a little far afield of what you’re asking.
Kerry:
That’s OK. It’s good. Thank you.
Gregory:
That does lead into my own, last question, not directly related to what we’ve presented so far in the episode. I did suggest, the one point I had a point to make other than reviewing the contents of the review article by Pastor Drummond, I had said I thought specifying the legitimate use and illegitimate use of coercion, or I should say respective uses, legitimate use of coercion and the illegitimate use of coercion, distinguishing those more clearly would clear up a lot of these other issues. And so my question is also along those lines. In the book Politics After Christendom as well as in the article that was particularly mentioned in Pastor Drummond’s review “The Protectionist Purpose Of Law.” So in both those places —and this is somewhat my paraphrasing, so if I mischaracterize it, you could correct me here— but you say that the matter of dispute between let’s call it a protectionist-only view or exclusive-protectionist view and all the protectionist-plus views, let’s call them, so they obviously agree with the points of protectionism, but then with the exclusivity —the dispute between them is whether God exclusively authorizes the use of coercion for protection against rights violations. And we could specify some of those terms a bit more. Protection involves rectifying justice. That’s defense and retribution. The rights violations, as you’ve articulated them, are negative rights and so on. That is their prior initiations of coercion against someone’s person or their property. In any case, the dispute is between whether what’s authorized is exclusively this protectionist function or, that, in addition to other things. And you make the case, I think both in your book, in that article, for the plausibility of interpreting the provisions of the Noahic covenant as such an exclusive protectionist authorization. But you’re making the case for the plausibility, through various means, of that interpretation. OK, if I’ve characterized what you’ve done in the book in the article adequately, one of the things you note about what in the Noahic covenant with regard to coercion that’s being affirmed is really the fundamental principle that coercion must be proportional or proportionate. So you go on to respond to arguments against a protectionist-only view and conclude by saying, given these considerations, the burden of proof is on those who would make some possible further arguments that this presumption of protectionist-only isn’t correct. But I want to make a proposal and get your reaction. And my proposal is the way in which you can understand your insight into the issue concerning coercion, the fundamental principle being that it must be proportional or proportionate, that that really, understanding that in a certain way can then make the argument definitive or make it conclusive rather than merely plausible, and putting the burden of proof on those who argue against it. So if one takes the key authorization of proportionality to entail not only the extent to which coercion may be used, but whether coercion may be used at all, understanding coercion to be disproportionate if it’s used against what it is itself not an initiation of coercion. So in other words, if you understand the key idea to be proportionality, and if you then understand that using coercion against anything that is not itself coercive, that’s disproportionate, then this makes the protectionist-only interpretation conclusive and definitive rather than plausible. There can be no non-protectionist or protectionist-plus arguments if that’s the principle or that’s how the principle of proportionality is understood.
David:
I think I understand what you’re saying, and I think on its own terms, it sounds like it’s correct. However, my particular argument there was built on the Noahic covenant. So I’m trying to build, so I’m doing this as a theologian, and trying to ask the question, how can we think about these things in light of the foundation that the Noahic covenant provides? And now maybe one way to put this, I think maybe someone else had, I think there might have been someone else I was talking to at some point along the way, who put it in these terms, but I can borrow that now. Even though I may be tempted to do this at some point, I don’t think that I can insist that Genesis 9:6 he who sheds the blood of man, by man shall his blood be shed, is sort of the regulative principle of civil government. And I say that, and for those who are in the Reformed community might know what I’m getting at here, so, Reformed people, at least we good Reformed people believe in the regulative principle of worship, that God doesn’t just authorize us to worship in anyway that doesn’t contradict Scripture, but only authorizes us to worship in ways that Scripture itself tells us to worship. Does the Noahic covenant do something similar to civil government? Is it providing, in other words, that retributive proportionate justice standard, is that meant to be the regular principle of civil government? It sounds to me that that’s what you’re suggesting, or at least along the lines, that would be it. And I just don’t think that I can sustain that argument. I mean, there’s a part of me that would like it to be true. But I just don’t think I can honestly make that argument to insist that this is the only standard in a sense from which all civil government is derived. So that’s why I constructed my argument the way I did, to say I think this presents a burden of proof, this presents hurdles for those who want to say government should do more than this. And in a sense I’m saying, go ahead, make your argument. Let’s hear it. I’ve given you the argument for a protectionist view of government, and I’ve given a lot of reasons why I’m skeptical about going beyond that. But go ahead, make your argument and we can evaluate those. I just don’t think that it’s ultimately gonna work to turn Genesis 9:6 into the regulative principle [of civil government]. So that would be my basic point. But I think if you, it does strike me that if you grant that point, then I think the logic of where you’re going makes sense to me.
Gregory:
OK, well, we’ll conclude there. I’ll say that we recorded this interview before our episode 18 on Politics and the Church’s Mission: what the Church should teach about civil government, before that was released. So I’m sure Doctor VanDrunen will be eager to listen to the case that we make for the principle of proportionality in the lex talionis of the Noahic covenant being that regulative principle we make that [case] at the very end, and so you can give us feedback on that.
David:
OK.
Gregory:
Well, thank you so much for being appreciative as we are of the interaction on these very important matters. And I hope we can continue the discussion. I’m sure Pastor Drummond will want to be involved in some further discussion. I’m not sure what we’ll be able to arrange specifically, but we’ll keep talking about these things. And we thank you so much for your provocative and I think substantial replies to our episode and to Pastor Drummond’s review. It gives us a lot of good things to think about that need addressing.
David:
Well, it’s my pleasure. Thank you for having me on. I appreciate it.
Kerry:
It is a breath of fresh air to hear from a theologian who wants to be critical of libertarianism, who is engaged in a lot of the material that is out there. And so we really appreciate that and we really appreciate you taking the time.
David:
My pleasure, thanks.
