Moral Law in the Form of Equity

    Secret Proceedings and Debates of the Convention Assembled at Philadelphia in the Year 1787, for the Purpose of Forming the Constitution of the United States of America [....] (1839) (pp. 63-64) contained this line:

It was said, that we had just assumed a place among independent nations, in consequence of our opposition to the attempts of Great Britain to enslave us; that this opposition was grounded upon the preservation of those rights to which God and nature had entitled us, not in particular, but in common with all the rest of mankind; that we had appealed to the Supreme Being for his assistance, as the God of freedom, who could not but approve our efforts to preserve the rights which he had thus imparted to his creatures [....] 

    So, it was no wonder that on December 12, 1787, in Pennsylvania's state convention for ratifying the Federal Constitution, Dr. Benjamin Rush analogized the divinely-based moral authority of that proposed Constitution to the God-given Ten Commandments. (The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993), p. 869).

    (Regarding the the moral law's place in American constitutional law and history, see also: United States Supreme Court Justice Antonin Scalia (McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U. S. ___ (June 27, 2005) (Scalia, J., dissenting)Chief Justice William Rehnquist (Van Orden v. Perry, 545 U. S. ___ (June 27, 2005); and Justice Clarence Thomas, Id. (Thomas, J., concurring).)

    People in the state ratifying conventions recognized that the United States Constitution was founded on the moral law.

    So also did Alabama Chief Justice Roy Moore and Judge James DeWeese of Ohio.

    Also based on the moral law was the Declaration of Independence.  And the moral law background of the American founding documents should be taught in public schools.  But the element out of synchronization with current acknowledgment of God as the source of human rights is some federal court opinions, based on the flawed Lemon test.  And this disconnect between founding principles and judicial opinions can have ramifications far afield from the realm of church and state.

Flawed Judicial Decisions:

A Reason for Equity Jurisdiction

    Interestingly, the United States is, in a sense, seeing a kind of replay of the premodern justice problem that led to the creation of  equity courts, separate from the regular courts of law.

    One of the first law treatises written in the United States following the ratification of the U.S. Constitution: Zephaniah Swift (1759-1823), A System of the Laws of the State of Connecticut (Volume 2, 1796), described the origin of a separate system of courts possessing jurisdiction to judge according to principles of equity:

    A court of equity, distinct from a court of law, is peculiar to the English jurisprudence.  In the Roman government, the pretor who was the judge, not only proceeded according to established, and known rules, but he exercised a discretionary power, in determining according to the principles of right: but these powers were blended in the same tribunal, without admitting the idea of a distinct court of equity, whose decisions were to be governed by a system of rules, peculiar to itself.  In England, the introduction of a court of equity in chancery, was not owing to any deliberate plan of the king, or the legislature, upon the calculation of its probable utility: but is merely the offspring of a fortuitous concurrence of circumstances.  William the conqueror established a supreme court, which was held in his presence in his palace, and called the court of the king.  In this court was vested all judicial power, and they granted relief, not only in those cases, for which provision was made by express law; but upon all applications that were grounded upon the principles of justice.  So that in the earliest period of the English government, there existed a tribunal which claimed an equitable jurisdiction.  This court was composed of barons, and the great officers of the realm.  In the absence of the king, an officer, called the chief justiciary, presided, who had great and extensive authority.  Of this court the chancellor was a member, an office derived from the ecclesiastical tribunals, and which they had borrowed from the Imperial law.  [***]

    "The only court at this period which had any power, that bore a resemblance to an equitable jurisdiction, was the court of chancery.  The chancellor was one of the principal counsellors to the king," Swift noted.  There was a reason why equity jurisdiction was necessary: "When it was discovered that in many instances, courts of law could grant no relief, or that their judgments were hard and unjust," and when the chancellor "foresaw it would be in vain to send to the courts of law," the chancellor decided the case in his own equity court.  Swift described problems in the common law courts created by a mechanical adherence to the principle of stare decisis:

    It was in the reign of Richard, II. that the court of equity in chancery seems first to have been known, as distinct from a court of law.  It is evident, that it grew out of the defects of the remedies furnished by the courts of common law.  These were guided in their proceedings, and decisions by settled forms, which were supposed to grant relief in every instance, that was proper for the cognizance of the law: and when a principle, or rule had once been established by the decision of a court, it was considered as an authority, from which they could not deviate.  It is evident that in this early period, when mankind had such obscure ideas respecting legislation and jurisprudence, it was impossible that courts under such restrictions could do compleat and substantial justice: there would be many instances to which the common law could not reach, or which instead of relieving, an adherence to the common law would only confirm and aggravate the injury.  It became expedient and necessary to correct such a defective state of judicial polity, by the establishment of a power which should mitigate the rigor and supply the defects of the common law, without subverting or contravening its general principles.  From this state of things originated the court of equity, and had courts of law in early times extended relief, and enlarged their jurisdiction according to the progressive improvements of society, with the liberal spirit and comprehensive views of Lord Mansfield, the existence of a court of equity, as a distinct tribunal had never been necessary.

    Thus, common law courts essentially created their own problems through their excessively rigorous adherence to stare decisis (the principle that courts should follow previous court precedents): "Notwithstanding the rapid encrease of the power of courts of equity, the courts of law refused to lessen it by extending legal remedies, and by their obstinate adherence to rule, and precedent, rendered necessary the growing power of the chancery."

    A problem that developed in the United States was that, at certain times, the rules of legal procedure (procedural due process) operated somewhat separately from the fairness and justice of the law itself with regard to the protection of fundamental rights (substantive due process)--and the problem still persists in the United States.  Therefore, it is possible that a judicial decision may be procedurally correct (according to the rules of legal procedure), and yet be substantially incorrect with regard to substantive due process--as when, for instance, an unfair law (or an unfair application of a law) leads to a denial of equal protection of the laws.

    In premodern England (extending into Colonial American times), when justice was not obtained in the law courts, an equity system was created in order to obtain that justice.  Swift wrote:

[***]  Courts of law, by adopting narrow views, and illiberal maxims at an early period, became stationary, and refused to grant relief in all the cases which justice required.  On this basis, equity erected its superstructure, systematized every branch of cases, as fast as they came under its cognizance, and at the same time continued to exercise the great leading principle of abating the rigor and supplying the defects of law, the perpetual operation of which extended the power of the chancery, and furnished a system of relief, commensurate with the wants of mankind.  --- From these observations, it is evident that courts of law might have assumed, and that the legislature might now transfer to them, the whole business of courts of equity, and that there is no necessity for two distinct tribunals, to administer justice between man and man.

    English equity principles were extended to the American colonies:  "Having traced the origin of equity in England, I proceed to consider its introduction and progress in this country.  Our progenitors borrowed the idea of a court of equity, from the land of their nativity.  In the infancy of the government, the general assembly, like the parliament and council in England, assumed the jurisdiction of all matters in equity, and continued till lately, to be the only court of chancery in the state," Swift wrote of Connecticut in 1796.  Courts of equity could overrule courts of law: "The idea of a distinction between law and equity, which have the same object in view, to dispense justice, seems at first singular and inexplicable.  We should think, that having but one object, their powers would be blended, and that their principles would be precisely the same.  But we find that there are courts of justice in being, which have the same objects of jurisdiction on different principles, and which not only furnish different modes of relief in the same case, but one has the power to counteract the proceedings and vacate the judgments of the other." For example: "There are some cases where a statute of limitation may bar a just demand, under such circumstances as appear very inequitable, yet a court of equity cannot furnish relief.  It is however equally evident that there are cases where courts of equity can correct the injustice, and relieve against the judgments of law as well as furnish remedies, which are beyond the reach of the law."      

    And what were equity principles: the basis for equity court decisions?  Zephaniah Swift wrote in 1796:

[***]  The whole of the jurisdiction of the court of equity was acquired by the assumption of the principle, of deciding according to conscience in the administration of justice, where the courts of law furnished no redress, or their judgments were hard and oppressive, and it is on this broad basis, that the court of equity now rests its authority.  In England, courts of law will render judgment on a bond for the whole penalty, without regarding the sum due in justice: But a court of equity from a regard to justice, will decree the payment of the principal and interest only.  Where a contract has been executed in legal form, a court of law must on a breach of it render judgment for the damages: but a court of equity tho the contract be binding at law, will not decree a specific performance of it, if it be unreasonable and obtained by fraud, or taking an unfair advantage of the party.  There is a substantial difference in principle, between courts of law and equity.  Courts of law have adhered to positive rule, tho the consequence was, that in particular cases, their judgments contravened the principle of justice: courts of equity have disregarded positive rules for the purpose of attaining compleat justice.

    The "moral sense", upon which natural equity based its decisions, was an 18th-century shorthand term for the natural justice principles of the moral law (the work of which is "written on the heart"--i.e., human conscience).  The conscience's sense of right and wrong, when operating as little impaired as possible from the biased effects of human sin, should correspond exactly to God's eternal, transcendent law.  (Unfortunately, the human conscience is not entirely unbiased, due to its corruption by sin, and some people's consciences are less biased than others.  The absolute standard, however, by which the conscience is to be measured, is God's law, expressed in the Bible.  It is a law designed to give humanity life and the true happiness that comes from fulfilling, from living in conformity with, the design of one's creation.  God's law is the standard of perfect justice.)

    Swift explained:

[***]  To comprehend in a scientific manner the scope of law and equity, the student ought to have a thorough knowledge of the principles of human nature.  The investigation of that subject belongs to a very different work from the present.  It will be sufficient to make a few remarks upon the moral character of man.  [***]  Endowed with a moral sense, he is capable of distinguishing between right and wrong, good and bad, virtue and vice, and to ascertain the moral quality of every action.  [***]

    So there is a place for morality, for conscience, in courts of justice.  The moral law was used to obtain justice.  It was the basis for equitable decisions.

    In the words of Swift:

    The moral sense, conscience, or the approbation or disapprobation of one's conduct, which is common to the human race, is the criterion to determine what is right and what is wrong.  This announces to every human being, that an act which injures another in his property, is wrong: however, it may be cloaked with legal forms, or coloured by a deceitful appearance: and that a just compensation for the injury, ought to be made to the party who sustains it.  This is the standard of human conduct, and must be the pole star to guide courts of equity.

    The leading maxims of equity as well as law are, that wherever there is a right, some court must be empowered to make it effectual, and that for every wrong there is a remedy.  When the rules of law will not support a right, or redress a wrong, then equity may interpose.  The subject is to be contemplated on the scale of perfect justice.  The moral sense must be the rule of judging.  But still it must be remembered, that in forming the decision, regard must be had to the collective system of equity, that prior decisions, if any, must be attended to, and that the fundamental principles of law, grounded on political calculations of general good, must not be contravened.

    In other words, natural equity principles allow the entrance of the moral law (considerations of justice and fairness) into the legal decision process.  (The U.S. Constitution's Article III, Section 2 ("The judicial power shall extend to all cases in law and equity [....]") invests the federal court with equity jurisdiction as well as common law jurisdiction.  The two jurisdictions have been combined in one court system.)

    Therefore, courts which have assumed equity jurisdiction, and have incorporated equity powers, should take account of moral considerations when they render their judicial decisions.  Swift wrote:

    Courts of equity, when they have assumed any branch of jurisdiction, have by a series of decisions, adopted and established consistent and uniform rules, and in due time have proceeded with the same precision and certainty as at law.  In these cases we have no occasion to recur to original principles.  It is sufficient to class, arrange, and systematize the business in such a manner, as to unfold it in a clear point of light: and it is upon this branch of the subject, that our future enquiries are chiefly to be employed.  In this state, the jurisdiction of courts of equity, over a variety of subjects, is as well known, and as definite as that of law.  But still we must keep in view, the original principle that gave birth to this jurisdiction: for from the nature of equity, there must be a power perpetually existing, and capable at all times to be called into exercise, and to furnish whenever new cases arise a remedy on the broad basis of abstract right.  The possible extent of this power can never be known and calculated.  It may be supposed to be employed on new subjects, enlarging the equitable jurisdiction, and exhibiting the exercise of a power that furnishes relief correspondent to the growing necessities and progressive improvements of mankind.  --- Whenever this power, has by its operation, established remedies for every possible injury that a man can sustain, and for every case in which the public authority ought to interpose, then the reason for exercising this discretionary jurisdiction will cease, the whole power of a court of equity, may be transferred to the courts of law, and there will be one uniform system of jurisprudence, which will extend to every case, and may be administered by one tribunal.  How soon, or whether this period can ever arrive, is a subject of speculation too refined for this time.  It will be sufficient to consider the present state of things, and leave the possible improvement to future ages.

     So, judges should take into account, to a greater extent than they have done previously, whether due process is truly equitable in fact.  After all, if the precedent of Calder v. Bull (1798) is cited as the beginning of substantive due process under the U.S. Constitution, one should adhere to the true meaning of Calder: government actions should conform to the higher law foundation of the U.S. Constitution.

Why Conscience Agrees with the Ten Commandments

(Summarized by Jesus as: Love God with all your being, and do unto others as you would have them do unto you)

    Jonathan Edwards (1703-1758), in A Dissertation Concerning the Nature of True Virtue (reprinted in The Works of President Edwards.  In Ten Volumes.  (New York: G. & C. & H. Carvill, 1830), 3:128, 130-133, 143, 146, 154-157, Chapter V. "Of natural Conscience, and the moral Sense", Chapter VII, and Chapter VIII. "[...] how far it is founded in the Reason and Nature of Things") (bold emphasis added), explained what the "moral sense" is, why it is universal, why it is agreeable to reason because it reflects the reality of things, why it agrees with the requirements of the Divine Law (which likewise reflects the reality of things), and why those who believe the Bible's special revelation are at an advantage by virtue of their greater knowledge ("spiritual sense") of that reality ("the nature of things") than that given by conscience ("moral sense"):

    "There is yet another disposition or principle, of great importance, natural to mankind; which, if we consider the consistence and harmony of nature's laws, may also be looked upon as in some sort arising from self-love, or self-union; and that is, a disposition in man to be uneasy in a consciousness of being inconsistent with himself, and as it were against himself in his own actions.  This appears particularly in the inclination of the mind to be uneasy in the consciousness of doing that to others, which he should be angry with them for doing to him, if they were in his case, and he in theirs; or of forbearing to do that to them, which he would be displeased with them for neglecting to do to him.

[* * * * *]

    Natural conscience consists in these two things.

    1.  In that disposition to approve or disapprove the moral treatment which passes between us and others, from a determination of the mind to be easy or uneasy, in a consciousness of our being consistent or inconsistent with ourselves.  [***]  Thus men's consciences approve or disapprove the sentence of their judge, by which they are acquitted or condemned.  But this is not all that is in natural conscience.  Besides this approving or disapproving from uneasiness as being inconsistent with ourselves, there is another thing that must precede it, and be the foundation of it.  [***]

    2.  The other thing which belongs to the approbation or disapprobation of natural conscience, is the sense of desert which was spoken of before; consisting as was observed, in a natural agreement, proportion, and harmony, between malevolence or injury, and resentment and punishment; or between loving and being loved, between shewing kindness and being rewarded, & c.  Both these kinds of approving or disapproving concur in the approbation or disapprobation of conscience: the one founded on the other.  Thus when a man's conscience disapproves of his treatment of his neighbour, in the first place he is conscious, that if he were in his neighbour's stead, he should resent such treatment from a sense of justice, or from a sense of uniformity and equality between such treatment, and resentment, and punishment; as before explained.  And then in the next place, he perceives that therefore he is not consistent with himself, in doing what he himself should resent in that case; and hence disapproves it, as being naturally averse to opposition to himself.

    Approbation and disapprobation of conscience, in the sense now explained, will extend to all virtue and vice; to every thing whatsoever that is morally good or evil, in a mind which does not confine its view to a private sphere, but will take things in general into its consideration, and is free from speculative error.  For as all virtue or moral good may be resolved into love to others, either God or creatures; so men easily see the uniformity and natural agreement there is between loving others, and being accepted and favoured by others.  And all vice, sin, or moral evil summarily consisting in the want of this love to others, or in malevolence; so men easily see the natural agreement there is between hating and doing ill to others, and being hated by them, and suffering ill from them, or from him that acts for all, and has the care of the whole system.  And as this sense of equality and natural agreement extends to all moral good and evil, so this lays a foundation of an equal extent with the other kind of approbation and disapprobation, which is grounded upon it, arising from an aversion to self-inconsistence and opposition.  For in all cases of benevolence or the contrary toward others, we are capable of putting ourselves in the place of others, and are naturally led to do it; and so of being conscious to ourselves, how we should like or dislike such treatment from others.  Thus natural conscience, if the understanding be properly enlightened, and stupifying prejudices are removed, concurs with the law of God, as of equal extent with it, and joins its voice with it in every article.

    And thus, in particular, we may see in what respect this natural conscience extends to true virtue, consisting in union of heart to being in general, and supreme love to God.  For although it sees not, or rather does not taste its primary and essential beauty, i.e. it tastes no sweetness in benevolence to being in general, simply considered, for nothing but general benevolence itself can do that, yet this natural conscience, common to mankind, may approve of it from that uniformity, equality and justice, which there is in it; and the demerit which is seen in the contrary, consisting in the natural agreement between the contrary, and being hated of being in general.  Men, by natural conscience, may see the justice, or natural agreement, there is in yielding all to God, as we receive all from him; and the justice there is in being his that made us, and willingly so, which is the same as being dependent on his will, and conformed to it in the manner of our being; as we are for our being itself, and in the conformity of our will to his, on whose will we are universally and most perfectly dependent.  There is also justice in our supreme love to God; a natural agreement in our having a supreme respect to him who exercises infinite goodness to us, and from whom we receive all well-being.  Besides disagreement and discord appears worse to natural sense in things nearly related, and of great importance: and therefore it must appear very ill, as it respects the infinite Being, and in that infinitely great relation which there is between the Creator and his creatures.  And it is easy to conceive how natural conscience should see the desert of punishment, in the contrary of true virtue, viz. opposition and enmity to being in general.  For this is only to see the natural agreement there is between opposing being in general, and being opposed by being in general; with a consciousness how, if we were infinitely great, we should expect to be regarded according to our greatness, and should proportionably resent contempt.  This natural conscience, if well-informed, will approve of true virtue, and will disapprove and condemn the want of it, and opposition to it; and yet without seeing the true beauty of it.  Yea, if men's consciences were fully enlightened, if they were delivered from being confined to a private sphere, and brought to view and consider things in general, and delivered from being stupified by sensual objects and appetites, as they will be at the day of judgment, they would approve nothing but true virtue, nothing but general benevolence and those affections and actions that are consistent with it, and subordinate to it.  For they must see that consent to being in general, and supreme respect to the Being of beings, is most just; and that every thing which is inconsistent with it, and interferes with it, or flows from the want of it, is unjust and deserves the opposition of universal existence.

    Thus has God established and ordered that this principle of natural conscience, which, though it implies no such thing as actual benevolence to being in general, nor any delight in such a principle, simply considered, and so implies no truly spiritual sense or virtuous taste, yet should approve and condemn the same things that are approved and condemned by a spiritual sense or virtuous taste.  And that moral sense which is natural to mankind, so far as it is disinterested, and not founded in association of ideas, is the same with this natural conscience.

    The sense of moral good and evil, and that disposition to approve virtue and disapprove vice, which men have by natural conscience, is that moral sense so much insisted on in the writings of many of late.  A misunderstanding of this seems to have misled those moralists, who have insisted on a disinterested moral sense, universal in the world of mankind, as an evidence of a disposition to true virtue, consisting in a benevolent temper, naturally implanted in the minds of all men.  Some of the arguments used by these writers, indeed prove that there is a moral sense or taste, universal among men, distinct from what arises from self-love.  Though I humbly conceive there is some confusion in their discourses on the subject, and not a proper distinction observed in the instances of men's approbation of virtue which they produce.  Some of which are not to their purpose, being instances of that approbation of virtue which arises from self-love.  But other instances prove, that there is a moral taste, or sense of moral good and evil, natural to all, which do not properly arise from self-love.  Yet I conceive there are no instances of this kind which may not be referred to natural conscience, and particularly to that which I have observed to be primary in the approbation of natural conscience, viz. a sense of desert, and approbation of that natural agreement there is, in manner and measure in justice.  But I think it is plain from what has been said, that neither this, nor any thing else wherein consists the sense of moral good and evil which there is in natural conscience, is of the nature of a truly virtuous taste, or determination of mind to relish and delight in the essential beauty of true virtue, arising from a virtuous benevolence of heart.

[* * * * *]

    [***]  Approbation of conscience is the more readily mistaken for a holy virtuous approbation, because by the wise constitution of the great Governor of the world, when conscience is well informed and thoroughly awakened, it agrees with him fully and exactly as to the object approved, though not as to the ground and reason of approving.  It approves all virtue, and condemns all vice.  It approves true virtue and indeed approves nothing that is against it, or that falls short of it; as was shewn before.  Natural conscience is implanted in all mankind, to be as it were in God's stead, as an internal judge or rule, whereby to distinguish right and wrong.

[* * * * *]

    [...]  The present state of the world is so constituted by the wisdom and goodness of its supreme Ruler, that these natural principles, for the most part, tend to the good of mankind.  So do natural pity, gratitude, parental affection, & c.  Herein they agree with the tendency of general benevolence, which seeks and tends to the general good.  [***]

[* * * * *]

    These things may help us to understand why that spiritual and divine sense, by which those who are truly virtuous and holy perceive the excellency of true virtue, is in the sacred scriptures called by the name of light, knowledge, understanding, & c.  If this divine sense were a thing arbitrarily given, without any foundation in the nature of things, it would not properly be called by such names.  For if there were no correspondence or agreement in such a sense, with the nature of things, any more than there would have been in a contrary sense, the idea we obtain by this spiritual sense could in no respect be said to be a knowledge or perception of any thing besides what was in our own minds.  For this idea would be no representation of any thing without.  But since it is agreeable, in the respects abovementioned, to the nature of things; and especially since it is the representation of the moral perfection and excellency of the divine Being; hereby we have a perception of that moral excellency, of which we could have no true idea without it.  And hereby persons have that true knowledge of God, which greatly enlightens the mind in the knowledge of divine things in general, and which, as might be shewn if it were necessary to the main purpose of this discourse, in many respects assists persons to a right understanding of things in general; viz. to see the nature and truth of them, in their proper evidence.  Whereas, the want of this spiritual sense, and the prevalence of those dispositions which are contrary to it, tends to darken and distract the mind, and dreadfully to delude and confound men's understandings.

    Nor can that moral sense common to mankind, which there is in natural conscience, be truly said to be no more than a sentiment, arbitrarily given by the Creator, without any relation to the necessary nature of things: but rather this is established in agreement with the nature of things; so established, as no sense of mind that can be supposed of a contrary nature and tendency could be.  This will appear by these two things:

    1.  This moral sense--if the understanding be well informed, exercised at liberty, and in an extensive manner, without being restrained to a private sphere--approves the very same things which a spiritual and divine sense approves, and those things only; though not on the same grounds, nor with the same kind of approbation.  Therefore, as that divine sense is agreeable to the necessary nature of things, as already shewn, so this inferior moral sense, being so far correspondent to that must also so far agree with the nature of things.

    2.  It has been shewn, that this moral sense consists in approving the uniformity and natural agreement there is between one thing and another.  So that, by the supposition, it is agreeable to the nature of things.  For therein it consists, viz. a disposition of mind to consent to or like, the agreement of the nature of things, or the agreement of the nature and form of one thing with another.  And certainly, such a temper of mind is more agreeable to the nature of things than an opposite temper.

    The use of language is to express our SENTIMENTS, or ideas, to each other; so that those terms by which things of a moral nature are signified, express those moral sentiments which are common to mankind.  Therefore, that MORAL SENSE which in its natural conscience, chiefly governs the use of language, and is the mind's rule of language in these matters.   It is indeed the general natural rule which God has given to all men, whereby to judge of moral good and evil.  By such words, right and wrong, good and evil, when used in a moral sense, is meant in common speech, that which deserves praise or blame, respect or resentment; and mankind in general have a sense of desert, by this natural moral sense.

    Therefore here is a question which may deserve to be considered: Seeing sentiment is the rule of language, as to what is called good and evil, worthy and unworthy; and it is apparent that sentiment, at least as to many particulars, is different in different persons, especially in different nations--that being thought to deserve praise by one, which by others is thought to be worthy of blame--how therefore can virtue and vice be any other than arbitrary; not at all determined by the nature of things, but by the sentiments of men with relation to the nature of things?

    In order to the answering of this question with clearness, it may be divided into two: viz. Whether men's sentiments of moral good and evil are casual and accidental?  And, whether their way of using words in what they call good and evil, is not arbitrary, without respect to any common sentiment conformed to the nature of things?

    As to the first I would observe that the general disposition or sense of mind, exercised in a sense of desert of esteem or resentment, may be the same in all: though as to particular objects and occasions with regard to which it is exercised, it may be very various in different men or bodies of men, through the partiality or error that may attend the view or attention of the mind.  In all a notion of desert of love or resentment, may consist in the same thing in general--a suitableness, or natural uniformity and agreement between the affections and acts of the agent, and the affection and treatment of others some way concerned--and yet occasions and objects through a variety of apprehensions about them, and the various manner in which they are viewed, by reason of the partial attention of the mind, may be extremely various.  Besides, example, custom, education, and association, may contribute to this, in ways innumerable.  But it is needless to enlarge here, since what has been said by others, Mr. HUTCHISON in particular, may abundantly shew, that the differences which are to be found among different persons and nations concerning moral good and evil, are not inconsistent with a general moral sense, common to all mankind.

    Nor, secondly, is the use of the words, good and evil, right and wrong, when used in a moral sense, altogether unfixed and arbitrary, according to the variety of notions, opinions and views, that occasion the forementioned variety of sentiment.  For though the signification of words is determined by particular use, yet that which governs in the use of terms, is general or common use.  And mankind, in what they would signify by terms, are obliged to aim at a consistent use; because it is easily found that the end of language, which is to be a common medium of manifesting ideas and sentiments, cannot be obtained any other way than by a consistent use of words; both that men should be consistent with themselves; and one with another, in the use of them.  But men cannot call any thing right or wrong, worthy or ill-deserving, consistently, any other way than by calling things so, which truly deserve praise or blame, i.e. things wherein, all things considered, there is most uniformity in connecting with them praise or blame.  There is no other way in which they can use these terms consistently with themselves.  Thus if thieves or traitors may be angry with informers that bring them to justice, and call their behaviour by odious names; yet herein they are inconsistent with themselves; because when they put themselves in the place of those who have injured them, they approve the same things they condemn.  And therefore, such are capable of being convinced, that they apply these odious terms in an abusive manner.  So a nation that prosecutes an ambitious design of universal empire, by subduing other nations with fire and sword, may affix terms that signify the highest degrees of virtue, to the conduct of such as shew the most engaged, stable, resolute spirit in this affair, and do most of this bloody work.  But yet they are capable of being convinced that they use these terms inconsistently, and abuse language in it, and so having their mouths stopped.  And not only will men use such words inconsistently with themselves but also with one another, by using them any otherwise than to signify true merit or ill deserving, as before explained.  For there is no way else wherein men have any notion of good or ill desert, in which mankind in general can agree.  Mankind in general seem to suppose some general standard, or foundation in nature, for an universal consistence in the use of the terms whereby they express moral good and evil; which none can depart from but through error and mistake.  This is evidently supposed in all their disputes about right and wrong; and in all endeavours used to prove that any thing is either good or evil, in a moral sense."

    Therefore, the type of justice (which encompasses true judgment about human rights) that a judge dispenses, fundamentally depends upon the proper functioning of that judge's moral sense.  This is the fundamental consideration in evaluating judicial candidates or nominees: the closeness of fit between their personal morality and God's law, and their attitude of respect or disrespect toward the interests of their Creator.  And those having the spiritual sense (God's revelation of Himself through the written Word and the indwelling Holy Spirit) in addition to natural conscience (if they allow the spiritual sense to operate unfettered, to guide their conduct more than human sin does) can recognize God's interests--including the nature of His creation--more perfectly than men who have only natural conscience to guide them.  Therefore, respect for human rights is--and always should be--a product of Christian civilization.  Only adherence to God's law can adequately safeguard American--as well as global--human rights.

For further reading:

Christians Make the Best Judges

Programming the Judicial Machines (Part 1)

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