One of the first questions I ask students in my Christian Legal Thought seminar is what they expect Christianity might have to say about law. A common answer is that Christian teaching can provide guidance about what the legal rules should be. Many of my students have been taught the importance of having a Christian worldview. Not only that, they can take seminars from my colleagues on economics, feminism, and critical theory. These classes all promise to give students direction about law reform from the perspective of some other branch of learning. If Christianity is the ultimate truth, shouldn’t it do at least that much?
It turns out that Christian faith has plenty to say about law, but often not in the way my students expect. To be sure, the moral teaching of the second table of the Ten Commandments arguably forms the backbone of any legal system– civil law prohibits murder, theft, fraud, and sexual exploitation of various kinds. But these prohibitions don’t seem uniquely Christian; they can be accepted by anyone whose ethical presuppositions include the negative version of the golden rule. Perhaps more importantly, they aren’t the sort of things lawyers spend most of their time worrying about. It’s not the broad principles that are the difficult part of lawyering, judging, and theorizing about law, but the details. What sort of proceedings does/should a murder trial involve? Where’s the line between a mistaken representation of fact and legally actionable fraud? How should our child custody system work? How do we sort out messy issues about land ownership? When does a promise become legally binding? What kinds of evidence should be acceptable in court?
My students are in their second or third years of law school, so it doesn’t take long to persuade them that we cannot deduce specific, universal answers to these sorts of questions from Scripture. Even the limited examples of civil law we have in the Bible can’t be imported in whole cloth from the text into our state code books; they were God’s rules for a nation that stood in a unique covenant relationship with him. This doesn’t mean, however, that we can’t learn from those laws. My own Presbyterian tradition teaches that the “general equity” of the laws remains instructive, and scholars like Jonathan Burnside have done fascinating work explaining the beauty of the culture the biblical law was intended to promote and reinforce.
So, it turns out that Christian faith does not relieve us of doing the difficult work of sorting out just and workable legal rules, institutions, and practices for our own times. If it won’t do that work, how might it help us?
There are, I think, at least four answers to that question. First, the Christian story helps explain us to ourselves—that is, it helps us understand the things that we find ourselves just doing and taking for granted without knowing why. The answers to these big questions—E.g., “What is law?”, “Why does it exist?”, and “What is it that lawyers and judges and legislators are doing in the larger sense when they go about their everyday work?”—are important. We’ve already alluded to one such question— the connection between our civil law and divine revelation. True, human law almost everywhere reflects the moral norms of the second table of the Decalogue. The Bible also tells us, however, that the moral law is also written on the hearts of human beings generally (Rom. 2:15). While I’ve rarely seen “natural law” arguments change the minds of secular legal scholars on specific issues, the concept of natural law (and the connected concept of common grace, if you prefer) helps us understand how it could be that despite our theological, philosophical, and political differences, there are basic insights about justice that virtually everybody agrees on. Even though legal systems are usually tragically flawed at some points, they nevertheless also seem to be able to work at a basic level despite our deep differences. This is a grace of inestimable value without which civil society would not be possible.
Another example of Christian theology’s capacity to explain us to ourselves is found in the structure of Thomas Aquinas’s classic Treatise on Law. Thomas notes that law comes in many different kinds—eternal law, divine law, natural law, human law—he even provides an account of the fleshly “law” in our bodies that makes us a prisoner of the law of sin. (Romans 7:23). Significantly, human law has its own place in this categorization. It is separate and distinct from both divine revelation and moral law, even though it is at the same time related to them. In Thomas’s account, human law can be authoritative without necessarily reproducing the mind of God on every issue—a good thing given the limits of human capacities! It is (at a minimum) a practical necessity in a fallen world, made by rulers who are accountable to God and who have access to moral truth, but who must also make fallible judgments about present circumstances and facts, including the capacities of those who will be expected to obey.
The second thing Christian reflection can do is to provide a lens through which we can notice implicit and explicit presuppositions about law and legal theory. When a legal theorist tells us, for example, that the guiding principle of law ought to be to empower every person to “write the story of their own lives,” we can appreciate her desire that government not overstep its bounds, and even its potential role in facilitating opportunity, but we will also remind ourselves that we are dependent, fallen, finite creatures for whom autonomy in the grandest sense is an illusion and an idol. When a different legal theorist tells us that legal rules should be “wealth maximizing,” we can appreciate the importance of economic incentives in a fallen world, but we will also remind ourselves that justice ought to be the more central concern. And so on.
Third, Christian faith sometimes does indeed include general guidance about legal rules. This guidance will be more evident in places where a given culture departs from the things it should already know. Even though the Bible does not endorse a particular set of political arrangements for all times and places, it does tell us that every human being is important and thus poses a substantive challenge to laws that fail to respect human dignity; it tells us to pay special attention to justice for the poor and for the stranger and alien. It warns us against the ways in which laws can be used as instruments of oppression rather than justice.
Finally, as the late William Stuntz noted in an influential article, human relationships are central to both Christianity and law, and Christianity has a lot to say about those relationships:
all work is an offering to the God who gave us the ability to do it. Jesus said to “love thy neighbour as thyself”: genuinely want the best for those with whom you deal (as you want the best for yourself); treat them as something other than tools to advance your own interests. These commands might seem too gauzy to have any real impact, but if taken seriously, the impact is huge–on carpenters, lawyers, or anyone else. Take an example from the academic profession. What professor (more to the point, what student) doubts that it matters enormously whether she loves the students she teaches, regards them as an audience before which to display her talents, or sees them as obstacles to doing the scholarly work she values above all else? The differences are not reducible to some neat formula, and they are likely to play out differently for different professors in different settings. Still, the differences are both real and powerful. In short, attitudes matter a lot. They just don’t matter predictably.1
On a few occasions when it’s come up that I teach Christian legal thought, a skeptical colleague has asked why a law school would offer a seminar on a subject like that. My usual response is that Christian legal thought is inevitable—human beings, including Christians, seem to be inclined to connect their life’s work with their deepest beliefs about the world around them. I then add that what’s not inevitable is that we will make those connections thoughtfully (sadly, that point seems to resonate all too strongly). Stuntz would probably have added that it’s also not inevitable that that we will make those connections faithfully. Maybe I should be saying that first.
Reposted from the original posting, published as a CSR blog on November 6, 2020.
