In careful hands, the idea is at best ambiguous. At worst it reinforces the sort of interior-oriented individualism that allows for and perpetuates a blissful naivete about how institutions and structures shape our dispositions and thoughts.
In less than careful hands, the phrase drives a wedge between law and culture by attempting to orient evangelicals' public witness around the latter. Though unintended, the real distinction between the two tends to slide into a dichotomy: among many younger evangelicals, and those who share the temperament, the phrase bludgeons the pursuit of legal changes around issues like abortion in favor of the nebulous pursuit of "engaging culture."
In short, many evangelicals have come close to catching an unfortunate case of political antinomianism. Unlike its theological equivalent, political antinomianism isn't a heresy. But it does share a general distaste for Leviticus, a book that reminds us the question is not whether we shall have laws, but only what character they shall take.
Before we bury the phrase and dispense with the shovel, however, we should acknowledge the valid critique of our contemporary political environment that it badly expresses.
One of the many gifts of the Western Christian tradition has been to subordinate rulers to both divine law and natural law (the difference is one of perspective) in order to ward against tyranny. As Ken Myers once said, culture is what we make of creation. Similarly, legislation is what we make of the lawful order at the heart of creation. As in Moses' decision to allow divorce on grounds of the Israelites' "hardness of heart," legislation is forged in the meeting point between the way things ought to be and the way they currently are.
Yet as Oliver O'Donovan argues in his magisterial Ways of Judgment, the modern state tended to treat the creation of laws not merely as an expression of the political order, but as foundational to it. The effect: "An incessant stream of lawmaking is the proof of political viability in the modern state." As legislation has expanded, the space for social and political has receded. Simultaneously, we've been stunted in our ability to deliberate together about ways of arranging our society with categories beyond the legal or the legislative. As Paul warned the Corinthians, not all questions should be decided on the basis of law or in the courtroom.
Beneath this legal positivism is an attenuated understanding of creation, as James Davison Hunter argues in his important book To Change the World. Though Hunter does not put it this way, the repudiation of creation in favor of our own assertion of will over it has left us in a position where the law is all we have left to stitch together our fraying social fabric.
This is why the turn to culture is not enough, for the same tacit rejection of the created order that grounds legal positivism stands beneath our contemporary culture as well. To advocate culture over politics, without revisiting the grounds of both, will simply perpetuate the sort of cultural nihilism that currently plagues us. Which is, I suspect, why the ethos of many younger Christian artistic communities tends toward the depressing: it is largely giving voice to the nihilism of the world around us, without showing us a more excellent way.
But neither is it enough to retreat into the individualism of "changing hearts and minds." The implicit suggestion is that we can put our legislating on hold while we set about to persuade others---but if we get behind legal positivism to discern the created order, we'll discover that we can no sooner put the creative work of legislating on pause than we can the creative work of movie making.
At the heart of creation is a conception of goodness that, once seen and its inner logic understood, impels us to respond accordingly. Recognizing the goods of what it means to be human, and the desire to protect and preserve them, sometimes takes the form of painting and poetry. But at other times, the goods discerned are important and foundational enough that they merit the protection of law and the punishment of those who infringe upon them. Identifying these is a matter of political judgment, but the creation of sound and just laws is no more impossible than the creation of great art.
More than Hearts and Minds
We ought be wary, then, of replacing our political legalism with a political antinomianism, even of a temporary variety. One poison rarely offsets another, yet that is precisely what the strategy of legislative retreat promises us. The way forward, politically at least, is to work to reform our civic institutions from within while faithfully articulating the grounds for legislation in ways that are cheerful, reasonable, and kind.
Laws are not only expressive of a culture or a political order; as aspects of a culture, they also invariably have a reciprocal effect on it. In short, legislation changes things, even if it doesn't change everything.
The legalization of abortion opened up a new range of possibilities for us, in the same way that the civil rights movement criminalized discrimination as a way of re-establishing the boundaries for public behavior. What's more, as they stems from an authority ordained by God, laws establish the obligation to obey, provided that such legislation conforms with the created order. Expressing shared beliefs about the way the world ought to go, legislation has a way of deepening those underlying beliefs and reinforcing them. And in establishing the boundaries of action, legislation allows some behaviors to become more plausible than others.
The pursuit of legislation ought not be the first moment or the most dominant chord of the Christian's public witness. But our legislation is a matter of justice and injustice, of judging wrongs and of establishing the right. And in pursuing the proper arrangement of our life together in a fallen world, we ought not forget that just as the Torah was a tutor that pointed toward Christ, so legislation can point toward the line between right and wrong that runs not only, as Solzhenitsyn once wrote, through the human heart, but through the created order itself.