Volume 7, Issue 5: Magistralis
When hiring a new employee, one thing an employer looks at is the job-seeker's
education. He wants to know that this person has the knowledge and skills necessary
to do the work. Employers are looking for as close a match as possible between
the worker and the job. If there is no match, no matter how good the worker is
at something else, he won't get the job. A man might know logging inside and out,
but if he doesn't know rockets, he can't be a NASA engineer.
When we, the people, hire a new legislator, what qualifications do we seek?
We generally look to see whether he is "conservative" or "liberal." We expect him
to be honest and hard-working. He should be able to communicate persuasively.
We hope he is a believer. But do we ever consider whether he actually knows anything
about the law?
William Blackstone, the eighteenth-century legal scholar whose Commentaries
were the foundation of American law, found it "perfectly amazing that there should
be no other state of life, no other occupation, art, or science, in which some
method of instruction is not looked upon as requisite, except only the science
of legislation, the noblest and most difficult of any." Blackstone lamented
the lack of legal education in the propertied men of his day, who were those
most likely to aspire to parliament.
In our day, only attorneys and judges, the priests of our judicial system, are
required to know anything about the law. The aspiring judge of even the lowest
order must spend four or more years obtaining an undergraduate degree, then spend
another three years in law school. A law degree qualifies him to sit for a rigorous
bar exam, and if he passes, he is entitled to be a lawyer. He must then practice
for a certain number of years, perhaps reach a certain age, and have a good reputation
among his peers for knowledge and skill in the law and a good moral character.
In some jurisdictions, he must then satisfy a review committee, the legislature,
and the governor of his qualifications.
The only qualification for making the law is garnering a majority (or a plurality)
of the popular vote. How ironic that an extensive legal education is required
to interpret and apply the law, but any yahoo can write it. In fact, we ridicule
education and intellectual ability in our representatives, and prefer the politician
who acts more like a regular guy, a workin' man. A candidate does not have to
show his skill with political and legal philosophy, as long as he looks good
on a horse.
Who can say how much folly this ignorance of the law has wrought upon our legal
system? Blackstone, speaking of the common law of England, blamed the litigation
explosion of his day on the defective legal education of the lawmakers. He lamented
that the common law "has fared like other venerable edifices of antiquity; which
rash and unexperienced workmen have ventured to new-dress and refine, with all
the rage of modern improvement." And that was in 1753. Not to be outdone, our
current legislatures are wasting no time in proving there is nothing new under
the sun. No social problem is beyond their expertise. Anything can be fixed by
simply adding another law to the books. The result is a Byzantine code of vague,
obscure, and contradictory laws and regulations which solve no problems but do
provide plenty of work for lawyers. If those who tinkered with the law actually
understood it, much of the litigation spawned by confusion would cease.
While legal knowledge in legislators would be a great improvement, such knowledge
is not a complete solution as it will not prevent ungodly innovation in law.
The goal is not merely an understandable legal code, but a biblical legal code
as well. We do not, like the modern secularists, grant education a messianic
role. Legal knowledge must be Christ-centered knowledge. Legal knowledge must
be built on a foundation of biblical theology. The common law of England,
upon which American law was founded, consisted of a set of legal principles and
maxims carefully crafted by judges to conform with the requirements of biblical
justice in any given situation. Common law rules were transcendent and universal.
Judges did not invent rules, they discovered them in God's revelation and made
a conscious effort to decide cases in a manner consistent with God's will. Consequently,
there was relatively little dispute as to what justice was, and litigation was
confined to the established rules of justice that sh ould apply in given situations.
Darwinism caused a dramatic shift in how lawyers, judges and legislators viewed
the law. It was no longer a system of foundational and unchanging principles,
but a factory in which new legal principles could be manufactured. Justice was
no longer a fixed and objective concept, but a subjective process, changeable
and adaptable to the evolving needs of man. Thus, legislation became a means
of controlling human evolution, and litigation concerned itself not just with
the application of law to the given facts, but with the nature of the law itself.
Judges became quasi-legislators, and both judges and legislators became social
It is not necessary that every legislator be a lawyer or a theologian, but they
must know enough law and theology to decide not whether a particular policy is
conservative or liberal, but whether it is right or wrong. God required the kings
of Israel to write their own copy of the law, and they had to read it and learn
from it (Deut. 17:18-20). The people were to have a working knowledge of the
law as well (Deut. 18:19-20). The law was perfect, and innovation was forbidden
(Deut. 4:2). Voters need to hold modern magistrates to the same standard.