The Law, the Image of God and Disability

Richard Langer Professor, Biblical Studies and Theology Biola University La Mirada, CA, 90639 The influence of Christianity on modern legal systems is well established. The Ten Commandments, the abolition of slavery, and the protection of women and children are just a handful of the particular examples of this influence (Schaefer, 1910). This paper will concern itself with a more foundational question, namely, the Christian roots of the affirmation that all people have equal standing before the law. This is an important question in its own right, for Christians and for all other legal theorists alike, but it is of particular importance for how we treat individuals with disabilities. This includes especially those who live on the margins of society and have only a marginal claim on being part of human society, at least in the eyes of certain individuals or even certain societies as a whole. I will argue that it is difficult to defend the equality of all people before the law apart from a fundamentally Christian view of the worth of human life, a view that is grounded in imago dei (the image of God). I will then identify entailments of the imago dei for both how we love others and how we practice law. I will conclude with some specific applications for those with disabilities. A problem for the law Contemporary legal thought is committed to notions of equality before the law. As George Fletcher aptly puts it, one could hardly imagine a modern constitution that did not commit itself to some version of equality under the law.(Fletcher, 1999) He also points out that this commitment is expressed in a wide variety of language:

The form of this commitment might resemble the American Fourteenth Amendment, which prohibits the States from denying any person within their jurisdiction "the equal protection of the laws." Or it might be akin to the straight forward declaration in the German Basic Law of 1949 that "all human beings are equal under the law" [Alle Menschen sind vor dem Gesetz gleich]. Admittedly, there are some variations on this basic commitment, such as the approach of the European Convention on Human Rights, which defines basic rights in its first thirteen articles and then, in Article 14, prohibits discrimination on the basis of any one of a number of listed characteristics, including race, gender, national origin, and the catch-all expandable phrase "other status." However, the grounding of this equality is difficult to assess. Most notably, Westen argued that for equality to have legal meaning, one must specify some set of external values that determine which persons and treatments are alike. However, once these external values are found, one discovers that they do all the work and the principle of equality is superfluous and empty (Westen, 1982). Westens claim spurred much debated and remains contentious (Burton, 1982; Chemerinsky, 1983; D'Amato, 1983; Greenawalt, 1983), but the importance of issue is undeniable. Why do we all have equal moral standing? It is surely not a category we apply lightly or universally. A rock has no moral standing. A plant has no moral standing. An animal has no moral standing, or at least a distinctively different moral standing than we do. So it seems that all humans possess a unique moral standing relative to everything else in creation, and an equal moral standing relative to one another. Such claims of equality cannot be founded in identity because we are not all identical to one another. Equality cannot be founded on utility because we are not all equally useful in the functions we perform. And even if our functions

were identically valuable, we are not all equally gifted in performing our functions. Similar problems of inequality arise if one appeals to our level of prosperity or influence or parentage. Generally, theorists attempt to solve this problem by grounding equality in some ability or faculty which all human beings share in common but which is also uniquely associated with being human: something which all human beings have and only human beings have. But there are at least three inter-related problems with grounding human dignity and moral standing upon human abilities and faculties: Exceptions are prevalent. The distinctive abilities and faculties of human beings are not universally expressed. There are always exceptions. If one appeals to human language abilities, there are people who cannot talk or understand language. If one appeals to human reason, one is confronted with human beings who have impaired rational capacities. If the unique characteristic of human beings is the ability to form intimate personal relationships, one need not look far for people who lack personal relationships. Is it the ability to feel pain? This is neither unique to human beings nor do all human beings have this ability. There are human exceptions to all of these rules. These are abilities and faculties are distinctive of human beings corporately, but there are always exceptional human beings. Exceptions are important. A second problem arises if one seeks to dismiss the first problem as merely an exception. Since there are exceptions to every rule, surely the exceptions to the general truths about human nature are not particularly problematic. But unfortunately, exceptional human beings are exactly the people who most need protection under the law. It is people who are not strong, or not able to argue their case well, or who do not have a power standing in the culture who most need the protection of the law. If the law does not protect them, nothing else will.

Exceptions reveal true justice. A third problem is that there is a deep intuition that justice is best measured by how it treats these exceptional and marginalized people. The Old Testament prophets are particularly noted for their concern for the widows and fatherless and poor and sojourners. The thing that all of these groups have in common is their lack of a person who will naturally defend their interests. It is the command of God that the legal authorities do not pervert justice by protecting the strong. We are called to carefully protect to those who cannot protect themselves (Lev 19:15, Job 29: 12, Isaiah 1:17, Proverbs 31:8-9). So this combination of problems leads us to seek a grounding for equal standing before the law in something other than individual human abilities. Fletcher argues that what is needed is a standard of human equality that is logically prior to the particular context in which one wishes to assess just treatment and yet strong enough to have entailments that logically apply to the contexts in which equal treatment must be assessed. He turns to the notion of the imago dei in his attempt to find a basis for equality, and I think his appeal is largely on target. I will offer a somewhat different understanding of the image than Fletcher, and also move beyond his concerns by offering some implications of his thought for the issue of disability. Defining the image of God The image of God is associated with human beings from the earliest pages of Genesis. It is discussed three different times in the first 12 chapters of Genesis: Gen 1:26-7, Gen 5:1-2, Gen 9:5-6. A careful consideration of these passages yields several important aspects of the image of God for understanding human equality. 1. The image is our species marker (Gen 1:26-28) As one works ones way through Genesis 1, each living kind is brought into being with a distinctive mark. The birds are to fly in the air, the fish are to swim in the sea, the animals are to

crawl upon the ground. These species markers are broader than modern biological notions of species but they are given to identify what a particular form of life has which distinguishes it from the other forms of life in the creation narrative. Unlike the other animals, who are marked by the combination of their place in the created order and their means of locomotion, human beings are distinguished by the fact that we bear the image. As Berkhof (Berkhof, 1996, p. 205) notes, According to Scripture the essence of man consists in this, that he is the image of God. As such he is distinguished from all other creatures and stands supreme as the head and crown of the entire creation. The image defines who we are, but it is also associated with what we do. We are made in the image of God to do God-like functions relative to the created order. We are to have dominion over it. We are Gods representatives, tending Gods concerns in the creation and shaping it ever more in the direction that God would have it shaped. 2. The image makes us like one another As soon as the image is introduced, the male and female distinction is introduced to the narrative as well. The imago dei is something that male and female both share equally. It unites all humanity together in a common project. Male and female both, jointly, bear the image. The most amazing and elevated property a human being can possess is also the property that all human beings share in common. Furthermore, the image unites humanity by entailing communal life. Male and female are not presented as two variants of a common species but rather as two complements, each finding its completion only in the other. Therefore human beings are united by their complementary design that is expressed as they live in community with one another.

3. The image makes us like God Not only does the image make human beings similar to one another, bearing the image makes us like God. God exercises sovereignty in the creation narrative, and we reflect that in our exercise of dominion over his creation. He calls things into being, and we will do likewise as we multiply. The creation narrative is framed in such a way that each element that is formedthe skies the waters, the dry landis then filled. And just as God fills the empty form of creation so human beings are called to fill the world in which they have been placed. 4. The image makes us unlike the animals Even as the image likens us to God it distances us from the animals. In Genesis 2, Adam seeks in vain among the animal for his counterpart and complement, but none is to be found. Adam is not like the animals. After the fall and the flood, God establishes laws. Specifically, he prohibits killing human beings because we bear the image (Gen 9:5-6). In contrast, it is permissible to kill animals for they do not bear the image. Here we discover a very explicit legal and moral implication of the image of God. It grants us moral standing in a way that distinguishes us from the animals. The image also conveys a sense of dignity. Humans are not merely different than the animals, they are above them. They stand below God and above the animals. Paul points his finger to exactly this point as he describes the corruption of the fall, pointing out that darkened human minds now lead us to worship idols and images made in the likeness of man or even of animals snakes and reptiles (Rom 1:22-23). The imago dei also entails a stewardship responsibility. Because human beings bear Gods image, we alone answer for other elements of the created order. We were appointed stewards of the whole creation on Gods behalf in the original creation narrative (Gen 1:26).

There is also a negative entailment of our stewardship, so in the fall, our punishment is extended to the created order we were called to steward. The world itself was twisted by our twisted behavior. The work of Christ is partly the establishment of a new humanity, and his resurrection not only accomplishes human redemption from the bondage of sin, but the redemption of the entire created order (Rom 8:19-23). 5. The image survives the fall Finally, there is a point that is obvious but should be made explicit. The image is tarnished by the fall, but not destroyed. We were originally called to be stewards of the creation and we are still stewards. Unfortunately, our relationship with the creation we steward is now distorted. We still tend the garden, but now we do it with sweat and thorns and thistles. We still multiply and fill, but now we do it with pain in child-birth. So the image is not eradicated by the fall, it is merely tarnished. It remains our distinctive feature and our defining mission. It is still in view in Genesis 5:1-3 after the judgment of the fall. And even after the ensuing judgment of the flood, the image of God still is appealed to establish our unique moral standing (Gen 9:5-6). Bearing the image of God Before considering the implications of image bearing for the law and for people with disabilities, it is important to consider how the image is possessed by human beings. First, the image is not ours by virtue of personal achievement but rather as a gift. The image is granted by God as our species marker. It was bestowed by God when the first humans were formed. It was a gift of Gods grace. Earth itself could not form man; it could not bestow an image it did not possess. Mankind had to be formed by God. Once that forming had taken place, the image is bestowed to our children through human reproduction. Some believe that this continues to be graced by divine intervention, and affirm that every human soul is a direct creation of God.

Others believe that the ability to propagate a soul was woven by God into our first human ancestors.1 But whatever the means, the fact remains: human life is bestowed by human parentage in the course of ordinary human reproduction. Those born of human parents bear the image Godthe very image that God bestowed on our first parents. When we reproduce "after our own kind", we reproduce in the image. As humans bear the image, it is revealed in various abilities and faculties. Because the image is tarnished, it is safe to assume that no single human being possesses all of these faculties in full measure. Indeed, it would not be a surprise in a fallen world to find an individual human being that could not exercise a certain faculty or ability at all. In general, human beings know, but our knowledge is mixed with error. We love, but our love is mixed with selfishness. We live in society, but our societies are fraught with tension, and hatred and prejudice. We also express the image of God only partially. Even in the garden it was clear that Eve possessed qualities that Adam lackedotherwise she would not have been of help to him. Presumably the opposite was true as well. Therefore, the image was expressed by creating us male and female and only together would the image reach full expression. The fact that the imago dei is bestowed as a gift rather than attained as an achievement, combined with the fact that we all express the image in a partial fashion, has important implications for those with disabilities. If a disability keeps a person from performing certain tasks or achieving certain levels of human development, that does not mean it keeps a person from bearing the image. It is bestowed as a gift, not earned as an achievement. Furthermore, we

1 Commonly known as the traducianist view of the creation of the soul. Both the traducianist and the preceding creationist views of the propagation of the soul are considered to be orthodox. 8

all reflect the image only partially. Our possession of the image always exceeds our expression of the imagewhether one is disabled or not. It should also be noted that the deeply relational and social aspects of the image mean that the abilities and faculties of the image are at the deepest level corporate possessions of humanity more than separate, detachable qualities of an individual(Basselin, 2011; Grenz, 2001). Only corporately do we multiply and fillit requires two parents to make a baby and a whole village to raise a child. Similarly, human "ruling and subduing" is a corporate social activity. We build buildings together, we plow and cultivate fields together, we live in society, not as isolated individuals. A human being alone requires an explanation; human beings in society are in their natural state. Our language is a corporate possession, not an individual achievement. Our language in turn bestows or facilitates many of the most unique human giftsincluding our ability to learn from previous generations, to convey and express love at a deep level, and our ability to praise and worship God. Also, much of our rational capacity and moral life is expressed through language and the related inheritances of human culture. Furthermore, Grenz argues that human personality has more to do with relationality than with substantiality and that the term stands closer to the idea of communion or community than to the conception of the individual in isolation from or abstracted from communal embeddedness."(Grenz, 2001, p. 4) The image is a holistic, corporate, and social quality of human beings. In summary, the image should be understood as a gift, not an achievement. It should be understood as a including a corporate and social element. It should not be reduced merely to particular qualities that are possessed individually. It should also be viewed as a holistic set of qualities, not any one individual thing. Therefore, all who are born of human parentage have full and equal standing as an image bearer. All who bear the image also have full moral standing and

their life is to be uniquely protected in comparison to the lives of any other living creature. The image is jointly expressed and has a strong social element, therefore denying people a standing in human society is effectively diminishing our expression of the image. It wrongs the person as an individual and it also harms the society as a whole. Image-bearing and disability in society and the church The first entailment of the image relative to the law is to make sure that all members of the human communityall those who are born of human parentshave full standing and protection before the law. This is a result of an understanding of humanity created in the image of God, and of understanding that image as holistic and corporate, granted to all by divine gift. Nonetheless, it is not at all uncommon for people to treat the image as a possession of an individual and to reduce it to a particular favored human attribute: rational capacities, linguistic abilities, or some other cognitive quality. Unfortunately, these are qualities that are commonly diminished in those with disabilities. Perhaps more insidious is the fact that these qualities may be possessed in full measure by a disabled person, but the expression of these qualities is impeded. So, for example, many people with cerebral palsy are as intelligent as neurotypical people, but their physiological condition impedes the expression of their mental life. It is important, therefore, to remember that the image is tarnished in all of us. No fallen person has a full and unimpaired ability to manifest the image of God. We all suffer a gap between the possession of the image and the expression of the image. Furthermore, no isolated individual human being is designed to express that image fully, for the image is born by male and female human beings in harmonious and interdependent relationship. Therefore a proper understanding of the image entails the inclusion of all members of the human family, and secures for them full and equal standing before the law.

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Secondly, social policy and the justice system should be reminded that God pays particular attention to the treatment of exceptional casesthose who live on the margins and edges of society. The poor, the orphaned, the outcast, and the alien are the great test cases of a societys vision of and commitment to justice. Those with influence within a society and particularly within the system of justice should pay particular attention to those to whom God attends most carefully. The exhortation of Proverbs 31:8-9 should be born in mind in this regard: Open your mouth for the mute, for the rights of all who are destitute. Open your mouth, judge righteously, defend the rights of the poor and needy. Enforcing an equal standing before the law will secure many benefits for disabled persons. Basic protections of property, bodily integrity, and personal interests must be equally applied to those who are disabled. Indeed, they should be applied with special vigilance on behalf of those who are disabled because they generally have less of an ability to protect themselves if the law does not intervene on their behalf. The provisions of the law should also secure structural accommodations within society that are necessary for providing equal access to goods and services. Building codes and the design of roads and public spaces are particularly important for creating a society that allows for the inclusion and protection of those with disabilities. Basic provisions for ramps and bathroom facilities cannot be made dependent on individual goodwill. Such steps always cost additional money and therefore builders who make such provisions in their designs will be at a competitive disadvantage when bidding. This effectively disincentivizes good behavior and rewards those who cut corners at the expense of the disabled.

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But a full understanding of the image of God has implications that extend beyond the law. The complexity of full inclusion of people with disabilities is well summarized in the following statement: For disabled persons, a full notion of access must go well beyond the mechanical challenge of entry into buildings or the bureaucratic challenge of eligibility for civic opportunities. Access must also be about making ones way into citizenship and human community and about feeling secure and worthy. Framed in this way, inclusion calls for engagement within a dynamic of access to respect, access to a sense of oneself as a whole person and access to identity as a valued contributor, a bearer of rights, knowledge and power. (Frazee, 2005, p. 108) A similar sentiment was expressed by Supreme Court Justice Thurgood Marshall in his dissent in Cleburne v. Cleburne Living Center Inc. where he stated that exclusion deprives [disabled persons] of much of what makes for human freedom and fulfillment the ability to form bonds and to take part in the life of a community. In these statements, it is clear that justice requires not only equal standing before the law, but also equal standing within human society. In order for this vision to be fulfilled, one must consider not only the legal system, but also social institutions in general. To put this vision into the language of the image of God, the entailments of being an image-bearer include both law and love. Although the primary focus of this paper has been the legal implications of the image, it is important to remember the entailments of the image for love as well. It is very common for the exhortations to love one another to be built upon notions of our likeness to God. Jesus offered two great commandments, to love God and to love our neighbor, and immediated reminded his hearers that the second command is like unto the first(Matthew 22:39). John states that we love

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others because God has first loved us, and flatly states that a person who says he loves God but hates his brother is a liar (1 John 4:19-20). James points out the incongruity of praising God with the same tongue that curse our fellow man who is made in Gods image (James 3:9-10). Jesus reminds us in the Sermon on the Mount that we are to love our neighbor as well as our enemy because that will make us more God-like (Matthew 5:43-48). In all of these cases, the implications of image-bearing are attached to love, not the law So the entailments of the image must include both the law and love and must also extend across all of human society. When it is comes to seeing that these entailments of the image are fulfilled in practice, one must also reflect on which institutions are best suited to the fulfillment of any given entailment of the image. As a general guideline, it seems reasonable to expect that the legal entailments of the image will primarily be associated with the justice system and social policy. Similarly, the entailments of love would be best fulfilled by voluntary associations such as the church or organic structures such as the family. It also seems reasonable that many other social institutions would be scattered along the spectrum between these two extremes. This division of responsibility is illustrated in the following diagram:
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Applying this diagram to the relational aspects of the image, one quickly realizes the softness of the boundaries. The image is a deeply social quality of human life manifested in the formation of significant and enduring relationships of mutual interdependence. One does not form a personal relationship with the law. Social policy is not the ground in which friendship is formed. Therefore, one might turn towards the church rather than the law for fostering imageaffirming relationships. The church is built on voluntary associations and is often a substantial source of meaningful relationships. It seems clear that the image of God entails that disabled people belong within the church. This true in part because of the requirements of justice, and in part because the church proclaims Jesus and Jesus is committed to the poor and needy, but it is also true because the church is the body of Christ. All those are in the body of Christ have received a necessary spiritual gift. No part of the body can flourish unless all parts of the body are attached and all gifts are being deployed. This is absolutely central to Pauls most foundational teaching on the body of Christ in 1 Corinthians 12. A disability does not eliminate the gifting ministry of the Holy Spirit. Furthermore, in verses 21-26, Pauls attention shifts from gifts to a broader discussion of the body. He addresses members of the body who are weak, or less honorable, or unpresentable. These are terms would very likely include people we would now refer to as disabled. And Pauls affirmation is that such people are indispensable to the life of the church. This theological vision makes the church the perfect place for meeting some of the most important and difficult social aspects of inclusion. As Mulderij (Mulderij, 1997) points out, it is vital that disabled children be valued and admired for offering something needed and specialjust as any other child would. Erwin has argued for improving the inclusion for disabled children by making them visible to the class or by teaching them a valued skill so that they are needed within the class (Erwin, 1993). In the context of the body of Christ, a valued

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skill does not need to be taught, but rather, a gift granted by the Holy Spirit merely needs to be recognized. Paul is clear that such gifts are possessed by all members of the body of Christ, the only question is whether or not such gifts will be recognized and valued. These factors make the church an excellent place for the cultivation of relationships that validate and express the image of God. Regarding social institutions such as schools, businesses, trade unions, and community groups and institutional church structures, these are not the sorts of entities that one befriends. However, these social institutions are places where friendships are formed and relationships are sustained. They are often places of inclusion and support. But at the same time they are legal entities and structures. They are organizations, not just organisms. Institutional structures may be particularly important for expressing a vision of society that equally includes all those who bear Gods image. They are far closer to the wills of the individuals who make them up. Change can be comparatively rapid because the organizations are comparatively smallat least in relation to governmental structures. However, unlike families and personal friendships, institutions have bylaws, organizational charts, and membership criteria that are commonly expressed in written and legally chartered. Organizational pressure, both internal and external, can force change on the part of the individuals who participate in these institutionsespecially among those who are open to change, but need some encouragement. And finally the law and social policy, though impersonal in and of themselves, are not disconnected from the relational aspects of the image. As noted above, social institutions that have guidelines for membership and participation, and they may grant licenses or certifications. Such activities can have a profound effect on the social settings in which a person functions and thereby can substantially impact ones relationships. And legislation, in turn, can have a

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substantial impact on guidelines and by-laws that regulate social institutions. A legal mandate to grant full access to a social institution does not in itself create friendships and meaningful relationship, but it does open to door to the context in which such relationships are commonly formed. In summary, it is difficult to parse the involvements of a human being into clean categories of law, institutions, and private friendships. Even if these categories are conceptually distinct, the boundaries in real life are fluid and the categories affect one another in the actual life of an individual (Grenz, 2001) . Therefore it seems prudent to assume that these different aspects of society should operate jointlyeach doing what it does best and jointly supporting the wellbeing and full-inclusion of those with disabilities.

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References Basselin, T. (2011). Why Theology Needs Disabiity. Theology Today, 68(1), 47-57. Berkhof, L. (1996). Systematic Theology. Grand Rapids, MI: Wm. B. Eerdmans Publishing. Burton, S. J. (1982). Comment on "Empty Ideas": Logical Positivist Analyses of Equality and Rules. The Yale Law Journal, 91(6), 1136-1152. Chemerinsky, E. (1983). In Defense of Equality: A Reply to Professor Westen. Michigan Law Review, 81(3), 575-599. D'Amato, A. (1983). Comment: Is Equality a Totally Empty Idea? Michigan Law Review, 81(3), 600-603. Erwin, P. (1993). Friendship and peer relations in children. Chisester: Wiley & Sons. Fletcher, G. (1999). In Gods Image: The Religious Imperative of Equality Under the Law:,. Columbia Law Review (Oct), 1608-1629. Frazee, C. (2005). Thumbs Up! Inclusion, Rights and Equality as Experienced by Youth with Disabilities. Social Inclusion, 105-125. Greenawalt, K. (1983). How Empty is the Idea of Equality? Columbia Law Review(June). Grenz, S. J. (2001). The social God and the relational self: a trinitarian theology of the imago Dei: Westminster John Knox Press. Mulderij, K. J. (1997). Peer relations and friendship in physically disabled children. Child: Care, Health & Development, 23(5), 379-389. Schaefer, F. (Ed.) (1910) The Catholic Encyclopedia. New York: Robert Appleton Company. Westen, P. (1982). The Empty Idea of Equality. Harvard Law Review, 95(3), 537-547.

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