On March 11, 1850, U.S. Senator William Henry Seward of New York dared to utter the unthinkable in the halls of Congress. While arguing against slavery, he intoned, “But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes.”
Seward reaped the wrath of many for saying such a thing, and the so-called “compromise” of 1850 even strengthened “fugitive slave” provisions across the land. This, in effect, made a criminal of anyone unwilling to capture those fleeing slavery.
The nation erupted in a war of ideas, and one Wesleyan writer, William Hosmer, released perhaps the most detailed defense of Seward and higher-law thinking. Hosmer insisted that government is accountable to an eternal, moral law.
Not a new conviction
This was not a new conviction. Various notions of a divine law had been invoked since before the Revolution. Additionally, they would be deployed with sparkling clarity by Martin Luther King Jr. during the Civil Rights Movement of the 20th century.
Governments and laws should be servants of God and human beings.
Section V, The Political Community, of our United Methodist Social Principles examines various issues that relate to government and its appropriate authority.
One especially pithy paragraph is given the title “Civil Obedience & Civil Disobedience.” Among other statements, this text reminds us: “Governments and laws should be servants of God and human beings.”
People are not granted rights by government. Their God-given rights are recognized and protected by governments. This is essentially a form of “higher-law” tradition.
Theology of protest
We have perhaps come to think of this perspective as a theology of protest because of its application during the middle and late 20th century. King’s “Letter from Birmingham Jail” is remembered for many reasons, but perhaps most insightful was his accessible explanation of the difference between moral and immoral laws.
Perhaps most insightful was his accessible explanation of the difference between moral and immoral laws.
Add the experience of anti-war protest, as well as other late-century social movements, and many will assume that the “higher-law” tradition is a “progressive” thing. To arrive at such a conclusion is both correct and incorrect at the same time.
Arguing that practical or “positive” law must be held accountable to a higher standard is an approach grounded in American revolutionary history. Over the centuries, those opposed to this tradition have often claimed that it threatens established order. If people can appeal to some “higher” law, then chaos will ensue.
Aren’t such arguments the irrational nonsense of those who want to unleash arbitrary behaviors? Just what is this “higher law” if it is not some convenient way to avoid governmental authority?
The blanket dismissal of higher-law thinking neglects to acknowledge that some have, in fact, devoted intelligent energy to the concept. During the pre-Civil War antislavery movement, the first president of Adrian College suggested that the moral law combined two related features: it respected the “intrinsic worth” of people and was applied equally to all.
This definition borrowed from philosopher Immanuel Kant and gave legal voice to his famous “categorical imperative.”
Martin Luther King, Jr. offered a similar two-part definition. Drawing from the work of philosopher Martin Buber, King said that the moral law upheld an “I/Thou” relationship between people. Then he said that it was “sameness made legal.”
Being treated as “Thou” implies an “intrinsic worth,” and “sameness made legal” sounds a lot like the universal concern of Kant’s “categorical imperative.” It would seem that great minds do think alike.
I would suggest that the greatest danger to this tradition today does not come from those who wish to push back with simplistic law-and-order thinking — as dangerous as that can be. The greatest threat comes from assumptions that there is no such thing as divine moral law.
At particularly arrogant times in history, some have scoffed at the moral law and insisted that the very idea of law is nothing more than a set of norms constructed by society. This claim may allow for change, and that is good. But it respects no eternal standard of dignity and can end up sanctioning heinous policies.
The higher-law tradition will always be something beyond the grasp of political fad and seasonal abusers of human rights. Thank God for that. I mean it. Thank God for that.
This thread of political thinking is not held hostage to either reactionary right or trendy left. It is a line of reflection and conviction that has insisted upon respect and dignity, and it has done so with a profound and persistent authority.
We should not neglect this critical part of our Social Principles.