Pedagogical Policy, Modernity, and the Legal War on Personhood

In his legal Commentaries, Blackstone defines the law as that which “teaches to establish the one, and prevent, punish, or redress the other;…which employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart.”¹

Modern legal policy seldom portrays the purpose of the law in this way, and, by failing to do so, further erodes the remaining foundation of American common law. The claim that modern legal policy has, for years, encouraged anti-conservative advances is widely accepted. This departure, however, abandons not only traditionally held American conservative principles but is specifically anti-Christian in nature. Such a departure centers around a single cultural loss: we no longer perceive the law as a pedagogical declaration of created anthropological rights.  Blackstone’s definition provides two aspects inherent in good law: (1) it will teach, and (2) a Christian philosophy of personhood must undergird it.

In practice, we cannot ignore the pedagogical aspect of the law—upon any examination, this aspect is undeniable. When a legislature or a progressive opinion passes a policy on the fringe of social acceptability, it is published by a court; rarely does more than a short time elapse before that policy can hardly be considered fringe. When a new policy is enacted or an old law is replaced, the new policy draws attention to itself as specifically permitted.  But 'law permitted' is not a neutral term. By permitting a particular action, the law suggests that this action is a good thing. In effect, can becomes should. Whether that action is good or not is irrelevant to the fact that the law does teach that it is an upright course of action. This gives the law great power, for good or for evil. If an evil law is passed, it suggests a popular rejection of the very foundations of the law itself. What if the law supports a disregard for the Christian understanding of personhood and encourages a materialistic anthropology? Why is this significant?  

The answer is in the second half of Blackstone’s definition of law. Law must be distinctly human and Christian because it is not made to govern any other creature. Righteous law understands and makes use of “the noblest faculties of the soul and…the cardinal virtues of the heart.” Righteous law is directed to those it governs, the embodied souls and hearts of men, and common law was built to govern men according to their God-given natures. Law is not made to direct materialistic accidents (if that’s how we define men); it directs souled and created persons made in God’s image. The law does much more than simply require action; it directs hearts, encourages noble faculties, and, in a public manner, defines virtue worthy of the soul’s pursuit.  

To the contrary, the driving force behind many modern legal decisions is materialistic and Darwinian, and tragically, few policymakers recognize the damage caused by this legal modernity. The most significant effect of such policies is an attack upon the very foundation of law itself, Christian anthropology. To establish the practical implications of this statement, we must connect a few more threads running through the modern legal scene.  

The same materialism that took over the study of science has embedded itself in the nooks and crannies of the law and has been doing so for some time. Because modern policy is not made in light of a Christian anthropology, it is at war with human fruitfulness. Law is meant to govern men: it is protected and interpreted by men, obeyed by men, and given to the next generation by men. But materialism denies the concept of man.  

As Milton argued, the law should never take a position that would “unlaw itself” and thereby damage its own foundation. To do so is to enact policy and interpretation that replace a Christian, 2 human anthropology with a materialistic one; it is perhaps the most direct way for the law to do just this. A Christian world is “intricately woven.” Genesis develops this train of thought. It is not ³ good for man to be alone, so following the Genesis narrative, Adam is given a wife, and then children. A very good Christian anthropology is woven into the marriage between man and woman, which consequently produces children. And children are necessary for passing on law to the next generation. Were the law to fail in its protection of children, it would shortly destroy itself and its people. But these truths—of human nature, marriage, and children—rise and fall together, and if law falters in one area, we expect it to falter in the others. And so, a materialistic worldview seeking to deny God seeks to disconnect these truths in the universe. So has our modern law done, and this departure is immensely practical.  

An example is the United States Supreme Court’s 1972 opinion on Eisenstadt v. Baird—one year before Roe v. Wade and the institution of the so-called right to abortion. The Eisenstadt opinion declared that it is an individual right, married or single, regardless, “to bear or beget a child.” This opinion introduced a way of looking at childbearing which was completely foreign ⁴ to traditional Christian anthropology. The Court suggested an additional right among those owed to any individual—that of begetting or bearing a child.  

Despite significant implications for parenthood, Eisenstadt's connection to Roe invites a closer look at the framing of children in this statement. The Court’s ruling defined a new natural human right—it attempted to overrule nature. According to the Court, it is a right to decide whether to have children in a strictly material sense. The authority they recognized was not that of God, but that of the individual’s desire. This is a precise definition that redistributes a power Christians ascribe to God alone: the opening and closing of the womb.⁵ 

The materialistic view of children suggested by the Eisenstadt opinion has developed into a fuller narrative culturally and legally. Children were portrayed merely as products of human choice where traditionally common law recognized that they were created by God and gifted by Him to a married father and mother. Materialism allows no recognition of a child’s metaphysic,  no acknowledgement of his soul, nor does it wish to direct popular thought concerning that soul.  Fertility is the effect of choice, not blessing. A child is the product of that personal choice, and nothing else. His anthropology as a human person is not considered because in a materialistic world, the sum of his parts is all that matters. So, the Court treats children simply as objects granted through the exercise of any individual’s right.

The reason why this view should be confined to children in the womb, as opposed to children out of the womb, or any other person for whom society has developed a dislike, is the blessed but broken remnant of Christian law, which once employed nobility in its language and practiced Christian virtue to govern the hearts of its citizens. But materialistic law has no desire for these immaterial concerns—they are, on principle, of no account.  

What is nobility? What is virtue? And what is law without them? 

_{1. Blackstone, Commentaries vol. I, 27.} 

_{2. Milton, “Areopagitica,” 190.}  

_{3. Psalm 139:15 (ESV).} 

_{4. Eisenstadt v. Baird, 405 U.S. 438, 453.}  

_{5. Isaiah 66:9 (ESV).} 

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