Do Laws and Standards Evolve?

                                                        Douglas W. Phillips, Esq.*

                             Institute for Creation Research, PO Box 2667, El Cajon, CA 92021
                                           Voice: (619) 448-0900 Fax: (619) 448-3469

                                    "Vital Articles on Science/Creation" September 1998
                                              Copyright © 1998 All Rights Reserved
 
 

Every intellectual and cultural battle is won or lost in the assumptions. He who defines, wins. The
controversy between evolution and Biblical creation is about much more than fossils and ape men. It
concerns the basic presuppositions by which our society will answer questions concerning life, law,
and human relationships. Most importantly, it is a battle over lordship: Who is Lord . . . God or man?

For much of this century, Darwinian evolution has appeared victorious in the cultural battle. The theory
of evolution has done far more than just reshape America's biology textbooks, it redefined the nature
of the debate. Darwin offered modern man the same question which the serpent posed to Eve: "Hath
God said?" thereby declaring man the ultimate source of authority.

The results have been devastating. Our society has declined to the point where Christianity is excluded
from the public arena, parents may kill their own nine-month baby in the womb, and the lawfulness of
homosexual marriage is openly debated by legislators. Many Christians disapprove, but when
challenged to defend their position, are quickly silenced by protests that morality is not the proper
domain of politics.

The way in which a society addresses such controversies is directly related to how it answers the
following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard
should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is
determined by one's approach to origins. By convincing large numbers of Christians that law is morally
neutral, that human reason is the arbiter of truth, and that standards change as cultures mature,
Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many
Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the
assumptions on which the theory rests.

                                                Can man legislate morality?

It is impossible to pass a law which is free from moral implications. The real question is not whether
man can legislate morality, but which system of morality will be legislated. All laws are either explicitly
moral or procedural to a moral concept. Even laws requiring traffic lights are an imposition of morality.
The purpose of traffic lights is to stop people from having accidents, thus protecting property and
preserving life. This is a moral concept which presupposes that (a) order is good and chaos bad, (b)
property rights should be honored, and (c) life preserved. Each of these principles is rooted in the
Genesis account of origins: (a) God the Creator, who declared His work "very good" (Genesis 1:31),
is not the author of confusion (I Corinthians 14:33); (b) He commanded man to bring order to Creation
by taking dominion over the earth, thus laying the foundation for property rights (Genesis 1:18); and (c)
He established the sanctity of life as the first principle of lawful government (Genesis 9:5,6). These are
the unspoken moral assumptions behind a traffic light.

Of course, law can neither save nor sanctify. God intends civil law to be a restraint against evil, not a
source of spiritual deliverance (Romans 13:4). Ironically, it is the evolutionary humanist who argues for
salvation by legislation. Because man's problems are believed to be environmental, not sin-related, the
evolutionist hopes to solve them through government programs and better education. In such a world,
the State, not Jesus Christ, is honored as the true redeemer.

                                     By what standard should man legislate?

There are only two standards by which man can govern: the law of God, or the will of man. America's
Founding Fathers understood that there is no middle ground. They declared their allegiance to the
Creator and acknowledged that He had established a law-order with transcendent moral principles: We
hold these truths to be self-evident that all men are created equal, that they are endowed by their
Creator with certain inalienable rights.

By so stating, the Declaration of Independence drew from and incorporated into the charter of our
nation a one-thousand year western legal tradition firmly rooted in the Genesis account of origins. For
decades American law students learned the Genesis foundation for law from Sir William Blackstone,
whose Commentaries on the Laws of England was their primary text. The Commentaries were not
merely an approach to the study of law, they were the law.

1. The Blackstone Tradition

Blackstone predicated his entire analysis of law on the superiority of special revelation (the Bible) over
general revelation (nature), on the reality of a literal twenty-four hour, six-day creation week, on a literal
Adam and a literal Fall resulting in the corruption of human reason, and on the Dominion Mandate of
Genesis as the foundation for the law of property ownership. Blackstone affirmed the authority of
Scripture as the only legitimate foundation for society, and he specifically refuted the idea that laws
could evolve as societies change. He wrote:

    Men do not make laws, they do but discover them. Laws must be justified by something
    more than the will of the majority. They must rest on the eternal foundation of
    righteousness. . . . The doctrines thus delivered we call revealed or divine law, and they are
    to be found only in holy scriptures. . . . And if our reason were always, as in our first
    ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by
    prejudice, unimpaired by disease or intemperance, the task would be easy. . . . But every
    man now finds the contrary in his experience, that his reason is corrupt. . . .

The foundational common law doctrines pertaining to the laws of contracts, property, torts (personal
injury), and evidence find their origin in the first eleven chapters of the Book of Genesis. Genesis
reveals the authority of God as lawgiver (Genesis 2:17); the meaning of justice and mercy (Genesis
3:15); the significance of marriage as the first institution (Genesis 2:21_24); the necessity of atonement
and restitution for crime (Genesis 2:17; 3:17; 9:6); the nature and meaning of covenants (Genesis
9:12,13; 15:18); the jurisdiction of the state to execute murderers (Genesis 9:6); the jurisdiction of the
family to raise children (Genesis 1:28; Malachi 2:15); the jurisdiction of fathers to direct families
(Genesis 3:16; 18:19); the jurisdiction of man over the environment (Genesis 1:31); etc.

Despite the enormous influence of Blackstone's distinctively creationist approach to law, his writings
have been relegated to obscurity in most law schools. In the July 1978 edition of the American Bar
Association Journal, noted historian, Henry Steele Commager, summarized what happened: "[They]
substituted the operations of the law of evolution for the laws of God."

2. The "Scientific" Approach to Law

    There proceeded during the 19th Century, under the influence of the evolutionary concept, a
    thoroughgoing transformation of older studies like History, Law, and Political Economy;
    and the creation of new ones like Anthropology, Social Psychology, Comparative Religion,
    Criminology, Social Geography. . . . (Julian Huxley)

A millennium of Christian legal tradition came to an end in 1870. In that year, Christopher Columbus
Langdell, newly appointed Dean of Harvard Law School, began a revolutionary approach to legal
education which specifically discarded the Genesis foundation of law in favor of a philosophy rooted
in Darwinism.

Langdell abandoned the historic method of teaching Christian principles of the common law in favor of
the new "case-book method" which directed the student to discover law through the constantly
evolving opinion of judges. Langdell described the relationship between science, law, and
uniformitarianism in the preface to the first "case-book" ever published, his Cases on Contracts:

    Law, considered as a science, . . . has arrived at its present state by slow degrees; in other
    words, it is a growth, extending in many cases through centuries. This growth is to be traced
    in the main through a series of cases; and much the shortest and best, if not the only way of
    mastering the doctrine effectively is by studying the cases in which it is embodied.

Legal scholar, Herb Titus, explained that Langdell "believed that the cases were the `original sources'
of legal doctrines and principles: the case gave birth to a rule of law, which slowly evolved through a
series of cases into a full-fledged legal principle." Langdell began a century-long tradition whereby
judges no longer viewed themselves bound to interpret pre-existing laws. They may now decide what
laws should be. Thus, Langdell answered the question, "By what standard should man legislate?" by
pointing to the autonomous reason of man.

                                                        Do laws evolve?

The Langdellian legal revolution proved to be the single greatest influence on American law since the
publication of Blackstone's Commentaries in 1765. In the years that followed, the introduction of the
case-book method, scholars and jurists would continue to integrate evolutionism into the American
legal system. While Langdell's primary influence had been to create a distinctively Darwinian
methodology of legal education, the job of reshaping the conclusions of law in the image of
evolutionary humanism would be left to his student progeny and intellectual successors.

The single most influential jurist of the Twentieth Century was United States Supreme Court Justice
Oliver Wendell Holmes, Jr. His massive treatise, The Common Law, supplanted Blackstone's
Commentaries as the premier text for law students. Holmes taught "the life of the law has not been
logic, but experience," and argued that it was the responsibility of courts to direct the evolution of law.
Because right and wrong do not exist in any absolute sense, judges must determine which standards
are most appropriate at a given point in the evolution of a society.

For three decades, Holmes brought his distinctively Darwinian bias to the Court. He spoke candidly: "I
see no reason for attributing to man a significance different in kind from that which belongs to a
baboon or a grain of sand."

A consistent evolutionist, Holmes declared that "the sacredness of human life is a purely municipal
ideal of no validity outside the jurisdiction." He authored the landmark decision in Buck v. Bell
upholding a Virginia eugenics law mandating the involuntary sterilization of people the State deemed
undesirable.

    It is better for all the world if, instead of waiting to execute degenerate offspring for crime,
    or to let them starve for imbecility, society can prevent those who are manifestly unfit from
    continuing their kind.

Holmes and his contemporaries laid the foundation for legalized abortion, no-fault divorce, the
legalization of homosexuality, and the rejection of the Framers' vision for Constitutional interpretation.
Today, most courts have embraced an evolving standard for Constitutional interpretation, rejecting the
notion that the Constitution must be interpreted in light of the meanings intended by the Framers.

                                                               Conclusion

For evil to triumph in the cultural battle, it is not necessary that the theory of evolution gain wide-spread
acceptance, only that the assumptions behind the theory do. The battle between evolution and creation
is comprehensive because it is a battle over lordship. The source of law will always be the true Lord of
that civilization. Standards will never evolve because the Lawgiver never changes (Hebrews 13:18). His
moral law for man can never change because it reflects the immutable character of a righteous, holy
God. This standard was established from the beginning, is revealed in Scripture, and is eternally
binding on civilizations. While specific application of these principles may change from culture to
culture, the principles do not. Consequently, debates pertaining to separation of morality and politics,
children's rights, overpopulation, environmentalism, homosexual marriage, education, capital
punishment, and the purpose of the criminal justice system can only be properly addressed by building
upon a Genesis foundation. Only armed with this foundation can Christians speak authoritatively to the
defining issues of our day.

    * Douglas W. Phillips, Esq., is an attorney and adjunct professor of apologetics at ICR.
 

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