Copyright (c) 1997 First Things 78 (December 1997): 26-29.
Conservative Christians have in recent years devoted a good deal of energy and attention to criticizing lawyers and courts. Though some of the criticism seems overheated to me, a lot of it is richly deserved, and I have engaged in my share. But as we criticize, even rightly, I fear we miss something. If this is indeed our Father’s world, we should expect to see signs or hints of His ownership everywhere—small suggestions in surprising places that the Christian story is really true. These signs, when we see them, come as a delight and refreshment to believers, for the Christian story is, above all, very good news. And they present real opportunities to open the eyes of unbelievers, to give them a glimpse of the reality they have heretofore denied. All of which suggests that we should at all times have our own eyes open, that we should watch and listen for the signs.
Our often-justified attacks on the law and the courts may blind us to the fact that there are some delightful hints buried in the law itself—not in grand disputes about the scope of constitutional rights (the sort of thing Christians are most apt to worry about these days), but in some of the most mundane matters the law deals with, in bankruptcy law and the tax code and the law of domestic relations. My goal here is to mention two such hints, phenomena that the legal system perpetually struggles with, and in its struggling suggests how powerful is the Christian account of who we are and what God has done for us. Both phenomena are longstanding; in law as elsewhere there really is nothing new under the sun.
The first example concerns amnesty—the canceling of a conceded legal obligation, not because of any special virtue of the obligor, but because . . . well, therein lies a story.
The most obvious form of legal amnesty is bankruptcy, at the heart of which lies a simple behavioral phenomenon with an interesting twist. The simple phenomenon is this: A debtor who is already in over his head will not pay, whether or not there is a legal mechanism for discharging his debts. There is a kind of Laffer curve of debt: A little bit tends to be repaid; a lot tends to be ignored. (Hence the old saying that if you borrow a little money from a bank, the bank owns you, but if you borrow a lot of money, you own the bank.) This simple phenomenon has a simple explanation: If all or almost all my future income is going to go to my creditors because I am drastically overextended, I have no incentive to work. I’ll starve if I work (because my creditors will take everything) and I’ll starve if I don’t—but at least then I’ll starve without having to work. By demanding everything, my creditors will get nothing, because I am in a hole too deep to dig out of.
Actually, I won’t starve, for if my creditors can demand everything, I won’t wait around for them to do so. I will run and hide; I will avoid confronting my overextension because confronting it would lead to unpleasant consequences. My incentive, in other words, is to respond to my improvidence by adding flight or cheating to it. This, in a nutshell, is the genesis of bankruptcy, and of a variety of other amnesty-like devices in the legal system; statutes of limitation are another familiar example.
Because we are accustomed to legal regimes of this sort, we tend not to notice how odd they are. Bankruptcy laws and statutes of limitation cancel obligations that are rightfully owed. One might think that when a rightful obligation is cancelled, the one who owes it must have done something specially deserving—the cancellation must be a reward of some sort, as when a prisoner serving a life sentence engages in some extraordinary act of heroism or selflessness inside the prison walls and is subsequently freed. Yet what does the bankrupt debtor do to deserve this cancelling of his debt? The answer is bizarre: He gets into a lot of debt. A little bit of debt isn’t cancelled; the debtor must pay up. A lot of debt, on the other hand, can be wiped out by the bankruptcy judge’s order. Mild financial misjudgment yields a tightened belt. Severe improvidence yields forgiveness.
The temptation is to say, it can yield nothing else—the debtor who is in way over his head can’t and won’t pay, so "forgiving" the debt is really just an acknowledgment of reality. But that ignores another option, one the law embraced not so very long ago. In the early years of our nation, debtors who would not or could not pay were imprisoned—a very common rule in many legal regimes going back to ancient times. Recall Jesus’ story in Matthew 5: "You shall not come out of there until you have paid the last cent." Imprisonment for debt is really quite logical: When ordinary civil remedies no longer work, the system should, one might think, resort to more serious punishment. And the truly improvident debtor has often borrowed money he should have known would be beyond his ability to repay. This is akin to theft, and in modern legal systems theft leads to imprisonment. This points up the real choice the law faces when a debtor is in over his head. The law can of course wipe out the debt, as it does. But it can do something else instead: it can wipe out the debtor.
This picture captures something of our condition and God’s options. Adam’s rebellion in the Garden cannot be made right, at least not by him, and its consequences, which begin to dawn on Adam when God calls out to him, are more severe than he wishes to contemplate. So Adam responds not by confronting his sin, but by hiding—first literally, and then, when concealing himself appears not to be working, by trying to deceive and shift the blame: "The woman you sent me . . ."
It’s easy enough to see the analogy: Before the Father we are all quite literally bankrupts, with debts far higher than we can pay, without the courage to confront the consequences save in response to the Father’s undeserved and complete mercy. We need redemption—a financial term, not just a theological one—that is, we need to have our creditors bought off. But the Father is himself the sole creditor, and (though we might wish to convince ourselves otherwise) His options are not determined by our needs. He has two choices, not just one. And to understand the nature of His mercy, we need to understand the nature of the other choice—a point we are quick to forget, as we prefer to think that we are like the heroic prisoner receiving a well-earned reward rather than the stupidly improvident debtor. Wiping out the debt is not the only possibility. Wiping out the debtor would, indeed, make more sense. Amazing grace, how sweet the sound, that saved a bankrupt fool like me.
But the analogy goes further, and here lies the twist. Bankruptcy law worries a great deal about another problem than simple inability to pay when the debt tally runs too high. When debtors are in over their heads but not yet hauled into bankruptcy court, they have a tendency to gamble—to take overlarge risks with the resources they have left in an effort to lift themselves out of their deepening hole. The picture is familiar: The bettor in a losing streak tends to wager ever more in a desperate effort to retrieve his losses. Of course, the strategy does not work well. Once in a while the gambler wins big, but more often he succeeds only in piling up losses. Risks have this unpleasant tendency: they materialize. The hole in which the debtor/gambler finds himself only grows bigger through his efforts to climb out of it.
So the irony is even more severe than we thought. Not only does culpable improvidence not breed greater financial responsibility; it breeds yet more culpable improvidence. There is an illusion to heavy debt: the belief that the very sort of behavior that got us into this mess (excessive risk-taking and overconfidence) will, in greater doses, get us out. Foolishness, in this setting, is self-reinforcing.
This captures something about sin, and about us. Most of the time, we think of our sin (when we think of it at all) as static—one more notch in the minus column here, holding the line over there, perhaps a small gain somewhere else. The key to this picture is the unrelatedness of these losses and gains, the absence of any sense that one mistake tends to generate others. A better picture is the crumbling of a dam as a small leak grows into a torrent that obliterates the dam and wipes out everything in its path. Sin is not the drip of an almost-turned-off faucet; it is the process by which the drip becomes a waterfall. It reproduces itself so that wherever we find some, more is sure to follow; the flood is coming, and the river banks will not contain it. Meanwhile, our efforts to recapture lost ground have a natural tendency to lose more ground, because those efforts stem from the very thing that lost the ground in the first place—our belief in our own capability, our confidence that given our obvious cleverness, we will surely pick the right number on the roulette wheel this time, and then everything will be all right. The fact that this confidence has done us only harm escapes us, because we are, most of us, a combination common to the worst bankrupts: cocky and a bit stupid.
And yet, thanks be to God, the debts can still be wiped clean. Bankruptcy relieves even the very foolish debtor who, once insolvent, continues to pile bad debt on bad debt—and if ever a debtor deserves punishment, it is he who, realizing his desperate straits, proceeds to make those straits even more desperate. So too does God forgive even me. The debtor is not wiped out—though that is a thoroughly plausible, indeed the most natural, option. Only the debt is.
The second example of a legal mirror on the Christian story is not isolated in any particular area of law, though one might call it the "tax code problem." Consider the following question: Where, traffic violations aside, do we see the largest volume of lawbreaking by ordinary people? The answer is surely taxes—think of the near-universal fear of an IRS audit which, in theory anyway, should hold no terror for those who obey the rules. Now consider another question: In what sphere of life does the law regulate with the greatest detail—where do legal rules most proliferate? The answer again is tax, where rules have bred more rules until the system is about to collapse under its own weight.
In one sense, this pair of answers seems odd. Law is, to a large extent, about getting people to behave themselves. A natural supposition, then, would go something like this: the more law, the better the behavior.
Yet it doesn’t work that way. When the IRS issues a new revenue ruling, taxpayers and their attorneys immediately begin to seek out ways to evade the ruling, ways to do the thing the ruling prohibits but in a form the ruling does not capture. It is a little like the behavior of a child who, when told to stop throwing his ball in the house, starts to throw a hockey puck instead. (And, as every parent knows, when caught, the child immediately says, "But you said no throwing balls in the house.") One can always solve the problem, temporarily, by punishing the child. But the problem recurs, constantly, both with children (at least mine) and with taxpayers, for both groups are eager to wring every last ounce of flexibility from the rules—to do all they can get away with. Parents’ solution is to train children to seek a different goal, about which more in a moment. The tax code’s solution is to make more rules, to forbid each new clever evasion as it comes up.
In this arms race between taxpayers eager to hold onto as much as they can and tax law eager to stop them, one should bet on the taxpayers—for the same reason the parent cannot win the hockey puck argument, and must therefore seek to change the child’s agenda. Like disobedient children, taxpayers have a great deal of ingenuity, a natural bent for coming up with new and not-yet-forbidden ways of doing the sort of thing the rules seem to be trying to forbid. They also have a taste for doing just that. These talents and inclinations predictably outrun the rulemakers’ ability to define prohibited behavior with precision. The legal system is, to some degree, helpless.
I am, of course, exaggerating. After all, the IRS does manage to collect a lot of taxes. But this picture captures an essential truth about the legal system, one that cuts across a great many areas of law—consider the current flaps about campaign finance and the 1996 campaign. The best-thought-out legal rules can’t seem to get regulated actors to behave the way the law wants them to behave. Rules prohibit, and the rules’ targets maneuver around the prohibition; the rules prohibit more, and the targets maneuver more. Law may not be generating the misbehavior, but it is surprisingly bad at putting a stop to it.
Now ask another pair of questions. Where in ordinary life do we see the largest quantity of the opposite sort of behavior—genuine altruism, behavior that is thoroughly other-regarding? The obvious answer is the family. Sinful as we are, we still manage with some frequency to sacrifice our own welfare for that of our children; spouses (perhaps less frequently) sacrifice for each other; even siblings occasionally (to their parents’ delight and amazement) sacrifice for each other. There is plenty of selfishness and exploitation in families, but then there is plenty of selfishness and exploitation everywhere in life. What separates family life from most of the rest of life is how much unself-conscious unself-interested conduct one sees.
Yet what sphere of ordinary life is least subject to legal regulation? The answer is, once again, families. The law does indeed place limits on how husbands and wives and parents and children interact, but the limits are few, and focus primarily on truly extreme misbehavior. Family law is in this sense the mirror image of tax law: Where taxpayers consult the rules constantly, family members live out their lives ignorant of their legal obligations to one another. Yet where taxpayers invest a great deal of energy in trying to maximize their "take," to evade the rules, family members, at least sometimes, actively seek to promote the interests of other family members without giving a thought to the law’s requirements.
This is a puzzle. If all the IRS’s rules can’t produce even the avoidance of exploitation (the IRS, needless to say, doesn’t try for altruism), how can family law’s light regulatory hand coexist with so much genuine unselfishness—with so much behavior that is not just compliant or nonexploitive, but actually loving? The answer must be that the law has nothing to do with the loving behavior, for it seems most concentrated in the area the law least touches. Where, then, does it come from?
The answer seems clear: Something in our makeup disposes us to a passionate loyalty to kin, and this loyalty pushes us toward treating the interests of family members as, in a real sense, our own. Sociobiologists—a trendy group in universities these days—identify this tendency with the desire to propagate one’s genes; others locate it in the bond infants experience with parents. There is a surfeit of competing explanations, but general agreement on the phenomenon to be explained. On those occasions when I am a good husband or father, I behave as I do because I see my wife’s and my children’s interests as my own—I identify with their welfare. And this is how we train our children, this is how parents avoid the never-ending argument about the definition of rules: We teach them that they must see themselves not as taxpayers trying to hold onto every last penny, but as part of a family, advancing its welfare, not just their own.
The success of this move lies in part in its acknowledgment of who and what we are. Selfishness is not denied; rather, it is turned to virtue, by the simple expedient of altering the meaning of "self." And the alteration works, for whatever its source, there plainly is something inside us that predisposes us to so identify our interests with the interests of our closest kin.
All this offers a nice echo of the Christian account of salvation. We are prone to selfishness and exploitation, as anyone with eyes can see. We are also prone to something else, something less obvious (save to lawyers, who are more prone than anyone else): We think the solution to selfishness and exploitation lies in good rules. Robert Frost famously wrote that good fences make good neighbors, and the line captures a widespread intuition. Fences—boundaries, rules—can turn us from the rapacious creatures we are, unfenced, into the kind of people one would want to live next door to. Good rules, Frost might have said, make good people.
But of course they don’t. Rather, they highlight what bad people we are. There is even a sense in which the rules bring the badness to the surface, as the behavior of all those strategic taxpayers attests.
So law, even very good law, cannot cure us; we will continue to rack up huge debts, and must either be punished or forgiven. Forgiveness, though, isn’t enough; wiping away yesterday’s debt only leaves me free to borrow more tomorrow. The propensity must be changed. And how is the change to happen? By changing our family attachment. The essence of living a good life is not adherence to a good set of rules, but identification of our interests with the interest of the one who truly is good, the one who defines what goodness is—with the Father—by becoming a member of His family. Forgiveness, amazing as it is, isn’t the most amazing part of the Christian story. The truly astonishing point is that through Christ I can become not a redeemed slave—not simply a bankrupt whose debts are discharged—but a son, a member in good standing of the household empowered to advance the household’s welfare.
This adoption is not quite like the adoptions people engage in; it is not just a matter of labels and emotional attachments. God doesn’t simply call me His son and hope I’ll start acting like it. He actually changes my descent (perhaps the sociobiologists are right about how much descent matters); my blood line shifts from the first to the second Adam. I am not told to behave as if I had been born into the family; as Nicodemus learned, I am born into the family.
This divine adoption, this second birth, is not primarily about getting us to behave ourselves. But it is, in truth, the only way to get us to behave ourselves. We live in a culture that exalts Frost’s fences: One of the reasons our law is too much with us is that we see it as the road to a kind of earthly salvation. Perhaps it is no coincidence that we also live in a culture beset by family decline. Our attachment to our many rules and rights may dull our sense of attachment to kin. The law itself tells us, if we have ears to hear, that we are wrong on both counts. Law teaches many things, but the most important thing it teaches is its limits, what it cannot do. Reining in the most egregious sorts of misbehavior is feasible, but producing good behavior is far beyond its capacity. For that, as for so very much else, we need not better fences, but a better family.
William J. Stuntz is Class of 1962 Professor and Horace W. Goldsmith Research Professor at the University of Virginia Law School.