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Christian Perspectives on Legal Thought

Christian Perspectives on Legal Thought

Michael W. McConnell
Robert F. Cochran
Angela C. Carmella
Copyright Date: 2001
Published by: Yale University Press
Pages: 544
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  • Book Info
    Christian Perspectives on Legal Thought
    Book Description:

    This book explores for the first time the broad range of ways in which Christian thought intersects with American legal theory. Eminent legal scholars-including Stephen Carter, Thomas Shaffer, Elizabeth Mensch, Gerard Bradley, and Marci Hamilton-describe how various Christian traditions, including the Catholic, Calvinist, Anabaptist, and Lutheran traditions, understand law and justice, society and the state, and human nature and human striving. The book reveals not only the diversity among Christian legal thinkers but also the richness of the Christian tradition as a source for intellectual and ethical approaches to legal inquiry.The contributors bring various perspectives to the subject. Some engage the prominent schools of legal thought: liberalism, legal realism, critical legal studies, feminism, critical race theory, and law and economics. Others address substantive areas, including environmental, criminal, contract, torts, and family law, as well as professional responsibility. Together the essays introduce a new school of legal thought that will make a signal contribution to contemporary discussions of law.

    eISBN: 978-0-300-13006-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Foreword
    (pp. xi-xiv)
    Harold J. Berman

    Both Christian and non-Christian students, teachers, and practitioners of the law should be delighted that a substantial number of highly qualified American legal scholars have joined together to produce a book that views legal thought from various Christian perspectives. It’s about time!

    With rare exceptions, American legal scholars of Christian faith have not, during the past century, attempted to explain law in terms of that faith. Indeed, in the vast majority of scholarly writings on the vast majority of legal subjects, and in almost all classroom teaching of those subjects, Christianity is not mentioned. Is this because most contemporary American...

  4. Acknowledgments
    (pp. xv-xvi)
  5. Introduction
    (pp. xvii-xxii)

    The most famous and beloved of the parables of the New Testament follows Jesus’ question of a lawyer, “What is written in the law? How do you read it?” (Luke 10:26). The form of the question makes it apparent that Jesus thought both that the law has a certain content and that there are different ways of reading it—ways that reflect the lawyer’s own conscience and tradition of learning. The lawyer answered that we are to love God and our neighbor. But “desiring to justify himself,” the lawyer could not leave it at that. “Who is my neighbor?” he...

  6. Part One Christian Perspectives on Schools of Legal Thought

    • Section 1 Enlightenment Liberalism

      • [Section 1 Introduction]
        (pp. 3-4)

        Liberalism, though born of Protestant Christianity, seems to have become hostile toward religion. Liberalism teaches that human beings are individuals, whose rights are supreme, and who have little claim on one another aside from the claim to be free from aggression. Christianity teaches that human beings are brothers and sisters under the Headship of Christ, bound together in community, with responsibilities to one another. How inevitable is this tension between liberalism and Christianity?

        Because of the importance of liberal theory to the modern condition, we present four authors with different perspectives on the matter. Michael W. McConnell emphasizes the difference...

      • Old Liberalism, New Liberalism, and People of Faith
        (pp. 5-24)
        Michael W. McConnell

        In many circles, religion is seen as an illiberal phenomenon in our public life—a challenge to the rational and tolerant ethos of modern liberalism. Liberal democracy, it is said, is predicated on “reason,” which is said to be antithetical to faith. Religion is alleged to be authoritarian, divisive, irrational, and exclusionary. The suggestion that religion—as opposed to secular philosophies or ideologies—might be entitled to special protection in our legal system is thus foreign to many modern secular liberals. One scholar has called the Free Exercise Clause “a limited aberration in a secular state.”¹ Indeed, it is often...

      • Liberal Hegemony and Religious Resistance: An Essay on Legal Theory
        (pp. 25-53)
        Stephen L. Carter

        InGod’s Long Summer, Charles Marsh’s splendid book on religion in the civil rights movement, the theologian recounts a fascinating anecdote about Fannie Lou Hamer, a founder and the guiding spirit of the Mississippi Freedom Democratic Party.¹ In the summer of 1964 the mfdp waged a challenge to the credentials of the lily-white Mississippi slate of delegates to the Democratic National Convention, a slate chosen by the lily-white Mississippi Democratic Party. The mfdp offered an integrated slate of delegates, many of whom, like Mrs. Hamer herself, had tried to register to vote and had been punished for it. The controversy...

      • Christianity and the Roots of Liberalism
        (pp. 54-72)
        Elizabeth Mensch

        Liberalism stands in paradoxical relation to Christian theology. In Christianity liberalism finds much of its origin and sustenance, yet also pockets of stubborn resistance to its most basic presuppositions. Conversely, Christianity finds in liberalism both its own reflection and, simultaneously, a starkly conceived and alien antagonist. The complexity of this relation derives from centuries of Western thought during which theorists tried to explain and justify political power by reference to a largely Christian vocabulary. Liberalism is inexplicable except as an outgrowth of that history.

        The prevailing model of liberalism is the model of the autonomous private individual confronting a democratic...

      • The Earthly Peace of the Liberal Republic
        (pp. 73-92)
        H. Jefferson Powell

        “Give me a place to stand and I will move the world,” boasted the ancient mathematician, at once giving voice to a proposition of elementary physics and to a presupposition of critical thought. The presupposition, if not the proposition, appears to hold even in our allegedly postmodern world, and critics of contemporary society often look far indeed in search of adequate footing for their analyses. For would-be Christian critics of contemporary American society, this search for an adequate foundation for analysis is particularly important and, I think, particularly difficult. Christian social criticism must serve the universal Christian commitment to truthful...

    • Section 2 Legal Realism

      • A Century of Skepticism
        (pp. 94-106)
        Albert W. Alschuler

        The left and the right in American legal thought are more alike than different. They are united in their skepticism, especially their skepticism concerning values. Justice Holmes sounded the principal theme of twentieth century jurisprudence when he wrote that moral preferences are “more or less arbitrary. . . . Do you like sugar in your coffee or don’t you? . . . So as to truth.” Judge Learned Hand added that values “admit of no reduction below themselves: you may prefer Dante to Shakespeare, or claret to champagne, but that ends it.” Hand insisted that “our choices are underived” and...

    • Section 3 Critical Legal Studies

      • [Section 3 Introduction]
        (pp. 107-108)

        The critical legal studies movement burst onto the legal academic scene in the mid-1970s. Like the legal realists, critical legal studies theorists argued that there is no internal logic within the law that compels particular decisions in cases; the law is indeterminate. They accused judges and legal academics generally of determining those rules in ways that serve the wealthy classes. Like the Hebrew prophets, critical legal studies leaders condemned the legal establishment for its treatment of the poor. The legal analysis in the academy was, as Roberto Unger put it in his 1986 bookThe Critical Legal Studies Movement,merely...

      • Law and Belief: Critical Legal Studies and Philosophy of the Law-Idea
        (pp. 109-130)
        David S. Caudill

        The critical legal studies (cls) movement, much discussed in 1980s legal academe, seemed by the year 2000 to have dissipated into various other schools of critical jurisprudence. These include law and literature studies, feminist legal theory, and critical race theory, so references to cls are often about the past—the recent past, an influential past, but nevertheless the past. In this essay I shall highlight one major theme in the literature that was associated with cls and in more recent critical jurisprudence, namely the ideology critique and specifically the idea of disclosure of “belief-systems” (clusters of assumptions to which faithlike...

    • Section 4 Critical Race Theory

      • [Section 4 Introduction]
        (pp. 131-132)

        In response to the failures of the civil rights movement of the 1960s, critical race theory came on the scene in the mid-1970s with the writing of law professors Derrick Bell (an African American) and Alan Freeman (who is white). As Richard Delgado explains in the introduction of his 1995 bookCritical Race Theory: The Cutting Edge,the major themes of this school of thought include “the call for context, [a] critique of liberalism, [the] insistence that racism is ordinary not exceptional, and the notion that traditional civil rights law has been more valuable to whites than to blacks.”


      • Whatʹs Love Got to Do with It? Race Relations and the Second Great Commandment
        (pp. 133-148)
        W. Burlette Carter

        African Americans have to be very careful when making public statements about race.¹ When our description of race relations diverges from the norm prevailing among whites in our society—that America no longer has a race problem—we are sometimes met with a glower. We are troublemakers; we are overly sensitive; we are combative; we don’t ever acknowledge progress; we are harsh and simplistic; we are negative; we are paranoid; we are mired in victimhood; maybe even, we are racist ourselves.

        Well-meaning whites may invite us to be open and honest, but as our descriptions of our experiences and perspectives...

      • Reinhold Niebuhr and Critical Race Theory
        (pp. 149-162)
        Davison M. Douglas

        In spite of a long history of racial oppression, African Americans have enjoyed significant legal gains during the past four decades: the eradication ofde jureschool segregation; the statutory prohibition on racial discrimination in the workplace, housing, and public accommodations; and the protection of the right to vote. Many Americans view these gains as evidence that the United States has finally confronted its history of racial discrimination and has embraced the American creed of equal treatment for all. Although many observers would acknowledge that some racial discrimination still exists in America, they are likely to describe it as “rare...

      • Hispanics, Catholicism, and the Legal Academy
        (pp. 163-176)
        José Roberto Juárez Jr.

        “You’re too defensive.”

        I had been accused of this before, usually during a discussion of a difficult issue involving race, and almost always by a white person. The proponent was usually someone who, not having been subjected to discrimination on the basis of race, was claiming an “objectivity” that I, as a victim of racial discrimination, was not entitled to claim.¹

        “You’re too defensive.”

        The accusers this time were different, mostly Hispanics who were keenly sensitive to subordination on many different grounds: race, gender, sexual orientation, and class. The accusation was from Hispanic law professors gathered at the second annual...

    • Section 5 Feminism

      • Independence or Interdependence? A Christian Response to Liberal Feminists
        (pp. 178-193)
        Teresa Stanton Collett

        In considering the relation between orthodox Christianity and feminism, one is struck by the diversity of thought and emphasis within each of these “communities of faith.” Christians divide over such questions as whether salvation is primarily communal or individual; the role of grace and works in salvation; even what texts should be included as Holy Scripture. Yet despite this diversity, there is unity arising from Christians’ common beliefs. Christians believe that God created the universe in accordance with a divine plan, that people are estranged from God, and that God’s plan included the life, death, and resurrection of Jesus Christ...

      • Citizen-Soldiers Are Like Priests: Feminism in Law and Theology
        (pp. 194-206)
        Leslie Griffin

        Does feminist theology contribute to American legal theory?¹ The academic disciplines of political science, psychology, and philosophy have been more influential in feminist legal theory. For example, Carol Gilligan’sIn a Different Voice,with its identification of women’s and men’s differences in moral reasoning, has influenced reflections on the meaning of legal equality. Her models of justice and care raise significant questions, for example, about whether equality requires the same or different treatment for men and women. Feminist theology’s relation to law is less developed and less apparent. Nonetheless, its history offers some reminders to feminists that liberalism remains an...

    • Section 6 Law and Economics

      • Law and Economics: An Apologia
        (pp. 208-223)
        Stephen M. Bainbridge

        Law and economics is the school of jurisprudence in which the tools of microeconomic analysis are used to study law. Those of us who practice it have a deceptively simple task. We translate some legal doctrine into economic terms. We then apply a few basic principles to the problem—cost-benefit analysis, collective action theory, decision-making under uncertainty, risk aversion, and the like. Finally, we translate the result back into legal terms. These tasks have both a positive and a normative component. Positive economic analysis simply asks whether the law is efficient, while normative law and economics commands that the law...

      • A Catholic Social Teaching Critique of Law and Economics
        (pp. 224-240)
        George E. Garvey

        Among the jurisprudential schools emerging over the past several decades, “law and economics” has surely been the most influential. We better understand law, and are better able to predict the consequences of new and changing rules, because the law-and-economics movement brought powerful analytical methods to the study of law. It would indeed be hard to exaggerate the impact that law and economics has had on modern legal thinking and practice. In this essay I shall measure some of the more significant underlying principles of this influential movement against the benchmark of Roman Catholic social teaching.¹

        To critique law and economics...

  7. Part Two Christian Traditions and the Law

    • Christian Traditions, Culture, and Law
      (pp. 242-252)
      Robert F. Cochran Jr.

      Christians disagree about many things. One thing that we share is the earliest Christian confession that “Jesus is Lord.”¹ This confession has meaning at several different levels. At a personal level, it is a commitment that the Christian will seek to obey Jesus—that Jesus will be the Lord of his or her life. At a metaphysical level, it is an acknowledgment that Jesus is sovereign over history. But there is great disagreement among Christians about its implications for the relationship between the Christian and law.

      As Christians today seek to bring a Christian perspective to the law, we do...

    • Section 1 Synthesists:: Reconciling Christ and Law

      • [Section 1 Introduction]
        (pp. 253-254)

        To refer to Christians as synthesists is to focus on the compatibility rather than opposition of temporal and spiritual concerns. The synthesist approach, while evident in other theological traditions, is perhaps most clearly exemplified in Catholic social thought. The Catholic Church offers an organic worldview, with a harmony of elements: nature and grace, reason and faith, individual and community, world and church, natural law and gospel, temporal authority and spiritual authority. Although Catholics acknowledge tensions between these elements, they bring these realms together as a reflection of the complementarity between the human and divine in Christ.

        Angela C. Carmella presents...

      • A Catholic View of Law and Justice
        (pp. 255-276)
        Angela C. Carmella

        What do Jesus and his mission mean for our common life together in a pluralistic society, and ultimately for our vision of justice in that society?¹ The Catholic Church has reflected on questions of this sort throughout its two millennia and, with extraordinary directness, in its social teachings of the past century. In an attempt to summarize this reflection, I offer an overview of Catholic social thought as it proposes a view of the person, society, and the state, and ultimately of law and justice. I also offer a brief description of several theological positions concerning the nature of Christ,...

      • Natural Law
        (pp. 277-290)
        Gerard V. Bradley

        Naturallawrefers to principles and norms that have prescriptive force for human choosing, norms and principles that do not depend for their existence or validity upon human choice or decision.¹Naturallaw refers to what reason can discover about rectitude in human choosing; these discoveries are not the product of revelation or the decrees of authority. Natural moral law might simply be called reason; observing it is a matter of doing what is “reasonable.” Natural law is antecedent to all human choosing. But God is also antecedent to all human choosing. In what sense, then, does the natural moral...

    • Section 2 Conversionists:: Christ Transforming Law

      • [Section 2 Introduction]
        (pp. 291-292)

        John Calvin saw the world as radically fallen. In Calvin’s view, the fall infected every aspect of human life, including our reason and our law. Nevertheless, he believed that the grace of God can redeem that fallenness. Calvin’s pessimism about human nature was matched by an even more powerful confidence in the sovereignty of God, who works in human affairs. At the forefront of most reform movements in the United States have been Christians motivated by the faith that Christian insight can redeem culture.

        Calvinist thought was especially influential in the founding of the United States. The Pilgrims sought to...

      • The Calvinist Paradox of Distrust and Hope at the Constitutional Convention
        (pp. 293-306)
        Marci A. Hamilton

        There was a paradoxical attitude at the Constitutional Convention that has received little attention but that illuminates the Constitution’s foundation.¹ It is a distinctive combination of distrust and hope: the Framers repeatedly expressed distrust of any entity exercising power, while they labored with some optimism that they could fashion a scheme of government that would deter tyranny.

        This marriage of distrust in individuals but hope in properly structured institutions is no mere historical accident but has its roots in the Reformation theology of John Calvin, the greatest systematic theologian of the Reformation. Others have made the more general case that...

      • A Calvinist Perspective on the Place of Faith in Legal Scholarship
        (pp. 307-318)
        David S. Caudill

        As the title of my essay implies, I shall not attempt to representtheCalvinist vision of how scholarship reflects, or might or should reflect, a scholar’s faith.¹ Given that the Reformation and the Reformed tradition are complex phenomena, respectively, in the history and in the current state of the Christian religion, numerous views on the relation between faith and theoretical knowledge could properly be characterized as Calvinist. The position I will describe as neo-Calvinist is a particular movement arising out of the Calvinist tradition in Holland (represented internationally now by Christian Reformed or Dutch Reformed churches). Neo-Calvinism in my...

    • Section 3 Separatists:: Christ Against Law

      • [Section 3 Introduction]
        (pp. 319-320)

        Throughout Christian history, there have been Christians who have wanted to have little to do with law. For some, the rejection of law has been a matter of Christian faithfulness. Anabaptists reject the use of law and the coercive power of the state as incompatible with Christ’s teaching. For a look at the historical background of the Anabaptists, see David Smolin’s essay at the beginning of section 4, in which he compares Anabaptist and Lutheran views of the state. Not surprisingly, there are few if any legal scholars who are members of the Anabaptist tradition. With the tension between their...

      • The Radical Reformation and the Jurisprudence of Forgiveness
        (pp. 321-339)
        Thomas L. Shaffer

        It seems to me possible to develop a Christian jurisprudence in, under, and around what I will call a politics of forgiveness.¹ Such a jurisprudence would for me be influenced by the Radical Reformation, the Anabaptist reform movement that began in the 1520s in Zurich. If, with that influence, such a jurisprudence is possible, it will be important to see that:

        The church is a community constituted by forgiveness.

        The church, from such a community, practices a politics of forgiveness—not only for itself and its members but for everybody. “‘Forgive us as we forgive’ is the only petition in...

      • ʺIncendiaries of Commonwealthsʺ: Baptists and Law
        (pp. 340-353)
        Timothy L. Hall

        My aim in this essay is to chart the intersection between law and the particular communities of faith whose members have known themselves as Baptists. I do so with trepidation, though, because Baptists have traditionally been more than a little hesitant to be spoken for. A rather diverse assortment of souls have taken shelter under this theological standard: John Bunyan and Harvey Cox; Martin Luther King, Jr., and Jerry Falwell; William Jefferson Clinton and Jesse Helms. Even the names Baptists have chosen for themselves testify more to fractiousness than to unity, and to as sharp a readiness to distinguish themselves...

      • On Liberty and Life in Babylon: A Pilgrimʹs Pragmatic Proposal
        (pp. 354-368)
        Richard F. Duncan

        My purpose here is not to present a grand theory of the role of Christians in society. Nor is my goal to convince you that Christians should embrace libertarianism as a political theory or Biblical principle for all times and all places. I am neither a theologian nor a political scientist. I write as a sinner who has accepted Christ as Savior and as Lord, as a husband of a Christian wife, as a father of five children, and as an academic lawyer who teaches and writes about constitutional law. Although this essay is addressed to fellow “pilgrims” wandering in...

    • Section 4 Dualists:: Christ and Law in Tension

      • A House Divided? Anabaptist and Lutheran Perspectives on the Sword
        (pp. 370-385)
        David M. Smolin

        What is the relationship between Jerusalem (religious faith) and Rome (the state)?¹ This question takes a distinctive form for the Christian Church, which seeks to follow the teachings and example of Jesus. Jesus instructed the disciples to “resist not an evil person” and warned that “all those who take up the sword will perish by the sword.”² His followers had hoped that He would restore Israel politically and militarily, but Rome crucified Him. The New Testament portrays the apostles asking the resurrected Jesus when the kingdom would be restored to Israel, but they receive only an indirect answer from their...

      • Making Our Home in the Works of God: Lutherans on the Civil Use of the Law
        (pp. 386-404)
        Marie A. Failinger and Patrick R. Keifert

        In the past two centuries, the Lutheran witness has focused so critically and incessantly on grace, for which the law’s condemnation merely prepares us, that Luther’s “first” or “civil” use of the law is often overshadowed.¹ Indeed, Luther’s insight that salvation cannot be a human work—that recognition of one’s need for salvation is itself a gift of God—is so radical and extreme as to lead a careless reader to believe that in the moment of faith, the law vaporizes like a Romulan warrior into the ions of space.² Or Christians might imagine salvation as jurisdictional: for a Christian...

  8. Part Three Christian Perspectives on Substantive Areas of the Law

    • God′s Joust, God′s Justice: An Illustration from the History of Marriage Law
      (pp. 406-425)
      John Witte Jr.

      In the spring of 1995 I visited the great Saxon capital of Dresden. I stood on the banks of the Elbe River at the site of the Frauenkirche—the monumental domed church, consecrated in 1734, graced by one of Johann Sebastian Bach’s greatest organ concerts in 1736 and celebrated in German music, art, and literature ever since.

      It was a sobering moment. For the great church lay in ruins. A guide explained that the church did not survive the firebombing of Dresden near the end of World War II. On February 13 and 14, 1945, 773 Allied bombers emptied their...

    • Human Nature and Criminal Responsibility: The Biblical View Restored
      (pp. 426-434)
      Phillip E. Johnson

      At the beginning ofThe Selfish Gene,Richard Dawkins poses the question “What is man?” and in answer quotes with approval George Gaylord Simpson’s comment that “all attempts to answer that question before 1859 are worthless and that we will be better off if we ignore them completely.”¹ Eighteen fifty-nine was the year of publication of Darwin’sOrigin of Species,and what Dawkins and Simpson meant was that Darwin did not just say that humans descended from monkeys. What Darwinian theory came to mean is that human beings, like other animals, are a part of nature and hence can in...

    • Christianity and Environmental Law
      (pp. 435-452)
      John Copeland Nagle

      In the beginning, Genesis tells us, God created the heavens, the earth, and all of the creatures on the earth. Sometime thereafter, but still nearly four thousand years ago, God gave the law to Moses. The combination of the two—environmental law—is largely the product of our own generation.

      Of course, the story is not nearly that simple. Genesis, the rest of the Old Testament, and various passages in the New Testament are replete with stories and instructions regarding this earth and our obligation to care for it. The law that developed from God’s initial commandments included a host...

    • Can Legal Ethics Be Christian?
      (pp. 453-469)
      Joseph G. Allegretti

      In 1975 the theologian James Gustafson asked the provocative question, “Can ethics be Christian?”¹ Gustafson did not deny that Christians have been talking and writing about ethics since the time of St. Paul. He did not deny that Christianity has always included a wide range of ethical prescriptions and prohibitions. But, he asked, what is distinctive about Christian ethics? In what way is Christian ethics really Christian, not merely philosophical ethics dressed up in religious garb?

      I want to ask an analogous question: can legal ethics (or professional responsibility—I will use the terms interchangeably) be Christian? What can Christianity...

    • A Historical Perspective on Anglo-American Contract Law
      (pp. 470-485)
      C. M. A. Mc Cauliff

      The law of contracts might hardly appear to be a prime candidate for an expression of Christian beliefs and attitudes. For Christians, however, faith is relevant to all aspects of life, including economic relations. The Christian tradition demands that contract law, like all law in society, be viewed from the focal point of justice. Justice in this tradition is a complex tapestry of principles woven from many historical periods—classical antiquity, medieval Christendom, the Reformation, the Enlightenment, and our own period. At a minimum, however, it demands that the parties to a contract, as well as the society in which...

    • Tort Law and Intermediate Communities: Calvinist and Catholic Insights
      (pp. 486-504)
      Robert F. Cochran Jr.

      Tort law is commonly thought to be individualist in character.¹ Some tort law theorists celebrate its individualistic character.² Others lament it.³ But tort law theorists have failed to give attention to a countervailing strain in tort law. Many tort rules are not individualist in character; many were designed to protect and many others to make demands on intermediate communities—the families, religious congregations, and other associations that stand between the individual and the state.

      These tort law rules can best be understood based on what I will call “intermediate communitarian” theory, a theory drawn from Calvinist and Catholic social thought,...

  9. Contributors
    (pp. 505-510)
  10. Index
    (pp. 511-518)