Like other Americans, Christians have called for legal solutions to every conceivable question, from abortion and gay marriage, to Terri Schiavo and end-of-life questions, to gambling and corporate responsibility. Law isn’t so pervasive in other developed countries, but the American perspective seems to be spreading. If asked to identify the objective of all this law, Christians and Christian lawmakers often say “promoting morality.” But can or should secular law enforce every moral obligation? What might a more rigorous Christian perspective on faith, morals, and law look like?
The Teachings of Modern Christianity on Law, Politics, & Human Nature: Volume One
Columbia University Press
806 pages
$91.73
Legal scholarship, the most obvious place to turn for reflections on these issues, is just beginning to address them in earnest. In 2001, Michael McConnell (then a law professor, now a federal appellate judge) and several others published Christian Perspectives on Legal Thought, a collection of essays by 28 legal scholars. The essays range from historical studies of classical liberal theory and marriage law, to Calvinist or Anabaptist or Catholic perspectives on particular legal issues, together with a great deal of shop-talk: Christian assessments of legal academia and the various movements that have dominated secular legal scholarship in recent years. A few of the essays are excellent, and Christian Perspectives is a pathbreaking experiment in possible Christian approaches. But the essays do not develop any particular thesis or set of theses.
The Teachings of Modern Christianity on Law, Politics & Human Nature, a massive two-volume set edited by John Witte and Frank Alexander, takes a different and more unified tack. For the principal volume, Witte and Alexander selected twenty figures from the three major Christian traditions—seven Catholic, eight Protestant, and five Orthodox—and commissioned essays exploring the legacy of each. (The second volume lets the twenty speak for themselves, providing a medley of excerpts culled from their writings.) The essays—which treat thinkers as various as Pope Leo XIII, whose 1891 Rerum novarum ushered in modern Catholic social thought; the brilliant Russian Orthodox scholar Vladimir Soloviev; Karl Barth and Reinhold Niebuhr; Martin Luther King, Jr.; and even John Paul II—take roughly the same form: an overview and brief biography, followed by an explication of their subject’s teachings by word or deed on “law, politics, and human nature.” For structure and context, The Teachings of Modern Christianity includes a thoughtful introduction by Witte, introductory chapters at the outset of each of the three major sections, and “afterward” chapters by prominent legal scholars Kent Greenawalt and Harold Berman.
Mindful that most American readers know little about the Orthodox tradition, Paul Valliere threads helpful pointers through his introduction to Orthodoxy and his chapter on Soloviev, best known for influencing Dostoevsky’s masterpiece The Brothers Karamazov. Many of the Catholic and Protestant figures will be familiar to all, but others will come as a revelation to many readers outside their given tradition. John Courtney Murray, whose writings on democracy and religious freedom were vindicated by Vatican II, and social activist Dorothy Day are too little known today even among fellow Catholics, while William Stringfellow, who wrote eloquently from Harlem on the role of the church during the civil rights era, is largely forgotten except in certain mainline Protestant circles.
The twenty succinct intellectual biographies tell one story more than any other: the great 20th-century struggle to define an appropriate stance of the church toward the state. “The problem of the state was the crucible in which the Catholic Mind was sharpened,” Russell Hittinger writes in his introduction to the Catholic tradition. For Catholics, the chastening lessons of totalitarianism paved the way to the 1948 Universal Declaration of Human Rights, championed by the Thomist philosopher Jacques Maritain, and flowered further in Vatican II’s endorsement of democratic freedoms and a measure of separation between church and state. Among Protestants, the rise of Nazism spurred the great Barmen Declaration of 1934, which was authored by Karl Barth and implicitly rebuked the churches that aligned themselves with Hitler. Surveying the state’s dominance of the church in much of the Orthodox world, Valliere quotes Aleksandr Solzhenitsyn, who “lamented ‘our ingrained and wretched Russian tradition: we refuse to learn how to organize from below, and are inclined to wait for instructions from a monarch, a leader, a spiritual or political authority.’ “
Perhaps inevitably in a volume of intellectual biographies, the theologians and philosophers fare better in the telling than the “doers,” the activists. Barth and Maritain leave a vivid impression, while Day and Dietrich Bonhoeffer, who made their mark through their lives rather than through pathbreaking contributions to constructive theology, are not seen to full advantage. With its reliance on bold-faced lives rather than broad trends, the collection also neglects the most important development of the past three decades, the rise of contemporary evangelicalism. None of its leading figures, from Carl Henry, the first editor of Christianity Today, and Billy Graham to Chuck Colson or even C.S. Lewis, has the heft of Barth or Niebuhr, but evangelicalism has transformed American politics and law.
Far more surprising for a project whose principal focus is law, and whose two editors are law professors, is that none of the twenty figures is a legal scholar, and the essays only rarely grapple with particular legal issues and legal systems. (The chief exceptions come from the ranks of the doers: Susan Anthony’s campaign for women’s suffrage, King and the Civil Rights movement.) Why so little law? Witte’s introduction hints at one possible explanation: legal positivism. For the legal positivists, law is nothing more or less than the rules that a sovereign lays down. Starting in the Harvard Law School of the 1890s, positivists sought to establish law as a science, a self-contained system disconnected from the messy world of politics, culture or religion. The success of this perspective, Witte suggests, left little room for Christian inquiry into law, politics, and society in the scholarly legal literature.
But legal positivism cannot fully explain the remarkable absence of Christian legal scholarship for much of the 20th century. As Witte points out, competing scholarly movements (starting with “legal realism” in the 1930s, and later including feminism and race-based perspectives) have long brought sociological, economic, and other insights to bear. Some prominent legal philosophers, such as Ronald Dworkin, have insisted on the inherent morality of the law. But religion was different. When Harold Berman, one of the few scholars studying law and religion thirty years ago, sent his 1974 book The Interaction of Law and Religion to fifty Harvard Law School colleagues, not one even acknowledged the gift.
The disdain did not run in one direction only. From the early 20th century until the 1940s, evangelical Christians disengaged from American public life. Law schools were hostile territory, generally to be avoided. As a result, the few evangelical legal scholars tended to operate under cover, assiduously separating their faith and their scholarly life. By the 1970s, Presbyterian minister and apologist Francis Schaeffer and other evangelical leaders, building on the efforts of predecessors such as Carl Henry and Harold Ockenga, had begun asking why there weren’t more Christian lawyers, doctors, and businessmen. The evangelical re-engagement that followed has spread to academic circles, but more slowly than to business and the professions. Even now, it is an unusual law school that has more than one or two scholars who identify themselves as Christians, and whose faith explicitly informs their scholarship.
The publication of The Teachings of Modern Christianity, and the major Pew Charitable Trust funding that launched the project, signifies the major change underway. With the visible influence of Catholic intellectuals and evangelical leaders on the current White House, there suddenly is a deep interest in perspectives on religion, politics, and law. Legal scholars are not oblivious to these developments, as reflected in the increasing numbers of law review articles with “Christianity” in the title. Much of the new scholarship, too much perhaps, emphasizes philosophy and philosophical theology at the expense of other methodologies. The bias is understandable. For a generation chastened by Mark Noll’s brilliant indictment, The Scandal of the Evangelical Mind, it’s hard to resist the assumption that philosophy must be the truest and highest scholarly end.
There obviously is a place for this—John Finnis’ elaboration of natural law theory is and will be essential—but Christian scholars must branch more fully into other areas to address pressing questions: How much can and should the secular law do? (This is particularly pertinent to the battles over gay marriage, abortion, and corporate responsibility.) What are the mechanisms through which religious individuals and organizations influence lawmaking? (Think of the International Religious Freedom Act of 1998, which requires the U.S. to monitor religious freedom and drew on an unlikely combination of grassroots religious support and the efforts of secular human rights groups.) And so on.
Cezanne famously vowed to “do Poussin all over again from nature”—to reinterpret Poussin’s color and form for Cezanne’s own era. The new scholarship on law, politics, and society will, one hopes, draw on the giants portrayed in The Teachings of Modern Christianity, and do them all over again in the light of new insights in economics, political science, and sociology. The “growing end” of the Catholic tradition, as John Courtney Murray put it, surely will draw on work by Nobel laureate Amartya Sen, among others, on democracy, rights, poverty, and growth. Orthodox scholars may combine the rich Orthodox tradition of theosis (the Spirit-infused process of becoming more like God) with institutional analysis of the criminal justice system, a project one young legal scholar has already begun in work exploring the role of apology and reintegration in criminal law.
Protestantism cries out for a systematic rediscovery and “redoing” of Abraham Kuyper and Reinhold Niebuhr. Prime minister of the Netherlands and founder of the Free University of Amsterdam, Kuyper developed a theory of “sphere sovereignty,” under which government (and by implication, law) should intervene in the family or church or other local institutions only so far as necessary to police abuses. Niebuhr, countering the Social Gospel’s visionary optimism, insisted that politics, law, and international relations must be informed by a realistic assessment of the corrupting effects of sin. Kuyper wrote at a time when religious diversity in the Netherlands was primarily within Christianity rather than between Christianity and other religious (or non-religious) views. Both Kuyper and Niebuhr predated the sophisticated new political and legal literature known as public choice, which explores the role of interest groups and institutions in law making and law enforcement.
Attention to pluralism and the institutional consequences of sin suggests an important limitation on the use of secular law to enforce morality: because both ordinary citizens and those who enforce the laws are sinful, the law must play a double game: it must restrain the worst sins of the citizenry, but should not be so broad that it gives unfettered discretion to those who enforce the laws. Moral legislation that is too broad to systematically enforce—such as Prohibition and much gambling regulation—has tended to backfire, inviting discriminatory enforcement that undermines the very morals the law was designed to promote. In our era, these lessons suggest that a ban on partial-birth abortion might make more sense than an all-out campaign to criminalize abortion, and that the Supreme Court was right to outlaw anti-sodomy laws.
Kuyper and Niebuhr might also inform distinctly Christian insights into the institutional dynamics of religious influence. In Europe, the recent campaign to forgive the debt of impoverished nations was grounded in the established churches and related organizations, and achieved extraordinary prominence. Why did this international movement draw so much less attention in the United States, whereas Irish rock star Bono, working through a very different network and preaching that debt relief is a matter of “justice not charity,” persuaded the United States to forgive billions of dollars in debt and inspired the Millennium Challenge Account, which promised $15 billion to aid highly indebted poor countries?
To answer these questions, we need to think about the different institutional structures of the church in Europe and the United States, and the role that “norm entrepreneurs” like Bono play in coordinating the commitments of a large number of otherwise diffuse citizens.
Others will find inspiration elsewhere in The Teachings of Modern Christianity. What matters most, given the urgency of these issues for 21st-century life, is that the project get underway. As the Apostle Paul said of salvation: “Now is the needed time.”
David A. Skeel, Jr., a law professor at the University of Pennsylvania, is working on a book on Christianity and American law.
Copyright © 2006 by the author or Christianity Today/Books & Culture magazine. Click here for reprint information on Books & Culture.
