Law often functions as the proverbial executioner’s sword to deter unlawful action. But can it also serve as a sculptor’s chisel to help form a more virtuous public? A positive answer to that question has a long and diverse pedigree in Western culture. For Aristotle, a “chief concern of political science is to endue the citizens with certain qualities, namely virtue and the readiness to do fine deeds.” Aquinas spoke of “legal justice,” which “commands the virtues… [and] draws them all into the service of the common good.” John Calvin viewed lawmakers as “the ordained guardians and vindicators of public innocence, modesty, honour, and tranquility” (which Calvin calls “virtues” in the very next breath). For John Locke, “God [has] by an inseparable connexion joined virtue and public happiness together and made the practice [of virtue] necessary to the preservation of society.” Adam Smith envisioned the “civil magistrate” as “entrusted with the power not only of preserving the public peace by restraining injustice, but of promoting the prosperity of the commonwealth, by establishing good discipline, and by discouraging every sort of vice.” Examples could be multiplied of a strong and discernable stream flowing through Western jurisprudence in which law has some aretegenic force (arête = virtue; genic = creating or producing).
THE NOMONEUTRALITY OBJECTION
While the legal minds above spell out significant limitations, pitfalls, and cautions with regard to law’s virtue-producing force, they would likely be perplexed by our contemporary zeitgeist in which public virtue considerations scarcely enter into matters of law and policy-making. What is the effect of legislation x not only on the kind of behaviors we engage in, but more deeply, on the kind of people we are becoming as a society? Does this or that law add further momentum to our internal vicious propensities, or redirect our hearts toward virtuous states like self-control, courage, and charity? Does that public policy contribute to a cultural atmosphere that is conducive or hostile to citizens’ virtue formation? Such questions, which had a place in the Western legal tradition for the majority of its history, are seldom asked today. They have been eclipsed by other factors that we weigh more heavily in public discourse, be it economic calculus, political special interests, personal autonomy, or rights talk.
Indeed, if Aristotle, Aquinas, and company were to time travel and tour the 21st century law school circuit, their aretegenic perspectives on law would likely be met with puzzlement, suspicion, and perhaps even antipathy. Connecting law to virtue could be interpreted as a heretical deviation from a cherished, cardinal dogma that law must be morally neutral. It would obliterate the kind of freedom that those in Western societies hold dear; namely, the existential vision of freedom famously redefined by Justice Kennedy as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Planned Parenthood v. Casey). Allowing the law to advance the cause of virtue would imperialistically encroach upon the individual’s now sacred and sovereign freedom to define his or her own private moral universe. It would amount to what D.A.J. Richards calls a “brutal and callous impersonal manipulation by the state of intimate personal life.” Let us call this “the nomoneutrality objection,” which stems from the widespread conviction that law (nomos) should be neutral on moral matters in order to preserve the individual’s freedom of moral self-definition. As Benjamin Wiker observes:
…the liberal state does not define law in terms of the promotion of virtue and the prohibition of vice, but in terms of the protection and promotion of individual private pleasures, which—since all such pleasures are natural—are declared to be rights. Any limitation of these “rights” is considered unjust.
How might we answer the nomoneutrality objection? The objection itself evokes important distinctions, helping us more meaningfully parse out ways in which law should and should not advance virtue goals. We will close with insights from a Christian view of human nature that hold significant promise for keeping law’s aretegenic role from turning vicious. In short, a Christian anthropology offers a humanizing tertium quid between the severe fragmentation of moral self-definition on the one side and heavy-handed, moralistic legal agendas on the other.
THE LOGICAL IMPOSSIBILITY OF NOMONEUTRALITY
What are we to make of the objection that law must be morally neutral to preserve the individual’s freedom to create his or her own moral values? This objection is not a philosophical abstraction from a fictional interlocutor. Ronald Dworkin has famously argued against morals legislation on the basis of nomoneutrality. For Dworkin, “political decisions must be, as far as possible, independent of any particular conception of the good life or of what gives life value.” He bases nomoneutrality, which he calls “the principle of equality,” on “the right to moral independence,” which jointly entail that governments must treat competing moral visions with “equal concern and respect.” Likewise, Richards defends “the fundamental liberal imperative of moral neutrality with regard to the many disparate visions of the good life.”
This appeal to nomoneutrality is by no means confined to the ivory towers. It represents one of the most popular and powerful law-shaping doctrines in American politics over the last four decades. Public opinion can often be galvanized against a policy simply by painting that policy in a moral light, portraying its supporters as moralistic zealots seeking to legalistically impose their personal morality at the expense of everyone else’s liberty. This style of nomoneutral argument (often couched in legal terms as a violation of the ‘right to privacy’) is, of course, anything but neutral. It gains popular traction only by making an appeal to a moral sense, not that the opposed piece of morals legislation is merely inconvenient, impractical, or distasteful, but wrong.
Critics of nomoneutrality have repeatedly exposed this problem empirically, citing a vast litany of cases in which the champions of neutrality violate their most precious, defining principle. As William Galston remarked, “every contemporary liberal theory that begins by promising to do without a substantive theory of the good ends by betraying that promise.” Can we demonstrate that nomoneutrality is not only violated in practice, but also, on a deeper level, that it violates fundamental laws of logic?
To develop such a logical case, picture the kind of morals legislation that nomoneutralists find so objectionable as follows:
Morals Legislation: A1 > A2
Morals legislation places a greater-than sign (>) between rival actions (A1 and A2). For the advocate of aretegenic law this greater-than symbol does not represent one action being more economically efficient than another, having more social utility, or comporting more with the moral legislator’s own private whims. Rather, it expresses the law’s slant toward one act over another on account of that act’s superior moral value. For example, the law ought to reflect the fundamental moral superiority of minimizing the spread of pornography over the vicious results of allowing pornography to flow unimpeded through all levels of society. The greater-than sign, in this scenario, opens toward minimizing the spread of pornography.
Nomoneutrality, by contrast, places an equal sign between rival acts (i.e., Dworkin’s ‘principle of equality’). The law, on this view, may prefer or deter acts based on their economic consequences, social palatability, or other factors, but not for moral reasons. The law must hang in judgment-free equipoise between rival actions in order to preserve the individuals’ autonomy to create their own greater-than symbols when constructing their private moral universes (i.e., Dworkin’s ‘right to moral independence’). And so we reach the following formula of nomoneutrality:
Nomoneutral Legislation: A1 = A2
It is easy to see how these distinct formulas are likely to generate very different results when inputting questions of pornography legislation.
What happens, however, if we input the act of nomoneutral legislation itself on one hand and the act of morals legislation on the other? What symbol, we may ask, does the proponent of neutrality wish to place between these rival actions? To state the obvious, nomoneutralists place a greater-than sign between their own acts to realize greater nomoneutrality in law and the acts of the privacy invading, moralistic zealots they oppose. Thus, nomoneutrality takes this form:
Nomoneutral Legislation > Morals Legislation
This iteration of nomoneutrality is, of course, just another case of our old morals legislation formula in which A1>A2. This greater-than symbol opens toward nomoneutral legislation not because morals legislation is considered economically inefficient or pragmatically undesirable, but because morals legislation is deemed morally inferior (i.e., a wrongful violation of liberty, privacy, autonomy, etc.). Yet as this greater-than sign opens up toward nomoneutral legislation it promptly chomps down and swallows neutrality whole. Why? Because that greater-than sign reveals that nomoneutrality is itself a form of morals legislation. Nomoneutrality entails that nomoneutral legislation is not morally equal to but morally superior to systems that posit moral superiority. It is a moral position seeking to enshrine itself as law, which states that no moral positions should be enshrined as law. As an attempt to legally enshrine a moral position, nomoneutrality slides to the other side of the greater-than symbol, making it morally inferior to itself:
Nomoneutral Legislation > Nomoneutral Legislation
What this reveals, on closer inspection, is that nomoneutrality does not and cannot exist—and therefore, cannot stand as a meaningful objection to aretegenic law.
We may better appreciate the depth of this problem with help from the first law in the canons of logic, the law of identity. The law of identity states that A=A. Nothing that exists or could possibly exist can be greater than itself (i.e., given the law of identity, A>A represents an a priori logical impossibility). By claiming moral superiority to systems that claim moral superiority, nomoneutrality becomes even greater than itself, rendering its existence no more possible than that of a four-sided triangle. This observation becomes all the more problematic when we consider how vehemently many nomoneutralists object to any piece of morals legislation that they see as inspired by theism. From the perspective of such nomoneutralists, legislation should not be based on some non-existent entity. If the above analysis is on target then the nomoneutralist does precisely that, seeking to legislate on the basis of a fictional entity that not only does not, but logically cannot, exist.
Yet demonstrating that nomoneutrality cannot exist in a world where the fundamental laws of logic apply, of course, does not mean that such a principle cannot exist in the world of politics. In politics, nomoneutrality is frequently applied (albeit selectively) as it suits the inescapably morals-laden legislative agenda of the one appealing to nomoneutrality. Examples abound in which the rally cry, “Keep morality out of law!” becomes a political euphemism for “I want to keep your morality out of law, so I can get mine in!” And so nomoneutrality finally reduces to this:
My Morals Legislation > Your Morals Legislation
J. Budziszewski expounds:
Liberals…came to insist that the laws of the state must be justified in a way that is independent not only of theology and ontology, but of ‘one’s conception of the good’. Because this is impossible, what happens in practice is that their own views of the good prevail without challenge, just by pretending that they aren’t really views of the good.
In short, nomoneutrality is a logically self-destructive fiction, albeit a useful fiction when trying to marginalize opponents as moral oppressors while painting your own morally charged agenda in innocuous colors to sway a pluralistic culture. It is a thinly veiled power play.
FROM COWBELLS TO CAPES (AND BACK AGAIN): NIETZSCHE’S LEGACY
Friedrich Nietzsche, whose philosophy represents a celebration of power, helps us to deepen this critique of nomoneutrality. He reveals how a rejection of traditional morality renders one not only not neutral with regard to moral acts (i.e., what we should do), but also an advocate for some deeper virtue agenda at the level of agency (i.e., who we should become). Nietzsche is perhaps most famous for taking the iconoclast’s hammer to the concept of an objective moral structure in which human beings flourish. He deconstructed the classical, and particularly the Christian virtues. “What herd morality deems ‘good’ is not real virtue but merely a disguise for weakness.” Yet Nietzsche’s philosophy does not end up floating in a void of moral neutrality. Rather, he created ex nihilo and inhabited his own moral universe, populated with both virtuous heroes (e.g., Wagner before his conversion to Christianity) and vicious villains (e.g., Wagner after his conversion to Christianity). Nietzsche calls us beyond the slave morality of a meek Christianity to embrace a strong-willed Master morality (Herrenmoral). His heroic Zarathustra declares that “herds, herdsman, and corpses [that is, those who follow traditional morality] hate most…him who breaketh up their table of values, the breaker, the lawbreaker…the creating ones who engrave new values on new tables.” Note well that Nietzsche’s table-breakers are also table-makers. The demolition men who take a sledgehammer to the old system of virtue are subsequently architects who dream up an edifice of “new values.” In Nietzsche’s words, “The new, would the noble man create, and a new virtue.”
Elsewhere Nietzsche’s Zarathustra clarifies the nature and origin of this “new virtue”: “Power is it, this new virtue.… When ye are exalted above praise and blame, and your will would command all things, as a loving [of your own] will: there is the origin of your virtue.” It is telling that one of the most vitriolic critics of teleological views of human morality and flourishing champions his own moral teleology (even, at times, slipping back into the very virtues he sought to demolish ). Nietzsche speaks teleologically of the human “course between animal and Superman” and “the three metamorphoses of the spirit,” how “the spirit became a camel, the camel, the lion, and the lion at last a child.” In this process of Nietzschean virtue formation we move from “camel”—man as “load-bearing spirit” burdened by the moral demands of humility, altruism, love for enemies, etc.—to “lion,”—man who devours those moral burdens to “give a holy Nay to duty”—and onward finally to the state of “child” who plays “the game of creating new values.”
It is striking how closely this teleology of Nietzsche’s 19th century post-teleological man resembles 21st century liberal notions. It is a hair’s breadth between Nietzsche’s call to “let the value of everything be determined anew by you!” and Kennedy’s popular notion of liberty as “the right to define one’s own concept of existence.” In Beyond Good and Evil (prophetically subtitled Prelude to a Philosophy of the Future), Nietzsche adds, “The noble type of man regards himself as the determiner of values… He knows that it is he himself who confers honour on things; he is the creator of values. He honours whatever he recognizes in himself: such morality is self-glorification.” Perhaps there are enough self-glorifying value-creating supermen in the 21st century to form the new herd. In Nietzsche’s day it took a certain act of countercultural willpower to spurn all traditional moral expectations in order to do your own thing. Becoming a superman meant risking life in a fortress of solitude (as it certainly did for Nietzsche himself). In our day, by contrast, shunning traditional morality in order to create your own values is hardly risky or countercultural. You are given a warm welcome into the herd. The 19th century European superman must trade his cape for a cowbell if he continues to champion self-determined value in the 21st century. Conversely, resisting the herd’s push toward self-definition and self-glorification requires the very kind of subversive feat of will that Nietzsche applauded. The 19th century cow becomes a 21st century superman.
THE INEVITABLE MORAL PEDAGOGY OF LAW
What the foregoing analysis clarifies for our original questions concerning aretegenic law is that even the boldest deconstructions of traditional morals do not leave us in a value-free wasteland. We construct new virtue concepts on the rubble. The force of law is then invoked to do much of the heavy lifting. Legislation may no longer serve as a guiderail to help encourage us along the often-arduous path toward character states likes altruism and a “readiness to do fine deeds” (Aristotle). Rather, legislation deregulates any autonomous lifestyle choice that might be deemed morally objectionable while coercively banning any detractors from acting in accordance with their moral objections. Examples abound, as the state enters bakeries, photo studios, public restrooms, and religious institutions. Make no mistake: such legislation is aretegenic. It aims beyond the level of action to the level of agency. It sends a clear message about who are the virtuous heroes and the vicious villains, a message that has the force of moral pedagogy on the public. Such aretegenic law seeks to morph us, to borrow Nietzsche’s categories, from camels burdened by traditional moral duties, into lions with their “holy Nay to duty” and, finally, into children playing “the game of creating new values.” Such law is every bit as virtue-seeking as traditional morals legislation, though with antithetical meanings poured into the term “virtue.”
Over time, such Nietzschean aretegenic legislation, while pretending to diminish state intrusion and enlarge the scope of individual liberties, has precisely the opposite cumulative impact. In the short run, new legislation has the most immediate shrinking effect on the liberties of those who seek to live out their traditional moral convictions in public life. In Nietzsche’s parlance, the superman seeks to “become master over all space and to extend its force (its will to power) and to thrust back all that resists its extension.” But in the long run, the state takes on an even more imperialistic aretegenic force, even against those who share its disdain for traditional morality. Like an oscillating universe, millions of people doing their own thing expand outward from one another in growing alienation and social entropy. As society turns colder and sparse, it eventually hits a critical point when the innate longing for something more meaningful and fulfilling than self-created subjective values kicks in. Society then begins rapidly collapsing back in on itself toward a point of singularity; that is, toward an all-absorbing state. The Big Bang of autonomy, sprawling outward in all directions, is followed by a Big Crunch toward a liberty-consuming centralized authority. As Dostoevsky’s Shigalev observed in The Possessed, “Starting from unlimited freedom I arrive at unlimited despotism.” The end result is that “One-tenth enjoys absolute liberty and unbounded power over the other nine-tenths. The others have to give up all individuality and become, so to speak, a herd.” Francis Schaeffer recognized and deepened Dostoyevsky’s insight:
When freedoms are separated from the Christian base…they become a force of destruction leading to chaos. When this happens, as it has today, then, to quote Eric Hoffer, ‘When freedom destroys order, the yearning for order will destroy freedom.’ At that point the words left or right will make no difference. They are only two roads to the same end. There is no difference between an authoritarian government from the right or the left: the results are the same. An elite, an authoritarianism as such, will gradually force form on society so that it will not go on to chaos. And most people will accept it—from the desire for personal peace and affluence, from apathy, and from the yearning for order… That is just what Rome did with Caesar Augustus.
HOW ARETEGENIC LAW GOES WRONG
Retracing our steps, the west broke from a long tradition of virtue-aimed law. Legislative choices could no longer be informed by transcendent virtues, but only on the basis of a fictional entity called nomoneutrality. Nomoneutral legislation then became aretegenic—though not in the old sense as a supportive structure cooperating alongside (rather than against) individuals, families, and mediating institutions to help people become more caring, courageous, honest, etc. Rather, with a mix of deregulating traditional moral violations and regulating against dissent, law began to recommend in powerful ways a new ideal for human progress—the self-determining superman who “creates his own values” (Nietzsche) with his new judicially invented “right to define one’s own concept of existence” (Kennedy). As the pedagogy of such law takes effect, the growing mass of self-glorifying supermen eventually reach the end of themselves, finding their own willpower to be an inadequate and ultimately unsatisfying object of worship. They finally return on all fours like a herd seeking a Great Shepherd. Enter the State, enlarged to meet an intense demand for transcendent meaning that it helped to create.
At this terminal stage, legislation no longer pretends to be nomoneutral and advances its aretegenic agenda more explicitly. Consider as historic examples the concepts of pravovoe vospitanie, or ‘legal nurturing,’ along with pravovaia propaganda, or ‘legal propaganda,’ which were quintessential to Soviet statecraft during the Communist era. As Harold Berman observes,
The purpose of Soviet law itself is not only to make people behave, by threat of sanctions or promise of rewards, according to official rules. It is also, and more fundamentally, to educate offenders to change their attitudes and to reinforce among nonoffenders their belief in the basic goals of Soviet society. Thus law is intended to help create the “new Soviet person.”
Mark Chepel, who lived in Sevastopol under Communism’s aretegenic laws for 12 years, explains the results of the State’s attempt to use law as a chisel to sculpt the “new Soviet person.” Says Chepel:
Soviet virtues were not empowering. Your sole purpose was to fulfill the Party’s goals. ‘The Party rules,’ we were told, and ‘Your destiny is in our hands.’ The message was clear: ‘If we want your car, you will give it to us; it is your contribution to a better world. No matter how unfair it may seem, it’s for your own good and the benefit of Mother Russia. You may not think this is a good thing, but it’s the best way to be human, and we know better.’
We can draw an important lesson from the failed Soviet experiment in aretegenic law. It is this: a policy aimed at human thriving will actually hurt people to the extent that it sprouts from an inadequate view of human nature. Skewed anthropology leads to false concepts of virtue, which, when backed by law, do not lead to human flourishing. Instead, as law works against the grain of human nature, vice and dehumanization become the net results of a virtue-seeking system. Before Soviet communism went wrong with law and policy it had already gone wrong on the deeper questions of human nature, viewing man reductively as homo economicus. It diagnosed man’s deepest problem as an external socio-political-economic problem, which inspired an inflated soteriological emphasis on external socio-political-economic remedies. Meanwhile, the internal human propensity to pervert power went untreated.
To further illustrate how inadequate anthropology leads to an abuse of law’s aretegenic power, consider the well-intended efforts to help northern spotted owls in the forests of the northwestern United States. Environmental legislation significantly restricted the lumber industry with the aim of preserving the owls’ natural habitat. As lumberjacks struggled to cope with unemployment, the forests they once cut grew denser. By some accounts, the northern spotted owls, with an average wingspan of six feet, had an increasingly difficult time navigating the crowded trees to reach the forest floor, where wood rats, their primary food source, scurried freely. With less accessible sustenance, the spotted owls populations continued to dwindle in the very forests where they were intended to thrive. How could legal efforts toward spotted owl thriving achieve such ironic results? The answer is: an inadequate understanding of spotted owls. Bad ‘owl-ology’ leads to a false concept of owl flourishing, which in turn leads to bad policy, and, finally, the harm of the very animals that people seek to help. The lesson is clear as we seek to distinguish between virtue-aimed laws that actually promote the ethical flourishing of our species and those that morally damage the very people they seek to improve. True anthropology is a necessary condition of true aretegenic law.
TOWARD A MORE HUMANIZING ARETEGENIC LAW
It is here that a Christian worldview has volumes to speak into the public discourse on law, with tremendous potential to protect and uplift even those who may unapologetically reject Christianity. I offer five connections between Christian anthropology and aretegenic law, in hopes of inspiring further reflection and scholarship in this direction:
1. People are not designed to be supreme authorities over the hearts of other men, and are, therefore, seriously limited in their capacity to legislatively inculcate virtue. Because God is sovereign, the merely human government is not. Given His unique authority and access to the human heart, God can “cause [us] to increase and abound in love” (1 Thes. 2:13), His Spirit can produce the fruits of love, joy, peace, patience, kindness, etc. (Gal. 5), and “mortify the deeds of the flesh” (Rom. 8:13) in ways that human law cannot. State-enforced legislation is no substitute for divinely affected heart transformation.
2. People are designed as meaningful choice-makers, and can, therefore, be constructively encouraged but not coercively engineered to virtue. We are more than the sum of our biological and economic particulars. This means that any aretegenic law that treats people less as choice-makers and more like Pavlovian canines who can be socially engineered will have vicious results. Virtues like generosity and charity are what Robert George calls ‘reflexive,’ meaning that they must be chosen voluntarily and not by human coercion to retain their moral value. (This insight helps us understand why many economic policies of mass-scale forced redistribution tend to deliver so little on their promises of a more generous and charitable society).
3. People are designed to thrive when the diverse, finite, and divinely delegated spheres of authority are left intact. Martin Luther famously quipped that his marriage served as a far more rigorous school for character than the monastery. God has created diverse spheres and He imbued them each with mutually complementary (but not mutually cancelling) powers to realize His good vision for His creatures’ flourishing. Governments are ordained with a delegated authority “for our good,” as “the servant of God, an avenger who carries out God’s wrath on the wrongdoer” (Rom. 13:4). Yet this divinely delegated aretegenic duty of government does not replace or repress the unique (and far more personal) duties of the church to disciple communities toward Christlike virtues, or the unique duties of parents to raise up children in “the way of the Lord.” This means that virtue-seeking legal systems that suppress or swallow up these far more intimate aretegenic institutions violate human nature and will turn vicious.
4. People are morally fallen to such a radical extent that any attempt at aretegenic law (including our own) should be met with a realistic caution that reckons seriously with our enormous capacity for corruption. This anthropological insight protects us from the naïve optimism of certain aretegenic systems that champion the inherent goodness of man and tend to turn utopian dreams into dystopian nightmares. The depth of human evil also reminds us that legislative solutions cannot resolve the most rudimentary spiritual problems within our nature.
5. People need grace to realize their most ultimate meaning and fulfillment. Aretegenic legislation is no substitute for the gospel. The chief end of man, as the Westminster theologians recognized, is the glorification and enjoyment of God. We cannot reach this chief end through any earthly courtroom; we reach it only through the courtroom of heaven where Jesus intercedes as our defense attorney, seeking our “not guilty” verdict with the irrefutable case of His own shed blood (1 John 2:1-2).
From these insights we may conclude that virtue-seeking law properly informed by a true anthropology offers a hopeful alternative to both destructive autonomy and a dehumanizing authoritarianism. It may point us beyond the constricting shed of enslaved cows and the lonesome sky of self-glorifying supermen, into a public atmosphere where humans can better flourish.
Thaddeus Williams began serving the Trinity Law School community in 2013, where his Jurisprudence courses challenge students to integrate their study of law with the distinctives of a biblical worldview. He earned his Ph.D. in Theology with highest honors at the Vrije Universiteit of Amsterdam and an M.A. in Philosophy of Religion from Talbot School of Theology. Professor Williams also serves as a lecturer for the Blackstone Legal Fellowship and a Senior Fellow of TruthXChange. He has taught internationally, including Francis Schaeffer’s L’Abri Fellowships in Holland and Switzerland, and currently teaches Systematic Theology at Biola University. Prior publications include Love, Freedom, and Evil: Does Authentic Love Require Free Will? (Rodopi, 2011).