Recently I posted about some fine 'law & economics'-style reasoning in Thomas More's Utopia. In the midst of a critical treatment of the practice of executing convicted thieves, a further argument is added (during an exchange between Raphael Hythloday and John Morton, Archbishop and Cardinal of Canterbury, and at that time also Lord Chancellor of England):
To be short, Moses' law, though it were ungentle and sharp, as a law that was given to bondmen; yea, and them very obstinate, stubborn, and stiff-necked; yet it punished theft by the purse, and not with death. And let us not think that God in the new law of clemency and mercy, under the which he ruleth us with fatherly gentleness, as his dear children, hath given us greater scope and license to execute cruelty, one upon another. Utopia
In context, Hythloday ("talker of nonsense") offers a battery of arguments against the severity of the criminal law of England. Now one of these arguments appeals to the authority of revelation to insist that much capital punishment may be immoral. As if Hythloday is a traditional natural law thinker, he claims that even a "law made by the consent of men" does not make it moral. (More is writing in a period in which the Tudor dynasty has just consolidated its rise to power by the force of arms.) After all, "why may it not likewise by man's constitutions be determined after what sort whoredom, fornication and perjury may be lawful?"
But Hythloday's appeal to revelation is also a bit unusual. For, in the passage quoted at the top of this post Hythloday relies on an explicit and a more daring implicit contrast. The official contrast (i) is between Moses's legal code and the more gentle rule of Christianity. But there is also an implied contrast (ii) between the way one rules a barbarous people (recently liberated from tyranny) and the way one rules a more civilized people. (The implied contrast between the barbarous and civilization, which is extremely popular in later early modern writing, would have been familiar to More from Aristotle's Politics.) The implied contrast (ii) effectively historicizes the Bible, whose commandments are now understood as fitted to a people at a particular time and place in need of strict rule. This strategy is pursued more relentlessly in Spinoza's Theologic0-Political Treatise (e.g., chapter 5; III/75).
Hythloday clearly implies that the present law ought not be harsher than the Biblical one. Also, he seems to suggest that in more civilized times the law should be less strict than during Biblical times. Of course, Hythloday's argument raises the question what other features of the Bible are primarily fitted to a historical audience. This style of argument does not originate with More--one can find it, too, in Maimonides' rationalizations of parts of the Mosaic legal code. More daringly it makes one wonder if there are elements of the Bible that can be safely discarded during later, civilized ages. (I return to this some other time.)
Either way, Hythloday's argument creates a normative, historical baseline from which one can evaluate the moral and practical features of one's institutions. This strategy was developed at much greater length in the Scottish Enlightenment. Surprisingly enough, it allows one to deploy the Bible in order to suggest that one's present institutions need to be less strict than those in Biblical times.