Augustine as Common-Law Conservative

Augustine wrote about the morality of lethal self-defense. Most scholars say he declared self-defense a sin. The (educated) pacifists love to reference it.

Yet, his rejection of justice is that which deserves attention.

Before turning to Augustine, the doctrine of precedent, which stems from the moral principle of order, is requisite:

“The doctrine of precedent is the threefold doctrine of security (read: order), liberty, and equality – Security, in that it leads to the expectation that disputes will be decided in the future as they have been decided in the past; Liberty, in that subordinate individuals will not be subject to the capricious will of superiors; Equality, in that all individuals of the same class will be treated equally under [equal] circumstances.”

Notice how each builds on the last. Without the doctrine of security, or order, a father or a supervisor is not required to be consistent in his rules. Then, the father or supervisor would be free to make rules, or enforce them, at whim, which means, he will favor some over others. Put another way, both equality and freedom here, assume a prior kind of order.

Order and continuity are the fabric of society. The doctrine of precedent is the fiber that makes the social fabric. To some degree, Augustine understood this. Augustine understood that order is a moral principle that governs earthly affairs. Justice, however, is not supreme.

In his book, On Free Choice of the Will, Augustine agrees with his friend, Evodius, in a Platonic (or Socratic?) fashion. Augustine says:

Therefore the law is not just which grants a traveller the power to kill a highway robber so that he himself may not be killed; or which grants a man or woman the right to slay, if they can, an assailant before he can do violence.

Evodius replies that these laws can escape the “accusation” of being unjust, if society “permits people it rules to do lesser evils so as to avoid greater ones.” He rightly reasons that it is better for the unjust highway robber to die than to allow the innocent citizen to die. A pacifist must allow too, that this is a lesser evil.

Augustine agrees with Evodius. But this is not the only moral reasoning brought to the table. Foreshadowing common law theory later developed by the Calvinists and the Lutherans, they continue.

Evodius finishes his defense of lethal self-defense, “I do not blame the law which permits such aggressors to be slated; yet I do not know how I would defend the man who kills.”

Augustine replies, “Much less can I discover why you should seek to defend men whom no law holds to be guilty.”

E: No public, man-made law, perhaps; still, I do not know whether they are not held guilty by some stronger, very secret law, if all things are governed by divine providence. How then, for divine Providence, are these men free of sin when they are stained by human blood for the sake of things they ought to despise? I think, therefore, that the law that is written to rule the people is right to permit these acts, while divine providence punishes that. The law of the people deals with acts it must punish in order to keep peace among ignorant men, insofar as deeds can be governed by man; these others said have other suitable punishment, from which, I think only wisdom can free us.

A: I praise and approve this distinction that you have made. The law which is made to government states seems to you to make many concessions unpunished things which are avenged nonetheless by the nonprofits – and rightly so.

Notice the purpose of the laws is not justice, but to keep the peace. In other words, to keep good order. Justice will only be had in heaven. The real purpose of government, which Augustine lays out in The City of God, is to keep enough order in society that the Church may exist and do it’s job of proclaiming the gospel.

The problem with this thesis is, it’s too lopsided. Romans 13 unambiguously teaches implies that justice is the point. Several OT passages make that clear as well.

So what’s the solution?

Justice is but one governing principle. When Justice no longer rules alongside Order, justice is no longer Justice.