Fault and Liability

FAULT AND LIABILITY: INDIVIDUAL OR SYSTEMIC?

According to the Biblical record of the fall of man, Adam, when questioned by God if he had eaten the “forbidden fruit,” blamed Eve: “The woman who thou gavest to be with me, she gave me of the tree and I did eat.”¹ Eve, when God asked her the same question, blamed the serpent: “The serpent beguiled me and I did eat.”²

What began in the Garden of Eden at the time of the Fall has continued unabated throughout the ages. The Biblical record, alone, abounds with examples of men accusing others or blaming circumstances for their errors.³ This habit of man’s picturing himself as a victim of circumstance surely prompted Paul to write to the First Century Christians at Rome that man either accuses others for what he has done wrong or excuses himself for having done those wrongs.⁴ It has been, indeed, the rare man who will assume responsibility for his actions without excuse or without explanation.

Nineteen centuries later the record has not changed. As a matter of fact, the assumption that “man is a victim” gave rise to a new class of journalists in early twentieth century America. Nicknamed “muckrakers” by President Theodore Roosevelt, these newspaper columnists and magazine essayists scoured the American civil government and corporate landscape with exposes of political and economic corruption. Laying blame for America’s ills at the doorstep of the “system,” these crusaders clamored for a “new America” without the corrupting influences that cause men to go bad.

Typical of the dialogue that took place between America’s critics and defenders during this period was an exchange between Lincoln Steffens, famous for his scathing attacks on political corruption in America’s cities, and an unknown Episcopal bishop. As Mr. Steffens recorded in his own words, he had finished a talk in Los Angeles, and had nearly concluded the question and answer period when “the bishop rose:”

“What we want to know,” he said, “is who formed this system, who started it, not only in San Francisco and Los Angeles, in this or the last generation, but back, way back, in the beginning.”

“Oh, I think, I see,” I said. “You want to fix the fault at the very start of things . . . Most people . . . say it was Adam . . . But Adam . . . said that it was Eve . . . And Eve said . . . it was the serpent . . . Satan. Now I come and I am trying to show you that it was, it is, the apple.”⁵

While Steffens no doubt intended his remark to be received humorously, he was dead serious about his analysis. Long an admirer of the Bolshevik revolution in Russia, Steffens believed in the perfectibility of man through changing his environment and ridding the world of the conditions that caused men to fail. He believed that if man no longer was tempted by the economic incentives of “capitalism” then political corruption would simply die away.

While these efforts of the early muckrakers never succeeded in transforming America’s free enterprise system into Steffen’s dream of a completely socialized welfare state, they left a legacy that has survived and prospered throughout the twentieth century. America’s leaders have been, and continue to be persuaded, to pursue public policies designed to alter man’s environment to solve problems that once were attributed to man’s failure to respond correctly to that environment. President Lyndon Johnson’s War on Poverty, for example, was designed to lift all Americans above the poverty line and, according to Johnson’s Attorney General Ramsey Clark, thereby to solve the crime problem.⁶

In the 1980’s violent crime, according to some members of the United States Senate and House of Representatives, could be attributed to the ready availability of hand guns, not to the irresponsible handling of such guns by some.⁷ Indeed, one of the popular correctional programs of the 1960’s and 1970’s was designed to finance college educations for convicted criminals on the assumption that having been deprived of a college diploma they had resorted to crime.⁸

Such environmental solutions fell hard upon the American automobile industry when political activist, Ralph Nader, waged a successful campaign against America’s highway safety program that up until the 1960’s and 1970’s concentrated primarily upon changing driver behavior by encouraging good driver habits and by penalizing bad ones. In his popular expose of the Chevrolet Corvair, Unsafe At Any Speed, Nader launched an unrelenting attack upon the automobile industry and its supporters. In his chapter entitled, “The Traffic Safety Establishment,” Nader set the stage with this single-minded thesis:

The vehicle is the basic unit of . . . [the highway transport] system; the driver’s adequacy is a function of his vehicle’s adequacy.⁹

Armed with this theme Nader accused the automobile industry of diverting attention from its “ill-designed” cars and challenged it to make an accident-proof, or at least injury-proof, vehicle. Programs designed to educate, to exhort, to monitor, and to judge the individual driver were dismissed as no more than “a political strategy to defend special interests.” As a consequence of Nader’s crusade many safety changes were made to the American automobile with little discernible effect upon the death or injury rate upon the nation’s highways.¹⁰

But Nader’s impact has been felt beyond government regulations requiring automobiles to be equipped with certain safety devices. By shifting attention away from the individual driver’s behavior as the primary reason for automobile accidents and the resulting property damage and personal injuries, Nader laid the foundation for an even more significant change, no-fault insurance. In a book published in 1965 two law professors, Robert Keeton of Harvard and Jeffrey O’Connell of Indiana University, proposed that claims for compensation for personal injuries and property damage arising from the routine automobile accident be handled without blaming anyone at all.¹¹

At the heart of this proposal, now law in twenty-two states, each automobile driver is required to insure himself and his own car to cover for any automobile-accident-sustained loss and to give up any right to sue another person for such loss even if that other person was at fault. This is in exchange for immunity from any claim against him if he caused loss to another as a result of his faulty driving.

Keeton and O’Connell defended this proposal on two principal grounds. First, the operation of a motor vehicle is “an extremely complicated process” that requires “constant, subtle judgments of speed, motion, and with very little margin for error.”¹² In other words, man is a victim, unable to control his car because what is required of him is more than any human being can handle. Second, the trial of routine automobile accidents requires witnesses to testify about events “often too commonplace to receive . . . the kind of attention needed for precise perception and memory of distinctive detail.¹³ In other words, man is a victim unable to reconstruct accurately a picture of ordinary events to determine what has happened to him in the past. To Keeton and O’Connell then, “fault” has become an “unrealistic criterion” for handling the routine automobile accident because the driver has been overwhelmed by conditions of automobile driving. Under their new “no fault” system man has been placed where Keeton and O’Connell say that he belongs. A victim of the ordinary circumstances of life.

NATURAL SELECTION AND NO-FAULT

Such law reform movements have not been confined to changing man’s environment, or to altering public policies to conform to that external environment such as has occurred recently in the automobile industry. During the late nineteenth and early twentieth centuries criminology experts began to theorize that the “crime problem” could be solved by eliminating certain “uneducable” people from society. A popular scheme administered by some American state authorities required the sterilization of certain people with undesirable traits so that those traits would not be passed on to yet another undesirable generation. Mr. Justice Oliver Wendell Holmes summarized this effort in a remarkably frank paragraph in his famous opinion in the case of Buck v. Bell:¹⁴

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices (forced sterili-zation) . . . in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit for continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes . . . Three generations of imbeciles are enough.

These views were once widely shared among the intelligentsia of Europe and America. For example, Margaret Sanger, founder of Planned Parenthood, encouraged the adoption of state mandated programs to select only the best to breed future generations. While her vision for a world populated by only those selected by a governing elite has not yet become reality the Planned Parenthood’s program encouraging abortion and infanticide marks a step in that direction. And what has begun as a matter of individual “choice” may easily be transformed into a state mandated policy for the common good, for there are already many who believe that the world is over-populated by people who do not exercise self-restraint. Thus, Communist Chinese authorities have implemented a rigid population control program, including forced abortions of pregnant women who have already given birth to more children than their quotas allow.¹⁵

Practices of abortion at the discretion of the mother and her physician, infanticide at the request of the parents, and euthanasia within the discretion of the family inevitably lead to forced abortion, to required infanticide, and to commanded euthanasia. This is because they rest upon the view that man is but a complex animal, the product of impersonal evolutionary forces governed by time and chance. As such, every birth and every death is but an happenstance unless controlled by man according to the best scientific, economic, political, and social policies that he can invent. This faith in man’s evolutionary origins has spawned an entire field of study, popularly known as “genetic engineering.” While many schools of thought have developed within this broad field, one school stands out as willing to follow the logic of its presuppositions no matter where it leads. These are the sociobiologists.

Led by the pioneering work of Edward O. Wilson of Harvard, the sociobiologists contend that all animate life, including human beings, are no more and no less than the “end product of the war between the genes.”¹⁶ In other words, man is but a victim of his genetic makeup; and that makeup is but a particular manifestation of an endless battle among warring genes. The December 13, 1976 issue of TIME magazine describes this new science to its readers, as follows:

Sociobiology is essentially the evolutionary theory of Charles Darwin expressed in the terms of modern genetics: The central struggle of life is the drive to survive and reproduce.

But the chief actors in the sociobiologists’ world are the “genes themselves.” The TIME article continued:

Like the old aphorism, a chicken is just one egg’s way of making another egg, a body can be viewed as merely a vehicle by which strings of genes produce other strings of genes.

Finally, TIME quoted one of the sociobiologist’s major defenders who wrote:

[G]enes swarm in huge colonies safe inside gigantic lumbering robots, sealed off from the outside world, manipulating it by remote control. They are in you and me; they created us body and mind; and their preservation is the ultimate rationale for our existence . . . we are their survival machines . . ..

While most biologists and other scientists do not agree with this sociobiologic thesis, they do share the sociobiologist’s major premise: that man evolved by natural selection. Holding to an evolutionary premise inevitably drives a scientist to admit to the kinds of conclusions held by the sociobiologists, if they have the courage and honesty to say so. Consider, for example sociobiologist Wilson’s introduction to his popular text on the subject:

[The brain] . . . evolved by natural selection. That simple biological statement must be pursued to explain ethics . . ..¹⁷

Wilson then proceeds to explain that man’s feelings of “guilt” and his acts of “altruism” are simply the product of his genes at work to perpetuate themselves. In other words, a man chooses not to commit suicide not because he believes suicide is inherently wrong or is selfish and detrimental to others who may grieve or otherwise suffer from his loss. Rather, he does not kill himself because his genes have programmed him not to do so in order that the genes, themselves, survive!

It is not surprising then that Wilson calls scientists and humanists to “consider together the possibility that the time has come for ethics to be removed temporarily from the hands of the philosophers and biologized.” Such a “biologized ethic” would necessarily yield an “innate moral pluralism” because “no single set of moral standards” could be applied to all human populations – some of which are “at demographic equilibrium” while others are living in an episode “of overpopulation” or to all “sex-age classes within each population” – young children must be “self-centered and relatively disinclined to perform altruistic acts” while adults may be less so since the latter are strong enough to protect themselves while the former are very vulnerable to their parents and others.¹⁸

No wonder the sociobiologists call for changes in every area of life – including economics, international relations, and law. While Wilson’s views summarized above were not available to Clarence Darrow, the defender of evolution in the famous Scopes trial, Darrow incorporated very similar thoughts into his closing argument in defense of two young men, Nathan Leopold and Richard Loeb, who had brutally murdered a 14 year old boy:

Why did they kill little Bobby Franks? Not for money, not for spite, not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped . . ..¹⁹

More significantly, juvenile justice reformers around the turn of the nineteenth century reflected Wilson’s views that the young should not be governed by the same standards as the adult. In response legislatures in every state of the union enacted juvenile codes to deal with youth crime and other activities associated popularly under the umbrella, juvenile delinquency. The underlying premise of these so-called enlightened “juvenile justice systems” is that man is determined by his environment and, if he has “misbehaved” then he must have a change in his environment, removal from his parent’s home being one solution often utilized. Justice Abe Fortas, writing for the United States Supreme Court in the famous Gault case summarized the evolutionary faith of the juvenile court reformers:

[They b]elieved that society’s role was not to ascertain whether the child was ‘guilty’ or ‘innocent,’ but `what is he, how has he become what he is and what had best be done in his interest and in the interest of the state to save him from a downward career.’ The child – essentially good, as they saw it – was to be made `to feel that he is the object of (the state’s) care and solicitude.’. .. The idea of crime and punishment was to be abandoned. The child was to be ‘treated’ and rehabilitated.²⁰

Such legal policies based upon Darwin’s evolutionary faith yields both loss of liberty and lawlessness. Even the United States Supreme Court recognized the threat to freedom when it struck down state juvenile codes that failed to afford the young comparable procedural safeguards to those granted to adults in criminal trials.²¹ As for lawlessness, America has been bombarded for years with the statistical increases in crime among its young. Biologist A.E. Wilder-Smith has uncovered the reason for this steady and startling increase:

Most western-trained teachers have no belief in any non materialistic meaning of life at all. In fact, many . . . believe, and teach, that the origin of life . . . life itself, is one big accident . . . If life is an accident, then why not treat it as such? The students . . . have taken the cue more quickly than their teachers. If there is no divine plan or meaning behind life it becomes as cheap as an accident should be.²²

And the apostle Paul warned that lawlessness was a direct product of an evolutionary faith:

Professing themselves to be wise, they become fools, and changed the glory of the uncorruptible God into an image made like corruptible man, and to birds, and four-footed beasts, and creeping things. Wherefore God gave them up to uncleanness through the lusts of their own hearts . . ..²³

Those lusts, Paul continued, turn men to lives full of “all unrighteousness, fornication, wickedness, covetousness, maliciousness . . . envy, murder, debate, deceit, malignity . . ..”²⁴ Further, Paul added, men become “whisperers, backbiters, haters of God, despiteful, proud, boasters, inventors of evil things, disobedient to parents, without understanding, covenant breakers, without natural affection, implacable, unmerciful . . ..”²⁵

Paul’s description of the reality of the Roman Empire in which those early Christians lived comes very close to modern day America. For as Rome was dominated by a pagan view of the origin of man, including a theory of natural selection, America has been dominated for the past fifty to one hundred years by a like evolutionary faith. The reform movements described previously in this chapter – those of the “muckrakers,” of “Nader’s Raiders,” and of the sociobiologists are all based upon that common faith. They desire a legal system that would prevent harm either by eliminating “wrong” living environments or “wrong” human beings. But America’s legal system from the beginning has rested upon a different faith – a belief that man is a morally responsible creature who may be blamed for causing injury to others and who may not be excused for having a “faulty” character or having been raised in a “faulty” environment.

MAN: CREATED IN THE IMAGE OF GOD

The common law of England that America’s colonists brought with them when they settled the “New World” rested upon an unqualified endorsement of the Biblical truth. At the heart of that truth was that man may be praised for making right choices and blamed for making wrong choices. In this way the common law authorized the civil rulers to fulfill their mandate under Romans 13:

For rulers are not a terror to good works, but to the evil . . . For he is a minister of God to thee for good . . . for he is the minister of God, a revenger to execute wrath upon him that doeth evil.²⁶

The common law was preoccupied with the task of sorting out wrong from right conduct and ascribing blame to those who commit wrongful acts because it was based upon the belief that man played a unique role in a universe created by God.

The book of Genesis teaches that God created man in His own image.²⁷ In contrast, Genesis teaches that God created all other living beings “after their kind.”²⁸ Only man bears the image of God. Because God is a spiritual Being, not a physical one, the image of God in man is spirit, not physical.²⁹

The book of Genesis also teaches that the Spirit precedes and creates the physical world. Genesis 1:1 says “In the beginning God . . .” not “In the beginning soup” or some other eternally existing physical phenomena. It follows, therefore, that the Creator Spirit God governs the physical world by the means by which He created it, by His Word. Thus, Genesis 1:3 states that when God spoke light into the physical world, light came into that world. God rules the created physical universe by spiritual means.

When God created man as a spirit being, He gave him a unique goal: to subdue the earth and to have dominion over all its creatures, except man.³⁰ That role, to exercise dominion, was directly connected with God’s having created man in His image: “Let us make man in our image, after our likeness, and let them have dominion . . ..”³¹ By endowing man with spirit, man was enabled to carry out the dominion mandate. Without that spiritual aspect, man would not have the ability to raise above the physical, but could only conform to it.

To fulfill the dominion mandate, then, God did not program man: rather, He “commanded” man to obey His plan for His creation. Therefore, when God placed Adam into the Garden of Eden, He assigned to Adam the responsibility to “cultivate and keep” it. Genesis 2:15. At the same time God told Adam that He had a plan and He commanded Adam not to eat of “the tree of the knowledge of good and evil.”³² God did not command any other creature not to eat of that tree: they were programmed not to do so. Only man was given a choice to obey or not to obey.

Having given man a “choice,” God gave him the ability to choose rightly. And that choice was both “real” and “fair” for God had created everything “very good,” that is, without fault.³³ So when Adam and Eve failed in the garden, God did not accept Adam’s excuse that Eve did it. God had not made her faulty, her genetic code was in order, and she had the ability to control her thoughts and her action. Neither did God accept Eve’s excuse that the serpent fooled her. God had not made a faulty environment, the garden was in order, and both Adam and Eve had the ability to respond correctly even when that environment was entered by the evil one, Satan.

Because God had created both the garden and all of its creatures “very good,” He cannot be blamed for the wrong that Adam and Eve committed in the Garden. Yet that was what Adam and Eve both attempted to do in that first encounter with their Creator after the Fall. And that is what men like Steffens, Nader, Keeton, O’Connell, Holmes, and Wilson have done as they attribute man’s failures to his genes or to his environment. The opposite is true. God gave man the ability, indeed the duty, to rise above the natural forces of the genetic code and of the physical environment to make things happen according to God’s plan and purpose. As God spoke the entire universe into being, God created man to work with Him to bring to pass His plan and purpose for that universe. Man, therefore, causes things to happen within God’s creation. If man obeys God, he causes good to happen; if he disobeys God he causes bad things to happen. From the beginning God created man in such a way that he was not just a product of physical forces whether it be his genes or his environment or a combination of both.

Jesus Christ reminded man of this reality when he voiced objection to the Pharisaical practice of seeking solutions to evil in the world by applying rules that touch only man’s external behavior but not his “heart.” Thus, He taught His disciples the parable that “nothing outside the man which going into him can defile him, but the things which proceed out of the man are what defile the man.”³⁴ In response to the disciple’s question about this parable Christ explained:

[F]rom within out of the heart of men, proceed the evil thoughts and fornications, thefts, murders, adulteries, deeds of coveting and wickedness, as well as deceit, sensuality, envy, slander, pride, and foolishness . . ..³⁵

In the law schools of America this fundamental truth is not taught, even though the law that is taught depends upon its being true. Instead, law professors typically offer other reasons for the fact that the criminal law, for example, does not accept defenses based upon environmental or genetic determinism. Peter Low, John Calvin Jeffries, Jr., and Richard J. Bonnie, three University of Virginia law professors, have written in their text from which they teach their students the following explanation:

The underlying premise of the criminal law is that it is morally right to treat people as responsible moral agents, whatever the fact of the matter, because any other view would be inconsistent with the values of individual autonomy and freedom that the law should reflect and with the perception of each other on which people at least think they are governing their daily lives.³⁶

These authors go on to explain:

Determinism is rejected by the criminal law, in other words, not because it is a false scientific theory but because it should be rejected in light of the proper normative premises on which the criminal law should function.³⁷

In short, these authors have instructed their students to believe in what they are teaching, not because it is true, but because man wants his freedom and wants to have it by holding wrongdoers responsible for their criminal acts. But if what they profess is not true, how long will their students go on believing? The answer may be found in any randomly selected courtroom across America where judges and juries find guilty those charged with crime, but, in turn, have difficulty imposing upon them the penalties that they so deserve. The real reason why it takes so long to bring a convicted murderer sentenced to death to pay the price is that America’s judges, educated by men such as the University of Virginia professors quoted above, do not really believe that those convicted are really responsible for what they have done. Therefore, any excuse, even a slight procedural error in the trial, may be sufficient to send the case back for another trial.

This false view of man has not only raised havoc in the courtroom, it has invaded the daily lives of America’s families and communities. Ordinary people are no longer sure that they can rightfully hold others morally responsible. Therefore, even family discipline, school decorum, and employment relations have suffered from the evolutionists’ faith that man is determined by a natural selection process conditioned by his genes and his environment.

MAN: CAUSE OR CONDITIONED

On an ordinary day in the life of an ordinary family people constantly make decisions based upon the simple question: Who did it? Who made the mess in the kitchen? Who left the toy truck on the stairs? Who tracked this mud on the carpet? With questions like these man seeks to know who “made the difference” between a good condition and a bad one. These questions are the everyday stuff of the courtroom or of the law office. Who caused the accident? What went wrong? Did the doctor leave the sponge in the patient’s stomach? Or was it the nurse? Again lawyers want to know who “made the difference” between a good outcome and a bad one.

If a child should answer his mother’s question about the toy on the stairway, that Adam and Eve did it – it’s all because of the Fall – the child would soon learn that his “sinful condition” did not “cause” the toy to be left in a dangerous place. Likewise, should the doctor answer the lawyer’s questions about the sponge left in the patient’s stomach in the same manner, the doctor would receive a lecture that the law distinguishes between “causes” and “conditions.” This distinction between “cause” and “condition” is basic to life and to law because it is at the heart of determining if a man has chosen a right or wrong response to the environment in which he lives.

That has been so from the beginning when Adam and Eve chose to eat of the forbidden fruit. It was their decision to eat of it that caused sin and death to enter the world.³⁸ The garden, the “apple,” and even the temptation of the devil were all “conditions” that set the stage for Adam’s and Eve’s opportunity to choose to obey God, but none “caused” them to make the wrong choice. Likewise, when one gets into his car in the twentieth century, the car, the highway, the traffic patterns, and even the temptations to speed – “Put a Tiger in Your Tank” -are all “conditions” that set the stage for the driver to choose to obey or disobey the traffic laws. None will be the “cause” of the driver’s misbehavior. A gun is a necessary condition for a murder by a firearm, but it can never be the “cause.”

From these simple examples, one may learn that an inanimate physical object may be a “condition,” but never a “cause.” That is because only those physical beings endowed with a spiritual dimension may “cause” anything in a world created and operated by an infinite spiritual being. Also, from these simple examples one may learn that difficulties arise if a question is raised about whether the cause was one person or another. If the boy answers his mother’s question about who left the toy on the stairway with the statement “Joey (his brother) did it,” the mother has a problem of who caused it, Joey or his brother. If the doctor blames the nurse for having left the sponge in the patient’s stomach, then the lawyer has a similar problem. But even here, the assumption remains the same: Man has been created in such a way that he can be identified as the one who “made the difference” in the outcome.

This distinction between “cause” and “condition” and between two possible “causes” are crucial to any effort to find “fault.” That is why law students often study “causation” at the beginning of their instruction in torts, the area of law governing the recovery of damages for losses caused by others’ wrongdoing. In that study he quickly learns that the common law has several rules reflecting the basic distinction between “causes” and “conditions.” He will also learn that the common law includes such defenses as an “act of God” to excuse man when an extraordinary event has occurred in such a way as to call the event a “coincidence.” For example, he will learn that a driver of a car is not responsible for the death of his passenger killed by a lightning strike even though the driver was exceeding the speed limit and, presumably, would not have been in the place where the lightning struck. Some events occur that man cannot be held responsible for because God actively participate in His creation and allows, for reasons man does not know, “bad things to happen to good people.” Under such circumstances man’s act is but a condition upon a much larger stage where God and other spiritual beings are in charge.³⁹

But today’s law student will also not be taught to respect such reasons given by 18th and 19th century lawyers. Instead, he will learn that the “act of God” defense between “cause” and “condition” is archaic and outmoded. Most likely, he will be directed to a modern authority, like Prosser on Torts, where he will read that the “real reason” for the “act of God” defense is as follows:

If the defendant escapes responsibility, it is because the policy of the law does not safeguard the plaintiff against such a risk . . . [I]f the defendant drives through the state of New Jersey at an excessive speed, and arrives in Philadelphia in time to be stuck by lightning, his speed is a not unimportant cause of the accident, since without it he would not have been there in time; and if he is not liable to his passenger, it is because in the eyes of the law his negligence did not extend to such a risk. The attempt to deal with such cases in the language of causation can lead only to confusion.⁴⁰

The reason that Prosser believes that causation is confusing, is because he is confused about the true distinction between “cause” and “condition.”

In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond. “The fatal trespass done by Eve was the cause of all our woe.” But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.”⁴¹

Having rejected God’s reality of man as a limited causal agent, Prosser concludes that it is up to man to determine the limits of legal responsibility according to “some idea of justice and policy.”⁴² Those ideas of justice range from solutions based upon “administrative possibility and convenience” to those founded upon some group’s demand for justice. To understand more fully the implications of this kind of thinking, one need only examine the efforts to redress the harm caused by past racial discrimination through civil government imposed affirmative action programs.

In May 1977 the United States Congress authorized the expenditure of federal funds for local public work projects. In order to receive these funds state and local government authorities were allowed to secure goods and services from businesses submitting competitive bids, except that 10% of such goods and services were to be purchased through businesses owned or controlled by members of a statutorily identified minority group. The Congress justified this special exemption from competitive bidding for members of the named minorities on the ground that it was a remedy for past discrimination. Yet Congress cited no evidence and required no proof that any of the beneficiaries had ever been wronged by the state and local governments covered by the law.

This fact prompted Supreme Court Justice John Paul Stevens to observe that the real reason for the exemption was the strength of the “Black Caucus,” lobbying in the United States House of Representatives to make sure that their constituents got “a piece of the action.” But the Caucus could never have obtained their objective if the Congress was guided by the Biblical principle that no one is entitled to any “remedy” for any loss other than that “caused” by an individually identified and properly proved wrongdoer. As God revealed through Moses in the Book of Deuteronomy, the sons are not to pay for the sins of their fathers.⁴³ Whatever wrongs that the Black people have suffered in America through slavery, separate but equal and other discriminatory policies, those wrongs can never be righted by holding the present generation for the sins of the past generation, or some members of a present generation for the sins of other members of that generation. Yet, that is what all affirmative action programs are designed to do. They are possible only in a world where the policy makers have forgotten God’s distinctions between “causes” and “conditions” and, consequently, where they have ignored an absolute essential condition of justice, the proof of individual responsibility for having caused the harm for which redress is sought. Any effort to obtain “racial justice” apart from those foundational principles will yield not only injustice, but will foster the very animosity and discontent that have plagued
America’s black and white communities for decades.

In summary, individual responsibility is the keystone to justice. God has created man in such a way that he may respond rightly or wrongly to his environment. Rewarding right choices and penalizing wrong choices contributes both to order and to liberty. Any departure from that basic principle destroys the very fabric of society as God has created it to be.

MAN: REASONABLE OR PERFECT

Along with the displacement of “individual fault” by “systemic fault” has come the assumption of perfectibility, that alterations in man’s genes and environment will bring a perfect system run by perfect men. No doubt one reason why Congress and other governmental bodies have adopted “affirmative action” programs is that they, along with several United States Supreme Court justices, believe that such programs, if pursued long enough, can rid society of “all vestiges of past discrimination.” They think that once a society is cleansed of its racist heritage, then by comprehensive enforcement of laws prohibiting discrimination racism can be eradicated “root and branch.”

Such a drive for perfection in race relations has been felt in other areas and at other times. In the early history of the common law people were held liable if they caused damage to another even if the injury was an “accident.” But as the common law matured recovery was not allowed, with few exceptions, without proof of negligence or intent. The common law definitions of crimes, however, always required more proof than that the defendant did not act perfectly. For example, Blackstone in his Commentaries noted that the killing of another human being did not constitute murder unless there was “malice aforethought.” This common law definition rested upon the Biblical distinction between murder on the one hand and accidental homicide on the other.

He that smiteth a man, so that he die, shall surely be put to death. And if a man lie not in wait, but God deliver him unto his hand; then I will appoint thee a place whither he shall flee. But if a man come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from mine altar, that he may die.⁴⁴

Blackstone even utilized a Biblical fact example from Deuteronomy 19:4-5 to illustrate the point that man’s authority to punish another for killing a human being depended upon proof of intent to harm.

The common law requirement of intent to harm or other comparable mental culpability has been continued as a prerequisite for proof of criminal activity in most cases. Nevertheless, beginning in the early twentieth century legislatures in America began to raise the standard of conduct to the level of perfection in their attempts to control the traffic in illegal drugs, in the stock market, and in other “business activities.”

This development in the criminal law was paralleled by one in civil tort law where a standard of “strict liability” has been extended especially to the manufacturers and sellers of products. While the drive towards the perfectibility standard in the criminal law has been generally deplored, the efforts to hold businesses to the higher perfectibility standard has been generally approved. In support of the requirement that a manufacturer’s product work perfectly or else he must pay for any damage caused are statements such as the following:

The purpose of . . . [strict] liability is not to regulate conduct with a view of eliminating accidents, but rather to remove the economic consequences of accidents from the victim who is unprepared to bear them and place the risk on the enterprise . . . The risk . . . becomes part of the cost of doing business and can be effectively distributed among the public through insurance or by a direct reflection in the price of the goods or service.⁴⁵

In effect, strict liability imposed upon the manufacturer of an accidentally designed or constructed product or delivered service is justified by the assertion that the one who has the most money or who is in a position to force others to pay for his mistakes must pay. Implicit also is the assumption that a business enterprise could do better if it really wanted to do so, but everyone knows that the businessman just wants to make a buck.

The Bible teaches quite a different standard of justice. First of all, God revealed through Moses that a judge must “not show partiality in judgment” but “shall hear the small and the great alike.”⁴⁶ The ability to pay or not to pay a judgment under the Biblical standard was to be absolutely irrelevant: “You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge you neighbor fairly.”⁴⁷ Indeed, the danger of favoritism to the poor was one of the first illustrations of injustice that God revealed to Moses: “You shall not follow a multitude in doing evil, nor shall you testify in a dispute so as to turn aside after a multitude in order to pervert justice; nor shall you be partial to a poor man in his dispute.”⁴⁸

Even if the standard of perfection applied notwithstanding a defendant’s ability or inability to pay, the Bible has not authorized any civil government to hold its citizens or residents to such a standard. Because man himself is not perfect, he has no right to hold others to a standard that he cannot meet. Only God can do that as Christ taught in his sermon on the mount: “Be ye therefore perfect, even as your Father which is in heaven is perfect.” Matthew 5:48. At best, man has authority to hold his fellow man to a standard of ordinary care or to some other standard short of perfection. Otherwise, the civil ruler will usurp a role that God has reserved to Himself and to the church.⁴⁹

This legal standard of ordinary care does not, however, apply to the standard itself. All are presumed to know the law; ignorance of the law is no excuse. The reason for this rule is found in the Bible as well. Paul, in his letter to the church at Rome, wrote that all know the law because the law, an “invisible thing” of God, is “clearly seen, being understood by the things that are made, even his eternal power and Godhead, so that they are without excuse.” Romans 1:20. Moreover, God wrote the law upon the heart of every man so that their conscience bears witness to the standards of behavior that are required.⁵⁰

The common law reflected this Biblical reality by denying to any litigants all opportunity to prove that he had good reason not to know the law. The common law rule that ignorance of the law is no excuse has been retained even by twentieth century scholars and jurists. Yet, because they have no faith in God or in His Word the modern legal expert has rejected the Biblical defense for the rule. But he has found nothing satisfactory to replace the Biblical justification, having reduced the rule to a matter of expediency with such arguments that “public policy sacrifices the individual to the general good.”

Such a policy argument has not been accepted, however, by these same experts who favor a more liberalized insanity defense to excuse criminal wrongdoing. At one time many legal scholars and judges favored Judge David Bazelon’s view that no one was “criminally responsible if his unlawful act was the product of mental disease or defect.” Known as the “Durham test” this rule became law in the District of Columbia in 1954 only to be abandoned 18 years later because it threatened to undermine the principle of fault in the criminal law: Almost any lawyer could find some medical expert who would testify that a defendant was mentally ill and on that account could not stop himself from committing the crime of which he was accused. In other words, the Durham rule could be manipulated by lawyers and experts to require proof that an individual defendant was “perfect” before he could be held morally responsible.

The traditional common law governing the insanity defense was not based upon any ideal of the perfect man. To the contrary, known as the M’Naghten rule, it excused criminal conduct only if the defendant suffered from a mental disease or defect that totally impaired his ability to know right from wrong or to know the nature and quality of the act he was doing. Any effect short of such total impairment of reason did not excuse the defendant, but was simply a condition that he was required to overcome. Those who endorsed and applied the M’Naghten rule believed that man’s will could not be impaired by disease or defect and so refused to accept any contention that a defendant could have an “irresistible impulse” to commit a crime. His condition and his environment may not be perfect, they acknowledged, but it is a fallen and imperfect world in which man lived. Only diseases and defects that robbed man completely of his reason were accepted excuses.

The M’Naghten rule remains law in some American states, but most have adopted a rule that stakes a middle ground between M’Naghten and the now discredited “Durham test.” In 1955 the prestigious American Law Institute began drafting a Model Penal Code. In that code they formulated an insanity test that reads as follows:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect, he lacks a substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

This rule incorporated an excuse for an “impaired will” and allowed for a defense even though the defendant was not totally mentally incapacitated by the disease or defect. Even though this rule has expanded the insanity defense beyond the M’Naghten rule it has retained the basic principle that man need not be proved perfect before he can be held morally responsible for his acts. Indeed, in the criminal law all men are presumed sane, therefore, they intend the “natural and probable consequences of their acts.” Such a presumption and rule reflect God’s reality that even in a fallen and imperfect world man, created in God’s image, has the ability to overcome great obstacles, including defects and diseases of the mind.

A beautiful illustration of the truth of this assumption is given in the account in Mark’s gospel of the encounter between Jesus Christ and the Gadarene demoniac.⁵¹ Often bound by chains, that he broke at will, and tormented to the point of cutting himself with stones, this demon-possessed man lived naked in a cemetery. When he saw Jesus, “he ran and worshipped him;” yet, when Jesus talked to him, the demons that lived in him spoke. After Jesus delivered him from the “legion” of demons that controlled his life, he put on clothes and talked with Christ for he had been restored to a “right mind.” Without question this man would be diagnosed by medical experts of the twentieth century as suffering from a serious mental disease. Nevertheless, he had sufficient control over his will that he came to Jesus and worshipped him even though he lacked control over his mind to converse with him. Although imperfect the demon-possessed man had been created in the image of God and had sufficient free will to overcome all barriers to his coming to Christ for healing and for salvation.

MAN: RIGHT AND WRONG

While it may be reasonable to hold a man responsible for overcoming imperfection of the mind and of the body, it would not be reasonable to hold him responsible for those imperfections and their symptoms. That is the testimony of each of the three formulations of the insanity defenses. Whatever their differences, each requires proof that the defendant suffers from a mental disease or defect. Indeed, the American Law Institute drafted a provision declaring that “repeated criminal or otherwise anti-social conduct,” alone was not sufficient to prove such a disease or defect. Again this view reflects the Biblical distinction between sin and illness. The latter is a consequence of sin, either personal⁵² or general,⁵³ and, therefore, can never be the occasion for blame or fault-finding. As the United States Supreme Court recently stated, “even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.”

But what qualifies as an illness or disease? In 1975, the American Psychiatric Association voted that homosexuality was not an illness. They had already voted some time previously that homosexuality was not a “sin.” Experts have gone back and forth over the years trying to decide if alcoholism and drug addiction are sins or illnesses. Are these questions to be decided by majority vote? If so, a vote of the experts or a vote of the populace?

In a recent article published in the World Press Review the author claimed that “illness” was not a “thing,” but a “judgment” made by those who are given the power to impose their will on the rest of us.⁵⁴ Earlier in a satirical novel written in the late nineteenth century, Samuel Butler wrote of a fictional land called EREHWON (nowhere spelled backwards) in which a man suffering from tuberculosis was sentenced to life imprisonment at hard labor; whereas had he feigned tuberculosis to defraud his insurance company he would have been “sent to a hospital as for a moral ailment.”⁵⁵ While a twentieth century American may find this nonsensical, he must take note of the fact that he is in the midst of a series of serious fights over whether certain activity will remain within the criminal code or will be transferred to the realm of the medical doctor.

In 1962 the United States Supreme Court concluded that drug addiction was an illness and that therefore, no one could be punished for being a drug addict or for having the symptoms of such an addict. Five years later the Court faced the question whether alcoholism was an illness and whether an alcoholic whose symptomatic behavior included being drunk in public could be punished. This time the Court said no, it is not clear that alcoholism was a disease, and no, it is uncertain that chronic alcoholism impairs the ability of the alcoholic not to get drunk in public. What apparently made the difference between the two cases was that in the first case the prosecutor conceded that drug addiction was an illness whereas in the second case he did not concede that alcoholism was an illness. What was at stake in both cases was whether the foundational assumption of the criminal law system was to remain: that man is a morally responsible being subject to an objective moral code that sets standards for right and wrong behavior. The United States Supreme Court sidestepped this matter in the second case by tossing the ball back to the legislature to define its criminal code taking into account “the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.”

Nowhere have we seen this tension between the traditional criminal law and evolving views of man more clearly than in the matter of homosexuality. At common law homosexual conduct was a felony, “crime against nature” or, more recently, sodomy. Such conduct was wrong not because a majority of the people said so or because the experts believed it to be, but because the common law reflected “the law of nature and of nature’s God.” God, by His Word, determined what was wrong and man, in obedience, enacted laws in accordance with God’s Law if he had authority in the matter. Because both the Old Testament⁵⁶ and the New Testament⁵⁷ condemned homosexuality as sin, not sickness, civil rulers were required by Romans 13:4 to prohibit homosexual behavior. This was not a matter subject to majority vote.

The common law’s definition of right and wrong in such areas as homosexuality, then, did not turn upon a societal consensus. Rather, it reflected an objective law order imposed upon man by God, as illustrated in the Biblical account of man’s first sin. While both Adam and Eve, at the time they ate of the tree of the knowledge of good and evil, believed that it was all right to do so, this unanimous societal consensus of two did not nullify the fact that it was wrong to do so. God’s objective law-order dictated the standards of right and wrong to man whose duty was only to obey.

Because most twentieth century legislators, judges, lawyers, and legal scholars deny that God has anything to do with a nation’s legal system, they believe that they may call good what God has called evil. So in the aftermath of the repeal of the common law prohibitions against sodomy and other “adult consensual private sexual acts,” homosexual rights groups have claimed not only immunity from criminal sanctions for their sinful behavior but civil rights protection for that behavior.
The legislative and judicial response has been to submit this claim to the latest Gallup poll or to their own reason to ascertain its validity. As a consequence America’s legal standards of right and wrong have become subjected to the democratic marketplace long dominated by special interest groups. If homosexual rights groups are able to dominate a legislative body, such as they have in San Francisco, then they are able to make what they do “right” and to make what others do against them “wrong.” Thus, it is “wrong” in San Francisco for an employer or landlord to “discriminate” against an open and active homosexual.

By such a standard, nothing is inherently wrong. According to this view then, thieves or murderers may become sufficiently powerful to dominate a city or state so that its council or legislature may enact a “law” making it “wrong” to discriminate against thieves and murderers. After all, we are told, that is the democratic way. Those who support the homosexual rights movement have assured the public that thievery and murder are not like homosexuality, that the former harm others, but homosexuals are no threat to anyone else. Recent disclosures concerning the public health menace of unrestrained homosexual behavior has not deterred such statements; to the contrary, such evidence has either been suppressed or been used as the basis for cries for tax subsidies to help the homosexual to live his chosen lifestyle without risk to his health.

What is right or wrong does not turn upon whether social scientists have discovered if some activity harms or does not harm others. Nor does right or wrong depend upon what is intuitive within the hearts and minds of a nation’s people or her legislators or judges. What determines right and wrong is God, the Creator of all things. What happens when man disregards this basic truth has not only been amply demonstrated by the homosexual rights movement, but by the United States Supreme Court’s ruling allowing a woman and her doctor to abort the woman’s baby and by the “prochoice” movement that that ruling has spawned.

For many years the legislatures of the American states have provided a remedy against those who have negligently deprived another of his life. Known as the “wrongful death” laws, a dead person’s surviving relatives or estate may sue the negligent party and collect damages for the loss of a loved one’s life. Following the court’s abortion decision, people began to sue medical doctors for “wrongful birth” and “wrongful life.” Claiming that the doctor had a duty to inform couples of the likelihood of a defective child or other undesired risk, some disappointed parents of an “unwanted child” have successfully recovered damages for the cost of rearing such a child and for emotional harm. While some courts have denied such claims and some legislatures have outlawed them, they have not done so because they believe that actions contributing to life, wanted or not, can never be wrong. Rather, they have assumed that even if it is wrong to give life under some circumstances, it is simply too difficult to determine the damage caused. In effect, most, if not all, of the legal experts have assumed that whether the life of a child is right or wrong, good or bad, depends solely upon the mother or upon the parents.

CONCLUSION

Such moral relativism threatens both liberty and law as God has warned man through the experiences of Israel in the time of Judges. Because “every man did that which was right in his own eyes.”⁵⁸ Israel became a nation torn between anarchy in Judges 19 and totalitarianism in Judges 20. Only when the rule of law was restored through Samuel and through the covenant Kingships of Saul and David did Israel have both freedom and order. Even during the short reign of Saul, however, the nation was threatened by totalitarianism in 1 Samuel 13 and anarchy in 1 Samuel 15. God, in His mercy, removed Saul as king and, thereby, gave Israel her greatest period in history under beloved King David.

The United States of America is not immune from destruction. If she persists in substituting man’s standards of right and wrong for God’s, then she, too, risks destruction. The situational ethic that calls for decisions, the morality of which turns on the circumstances, has brought America to the brink of anarchy in sexual behavior, in birth and death, and in entertainment and the arts. At the same time, this ethic has imposed near totalitarian rule in areas such as “race relations,” education, and social welfare.

As the writer of Proverbs has said: “Righteousness exalteth a nation: but sin is a reproach to any people.”⁵⁹ The righteousness of which he wrote is that of God as revealed through nature and the Scriptures, not that of fallen man whether democratically determined or authoritatively imposed.