Journal of Christian Legal Thought - Spring 2011

Vol. 1, No. 1 Spring 2011

Journal of Christian Legal Thought Introducing the Journal of Christian Legal Thought

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Speaking of Religious Freedom

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Essays Featured in This Issue

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Theological and Philosophical Foundations

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Seminal Works

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Law, Theology & Culture

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Practical Perspectives

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Journal of Christian Legal Thought Vol. 1, No. 1 • Spring 2011 Published by The Institute for Christian Legal Studies, a Cooperative Ministry of The Christian Legal Society and Regent University School of Law The Mission of ICLS is: To train and encourage Christian law students, law professors, pre-law advisors, and practicing lawyers to seek and study Biblical truth, including the natural law tradition, as it relates to law and legal institutions, and to encourage them in their spiritual formation and growth, their compassionate outreach to the poor and needy, and the integration of Christian faith and practice with their study, teaching, and practice of law.

Editorial Advisory Board: William S. Brewbaker, III Associate Dean and William Alfred Rose Professor of Law University of Alabama School of Law Zachary R. Calo Associate Professor of Law Valparaiso University School of Law Kevin J. Lee Professor, Campbell University School of Law C. Scott Pryor Professor, Regent University School of Law Michael A. Scaperlanda Gene and Elaine Edwards Chair of Family Law, University of Oklahoma College of Law Robert K. Vischer Professor, University of St. Thomas School of Law Editor in Chief: Michael P. Schutt Associate Professor, Regent University School of Law Director, Institute for Christian Legal Studies

Statement of Purpose The mission of the Journal of Christian Legal Thought is to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions.

Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Christian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and development, and its relationship to the revealed will of God, as well as the practical implications of their faith for their daily work. The Journal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological and practical reflection, both as a professional community and as individuals.

The Journal seeks, first, to provide practitioners and students a vehicle through which to engage Christian legal scholarship that will enhance this reflection as it relates to their daily work, and, second, to provide legal scholars a peer-reviewed medium through which to explore the law in light of Scripture, under the broad influence of the doctrines and creeds of the Christian faith, and on the shoulders of the communion of saints across the ages.

Given the depth and sophistication of so much of the best Christian legal scholarship today, the Journal recognizes that sometimes these two purposes will be at odds. While the Journal of Christian Legal Thought will maintain a relatively consistent point of contact with the concerns of practitioners, it will also seek to engage intra-scholarly debates, welcome inter-disciplinary scholarship, and encourage innovative scholarly theological debate. The Journal seeks to be a forum where complex issues may be discussed and debated.

Editorial Policy The Journal seeks original scholarly articles addressing the integration of the Christian faith and legal study or practice, broadly understood, including the influence of Christianity on law, the relationship between law and Christianity, and the role of faith in the lawyer’s work.

Articles should reflect a Christian perspective and consider Scripture an authoritative source of revealed truth.

Protestant, Roman Catholic, and Orthodox perspectives are welcome as within the broad stream of Christianity.

However, articles and essays do not necessarily reflect the views of the Institute for Christian Legal Studies, the Christian Legal Society, Regent University School of Law, or other sponsoring institutions or individuals.

To submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at michsch@ regent.edu.

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JCournal hristian of LC egal hristian Society Legal Thought

Journal Spring 2011

Introducing the Journal of Christian Legal Thought

By Michael P. Schutt

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et me introduce you to the Journal of Christian Legal Thought. It is a publication created to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions.

This project begins with the conviction that theological reflection about the law and legal institutions is the obligation of every Christian lawyer and law student. A lawyer who claims, “I am called” believes, first, that there is One who calls and, second, that this Caller reveals the “good works” that He has prepared for us to do. It is our job, as human beings created in God’s image, to seek both the Caller and the good works to which he calls us.

The work of seeking these things is, by definition, a theological task.

For the most part, we cannot accomplish this task alone. We need the Church. We need others similarly called. We need instructors. We can’t fully accomplish our pursuit of God and his call simply by spending a few hours in our Bible’s concordance or a commentary. In fact, specialized knowledge— usually in the form of instruction from others, like pastors and theologians and authors—is central to our task. Yet these “professionals” cannot accomplish this for us. The theological work of seeking the substance of the lawyer’s calling must be pursued, at least in part, within and through a community of faithful lawyers, law professors, and law students.

This journal exists, as our purpose statement affirms, to help practicing lawyers, law students, judges, and legal scholars engage in this theological and practical reflection, both as a professional community and as individuals. Part of our vision is to bridge the gap between current scholarship and the practical concerns of ordinary law practice. Often, the legal academy is out of touch with real-world law practice and more concerned with intramural debate and cutting-edge theory. On the other hand, we are lost without faithful, grounded legal scholars, since figuring out just how to love one’s neighbor as oneself in the law is often a complex and theoretical

task. The Journal’s primary goal is to provide practitioners and students a vehicle through which to engage Christian legal scholarship that will enhance theological reflection as it relates to their daily work.

The Journal will be published three times a year in electronic format. A bound, printed “abstract” edition will be distributed as an insert with The Christian Lawyer magazine. Usually, this “hard-copy” version will feature an introduction from the editor (which you’re reading right now), a regular column, Speaking of Religious Freedom, from Kim Colby, Senior Counsel at the Center for Law and Religious Freedom, and abstracts of the articles that will be available in full online. Our goal is to feature between two and four scholarly articles in each issue, abstracted in the print version so that Christian Lawyer subscribers can get a taste of what is available online. The abstracts in the print issue will allow busy practitioners to preview, then pick and choose which works are worth digging into further. The electronic version will be housed at the Christian Legal Society’s website, and past issues will be archived for reference.

As you may have noticed already, however, this inaugural issue does not follow this precise format Rather than beginning with three or four scholarly pieces, we decided to make the inaugural issue of JCLT a special one, highlighting works that a variety of scholars view as important to the project of cultivating Christian legal thought. This issue will serve, then, as a broad introduction to and a sort of annotated bibliography of some of the major scholarly works that might help legal professionals walk out our callings.

For this issue, the editors approached accomplished Christian professors and theologians, and asked each to write 500 words on a book or article of his or her choice, “helpful to the project of cultivating Christian legal thought.” The result is the collection of essays that makes up this volume.

These 31 very short essays give a diversity of expression to the concept of Christian legal thought, and

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should provide readers with encouragement and edification for further study and reflection.

The collection has a nice range: from broadly theological foundations—both Roman Catholic (Newman and John Paul II) and Protestant (Calvin and Kuyper) perspectives—to narrow practice areas (Climate Change and International Law), to sophisticated integration of the two (Uelman’s Toward a Trinitarian Theory of Products Liability, and Stern on Tuomala’s Christ’s Atonement as the Model for Civil Justice).The essays cover a variety of sources for, perspectives on, and approaches to Christian thinking about law and legal institutions. Some essays address the body of work of an important thinker, others only one book or article. From the broadly philosophical to the very practical, there is something of interest here for every lawyer and law student.

I am pleased to say that most of the usual suspects in the world of Christian legal theory are mentioned here, whether they hail from the more distant past (Aquinas, Calvin, Kuyper) or from more recent years (Berman, Finnis, Pope John Paul II).

While there are some notable absences which keep this collection from being a comprehensive catalogue of the foundational works in our field, it was not our goal to be comprehensive. Lord willing, we’ll have some time over the years to tackle many of the essentials works or to at least debate what they are. All the same, however, Professor Movsesian helps cover a multitude of omissions: he reviews the O’Donovans’ Sourcebook in Christian Political Thought, which includes excerpts from the work of virtually every essential thinker from Irenaeus to Grotius.

Luther taught that vocation is “the mask of God.” By this he meant that God “wears” or “hides behind” human beings—as if we are his masks—in order that He might love our neighbors through us. It is God, in other words, who through us, by us, and usually in spite of us, loves those around us.

He wears the mask of the doctor or the pharmacist as he heals, the mask of the teacher to instruct, the mask of the husband and wife to create life.

What work does he do behind the lawyer’s mask? What gracious ministry does he accomplish while hiding behind the mask of prosecutor, defense lawyer, Wall Street partner, or trial lawyer?

These are not always easy questions to answer, and the difficulties that lawyers have had in answering them are the stuff of legend.Yet our duty diligently to pursue this ministry and to answer those questions and to respond to his call is clear.

I pray that this Journal will be an encouragement to us, the community of lawyers seeking to love our neighbors, as we press in toward the Caller and His call.

________ Mike Schutt is the director of the Christian Legal Society’s Law Student Ministries and the Institute for Christian Legal Studies, a cooperative ministry of CLS and Regent University School of Law. He is the author of Redeeming Law: Christian Calling and the Legal Profession (InterVarsity Press 2007) and is an associate professor at Regent University School of Law. He is an honors graduate of the University of Texas School of Law.

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Speaking of Religious Freedom

By Kimberlee Wood Colby Senior Counsel, Center for Law and Religious Freedom

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011 promises to be a propitious year for religious liberty. The Supreme Court has announced important decisions limiting the ability of taxpayers to bring Establishment Clause challenges and protecting the expression of highly divisive religious and political viewpoints. The Court recently agreed to address the vital right of religious schools to choose their teachers without governmental interference under the “ministerial exception.”

Supreme Court Decides Key Establishment Clause Standing Case On April 4, the United States Supreme Court delivered its ruling significantly limiting Establishment Clause taxpayer standing in Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (April 4, 2011). The Court held that Arizona taxpayers lacked standing to challenge a state legislative program under which state taxpayers were allowed to claim tax credits (up to $500 for individual filers and $1000 for joint filers) for their contributions to school tuition organizations (STOs). The STOs in turn awarded tuition scholarships to private schools, including religious schools.

In litigation that has lasted well over a decade, state taxpayers challenged the tax credits as a violation of the state Establishment Clause, an argument the Arizona Supreme Court rejected, and the federal Establishment Clause, an argument the Ninth Circuit accepted but the Supreme Court rejected.

In Flast v. Cohen, 392 U.S. 83 (1968), the Warren Court created an exception, applicable only to Establishment Clause challenges, to the rock-hard rule that taxpayers lack standing, when acting solely as taxpayers, to object to the constitutionality of government expenditures. The Flast carveout encouraged taxpayers to mount Establishment Clause challenges to federal and state expenditures that could not otherwise have been tried against other constitutional provisions. Since 1968, the Court chipped away at Flast in Valley Forge Christian College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464 (1982) (no taxpayer standing for Establishment Clause challenge to agency’s transfer of federal property pursuant to the Property Clause), and Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion) (no taxpayer standing for Establishment Clause challenge to Executive Branch officials’ discretionary expenditures).

Writing for a 5-4 majority in Winn, Justice Kennedy continued chipping away, although he did not abolish the Flast exception, despite urging from concurring Justices Scalia and Thomas. Justice Kennedy explained that tax credits simply are not equivalent to legislative appropriations and, therefore, do not trigger the Flast exception for expenditures made pursuant to the legislative taxing and spending power. He rebuffed the dissent’s “contrary position … that income should be treated as if it were government property even if it has not come into the tax collector’s hands.” 131 S. Ct. at 1448.

Relying on the foundational First Amendment distinction between governmental and private action, choices, and speech, the majority noted that “[p] rivate citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs,” and, therefore, “the tax credit system is implemented by private action and with no state intervention.” Id. In her first opinion in a religious liberty case, Justice Kagan fired a broadside in dissent, joined

by Justices Ginsburg, Breyer, and Sotomayor. The dissenters would find standing because, in their view, both actual appropriations and tax credits give equal support to the religious schools and are constitutionally equivalent for purposes of the Establishment Clause. Id. at 1450 (Kagan, J., dissenting).

The Christian Legal Society filed an amici brief (2010 WL 3535061) in which it addressed the merits of the Establishment Clause challenge and strongly advocated a “private choice” analysis, essentially the same as the “private choice” analysis upon

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which the majority premised its procedural ruling against standing. Written by Professors Tom Berg and Douglas Laycock, the CLS brief was joined by the Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, the Council for Christian Colleges and Universities, the Center for Arizona Policy, and the Association for Biblical Higher Education.

Supreme Court Decides Distressing Speech Case On March 2, the Court held that freedom of speech protected the Westboro Baptist Church’s picketing of a funeral service for a soldier killed in the line of duty. Snyder v. Phelps, 131 S. Ct. 1207 (2011). The church frequently engages in scurrilous speech to express its religious belief that a soldier’s death signifies God’s judgment on America for tolerating various sinful conduct, including homosexual behavior, in the military and the country. A federal jury had awarded the soldier’s father a $10.9 million verdict against the church for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and civil conspiracy.

In an 8-1 opinion for the Court, Chief Justice Roberts found that the church’s speech addressed a matter of public concern in a public place and, therefore, enjoyed First Amendment protection that “cannot be overcome by a jury finding that the picketing was outrageous.” Id. at 1219. As the Court noted, however, a law that imposed contentneutral restrictions on funeral picketing might pass constitutional muster.

Justice Alito filed a lone dissent. In his view, the “commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Id. at 1222 (Alito, J., dissenting).

Supreme Court to Decide Whether Religious Schools’ Decisions Regarding Teachers are Protected by First Amendment On March 28, the Supreme Court agreed to hear a case likely to delineate the scope of the First Amendment’s protection of religious schools’ employment decisions regarding teachers who lead their classes. Specifically, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., No. 10-553, the Court will explicitly address for the first time the “ministerial exception.”

For decades, the courts of appeals have recognized that the First Amendment bars most employment-related lawsuits brought against religious

organizations by employees who perform religious functions. The courts agree that churches and synagogues enjoy a broad “ministerial exception” that protects their decisions to hire, promote, or fire their pastors, priests, and rabbis against application of laws banning discrimination on the basis not only of religion, but also of race, sex, age, and other bases. This protection is not based on the idea that discrimination laws are unimportant, but on the belief that the proper bounds between the church and the state require the government to defer to the church’s own decisions regarding which persons will transmit its religious beliefs and lead its religious mission.

In Hosanna-Tabor, a church and its school terminated a teacher for insubordination and failure to follow alternative dispute resolution processes as outlined by the church. After missing over half the schoolyear due to illness, an elementary school teacher insisted on returning to the classroom despite the school’s determination that her return would be disruptive to the students’ academic progress.

The teacher taught the full fourth grade curriculum, which included daily religion classes, was a commissioned minister, and regularly led classroom prayer and worship. The district court ruled in favor of the school and church. 582 F. Supp.2d 881 (E.D. Mich. 2008). But the Sixth Circuit Court of Appeals reversed based on its belief that the teacher’s “primary duties” were secular rather than religious because the teacher taught “religious material” only 45 minutes a day while teaching “secular material” the remaining 6 hours. 597 F.3d 769 (6th Cir. 2010).

For that reason, the court of appeals deprived the church and school of their ability to control who transmitted their religious values to their students.

In so ruling, the Sixth Circuit employed the “primary duties” test, which has been adopted by the Third, Fourth, Sixth, and D.C. Circuits. The test limits the ministerial exception to employees whose primary functions are to teach, spread the faith, govern the church, supervise a religious order, or participate in religious worship or ritual.

Four circuits, however, have rejected the “primary duties” test, deeming it too entangling of government with religious organizations. According to the Second, Fifth, Seventh, and Ninth Circuits, a court should consider the totality of an employee’s job duties, not just those considered by the court to be “primary duties.” In evaluating whether the employee has some substantial duties that are continued on page 8

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Essays Featured in This Issue Roger P. Alford, Professor, Pepperdine University School of Law, on Janis and Evans, Religion and International Law. Helen Alvare, Associate Professor, George Mason University School of Law, on John Paul II’s Theology of the Body.

Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy and Associate Dean for Academic Affairs, University of St. Thomas School of Law, on the work of Reinhold Niebuhr.

Jeffrey A. Brauch, Dean and Professor, Regent University School of Law, on Abraham Kuyper’s Calvinism and Politics.

Patrick McKinley Brennan, Associate Dean for Academic Affairs, Professor of Law, and John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law, on Joseph Vining’s From Newton’s Sleep.

Zachary R. Calo, Associate Professor, Valparaiso University School of Law, on John Ryan’s writings on economic justice.

Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law and Director of the Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics, Pepperdine University School of Law, on the books of Thomas L. Shaffer.

Robert P. George, McCormick Professor of Jurisprudence, Director of James Madison Program in American Ideals and Institutions, Princeton University, on John Finnis’s Natural Law and Natural Rights.

John D. Inazu, Visiting Assistant Professor, Duke University School of Law, on Robert Cover’s essays.

Kevin P. Lee, Professor, Campbell University School of Law, on Kenneth L. Schmitz’s At the Center of the Human Drama.

Mark L. Movsesian, Frederick A. Whitney Professor and Director, Center for Law and Religion, St. John’s University School of Law, on O’Donovan and O’Donovan’s From Irenaeus to Grotius: A Sourcebook in Christian Political Thought.

John Copeland Nagle, Professor, Notre Dame Law School, on Mike Hulme’s Why We Disagree about Climate Change.

Joel Nichols, Associate Professor, University of St. Thomas School of Law, on Christianity and Human Rights: An Introduction, edited by John Witte, Jr. and Frank S. Alexander.

David W. Opderbeck, Professor, Seton Hall University Law School, on the work of John Milbank.

Marc O. DeGirolami, Assistant Professor, St. John’s University School of Law, on James Fitzjames Stephen’s Liberty, Equality, Fraternity.

Mark Osler, Professor, University of St. Thomas School of Law, on Joseph Allegretti’s The Lawyer’s Calling.

Eric G. Enlow, Professor and Dean, Handong International Law School, on Jacques Elllul’s The Theological Foundation of Law.

C. Scott Pryor, Professor, Regent University School of Law, on Charles Taylor’s A Secular Age.

Richard W. Garnett, Professor of Law and Associate Dean, University of Notre Dame on Jacques Maritain, Man and the State

Vincent D. Rougeau, Professor, Notre Dame Law School, on David Hollenbach’s The Common Good and Christian Ethics.

Michael A. Scaperlanda, Edwards Family Chair in Law and Professor, University of Oklahoma College of Law, on Josef Pieper’s Leisure, The Basis of Culture.

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Elizabeth R. Schiltz, Professor, Co-Director of the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy, University of St. Thomas School of Law, on John Henry Cardinal Newman’s An Essay on the Development of Christian Doctrine.

Lucia Ann Silecchia, Professor, The Catholic University of America, Columbus School of Law, on Pope John Paul II’s Evangelium Vitae and the “Horizon of the Good.”

David M. Smolin, Harwell G. Davis Professor of Constitutional Law, Director of the Center for Biotechnology, Law and Ethics, Samford University, Cumberland School of Law, on King’s Letter from a Birmingham Jail and Lincoln’s Gettysburg Address.

Susan Stabile, Robert and Marion Short Distinguished Chair in Law and Professor, University of St. Thomas School of Law, on Amelia J. Uelmen’s Toward a Trinitarian Theory of Products Liability.

Craig A. Stern, Professor, Regent University School of Law, on Jeffrey C. Tuomala’s Christ’s Atonement as the Model for Civil Justice.

Amelia J. Uelmen, Director, Institute on Religion, Law & Lawyer’s Work, Fordham Law School, on Robert M. Cover’s Obligation: A Jewish Jurisprudence of the Social Order.

David M. VanDrunen, Robert B. Strimple Professor of Systematic Theology and Christian Ethics at Westminster Seminary California, on law in Calvin’s Institutes.

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Speaking of Religious Freedom considered religious, a court should defer to the church’s own view of the nature of the employee’s religious duties. Moreover, a court should consider the nature of the underlying employment dispute and avoid those disputes that are likely to entangle the secular courts in religious questions.

In Hosanna-Tabor, the church and school clearly view their teachers as having substantial duties that are religious. The Sixth Circuit failed to give proper deference to the church and school’s standpoint regarding the religious duties of teachers. Likewise, the court failed to exercise the proper deference to the joint decision of church leaders, school administrators, and a religious congregation that a particular teacher should not return to the classroom because they believed that her return violated the church’s process for resolving disputes and would be detrimental to student learning.1 CLS plans to file an amici brief in support of a generous application of the ministerial exception.

Two leading religious liberty authorities, Professors Rick Garnett and Tom Berg, have agreed to craft a brief that will urge the Court to safeguard religious schools’ ability to determine who transmits the schools’ religious beliefs to the next generation.

________ Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.

Robert K. Vischer, Professor, University of St. Thomas School of Law, on Cathy Kaveny’s Billable Hours in Ordinary Time.

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John Witte, Jr., Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion, Emory University, on the work of Harold Berman (1918-2007).

Christopher Wolfe, Emeritus Professor of Political Science, Marquette University, on the Treatise on Law of Thomas Aquinas.

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hile adopting no specific test, the remaining four circuits, W the First, Eighth, Tenth, and Eleventh Circuits, have applied the ministerial exception, albeit on an ad hoc basis.

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Philosophical Foundations

Reinhold Niebuhr on Human Nature, Sin, and Justice

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or Christians to think soundly about civil law, they must have a sound anthropology, or account of human nature. God ordains the institution of law, but human beings are the subjects of its regulation, and human beings administer it. If we misunderstand human beings, we will misunderstand the purposes and effects of law.

Theologian Reinhold Niebuhr set forth a powerful Christian account of human nature and applied it to problems of society and politics.

Niebuhr was a Protestant liberal and social activist who nevertheless reacted against the optimistic view of humanity held by many liberals. He recovered and restated classic Christian concepts that, he argued, offered a more realistic basis for pursuing justice—especially the concept of “original sin,” the pervasiveness of human self-interest.

Many of Niebuhr’s writings have relevance for law and lawyers, but I recommend Human Nature, volume 1 of his two-volume magnum opus, The Nature and Destiny of Man1 It argues at length that Christianity gives the most convincing account of human nature, especially of what Pascal called humans’ “greatness and wretchedness.” Compared with other theories, Niebuhr says, Christianity “claim[s] a higher stature for man” but also “take[s] a more serious view of his evil” (HN, at 18).

Niebuhr describes sin as humans’ response to the anxiety they feel over being both free and dependent.

We either seek to avoid finitude and dependence by asserting absolute value for some status or idea of ours—thus committing sins of pride—or we seek to avoid freedom by losing ourselves in partial goods such as sex or material things—thus committing sins of sensuality.

Niebuhr’s hard teaching, however, is that the very freedom that is the occasion for sin also calls us, through conscience, to achieve ever greater justice and brotherhood. “The freedom of man sets every

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standard of justice under higher possibilities,” but the “sin of man perennially insinuates contingent and relative elements” into efforts to realize those possibilities (281). Moreover, “it is not possible to make a simple separation between the creative and destructive elements”; thus “it is not possible to purge moral achievements of sin as easily as moralists suppose” (184). He applied this insight not only to political movements but to other human behavior, such as the parent who makes a will partly out of love to provide for her children after her death, but partly to continue exercising parental power through the bequest.

That human actions reflect profoundly mixed, tangled motives should not surprise lawyers. But Niebuhr places this fact in a theological framework by which Christian lawyers, activists, or statesmen can see matters realistically and still maintain hope.

His theology has its faults and omissions, and it does not produce determinate rules. Instead it provides a disposition for those who struggle to achieve justice in a fallen world. It requires constant self-criticism: Am I pursuing all appropriate options for increased harmony among persons, or for stronger legal protection for those in need? Am I also mindful of the ways in which my chosen moral cause, or my client’s case, may do injustice to others? The tension, the risk of sinning, is real but, in Niebuhr’s view, not paralyzing: for the final classic Christian insight is that God offers forgiveness and mercy when we acknowledge the sin in our striving.

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By Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy and Associate Dean for Academic Affairs, University of St. Thomas School of Law.

T he Nature and Destiny of Man: Human Nature (Scribner’s 1941) (hereinafter “HN”). Other crucial passages in Niebuhr’s work are collected in Reinhold Niebuhr:Theologian of Public Life (Larry Rasmussen ed., Fortress Press 1991).

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Abraham Kuyper’s Calvinism and Politics “There is not a square inch in the whole domain of our human existence over which Christ, who is sovereign over all, does not cry ‘Mine!’”1

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o declared Abraham Kuyper, one of the most remarkable men of the 19th and 20th centuries.

Seeing Christ’s sovereignty reflected in all of life was more than an interesting notion to Kuyper; it was the passion that drove his entire life. Indeed, Kuyper’s life seems to reflect his personal effort to bring Christ’s lordship into every aspect of society.

Here are some highlights from Kuyper’s amazing resume: • After receiving a doctorate in theology was called into the ministry • For 45 years edited both The Standard, a daily newspaper, and The Herald, a weekly Christian newspaper • Established the Free University of Amsterdam, in which he served both as teacher and administrator • Served as Netherlands Prime Minister from 1901-05 • Published numerous books in the areas of systematic theology, political theory, and devotional literature In each of these roles, Kuyper thought much about how God’s sovereignty should be reflected in various spheres of human activity—as well as how those spheres should relate to each other. In 1898, he shared his thoughts in depth in a series of six lectures delivered at Princeton University. We know them today as his Lectures on Calvinism or the Stone Lectures (sponsored by the L. P. Stone Foundation).

Lecture 3, entitled Calvinism and Politics, is a must read for any Christian seriously looking to integrate faith and law. In it, Kuyper seeks to explain from a Christian perspective the origin of governmental power as well as necessary limitations on that power. The lecture’s title reflects Kuyper’s commitment to reformed theology and occasionally puts off potential readers from different theological traditions.To ignore the lecture on this basis, however, would be a mistake; the lecture actually resonates

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Richard J. Mouw, Current Religious Thought: Abraham Kuyper: A Man for His Season, Christianity Today (Oct. 26, 1998, 12:00AM), http://www.ChristianityToday.com/ct/1998/ October26/8tc086.html.

with readers across denominational lines.

Kuyper makes it clear early that when he discusses Calvinism, he is not talking soteriologically. The piece has nothing to do with election or predestination.

The “Calvinistic” doctrine that serves as the foundation of his piece is simply the “Sovereignty of the Abraham Kuyper, Theologian, Pastor, Prime Minister Triune God over the 2 whole Cosmos.”

So why should a Christian desiring to think biblically about law read this lecture—given over 100 years ago by a Dutch Calvinist? Because in it, Kuyper confronts issues that could not be more timely today. And he does so in a thoughtful— and thought-provoking—way. Here are three such issues.

How Should a Christian View Government?

To hear many Christians in the public sphere today, one would think that government is an evil or at least an adversary. That wasn’t Kuyper’s view.

He insisted that government is good, an instrument of God’s grace. All government authority originates from God and his sovereignty alone. Kuyper maintained that no human has the right to rule over another but for God’s grant of that authority.

Such authority is not natural, and it can’t be created through some social contract.

Why would God grant such authority? Human sinfulness. Government is a check on fallen human nature. The magistrate “is instituted by God as His Servant, in order that he may preserve the glorious work of God, in the creation of humanity, from total destruction” (82-83). Thus, “justice bears a holy character” (83). Here, Kuyper sounds very much like Paul in Romans 13. continued on next page

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Abraham Kuyper, Lectures 1931).

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Are There Meaningful Limits on Governmental Power?

Kuyper insisted that viewing God’s sovereignty as the source of authority also provides vital checks on that authority. First, if magistrates rule as God’s servants, they are accountable to him and his law.And citizens who embrace God’s sovereignty can demand accountability to this higher law. God’s sovereignty “creates in us the indomitable courage incessantly to protest against the unrighteousness of the law in the name of this highest Right” (90). Kuyper argues historically that for this reason, nations built upon a belief in the sovereignty of God—nations such as England, the United States, and the Netherlands— have provided great protections for personal liberty and the rule of law.

Kuyper finds a second practical check on government in the authority of other spheres of social life. He insists that spheres such as universities, churches, and labor unions also have God-given authority. More than this, they are sovereign within their spheres and should be protected from encroachment by others, including government.

Today, when government is often looked to for solutions to every social problem, this doctrine of “sphere sovereignty” for which Kuyper is justly famous, is a needed part of dialogue over government’s role.

How Should a Christian View Philosophies that Reject a Higher Law? While belief in a higher law may still have been the dominant view in Kuyper’s day, it is no longer so.

Legal realism, law and economics, various forms of deconstructionist theory, and legal positivism have largely displaced higher law thinking since Kuyper’s death. Kuyper’s lecture, however, addressed the rise of competing legal theories and did so in ways that instruct today.

Kuyper directs a particularly strong attack against positivism, which he labels “state sovereignty” (85).

As if envisioning the rise of powers like Nazi

Germany that would embrace positivism and justify tremendous injustice in the name of state sovereignty, Kuyper argued eloquently that personal liberty could not survive in a world where the state is the ultimate authority and is not accountable to God or any higher authority. “[A]ll transcendent right in God, to which the oppressed lifted up his face, falls away. There is no other right but the immanent right which is written down in the law.

The law is right, not because its contents are in harmony with the eternal principles of right, but because it is law. If on the morrow it fixes the very opposite, this also must be right” (89).

Conclusion To be sure, Kuyper’s lecture has weaknesses. In it Kuyper expresses a sometimes troubling view of different races and cultures. In addition, while he founded a university, he was not a philosopher. And Calvinism and Politics was a speech, not a treatise.

Kuyper left unanswered certain questions and unexplored the implications of certain positions.

Still, Kuyper’s lecture is well worth the read and serious consideration. In a world where government seems omnipresent and one wonders whether there are any limits to its reach or how much room exists for other civil societies, Kuyper offers encouragement and possible alternatives. Above all it is a joy to explore the mind of a man who refused to live a fragmented, compartmentalized life— who was dedicated to engaging his world with the implications of God’s sovereignty over all of life.

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By Jeffrey A. Brauch, Dean and Professor, Regent University School of Law.

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Jacques Ellul, The Theological Foundation of Law (1960)1 “Because Jesus has come, it is imperative to work out a law and obey it.”

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hristian legal thought, Ellul urges, should detail the extensive differences Jesus’ coming makes for law. Generally, man can have a previously unattainable wisdom and justice for law by following Jesus.2 For example, before Jesus, man lacked wisdom to respond properly to the world’s unjust, yet beneficial, legal systems. They are unjust in falling short of God’s law of love, the standard of “substitutive justice” (p. 43) revealed

by Jesus, but they are nonetheless beneficial and authoritative. Responding wrongly, natural man tends to lower his standard of justice to justify law’s authority, or he attacks law’s authority to vindicate justice. Man has great difficulty simultaneously affirming and condemning our legal systems as they deserve. But Jesus both “exposed the fundamental injustice of mankind, in the trial before Pilate [and] at the same time, he authenticated human justice by submitting to it” (42). Now, by following Jesus, we can both fully condemn legal authorities for violating God’s justice and still submit to them because we follow an authoritative person who did both.This is not a rational synthesis of the “injustice” and “legitimacy” concepts. The synthesis of the two occurs only in the following of Jesus. In Him, Christians can hold two attitudes together toward law – full condemnation and full commendation that previously were naturally separated. Ellul offers many such illustrations of the new wisdom for law that comes only in following Jesus.

Ellul, therefore, warns Christians not to be captivated by traditional legal philosophies.3 They depend on man’s understanding of the world’s natural principles. Their wisdom is foolishness because Jesus, having made a spectacle of worldly powers, is now the foundation of all rule and authority. Whether the proposed foundation is the nature of man (Aristotelian natural law), the state (positivism), or the world (naturalism), Christians reject any hollowed out jurisprudence that deceptively displaces Jesus. Ellul affirms, however, natural law’s value and historical role in the development of all legal systems. Man wants to rule

“Le fondemont théologique du droit” (1946).

Corinthians 1:20-31.

3 Ellul follows throughout here the structure of Colossians 2:8.

himself, to find a peace without divine grace. In his early need, man profits from an uninvented sense of justice. He cannot fully explain or implement this natural law because he rejects its true divine source, the fear of God. This natural law, Ellul believes, exists and brings material benefits. But it is an unsustainable stage in a historical process by which God demonstrates our need to follow Jesus rather than our own understanding. Societies sporadically conform to the law of God by protecting some of God’s institutions, but not because man acknowledges it as God’s law and obeys for His sake. Since man acts for himself, he is eventually emboldened to abandon his reliance on natural law and trust in the success of his positive institutions.

For Ellul, the positivist stages of successful societies are unavoidable because conformity to natural law arose from a natural dependency which they now lack. As natural law was never embraced from fear of God, man’s idolatrous desire for self-rule suppresses it as soon as naturally possible: “Though they know God’s decree that those who practice [evil] things deserve to die, they not only do them but give approval to those who practice them.”4 Christian legal thought, for Ellul, is thus not inherently concerned with reviving natural law.

This is impossible in wealthy, idolatrous societies.

“What is Christian springs from faith in the person of Jesus Christ” (13). Whether we find ourselves in natural-law systems or not, the goal of Christian legal thought always remains to expound “what the lordship of Jesus means for law (law as it exists)” (13). Christian accounts of law are evangelical, beginning with good news about wisdom and justice in Jesus and ending with a call to follow Jesus. They place Jesus at the center of law so that in all legal discussion and action Jesus’ lordship may be proclaimed. Ellul concludes, “Schema Israel! People of God, give ear!” (140).

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By Eric G. Enlow, Dean and Professor of Law, Handong International Law School.

1 2

4

Romans 1:32.

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Jacques Maritain, Man and the State (1951)

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acques Maritain was one of the twentieth century’s most important and influential Christian philosophers and political thinkers.

That said, his work, thought, and aspirations were not limited by the boundaries of any particular academic disciplines or traditions. His was, as Professor Brennan has observed, a “quest to understand the whole of reality, created and redeemed.”1 A great scholar of the medieval accomplishments of the Angelic Doctor, St.Thomas Aquinas, Maritain’s distinctive Christian Humanism shaped the Universal Declaration of Human Rights, the Second Vatican Council, and the writing of the late Pope John Paul II. At the heart of Maritain’s project was, always, the dignity and destiny of the human person, who is never an abstraction but always a subject, called to an intimate relationship with God. “A single human soul,” he believed, “is of more worth than the whole universe of bodies and material goods.” It is for this reason, he insisted, in Man and the State, that “man is by no means for the State. The State is for man.”

Man and the State is Maritain’s exploration of the implications for democratic politics, humanrights law, and church-state relations of Christian moral anthropology and the natural law. In this and other works, he clarified the nature and bases for human authority and at the same time questioned and constrained all pretensions, this side of Heaven, to absolute sovereignty. His politics is oriented to the common good of persons and shaped always by the fact that, as he put it, there are “things that are not Caesar’s.” To say this is not to – and he did not – denigrate politics or short-change the political community; it is, however, to propose the “primacy of the spiritual.”

Patrick McKinley Brennan, Jacques Maritain, in John Witte Jr. & Frank S. Alexander, The Teachings of Modern Christianity on Law, Politics & Human Nature, Vol. 1 75, 76 (2006).

Of special importance today is Maritain’s discussion and defense, in Man and the State, of the rights and freedom of the Church. He appreciated that religious freedom, correctly understood, cannot be reduced to concessions by the state to the reported demands of individuals’ consciences, and he warned of those who claim to respect freedom of religion by “shutting up religion in its own heavenly sphere, and forbidding it any influence on earthly life, as if it were possible to forbid heaven to send rain on the earth or shine upon it.” While calling for the Church to disentangle itself from the state, and emphasizing its right to govern itself and direct its own affairs, he called also for productive and respectful cooperation between the two. “Insuring to the Church her full liberty,” he observed, “is fundamentally required by the God-given rights of the Church as well as by the basic rights of the human person.” What’s more, he suggested, “it is . . . required by the common good of the body politic.”

Every system of law, and all attempts to protect rights and liberties through law, reflect, as Professor Coughlin put it, “certain foundational assumptions about what it means to be human.”2 Faulty assumptions about this matter will result in anti- or inhuman regimes. A “faithful image” of the person, Maritain proposes, will ground and sustain both human rights and the institutions necessary to protect them.

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By Richard W. Garnett, Professor of Law and Associate Dean, University of Notre Dame.

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Rev. John J. Coughlin, O.F.M., Law and Theology: Reflections on What it Means to Be Human from a Franciscan Perspective, 75 St. John’s L. Rev. 609, 610 (2000).

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Kenneth L. Schmitz, At the Center of the Human Drama (1993)

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his book is a guide to John Paul the Great’s early philosophical work, which he wrote under his birth name, Karol Josef Wojtyla.

There are many works on Wojtyla’s thought, but Schmitz explains that Anglophone scholars have suffered from the lack of reliable translations of some important texts. In particular, he notes that the collection of essays known as the “Lublin Lectures” is not available in an English language edition (Schmitz makes use of a German edition). Nonetheless, these essays are essential to understanding Wojtyla’s philosophy. In this insightful introduction to Wojtyla’s thought, Schmitz has performed a valuable service by addressing these deficiencies.

Legal theorists will be particularly interested in what Schmitz calls the “secularization of the interior.” He refers to Wojtyla’s claim that modern philosophies of consciousness do not give adequate consideration to the phenomena associated with religiousness. More precisely, Wojtyla argues that it is characteristic of modern thought to view consciousness solely in terms of the cognitive awareness of “mental objects” (what phenomenologists call “intentionality”). For Wojtyla, this is a limitation on modern thought because it reduces consciousness to only one of its aspects.

There are also non-intentional dimensions to human consciousness, by which he means mental states that lack a clearly comprehended mental object. (It might be more correct in contemporary usage to speak of non-representational intentionality). For example, many aspects of emotional affect are ineffable because they extend beyond mental objectification.

Some psychologists and philosophers argue that music is emotionally evocative because it appeals to conscious experiences that are ineffable in this way.

These non-intentional aspects to consciousness were recognized as having theological significance

by early Christians, including St. Augustine, who believed that the image of God (imagio dei)— and therefore the dignity of the person—was fundamentally tied to the non-intentional aspects of experience. Wojtyla appears to have concurred with them that the non-intentional dimensions of consciousness implicate the mystery of the person.

As Pope John Paul II, he referred in many encyclicals to this passage from section 22 of Gaudium et Spes: “Christ, the final Adam, by the revelation of the mystery of the Father and His love, fully reveals man to man himself and makes his supreme calling clear.” This passage clearly links human dignity to the mystery that human beings are to each other and to themselves.

Christian lawyers and theorists should find Wojtyla’s analysis alarming since, if he is correct, many of the philosophical presumptions that underwrite contemporary legal theories are methodologically blind to a traditional Christian claim about human dignity.While Wojtyla’s critique might have obvious application to some forms of legal theory, such as Law and Economics, its most powerful implications might be for natural law theories that discount the Augustinian elements of Thomism. For Wojtyla, theories that undermine the intrinsic mystery of the person also undermine the intrinsic dignity and worth of the person, and therefore risk becoming instruments of ideological claims that can develop into totalitarian states.This was the lived experience that he shared with millions of victims of Fascism and Communism.

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By Kevin Lee, Professor, Campbell University School of Law.

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John Milbank for Christian Lawyers

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he role of positive law in a pluralistic democracy presents a significant theological problem for anyone who takes Christian theology seriously. That this is so might not seem immediately evident to many Christian lawyers in America.

If you are reading The Christian Lawyer, there is a more than fair chance that you have been influenced by the American culture wars. Whether you consider yourself “progressive,” “conservative,” or something in between, if your conception of positive law has been shaped by the culture wars, you probably think the task of the “Christian lawyer” in the public square is to explain in neutral terms, accessible to everyone, why certain legal rules or policies comport with intrinsic, self-evident, common-sense notions of what is good for society.

Theologically, this approach is tied to views of “natural law” or “common grace” that assume most people in most times and places basically know what is really good and bad.The longstanding theological problem of the relation between nature and grace is essentially passed over by assuming that the inherent imago Dei, or grace, or some vague combination of both, provides common ground for public reason.

Curiously, for many culture warriors, nature and/or grace usually seem to deliver reasons that look much like the platforms of one or the other of the major political parties. If you have a sneaking suspicion that this is too optimistic, too easy, too closely wedded to the preoccupations of American power politics and the selfish logic of the market, too attached to modern notions of “neutral” human reason divorced from the historic commitments of Christian faith, you might want to explore the work of John Milbank.

In his influential and difficult book Theology and Social Theory (Blackwell, 2d ed., 2006), Milbank seeks to re-infuse Christian theology with the priority of metaphysics and ontology. He excavates the Christian philosophical tradition in an effort to recover the pre-modern idea that Christian theology is a scientia that comprises the true explanation

of what reality really is like. At times, Milbank sounds like the contemporary neo-Thomists and neo-Calvinists who tend to dominate the law and religion discourse in America. He notes, for example, that “more importance must be given to propositions, and so to ontology,” than is permitted by the post-liberal cultural-linguistic theory of doctrine that in recent years has provided the most clear path between fundamentalism and liberalism (TST, at p. 384).

But Milbank takes seriously the postmodern critique of foundationalism. He mercilessly deconstructs all social theories, whether secular or presumptively Christian, based on any supposed foundation other than the reality narrated in the Christian story and incarnated in the Christian community. Any account of reality in which there is any such thing as “secular reason,” for Milbank, represents pagan or atheistic philosophy. Christian theology need not “answer” to secular reason.

Rather, the reality of the Christian God revealed in Jesus Christ is the only ground for any sort of account of “reason.”

Many readers will disagree with some of the implications for political theology that Milbank draws from this return to ontology, not least his version of “Christian socialism.” Yet some of those same readers might be surprised to note the affinities between Milbank and, say, Abraham Kuyper’s sphere sovereignty as developed by his student Herman Dooyeweerd. In any event, anyone who makes the effort to read through Theology and Social Theory will be rewarded with a renewed commitment to the priority of a thoroughly theological account of the good in relation to any truly “Christian” theory of positive law.

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By David Opderbeck, Professor of Law, Seton Hall University Law School.

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John Henry Cardinal Newman, An Essay on the Development of Christian Doctrine (1878)

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ne challenge of articulating a distinctly Christian legal theory is the difficulty of reconciling two dramatically different temporal frames of reference. On the one hand, our training in legal reasoning accustoms us to thinking about “the law” as an expression of the evolving mores of a society, constantly adapting to the changing needs of the society it serves. On the other hand, as Christians we are accustomed to thinking of precepts of faith as immutable truths, and we resist the idea that such truths should evolve over time.

How can we integrate our faith in the immutability of God’s revelation with our understanding of the evolutionary nature of the law?

John Henry Newman’s An Essay on the Development of Christian Doctrine (1878) offers invaluable insight into this complex dynamic.When Newman began to write this book, he was one of the most prominent intellectuals of the Church of England, a leader in the Oxford Movement, which was dedicated to reforming the Church of England to assert its position as the most faithful manifestation of the Church Jesus established on earth. He started the book in an effort to prove that the evolution of Roman Catholic doctrine represented a corruption of the revelations of Jesus. Famously, though, Newman’s inquiry convinced him of the opposite; he converted to Roman Catholicism a few months before the book was published. While Newman’s formulation and application of seven “notes” for distinguishing genuine development of an idea (in this case, Catholic doctrine) from the corruption of that idea are important contributions to Catholic thought, what is of immense value to all Christian legal scholars is Newman’s exploration of the process of the development of ideas.

Newman observes that no idea is ever absorbed either neutrally or fully into the mind.Any impression received by the mind is instantly judged by being compared and placed into relationship with the other ideas that mind already holds. Furthermore, the individual impressions we receive are necessarily only our impressions; since the impression of the same object or idea received by another person’s mind is necessarily colored by that person’s judgments about the impression, it will present a different view (or aspect) of that idea. An idea is never fully captured in some sort of objective entirety by one individual’s impression of that idea. Newman argues that the same dynamic applies when a “living” idea, “some great enunciation, whether true or false, about human nature, or present good, or government, or duty, or religion” seizes the collective imagination

of a substantial number of men.

Just as an idea is never absorbed neutrally and fully by any individual human mind, it is never absorbed neutrally or fully by the collective imagination. An idea will move men to action before they can John Henry Cardinal Newman either understand (1801-1890) why they are being moved to such action, or articulate the idea adequately. “There will be a general agitation of thought, and an action of mind upon mind.” This confused, tumultuous process of integrating various individuals’ conceptions of the idea eventually resolves itself into some definite articulation of the idea, some teaching, which will in turn be modified and expanded as new aspects of the idea come to light. The idea will be understood in relation to other ideas held by the community, as well as the particular circumstances of the time and place of that community; at the same time, the idea will “in proportion to its native vigour and subtlety” have an effect on the life and the structures of that community, growing eventually into an ethical code, a form of government, or a theology.

Newman calls this process the “development” of an idea -- “the germination and maturation of some truth or apparent truth on a large mental field.” For Newman, the salient characteristic of development is that it cannot take place anywhere other than “in the busy scene of human life.” It cannot take place in isolation, in any sterilized, Petri-dish intellectual environment in which an idealized thinker might try to reason out the objective and complete contours of that idea in its purest essence, unaffected by any other influence. Development can only happen in whatever contexts and situations the human beings carrying it out find themselves. It only progresses by displacing other, competing views of the idea that precede it or exist simultaneously. It is thus inevitably turbulent and polemical. . . . It is the warfare of ideas under their various aspects striving for mastery, each of them enterprising, engrossing, imperious, more or less

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incompatible with the rest, and rallying followers or rousing foes, according as it acts on the faith, the prejudices, or the interest of parties or classes.

This sort of warfare is inevitably difficult, messy, chaotic and unpredictable. Nevertheless, Newman argues that this battle of engagement with competing ideas must be joined in order to preserve the idea, for “whatever be the risk of corruption from intercourse with the world around, such a risk must be encountered if a great idea is duly to be understood, and much more if it is to be fully exhibited.” This continued engagement of an idea with history, with the changes of the human condition over time, is what guarantees the integrity of an idea over time.This is what makes an idea a “living idea.” Newman reassures his readers that change in the appearance of an idea is not an indication of inconsistency. Rather, in one of his most famous lines, he explains, “It changes . . . to remain the same. In a higher world it is otherwise,

but here below to live is to change, and to be perfect is to have changed often.”

Newman argues that the same dynamic applies when the “idea” at issue is a revelation of faith.

As Christians we can receive and accept these revelations on faith, and they can move us to action before we fully understand them, but we are charged with the further task of joining the battle -- the turbulent, polemical warfare of applying these revelations to the realities of our changing lives -- in order to preserve the truth of that revelation over time. Understanding our engagement with the law in those terms is, I think, an invaluable insight to anyone interested in articulating a Christian legal theory.

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By Elizabeth R. Schiltz, Professor, University of St. Thomas School of Law (MN).

Pope John Paul II’s Evangelium Vitae and the “Horizon of the Good”

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hrough the centuries, Christian legal thought has concerned itself with addressing the pressing legal questions of the day through the prism of unchanging moral principles. In 1995, Pope John Paul II’s encyclical letter, Evangelium Vitae presented to the world a sobering analysis of “the sacred value of human life from its very beginning until its end.” (Pope John Paul II, Evangelium Vitae (March 25, 1995), ¶ 2). Threats to vulnerable human life are, sadly, the central human and civil rights tragedies of my generation. In Evangelium Vitae, Pope John Paul II addresses these threats as the moral crimes that they are. Thus, all those who dedicate their lives to the protection of human life at its most vulnerable will find in his words the inspiration for their vocation, and an eloquent, impassioned affirmation of the vital need for their work. However, Evangelium Vitae goes beyond this important task and in so doing provides a valuable reflection on the law and its limits in such a way that it should be of interest to all lawyers, judges, and students of jurisprudence who search for the moral underpinings of law.

Pope John Paul II frames the challenge of defending life in the broader context of the fundamental dilemmas that have challenged legal thinkers throughout time: – What are the boundaries of individual freedom?

– What is the proper limit of majority rule?

– How do culture and society influence law and, conversely, how is law a product of culture and society?

– How does the human conscience shape the law and, conversely, how does the law shape human consciences?

– Where lies the source of human rights?

– What is the connection between freedom and truth?

– What accounts for the disparity between the high minded rhetoric of fundamental rights and the failure to live up to it?

– How are the notions of individual rights and solidarity with others to be reconciled in a way that does justice to both values – particularly with respect to those who are most vulnerable?

Because this letter addresses a critical set of moral questions by tackling the fundamental ethical obligations of those involved in the legal profession, Evangelium Vitae has much to say to 21st century Christian lawyers, judges and scholars.

In particular, Pope John Paul II’s discourse on the relationship between public freedom and personal conscience speaks not only to the life and death questions at the heart of Evangelium Vitae, but also to all other moral challenges that are the subject of public law. He writes: [W]e have what appear to be two diametrically opposed tendencies. On the one hand, individuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the State should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom

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Pope John Paul II’s Evangelium Vitae of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen. On the other hand, it is held that, in the exercise of public and professional duties, respect for other people’s freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognized and guaranteed by law; in carrying out one’s duties the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere. (¶ 69) The notion that there are principled limits on personal freedom may seem difficult to embrace.

This is certainly true of those within democratic systems that prize individual freedom; it may be even more true of those who know from study or experience – as did Pope John Paul II – the immoral ends to which totalitarianism and lack of freedom may lead. Yet, as he writes, a freedom unbound by morality can be every bit as dangerous as totalitarianism. Indeed, Evangelium Vitae’s critique of simplistic majority rule suggests that the former may be even more dangerous because it can disguise immorality with a veneer of legitimacy and freedom: There are those who consider... relativism an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people and acceptance of the decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance....

But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus? … [T]he value of democracy stands or falls with the values which it embodies and promotes.... The basis of these values cannot be provisional and changeable “majority” opinions, but only the acknowledgment of an objective moral law which, as the “natural law” written in the human heart, is the obligatory point of reference for civil law itself (¶ 70).

This requirement that civil law conform to moral law comes with it a strong warning to jurists that they have an affirmative obligation to shape the law in accord with moral principles and to refuse cooperation with or compliance with those laws that are immoral.

The right to, and on occasion the obligation of, conscientious objection to immoral laws is also addressed in Evangelium Vitae. With respect to abortion and euthanasia, in particular, Pope John Paul II writes that these are “crimes which no human law can claim to legitimize” (¶ 73). When

facing a law that is immoral, he states forcefully that “[t]here is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection” (¶ 73). Many others have certainly articulated the obligation of conscientious objection in particular circumstances. Pope John Paul II, however, speaks of the obligation of societies to respect and protect the right to conscientious objection by identifying it as a “basic human right” (¶ 74). He says: Were this [protection of conscientious objection] not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised. What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law . . . . (¶ 74).

Thus, Evangelium Vitae is, in some important ways, a “must read” for the Christian lawyer who seeks to reflect on the fundamental links between law and morality. It is also, in a way that is touching personally and pastorally, a reminder about the limitations of law. That is a great comfort in that it celebrates the potential for personal virtue even when that is not enshrined in law. Yet, it is also a great challenge because it is a sobering limitation that while law can set a floor of minimal morality, it does—and ultimately can do—little to set the upper boundary of love to which all are called: God’s commandments teach us the way of life.

The negative moral precepts…have an absolute value for human freedom. … They make it clear that the choice of certain ways of acting is radically incompatible with the love of God and with the dignity of the person created in his image. Such choices cannot be redeemed by the goodness of any intention or of any consequence; they are irrevocably opposed to the bond between persons; they contradict the fundamental decision to direct one’s life to God. In this sense, the negative moral precepts have an extremely important positive function.

The “no” which they unconditionally require makes clear the absolute limit beneath which free individuals cannot lower themselves. At the same time they indicate the minimum which they must respect and from which they must start out in order to say “yes” over and over again, a “yes” which will gradually embrace the entire horizon of the good (¶ 75).

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By Lucia A. Silecchia, Professor of Law, The Catholic University of America, Columbus School of Law

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Jeffrey C. Tuomala, Christ’s Atonement as the Model for Civil Justice, 38 Am. J. Juris. 221 (1993)

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hat is the nature of civil justice? The answer must be a key element of Christian legal thought. Dean Tuomala’s thirty-five page masterpiece answers the question, and his answer comes from the core of the Christian faith, the doctrine of the Atonement.

Tuomala’s argument rests upon the link between civil justice and God’s justice. The civil magistrate is God’s servant who administers wrath in punishing wrongdoers. As God’s servant, he administers God’s wrath—his righteous, just wrath.

Tuomala moves from this generally accepted Jeffrey C. Tuomala, Professor of Law and proposition to the Associate Dean, Liberty proposition that God’s University School of Law wrath in punishing wrongdoers appears clearest in the biblical teaching on Christ’s Atonement, and so on to the proposition that Christ’s Atonement is the model for civil justice.

The heart of Tuomala’s article associates four theories explaining Christ’s Atonement with four theories of civil justice. Certainly the Atonement of Christ has significance far beyond the forensic, and civil justice embraces more than criminal law, but Tuomala’s chief interest is to draw out for criminal law the implications of Christ’s Atonement.

One of the two theories of the Atonement that Tuomala labels utilitarian is the moral influence theory. This theory holds that, in responding to lawbreaking, God the Father is a lord or creditor free to forgive debts and who wills to do so for those who believe and obey. The man Jesus Christ suffered to move us to believe and obey so as to meet the conditions of forgiveness. No role is played by a Holy Spirit. This theory of the Atonement embraces an understanding of justice reflected in the rehabilitationist theory of civil justice.

The response to crime is no function of desert, but rather of utility. Civil government changes the hearts of the antisocial. The church has no essential role to play in reformation. (The trinitarian approach to Christ’s Atonement and its parallels in civil society are typical of Tuomala’s discussion of the four sets of theories, as are the evaluations he offers for each set.)

The second utilitarian Atonement theory is the governmental. It casts God the Father as a ruler who willed to punish an innocent Christ to secure order, and who wills to forgive our lawbreaking if we repent and believe. Christ died to preserve the moral order by frightening us into repentance and belief. God the Holy Spirit works generally or not at all. To this governmental theory of the Atonement the deterrence theory of civil justice corresponds. Again, as with rehabilitationism, crime calls for a useful response other than desert.The civil government is to preserve order through fear. The church is ineffective. (Not frightening enough?)

A third theory of the Atonement Dean Tuomala calls the mystical theory. It posits a God from whom we feel alienated, a Christ who lived to show and mystically effect God-consciousness, and a Holy Spirit of doubtful existence or effectiveness. Social justice is the theory of civil government Tuomala matches with the mystical theory. It understands offenses as products of alienation, as a lack of solidarity. Civil government is somehow to effect solidarity, forcing us to act as if sympathetic. The church only hurts these efforts. Its exclusivity hinders universal solidarity and community.

Dean Tuomala disapproves these three theories of the Atonement and their corresponding theories of civil government. It is instead the satisfaction theory that he approves. Tuomala focuses on its penal aspect. This holds that God the Father is a just and righteous judge, who punishes Christ in our place. Christ, God the Son, in whom the elect are united, suffers the just penalty of sin. (He may in so doing inspire fear of judgment, love of God, and reformation, but these consequences flow as incidental to his suffering the penalty deserved for sin.) God the Holy Spirit applies Christ’s objective work to believers subjectively, uniting them to Christ and working in them the consequences of this union.

While mentioning the restitutionary aspect of civil justice, Dean Tuomala focuses on the retributive theory of civil justice corresponding to the penal satisfaction theory of the Atonement. The retributive theory understands offenses as demanding deserved condemnation and punishment according to standards of justice. Civil government punishes offenders according to these standards, laying the objective ground for restoration and reconciliation.

(It may thereby deter and provide an occasion for reformation, but those are outcomes incidental to supplying just deserts.) The church administers

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Jeffrey C. Tuomala, Christ’s Atonement subjective reconciliation, fostering reformation and community. This theory, Tuomala finds, is a genuinely Christian theory of civil justice, truest to the biblical teaching on justice manifest in Christ’s Atonement.

For its elegance, depth, scope, and explanatory power, Dean Tuomala’s essay is a remarkable work

of Christian legal thought, essential to a Christian understanding of civil government. It connects the enterprise of human law to the central narrative of the Bible and the very heart of the Christian faith.

________

By Craig A. Stern, Professor of Law, Regent University.

Law in Calvin’s Institutes

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ohn Calvin (1509-64) is one of the eminent theologians in the history of Christianity and his magnum opus, the Institutes of the Christian Religion is a work of monumental significance. Few masterpieces of theology are justifiably included among significant texts for Christian legal thought, but in this case the honor is easily defensible. Calvin was no amateur when it came to law. He received extensive legal training in his youth, under several of the most important Humanist legal scholars of his day, and his first published work examined Seneca’s De Clementia. Calvin was also famously involved in the civil as well as ecclesiastical life of Geneva, his adopted hometown.

Calvin addressed legal themes in the Institutes, therefore, from a wealth of learning and John Calvin (1509 - 1564) experience, in a way that would influence generations of Western thinkers and societies.

Calvin wrote profoundly about law in general.

With many fellow Reformers, Calvin believed that distinguishing the law (what God requires of us) from the gospel (what God promises us) is essential to sound theology. For example, justification— being declared righteous before God—comes not by obedience to the law but only by faith in Christ and his gracious gospel (3.11). But this did not entail a negative attitude toward the law. Calvin developed the idea that the law has “three uses.”

While law in its first use exposes human sin and the impossibility of saving ourselves, the second use has the critical task of restraining sin and preserving order in society, and the third use shows the way of grateful obedience for God’s redeemed people (3.7).

Calvin’s Institutes also has important and balanced things to say about civil law. Against contemporary Anabaptist extremists Calvin spoke highly of civil magistrates and the laws by which they govern.

Serving God in political office is a noble vocation, and Calvin strictly prohibited resisting magistrates except when existing legal structures authorized lesser magistrates to remove them. (4.20) Yet Calvin’s two-kingdoms doctrine meant that while civil government and law were to be honored for their irreplaceable role in maintaining social order, they were not to be confused with the redemptive kingdom of Christ. While Calvin was no modern advocate of religious liberty, he advocated clear distinctions concerning the nature and role of church and state. (4.20.1-2; compare 3.19.15-16; 4.8-12).

Finally, Calvin’s Institutes maintained a modest doctrine of natural law, in continuity with, though not identical to, earlier Christian notions. Calvin was quick to acknowledge the limits of what natural law could accomplish due to the corruption of human sin. Pursuit of the natural law by fallen humans can get them not a single step closer to Christ’s heavenly kingdom (2.2.20, 22). Believers themselves were to interpret natural law through the clarifying lens of the Scriptures (1.6).Yet Calvin identified natural law (not the law of Moses) as the foundation for civil law and even marveled at the accomplishments of the jurists of pagan antiquity who were illuminated only by the law of nature (4.20.16; 2.2.12-17).

By providing a profound theological basis for the role of law in God’s providential care of this world, for a high view of political and legal vocations, and for a modest but significant function for natural law, Calvin’s Institutes is an enduring resource for Christian legal thought.

________

By David VanDrunen, Robert B. Strimple Professor of Systematic Theology and Christian Ethics, Westminster Seminary California.

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Thomas Aquinas’ Treatise on Law

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here is a strong streak of “antifoundationalism” that runs through modern intellectual life, which is essentially a form of despair about the possibility of identifying ultimate truths or achieving any social agreement on them. But it is not possible to escape at least implicit foundations. That is one reason why efforts of political philosophy such as that of John Rawls, which seek to be neutral among competing “comprehensive” views, are doomed to failure.

I also believe that any attempt to provide foundations for legal thought solely in the Bible would be unavailing. The New Testament itself provides only limited material for jurisprudence, and efforts of biblical jurisprudence tend to rely excessively on Old Testament juridical precepts whose applicability to the New Testament are, at best, doubtful. (It goes without saying, of course, that if Christianity is true, then any adequate jurisprudence will have to show that it is compatible with the Bible.)

Among the many broad intellectual frameworks for law available, Christians (and, indeed, anyone) should rely especially on that of St.Thomas Aquinas.

Fortunately, we have access to it in a new translation of Thomas’ Treatise on Law (the Summa Theologiae I-II, Questions 90-108). Professor Fred Freddoso of Notre Dame is engaged in a project to provide the first sole-authored English translation of the Summa, and St. Augustine’s Press has already brought out the Treatise on Law.The translation aims at, and achieves, the goal of fidelity to the text without awkward literalism.

The Treatise on Law offers an account of the nature of law, the effects of law, and the various kinds of law (eternal, natural, human, and divine), as well as an extensive discussion of the Old Law and New Law (which are indispensable for understanding Thomas’ thought, but are unfortunately omitted from some edited versions of the Treatise.)

One very important caveat regarding the Treatise on Law: it is a serious mistake to rely only on the Treatise, since it has to be understood within the broader context of the Summa. So, for example, if one reads Thomas’ discussion of natural law (in the Treatise, Question 91 and 94) without integrating its teaching with what Thomas says in his earlier discussions of human nature, human acts, passions,

St. Thomas Aquinas, Doctor Universalis

habits, and virtues, one is bound to end up with a truncated view of Thomas’ ethics and jurisprudence.

Nor does Thomas provide a fully developed jurisprudence. The Summa is, after all, an introduction to theology, and for “beginners.”

Nonetheless, our understanding of law is shaped in many key respects by the principles derived from outside the discipline of law itself, for example, from philosophical anthropology, ethics, and political philosophy (and, of course, from theology as well).

Thomas’ provides an essential framework, then, for our understanding of law and helps us to see deficient understandings of human nature and the end of human life undermine sound legal thought.

________

By Christopher Wolfe, Emeritus Professor of Political Science, Marquette University.

Author’s note: Further development of and contemporary debate in Thomistic jurisprudence can be found in authors such as Yves Simon, Jacques Maritain, John Finnis, Robert George, Russell Hittinger, Mark Murphy, and in the American Journal of Jurisprudence.

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Seminal Works “Viewing the Courthouse From the Church”: Three Books by Thomas L. Shaffer On Being a Christian and a Lawyer (1981) American Legal Ethics: Text, Readings, and Discussion Topics (1985) American Lawyers and Their Communities: Ethics in the Legal Profession (with Mary M. Shaffer) (1991)

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uring much of the 1980s and 90s, Thomas L. Shaffer did a book review section for CLS’s publication, The Quarterly. The current collection of book reviews could be seen as a continuation of that work. I suspect he will be pleased with this project.

Among academics (Jewish and Christian), Tom Shaffer is recognized as the father of the religious lawyering movement. It seems that everyone in that movement sees Shaffer as his or her mentor.

These three books will give you a flavor of the man.

On Being a Christian and a Lawyer (BCL) is the first serious book-length treatment of what it means to be a Christian lawyer. It discusses topics that continue to challenge Christian lawyers—relationships with clients, the role of advocate, and the impact of lawyer culture on lawyers. American Legal Ethics (ALE) is Shaffer’s ethics casebook, but it is unlike any other casebook. It contains few cases, statutes, or rules. Mostly, it is readings about lawyer heroes from history (e.g., Thomas More, Louis Brandeis) and literature (Atticus Finch), and readings in philosophy (Aristotle, Alasdair McIntyre), coupled with Shaffer’s invaluable notes. In American Lawyers and Their Communities (ALC) Shaffer examines the ethical impact on lawyers of their professional, ethnic, and religious communities.

This is not an “objective” book review. Tom Shaffer has been my teacher, mentor, co-author, and friend for 35 years. Most of what I know about law and religion I learned with his guidance. Tom was a visiting professor at the University of Virginia during my third year of law school, 1975-76. He taught a course on law and religion in his and his wife Nancy’s living room. (The afterword of On Being a Christian and a Lawyer identifies that class as the genesis of that book.) Three aspects of the class stand out. First, when Tom discovered that all in the class were Christians, he had us open with prayer.

That, no doubt, would have been troubling to the University’s founder, Thomas Jefferson. Second, we

closed with beer.

That would have been troubling to my Baptist forbearers, but to this Baptist boy it seemed to balance out the prayer.

The third thing I recall was that the class changed my life with a message that runs through Tom’s books. Prior Thomas L. Shaffer, to the class, I lived Professor Emeritus of Law a schizophrenic University of Notre Dame existence. I saw little connection between what I learned in law school and what I did in church. The following extended metaphor from American Lawyers and Their Communities captures Shaffer’s central call to Christian lawyers.

Shaffer envisions a town square. On one side is the church; on the other is the courthouse. “We American lawyers learn to look at the community of the faithful, rather than from it. We stand in the courthouse looking at the church. We see the [church], even when we claim to belong to it, from the point of view of the government” (ALC 21011).

[The legal] part of the academy, more than any other, has systematically discouraged and disapproved of invoking the religious tradition as important or even interesting. It ignores the community of the faithful so resolutely that even its students who have come to law school from the community of the faithful learn to look at the [church] from the courthouse, rather than at the courthouse from [the church]. (ALC 214) Shaffer encourages lawyers to “walk across the street and look at the courthouse from the church. . . ” (ALC 210). “Faithfulness to the tradition of Israel and of the Cross. . . means that a lawyer imagines that she is first of all a believer and is then a lawyer” (ALC 198).

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From the vantage point of the church (which, in Shaffer’s case, includes a wide range of sources— novelists, philosophers, Jews, and Christians of all stripes) Shaffer has seen many things about lawyers and the law.

1. Consistency - A lawyer should be (as was said three times of Atticus Finch in To Kill a Mockingbird) the same person in town that he or she is at home. Lawyers should be consistent. They should bring the values that they are taught at home and church— truthfulness, justice, and mercy—to the legal profession, rather than playing a role (ALE 3-58, 176-77).

2. Concern for Other People – To some extent, lawyers should be Louis Brandeis’s “counsel for the situation,” considering all the people who might be affected by their representation.

(ALE 241-314) Shaffer is especially critical of the “adversary ethic, which teaches that lawyers are not responsible for what their clients do.” (ALC 132) 3. Concern for Clients – Client loyalty means concern for the whole person, not just their most selfish instincts. “[T]he goal and purpose of a virtuous life in a profession is to help others become good persons...” (ALC 94) 4. Moral Counsel – The apparent tensions between Shaffer’s concern for other people and for clients is overcome in client counseling. Lawyers should raise moral issues with clients as they would with a close friend, not imposing their values, but raising them for serious discussion (BCL 18-33, 87-97).

5. Rejecting Power – Shaffer learned (and then taught) many Anabaptist insights from John Howard Yoder and Stanley Hauerwas. He encourages lawyers to reject power and the use of coercion. Power is enticing. Law can become an idol. The church “forgets to remember its particularity when it becomes responsible for the government. . .” (ALC 209). Shaffer was one of the first in the legal profession to advocate alternative means of dispute resolution, pointing the profession to Mennonite examples.

6. Speaking Truth to Power – Rejecting power is, of course, a tall order for lawyers. Practicing law, generally, is all about exercising power.

Rejecting the use of power, for Shaffer does not mean that lawyers should ignore power.

Lawyers should speak prophetically to those in power, both government officials and wealthy clients (ALC 211-17).

7. A Preferential Option for the Poor – Part of what lawyers should say to those in power is that they should care for poor people. For this, Shaffer has much within his Catholic tradition to draw on—the preferential option for the poor. Shaffer not only wrote about, but acted on this calling. As the holder of a prestigious chair at Notre Dame, he chose to serve poor people in the law school legal clinic (one of the less prestigious positions in law schools). (He was the only chaired professor I know who worked in a school’s legal clinic.)

8. Companion to the Guilty – Shaffer expresses skepticism at the profession’s justifications for criminal advocacy (the adversary system yielding justice and protecting the rights of all citizens). But he sees criminal defense work as an opportunity to imitate Christ and be a companion to the guilty (BLC 45-79).

I have come to disagree with Tom Shaffer about some things. I would claim for Christians a larger role within the state than Shaffer. The prophets not only criticized their rulers, they appealed to them to use power responsibly. I believe that Christians should exercise power, so long as they can do so faithfully. Law can be an instrument of love. To fail to use it may be irresponsible. Shaffer may be too quick to call law an idol. Good things–the church, the family–can become idols. That, in itself, is not a reason to reject them.

Even those issues over which I disagree with Tom, I think about because he raised them with me.

My thanks to him for raising them. I commend to you the writings of my friend and mentor.

________

By Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law and Director of the Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics, Pepperdine University School of Law.

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On John Finnis’s Natural Law and Natural Rights

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atural Law and Natural Rights, the magisterial work by John Finnis published in 1980 by Oxford University Press in its prestigious Clarendon Law Series under the general editorship of H.L.A. Hart, has now been issued in a second edition with a long Afterword by the author revisiting the principal themes of the book. Publication of the second edition is timed to coincide with Oxford’s publication in five volumes of Finnis’s collected papers in philosophy of law, moral philosophy, political philosophy, philosophy of action, and other fields.

Finnis’s work has drawn the attention of philosophers of every description, but it has special significance for Christian philosophers. Finnis is himself a Christian—a convert from the secularism in which he was brought up—and his work both draws on and develops a central tradition of Christian philosophy, albeit a tradition rooted in the insights of pre-Christian Greek and Roman thinkers.

The story of how Natural Law and Natural Rights came to be written is worth telling. John Finnis arrived in Oxford in the early 1960s as an Australian Rhodes Scholar. He completed his doctoral dissertation (on the nature of judicial power) under Professor Hart’s direction. Finnis then spent a year in the United States at the Boalt Hall Law School of the University of California at Berkeley before returning to Oxford to join the law faculty. Hart, now in the role of a senior academic colleague, invited Finnis to write Natural Law and Natural Rights, and even specified the title. Although Hart was himself, as a legal positivist, skeptical of the idea of natural law, he perceived in Finnis, who had by then become a Catholic, someone possessing the intellectual resources to mount a powerful critique of positivism and defense of natural law and natural rights.

Over about a decade and a half, Finnis developed his views and refined his arguments in various forums, including informal seminars with fellow Hart students Joseph Raz and Ronald Dworkin and with Hart himself. His thinking on fundamental moral theory was heavily influenced by American Catholic philosopher and moral theologian Germain Grisez, whose reinterpretation of Aquinas’s teachings on the first principles of practical reason and basic precepts of natural law would, in no small part due to the success of Finnis’s book, win support

and provoke controversy in Catholic philosophical circles and beyond. Throughout the 1970s, Finnis published articles in professional journals in law and philosophy, but did not complete Natural Law and Natural Rights until late 1978, after a leave of absence from Oxford (taken at Chancellor College of the University of Malawi in Africa) that made it possible for him to devote the bulk of his time to writing. Oxford published the book in 1980.

In Natural Law and Natural Rights, Finnis did for the tradition of natural law theory what Hart had done just about twenty years earlier for the tradition of legal positivism in his masterwork, The Concept of Law. He revitalized a classic tradition of thought about law, morality, and their relations by recovering and developing its greatest insights, answering its leading critics, and proposing revisions where thinkers in the tradition had gone astray. In the course of his project, Finnis made important contributions to contemporary debates about practical reason, justice and the common good, authority, obligation, rights, and the problem of legal injustice.

Natural Law and Natural Rights has withstood the test of time. More than thirty years after its publication, it stands alongside The Concept of Law as a classic work in the field. At every turn, writers in the philosophy of law find it necessary to grapple with Finnis’s defense of natural law and his criticisms of competing doctrines. As the late Neil MacCormick, a distinguished Scottish philosopher of law, described Finnis’s achievement, a “theory which more than one generation of thinkers had dismissed as an ancient and exploded fallacy kept alive only as the theological dogmatics of an authoritarian church was rescued from a whole complex of misunderstandings and misrepresentations.” Finnis provided, according to MacCormick, “a thoroughly challenging account of law, fully capable of standing up to the theories which were regarded as having refuted and superseded it, while taking into account and accepting into its own setting some of the main insights and discoveries of these theories.”

Once can only say, “Amen.”

________

By Robert P. George, McCormick Professor of Jurisprudence, Director of James Madison Program in American Ideals and Institutions, Princeton University.

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Joseph G. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice (1996)

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t the end of a middle shelf in my office, dog-eared and side-tabbed, are three thin paperback volumes. One, Buddy Shurden’s The Baptist Identity: Four Fragile Freedoms, is my goto book on practical faith. The second, Randall O’Brien’s Set Free by Forgiveness, is a constant reference for my greatest personal challenge. The third, Allegretti’s The Lawyer’s Calling, is perhaps the book that has most strongly influenced my vocation.

Like the other two volumes, Allegretti’s work is fundamentally practical and builds properly on the work of others (in his case, Thomas Shaffer). Most of all, though, these books are challenging. Not intellectually challenging, but challenging to the routines and easy avoidances that keep our faith and work life separate. At its best, Allegretti’s book does what Jesus did—it unsettles.

The Lawyer’s Calling begins with a troubling and true statement: That the legal profession faces a spiritual crisis. Not a crisis of ethics, or economics, or commercialization, but a crisis born of a divide from faith. This claim is far outside the mainstream of legal discourse, where ethics are discussed endlessly, but principles (especially those embedded in the Christian faith) are largely ignored, particularly where they might conflict with the economic models which structure legal practice.

We teachers all see the debris of this crisis in our graduates: The miserable law firm associates and partners, desperate for escape; the hard-working young people who have lost their moorings, and the returning grad who flinches when faith issues are mentioned.

From this properly strident beginning, Allegretti proceeds to practicalities. He addresses directly the hard choices which must be part of law as a Christian vocation—choices which direct us to reject the

economic model of most firms. For example, Allegretti challenges the idea that lawyers must be “hired guns”—that is, that attorneys should accept the client who walks though the door and pursue that client’s goals, within the limits of secular ethics.

Allegretti firmly rejects this in favor of consistently seeing ourselves as moral agents, who must reject and avoid immoral and destructive choices, even when those choices are made by our clients. In other words, we should not do evil, even in our clients’ names. Rather, we should be peacemakers.

This may not seem a remarkable thesis, but at its heart is a bedrock rejection of the business practices of those very law firms we send so many of our best and brightest students into. Of course those firms are amoral at best; they are structured that way, and present economic circumstances have only made that worse. We can pretend that this isn’t true, but those of us who have spent time in large firms know better. Neither should we continue to lie to our students, saying or implying that the practice of most large law firms is consistent with the Christian faith. An amoral environment, especially for the powerless junior associate, is anathema to faith, to the idea of vocation, and to the ethic of love.

Allegretti’s book is practical, but it directs us to a nearly impossible challenge: To undo the primary business structure in our field, or at least decline to any longer feed that beast with the bodies and souls of our young. Are we that brave?

________

By Mark Osler, Professor of Law, Univ. of St.Thomas (MN).

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Harold J. Berman (1918-2007): Law, Religion, and Revolution

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arold J. Berman, long time professor at Harvard Law School and then Emory Law School, was one of the founders of the modern movement of law and religion. Among his 25 books were two on historical Christian legal thought -- Law and Revolution: The Formation of the Western Legal Tradition (1983) and Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (2003). Both were published

by Harvard University Press. Both have appeared in multiple languages.

In these two books, and in a sequel he had partly finished when he died in 2007, Berman set out a grand historical narrative on Western law and religion in which Catholicism and Protestantism both played decisive roles. There is a distinct Western legal tradition, Berman argues, a set of legal ideas and institutions that has evolved by accretion and adaptation over the centuries. The exact shape of these legal ideas and institutions at any given time is determined, in part, by the underlying belief systems of the people ruling and being ruled.

Six great revolutions, however, have punctuated the gradual evolution of the Western legal tradition: the Papal Revolution of 1075, the German Lutheran Revolution of 1517, the English Puritan Revolution of 1640, and the American, French, and Russian Revolutions of 1776, 1789, and 1917.

These revolutions were, in part, rebellions against a legal and political order that had become outmoded and ossified, arbitrary and abusive. But, more fundamentally, these revolutions were products of radical shifts in the dominant belief-systems of the people -- shifts from Catholicism to Protestantism to Deism to Marxist-Leninism.

Each of these new belief-systems, Berman argues, offered a new eschatology, a new apocalyptic vision of the perfect end-time -- whether the second coming of Christ, the arrival of the heavenly city of the Enlightenment philosophers, or the withering away of the state. Each of these revolutions triggered massive changes in prevailing legal forms and norms -- movements from canon law to civil law to common law, from the supremacy of the church to the supremacy of the state, to the supremacy of the individual and the collective.

Each of these revolutions, in its radical phase, sought the death of an old legal order to bring forth a new order that would survive its understanding of the Last Judgment. Eventually, each of these revolutions settled down and introduced fundamental legal changes that were ultimately subsumed in and

Law & Religion Pioneer Harold J. Berman (1918-2007)

accommodated to the Western legal tradition.

Today, this Western legal tradition has been drawn into increasing cooperation and competition with other legal traditions from around the globe, in the struggle to define a new common law and a new legal language for the world order.

The foundation of this global legal order must start with our God-given human nature, Berman insists. He set out this thesis in a series of resounding lectures on law and religion that he delivered in China the year before he died. One of his Chinese respondents asked whether one needed to believe in God in order to have a just legal order. “It would certainly help!” Berman quipped immediately.

“But no,” he went on diplomatically; “you don’t necessarily have to believe in God, but you have to believe in something. You have to believe in law at least. If you can’t accept God, then just focus on the law that God has written on all of our hearts.

Even children intuitively sense this law within us.

Every child in the world will say, ‘That’s my toy.’

That’s property law. Every child will say, ‘But you promised me.’ That’s contract law. Every child will say, ‘It’s not my fault. He hit me first.’ That’s tort law.

Every child will say, too, ‘Daddy said I could.’ That’s constitutional law. Law comes from our human nature. And our human nature is an image of God.”

________

By John Witte, Jr., Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. Professor Witte was a student of Harold Berman at Harvard Law School, and a close colleague at Emory Law School and in the Law and Religion Center.

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From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Oliver O’Donovan and Joan Lockwood O’Donovan, eds., 1999)

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ontemporary legal scholars who wish to explore the relationship between Christianity and law may feel that they are working in a desert. For at least the last century, legal scholarship has studiously avoided any sort of theological reflection; few landmarks exist to allow one to orient oneself. Yet a vast body of Christian reflection on law exists, developed over millennia and expressing a multitude of perspectives.

O’Donovan and O’Donovan have compiled a comprehensive set of such reflections, dating from the patristic through the early modern periods.

The sources include treatises, polemics, sermons, and letters, some of which have never before been translated into English. There are recognizable names like Augustine, Aquinas, Calvin, and Luther, as well as names many contemporary readers will find less familiar, like Irenaeus of Lyons and John Chrysostom. Though the volume focuses on Western Christian thinkers, the editors are careful to include some Eastern Christian sources as well.

Helpful introductory essays situate the entries in historical context.

Several themes run through the book, but two stand out in particular. First, what is the proper relationship of the church to political authority?

Over thousands of years, Christians have viewed the state in various ways: as a hostile power to be avoided or resisted, as a guarantor of the social peace that the church requires to fulfill its earthly pilgrimage, as helpful (and sometimes junior) partner in regulating a Christian society, and as the preeminent human authority responsible for governing the church itself. Second, and relatedly, what is the proper role of the civil law? Here again, Christians have reached a variety of conclusions, from hopeful to

St. Irenaeus, Bishop and Martyr

resigned. Aquinas famously understood civil law as a means for promoting justice and the common good. Other Christians, however, have understood the civil law simply as a mechanism for restraining human violence, so that, as Irenaeus wrote in the second century, “under the fear of it men may not eat each other up like fishes.”

In compiling this multitude of remarkably rich sources, O’Donovan and O’Donovan provide an invaluable corrective to the contemporary lack of familiarity with Christian jurisprudence. Christian legal thought has been around a long time; it is varied, subtle, and relevant. Scholars who seek to engage it are not condemned to wandering the desert. On the contrary, the reader who opens this volume will feel like Keats’s stout Cortez, looking out in amazement at a vast ocean he barely knew existed.

________

By Mark L. Movsesian, Frederick A. Whitney Professor and Director, Center for Law and Religion, St. John’s University School of Law.

Hugo Grotius (1583-1645)

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Law, Theology & Culture Joseph Vining, From Newton’s Sleep (1996)

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he trilemma of formalism, realism, and process continues to pinion most of contemporary Anglo-American jurisprudence. Arbitrariness vitiates each of its three prongs. The arbitrary, however, is not the last word. There is a quartum quid, the one developed in Persons and Masks of the Law (1976) by John T. Noonan, Jr. The human person is an animal, to be sure, but one which is capable of freely discerning how to treat others reasonably, justly, and even with love. By unmasking persons and thus recovering their true place in law, Noonan liberates us to see that legal practice is no less than the struggle of persons authoritatively to respect persons (and other things) in the circumstances of our common life and aspiration.

The place of the person in law is nowhere more beautifully cultivated than in Joseph Vining’s From Newton’s Sleep (1996). The allusive title of Vining’s book calls to mind William Blake’s prayer: “May God us keep / From Single vision & Newton’s sleep.” Vining explains that “‘Newton’s Sleep’ is from William Blake’s imagination, as the state that comes when the mind is wholly occupied by the form of thought of which Newton is celebrated as the great source.” The mechanism associated with Newton began as a scientific theory, but it became a worldview that asserts an all-encompassing determinism. It was toward a legal version of the latter that the legal formalists freely labored in vain.

Vining’s contrarian and hopeful thesis, about what legal practice discloses, may catch us off guard. Law is “the great overlooked fact in modern thought,” he contends. “Against Newton’s Sleep, keeping us from it, is the presence of law in the human mind. Newton’s Sleep can steal over us only as law withdraws.” Law defies Newton’s Sleep and the possibility of mechanistic formalism. “With law enters personification, in the large and in the small, substance that does not ultimately become form or process, responsibility that goes beyond the existence of things that consciousness reflects upon.”

The proliferation of “theory” marks today’s legal academy. Readers of From Newton’s Sleep will not find there a theory of law. The book comprises, instead, “a distillation of vacillations,”

a series of pensees of varied lengths and styles.

“Arranged under their several headings,” Vining explains, “these studies together may be taken as a phenomenology of law, argued in the only way experience so connected to action and to identity will not be lost in the presentation.” The genius of the book is to demonstrate how the nonlinear but disciplined particulars of lawyers’ ways of doing and knowing -- including the professional debates about how lawyers should do and know -- are evidence of a struggle for nothing less than to create the very conditions that make law possible. Someone may say, for example, that Parliament’s statute is law, but Vining shows how statutes are routinely only candidates for legal attention, not law as such. Law is the product of what Vining calls “caring mind” -- something personal, not something anyone can point to or touch.

To those who have already been contaminated by much contemporary legal theory, From Newton’s Sleep offers a cure. To those who are new to law, the book offers a treasury of insights into how to avoid contamination. The book accomplishes these things by showing how if there is to be law here or there, there must be a person speaking here or there: “[T]he first and last thing we know, the ultimate object of knowledge and belief, is a person, not a principle. . . . This is what we know, what is real, what has meaning.” The practice of law depends for its possibility on persons’ not being absorbed into the processes of Newton’s Sleep. What assures this possibility -- and it is only a possibility -- is that the caring mind authoritatively speaking law person to person is one that “draws [us] into the spirit of it.” The spirit of the person speaking authoritatively is what gives life to law. From Newton’s Sleep adumbrates -- and all but names -- that Trinity of Persons and the Spirit that has flooded our hearts.

________

By Patrick McKinley Brennan, Associate Dean for Academic Affairs, Professor of Law, and John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law.

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John A. Ryan’s A Living Wage (1906) and The State and the Church (1922)

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ohn Augustine Ryan’s (1865-1945) life spanned the transformative period in American history between the Civil War and the Second World War, during which the character of the nation’s political, economic and social life was fundamentally altered. A Roman Catholic moral theologian who spent his most prolific and influential years on the faculty of the Catholic University of America, Ryan was the leading figure in the development of a native American Catholic tradition of social and legal thought. He was the author of numerous academic books, two of which will be addressed in this essay: A Living Wage (1906) and The State and the Church (1922).

A Living Wage, published to much fanfare in both the Catholic and secular press, advanced a natural law account of economic justice. In particular, Ryan attempted to derive from moral first principles a defense of the panoply of progressive reform initiatives circulating during the early twentieth century. Ryan’s defense of the living wage is, at its core, anthropological. Fundamental rights exist to promote the proper ends of human nature. As Ryan writes, “The exigencies of right and reasonable living, therefore, determine the existence, and number, and extent of man’s natural rights.” The proper moral ordering of economic institutions, and ultimately of law more generally, is derived from an account of the ends, natural and supernatural, of the human person.

The State and the Church, a collection of essays coedited with Moorhouse F.X. Millar, contains some of Ryan’s most developed thoughts on the issues of religious freedom and church-state relations.

Ryan’s particular concern was with addressing the Catholic Church’s longstanding formal opposition to church-state separation and thus to create intellectual and political space by which American Catholics could affirm the nation’s constitutional order. Most notably, Ryan argued that what Pope Leo XIII termed “the public profession of religion” was “not to be contrasted with the policy of

separation of Church and State.” As such, there existed no incompatibility between papal teaching on the state and the American separation of church and state.

While these two books engaged quite different issues – economic justice and church-state relations – they share a common concern with developing a moral account of law and politics for the liberal democratic society. Viewed in tandem, they constitute the foundations of an American Catholic tradition of legal thought. In particular, A Living Wage and The State and the Church reveal two overriding themes that had strong resonance within American Catholic thought at the time: the grounding of law in an account of nature and reason, and a defense of religion as the necessary foundation of the liberal order.

The intellectual project Ryan advanced during the early twentieth century, while less well-known than that of such later Catholic thinkers as John Courtney Murray and Jacques Maritain (to say nothing of such Protestant standard bearers as Walter Rauschenbush and Reinhold Niebuhr), was central to the emergence of an American Catholic tradition of legal thought. With respect to both social justice and religious freedom, Ryan developed important patterns of thought that would echo throughout the twentieth century. These books are thus not merely of historical interest, for they introduced and advanced a methodology that continues to provide critical insights. Above all, they probed with nuance and passion the enduring question of whether and on what terms Christian legal thought ought relate to a liberal constitutional order – a question that must remain at the heart of a Christian jurisprudence.

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By Zachary R. Calo, Associate Professor, Valparaiso University School of Law.

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James Fitzjames Stephen’s Liberty, Equality, Fraternity

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he inclusion of Sir James Fitzjames Stephen in any canon of Christian legal scholarship may strike some as unusual. Stephen lived and wrote in the middle to late Victorian period, and achieved lasting prominence as a jurist, a committed champion of codification of the substantive criminal law, a colonial administrator in India, a bracing and elegant critic of John Stuart Mill, a prolific essayist, and one of the preeminent expositors of the history of English criminal law.

Yet Stephen did not write from a self-consciously Christian point of view. Moreover, he was skeptical that those writers, like Mill, who argued that abstract but highly demanding ideas with vaguely religious connotations – a “love of humanity,” a cosmopolitan “fraternity” of strangers, and a thoroughgoing and uncompromising egalitarianism – had much of value to say to the real world.

Nevertheless, with his trenchant book, Liberty, Equality, Fraternity (1873), Stephen articulated and revived an important and much older jurisprudential position which would indirectly but powerfully influence the perspectives of many contemporary Christians and their efforts to shape law and public policy. It is the view that law, politics, religion, and morality are at some level deeply intertwined and interpenetrating, and that a society which denies the relationship between law and morality takes the risk of losing that which is distinctive about it. Stephen explains the need for the state to take cognizance of common, or ordinary, morality and religion (for Stephen, Christianity) in two ways: first, the expression of moral condemnation for grave criminality serves as a socially cohesive agent; and second, the moral deposit and heritage of the common morality is truer and more real than

any elegant theoretical construction devised by intellectuals with implausibly ambitious plans to improve the world (in this, he resembles Edmund Burke).

Stephen’s views often have been described by the term (likely coined by H.L.A. Hart), “legal moralism,” and it is sometimes even said that Stephen believed that the domains of law and morality were co-extensive, or that the state ought to criminalize everything which was deemed immoral. This is a misreading. What Stephen believed was that as to a comparatively narrow and circumscribed, but vitally important, category of criminal law – the hottest core of criminal law, encompassing the worst crimes, especially including “gross offenses . . . murder, rape, arson, robbery, theft, or the like” – the overlap between morality and criminality was nearly complete. Furthermore, society ought in such cases to use the criminal law both to signal social condemnation for the commission of such offenses and to reaffirm its commitment to those interdictions. Stephen held, in sum, that it is an essential purpose of the law, and of criminal law in particular, to vindicate these essential moral principles. In contemporary legal theory, Stephen’s is not the orthodox position. But Stephen’s ideas, expressed in muscularly appealing language, are an important piece of the reawakening of interest in the complicated relationship of law and religion in our own time.

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By Marc O. DeGirolami, Professor, St. John’s University School of Law.

The Work of Robert Cover

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obert Cover may at first glance seem an unlikely candidate for a project on the cultivation of Christian legal thought.

Unlike many of the other thinkers profiled here, Cover was neither a Christian nor theologically trained. But two of his best-known contributions to legal scholarship raise some of the most pressing questions for Christian legal thought today: What is the relationship between law and violence? Why should the state have an exclusive claim to establish meaning? How do non-state communities establish their own meaning, norms, and ways of life? How does the state (through its laws) sustain or kill these communities? Part of Cover’s answer to these questions is that “law and narrative are inseparably related” and “every prescription is insistent in its

demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation and purpose.” That kind of framing holds much promise for Christian legal thought.

Cover is not easy to read. His extraordinary versatility draws upon diverse metaphors, and his writing is laced with cumbersome idioms. But Cover is difficult to read for a more fundamental reason: he forces those of us who practice law to confront the reality of what we do, to examine our own complicity in the violence of the law.

Cover captures this reality with chilling brevity: “Legal interpretation takes place in a field of pain and death.” He writes with judges in mind, but his indictment reaches every practitioner of the law

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in the modern state. The transactional lawyer, the corporate litigator, and the legal academic may bury themselves in the sterility and the civility of papers and ideas. But law is not poetry. Law constrains and kills people. Law destroys communities and ways of life.

Law also restrains violence. In its best forms, it can prevent death, alleviate suffering, and maintain order. It can mitigate power with the power of reason. But Cover’s aspiration for law does not insist that citizens constrain their debate and reasoning to a commonly accessible mode of argument. To the contrary, he disrupts fashionable appeals to “public reason” that underlie so much of the practice of law, the practice of judging, and the norms of legal education. He questions the very premise of a common public narrative and embraces the possibility of tradition-dependent reasoning. This move is at once welcome and suspect to Christian legal thought. On the one hand, it holds opens legal discourse to the witness of transcendence. But privileging tradition-dependent reasoning against the state also begs the question of limits. Left without limits it raises the specter of anarchy.

Cover’s work thus presses two uncomfortable alternatives: anarchic violence or state violence.

The pragmatist and the realist might rightly despair. But the Christian has at his or her disposal a different set of resources. The violence of the law may be unavoidable but it need not be unending. Forgiveness can escape the destructive cycle inherent in retributive justice. Mercy can free the legal imagination. Faithful witness can lead to regime change. To be sure, these propositions ring hollow devoid of meaningful practices that embody them. But pursuing the answers presupposes that we are asking the right questions. Robert Cover moves us in that direction.

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By John Inazu, Visiting Assistant Professor, Duke University School of Law. Professor Inazu has accepted an appointment as associate professor of law at Washington University, effective July 1.

Author’s note: One can access Cover’s insights in his original articles (“Nomos and Narrative” published in the Harvard Law Review in 1983, and “Violence and the Word” published in the Yale Law Journal in 1986) or in the edited volume, Narrative, Violence, and the Law (University of Michigan Press 1955).

When the Law Rapes Lady Justice: Can the Law Remedy the Mass Injustices Committed by the Law?

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ne of the most sensitive topics to cover in a law school classroom is affirmative action.

Analyzing the Supreme Court’s use of terms such as “classroom diversity” is awkward, since we are in essence discussing ourselves. Teaching the subject, as I do, in Birmingham, Alabama, a historic center of the civil rights movement once labeled one of the most segregated cities of the South, adds even more poignancy to the discussion.

But the biggest difficulty is not the social awkwardness of classroom discussion of admissions decisions, but the ethical and legal quandaries of remedying mass injustices legitimized and protected by law and the state. How do you remedy hundreds of years of racial slavery and segregation? What do you do when the law, instead of serving Lady Justice, rapes Lady Justice? And what contribution can Christian legal thought make to this question: particularly when God was so commonly invoked to justify these injustices?

This question can be addressed through the prism of two of the most profound Biblical reflections on the question: President Abraham Lincoln’s Second Inaugural Address and Dr. Martin Luther King’s Letter from a Birmingham Jail.

Lincoln posited that the duration and magnitude of the War was a punishment given to North and South for the “offense” of slavery. “[I]f God wills that [the war] continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall by paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord are true and righteous altogether.’”

Cynically, Lincoln’s speech could be viewed as the President’s justification for a war that had proven far bloodier and more destructive than had been anticipated. Yet Lincoln offered a strikingly Biblical perspective on how great wrongs could be brought to some kind of justice. God Himself would avenge the generations of the enslaved. The Justice of God might be slow, and evil might be permitted to continue “through His appointed time.” But when God wanted to remove an evil, it would be removed; and when God wanted to bring Justice down upon those responsible, it would indeed be done. Within six weeks, Lincoln himself would be dead, assassinated on Good Friday, as though he

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When the Law Rapes Lady Justice himself was some kind of Christ-figure dying for the sins of the nation.

The kind of divine punishment posited by Lincoln unfortunately made no provision for compensation for the freed slaves. Destroying through war the ill-gotten gains of slavery does nothing to return to the generations of the enslaved their lost wages, lives, and human dignity. Emancipating the slaves does not redress the lost years and generations of enslavement. And the insult of no compensation was underscored by the failure to secure the equality and rights theoretically provided by the Fourteenth and Fifteenth Amendments, as the oppressive practices of white supremacist segregation was given legal legitimacy by the Supreme Court in the infamous doctrine of “separate but equal.”

Almost a hundred years later, Dr. Martin Luther King, Jr., was locked in a Birmingham jail cell as a result of the movement’s campaign of nonviolent civil disobedience against segregation. His public response to a group of clergy criticizing him is deeply theological. Relying on the natural law tradition and quoting Augustine and Aquinas, King posited that there is a moral obligation to obey just laws and disobey unjust laws. Thus, “an unjust law is no law at all.”

Segregation was unjust because it degraded human personality by giving “the segregator a false sense of superiority and the segregated a false sense of inferiority.”

King further noted the willingness of his movement to accept the penalty of imprisonment in order to bring attention to the injustice of segregation, thus expressing “the highest respect for law.”

For King, as for Lincoln, time is a key concept.

King responded to the criticisms that his campaign was ill-timed by noting that “freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” Thus, “wait” has always meant “never” in the experience of the oppressed African-Americans. For King, it was ultimately up to the oppressed to demand justice now; the oppressed would act, rather than merely be acted upon.

Of course the civil rights campaign did eventually succeed in overcoming legally legitimated segregation, just as slavery before it had been successfully abolished. Lincoln and King remind us, however, that when state and positive law legitimate

mass injustice, the remedies sometimes must come from beyond the state and positive law. Sometimes, the law itself must be brought to account at a higher bar: the bar of Justice. Christian jurisprudence is based on the confidence that there is such a higher bar: that the justice of God is both the foundation of human justice and also the judge of human justice.

Yet the Justice of God and the justice of Christians are frequently in conflict, as exemplified by the frequent use of the Bible in past eras to justify white supremacist slavery and segregation. Our religion and our churches, also, are subject to the justice and judgment of God. Yet, where is justice for the generations who lived and died under the tragic oppressions of race-based slavery and segregation? Only God can truly remedy the injuries sanctioned, in their time, by law, state, and society. Yet, the living must determine whether affirmative action remedies provided to the descendants of the oppressed, or in response to the present wrongs of hidden and even unconscious forms of discrimination, are demanded by justice, or are unjust. Of course these questions involve tragic choices for which there will be no fully satisfactory answer. The question of who gets to make these tragic choices---the courts, the legislature, universities, the majority, minorities---only underscores the tragic nature of the choices left us. We, the living, must in our own time answer both for our own crimes, and also for unresolved and lingering injustices perpetrated by our ancestors. As we (as King taught) actively pursue justice, we must understand (as Lincoln taught) that Justice comes in the time appointed by an often inscrutable, yet righteous, God. And when we understand the righteousness of God, we are also taught to pray for His mercy.

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By David M. Smolin, Harwell G. Davis Professor of Constitutional Law, Director of the Center for Biotechnology, Law and Ethics, Samford University, Cumberland School of Law.

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David Hollenbach, S.J., The Common Good and Christian Ethics (2002)

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t is hardly novel today to lament that loss of common purpose and cooperation in American life. Yet, despite widespread recognition of this, and assuming the loss is a problem, there seem to be few meaningful attempts at solutions. Arguably, Christians should be at the forefront of efforts to renew a spirit of cooperation and esprit de corps among the American people, particularly those of us who take seriously the rich Christian tradition of justice, one that stresses not only justice between individuals, but also distributive and social justice within and across communities.

One book that I have found particularly helpful in keeping our obligations to others in community ever present in my mind and in my work is David Hollenbach’s The Common Good and Christian Ethics (Cambridge, 2002). Although now close to ten years old, the book identified the lack of a desire to work for the common good as a serious problem that presented unique opportunities for a fresh approach to the role of religion in public life. Unable to articulate a coherent notion of the common good, American leaders and voters have sought solutions to serious national problems based on the fallacy that everyone can have what he or she wants without making sacrifices. Because we live in a society in which different perceptions of the good must coexist, the notion of a common project seems coercive. Instead, we rely on tolerance as the best way of maintaining a peaceful coexistence. But, as Hollenbach so aptly notes, there are a number of important problems that tolerance cannot handle.

Hollenbach argues that religious groups can contribute to the public good of a community in ways that are both peaceful and supportive of the freedom of its members. Indeed, they ought to do this, but not necessarily in the ways commonly witnessed in the United States in recent decades.

Christians should be actively engaged in building up a community of freedom with those who are not Christian, and working toward a revival of a vibrant civil society that can articulate a coherent understanding of the common good in a pluralist context.

Over the last several years I have participated hands-on in this process through multi-faith community organizing in inner-city London.

Citizens from a number of Christian congregations, along with their Muslim neighbors and members of secular trade unions, have entered into the public realm to bring issues of common concern to the attention of public officials. Many of these citizens have been motivated to act because of their faith and their commitment to values nurtured in them through their faith communities. They have joined with their neighbors across the boundaries of faith or no-faith to take action on important problems— like living wages and immigration reform— that have negative effects on all members of the community. In London, the notion of the common good has animated a sense of civic engagement from the ground up.

Community organizing in London represents a wonderful realization of Hollebach’s vision, and it also suggests a path for Christian lawyers in the United States today. Our goal should be to enter into public conversation as Christians motivated and empowered by Christian traditions of justice and human dignity. Through these traditions we can work to engage our neighbors and fellow citizens across boundaries of difference to enhance the common good, which we will learn to appreciate and recognize through dialogue and engagement, not by retreating into a private quest to secure our personal needs and desires.

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By Vincent Rougeau, Professor, Notre Dame Law School. Professor Rougeau has been named dean of Boston College Law School, effective July 1.

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Josef Pieper, Leisure, The Basis of Culture (1948)

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s the wheels touch the runway a majority of passengers reach for their I-phones, Blackberries, or other communication devices, wondering what they have missed during flight. Distraction and noise bombard our lives as information and communication technology keep us constantly connected to the outer world as our lives, our identities, and our worth are measured by what we do, not who we are.

Josef Pieper describes this as a culture of “total work” where all other aspects of life relate back to work. Education prepares the young to be productive members of society, time off provides an opportunity for entertainment or rest to prepare us for our return to work, and retirement rewards work. Without denigrating work - indeed with an eye toward sanctifying work - Josef Pieper enters this scene to propose that we are made for leisure and that leisure is the basis of flourishing human culture.

Pieper wrote in the 1940’s when the average attorney billed between 1200 and 1500 hours a year, organized youth sports had not yet invaded Sunday mornings, and movies could not distract us from boredom at the touch of a button. Even then he sensed a flattening out of human society with persons reduced to the status of cogs or mere functionaries in a utilitarian world of production, and, I would add, consumption. Pieper calls all of us to deepen our communication with God, ourselves, and the world around us by deliberately taking time from activity to approach our surrounding in contemplation with awe and wonder, receptively saying “yes,” like Mary, to all that God gifts us.

This inflating of our full humanity, which begins with purposefully keeping the Sabbath, extends to every part of life. The “Truman Show,” a 1998 movie, succinctly illustrates Pieper’s thesis. Without his knowledge or consent Truman’s world consisted of the set of a reality TV show in which he was the protagonist. Over time, he became aware that there was much more to the world than met the eye. In wonder and without effort Truman became disillusioned “in the sense of being freed from an illusion” (p.105). Although it ultimately took heroic effort on his part to transcend his limited worldview, the effort – the work- was condition not cause of the transformation (16). Passive awareness, a willingness to let go of penultimate certainties and embrace reality as it actually exists, caused the transcendence.

We – all of us – are Truman living within the confined world of what Luigi Giussani calls the “common mentality,” which places an emphasis

on the temporal, on what we do for work and play rather than who we are within the order of God’s creation. But we are made for more. Unique among creatures, human beings live an embodied existence bounded to a specific environment by space and time (unlike the angels) but capable of relating to a world transcending their environment (unlike animals). We know there is more to life than what we see, but we also know that we don’t know the depths of this larger reality.

Once we become aware of the human condition, two responses are possible. Mistaking penultimate reality for reality itself, doubt besieges our modernist tendencies, causing paralysis, boredom, and degradation of philosophy, poetry, love, and prayer (104). Wonder provides the other response. “[W]onder signifies that the world is profounder, more all-embracing and mysterious than the logic of everyday reason had taught us to believe.” (105).

Pieper points to philosophy, poetry, prayer, and love, as our way forward, bringing us into richer contact with the world and its Maker as we see our surroundings in a new light of hope planted in us by a loving God. But, as we know, these can be perverted when not connected to a festive companionship with God centered in divine worship.

Poetry and philosophy may be unnecessary for salvation, but they are central to becoming the creatures God created us to be. “In leisure … man oversteps the frontiers of the everyday workaday world, not in external effort or strain, but as though lifted above it in ecstasy. That is the sense of the visibility of the sacrament: that it should be the means of lifting man out of himself, so that he may be rapt in the heavens, … rapt into the love of the invisible reality through the visibility of that first and ultimate sacrament: the Incarnation” (52-53).

By purposefully making room for leisure (not mere entertainment), we will become better attorneys, but this is merely a by-product of becoming more fully human.

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By Michael Scaperlanda, Edwards Family Chair in Law and Professor of Law, University of Oklahoma College of Law.

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Charles Taylor, A Secular Age (2007)

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hy is it that what was nearly inconceivable in the West at the beginning of the sixteenth century—that God does not exist—is commonplace today? How has something as taken for granted as the reality of a God who superintends the social order, sends good harvests or pestilences to encourage or chasten, and will judge us all, become a belief that must constantly be justified even to the believer? Charles Taylor’s magnum opus, A Secular Age, sets out to answer these questions. Taylor’s is not a simple chronology of the increasing secularity of the last 500 years. It is instead a deeply textured account of the changing “social imaginaries” that characterize the matrix within which contemporary Westerners live their lives. More than worldviews that tick off a series of concepts, “social imaginaries” are the pretheoretical, unarticulated way of seeing our lives “as having a certain moral/spiritual shape” (5).

The typical version of the secularization thesis answers these questions about the change in social imaginaries in terms of a series of subtractions.

As Christian and thick metaphysical beliefs fall away in the face of science and technology, the subtractionists argue, we are left with a purely physical universe in which the goal of humanity is nothing but satisfaction of desires. Or, as Taylor puts it, we have the social imaginary of exclusive humanism. Taylor debunks this argument with a knowledge of history that is far deeper than the textbook versions that prop up the subtractionist account. In its place he describes a series of four eclipses, none of which were inevitable and all of which exhibit a moral twist to the “facts” of science and power of technology.

Just as an eclipse of the sun doesn’t eliminate all light, none of the eclipses that Taylor identifies eradicated the prior imaginaries. Each, however, describes a shift in emphasis from a cosmos ordered from the divine to the mundane to a purely immanent state of affairs. There was a shift from a deep conviction that there was a “further purpose” for humanity (e.g., the glory of God) to one in which we seek only human flourishing. There was an eclipse of the felt need for divine grace in favor of the perception that human problems could be solved by the application of human technology.

Lives characterized by a deep sense of the mystery of God’s providences were eclipsed by trust in the deliverances of science. Finally, there was a loss of any “idea that God was planning a transformation of human beings which would take them beyond the limitations which inhere in their present condition,” an eclipse of theiosis (224).

What has made so many living in the shadows so appealing, so seemingly natural to so many, even to those who intellectually reject them? Taylor finds pride at the center. We are quite pleased to be able to chart our own course, to choose own goals, and to achieve our chosen ends even in the face of the void; we want to be “adults.” And of course, the successes of the modern social imaginary cannot be discounted. Westerners have been extraordinarily successful over the last 500 years in deploying the powers of technology to achieve prosperous economic harmony.There is a reason why law-andeconomics dominates the legal academy and not, say, law-and-virtue or law-and-theology.

The social imaginary of exclusive humanism, however, has never succeeded eradicating all evidence of the transcendent. From continuing communities of Christians committed to orthodoxy to nineteenth century Romanticism to contemporary “spirituality,” evidence of dissatisfaction with the four-fold eclipse remains evident. The lack of a “further purpose” of humanity seems most acute. And it is here that living the inherited Christian tradition is the most effective testimony.

A community of believers——a community of those who live the reality of that further purpose— the glory of God—and in the anticipation of the culmination of the “now” of God’s Kingdom, is the most effective way to demonstrate the tenebrous nature of exclusive humanism. In short, those who believe the truth of the orthodox faith need to live by grace rather than by the fruits of the efficient economic order; a difficult challenge for those who successfully practice law.

A Secular Age is a dense work. It is deep, detailed, and multi-layered—much like life. A patient reading has rewarded me with a better understanding of how the Western world has come to this point and of the cracks in the imaginary of exclusive humanism. The plethora of responses to it demonstrates that its impact will continue for years to come.

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By C. Scott Pryor, Visiting Professor of Law, Norman Adrian Wiggins School of Law, Campbell University; Professor of Law, Regent University School of Law. Author’s note: For more comments on A Secular Age see http://www.pryorthoughts.blogspot.com/.

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Reflection on:

Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 Journal of Law & Religion 65-74 (1987)

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first encountered Robert Cover’s Obligation: A Jewish Jurisprudence of the Social Order while team-teaching a seminar on Religion, Law and Lawyering with one of the great pioneers in the field of “religious lawyering,” Howard Lesnick.1 I am not sure if the impact was due more to the fact that I read the essay through the lens of Howard’s insight and guidance, or to the article itself, but I distinctly remember how it helped me begin to find the language to express the connections between jurisprudence and my own Roman Catholic tradition.

Why would Cover’s very brief essay be my recommended first stop for a project to cultivate Christian legal thought? First, Cover’s analysis opens up the categories of jurisprudence to recognize the integrity of religious systems of thought and the contribution that they can bring precisely in this integrity. Asked to reflect on Judaism and human rights, he has the courage to say: “the categories are wrong”—because “Judaism has its own categories for expressing through law the worth and dignity of each human being.” As Cover demonstrates, discussions about jurisprudence do not need to be stuffed into, or reduced to, the categories and frameworks of philosophical liberalism. Within the field of jurisprudence, there is space to explore other “fundamental words” and the “fundamental stories” from which those words receive their force and meaning (65).

Second,as he tells the“stories”behind two different key words,“rights” and “mitzvah” (obligation), Cover sets an appreciative, conversational tone. Because each system of rhetoric has a differently “loaded,

1

Howard Lesnick’s teaching materials are now collected in a marvelous book, Religion in Legal Thought and Practice (Cambridge University Press 2010). The volume is a must-read, both as a first stop introduction and as an extensive guide to the field. Actually, Lesnick’s volume would be my first choice for a work that contributes to Christian legal thought—but I did not think that I could do it justice in less than 10,000 words.

evocative edge,” each goes to the nub of different problems. Each has strengths and weaknesses, but there is room and need for both—“Sinai and social contract both have their place” (73). Any well-grounded project to cultivate Christian legal thought needs to recognize that it is situated within a tradition, and in conversation with a number of other secular and religious philosophical traditions.

The open spirit which pervades Cover’s essay is a model for how jurisprudence can benefit from a mutually enriching dialogue between, across and within traditions.

Finally, what I love about Cover’s essay is that he concludes with a reflection on where the “loaded, evocative edge” is in his own personal and religious experience. Scanning his own “privileged position” and the blessings in his own life, Cover concludes “it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights” (73). Cover makes the point that reflections on jurisprudence can make space for and benefit from stories about what I as a person hold together in my own thought, and in my own religious experience. Cover’s powerful analysis is a model for how such reflection is not as Richard Rorty feared, “a conversation stopper,”2 but actually a substantial contribution to jurisprudence in a religiously pluralistic society.

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By Amelia J. Uelmen, Director, Institute on Religion, Law & Lawyer’s Work, Fordham University School of Law.

2

ichard Rorty, Religion as a Conversation Stopper, 3 Common R Knowledge 1 (1994).

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Cathy Kaveny, Billable Hours in Ordinary Time: A Theological Critique of the Instrumentalization of Time in Professional Life, Loyola L.J. (2001)

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ost of the burgeoning field of Christian legal scholarship has been devoted to articulating a Christian understanding of law; relatively little effort has been made to help develop a Christian understanding of legal practice itself. One notable exception is Cathy Kaveny’s exploration of the billable hours regime from the perspective of Christian theology. Kaveny delivers a bracing warning to lawyers about the threat to personal integrity posed by modern legal practice, not because it pays too much heed to the importance of time, but because it pays so little.

It is hardly newsworthy to note that the amount of time demanded by a lawyer’s work can run roughshod over their personal commitments.

Kaveny has a different target in mind in this article, though. She explains that an “important cause of lawyers’ unhappiness is not the amount of time they work, but rather the way in which they understand the time they spend working, which is directly related to the manner in which they are forced to account for it.” By reducing the value of time to money, the billable hour can be “deeply inimical to human flourishing.”

There are several components to her indictment, three of which are especially important. First, as the embodiment of an instrumentalist view of time, the billable hour suggests that time’s value is entirely extrinsic – i.e., it is valuable only to the extent that it is used to achieve the client’s purposes and thereby make money for the firm. At its extreme, the billable hour mindset can lead lawyers to commodify even the time that work has taken away from their non-work commitments. A lawyer might assume that a missed school play, for example, can be compensated for by spending money on the disappointed child.

Second, the billable hour mindset teaches that time is fungible. As Kaveny puts it, “[b]ecause all time is potentially available for work, lawyers may begin to believe that they must justify any decision to rule out doing work in advance during any given time period.” This mindset is built on the assumption that the context of time is irrelevant to its value, as though an hour worked on Monday afternoon is the same as an hour worked over the dinner hour or on a Sunday morning.

Third, time in the billable hour regime is an “endless present,” flowing as a constant stream without permitting time or reflective space by which to integrate the meaning of personal mile-

M. Cathleen Kaveny, John P. Murphy Foundation Professor of Law and Professor of Theology, University of Notre Dame

stones into one’s sense of identity. The billable hour discourages introspection, for introspection does not produce demonstrable results and thus is marginalized as a worthwhile endeavor. Kaveny observes that “[t]he longer that a lawyer lives a life that is dominated by an instrumental understanding of time’s value, the more distant she will feel from persons, institutions, and traditions of belief and practice accustomed to viewing and valuing time differently.”

Christianity offers a different understanding of time: time is intrinsically valuable, as it presents the unfolding of the salvation narrative; our moments are not fungible, but unique; and time is not an endless present, but a “spiral punctuated by moments of decision.” So how can a Christian lawyer competing to earn a livelihood resist the corrosive effects of the billable hour regime? The self-awareness prompted by Kaveny’s analysis provides part of the answer, and now, ten years after the article was published, alternative billing options are becoming more prevalent – not because of a groundswell of concern among lawyers, but because of clients pushing back against the questionable incentives created by the billable hour. As the profession struggles to identify billing practices that facilitate predictability and avoid promoting inefficiency, Kaveny reminds Christian lawyers that our billing statements have significant implications for our faith journeys, not just our balance sheets.

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By Robert K. Vischer, Professor and Associate Dean, University of St. Thomas School of Law.

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Practical Perspectives Religion and International Law (Mark Janis and Carolyn Evans, eds., 2001)

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en years ago, Mark Janis (Professor, University of Connecticut Law School) and Carolyn Evans (Dean, University of Melbourne Law School) published Religion and International Law, one of the best books in recent memory on the connection between religion and international law.

Space does not permit a discussion of all twentytwo of the essays, so I will only highlight a few. My more complete review of the book is available in the 2001 edition of the Journal of Law and Religion.

Two essays in the book stand out. Janis’ excellent essay, surveying the classic texts of international law, provides a perfect lens through which to examine the historical role of religion in international law. Comparing the treatment of religion and international law in the writings of Grotius, Vattel, Austin, Wheaton, Oppenheim, and Brownlie, the essay suggests that throughout history international lawyers struggled with the relationship between religion and international law, and arrived at dramatically different conclusions. Whereas Hugo Grotius (1583-1645) sought to utilize religion, and in particular the Bible, as proof of the existence of a law of nations, Henry Wheaton (1785-1848) sought to limit the universal pretensions of international law by arguing that there was “no universal, immutable law of nations.” For Wheaton, international law was enforced through moral sanctions as the law of “civilized, Christian nations,” distinct and wholly unlike the law of “Mohammedan nations.” Janis then looks at modern times through the writings of Lassa Oppenheim (1858-1919) and Ian Brownlie (1932-2010). Oppenheim treated religion as part of the history of international law, of little value for the modern, positivist “Science of international law.”

Brownlie completes the picture by mirroring the dismissive attitude of many international lawyers toward religion, focusing instead on the positive evidences of the existence of consensus among states.

The conclusion is that religion and international law necessarily intersect, although writers throughout history have differed on whether religion influences international law as proof, problem, prescription, or precursor.

Second, James Nafzinger’s essay offers the only systematic typology in the book. Nafzinger

argues that religion impacts international law in five ways: creative, aspirational, didactic, custodial, and mediative. Nafzinger’s “creative function” of religion posits that international law grew out of Christian civilization, with its modern underpinnings now more ecumenical. He points to Augustinian just war theory as the origin for humanitarian law, Mosaic law of the talion (an “eye for an eye”) as the root of modern doctrine of reprisal and retorsion, canon law as influencing the doctrine of pacta sunt servanda, and a host of religious influences on modern human rights law. The “aspirational function” suggests that international law is more than merely Austinian positivism, and that religion is influential in pulling international law toward teleological and normative ideals. The “didactic function” suggests that international law is inscrutable to the average lay person, and that religious institutions play an important role in socializing the public to international law, with the embrace by the Catholic encyclical Pacem in Terris of the Universal Declaration of Human Rights as illustrative. Less importantly, the “custodial function” speaks to religious institutions’ influence on political leaders to expound and implement international law, while the “mediative function” concerns the role of religious institutions in keeping the peace and maintaining good order by mediating disputes.

Many other essays are noteworthy. For example, Matthew Ritter’s essay addresses the challenge that various religious traditions pose for claims of certain “universal” human rights. He offers an interesting syllogism to explain why contemporary human rights jurisprudence eschews religious justifications. While human rights are construed as universal, each religion claims particularized and categorical truth. Therefore, universal regard for every human cannot be justified by appeal to any particular religious perspective. Even if one wished to justify the universal based on commonalities among the particular, Ritter is also pessimistic. In contrarian fashion he rejects the notion that the great world religions share common human rights values. Surveying the major world religions and their treatment of individual rights, Ritter argues

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that the “emergent universal consonance of rights talk therefore rests upon a submergent multivocal dissonance of its justification.” Nor is Ritter satisfied with the traditional role of reason as a jurisprudential solution. For Ritter, reason provides no answer beyond the categorical imperative to be moral or the prudential strategy of mutual expediency.

Shabtai Rosenne’s essay assesses the influence of Judaism on international law and concludes that the “patristic” literature on international law— including the writings of Hugo Grotius, John Seldon, and Samuel Pufendorf—made frequent use of biblical resources. He notes that there is biblical support for rules on the conduct of war, immunity of diplomatic envoys, and entering into treaties. Rosenne also suggests that principles of innocent passage and elements of international arbitration are of Jewish origin. Most fundamental, Rosenne suggests that “the happy combination of law and morality which gives all Jewish law its peculiar quality” suffuses the Jewish conception of international morality, subjecting the “conduct of States to a higher rule implicit in the law of God.” Hilaire McCoubrey makes a good case for the natural law underpinnings in modern international law, noting that “naturalism and positivism are not mutually exclusive options . . . but rather elements within a spectrum of analyses all of which have their proper role to play in an adequately holistic appreciation of legal phenomena.” He suggests

that the aspirations of international law expressed in the U.N. Charter are undoubtedly naturalist, whereas the formal functioning of international law is positivistic—much like the view that the U.S. Constitution is a naturalist document that informs a positivist government and legal system.

The collection of essays is not without its problems. David Kennedy’s essay is a Cubist collage chock full of self-satisfied metaphors (religion as puzzling and different as a “cliterodectomy”) and facile alliterations (liberalism as the “cant” of “Kant”). This undoubtedly is the first and hopefully the last international law essay that references love beyond libido, ubiquitous Pope-mobiles, snowboarding to Nirvana, Chutes and Ladders, golden oldies, clunky boots, sagging bellbottoms, cool friendships with Catholics, and tempting little legal Lolitas. International law may be sexy, but it is not that exotic.� In sum, Religion and International Law is a truly seminal publication that will provide fodder for significant additional reflection for any Christian lawyer interested in the nexus between religion and international law.

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By Roger Alford, Professor, Pepperdine University School of Law.

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Shedding Light on Gender Mistrust with John Paul II’s Theology of the Body

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opular and scholarly essayists often reflect today on the strained relations between men and women. Men and women marry later, or not at all. They cohabit to delay or avoid marriage.

They have children without marriage or divorce often after having children. They accuse each other of “fear of commitment” or “conniving.”

Proposals to mitigate “gender mistrust” abound.

They range widely from the financial to the psychological, and from the sexual to the legal.

Few suspect that some of the most astute insights about gender mistrust arise out of the theological anthropology presented by Pope John Paul II over the course of his first 130 Wednesday audiences, collectively entitled the Theology of the Body. These consist primarily of reflections about male-female relations drawn from the stories of the Creation and the Fall found in Genesis, and observations on both from the New Testament.

Most writing about the Theology of the Body marvels over its insight about males and females being made as “gifts” for one another, and the implication of this for the nature of marriage, the good of procreation, and, by extension, the meaning of all human life. As a family law professor, however, I marvel over another aspect of the Theology of the Body – its power to illuminate male-female relationships gone wrong via its discussion of original sin.

Even a quick look at the story of the Fall indicates that after the break between human beings and God, the next disruption – the first between humans – occurs between the man and the woman. John Paul II contrasts Adam and Eve’s responses to one another’s bodies before and after their disobedience. Prior to the Fall, they looked upon one another naked and were “not ashamed.”

Afterwards, they feel compelled to cover their sexual differences with fig leaves. They seem incapable of seeing one another’s bodies as signs of their mutual gift to one another; now, their differing sexualities become an obstacle in the personal relationship -- the very opposite of God’s original purposes to create society, communion, and a one-flesh union.

Their sin also has “his and hers” consequences: his body becomes the place for domination, and hers for a form of desire which is similar to a manipulation

of his attraction, in order to attain her desire. The male and the female will still experience mutual attraction, will still be called to communion, but will be inclined now to live, not for one another, but over one another, again, precisely on the basis of their bodies and sex.

Can their marriage be saved? Both John Paul II and Benedict XVI urge us to eschew the temptation of anthropological pessimism here. Male female relations will be “habitually threatened,” but there is always hope. Humanity is “in fact cured” by God’s death and resurrection, a fact we must accept or decline with our free will. In the end though, the human heart is “above all the object of a call and not of an accusation.” Faithful, heterosexual love is possible, and the sacrament of marriage can strengthen it. Admitting the reality of the persistent disorder between men and women, however, becomes a necessary beginning.

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By Helen M. Alvaré, Associate Professor, George Mason University School of Law.

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Mike Hulme, Why We Disagree About Climate Change: Understanding Controversy, Inaction and Opportunity (2009)

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eople are not listening to their scientists.

Polls repeatedly show that climate change ranks at the bottom of the list of urgent priorities for Americans to address. Climate change even ranks below a more general concern about “the environment.” Yet scientists and environmental activists often insist that the fate of the world depends on our response to climate change. They are often at a loss explain why so many people don’t get it. Why, in other words, people disagree.

Mike Hulme has the answer. Hulme is a geography professor at the University of East Anglia in England, where he has been active in the scientific study and response to climate change for nearly two decades. He is also an evangelical Anglican.

In “Why We Disagree About Climate Change?”, Hulme explains how our different worldviews affect our understanding of the problem of climate change and the wisdom of the proposed solutions.

Hulme distinguishes between climate change as a scientific phenomenon and “the idea of climate change” that features in our political debates.

According to Hulme, it is the idea of climate change that provokes such contrasting responses because of our different views of science, values, beliefs, fears, media, development, and governance. For example, we disagree about science because we have different understandings of the relationship of scientific evidence to other things: to what we regard as ultimate “truth,” to the ways in which we relate uncertainty to risk, and to what we believe to be the legitimate role of knowledge in policy making.

Our values lead us to see our responsibilities to future generations differently and to measure value humans and nature in different ways. And we receive multiple and conflicting messages about climate change and we interpret them in different ways.

Climate change, says Hulme, is not just about who is right, but what to do about such fundamental disagreements. Christians in particular should be equipped for a world in which different people hold such contrasting fundamental views about what they regard as of ultimate importance. How should we respond when both the world around us, and we ourselves, cannot agree such a comprehensive problem and how to employ the coercive force of the law based on those competing understandings of the problem?

In the book’s concluding chapter, Hulme employs biblical metaphors to tell four stories to help us move “beyond climate change.” Lamenting Eden means that we lose something beyond ourselves when we so radically change the world around us. Presaging Apocalypse alerts us to the need to affect the future rather than simply predict it. Constructing Babel warns against the human desire to dominate. Celebrating Jubilee recognizes that actions to prevent the harms of climate change may also achieve social justice in other contexts.

Ultimately, Hulme concludes, “the idea of climate change should be used to rethink and renegotiate our wider social goals about how and why we live on this planet.” As Hulme knows, the Christian faith is uniquely equipped to explain how and why we live on this planet.

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By John Copeland Nagle, John N. Matthews Professor of Law, University of Notre Dame School of Law.

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Christianity and Human Rights: An Introduction (John Witte, Jr. and Frank S. Alexander, eds., 2011)

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he book Christianity and Human Rights: An Introduction arises as part of the Christian Legal Studies project at Emory University’s Center for the Study of Law and Religion. Editors John Witte and Frank Alexander have gathered seventeen essays from leading scholars and packaged them with a thematic introduction by John Witte, a lively foreword by Archbishop Desmond Tutu, and a thoughtful afterword by the esteemed Robert Bellah. The end result is a collection that will be useful to anyone seeking to study the historical and theological origins of human rights or seeking to understand the connections between modern conceptions of human rights and various Christian traditions.

What is there to learn from this book? A lot. In the first half, authors tour the reader through some “Foundations and Developments” of human rights.

For example, R.H. Helmholz lifts up the content and language of human rights from medieval canon law in a fresh way, while John Witte crisply explores rights in early Protestantism. J. Bryan Hehir and Nicholas Wolterstorff subsequently carry forward these foundations into chapters exploring 20th century Catholic and Protestant theology, respectively. In the second half of the book, authors explore Christianity, the modern human rights framework, and specific issues. For example, Jeremy Gunn provides a short-hand introduction to the legal human rights regime and organizations. Jeremy Waldron explores the possibilities and limitations of using Imago Dei (the theme that humans are created in the image of God) as foundational grounding for human rights. And Rick Garnett stakes out ground for religious liberty to include group rights and not just individual rights.

What is there that’s missing from this book?

Some, but not a lot. The most prominent omission is the inadequate discussion of Evangelical Christians and human rights. The chapters on historic and modern Protestantism do not capture the duality of evangelicals’ strong involvement in some human rights issues while remaining tremendously hesitant to adopt human rights language. Robert Seiple, the former President of WorldVision, has a very fine chapter discussing how Christianity and human rights “touch the ground,” in which he details a theological and practical focus on economic and social rights. But his is a call to action rather than a focus on why Evangelicals generally are still uninvolved or underinvolved in human rights

John Witte, Jr., Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion, Emory University

and why the language of human rights remains offputting to many. (I tackle some of these latter questions in a 2009 article in the Journal of Law and Religion.)1 Other criticisms could be leveled about the book’s relative lack of human rights critics or skeptics generally. The book also seemingly over-emphasizes religious rights to the detriment of other rights (e.g., there are no chapters devoted to torture or the death penalty, but individual chapters do focus upon religious equality, religious group rights, and religious conversion).

But these latter criticisms seem trifling considering the overall intellectual heft of the book and its clear efforts at inclusion of so many issues in a limited number of pages.

What else should be said about the book? It is not a book for everyone, even though it is pitched as such. A reader completely unfamiliar with human rights language and history might find the book daunting for its overly academic tone, especially in some early chapters. Overall, though, the chapters are of a uniformly high caliber and consistently contain interesting and often new information. For any reader honestly wanting an “introduction” to the historical and modern connections between Christianity and human rights, this book is a great addition to the shelf.2

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By Joel Nichols, Associate Professor, University of St. Thomas School of Law.

J oel A. Nichols, “Evangelicals and Human Rights: The Continuing Ambivalence of Evangelical Christians’ Support for Human Rights,” Journal of Law and Religion 24 (2009): 629-662.

2 For further reading, see the helpful “Recommended Readings” after each chapter, and also Christianity and Human Rights, Ed. Frederick M. Shepherd (Rowman & Littlefield, 2009).

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Amelia J. Uelmen, Toward a Trinitarian Theory of Products Liability, 1 J. Cath. Soc. Thought 603 (2004)

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hen people think about areas in which the Christian tradition and Christian thought might have something to contribute to our dialogues about law and public policy, there are some areas that jump immediately to mind. We tend to think about how the principles of dignity of the human person and sacredness of human life contribute to our views about abortion.

Or about how the preferential option for the poor might inform our views about governmental social welfare programs. Or about how the Catholic Church’s many discussions about labor and human work might influence our thoughts about labor policy and employer-employee relations. Or about how the Christian command to forgive and to love our enemies might influence how we think about criminal sentencing and incarceration.

When we think about areas in which the Christian tradition and Christian thought might have something to contribute to our dialogues about law and public policy, we do not, however, tend to jump immediately to the Christian doctrine of the Trinity, which has been called perhaps the most misunderstood and most underappreciated teaching of the entire faith. And we certainly wouldn’t immediately come to the conclusion that the doctrine of the Trinity has something to contribute to how we think about products liability law.

It is for that reason, that I consider Amy Uelmen’s article a major contribution to the project of cultivating Christian legal thought. In bringing together the doctrine of the Trinity and area of products liability law, she accomplishes some significant goals of the Christian legal thought project.

First, Uelmen explores the Trinitarian dimensions of Catholic social thought in a way that is accessible to laypersons lacking in theological training and in a way that helps one begin to imagine how the dynamic of the relationship among the Father, Son and Holy Spirit might serve as a model for human relations in a variety of settings.

Second, Uelmen avoids the trap of using Christian thought merely as a means of critiquing existing legal and social rules. Pointing out the

drawbacks of an existing approach, as we all know, is a lot less challenging than offering a positive alternative. Although Uelmen’s piece certainly includes critique, it, more importantly, employs the Trinitarian perspective in a positive way. For each Amelia J. Uelmen of the two examples she addresses in her piece – the Ford Pinto case and the debate about the appropriate test for a defective designed product – she discusses how Trinitarian lens gives a new criterion for interpretation. Taking the Ford Pinto case as an illustration, she explores not only how a Trinitarian lens offers a different way of understanding the “reasonable person” notion, but a way to understand the dynamic out of which juries intuitively operate. Even more positively, she explores how a Trinitarian lens helps us understand how manufacturers might have differently approached the design issue.

For lawyers and judges who work in the torts and products liability area, Uelmen’s piece offers useful insight that goes beyond (to use her words) “tweaking economic analysis towards more generous and safety-concerned results” by offering a new lens through which to view the legal issues involved.

Those not directly involved in those legal areas who read the piece will find themselves thinking about other areas in which a Trinitarian perspective might offer positive contribution as well as critique.

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By Susan J. Stabile, Robert and Marion Short Distinguished Chair in Law, University of St Thomas (MN).

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Generous Support for The Journal of Christian Legal Thought is provided by Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy Pepperdine University’s Nootbaar Institute on Law, Religion, and Ethics

The Journal of Christian Legal Thought is a publicaton of the Institute for Christian Legal Studies, a cooperative ministry of the Christian Legal Society and Regent University School of Law