Prohibition, Blue Laws, and the <i>Primum Usus Legis</i>
Religion & Liberty Online

Prohibition, Blue Laws, and the Primum Usus Legis

A paper recently published at the National Bureau of Economic Research calls into question some conventional economic wisdom about the effects of certain kinds of legislation. In “The Church vs the Mall: What Happens When Religion Faces Increased Secular Competition?”, Jonathan Gruber and Daniel M. Hungerman find that when so-called “blue laws” are repealed in any given state, “religious attendance falls, and that church donations and spending fall as well.”

But in addition, “repealing blue laws leads to an increase in drinking and drug use, and that this increase is found only among the initially religious individuals who were affected by the blue laws. The effect is economically significant; for example, the gap in heavy drinking between religious and non religious individuals falls by about half after the laws are repealed.” For more information on the study, check out this article from the CS Monitor, “Maybe ‘blue laws’ weren’t so bad” (HT: Zondervan>To The Point).

Richard Morin wrote an op-ed in the WaPo last week (HT: Religion Clause) about this paper, and wonders “why would the elimination of blue laws suddenly provoke such an outburst of sinning among the religious? After all, there are six other days of the week to shop (or drink) until you drop. And it’s not legal to buy cocaine or marijuana on any day of the week.”

Before I paint the broad outlines of an answer, let me point out the potential significance of Gruber and Hungerman’s conclusions. It has long been assumed that laws prohibiting or restricting the sale of certain controversial items (i.e. alcohol, tobacco, drugs) has a net negative effect. Mark Thornton over at published a piece that claims, for example, that “prohibitions have no socially desirable effect.”

Acton’s own Rev. Robert A. Sirico, in an essay on the “sin tax,” wrote that sin taxes, prohibition, and presumably blue laws are each “a different point on the same continuum.” Sirico goes on to cite Paulist priest James Gillis, who said that prohibition of alcohol “was the greatest blow ever given to the temperance movement.”

Gillis writes,

Before prohibition, the people at large were becoming more and more sober. Total abstinence had become the practice, not of a few, but of millions… Under the Volstead Law, drinking became a popular sport. The passage of the law was a psychological blunder, and a moral calamity… The only way to make the country sober is to persuade individual citizens, one by one, to be sober.

It seems, however, according to the NBER paper, that blue laws do have the opposite effect, and in this way can perhaps be distinguished from prohibition. Is there a theological explanation for this?
I think so. The explanation is to be found, I think, the reformational doctrine of the primum usus legis, or the first use of the Law. It became commonplace among the reformers, following Melanchthon in particular, to distinguish between three uses of the Law:

  • The first use, or civil use, as Melanchthon puts in his 1543 Loci Communes, is that by which “all men be compelled by the discipline of the Law, even the unregenerate, not to commit outward sins.” It is this purpose that civil governments fulfill.
  • The second use of the Law is a “very important use of the law of God to show our sin and to accuse, to terrify, and to condemn all men in this misue of human nature.”
  • The third use “pertains to the regenerate” and is “preached to the regenerate to teach them certain works in which God wills that we practice obedience.”

Under this grouping, blue laws clearly fall under the first use, as they are positive legislation of the civil magistrate aimed only at external conduct. It is not surprising, then, that when this rein on sin is removed that immoral conduct increases.

The critique of such legislation put forth by Rev. Gillis, essentially that such laws are only aimed at outward conduct and cannot change the heart, is a valid one. But the critique points to the limitation of all civil laws.

I have to say that blue laws annoy me personally. But it may well be that they do have some “socially desirable effect,” namely the minimization of the external exercise of some kinds of human sin. Is this the summum bonum of the Law? Clearly not. But it is one aspect of the Law’s purpose.

I might also note that the effects of laws of total prohibition also have some explanation, and show how the first use of the Law can flow into the second. As Paul writes, while the Law can in its civil institution restrain sin and evil, “sin, seizing the opportunity afforded by the commandment, produced in me every kind of covetous desire.”

He also writes “that the very commandment that was intended to bring life actually brought death. For sin, seizing the opportunity afforded by the commandment, deceived me, and through the commandment put me to death.” (Romans 7:8, 10-11 NIV).

It is because of this reality, that imposition of the Law can often have the opposite effect, causing sin to break out more strongly, that prudence is called for. As Thomas Aquinas writes, this is the principle to consider when determining when and how to make positive law:

The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Pr. 30:33): ‘He that violently bloweth his nose, bringeth out blood’; and (Mt. 9:17) that if ‘new wine,’ i.e. precepts of a perfect life, ‘is put into old bottles,’ i.e. into imperfect men, ‘the bottles break, and the wine runneth out,’ i.e. the precepts are despised, and those men, from contempt, break into evils worse still.

In accord with this Sirico observes rightly, “The question often comes down to the means of discouraging sin, not whether the sin itself is harmful.”

It may well be that prohibition of alcohol causes men to “break into evils worse still,” but that some blue laws at the same time effectively restrain and minimize external sinfulness. All of this can be found consistent with the three uses of the Law outlined above.

Jordan J. Ballor

Jordan J. Ballor (Dr. theol., University of Zurich; Ph.D., Calvin Theological Seminary) is director of research at the Center for Religion, Culture & Democracy, an initiative of the First Liberty Institute. He has previously held research positions at the Acton Institute and Vrije Universiteit Amsterdam, and has authored multiple books, including a forthcoming introduction to the public theology of Abraham Kuyper. Working with Lexham Press, he served as a general editor for the 12 volume Abraham Kuyper Collected Works in Public Theology series, and his research can be found in publications including Journal of Markets & Morality, Journal of Religion, Scottish Journal of Theology, Reformation & Renaissance Review, Journal of the History of Economic Thought, Faith & Economics, and Calvin Theological Journal. He is also associate director of the Junius Institute for Digital Reformation Research at Calvin Theological Seminary and the Henry Institute for the Study of Christianity & Politics at Calvin University.