“Necessity knows no law”– so says the political proverb. This points to a true but thorny issue for political practitioners. We believe in perpetual principles of justice; we hold deeply to the rule of law, not the arbitrary will of man. We then set up our clear principles according to justice; we make laws in those principles’ image under which we order our lives.
But then, we are faced with a situation that scrambles our nice system. For example, let’s say that the law requires that employers give their workers Sundays off–but what about EMT or police? Or, let’s say, the law bans theft–what about someone suffering from starvation? Or the statutes say not to commit adultery–however, a kidnapper threatens to kill his captive unless she acquiesces to his lecherous demands. Should a judge and jury convict in such circumstances when the law might clearly stand for punishing these persons? Citizens face such instances as well as political practitioners, especially in a republican form of government. I will never vote for a pro-choice candidate–but what if none but pro-choicers run or the pro-life candidate stands charged with embezzling Christian charities?
In each instance, we may characterize the problem as one of necessity. Persons face choices and, unlike animals, must act. That act involves a choice wherein to adhere strictly to the law involves a hardship, even a contradiction with another rule or principle. This hardship or contradiction, many would claim, requires that they choose contrary to the rule. In other words, it is not so much that necessity knows no law; it seems rather that necessity composes its own law, and then demands that our notions of justice and commitment to the rule of law subsequently submit to it.
What should Christians, themselves citizens of political states, say to these claims? To answer, let us develop a political theology of necessity. This political theology of necessity must develop principles and laws. Thus, it must operate in basic agreement with our pre-existing commitments as Christians. However, it must also include copious amounts of worked examples. In fact, the development of cases, and adequate reasoning about them, might prove as or more important than the principles, since confronting necessity requires that we practice a nuanced political wisdom. It makes the case for the rule of men, not law, because man’s rule can better accommodate the immense complexity of political life. To hold the line for the rule of law, we must show how men can act with appropriate nuance within it.
Peter Martyr Vermigli (1499-1562), the Italian Protestant Reformer, provides a helpful example of how to think through situations of necessity. Vermigli develops his thoughts toward the end of his Loci Communes’ chapter “Of the Law.” His reasoning brings in instances both political and personal, though both hold implications for our life together in political community. The laws he addresses begin with God’s commands, either the Decalogue or those rules emanating by implication from it. He then reasons through situations in which the circumstances present tensions or even contradictions to those who must make some kind of choice.
Vermigli places these situations into three categories. First, there are those which allow us to accommodate all options. These options proved the easiest. Perhaps a ruler has the imperative to spend government funds on national defense and on internal police. Both obey the command to protect the life and goods of our neighbor, and carry out the state’s obligation to correctly wield the sword. Yet what if the state does not possess adequate funds to fully pay for both? In that case, a government might raise taxes to fully supply each. Or it might split the difference, giving as many resources to both goals as permissible.
Although there is a choice to be made in this first category which may have negative consequences (e.g. neither the army or the police have all the funding they could use), the tension between the two choices arises merely from lack of resources rather than any substantial conflict. The real difficulties of choice come in Vermigli’s other two categories. In both, Vermigli notes certain situations, “when two commandments are set forth that are inconsistent with each other” (Of the Law 3.5)[1] This distinction moves us from the tension of competing for scarce resources to the contradiction of contrary laws.
Vermigli’s second category consists of instances in which necessity demands one law receive obedience rather than the other. How, though, could we defend violating any law? Vermigli points to three conditions. The first condition concerns when God makes a direct command contrary to the normal operation of things. Vermigli gives the example that God required of the Israelites their first fruits and sacrifices (Ex. 22:29), only to then command Saul “that all the property of the Amalekites should be utterly destroyed” (1 Sam. 15:3) (3.6). Then, one must obey the direct command even against the general rule. For this law, coming later, is the latest command from God and, rather than general, is given directly to a particular person. I note this one first because it presents the least difficulty to us, since we do not receive such direct divine commands today.
The second condition for determining which law to violate when circumstance brings two laws into contradiction is to first determine which law is the more significant. One might think of the previous example of Sabbath-keeping and EMT workers. In that case, “the one that is judged to be weightier and more compelling should be kept” (3.7). Vermigli goes on to argue that the lesser law, “is not broken because in this instance nothing is done contrary to the will of God.” Importantly, each action, in isolation, accords with God’s will. The choice of the greater over the lesser entails following that will’s higher manifestation.
How do we determine the greater from the lesser law? It seems partly a determination of necessity. If one law’s obedience is in fact a precondition to the continued ability to obey the other, then the former must take precedence. Instead of EMTs, Vermigli gives another, very political Sabbath example: we must respect our neighbors’ safety. In the case of a ruler, this rule entails that he “put up armed defenses of his community” (3.7). Yet that same ruler’s laws may require Sabbath-keeping. What, then, about a Sabbath attack from enemies of the state? Should the soldiers stand by until the Sabbath is over? Noting the example of the Maccabees, Vermigli says, “they held the safety of the state to be greater and more important than the Sabbath ritual [1 Mac. 2:38]” (3.7). Vermigli also mentions the episode in 1 Samuel 21 when David and his men, hungry and on the run, are permitted by Ahimelech the priest to eat the show-bread from the tabernacle (3.7).
What made the actions of the Maccabees and Ahimelech right? Vermigli does not give a full explanation. However, the implication seems to be this: if an enemy conquers your city, you no longer possess the freedom to obey the Sabbath; likewise, if you die of hunger, you can no longer worship God on this earth. In other words, one law needed to be obeyed now so that the persons involved could obey the other law into the future. The city’s safety and the men’s lives present a necessity that prioritizes their law over competing claims. As soon as the necessity is lifted, both can be kept at once.
While necessity is part of the evaluation, another element key to determining when one law holds a higher priority is its intrinsic importance. Vermigli gives the example of God saying that, “I desire mercy, not sacrifice [Hosea 6:6]” (3.7). According to Vermigli, God desires both in a perfect world–the two are linked, in fact, since the sacrifices serve as a picture of God’s mercy to us that we should then show to others. However, God would rather have mercy rather than sacrifice if only one was available. Mercy proves a higher, more important good than the sacrificial ceremony. Again, Vermigli shows but does not explain in detail. Probably, Vermigli saw this choice as right because sacrifice was a picture of which mercy was the substance, a thing-signified of which sacrifice was the sign. Again, in most circumstances, both should be obeyed, but Vermigli gives us tools to consider how to act when faced with these harder situations. Politically, these choices might involve balancing laws against murder and those for self-defense, seeing as both uphold the principle of life; or they might involve protecting the sanctity of contract law, while understanding extenuating circumstances of fraud or coercion.
Vermigli’s third and final category of choice is instances in which one cannot accommodate claims of necessity at all. In these moments, the competing choices both involve sin. Both options would involve disobedience to the law, and a choice must be made to reject two things which go against God’s will and choose a third option–whatever it may be. In these instances both initial options involve sinning, and both are against God’s will, and thus neither could receive approbation.
Vermigli illustrates this point with a non-political example. He writes about the man in Judges 19 who offered his daughter to the men seeking to molest his guest, noting also the similar instance of Lot in Sodom in Genesis. Vermigli acknowledges that some theologians (e.g. St. Ambrose) see these offers as examples of our second category, that is, instances in which one law must be obeyed at the expense of disobedience to another. The rules of hospitality require such an accommodation, they claim. But Vermigli, citing Augustine, rejects this reading. Rather, the story involves committing one sin in order to offset another sin. To stop the sin of men of Gibeah molesting the Levite, the Levite and the owner of the house would desert his duty to protect the concubine and the daughter from the same kind of harm. Vermigli sees the correct choice as doing neither option.
Yet what if harm then came as a result? Vermigli gives the example of a man telling a woman that he will kill himself unless she sleeps with him. The woman, Vermigli says, must say no. She is not guilty of any self-harm he might subsequently commit, any more than Lot or the host in Judges 19 would have been liable for the harm done to their guests. Their sin rests on their shoulders. Vermigli admits that some evils might outweigh others in heinousness. However, he writes, just as Lot had no license to hand his daughters over “nor are we allowed to commit a lesser misdeed to avoid a greater one” (3.8). While, in Vermigli’s second category, we can make a choice between the greater and lesser will of God, we can make no such choice between directly committing a greater or lesser sin. One can see political examples on this score, too. One might be tempted to condone adultery in order to lower abortion rates. Or one might eliminate laws against certain kinds of theft due to worries about police abuse. In both cases, one cannot bargain one sin for another by Vermigli’s view. It not only undermines justice but the very purpose for government, namely the rewarding of good and the punishment of evil. Not everyone agreed with Vermigli on this point. Even his beloved St. Augustine wrote, “Remove prostitution from human affairs and you will pollute all things with lust” (De Ordine 2.4).
With Vermigli’s help, then, we have begun a preliminary sketch of the outlines of a political theology of necessity. Government should of course seek the good and chastise the bad. It should, in other words, do justice and do so by the rule of law. To do so, though, practitioners of politics need a theology of necessity. That includes citizens thinking about voting and officers making and enforcing policy. We all need it because we cannot avoid the circumstances which it addresses. It gives us a means to uphold justice when things get complicated. It presents avenues to affirm the rule of law. Yes, exceptions will occur. But those instances will be rare and it will seek to uphold the highest and most important law as far as possible. This theology certainly requires great wisdom on our part. For it presents few easy answers and only some clear lines. But it comprises a theology grounded in the real world. Necessity does know law and it does know justice, if only we know a political theology to reason about it.
Adam M. Carrington (Ph.D, Baylor University) is an associate professor at Hillsdale College, where he has taught since 2014. He publishes on matters of Constitutional law and political theology. He lives in Hillsdale with his wife and two daughters.