What Might Make Life Better?: On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies
John Witte, Jr.
This essay is drawn from the fourth chapter of Michael Welker and John Witte, Jr.’s recently published book, What Might Make Life Better?: On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Evangelische Verlagsanstalt, 2024).
This volume, the capstone of a multi-volume series, analyzes the powerful normative codes that, for better or worse, shape moral character and ethical education in Europe, the US, and other late modern liberal societies. Drawing on a major interdisciplinary and international study, this volume analyses the shifting dimensions and roles of these normative codes across traditional social spheres of family, religion, law, politics, and markets as well as new social spheres of education, academic research, health care, the media, and the military. Welker and Witte argue that these social systems are essential for building a good life and a good society, but none should dominate the others, and all must work, separately and together, to foster justice, freedom, benevolence, and peace at home and abroad.
In the chapter excerpted here, focusing specifically on “Law and Justice”, John Witte, Jr. summarizes the contents of an earlier edited volume in the series, The Impact of Law on Character Formation: On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Evangelische Verlagsanstalt, 2021). That volume addresses whether, how, and where various kinds of law teach values and shape moral character in late modern liberal societies. Its contributing authors, whose chapters are referenced below, call for state laws that set a basic civil morality of duty for society and for robust freedoms that protect private individuals and private groups to cultivate a higher morality of aspiration.
State Law and Moral Character Formation
In its broadest sense, law consists of all the written and unwritten norms that govern human conduct—moral commandments, family rules, church canons, state statutes, commercial codes, communal customs, local conventions, and many others. All these laws on the books and in action help to shape the morality and character of persons and peoples–by encouraging and directing, prescribing and prohibiting, supporting and facilitating, rewarding and punishing, limiting and nudging their choices and conduct, relationships and institutions.
In premodern societies, these sundry laws overlapped, as they were often enacted and enforced by interwoven religious, political, economic, feudal, and familial authorities . In modern liberal societies, however, the state is a differentiated sphere, and its legal system is formally separated from the internal laws of nonstate associations. While the moral influence of modern state laws is our principal focus in this chapter, it is worth remembering that the internal laws of nonstate associations remain critical sources of moral formation and ethical education for individuals and groups today. A parent’s order to their bickering children—“Stop fighting now!”—carries much more moral weight than the state criminal prohibitions on assault and battery. A church’s rules about worship and liturgy shape religious and moral habits much more than the state’s constitutional guarantees about religious freedom. The conduct codes of schools or workplaces offer far more pervasive moral direction for their members than state laws about education or labor relations. Ideally, in modern liberal societies the laws of the state support, not supplant, the internal laws of nonstate associations. Indeed, these non-state laws are critical bulwarks of liberty and morality against an overreaching state legal system.
All modern liberal states are dedicated to the “rule of law”—to maintaining a Rechtsstaat. Most modern states have written or unwritten constitutions that define the powers and provinces of political authorities and the rights and duties of their political subjects. Most separate the executive, legislative, and judicial powers of government and functions of law, and provide formal constitutional checks and balances against political abuse and legal overreach. Most distinguish public laws (governing officials and citizens), private laws (governing citizens and associations), penal laws (prohibiting crimes), and procedural laws (that allow the state to prosecute crimes and citizens to bring private lawsuits). Most modern legal systems recognize multiple sources and forms of law beyond constitutions: treaties, charters, covenants, concordats, statutes, regulations, cases, customs, conventions, and more. Of increasing importance in the past century have been international laws to deal with global legal issues: human rights violations, war, genocide, terrorism, arms trafficking, refugees, migrants, sex trafficking, disease, hunger, famine, poverty, failed states, political and economic corruption, global climate and environmental challenges, (bio)technological issues, and much more.
Today, modern liberal societies and their members depend upon such state laws to provide basic social order, peace, security, crime control, stable infrastructures, reliable markets, accountable government, peaceful transfers of power, elementary due process, fair judicial tribunals, and fundamental rights protections for individuals and groups. Having this basic legal order in place is a precondition to human survival, let alone moral thriving. Aristotle said this already in his Politics: “Just as man is the best of the animals when completed, when separated from law and adjudication he is the worst of all.” James Madison made this same point two millennia later: “If men were angels, no [law or] government would be necessary. If angels were to govern men, neither external nor internal controls . . . would be necessary. In framing a government which is to be administered by men over men . . . experience has taught mankind the necessity of auxiliary precautions.”
The issue has always been how far these “auxiliary precautions” of state law should go. After all, Western history is littered with grim examples of political tyranny, terrorism, and totalitarianism, with state laws and legal institutions used as sharp and sinister instruments of control, coercion, and brutality. Even in the past century, purportedly modern liberal states have sometimes directed their laws to support slavery, apartheid, genocide, colonialism, persecution, violence, racism, bigotry, intolerance, chauvinism, and many other shameful forms of moral failure and injustice at home and abroad. These proclivities to legal and political abuse have, at minimum, underscored the need for modern liberal societies to limit closely the roles and rules of state law and to protect zealously the rights and liberties of individuals and non-state institutions.
These proclivities have led modern scholars like German philosopher Rüdiger Bittner to challenge the very notion that state law can serve as any kind of moral teacher for modern pluralistic societies. Not only are our modern society’s morals too variant to select one form of morality for coercive legal enforcement by the state, Bittner argues. But the state simply cannot be trusted to do more than maintain the legal minima to keep basic social order. Haven’t we learned anything from the Nazi, Communist, and Fascist regimes of the twentieth century, or the scary new forms of political belligerence on the far right and far left that have broken out on both sides of the Atlantic? We need fewer, not more state laws, Bittner concludes, and those laws should focus only on discharging the core responsibilities of statecraft, not interfering in the moral formation of citizens [chapter of Rüdiger Bittner].
These skeptical views about state power and law are popular today among various libertarians, neo-Anabaptists, and neo-Augustinians (Augustine had famously called for just enough laws to control a “den of robbers”) [chapter of Jean Bethke Elshtain]. Some libertarians today thus call for the end of the modern welfare state, the truncation of government bureaucracy, the decriminalization of all but deeply harmful conduct, and the reprivatization of much of public and private life that state laws have gradually come to govern over the past century. Some Anabaptists and neo-Augustinians, dismayed by what they regard as the growing immorality of modern state laws, have echoed Catholic philosopher Alasdair McIntyre’s proposal for a “Benedict option” that ascetically separates Christian communities as far as possible from the state and its laws. Some legal scholars have called for stronger “faith-based” legal systems that allow religious authorities more autonomy to govern the family, education, charity, inheritance, zoning, labor, policing, and other legal needs of their voluntary faithful without state interference.
Other scholars, like American philosophers Brian Bix and Jean Bethke Elshtain, have warned about the ample “moral slippage” that can occur when the state attempts to legislate and enforce too much morality. They allow that criminal laws, rigorously enforced, might produce better behavior by criminals but rarely better morals, since prison often erodes a convict’s morality. But the more the state tries to assume the role of moral educator in society, these authors argue, the more it threatens the roles and rules of older, often more effective local seats of moral authority like families, churches, neighborhoods, and voluntary associations—and the more it threatens to erode each citizen’s incentive to develop an ethic of “self-help, personal involvement,” and moral investment in their communities. The more we grow accustomed to the state discharging our family’s, our church’s, or our personal moral obligations to God, neighbor, and self—think of the massively disaffected workers in the Soviet Union or state-established churches sitting empty like mausoleums—the more we lose our moral autonomy, agency, capacity, and incentive. Sometimes, too, a new state law enacted for seemingly good reasons of “public health, safety, and morality”—think of stay-at-home or mask mandates in response to COVID—can trigger deliberate disobedience and organized resistance by some citizens, further eroding public and private morality in so doing [chapters of Jean Bethke Elshtain and Brian Bix].
These are wise caveats that underscore the necessarily limited role that state law can play in moral formation and ethical education in modern pluralistic societies with multiple institutions, each with its own moral and legal systems. But we think there is enduring wisdom in ancient Greek philosopher Xenophilos’s remark, echoed by Hegel, that “the best way to educate people is to make them citizens of a city with good laws.” And we think there is enduring wisdom in St. Paul’s teaching [Galatians 3:24], developed anew by American ethicist and jurist Cathleen Kaveny, that “the law was our schoolmaster (paidagōgos) until Christ came” [chapter of Cathleen Kaveny]. Yes, Christ and the spiritual founders and prophets of other religious traditions do provide people of faith with a higher spiritual morality than any state law can or should provide. Even so, the law of the modern state does and can provide people of all faiths or no faith with social stability and ethical education that fosters a kind of baseline “civil morality.” This can be seen in several examples from across modern legal systems.First, the criminal laws of the modern state echo and enforce many traditional moral teachings. Every modern state law has variations on ancient “thou shalt” and “thou shalt not” commands, which they back with criminal sanctions: Do not kill. Do not steal. Do not bear false witness. Do not covet or violate your neighbor’s household. Do not rape, assault, batter, or kidnap your neighbor. Do not commit incest, bestiality, polygamy, and other sex crimes. Nurture your children. Repay your debts. Honor your promises. Respect the authorities. Pay your taxes. Register your properties. Answer your conscriptions. Obey the court’s orders. Modern penal codes in liberal lands are filled with such commandments. They are reminder claims of our basic moral duties, normative guard rails to keep us roughly on course.
Through its published penal codes and public prosecution of offenders, and through the publicity of its punishments and criminal records, the criminal law of the modern state teaches some of the basic values of civil morality. The criminal law system further affirms the moral agency of each rational person, and their duties and rights of moral desert. It communicates the essential duties of all to respect the body, property, interests, and reputation of their neighbors. It commands everyone to honor the legitimate authorities of the state in their administration and enforcement of the law—provided those authorities, too, respect the basic rights and liberties of each defendant. Ideally, state criminal laws also can help to form and reform the character and basic morality of duly convicted criminals—forcing them to confront and ideally confess their guilt, making them pay for their violations of the community’s norms and the victim’s well-being, and rehabilitating them through teaching or reteaching the basic norms of sociability and good citizenship that they must demonstrate to reenter society.
Second, between and beyond these apodictic poles of thou shalt and thou shalt not commands, the modern liberal state often operates with softer and more subtle methods of encouraging and facilitating preferred moral behavior and discouraging or impeding immoral behavior. “Nudging” is what behavioral scientists call this common legal strategy of promoting desirable public and private goods in many areas of life. Particularly in its vast network of regulatory laws, the modern liberal state commends, licenses, and sometimes even pays for or rewards all kinds of morally desirable behavior. Think of getting a license to marry or to open a business, voting or running in a state election, getting a free vaccine or medical procedure, going to college on a state scholarship. In turn, the state imposes taxes or fines or withholds state benefits or opportunities for those who indulge in morally undesirable behavior: think of smoking, not wearing seat belts, dropping out of school, or not paying child support. The theory of nudging stipulates that, over time, the desirable behavior encouraged by the state will become more customary, even natural or reflexive among citizens, and the undesirable behavior will be viewed as aberrant and perhaps even stigmatized.
Third, modern constitutional laws—on the books and in action—foster moral values and ethical education about good government, good citizenship, and good neighborliness. Think of the powerful new European constitutions enacted after World War II—starting with the Basic Law of Germany (1949), with its striking moral and communal premises:
Conscious of their responsibility before God and man. Inspired by their determination to promote world peace as an equal partner in a unified Europe, the German people, in the exercise of their constituent power [declare:] . . . (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.Think of the powerful human rights documents that now govern modern liberal societies—the European Convention on Human Rights (1950), the American Civil Rights Act (1964), the Canadian Charter of Rights and Freedoms (1982), the United Kingdom Human Rights Act (1998), and many others that detail the rights and liberties that all persons and institutions deserve [chapter of Frank Brennan]. Think of the landmark cases in many high courts in Western lands—like Brown v. Board of Education (1954) and Obergefell v. Hodges (2015) in the United States that sought to end racism and homophobia [chapter of James E. Fleming].
Think of constitutional religious freedom guarantees that not only enable individuals to enjoy freedom of conscience and free exercise of religion, but also allow faith communities to incorporate themselves as religious bodies, to govern their own property, polity, and personnel, to set their own doctrine, liturgy, and discipline, to gather for worship, education, and catechesis, to build and operate schools, seminaries, charities, hospitals, and relief centers that cater to the public and private good. Think of state education laws that help habituate the next generation of citizens in the basic values of democratic citizenship, with state schools sometimes teaching more expansive ethical habits of democratic citizenry and private religious schools sometimes fostering the moral formation of a child in a particular faith [chapter of Linda C. McClain]. Think of more prosaic but essential constitutionally protected taxation laws that facilitate various forms and forums of distributive justice of wealth and resources to those who need more [chapter of Allen Calhoun].
South African theologian Dirkie Smit—who lived under both the brutalities of an apartheid legal system and the promises of a new constitutional democracy of South Africa—reflects powerfully on how such basic constitutional laws can foster moral formation and reformation. Smit writes:
Morality changes, and very often it changes as a result of legal changes. Experience amply shows that forms of racism, sexism, homophobia, prejudice and discrimination, disregard for human dignity, violations of human rights, slavery, abuse, and in fact many practices of corruption, nepotism and exclusion often first have to be prohibited by law, before a major part of the population will change their minds to accept and share these convictions. In this sense, living in a city with just laws is indeed an important form of moral formation—as the Greek philosopher [Xenophilos] already taught [quoted in chapter of Robert Vosloo].
Fourth, modern constitutionalism altogether has moral qualities and analogies that Robert Bellah once called a nation’s “civil religion”—a form of public religion that undergirds and supports more particular and powerful forms of spiritual religion and morality. American constitutionalism is a good example. The text of the United States Constitution is viewed as a quasi-sacred national document, secured in a national shrine, celebrated in national holidays and exhibitions, and confirmed in solemn oaths and pledges of allegiance. The text of the Constitution is authoritative in itself, a canon whose exact meaning remains the subject of endless debate and development. The writings of the founding fathers who created and ratified this document are also authoritative—like Hebrew prophets expounding the Torah, epistles glossing the gospels. The judges who interpret the Constitution are secular priests, who, after enduring long passages of ordination and confirmation, utter solemn public oaths to uphold the Constitution. Like priests standing at their high pulpits expounding the biblical commandment to “love thy neighbor as thyself,” judges sit on their raised benches expounding the constitutional commandment to give “due process” and “equal protection” to all. Like congregants in the church, citizens of the state study these priestly interpretations of their authoritative text, debating their veracity, their utility, their allegiance to the original and evolving meaning of the canon.
This process and practice of state constitutionalism can, of course, easily become dangerous, even idolatrous. But it can also be a complement, even stepping-stone, to a more robust spiritualism. Just as fairly administered state criminal laws not to kill or steal or bear false witness can anticipate and facilitate a deeper moral ethic of love, charity, and respect for one’s neighbors, so a properly bounded state constitutional system of rules and rituals can conduce to a deeper appreciation for the scripture, canons, and practices of chosen faith traditions.
Fifth, a good number of modern rights laws enable citizens to exercise their moral agency and responsibilities and induce their fellow citizens to exercise theirs. Anabaptist theologian Stanley Hauerwas is right to warn that human rights norms today can become a grammar of greed and grasping, of self-promotion and self-aggrandizement at the cost of one’s neighbor and one’s relationship to God. But Christians from the start have claimed their rights and freedoms first and foremost in order to discharge the moral duties of the faith. Claiming one’s right to worship God, to avoid false gods, to observe the Sabbath, and to use God’s name properly enables one to discharge the duties of love owed to God under the First Table of the Decalogue. Claiming one’s rights to life, property, and reputation, or to the integrity of one’s marriage, family, and household gives one’s neighbor the chance to honor the duties of love in the Second Table of the Decalogue—to not murder, steal, or bear false witness; to not dishonor parents or breach marital vows; to not covet, threaten, or violate “anything that is your neighbor’s” [Exodus 20:17]. To insist on these Second Table rights can also be an act of love toward your neighbors, giving them the opportunity and accountability necessary to learn and discharge their moral duties.
Viewed this way, many rights claims are not selfish grasping at all—even if they happen to serve one’s own interests. Rights claims can reflect and embody love of God and neighbor. The claims of the poor and needy, the widow and the orphan, the child and the stranger, and the “least” of society are, in part, invitations for others to serve God and neighbor: “As you did it to one of the least of these . . . you did it to me” [Matthew 25:40]. Jesus said. To insist on the rights of self-defense and the protection and integrity of one’s body or of loved ones, or to bring private claims and support public prosecution of those who rape, batter, starve, abuse, torture, or kidnap you or your loved ones is, in part, an invitation for others to respect the divine image and “temple of the Lord” [1 Corinthians 3:16] that each person embodies. To insist on the right to education and training, and the right to work and earn a fair wage is, in part, an invitation for others to respect God’s call to each of us [Ephesians 4:1] to prepare for and pursue our distinct vocation. To sue for contractual performance, to claim a rightful inheritance, to collect on a debt or insurance claim, to bring an action for discrimination or wrongful discharge from a job serves, in part, to help others to live out the Golden Rule—to do unto others as you would have them do unto you [Matthew 7:12]. To petition the government for due process and equal protection; to seek compensation for unjust taxes or unlawful takings or searches of property; or to protest governmental abuse, deprivation, persecution, or violence—all of these are, in part, calls for political officers to live up to the lofty ideals of justice that the Bible ascribes to the political office. To sue for freedoms of speech and press or for the right to vote is, in part, a call for others to respect God’s generous calling for each of us to serve as a prophet, priest, and sovereign on this earth. And to insist on freedom of conscience and free exercise of religion is to force others to respect the prerogatives of God, whose loving relationship with his children cannot be trespassed upon by any person or institution.
Finally, the legal profession itself can be an exemplar of moral virtue. To be sure, Shakespeare’s Henry VI famously proclaimed: “The first thing we do, let’s kill all the lawyers,” echoing Martin Luther’s statement that “jurists are bad Christians.” Lawyers have certainly done their share to earn such opprobrium for their belligerence and bombast, their obstructionism and delay tactics, their hair-splitting casuistry, their pretentious self-indulgence and cleverly cloaked theft from their clients. But for all the excesses of those greedy and grubby lawyers who betray us, the law is at heart a noble profession—a “democratic aristocracy,” as Alexis de Tocqueville once put it, a “priesthood of civility,” as Justice Thurgood Marshall later put it. Lawyers are essential officers of our courts—charged with the responsibility of maintaining our system of justice and equity, of vindicating the rights and liberties, privileges and immunities of our fellow citizens and subjects. Lawyers are essential trustees of our legal tradition—equipped for the task of carrying on the great experiment of fostering life, liberty, and the pursuit of happiness within a democratic society dedicated to the rule of law. And lawyers are essential leaders of public life—called both to demonstrate and to facilitate the noble virtues of charity and compassion, education and learning, forgiveness and peacemaking.
In late modern liberal societies, lawyers are required to be “paradigmatic liberal citizens,” Australian jurist Reid Mortenson argues, seeking to advance their clients’ interests through orderly and organized procedures that hew to a baseline of morality and conscionability, rather than through dangerous self-help and unethical self-promotion [chapter of Reid Mortenson]. Lawyers are also called to discharge a morally responsible role in law and business, American legal ethics expert Robert Cochran continues. Litigators advocate for each side and enable judges and juries to make better decisions based on fuller knowledge of the facts and law. Business lawyers draft documents and negotiate deals enabling businesses to employ people and meet the needs of customers [chapter of Thomas Pfeiffer]. Such legal representation should employ and develop the virtues of truthfulness, courage, justice, and prudence. Yes, legal representation carries moral risks for both lawyers and clients. Constant advocacy for clients may cause a lawyer to become argumentative and less forthcoming in areas of life where these qualities are not justified. Some lawyers encourage clients to act in unnecessarily self-serving ways, reinforcing the selfish instincts of clients. But the better role for the lawyer is that of a “friend” in the classical sense, Cochran argues, initiating moral discourse between the lawyer and the client and encouraging moral growth for both of them [chapter of Robert F. Cochran, Jr.].
These and other examples illustrate that modern state law does and can —in discrete and circumscribed ways—still foster moral character formation and ethical education in late modern pluralistic societies. State laws and moral norms interact somewhat—as in a Venn diagram—though they do not overlap entirely. State laws have many other sources and goals beyond morality, and moral norms have many other forms and forums for their implementation beyond those of the state. Thus the state and its laws help to cultivate private and public morality, but they can do only so much in the moral field.
Late modern societies also need broader communities and narratives to stabilize, deepen, and exemplify the natural inclinations and rational norms of responsibility, sociability, and morality that all human beings have written on their hearts, if not embedded in their genes. Even the most progressive liberal societies need models and exemplars of love and fidelity, trust and sacrifice, commitment and community to give these inborn natural teachings further content and coherence. They need the help of stable institutions beyond the state—families, neighborhoods, churches, schools, charities, hospitals, recreational, athletic, artistic, and creative associations, and much more—to form the rich moral characters and refined ethical outlooks of their citizens, to teach both the minimal morality of duty that keeps the sinners within all of us at bay and the morality of aspiration that brings out the angels in all of us who are devoted to love of God, neighbor, and self. ♦
John Witte, Jr. is Woodruff University Professor, McDonald Distinguished Professor, and Faculty Director of the Center for the Study of Law and Religion at Emory University. He has published 330 articles and 46 books across 16 languages.
Recommended Citation
Witte, Jr., John. “What Might Make Life Better?: On Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies.” Canopy Forum, February 12, 2025 https://canopyforum.org/2025/02/12/what-might-make-life-better-on-character-formation-ethical-education-and-the-communication-of-values-in-late-modern-pluralistic-societies/.
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