Building on a Solid Foundation: Christian Foundations of the Rule of Law

This article is a version of the paper presented by the author at “A World Without Christianity”, a colloquium held by the Christopher Dawson Centre for Cultural Studies in Hobart, Tasmania, 29-30 June 2018. He wishes to thank his colleague, Ms Alison Dench, for her comments on an earlier version of this article. Dr Zimmermann is the author of the 3-volume collection on ‘Christian Foundations of the Common Law – England, The United States and Australia’ (Connor Court, 2018).


An underlying theme in Western legal theory is that the rule of law provides at least part of the solution to the problem of political tyranny. As an ideal of legality, the rule of law is a product of particular values, convictions, customs and traditions so that some societies may not be able to realise it. In western societies, the rule of law was developed over centuries under the dominating influence of Christianity.  And yet, as noted by the late Harold Berman of Harvard Law School, ‘the Western belief in the autonomy and supremacy of law – historically based, as it is, on the dialectic of the church and state – can hardly serve as the principal foundation of legality in a world that is only partly Christian.’  Indeed, according to the late English jurist O. Hood Phillips, ‘historically, the phrase [‘rule of law’] was used with reference to a [Christian] belief in the existence of law possessing higher authority — whether divine or natural — than that of the law promulgated by human rulers which imposed limits on their power’. In this paper I explain why it is positively not safe to assume that the rule of law will survive in Western societies under the current post-Christian environment, especially when these societies deliberately neglect the Christian faith in favour of secular philosophies which do not recognise an ultimate, transcendental source of fundamental rights and freedoms, nor objective standards of justice and morality that both ordinary citizens and the public authorities have to respect.


 1. Introduction

Historically, the ideal of legality known as ‘the rule of law’ means much more than the mere existence of positive laws enacted by the state. According to our Western legal tradition, the rule of law presupposes rather the existence of higher laws serving as an effective check on arbitrary power. The search for ‘higher laws’ naturally involves a moral discussion of what law ought to be. Traditionally, the principles of Christianity as derived from the Bible have been broadly recognised as the most important philosophical underpinnings for the development of the rule of law in Western societies. In fact, it is simply impossible to more fully understand the Western legal tradition without exploring its religious dimensions, its motivating faith. As noted by law professor Patrick Parkinson,

Christianity was to the formation of western legal tradition as the womb is to human life. The history of western law cannot be understood in isolation from religious influences, for at every level of society, and in every aspect of social and political life these influences were pervasive.[1]


 2. No One Is Above the Law


The modern roots of individual rights and freedoms in the West are founded in Christianity. The recognition by law of the intrinsic value of each individual simply did not exist in ancient times. Among the Romans, law protected social institutions like the patriarchal family but it did not safeguard the basic rights of the individual, such as personal security, and freedom of conscience, of speech, of assembly, of association, and so forth. For the ancient Greeks and Romans, a human being was of any value ‘only if he was a part of the political fabric and able to contribute to its uses as though it were the end of his being to aggrandize the state’.[2]


A remarkable moment to the development of the rule of law occurred in 390. In that momentous year, Bishop Ambrose (d.397) of Milan forced the Roman Emperor Theodosius to repent of his vindictive massacre of seven thousand people. When the emperor refused to repent, Bishop Ambrose immediately excommunicated him. As a result, the Roman Emperor was forced to prostrate himself and repent in the Bishop’s cathedral.[3] This fact provides a vivid demonstration that, under the unique influence of Christianity, nobody, not even the Roman Emperor, should be considered to be above the law. As Ambrose put it: ‘The king is not free from the laws’.


The systematization of the canon law[4], particularly the articulation of its constitutional foundations by Pope Gregory VII (1073-1085), represents the beginning of the Western legal tradition. The Gregorian Reform resulted in the legitimacy of a plurality of governments (imperial, feudal, manorial, mercantile, and urban) that, as law professor Nicholas Aroney puts it, ‘provided the necessary ideological and institutional foundations for the supremacy of law and the development of Western freedoms’.[5] According to the eminent Belgium legal historian, R.C. van Caenegem,

The canonists, who vehemently defended the papal primacy, nevertheless reminded their readers that ‘it is allowed to no one to act against natural law’. An imposing line of philosophers, beginning with Marsilius of Padua (d.1342), defended points of view irreconcilable with unfettered government. According to Marsilius, the ruler is bound by the law, as he is a citizen exercising a governmental function and liable to be called to account for his deeds ‘as any subject who has broken the law.[6]


Christianity traditionally embraces reason and logic as fundamental guides to truth, religious or otherwise. Reason is said to comprise a special gift of God to humanity, and a means to progressively increase our understanding of the Creator and the natural moral order. The connection between law and reason is an essential component of the Christian approach to law and justice, since the very essence of individual rights involves a response to the puzzle of personal freedom within the boundaries of the natural order established by God. This continuous bound, uniting law and personal freedom, has been explained as follows:


The exercise of freedom implies a reference to a natural moral law, of a universal character, that precedes and unites all rights and duties. The natural law “is nothing other than the light of intellect infused within us by God. Thanks to this, we know what must be done and what must be avoided. This light or this law has been given by God to creation”. It consists in the participation in his eternal law, which is identified with God himself. This law is called “natural” because the reason that promulgates it is proper to human nature. It is universal, it extends to all people insofar as it is established by reason.[7]


As articulated by Gratian’s Decretum, a collection of nearly 3,800 texts touching on all areas of church discipline and regulation compiled by the Benedictine monk Gratian about 1140, the reality of natural law ‘refuses to differentiate between persons based on their status, for the golden rule commands that everyone do to others as they would have done to themselves’. Since all persons stand equally before the law of God, and natural law must form the basis of every human law, then the inevitable implication is that everyone shall stand equal before the civil law.[8] Hence the most powerful and influential leader of that time, Pope Innocent III – of all people – declared in 1204:

It may be said that kings are to be treated differently from others. We, however, know that it is written in the divine law, ‘You shall judge the great as well as the little and there shall be no difference of persons’.[9]


In the thirteenth century, Franciscan nominalists were the first to elaborate legal theories of God-given rights, as fundamental rights of the individual which are derived from a natural order sustained by God’s immutable laws of justice and ‘right reason’. For those medieval thinkers not even the king himself could violate certain rights of the subject. Because the idea of law was intrinsically attached to a broader understanding of biblical justice, they understood that the equal liberty of all individuals is God’s intended gift to humanity. Original to those thinkers was the belief in natural rights that are both grounded in human dignity and advancing the common good.[10] This theological perspective mandates the recognition by human authority of God-given inalienable rights and freedoms. There is indeed a genuine link between Christianity and the development of individual rights in the West, which is generally overlooked. As Jason Taliadoros points out, ‘if we accept the identity between human rights and natural rights as universal norms of right behaviour, human rights are indeed a product of Western political and religious developments, in particular values arising from the Roman Catholic Church of the Middle Ages.’[11]


3. Justice and Freedom for All


The notion that law and liberty are inseparable is another important legacy of Christianity. Accordingly, God’s revealed will is approached as the ‘higher law’ and to be placed above every other law. Here liberty is found under God’s law, because as Scripture informs: ‘The law of the Lord is perfect, reviving the soul’ (Psa 19:7). And since St James describes the law of God as ‘the perfect law of liberty’ (Jas. 1:25), St Paul counselled the first Christians in Galatia to ‘stand fast therefore in the liberty wherewith Christ hath made us free’. (Gal. 5:1).

St Augustine of Hippo (354-430), one of the most relevant figures in the development of Christian philosophy, considered that unjust law is actually a contradiction in terms. For him, human laws must not be out of harmony with God’s higher laws. Rulers who do so, who enact unjust laws in attention to their vicious caprices, were deemed by him unlawful authorities. In The City of God, he explains that civil authorities who have no regard for matters of justice and righteousness are undistinguishable from a “band of robbers”. As St Augustine put it: ‘Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?’[12]

In the same way, St Thomas Aquinas (1225-1274) considered that unjust laws are nothing but ‘crooked laws’.[13] People have no obligation to obey such arbitrary commands. For Aquinas, a “law” that permits murder or perjury is not really law so that everyone would have the right to disobey it. And political rulers who enact such unjust laws cease to be rightful authorities, becoming merely tyrants.[14] As noted by the great Catholic jurist of the twentieth century, Heinrich A. Rommen, ‘from this inner connection of every positive law with the lex naturalis [i.e., natural law] St Thomas rightly concludes that the positive law may not conflict with the natural law. So far as it is in conflict with the latter, i.e., with the unchangeable norms, it is not law at all and cannot bind in conscience’.[15]


The Christian faith provided to the English people a status libertatis (state of liberty) that rested on the assumption that God’s law always works for the good of society. With their conversion to Christianity in the early medieval period, the kings of England would no longer possess an arbitrary power over the life and property of individuals, changing basic laws of the kingdom at pleasure. Rather, those kings were told about God’s promise in the Book of Isaiah to deal with civil authorities who enact unjust laws (Isaiah 10:1). Indeed, the Bible contains numerous passages condemning the perversion of justice by political rulers (Prov 17:15, 24:23; Exo 23:7; Deut 16:18; Hab 1:4; Isa 60:14; Lam 3:34). Thus, in explaining why the citizens of England had much more freedom than their French counterparts, the famous 19th-century English preacher Charles Spurgeon (1834–1892) famously declared:

There is not land beneath the sun where there is an open Bible and a preached gospel, where a tyrant long can hold his place … Let the Bible be opened to be read by all men, and no tyrant can long rule in peace. England owes her freedom to the Bible; and France will never possess liberty, lasting and well-established, till she comes to reverence the gospel, which too long has rejected … The religion of Jesus makes men think, and to make men think is always dangerous to a despot’s power.[16]


Working as a civilizing force and a stranger to despotism, the Christian message elevated the blood-drinking “barbarians” of the British Isles to decency. By proclaiming the equality of human souls in the sight of God, Christianity compelled the kings of England to accept the supremacy of God’s law over their arbitrary will. Thus, in about 888, King Alfred the Great declared the Bible, particularly the Ten Commandments, to be the fundamental law of the kingdom. In so doing, King Alfred was declaring what was already the common understanding of law. As the Rev Dr David Mitchell points out,

He was declaring what was already the basis of the law of the land. Much of his decree has been preserved and is technically known as the ‘Domes of King Alfred’. Historically in England… the king… was regarded as God’s representative for ruling the nation. He was not unfettered in this responsibility but was required to govern lawfully, justly, mercifully, to maintain God’s law and to regard the Bible as the rule of the whole of life and government. These requirements were incorporated into the coronation oath ever since. In 1688 these requirements were recognised by statute (Coronation Oath Act, 1 Will. and Mar.c.6)”.[17]


Under this Christian view of the rule of law the absolutist monarch inherited from Roman law was counteracted and transformed into a monarch explicitly under law.[18] When the English barons forced King John to sign the Magna Carta in 1215, at Runnymede, they explicitly declared, in the very preamble of that famous charter, that this would be solemnly done under ‘reverence for God and for the salvation of our soul and those of all our ancestors and heirs, for the honour of God and the exaltation of the Holy Church and the reform or out realm, on the advice of our reverent [church] fathers’.


A few years after Magna Carta, a prominent royal judge, Sir Henry de Bracton (d.1268), would write a massive treatise on general principles of the law and justice in England.[19] Bracton’s De legibus et consuetudinibus Anglia has been broadly recognised as the most important contribution to the understanding of the constitution of medieval England. In the words of such an important work one is able to discover that, according to Bracton, jurisprudence is ‘the science of the just and unjust’, whereas the application of laws imply ‘a just sanction ordering virtue and prohibiting its opposite’.[20] That being so, Bracton famously declared: ‘The king must be under God and the law, because, as the law makes the king. For there is no king where will rules rather than the law”.[21] According to the English jurist and constitutional lawyer, Owen Hood Phillips,

Historically, the concept of the rule of law was, “first used with reference to a belief in the existence of law possessing higher authority – whether divine or natural – than that of the law promulgated by human rulers which imposed limits on their powers… Bracton, writing in the thirteenth century adopted the theory generally held in the Middle Ages that the world was governed by law, human or divine; and that “the King himself ought not be subject to man but subject to God and to the law, because the law makes him king”. The same view is also expressed in the Year of Books of the fourteenth and fifteenth centuries. Such superior law governed kings as well as subjects and set limits to the prerogative. On that ground Fortescue, in the middle of the fifteenth century, based his argument that there could be no taxation without the consent of Parliament.[22]


In England, the Lord Chancellor played an important role in the development of common law rights. The first Lord Chancellor was actually appointed by the last Anglo-Saxon King, Edward the Confessor, who ruled from 1042 to 1066. Under an order of Edward III in 1349 this process was formalised, and by the 15th century the Court of Chancery was established, endowing the Lord Chancellor with jurisdiction based upon ‘personal conscience’. As noted by Charles Francis QC, ‘those Chancellors were all Christians, and a number were ordained. Consequently the common law which evolved had a strong Christian basis’.[23] As keeper of the king’s conscience and of the great seal, ‘he was meant to ensure that the law enacted in the king’s name and administered by the king’s courts was infused with the civilizing influence of canon law’.[24]


Because God has instilled in each of us a sense of freedom, Sir John Fortescue (1394-1476) – a chief justice of the king’s See also:bench during the reign of Henry VI who was ‘highly recommended for his See also:wisdom, gravity and uprightness’[25] – considered political tyranny the attempt on the part of civil authorities to replace natural freedom by a condition of servitude that only satisfies the “vicious purposes” of political rulers. According to Fortescue, the law of England could provide liberty only insofar as it was fully indebted to the Holy Scriptures. He actually quoted directly from Mark 2:27 in order to proclaim that the kings are called to govern for the sake of the kingdom, not the opposite. Thus Fortescue famously remarked:

A law is necessarily adjudged cruel if it increases servitude and diminishes freedom, for which human nature always craves. For servitude was introduced by men for vicious purposes. But freedom was instilled into human nature by God. Hence freedom taken away from men always desires to return, as is always the case when natural liberty is denied. So he who does not favour liberty is to be deemed impious and cruel. [26]


By placing God’s higher laws above the law of the state, Sir Edward Coke (1552–1634) is undoubtedly one of the most eminent jurists in all English history. [27] He is particularly celebrated for his important defence of the supremacy of the law against the Stuarts’ claim of royal prerogative. In so doing, Coke contended that the basic rights of the individual are not established by the state, but ‘written with the finger of God in the human heart’.[28] Since Coke postulated that the Constitution of England comprised a ‘harmonious system’ that was ultimately sustained by God’s higher laws, he concluded that no positive law would have any validity if it violated these laws established by God. Above all, Coke famously declared:

For as in nature we see the infinite distinction of things proceed from some unity, as many flowers from one root, many rivers from one fountain, many arteries in the body of man from one heart, many veins from one liver, and many sinews from the brain: so without question Lex orta est cum mente divina, and this admirable unity and consent in such diversity of things, proceeds only from God, the fountain and founder of all good laws and constitutions.[29]


Another great advocate of freedom and justice was the enormously influential jurist Sir William Blackstone (1723-1780). During many years Blackstone’s Commentaries on the Laws of England (1765-69) was the seminal manual of almost every student in both Britain and the United States. This ‘celebrated and enormously influential’ book soon became the major foundation for the American system of jurisprudence and it remains an extremely important source on classical views of the common law and its principles. To avoid tyranny, Blackstone stated in Commentaries, no human law can be valid if it contradicts God’s higher laws, which are the laws maintaining and regulating our natural rights to life, liberty and property. These natural rights, according to him, are inherent in every human person by birth, as a gift of God to all humanity at the creation. That being so, Blackstone concluded: ‘No human laws should be suffered to contradict [God’s] natural laws … Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.’[30]


 4. Reasons for a Civil Government


St Paul argues in his ‘Epistle to the Romans’ that the state ‘does not bear the sword in vain’ (Rom 13:4). The sword was in that time used as an instrument of execution. In the context of the passage it seems that the punishment of evildoers is an element of the state’s responsibility as an agent of God himself.[31] In the Old Testament, Judges 21:25 reports that there was no monarch in Israel before people chose Saul to be their king, but only judges under the direct authority of God to settle disputes among themselves. This passage is crucial in the view of civil government, as it reveals God’s warning to the chosen people of what it would be like to have a human authority, and not God more directly, in the position of higher authority. Lord Acton, a prominent 19th-century English Catholic historian, used to cite this passage to argue that the power of civil authorities must be limited and exercised under the law.


But since, as Lord Acton also stated, ‘power corrupts and absolute power corrupts absolutely’, this Christian perspective inspired the formation of a constitutional order based on checks and balances between the three branches of government —namely legislative, executive and judicial. Since everyone is born of a sinful nature, the actions of government must be legally controlled and no human authority can be trusted with too much power. In fact, history has shown that power is a corrupting force when placed in human hands. The Bible amply documents the dangers that ensued when power was transferred to a single king. Even David, a man after God’s own heart (1 Sam 13:14; Acts 13:22), abused his power and Israel experienced great calamity (2 Sam.11-21).[32]


The separation of government branches, which the drafters of the United States Constitution designed, is commonly traced to the work of the French philosopher and political theorist, Charles-Louis de Secondat, Baron de La Brède et de Montesquieu.[33] First published in 1748, Montesquieu’s The Spirit of the Laws, soon received widespread public acclamation. Its first English translation in 1750 soon became very popular in America and those who supported the ratification of the American Constitution, as well as those who argued against it, relied quite heavily on Montesquieu to justify their positions. James Madison, Thomas Jefferson, John Adams, among numerous other Founding Fathers, consciously tried to apply his principles in creating a new constitutional framework. Indeed, he was quoted more than any other modern author by those American Founders. Only the Bible trumped him.[34] As noted by the American Catholic political theorist Russell Kirk (1918-1994), at the Constitutional Convention, no man was quoted more frequently than Montesquieu … It was from Montesquieu … that the Framers obtained a theory of checks and balances and of the division of powers.’[35]


The American Framers deliberately based their entire political system heavily on Montesquieu’s theory of separation of powers.[36] While history books acknowledge the impact of this theory on the formation of American constitutionalism, few of them have considered that it comes directly from Christianity. In The Spirit of Laws Montesquieu argues that ‘the mildness so frequently recommended in the Gospels, is incompatible with despotic rage with which a prince punishes his subjects, and exercises himself in cruelty … We owe to Christianity, in government a certain political law, and in war a certain law of nations, benefits which human nature can never sufficiently acknowledge’, he said.[37] In order to restrain the abuse of government power, wrote Montesquieu, ‘it is necessary from the disposition of things that power should be a check to power’. For him, ‘there is no liberty if the judiciary power be not separate from the legislative and executive’. According to David Barton,

This separation of powers theory is rooted in the Biblical concept espoused in Jeremiah 17:9 that man naturally tends toward corruption. Following the religious teaching of the day, it was generally accepted that the unrestrained heart of man moved toward moral and civil degradation… Thus it was logical that society would be much safer if all power did not repose in the same authority. With the power divided, if one branch became wicked, the others might still remain righteous and thus be able to check the wayward influence.[38]

5. Reasons for Resisting Political Tyranny

When God delegates authority to civil authorities, they have no authority to use it to oppress the people. The Bible shows remarkable examples where God allows civil disobedience against evil rulers. For instance, Exodus states that Egyptian midwives refused to obey Pharaoh’s order to kill Hebrew babies. They ‘feared God and did not do what the king of Egypt told them to do’ (Exod 1:17). There is also the example of the three Hebrews who did not obey Babylon’s King Nebuchadnezzar when he ordered everyone to bow down and worship his golden image (Dan 6). Finally, there is also the Apostles’ attitude towards the Sanhedrin, a Jewish council of priests and teachers of the law. The council ordered them to cease preaching in the name of Christ. But Peter boldly stated: ‘We must obey God rather than human authority’ (Acts 5:29). The zeal of the Apostles was so great that they simply refused to be silenced by unfair rules, even if such a refusal could result in arrest and execution. Rather, they regarded themselves as to be bound by God’s law and, as such, kept preaching the Gospel as if there were no such a prohibition against it.

Although those Apostles considered it lawful to sometimes disobey bad laws, many Christians today are inclined to quote the passage in Romans 13 in order to justify compliance with unjust law. In this passage, St Paul states that Christians must submit themselves to the governing authorities, ‘for there is no authority except that which God has established. The authorities which exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgement on themselves. For rulers hold no terror for those who do right, but for those who do wrong”.[39] It is patently clear that St Paul is not talking about a government that actually terrorises those who do right, and not those who do wrong. If the government acts beyond the limits of its lawful authority, it is our primary duty to obey God first and to exercise our lawful right to resist tyranny. That being so, a more accurate interpretation of that biblical passage indicates that, since the state must restrain evil by punishing wrongdoers, when it does the opposite it loses its legitimacy and becomes an usurped and unlawful power.[40] The idea that disobedience to human authority can be fully justified, and perhaps even morally mandatory, constitutes a very old tradition in Christian thought. In the 3rd century, the Christian scholar Origen (185-254) famously declared:

Where the law of nature, that is of God, enjoins precepts contradictory to the written laws, consider whether reason does not compel a man to dismiss the written code and the intention of the lawgivers from his mind, and to devote himself to the divine Lawgiver and to choose to live according to His word, even if in doing this he must endure dangers and countless troubles and death and shame.[41]


When citizens are called to obey the law it is not necessarily that they must obey the authority who are in charge of the state, but it is rather for obedience to an authority who is ordained by God to promote the principles of justice, freedom and equality before the law. For this reason, as the celebrated Anglican theologian John Stott pointed out, ‘if the state commands what God forbids, or forbids what God commands, then our plain Christian duty is to resist, not to submit, to disobey the state in order to obey God … Whenever laws are enacted which contradict God’s law, civil disobedience becomes a Christian duty.’[42] This is incredibly similar to what Pope John XXIII stated in the encyclical Pacem in Terris of 1963:

Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities pass laws or command anything opposed to the moral order and consequently contrary to the will of God, neither the laws made nor the authorizations granted can be binding on the consciences of the citizens, since God has more right to be obeyed than men. Otherwise, authority breaks down completely and results in shameful abuse.[43]

St Paul states in his Epistle to Timothy that the Word of God is not to be bound (2 Tim 2:9). Surely this also means the right to resist tyranny as an important element of the rule-of-law system directly ordained by Him. Therefore, in the words of Scottish reformist John Knox (1513–1572), rebellion against a civil authority who rebels against God, actually equals to fighting against the Devil himself, ‘who is the one abusing from the sword and authority of God’.[44] Knox believed that an evil ruler must be lawfully resisted even by force if necessary.[45] As he so boldly declared ‘The Lord hath commanded no obedience, but rather He hath approved, yea, and greatly rewarded, all those who have opposed themselves to their ungodly commandments and blind rage.’[46]

A consistent doctrine of lawful resistance against tyranny was further developed by another famous Scottish Presbyterian, Samuel Rutherford (1600-1661). In Lex Rex he contends that if society really wishes to be free, then the people must preserve their inalienable right to disobey unjust legislation if necessary. As noted by him, ‘[a] power ethical, politic, or moral, to oppress, is not from God, and is not a [lawful] power, but a licentious deviation of a [lawful] power’. [47] In answering the royalists who commonly relied on St Paul’s Letter to the Romans, Chapter 13, to condemn all forms of resistance against civil government as a form of resistance against God, Rutherford boldly stated: ‘It is a blasphemy to think or say that when a king is drinking the blood of innocents and wasting the Church of God, that God, if he were personally present, would commit these same acts of tyranny.’ [48]


Arguably, besides Scripture, more directly another primary source of inspiration for Rutherford came from the works of St Thomas Aquinas (1225-1274).[49] In many respects Rutherford’s views of civil government were quite close to those of Aquinas’, who believed also in the supremacy of God’s law over human legislation. According to the Catholic legal philosopher, Charles Rice, ‘his analysis is a prescription for limited government, providing a rational basis on which to affirm that there are limits to what the state can rightly do. His insistence that the power of the human law be limited implies a “right” of the person not to be subjected to an unjust law.’[50] For Aquinas, ‘man is bound to obey secular princes in so far as this is required by the order of justice. Wherefore if the prince’s authority is not just but usurped, or if he commands what is unjust, his subjects are not bound to obey him, except perhaps accidentally in order to avoid scandal or danger.’[51] Ultimately, Aquinas stated:

If it is a people’s right to provide itself with a king, and if that king tyrannically abuses the royal power, there is no injustice if the community deposes or checks him whom they have raised to the kingship, nor can it be charged with a breach of faith for abandoning a tyrant, even if the people had previously bound themselves to him in perpetuity; because, by not faithfully conducting himself in government as the royal office demands, he has brought it on himself if his subjects renounce their bargain with him.[52]

In any such analysis the concept of natural law needs to be taken into consideration. The doctrine has a long history which goes back to the ancient Greeks and Romans. When Christianity came into existence, the concept of natural law (and ‘natural rights’) became understood as part of God’s created order in nature and derived from the ability of humans to distinguish what is right from what is wrong. In fact, St Paul stated: ‘For when gentiles, who do not have the law [Ten Commandments], by nature do the things in the law, these, although not having the law, are a law to themselves, who show the work of the law written in their hearts, their conscience also bearing witness, and between themselves their thoughts accusing or else excusing them’ (Rom 2:14).

John Locke (1634-1704) is pivotal in this kind of discussion. In his influential Two Treatises on Civil Government, the ‘law of nature’ is explained as God’s general revelation of law in creation, which ‘God supernaturally writes on the hearts of men. Locke drew the idea from the New Testament in Romans 1 and 2. This ‘law of nature’ acts as God’s eternal moral law specially revealed and published in Scripture.[53] That so being, the civil ruler puts himself into a “state of war” against the people whenever he endeavours to destroy our ‘natural rights’ to life, liberty and property. For Locke, no government possesses legitimacy to undermine these fundamental rights of the citizen. As Locke himself put it:

Whenever the legislators endeavour to take away and destroy the property of the people [i.e., their basic rights to life, liberty and property], or to reduce them to slavery under arbitrary power, they put themselves into a state or war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.[54]


The American Founders based on Locke’s political phraseology to draft the 1776 U.S. Declaration of Independence. This document evokes a “long train of abuses” as well as the “consent of the governed” as the primary basis for their revolutionary action. Drawing heavily from Locke’s theory, the Declaration assumes a pre-eminence of the “Law of Nature and of Nature’s God”, which prohibits the state of violating certain “inalienable rights” of the individual. That being so, the declaration concludes that ‘whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government’. According to Charles Francis QC,

In the United States, which inherited the English common law, most Americans do not believe that individual rights originate with the government, but rather that they are inalienable rights coming from our Creator and most rights may not be impaired without due process of law.  This philosophy of government was spelled out in the American Declaration of Independence and also by implication in the United States Constitution.   Even the somewhat secular minded Thomas Jefferson played homage to this principle when he said “the only firm basis of freedom is a conviction in the minds of people that their liberties are the gift of God”[55]

Perhaps it necessary to remind that any revolutionary uprising, as noted Pope Paul VI in his encyclical Popularum Progressio of 1967, can only be justified in truly extraordinary circumstances, ‘where there is a manifest, long-standing tyranny which would do great damage to fundamental personal rights and dangerous harm to the common good of the country’.[56] Otherwise, as the pope so correctly informs, such a recourse to violence as a means to right the wrongs of the state risks itself to produce new and unintended forms of injustice. As explained in this encyclical letter, because ‘a real evil should not be fought against at the cost of greater misery’, any social uprising can only be carried out as the absolute last remedy against long-standing tyranny.33


6. Christianity and Human Rights


Christianity provides the strongest possible argument for the protection of human rights. Genesis says that everyone, male and female, is created in God’s image. There is a special meaning for the recognition of human rights, and this comes from an intimate relationship between God and human beings. The Fall may have distorted this relationship but it did not destroy it.[57]

Take the issue of slavery for instance. It was endorsed by the ancient Greeks and indigenous to African and Arab countries before it made its way to Europe. Slavery was practiced also by tribes of Latin America before the arrival of the white settlers; and it still exists to this day in some Muslim countries such as Sudan and Somalia. Slavery was officially ended in Saudi Arabia only in 1962.  In the West, however, slavery was brought to an end in the 18th-century, only after a great awareness that the Bible condemns it. In Britain, William Wilberforce (1759-1833) spent his entire political career fighting against slavery, which eventually came to an end in 1833. In Appeal to the Religion, Justice and Humanity of the Inhabitants of the British Empire, Wilberforce explains how slavery is a violation of God’s law. According to the sociology professor Alvin Schmidt:

It is difficult to find a better example than Wilberforce to show the powerful effect the teachings and spirit of Christ have had in fighting the social sin of slavery. No proponent of abolition of slavery even accomplished more. Largely as a result of his indefatigable efforts, slavery came to a complete end in all of the British Empire’s possessions by 1840, making it the first modern country to outlaw slavery.[58]


Take also what happened in the United States, where two-thirds of all the abolitionists in the mid-1830s were Christian clergymen.[59] The main argument for the abolition of slavery in America was based on the Christian idea of natural law and natural rights. William Henry Seward, in addressing the Senate in the 1850s, declared that ‘slave is contrary to the Law of nature which is the Law of God’.[60] As emeritus law professor Charles Antieau of Georgetown University points out,

Attacks of the Abolitionists in America were often based upon the theory of natural rights. Horace Mann, speaking in the United States House of Representatives, said: ‘The institution of slavery is against natural rights … an invasion of the rights of man’. Senator William Henry Seward said on the floor of the United States Senate that all men have ‘natural rights and inalienable liberty’ which forbids slavery. On another occasion, Seward added that ‘slavery is contrary to the Law of Nature which is the Law of God’. Charles Elliot, in his 1851 book, ‘The Sinfulness of American Slavery’, written for the Methodist Church, asserted that man’s ‘natural liberty’ made slavery illegal. The following year, William Hosmer in his book on ‘The Higher Law’ stated that slavery was contrary to ‘natural justice’, which he identified with ‘the Law of Nature, which is the Law of God’. Gerrit Smith (1797–1874), an active reformer of the century, was a force in the Anti-Slavery Society from 1835 until slavery was abolished. In a letter to Henry Clay, he wrote that slavery was opposed to ‘the laws of my nature and my nature’s God’. Another abolitionist, William Goodell, editor of the anti-slavery periodical, ‘The Friend of Man’, used both natural right and natural law arguments in support of his crusade against slavery.[61]


On the other hand, it is also true that some slave-owners called themselves Christian. These individuals were either ignorant of Christianity, or knowingly ignored its most fundamental principles. By contrast, the rights enjoyed by citizens in modern times derive from a Christian ethos which communicates the singular importance of every human being. As noted by Sanford A. Lakoff, who is Professor Emeritus of Political Science at the University of California, San Diego,

The Christian teaching with the greatest implications for democracy is the belief that because humanity is created in the image of God, all human beings are of equal worth in the sight of God. Along with the Greek Stoic belief in equality as a reflection of the universal capacity for reason, this belief in shaped an emerging democratic consciousness, as Alexis de Tocqueville noted when he observed in the introduction to his study of democracy in America that Christianity, which has declared all men equal in the sight of God, cannot hesitate to acknowledge all citizens equal before the law.[62]


This statement assumes that we receive our basic rights from the hand of our Creator. These rights are inherent in the creation and bestowed by God, and not by the state. And yet, unless society acknowledges God as the ultimate source of all Goodness and Justice, there is no ultimate basis for the protection of human rights. This is ultimately about the sort of authority society wishes to have: the authority of a good God or the authority of sinful human beings. If we decide for the former, then, argues John R. Rushdoony, ‘we have no right to complain against the rise of totalitarianism, the rise of tyranny—we have asked for it’.[63] Indeed, as the main author of the American Declaration of Independence, Thomas Jefferson (1743-1826), put it rhetorically: ‘Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?’[64] The answer has been given by the American legal philosopher, Jeffrie G. Murphie, in the following terms:

The rich moral doctrine of the sacredness, the preciousness, the dignity of persons cannot in fact be utterly detached from the theological context in which it arose and of which it for so long formed an essential part. Values come to us trailing their historical past; and when we attempt to cut all links to that past we risk cutting the life lines on which those values essentially depend. I think that this happens in… any attempt to retain all Christian moral values within a totally secular framework. Thus ‘All men are created equal and are endowed by their Creator with certain unalienable rights’ may be a sentence we must accept in an all or nothing fashion – not one where we can simply carve out what we like and junk the rest.[65]


7.      Conclusion


The ideal of legality known as ‘the rule of law’ is far more than the existence of laws; it also requires the state to act in accordance with principles of a ‘higher law’. As noted by Owen Hood Phillips, the late English constitutional lawyer and Emeritus Professor of Jurisprudence at Birmingham University, ‘historically, the phrase was used with reference to a belief in the existence of law possessing higher authority – whether divine or natural – than that of the law promulgated by human rulers which imposed limits on their power.’[66] That being so, wrote the late Harvard professor of legal history, Harold Berman, ‘the Western belief in the autonomy and supremacy of law – historically based, as it is, on the dialectic of the church and state – can hardly serve as the principal foundation of legality in a world that is only partly Christian.’[67]


The traditional view of the rule of law that shaped the common law as a significant legal system is today becoming obsolete. The legal system that was formed and developed over centuries under the dominating influence of Christianity is being deliberately abandoned. The understanding of the law, which guided England for so long, is being overturned in favour of “progressive” ideas that do not recognise the authority of a higher law. As a result, the foundation for inalienable rights in Christian jurisprudence is being replaced by a myriad of humanistic philosophies that pay no regard to the religious values upon which the rule of law was founded. It is definitely not safe to assume that the rule of law can survive under its current post-Christian environment. The evidence of history and the witness of current facts all appear to confirm this assumption.


In explaining the Western legal tradition it is fundamental to remind that individual rights and liberties would not have occurred had it not been for the Christian values that prompted and shaped the formation of these values.[68] This legal tradition is in crisis and that the first step toward a solution is to recover the motivating religious beliefs that have from time to time profoundly inspired that tradition. Those who disparage our Christian tradition should be much better informed that, were it not for the Christian faith, they would probably not even have the right to dishonour the primary source of their legal rights and freedoms.[69] As noted by the Catholic classical liberal economist, William Aylott Orton (1889-1952),

Any honest analysis of Western legal history would have to recognize the decisive influence of Christianity on the development of the rule of law. However, many would say that any effective protection against tyranny cannot, in the long run, be sustained without the higher standards of justice and morality that were brought into the texture of Western societies by Christianity.[70]


To conclude, those who believe that the abandonment of Christianity will serve the advancement of freedom and equality should think twice. A good way to start is by thinking about what such an abandonment brought about in terms of notorious tyranny and the brutal mass-murder to at least two Western nations in the last century: Germany and Russia. Regarding the present climate of postmodernism and multiculturalism, it seems perfectly appropriate to conclude this paper with the following warning of an American historian, educator, diplomat, devout Catholic and academic, Carlton J.H. Hayes (1882-1964): ‘Wherever Christian ideals have been generally accepted and their practice sincerely attempted, there is a dynamic liberty; and wherever Christianity has been ignored or rejected, persecuted or chained to the state, there is tyranny.’[71] I certainly couldn’t agree more.


* LL.B. (Hon.), LL.M. cum laude, Ph.D. (Mon.), Professor of Law, Sheridan College (Perth/WA);  Professor of Law (adjunct), The University of Notre Dame Australia (Sydney campus); President, Western Australian Legal Theory Association (WALTA); former Law Reform Commissioner, Law Reform Commission of Western Australia (2012-2018).

[1] Patrick Parkinson, Tradition and Change in Australian Law (4th ed., Sydney/NSW: Thomson Reuters, 2005), p 29.

[2] Richard Frothingham, The Rise of the Republic of the United States (Boston/MA: Little, Brown, 2010), p. 6.

[3] Alvin J. Schmidt, How Christianity Changed the World (Grand Rapids/MI: Zondervan, 2004), p.250.

[4] Canon law is the body of laws and regulations made or adopted by ecclesiastical authority for the organisation of the Church and its members.

[5] Nicholas Aroney, Law, Revolution and Religion: Harold Berman’s Interpretation of the English Revolution, 8 Journal of Markets & Morality 355, at 359.

[6] R.C. van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge/UK: Cambridge University Press, 1995), pp 19-20.

[7] Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church, (London/UK: Burns & Oates, 2004), pp 69–70.

[8] Nick Spencer, The Evolution of the West: How Christianity Has Shaped Our Values (London/UK: SPCK, 2016), p 46.

[9] Ibid.

[10] Ibid., p 64.

[11] Jason Taliadoros, ‘Natural Law and Legal Obligation: Pre-Modern Understandings of Ius Naturale’. Paper presented at the 2011 Conference of the Australian Society of Legal Philosophy, Brisbane/Qld, 29–31 July 2011, p 4.

[12] St Augustine; The City of God (Cambridge/UK: Cambridge University Press, 1998), Bk III, par. 28,

[13] “Law is a certain plan directing acts to their end. Wherever movers are ordered to one another, the power of the second mover must be derived from that of the first, since the second mover operates only insofar as it is moved by the first. We see the same thing in all governors. The plan of government is derived by the secondary governors from the primary governor, just as the plan of what is to be done in a state derives from the king through his command to lesser administrators. It is the same in construction, where building plans descend from the architect to the lesser craftsmen who work with their hands. “Therefore, since the eternal law is a plan of government in the supreme governor, all plans of government in lesser governors must be derived from eternal law. All laws besides the eternal law are plans of this sort devised by inferior governors. Thus all laws are derived from eternal law insofar as they participate in right reason. That is why Augustine says that “in temporal law nothing is just and legitimate which men have not derived from eternal law.” – Thomas Aquinas, ‘Whether the contingent acts of nature are subject to the eternal law’, from: Paul Halsall (ed.), Internet Medieval Sourcebook, at:

[14] The word tyranny comes from the Greek “secular rule”, which means “rule by men” instead of the rule of law.

[15] Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Indianapolis/IN: Liberty Fund, 1989), p 49.

[16] Charles C.H. Spurgeon, Joy Born at Bethlehem; in: Water, M. (Ed.), Multi New Testament Commentary, (London/UK:  John Hunt, 1871), p. 195.

[17] David Mitchell, ‘The Christian Foundations of Australian Law’. Paper presented at the 2008 Australia Summit Conference, Melbourne, 13 January 2008, p 2.

[18] Brian Z. Tamanaha, On The Rule of Law: History, Politics, Theory (Cambridge,/UK, Cambridge University Press, 2004), p 23.

[19] “Henry of Bratton (Henricus de Brattona or Bractona) was an English judge of the court known as coram rege (later King’s Bench) from 1247-50 and again from 1253-57. After his retirement in 1257, he continued to serve on judicial commissions. He was also a clergyman, having various benefices, the last of which being the chancellorship of Exeter cathedral, where he was buried in 1268”. – Harvard Law School Library, at:

[20] Henry Bracton, On the Laws and Customs of England (Cambridge/MA: Harvard University Press, 1968), p.33

[21] Ibid., p.25.

[22] O.H. Phillips and P. Jackson, Constitutional and Administrative Law (7th Ed., London/UK: Sweet & Maxwell, 1993), p.33

[23] Francis, Charles, Bracks’ Bill of Rights is an Attack on Basic Rights, BrooksNews, 20 March 2006, at:

[24] Nicholas Aroney, Law, Revolution and Religion: Harold Berman’s Interpretation of the English Revolution, (2005) 8 (2) Journal of Markets & Morality 355, p 363.

[25] “During the reign of Henry VI… [Sir John Fortescue] was three times appointed one of, the governors of Lincoln’s Inn. In 1441 he was made a king’s sergeant at law, and in the following year chief justice of the King’s See also:Bench. As a See also:judge Fortescue is highly recommended for his See also:wisdom, gravity and uprightness; and he seems to have enjoyed great favour with the king [Henry VI], who is said to have given him some substantial proofs of esteem and regard… Fortescue’s masterly vindication of the laws of England, though received with great favour by the learned of the profession to whom it was communicated, did not appear in print until the reign of Henry VIII., when it was published, but without a date”. – Online Encyclopedia

(Originally appearing in Volume V10, Page 678 of the 1911 Encyclopedia Britannica), at: JOHN FORTESCUE (c. 1394-c. 1476)

[26] John Fortescue, De Laudibus Legum Anglie (Cambridge/UK: Cambridge University Press, 1949) Chap. XLII, p. 105.

[27] “In 1606 Coke was made chief justice of the Court of Common Pleas. Thereafter he vigorously championed the common law against all other authority, even against the royal prerogative and the privilege of the church. In 1613 King James I of England promoted Coke to the Privy Council and to the office of chief justice of the King’s Bench, thinking that Coke would be more easily managed in this post, but Coke continued to clash with the Crown. In 1616, at the instigation of Bacon (then attorney general), charges on relatively minor issues were brought against him, and he was removed from office. The following year, however, Coke was reappointed to the Privy Council, and after his reelection to Parliament in 1620 he once again challenged royal authority. The following year Coke helped impeach Bacon, then Lord Chancellor. He was also a leader in a debate urging that Parliament should not be subservient to the king. A few years later, Coke helped to write the Petition of Right, the most explicit statement of the principles of liberty to appear in England up to that time. It became an integral part of the English constitution” – Encarta Encyclopedia, at:

[28] 7 Co. Rep. I, 77 Eng. Rep. 277 (K.B. 1960). Apud: John C.H. Wu, Fountain of Justice: A Study in the Natural Law, Sheed and Ward, New York, p. 91, 1955.

[29] Sir Edward Coke, Third Reports (1602), vol. 3, cii.

[30] Sir William Blackstone, The Sovereignty of the Law (London/UK: McMillan, 1973), pp.58-9.

[31] Michael Cassidy, Thinking Things Through: Christian Reflections on some Contemporary Ethical Issues. (Brunswick East/Vic: Acorn Press, 2006), p 123.

[32] Kerby Anderson, Christian View of Government and Law, Probo Ministries, Richardson/Texas, at:

[33] Edward S. Corwin, The Higher Law Background of American Constitutional Law [1928] (Indianapolis/IN: Liberty Fund, 2008), p 54.

[34] Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York/NY:  WW Norton & Co, 2003), p 45.

[35] Russell Kirk, Rights and Duties: Reflections on our Conservative Revolution (Dallas/TX: Spence Publishing Co., 1997), p 105.

[36] This is based on Montesquieu’s classic work The Spirit of Laws (1750).

[37] Charles Louis de Secondat, Baron de Montesquieu, The Spirit of Laws[ 1750] Bk XXIV, Ch. 3.

[38] David Barton, Original Intent (Aledo/TX: Wallbuilders, 2005), p 215.

[39] Rom. 13: 1-3 (NIV)

[40] Francis A. Schaeffer, A Christian Manifesto (Westchester/IL: Crossway Books, 1988), p. 91.

[41] Origen, Contra Celsum, 5.37.

[42] John Stott, The Message of Romans: God’s Good News for the World (London/UK: Inter-Varsity Press, 1994), p 342.

[43] Pacem in Terris (1963), Encylical letter of Pope John XXIII, Para. 51.

[44] John Knox, On Rebellion (Cambridge/UK: Cambridge University Press, 1994), p 192.

[45] Ibid. p 178

[46] Ibid., p 95.

[47] Samuel Rutherford, ‘Lex Rex’, or The Law and the Prince – Vol. 3, p. 34, in: The Presbyterian Armoury, 1846.

[48] Ibid. Arg. 4.

[49] Prue Vines, Law & Justice in Australia (Melbourne/Vic: Oxford University Press, 2005), p 70.

[50] Charles E. Rice, 50 Questions on the Natural Law: What It Is and Why We Need It (San Francisco/CA: Ignatius Press, 1999), p 85.

[51] Thomas Aquinas, Summa Theologica, 72, II, II, Q 104, art 6.

[52] Ibid., 89, Bk 1, Ch 6.

[53] Gary Amos, Defending the Declaration (Brentwood, TN: Wolgemuth and Hyatt, 1989), p 59.

[54] John Locke, Second Treatise on Civil Government, para. 222. (at 374)

[55] Charles Francis QC, ‘The Rule of Law: What is Wrong with a Charter of Rights’, Endeavour Forum, June 2006, at:

[56] Popularum Progressio (1967) Encyclical letter of Pope Paul VI, Para. 31.

[57] Charles Colson and Nancy Pearcey, How Now Shall We Live? (Wheaton, IL: Tyndale, 1999), p 131.

[58] Schmidt, above n.3, p 278.

[59] Ibid., p 279.

[60] Chester James Antieau, The Higher Laws: Origins of Modern Constitutional Law (Buffalo/NY: William S Hein & Co., 1994), p 81.

[61] Antieau, Charles J., The Higher Laws: Origins of Modern Constitutional Law (Buffalo/NY: William S Hein & Co, 1994), p 81.

[62] Sanford Lakoff, Democracy: History, Theory and Practice (Boulder/CO: Westview Press, 1996) p.90.

[63] Rousas John Rushdoony, Law & Liberty (Aledo TX: Craig Press, 1971), p. 35.

[64] Thomas Jefferson, Notes on the State of Virginia – Query XVIII: The particular customs and manners that may happen to be received in that state? (1781), at

[65] Jeffrie G. Murphy, ‘Afterword: Constitutionalism, Moral Skepticism, and Religious Belief’, in Alan S. Greenwood (ed.), Constitutionalism: The Philosophical Dimension (New York/NY: Greenwood Press, 1988), p 249.

[66] Phillips and Johnson, above n.22, p 37.

[67] Harold J. Berman, ‘Religious Foundations of Law in the West: An Historical Perspective’ (1983)1 Journal of Law and Religion 3, p 43.

[68] Schmidt, above n.3, p.258.

[69] Schmidt, above n.3, p 13.

[70] William Aylott Orton, The Liberal Tradition: A Study of the Social and Spiritual Conditions of Freedom (new Haven/CT: Yale University Press, 1945) p.57

[71] Carlton J.H. Hayes, Christianity and Western Civilization, Stanford University Press, Stanford, CA, p. 21, 1954.