The rule of law

I am always delighted when someone trawling this blog stumbles on something truly sensible and helpful I said in the past even if it was years ago! That happened today, and as this is a time when the rule of law is being applied in draconian ways ostensibly to prevent the spread of the Coronavirus, it seems a good time to think again about the legitimate use of law. This is particularly important as we come out of the lockdown and rethink the use of law in our 21st Century so-called Western representative democracies. So I am updating and reposting a piece that I first posted in 2011.

When Paul says that there is no authority [exousia] except from God (Rom 13:1), it is an authority forever defined by Jesus in terms of life-laying down kenotic love, or what I call kenarchy. This means that everything else Paul says about submitting to authority needs to be measured in these terms. So from this perspective, when Paul introduces the vocabulary of the sword [machaira] and avenger [ekdikos] (Rom 13:4) our understanding and application of the meaning and role of these components must be submitted to the authority of love.

I am helped by Paul’s practicality here. For I am not an idealist and I don’t think Jesus was one either. The gospel testimony is specific about the existence of sin, and the reality of evil. So while the disciple takes up the cross daily and living under the ultimate authority of Jesus’ kenotic love “does not resist one who is evil” (Mtt 5:39), I also believe that there are times when we need a practical means of protecting the poor and the weak from the evil intent of others. That is to say we do need some temporary kind of law and physical prevention of evil which I take to be what Paul describes as the government’s use of sword and vengeance in this passage.

The big question is how to make sure that this sword and avenger is submitted to the ultimate authority of love. And this is no small matter. The difference between the authority of sovereign power and the authority of kenotic love is categorical. Sovereign power is at the expense of every other life save that of the highest power, which in imperial terms is preferably me. It leads to the commodification of life itself and the destruction of the planet. Kenotic love, on the other hand, is for the blessing of everybody, beginning with the poorest. This is available because of the inexhaustible gift of divine love embodied in Jesus’ life death and resurrection and received by me.

It is important to note that the translation of the word ekdikos as ‘avenger’ or ‘revenger’ has already imported the sense of the retribution of offended sovereignty. It is better translated as “carrier of justice” and in the original, literally means “without law.” This literal meaning is reminiscent of Giorgio Agamben’s concept of the state of exception which I have explored in previous posts, where the real authority is exposed to be the transcendent power which lies behind all government or rulership. He argues that this is manifested in the nuclear warheads and the torture of non-persons at Guantanamo Bay that sustain the Western order. To this I would add the UK government’s commitment to economic recovery at the expense of the poorest after the 2008 financial collapse.

I agree with Agamben that this is the sovereign power that lies behind the authority  of the contemporary West. However I don’t believe that this is the nature of divine authority, which Jesus’ incarnation reveals, or is the authority which Paul is referring to here. The “without law” state of exception that exists behind the sword that Paul exhorts us to submit to is rather the self-giving love revealed in the cross. So the question is what does it mean for the sword to be submitted to this kind of love? Ultimately it must mean an end to the sword, and I believe it will. But this goes beyond what Paul is saying here. He is speaking of the role of loving authority in the in-between-time in which we work for the fulness of the kingdom which is coming.

Any use of the sword in preventative action against evil that is in line with God’s authority can only be protective. It cannot be retributive, or for punishment or for preventing peaceful demonstration and has to be as non-violent a sign with as limited application as possible. This makes sense of Jesus’ identification of a time when “he who has no sword should sell his coat and buy one” (Lk22:36) and yet his admonition to Peter “put your sword back into its place” (Mtt26:51-52). In terms of contemporary implementation a stick or truncheon is much preferable to a gun, which arguably has far more devastating effect than a sword. Possibly a sword is still best.

This all gives us a huge challenge as the ecclesia to reconfigure the whole role of law and its enforcement. My research convinces me that the partnership of church and empire has brought about a legal system based on sovereign power, not on love, and that this rendered the sword the violent and retributive imposition of law and justified its replacement by vastly more destructive implements. My re-interpretation of Paul is that now is the time to challenge and change it. When I talk of now being the time for kenarchic action I am seriously calling for a complete reappraisal and reconfiguration of the foundational politics of the Western world!

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