I want to believe—and so do you—in a complete,

transcendent, and immanent set of propositions about

right and wrong, findable rules that authoritatively and

unambiguously direct us how to live righteously. I also

want to believe—and so do you—in no such thing, but

rather that we are wholly free, not only to choose for

ourselves what we ought to do, but to decide for ourselves,

individually and as a species, what we ought to be. What

we want, Heaven help us, is simultaneously to be perfectly

ruled and perfectly free, that is, at the same time to

discover the right and the good and to create it.1

So opens Arthur Leff’s attack on the need for God in ethics and Law.

The thrust of his thesis is there can be no unevaluated evaluator or

unjudged judge. He does not spend anytime on going into why he

believes that God does not exist even though he knows that the best

establishment for ethics is God.

Leff wants to eliminate any need for God in the establishment of

legal systems and goes to great lengths to try and establish the basis

of law without any one person having the ultimate “say so.” His

opening statement, in my opinion, is right on the money. We all, at

one time or another, wanted to know what it is we are supposed to do

and be. We wanted to know that there is meaning and purpose in this

existence in which we are placed. That being said, we all, at one time 1 Arthur Leff, “Unspeakable Ethics, Unnatural Law,” The Duke Law Journal no.6 (December 1979): 1229.

or another, also wanted to decide for ourselves what we want to do

and be. We do not want to feel as if we are not in control of our own

destiny.

The telling statement is the final phrase in his opening

paragraph, “to discover what is right and good and to create it.” Leff

accurately points out that from the very beginning (i.e. Adam and Eve)

man has wanted to put himself in the place of God. But this is also the

great trap of ethics without God. When God is removed from the

picture, the authority falls to mankind to determine what is right and

good.

Let us examine to ways that Leff suggests that this can be done.

Leff calls the first “Descriptivism.” This is a theory of law says that

norms are just followed and that laws are a fact. However, it is not

necessary to point out whose laws these happen to be or how they

came into existence. But what is needed is power to enforce the laws

themselves. It follows then that whomever has the power to enforce

their will upon the people has the ability to make law. Leff says this:

You can say if you wish that the law is “the command of

the sovereign,” but that is only to say that law is the result

of that of which it is the result. If law is defined as the

command of the sovereign, then the sovereign is defined

as whatever it is the commands of which are obeyed.2

2 Leff, 1234.

A descriptivist would say that any society has its own laws and those

laws are dictated by the ability of an enforcer to enforce them. A

sovereign then should be able to enforce the law as well as any other

sovereign. So it follows that it does not matter who is in charge just as

long as someone is in control. Not only that but Leff goes on:

The term “the law” describes not good behavior or right

behavior, but behavior. It is not whatever is is right, but

that whatever is is as right as anything else that might be.3

The sovereign can define any behavior that he/she deems fit. The

basis for law is the personal feelings of the “sovereign” and the ability

to enforce and impress these beliefs on others.

A practical example is the federal government. We have granted

them the right to rule us and determine the laws to which the nation

will adhere. The republic is the sovereign and the police force is the

enforcing power of that sovereign. The state (or in some cases an

individual) in essence replaces God. Leff points out that the flaw of

this system is that a person or people who determine the “oughts” that

we must follow replace God. Another difficulty that he does not touch

upon is the enforcement of the law. Not every law is enforced equally.

For example, the speed limits on our nation’s roads are not always

enforced to the letter of the law. If the speed of traffic is limited to

55mph, traffic generally travels at 65mph (in the Baltimore-

Washington area). So the power that is appointed to enforce the law 3 Leff, 1234.

enforces what it sees as reasonable. The laws are therefore not

absolute from the sovereign but rather rely on the “comfort level” of

the enforcement agency charged with forcing the public to follow the

law. So, not only are the laws whatever the sovereign wants them to

be but the enforcement of those same laws is variable based on what

the “power” is comfortable with enforcing. Using the example above,

on police officer might not pull a driver over for exceeding the speed

limit by 10mph while another officer on the same stretch of road will

give the driver a ticket.

Leff also argues that the primary weakness of the Descriptivist

position is that “it ‘validates’ every legal system equally.” This has

been mentioned above but is two or more sovereigns have equal

power but different “oughts” to be followed, all the legal systems are

valid and none is absolute outside the power of the sovereign. This

situation is unacceptable and leads to the next logical choice of legal

systems, which Leff calls Personalism.

At its heart, Personalism says that everyone is his or her own

God.

Everyone can declare what ought to be for himself, and no

one can legitimately criticize anyone else’s values—what

they are or how they came to be—because everyone has

equal ethical dignity. In this approach everything that was

true of God’s evaluations is true of each person’s

evaluations. Each individual’s normative statements are,

for him, performative utterances: what is said to be bad or

good, wrong or right, is just that for each person, solely by

reason of its having been uttered. In the absence of a

supernatural validator, what could be more “natural” than

that?4

There is the clearest statement of “relativism” that I have ever seen.

Leff continues, pointing the his view of the problem with this position:

Alas, there is a problem: who validates the rules for

interactions when there is a multiplicity of Gods, all of

identical “rank?” The whole point of God, after all, is that

there is none like Him5

Although the wording of his objection to personalism is somewhat

irreverent, Leff correctly points out that there is none like God.

Personalism says that we are all God and therefore all alike.

Again we run into an enforcement problem. We are clearly not like

God because we do not have infinite power and personalism is only

effective as far as I am able to say that I am right. That power ends as

soon as I come into contact with another person who has different

oughts from me. Neither of us can speak to the other’s laws that we

have made for ourselves:

4 Leff, 1235.5 Leff, 1235.

The personalist has one hell of a problem: who ought to

give way? Note that this is not the same question as who

will give way. Picture two of these monstrous monads

simultaneously coming upon something that they both

want (and that, by the way, they are by definition equally

“right” to want). One of them shoulders the other aside

and appropriates the object, or maybe he just gets there

first.6

This is the ultimate problem with personalism and relativism alike. We

would not be able to speak to each other. Everyone would be “right”

and whatever the outcome of the above confrontation, every result

would be “right.” This is the great trap of universalism. On the surface

it sounds as if everybody’s problems would be solved. All religions and

laws would be equally valid. There would be no need for conflict

because everyone should understand everyone has an equal “right” to

law, belief, and faith. If everyone remained:

…the ethical equivalent of the atoms of Lucretius, raining

down from…noplace, running immovably parallel, eternally

untouching and untouchable, there is of course, no

problem.7

This is just not the case in reality. Eventually someone is going to

want to be “it.” Everyone has their own opinion but that does not

6 Leff, 1236.7 Leff, 1235.

make their opinion “right” just because they speak it. What’s-right-for-

you-is-not-right-for-me just does not stand up under any kind of

scrutiny.

An example for this comes from the movie “Rope” directed by

Alfred Hitchcock. In it, the characters of Philip and Brandon murder

their friend David. Philip and in particular Brandon had been

influenced by their college professor Rupert Candall. Rupert had put

forth the hypothesis that there are basically two kinds of people, those

that have meaning and contribute to society and those who are

meaningless and not worth anything. He believed that it was ethical

and reasonable to murder (that is, remove from society) a person who

was not contributing meaningfully to society. He impressed this belief

on his students Philip and Brandon.

As the movie progresses Rupert’s beliefs begin to change. He

eventually confronts the two boys about what they have done.

Brandon says that he has only brought about what the professor had

taught in class. There was truly nothing wrong with what he did. The

professor asks Brandon what right he had to decide whether or not

David should live or die. In a world where everyone can live and

believe as they see fit, anything goes. There essentially is no law

because everyone determines his or her own law. Anarchy rules the

day and chaos rules the night. No one can speak against murder if the

person with whom they are conversing believes that murder is “right”

and “good.” If there are no norms that rule the land then there is no

rule at all.

Another consequence of Personalism is the changeableness of

law. A person may change the “oughts” they in which they believe.

Again the result is no norms only what is convenient for now, for the

moment.

What are we left with? If we take God out of the picture for

ethics, it is left up to us to fill in the gap. Descriptivism does not work

and Personalism leaves us with 6+ Billion different little gods running

around the planet determining what is right and good for themselves.

Leff suggests the Constitution of the United States as a test case

for an ethical system that has ultimate, unchangeable, normative

power. Basically, God is still being replaced but in this case as

opposed to those above, He is being replaced by something that is “set

in stone.” The Constitution establishes the government of the United

States. It is the ultimate evaluator in our political system. But Leff

states:

I would suggest the Constitution, and many of our legal

problems with it, can be illuminated by the foregoing

analysis. None of the problems can, as you might have

guessed, be solved that way, but that is the whole point:

all of our problems of constitutional interpretation arise

because it is most likely impossible to write a constitution,

or create one by interpretation, that does not

simultaneously invoke more than one theory as to where

ultimate, unchallengeable normative power is to be

placed.8

We can already see where he is going. “We the people,” are the

authority but Leff says that it is somewhat ambiguous as to whether

this is the “the people” as a whole, that is society, or each individual

person that make up the whole. As the government is formed today

we rely (ultimately) on nine people to make the judgments as to what

the Constitution actually means to this nation. But this is not

unchangeable. Every so often a position needs to be filled on the

Supreme Court that alters how that court interprets the law and the

Constitution of the United States.

Here is an example. During the American Civil War, President

Lincoln passed the first income tax this nation had seen. This was

done to pay the rising cost of the war and to relieve some of the war

debt already built up from the conflict. This income tax was later

deemed unconstitutional. That is, the courts decided that the

Constitution said that an income tax could not be levied by the Federal

government on the people. However, about 70 years later President

Roosevelt was able to use an income tax to help the funding to

prosecute World War II. This time the courts did not challenge the

8 Leff, 1245.

ability of the Executive and Legislative branches to levy such a tax.

The courts changed and as a resulted so did the ruling.

Secondly, the Constitution can only wield power as long as “the

people” will accept it as rule of life in this country:

As long as the Constitution is accepted, or at least not

overthrown, it successfully functions as a God would in a

valid ethical system: its restrictions and accommodations

govern. They could be other than they are, but they are

what they are, and that is that. There will be, as with all

divine pronouncements, a continuous controversy over

what God says, but whatever the practical importance of

the power to determine those questions, they are

theoretically unthreatening.9

“Theoretically unthreatening” is still not as comfortable as I would like

to be. Constitutional questions seem to arise at a rather alarming rate

these days. We have gone from a time when the Supreme Court could

spend months examining an issue to now where lawyers are only given

15-30 minutes to present their cases before the court because there

are so many questions that need to be answered. And what is worse,

the Court in reality leans more on its political views rather than on the

Constitution itself to decide these issues. Ultimately, we are relying on

human beings to make our laws and to make sure that those laws are

9 Leff, 1247.

good and right for everyone and to enforce them equally in all areas of

the country.

Leff closes his paper this way:

The point is, one must be arbitrary in locating the

ultimately, unchallengeable arbiter of evaluations, if the

two specified by the applicable God, in this instance the

Constitution, do not in fact agree. To put it concisely, if the

applicable God is going to be incoherent, we really have no

choice but to be arbitrary. All I can say is this: it looks as if

we are all we have. Given what we know about ourselves

and each other, this is an extraordinarily unappetizing

prospect; looking around the world, it appears that if all

men are brothers, the ruling model is Cain and Abel.

Neither reason, nor love, nor ever terror, seem to have

worked to make us “good,” and worse than that, there is

no reason why anything should. Only if ethics were

something unspeakable by us, could law be unnatural, and

therefore unchallengeable. As things now stand,

everything is up for grabs. Nevertheless:

Napalming babies is bad.

Starving the poor is wicked.

Buying and selling each other is depraved.

Those who stood up to and died resisting Hitler, Stalin,

Amin, and Pol Pot—and General Custer too—have earned

salvation. Those who acquiesced deserve to be damned.

There is in the world such a thing as evil.

[All together now:] Sez who?

God help us.10

I do not know what drove Leff over the “cliff of despair” but it is clear

that a world without the Creator God was something that he did not

want to think about. This paper has examined some ethical systems

that people have tried to establish (using Arthur Leff’s paper as a

framework) without God. It seems to me that if someone is seriously

examining the issue, then a system without God is impossible. Leff too

knows that such a system is impossible. From the beginning of the

paper he knows that God must exist. At the end, even though he is an

atheist, he knows without God there is no hope of achieving any ethical

standards to which we all must adhere.

Is this the great trap of modernism? I would be inclined to say,

yes. When we throw off the “shackles” of the need for God, we are

then left to our own devices. If God is not in charge then it has to be

us. As Leff points out, this is a terrible model for justice. Instead of an

absolute authority that will judge us according to His absolute law, we

are left to judge each other and to try and enforce standards that,

without God, we have no right to enforce. If He does not exist, why 10 Leff, 1249.

should we care about right and wrong? What is the point? Existence

without God is “an extraordinarily unappetizing prospect.” Leff points

directly to the trap of modernism/post-modernism in “the exultant

‘We’re free of God’ and the despairing ‘Oh God, we’re free.11’”

Even Paul Kurtz’s article on faith apart from God says the

following:

Every civilized community, whether religious or secular,

recognizes virtually all of what I call the “common moral

decencies”: We ought to tell the truth, keep promises, be

honest, kind, dependable, and compassionate; we ought to

be just and tolerant and, whenever possible negotiate our

differences peacefully.12

The question then becomes, “Why should we keep these ‘oughts’ if

ultimately no one is going to hold us accountable? Where do you get

these “common moral decencies? If your parents taught them to you,

where did they get them? Leff would say that even though you have

these oughts, you really have no right to force them on others because

they can determine their own oughts. This is just a slightly shaded

personalist view that just leads to an every-man-for-himself attitude.

The Christian, however, has hope. We know that we are

accountable to God. We know His law. We know that He will not

change his standards by which we must live. We know that He will

11 Leff, 1233.12 Paul Kurtz, “The Common Moral Decencies Don’t Depend on Faith,” Free Inquiry, Spring 1996, 5,7.

judge justly and absolutely. We also know we are accountable not just

for the letter of His law but also for the spirit of the law. This law is

unspoken by us; it is supernatural, and unchallengeable. God’s law is

spoken by Him and is apparent to everyone who has ever existed on

this earth. Romans chapter 1 tells us that He has made this clear to us

through His illuming our hearts or through His works of creation.

Leff was so sure that God did not exist that even his conclusion

that there is evil in the world could not bring him to accept God’s

existence. The trap had swallowed him whole and even the realization

of the necessity of an unjudged judge apart from us failed to bring him

back. My heart goes out to him because Leff has since passed away.

He has fallen into the hands of the God who is the only being capable

of judging the world He created.

Since I can only read what Arthur Leff wrote and has left behind, I

cannot truly understand what it was that drove him into the despair of

modernism. But, I also know from what I have read of his, in his heart

of hearts, he knew God exists. Even the first few pages of this article

he hit it right on the head:

If the evaluation is to be beyond question, then the

evaluator and it evaluative processes must be similarly

insulated. If it is to fulfill its role, the evaluator must be the

unjudged judge, the unruled legislator, the premise maker

who rests on no premises, the uncreated creator of values.

Now, what would you call such a thing if it existed? You

would call it Him.13

Fortunately, He does exist, and He does hold us accountable, He is

transcendent and immanent. He is the Sovereign Lord who does not

need our approval to exist and will judge us, regardless of our belief in

Him, according to His laws. And why should we follow His law?

We should because He is.

13 Leff, 1230.

Bibliography

Johnson, Phillip E. “Nihilism and the End of Law.” First Things, March 1993, 19-25.

Kurtz, Paul. “The Common Moral Decencies Don’t Depend on Faith,” Free Inquiry, Spring 1996, 5,7.

Leff, Arthur. “Unspeakable Ethics, Unnatural Law,” The Duke Law Journal no.6 (December 1979): 1229-1249.