Friday, October 16, 2009



In many essays over the last year, I have paraphrased Martin Luther's argument that the law has power only over the body and property. See, e.g., On Governmental Authority (1523) at p. 23: "The temporal government has laws which extend no further than to life and property and external affairs on earth[.]" Luther draws a distinction between "worldly authority" and "divine authority." He says that the "world is God's enemy" and that a wise prince is a "mighty rare bird." Id. at pp. 60-61. Yet at the same time, he asserts that worldly authority fulfills God's will because it targets "wickedness" and protects meek Christians from violence. Thus, while worldly authority may be crass and unappetizing, it performs a "Christian" function by restraining criminals from inflicting violence.

These ideas influenced me. They further weakened my already weak respect for the law. I shared Luther's low estimation of the law precisely because of the law's base subject matter. In the final analysis, the law's power derives solely from its ability to impact men's bodies and their property. These are external things. They do not transcend time. They have nothing to do with men's beliefs, conscience or thoughts. They are ephemeral, even petty. Human beings who live only to satisfy their bodies and gain property are superficial creatures. Some might even call them hedonists, or at least fatally selfish. Ironically, however, commercial success depends solely on gaining property, which translates into bodily comfort. Commerce typifies "the world." It scarcely warrants surprise, then, that Luther said "the world is God's enemy."

Despite its superficial powers, the law relishes its authority. And for good reason: Because people value their bodies and property so much in this world, it makes sense that they respect the law. After all, the law can seize their property, injure their bodies and take away the things that give them pleasure. True, it cannot compel them to believe things or have honor. But most people could care less about those things. They just want to use their bodies as they wish and buy things that make them feel good. The law influences them because they know the law can impact their bodies and property. It holds them in check because no one wants to experience bodily pain or discomfort, nor does anyone want to lose property. The law works because people are superficial: They like their bodies and property, so they are afraid to lose them.

But what would happen if someone had utter contempt for his body or property? What possible influence could the law have on a man who did not care whether he suffered pain, or whether he owned anything? In a word, the law would wield no power over such a man. If he truly did not care whether someone imprisoned him, beat him, tortured him or executed him, nothing could possibly restrain him from acting in a way that would give rise to those penalties. In the same way, if he did not care whether he lost everything he possessed, the law would not impress him with garnishments, judgments, forced sales or seizures. Put simply, men who do not value their bodies or property can live beyond the law's influence.

That is not to say that the law would not take action against such a man. If the man committed a crime warranting imprisonment, it would imprison him. But the man would not care. In a strange way, his apathy and indifference to punishment would deny the law's effect. The law proceeds on the assumption that it inflicts suffering on an offender for acting in a way it condemns. It asserts its power by doing something to the offender that the offender does not like, just as a parent asserts its power over a wayward child by spanking him. The offender does not like bodily pain, just as the child does not like spanking. Yet if the offender really does not care whether his body experiences pain, what power does the law really have?

In short, anyone with pure contempt for his own body or property can deny the law's effect. Although the law rarely admits as much, it asserts power over its subjects by doing painful things to their bodies and property. How else would it maintain control if it did not threaten to take things away that people enjoy? How else would it force compliance if it did not threaten physical misery for failure to comply? Laws might seem "objective," but they really depend on basic human aversions to pain. By the same token, laws only function because they assume that people do not want to suffer bodily pain. Like any power institution, they enforce their will by threatening to do something the subject does not want. Legal scholars can talk all they want about "neutral laws." But in the end, laws depend on subjective reactions to threatened consequences. People don't like it when their bodies suffer or when they lose their property. So the law threatens those things in order to enforce its commands.

But what about the man who refuses to care whether he feels pain? The law cannot intimidate him. It cannot "entice" him to act as it commands. This is the purest possible rebellion against the law, for even if the law penalizes his body, he does not feel he is losing anything he wants. A penalty only asserts true power when the violator feels that he is enduring something he does not like. Most people do not like bodily pain. That is why the law generally works when it inflicts physical pain: It forces the subject to feel something he does not like. That is real power.

Not so for the man who accepts pain without caring. The law asserts no power over him. It does not force him to experience anything he does not want. By remaining indifferent to physical pain, he denies the law's power. He does not allow it to make him feel any worse than he would on his own. That is rebellion.

Still, how many people can truly ignore their bodies and their property? Nerve endings do not lie. From a theoretical standpoint, however, the best way to revolt against the law is not to care about your body or your possessions. That is a very hard thing to do in this society.

On the other hand, think about "martyrs" and "noble men." Jesus Christ endured excruciating physical agony but did not let it affect him. So did all the "Christian heroes" who willingly suffered torture and death because they had contempt for their bodies and the "things of this world."

In general, the law strikes fear because it targets the things that most people live for: Bodily comfort and property. But it loses all its power when it punishes people who do not care about those things.

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