Positive and Negative Law

Positive and Negative Lawcourt justicessupreme court

By Rousas John Rushdoony

The Third Commandment declares, “Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain” (Ex. 20:7; Deut. 5:11).

Before beginning an analysis of this commandment, it is important to call attention to an aspect of the law which makes it especially offensive to the modern mind: its negativism. Of the ten commandments, eight are stated in negative terms. The other two, “Remember the sabbath day to keep it holy,” and, “Honor thy father and thy mother,” are undergirded by a number of subordinate laws which are all negative in character. The sabbath commandment is negative: “thou shalt not do any work” (Ex. 20:10; Deut. 5:14), so that, in their full form, nine of the ten commandments are negative.10 commandments...

To the modern mind, laws of negation seem oppressive and tyrannical, and the longing is for positive officials of the law to replace the police. Thus the Black Panther leader, and Peace and Freedom presidential candidate, Eldridge Cleaver, declared in 1968, that, “if elected, he would do away with the poverty program, and substitute ‘public safety officials’ for police.” 1

Public safety officials produced a reign of terror in the French Revolution, and not without reason, because a positive law can only lead to tyranny and totalitarianism.

The best statement of a positive concept of law was the Roman legal principle: the health of the people is the highest law. This principle has so thoroughly passed into the world’s legal systems that to question it is to challenge a fundamental premise of the state. The Roman principle is basic to the American development, in that the courts have interpreted the “general welfare” clause of the U. S. Constitution in terms radically alien to the original intent in 1787.

negative concept of law confers a double benefit: first, it is practical, in that a negative concept of law deals realistically with a particular evil. It states, “Thou shalt not steal,” or, “Thou shalt not bear false witness.” A negative statement thus deals with a particular evil directly and plainly: it prohibits it, makes it illegal. The law thus has a modest function; the law is limited, and therefore the state is limited. The state, as the enforcing agency, is limited to dealing with evil, not controlling all men.

Second, and directly related to this first point, a negative concept of law insures liberty: except for the prohibited areas, all of man’s life is beyond the law, and the law is of necessity indifferent to it. If the commandment says, “Thou shalt not steal,” it means that the law can only govern theft: it cannot govern or control honestly acquired property. When the law prohibits blasphemy and false witness, it guarantees that all other forms of speech have their liberty. The negativity of the law is the preservation of the positive life and freedom of man.

But, if the law is positive in its function, and if the health of the people is the highest law, then the state has total jurisdiction to compel the total health of the people. The immediate consequence is a double penalty on the people. First, an omni-competent state is posited, and a totalitarian state results. Everything becomes a part of the state’s jurisdiction, because everything can potentially contribute to the health or the destruction of the people. Because the law is unlimited, the state is unlimited. It becomes the business of the state, not to control evil, but to control all men. Basic to every totalitarian regime is a positive concept of the function of law.

This means, second, that no area of liberty can exist for man; there is then no area of things indifferent, of actions, concerns, and thoughts which the state cannot govern in the name of public health. To credit the state with ability to minister to the general welfare, to govern for the general and total health of the people, is to assume an omni-competent state, and to assume an all-competent state is to assume an incompetent people. The state then becomes a nursemaid to a citizenry whose basic character is childish and immature. The theory that law must have a positive function assumes thus that the people are essentially childish.

At this point some might comment that biblical faith, with its doctrines of the Fall and of total depravity, holds to a similar view of man. Nothing could be farther from the truth. Evolutionary faith, by positing long ages of development for man, holds on the one hand, that man’s being is still governed by ancient, primitive drives and impulses, and, on the other, that man today is still a child in relationship to future evolutionary growth.

Biblical faith, on the contrary, holds to the original creation of a mature and good man. The human problem is not a primitive nature, not childishness, but irresponsibility, a rebellion against maturity and responsibility. Man is a rebel, and his course is not childishness, but sin, not ignorance, but willful folly.

Essentially, a fool cannot be protected, because a fool’s problem is not other people but himself. The book of Proverbs gives considerable attention to the fool. As Kidner has summarized the teaching of Proverbs, it declares, concerning the fool, that:

The root of his trouble is spiritual, not mental. He likes his folly, going back to it “like a dog that returns to his vomit” (26:11); he has no reverence for truth, preferring comfortable illusions (see 14:8, and note). At bottom, what he is rejecting is the fear of the Lord (1:29): it is this that constitutes him a fool, and this that makes his complacency tragic; for “the careless ease of fools shall destroy them” (1:32).

In society the fool is, in a word, a menace. At best, he wastes your time: “you will not find a word of sense in him” (14:7, Moffatt); and he may be a more serious nuisance. If he has an idea in his head, nothing will stop him: “let a bear robbed of her whelps meet a man, rather than a fool in his folly” (17:12)—whether that folly is some prank that is beyond a joke (10:23), or some quarrel he must pick (18:6) and run to death (29:11). Give him a wide berth, for “the companion of fools shall smart for it” (13:20), and if you want to send him away, don’t send him with a message (26:6). 2

 Numerous incidents could be cited to illustrate how prone a fool is to folly: rescue him from one plight, and he falls into another. A sick man, finally persuaded to leave a quack who was treating him, went then instead only to a worse one. And this should surprise no one; a fool is by nature folly-prone.

To examine an area where the law has functioned positively, most people would believe with notable success, let us review the situation in medicine. The state control of the medical profession was largely promoted and advanced by Rockefeller funds. Medical schools were brought under state control, as well as the medical profession. Unapproved medical practices were outlawed, and, we are told, the result has been remarkable progress.

But has the progress been due to state control or the work of the medical profession? Has not the profession itself been responsible for its own progress? And, obviously, there are as many quacks now as then, and perhaps more. The federal government estimates that more than two billion dollars was spent in 1966 on what some authorities would term medical quackery, although the term, significantly, covers everything from fraud to unofficial or unapproved practices. 3 Moreover, the danger now is that any medical researcher whose work fails to gain approval, not only is classified a quack, but also can be in serious legal trouble. Even more, the standard, accepted medical profession, together with the drug companies, has been under very serious attack from Congress for serious malpractice. A variety of “wonder drugs” used experimentally and released with inadequate testing have had serious consequences. 4 Medical journals have also spoken of serious overdosing in hospitals. 5

Granted the responsibility of doctors in prescribing unwisely, the fact remains that many patients, well aware of the hazards in new drugs (and old drugs as well), demand to be dosed. And, given all possible legal safeguards, how can perfection be expected either of doctors or patients? Some doctors and some patients will always be fools.

But the real issue lies deeper. Even as the state controls over medicine have increased, so, at the same time, charges of medical malpractice have increased, and doctors today are in constant danger of lawsuits. American medical skill and surgery have never been better, nor the legal complaints greater. This points up a curious fact: the state has taken over the basic policing power from the medical profession, but the state, instead of assuming responsibility, has increased the culpability of the doctors. A federal agency approves a drug, but the doctor pays the penalty if there are bad reactions.

When the law of the state assumes a positive function in protecting the health and general welfare of its people, it then does not assume the liability. The people are absolved of responsibility, but the medical profession (or business firms, property owners, and the like) assume total liability. The steps towards total liability are gradual, but they are inevitable with a welfare economy.

Historians often praise the medical practice of pagan antiquity, and they commonly credit it with far more merit than it had. At the same time, they blame Christianity for corrupting and halting medical progress. But the decline in ancient medicine began by their own admission in the third century BC. 6 Entralgo has pointed out that, in fact, Christianity rescued medicine from sterile presuppositions. 7

But, in ancient Egypt, Babylon, and elsewhere, the doctor was subject to total liability. If the patient lost his life, the doctor lost his life. Even though the fault was not his, the doctor was totally liable. But, even when the doctor was at fault, what made the doctor totally liable? The patient, after all, had come voluntarily, and the doctor was not a god. Or should he be? The European pagan background, as well as other pagan practices, associated medicine with the gods. Ascetic practices were required of the doctor, so that the doctor was gradually converted into a monk. This pagan influence, combining with Neoplatonism in the early centuries of the Christian era, led to the ascetic as doctor. Pickman noted, of Gaul;

Evidently asceticism’s popular appeal in those days was less on account of its psychological effect on the ascetic himself, than of its physical effect on those to whom he ministered. It was the chosen weapon of the humanitarian. That is why before long a physician who did not become a monk lost his practice.8

Only gradually, with the Christianization of the West, was this pagan concept of medicine abandoned, and, with it, the concept of liability which required the doctor to be a god or else suffer.

State controls over the medical profession have steadily restored the old concept of liability, and the doctors find themselves especially prone to lawsuits. It has become dangerous for a doctor to administer emergency roadside care in an accident because of this proneness to liability. The day may not be too far distant, if the present trend continues, when doctors may be tried for murder if their patient dies. There were hints of this in the Soviet Union in Stalin’s closing days.

If the law assumes a positive function, it is because it is believed that the people are a negative factor, i.e., incompetent and childlike. Then, in such a situation, responsible men are penalized with total liability. If a criminal, who is by his criminality an incompetent, enters a man’s home, he is protected in his rights by law, but the responsible and law-abiding citizen can face a murder charge if he kills the invader when his own life is not clearly threatened, and every recourse to escape is not exhausted. A hoodlum can trespass on a man’s property, climbing a fence or breaking down a gate to do so, but if he then breaks his leg in an uncovered posthole or trench, the home owner is liable for damages.

When the law loses its negativity, when the law assumes a positive function, it protects the criminals and the fools, and it penalizes responsible men.

Responsibility and liability are inescapable facts: if denied in one area, they are not abolished but rather simply transferred to another area. If alcoholics and criminals are not responsible people but merely sick, then someone is guilty of making them sick. Thus, Dr. Richard R. Korn, professor at the University of California School of Criminology at Berkeley, has said that prostitutes should not be arrested and imprisoned, because they are “alienated poor children looking for a better way of life.”9 If these prostitutes are simply “alienated poor children looking for a better way of life,” then someone is responsible for their plight other than themselves, because their intentions were good ones. More than a few are ready to name the responsible party: society. But the prostitutes, their pimps, and the criminal underworld are all a part of our society in the general sense, and it is obvious that they are not being blamed. It is clear also that by guilty society the responsible and successful people are meant. Under communism, this means the total liability of the Christians and capitalists as guilty of all of society’s ills. As totally liable, they must be liquidated.

Responsibility and liability cannot be avoided: if a biblical doctrine of responsibility be denied, a pagan doctrine takes over. And if the biblical negativism of the law is replaced with a law having a positive function, a revolution against Christianity and freedom has taken place. A negative concept of law is not only a safeguard to liberty but to life as well.

*****

1. Channel 28 to Interview Black Panther Leader, The News (Van Nuys, CA), August 11, 1968, 10-A.

2. Derek Kidner, Proverbs: An Introduction and Commentary (Chicago, IL: Inter-Varsity      Press, 1964), 40.

3. See James Harvey Young, The Medical Messiah: A Social History of Health Quackery in Twentieth-Century America (Princeton, NJ: Princeton University Press, 1967).

4. See Morton Mintz, By Prescription Only, 2nd ed. rev. (Boston, MA: Houghton Mifflin, 1967).

5. See “Medical Care Can Be Dangerous,” in Prevention (August 1968): 80ff.

6. Beaujeu, “Medicine,” in Rene Taton, ed., History of Science: Ancient and Medieval Science, from the Beginnings to 1450 (New York, NY: Basic Books, [1957] 1963), 365.

7. Pedro L. Entralgo, Mind and Body, Psychosomatic Pathology: A Short History of the Evolution of Medical Thought (New York, NY: P. J. Kenedy and Sons, n.d.).

8. Edward Motley Pickman, The Mind of Latin Christendom (New York, NY: Oxford University Press, 1937), 1:457.

9. “New Approach to S.F. Vice,” Tribune (Oakland, CA), August 16, 1968):10.

Article from www.chalcedon.edu, The Institutes of Biblical Law, by Rousas John Rushdoony.

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