The Rule of Law and the Demands of Justice: Ahmaud Arbery, Breonna Taylor, and the Questions That Must Be Answered

The rule of law is a major issue in headlines these days—and the importance of the headlines should have our full attention.

The rule of law means the rule of law and laws, rather than the rule of an individual, an aristocracy, or a despot. Without the rule of law, society will succumb either to the terror of a tyrant or the chaos of anarchy. From a biblical worldview, tyranny and anarchy are bipolar disasters for humanity.

The rule of law stands between tyranny and anarchy because it shields people from dictatorial claims made by any one individual—no political nor human ruler can usurp the laws that govern a society. Christians have a deep investment in the rule of law because Christians understand that the law exists as an extension of God’s own character. God created the cosmos and embedded the knowledge of himself and the substance of his law in the entire created order. Thus, the law is pre-political. The responsibility of the political order is to acknowledge the fundamental moral law and then to adopt and enforce the laws, statutes, and policies that flesh out the rule of law.

The rule of law is represented by a regime of laws. Behind those laws, however, stands the law that is imprinted on the human heart—and that law is a revelation of God’s own character and is the standard by which human laws must adhere. Where you find the rule of law, you find a flourishing society in which the entire community is bound by a mutual commitment to order. The rule of law is a remarkable achievement that all too rarely emerges in human history. The United States and much of Western Europe aspire to the rule of law and often have achieved it. Our civilizational order depends on it.

You do not have to look far to see where the rule of law is nonexistent, and tyrants rule the day, or powerful oligarchs defy the law, or where roving bands of militia impose their own arbitrary law.

The rule of law has theological roots. Samuel Rutherford, a towering Presbyterian, wrote a great work published in 1644 titled Lex Rex: The Law and the Prince. As a title, Lex Rex translates into, “The law is king,” which was treasonous language in 1644. Indeed, the monarch of England at that time, King Charles I, asserted the absolute divine right of kings over his people—the law was subservient to the king. Rutherford’s main concern was the attempt of Charles I to claim absolute rule in Scotland.

Lex Rex provided a fundamentally different way of thinking about the rule of law, and it did so by making a fundamentally biblical argument. In Question 18 of the book, Rutherford asked, “What is the law of the king and his power?” The answer he provided began with 1 Samuel 8:11: “This will be the manner of the king who shall reign over you.” The king, according to Rutherford, has no divine right to reign as a tyrant, but has a responsibility to observe and rule under the supreme authority of God’s law. The king’s authority cannot supersede the authority of God’s law.

In the United States, the rule of law proceeds from our constitutional government. The U.S. Constitution is itself a compact, or a covenant, defining the rule of law, which guarantees the separation of powers, due process, and enumerated rights and responsibilities. Every single American citizen, therefore, bears the mutual obligation to live under the order of the Constitution as the rule of law—and this commitment includes members of Congress, judges, officers, and even the President of the United States.

The demand of the law, moreover, requires that there be no secret laws. You cannot be arrested for something that is not a law on the books. Enforceable laws are those laws duly enacted by a legislature according to the political process. Laws must be accessible and published. There can be no secret courts when it comes to American citizens.

In cases of criminal law, there exists an important legal principle known as mens rea, which is Latin for the intent to do evil. It is legally crucial to distinguish between whether or not someone intended to break the law. Criminal law, moreover, is governed by three principles before someone can be arrested, namely, that the arrest must be publicly promulgated, equally enforced, and independently adjudicated.

Why is it important to note all of these issues about the law? Why bring up a man who wrote a book in 1644? What possible significance could these ideas have in May of 2020?

On last Thursday night in Georgia, two men were charged with felony murder. As the Wall Street Journal reported, “Two white men have been arrested and charged with murder and aggravated assault in the fatal shooting of Ahmaud Arbery, a 25-year-old black man, in southern Georgia.

The Georgia Bureau of Investigation took Gregory McMichael, 64, and his son, Travis McMichael, 34, into custody and they were arrested on charges of murder and aggravated assault. The arrests came after a video showing the February 23 encounter between the two men and Mr. Arbery circulated on social media and exploded in the nation’s consciousness. The father and son had said that they suspected that Mr. Arbery might be a burglar, in light of reports of recent property crimes. They accosted him near Brunswick, Georgia and eventually shot and killed him.

Once the video had gone viral, nation-wide calls for justice erupted—and rightfully so.

Many questions come to the fore, namely, why was a young black-man who was jogging shot by two white men? Indeed, a CNN article ran a story with a headline in the form of a question: “Was Ahmaud Arbery killed for jogging while black?” Why did this come to pass and why did it take seventy-four days for an arrest?

This tragic case reminds us of the precious nature of the rule of law and just how badly events can unfold in a society when its people fail to abide by the law.

The reason the arrests took so long was that the case went through three different district attorneys. It emerged that at least one of the DAs in question had some personal knowledge with one of the suspects who was eventually arrested. The father served as some kind of an investigator with other law enforcement officers.

Another issue, however, erupted after the release of a video taken by one of the witnesses who captured the altercation between Arbery and the McMichaels. The video exerted enormous pressure not only on law enforcement but the prosecutorial powers in Southeast Georgia.

Many questions have emerged and demand an answer. Why did it take so long for an arrest? Why did Gregory and Travis McMichael stop, much less, shoot Ahmaud Arbery? Why did it take the catalyst of public pressure after the release of the video—which also has to be explained—before arrests were made?

These are massive questions and we may not get an answer from Georgia. That reality came on Sunday when Georgia Attorney General Chris Carr called upon the United States Department of Justice to investigate the entire process. He did exactly the right thing.

When it comes to the rule of law, several factors must be considered. For starters, why was an unarmed African-American who was jogging through the neighborhood shot and killed? The video showed him looking at a construction site but doing nothing at the site that amounted to a crime. Then, according to the McMichaels, some burglaries had taken place in the area and they tried to detain Mr. Arbery because they believed he was a suspect—they attempted to place him under a “citizen’s arrest” and hold him for the authorities to question.

What is a “citizen’s arrest”? In a nation under the rule of law, some power exists for individual citizens who are not law enforcement to arrest or detain someone until the police arrive. There are severe limitations on this power, however. First, in most cases there must be a serious crime in process. Second, the actions of citizens must not start a confrontation that would lead to violence. In many jurisdictions, the rule of law allows for a citizen’s arrest so long as these prerequisites are present.

In this specific case, the McMichaels did not see Ahmaud Arbery commit a crime and they most certainly started a confrontation that led to the fatal shooting of an unarmed citizen. In the United States, moreover, there are few allowances for individual citizens to carry out a citizen’s arrest that includes the use of deadly force.

This raises another dimension, however, that has come out in this case, namely, self-defense. Michael Moore, a former United States Attorney in Macon, Georgia, said that under Georgia code, a citizen can use force if they fear for their life, but they cannot create a confrontation themselves and then claim self-defense after harming someone, especially if they did not witness a crime taking place.

Indeed, one of the most important principles of the rule of law is rightful authority. If someone makes an arrest, that person must have arresting power. Police officers, duly authorized and acting within the law, have rightful authority – not two men in a pickup truck who initiate a deadly confrontation simply because they decided that someone might look like a criminal.

Another dimension arises from this case as well: race. Was race an issue? It’s hard to argue that it wasn’t. That is certainly the case being made by Ahmaud Arbery’s parents and family members. Indeed, there is a national outcry against what appears to be a racially motivated incident.

Given the severity and notoriety of this issue, the Georgia attorney general made the right decision by calling for the United States Department of Justice to conduct an independent investigation. The Department of Justice is uniquely equipped to get to the bottom of these issues. Indeed, the rule of law demands this kind of action. It was Martin Luther King Jr. who said that “justice delayed is justice denied.” By calling upon the federal government to investigate the racial issues surrounding this case, the full legal system is being utilized—the authorities are engaging the proper legal channels in the pursuit of justice.

Of course, this case comes against the backdrop of American history—a history where young black men have often suffered unlawful detention and lynching. Any honest person looking at American history must concede this pattern and blight upon the nation’s history. Given that history, it is all the more incumbent upon the system of justice to ascertain the truth and to make sure that justice is done.

For Christians, this case raises an important pastoral concern: the role of grief. We grieve with this community in Georgia, especially the two parents who will never see their son. Regardless of any other consideration, our prayers are not only for justice, but also with this family and with the community.

And not only this family in Georgia. A family in Kentucky is also grieving and demanding answers. Breonna Taylor, a 26-year-old EMT who hoped to become a nurse was shot eight times and killed by Louisville police on March 13 in what police described as executing a drug warrant. Witnesses claim that the police did not identify themselves sufficiently in the “no knock” raid on the apartment, which came after midnight. A man with Taylor shot at police, who returned fire. At least twenty shots were fired, according to reports, and Taylor was killed. Louisville police officials indicated that the action at the location where Taylor was killed was part of a larger investigation into local drug trafficking.

Taylor’s family has initiated a lawsuit against Louisville’s police department alleging “wrongful death, excessive force, and gross negligence.”

Clearly, there are huge questions here that demand answers. Christians should be at the forefront of demanding those answers, while affirming that the right way to get these answers is to respect the rule of law that binds both law enforcement officials and American citizens. Every human life is precious, and justice is a clear biblical mandate.

I have lived in Louisville for almost forty years. Every encounter I have ever had with the Louisville Metro Police Department has been helpful. I count many officers as friends, and some have been students at the seminary. I know many as fellow Christians, who see their police work as an extension of their Christian commitment. I have no doubt that the vast majority of officers serve with honor. I also know that in a fallen world no police department (or seminary) is free from the effects of sin. I also know many fellow Christians in this city, particularly in predominately African-American neighborhoods, who are law-abiding citizens and faithful believers, but who are afraid when they see blue lights behind them.

So, what to do? Investigate, and follow the evidence to a proper conclusion. Demand the right actions now, and then wait for rightful authorities to conduct an honest and comprehensive investigation. Make the results of that investigation fully known and disclosed, and then pursue justice. Once again recognize that local officials are doing the right thing by asking for federal oversight of the investigation to make sure that justice is done. Kentucky Governor Andy Beshear and local officials have called for oversight by the United States Attorney Russell Coleman. When the United States attorney is involved, the United States Department of Justice is involved. Similarly, Kentucky Attorney General Daniel Cameron is expected conduct is own investigation.

The rule of law is not perfect, but it is our best chance to see the right thing done and human dignity affirmed. All this makes us long for a kingdom ruled by perfect righteousness, doesn’t it?

[Note: This commentary is based on the Monday, May 11, 2020 edition of ‘The Briefing.’ Significant material has been added based upon subsequent developments.]