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et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis

 

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1707

BOOK REVIEW

CHRISTIAN LEGAL THEORY

CHRISTIAN P ERSPECTIVES ON L EGAL T HOUGHT . Edited by Michael

W. McConnell, Robert F. Cochran, Jr. & Angela C. Carmella. 2001.

New Haven and London: Yale University Press. Pp. xxii, 518. $50.00

(cloth), $26.95 (paper).

Reviewed by William J. Stuntz *

Why should anyone think about law in Christian terms? Perhaps

the answer is, no one should. That is surely the conclusion most

American law professors would reach. Religion is not a topic of much

conversation in the law school world; what little discussion there is

tends to treat serious religious commitment as a disease call it the

germ theory of religion perhaps especially if the religion is Christianity.

If that is a correct view of Christianity, the law should stay as

far away from it as possible, so as not to catch the virus. One might

frame the impulse in terms more favorable to religion and say that the

threat of infection runs the other way, that law and Christian faith belong

in separate spheres in order to protect the latter from the former.

Either way, the conclusion is the same: in America's legal conversation,

Christianity is an unwelcome guest.

There are two ways to answer that question more positively. The

first comes from outside the realm of Christian faith, the second from

within that realm. 1 The outside answer goes to democracy. A large

slice of this country's population (though not, as is sometimes claimed,

a majority) believes Christianity to be true. 2 It follows that Christians

and Christianity probably ought to play a major role in our nation's

politics and they do, as a moment's reflection on the civil rights and

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* Professor, Harvard Law School. Thanks to Barb Armacost, Jeff Ernst, Dick Fallon,

Charles Fried, Heather Gerken, Mike Klarman, Rick Lints, Kyle Logue, Dan Richman, Fred

Schauer, Carol Steiker, Rick Stuntz, and Henry Whitaker for helpful comments and conversations

on this topic. Special thanks go to David Skeel, who has given me much good instruction on both

legal theory and Christian doctrine. Steve Lee and Andy Oldham provided very good research

assistance. Errors that remain are mine.

1 Interestingly, the introduction to Christian Perspectives on Legal Thought offers the first

answer, but not the second (pp. xviiiCxx).

2 See Y EARBOOK OF A MERICAN & C ANADIAN C HURCHES 2002, at 359 tbl.2 (Eileen W.

Lindner ed., 2002) (listing 138,171,179 Full Communicant or Confirmed Members of Christian

denominations in the United States).

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1708 HARVARD LAW REVIEW [Vol. 116:1707

pro-life movements would suggest. 3 The same should presumably

hold for law and legal theory. Yet in that realm, Christian voices are

nearly silent. 4 To be sure, law is not purely democratic (though we do

elect most of our judges), legal theory still less so. Yet both law and

legal theory are supposed to be, at least in some measure, representative.

That is why a president who appointed only white men to the

federal bench or a law school that appointed only white men to its

faculty would meet universal condemnation. Why should religion be

different from race or gender? Bringing

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2003] BOOK REVIEW 1709

agenda will be jammed down the throats of unbelievers, that we will

see an American Taliban using the coercive power of the state to enforce

the religious convictions of a portion but only a portion of

its citizens. Christian Perspectives on Legal Thought does not deal

with that fear explicitly, but it is the major, if subterranean, theme of

the book. The key lies in those words radical and reactionary.

The most striking thing about this book of twenty-nine essays is how

little radicalism and reaction appear in its pages. For the most part,

the arguments the authors use and the stances they take are both moderate

and familiar, the sorts of things one might read in a good law review

article.

Familiarity may sometimes breed contempt, but here it breeds comfort.

And Christian Perspectives is a comfortable book. Feminism

(Collett, pp. 178C93; Griffin, pp. 194C205) and environmentalism

(Nagle, pp. 435C52), law and economics (Bainbridge, pp. 208C23) and

critical race theory (W. Burlette Carter, pp. 133C48) all find defenses

in these pages, as do a wide range of other secular legal theories and

arguments. The defenses are comfortable too; they are mostly arguments

one can find in ordinary legal scholarship on the relevant topics.

Those who fear the consequences of thinking about law in Christian

terms are bound to find this book reassuring.

In these post-September 11 days when few phrases frighten as

much as religious fundamentalist, that is a great virtue for a book

about religion and law. Yet it may also be this book's biggest problem.

Readers of Christian Perspectives might conclude that Christianity

does not have much critical bite, that Christian legal theorists think

about our legal system pretty much the way other legal theorists do

with some pulling to the left, others pulling to the right, and others

(most, in this book) pulling straight up the middle. There is something

to that conclusion: Christianity may be surprisingly conventional in

some respects, more so than either believers or nonbelievers would

suspect. Still, one needs to be careful. At its core, Christianity is a

radical faith not necessarily in traditional left-right terms, but radical

nonetheless. As C.S. Lewis says about his allegorical Christ, the

lion Aslan: He is not a tame lion. 7 No one who reads the gospels

would conclude that comfort ranked high on Jesus's agenda.

In short, Christian Perspectives on Legal Thought is a good and

important book. Maybe very good and very important. It deserves a

measure of celebration, for the task it undertakes is one that very

much needs undertaking. It also deserves to be read widely, both by

those who share its authors' faith and (especially) by those who don't.

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7 C.S. L EWIS , T HE L AST B ATTLE 24 (1956).

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But the book might be still better were it a little less conventional and

a little more subversive like the Savior its authors and I worship.

The balance of this essay is organized as follows. Part I summarizes

the book and discusses its structure and major themes. It also

looks at the question why believers in such a radical creed might have

legal views that look fairly ordinary. Part II examines some of the

more subversive consequences of thinking about contemporary American

law in Christian terms. There are a number of possibilities here;

my focus is on three: moralism, special concern for the poor, and humility.

The first is the territory of the Christian right, while the second

belongs to the Christian left. The third is no one's territory; it pops up

a few times in this book but plays a small role, both in the book and in

contemporary Christian culture. The first has gotten the most ink

over the past two decades, yet it is the weakest, for it misperceives

both Christianity and the capacities of legal institutions. The third critique,

the one that receives the least attention, is the most telling, for it

addresses what may be the defining characteristic of contemporary legal

theory: its arrogance. Part III concludes by addressing a different

kind of Christian perspective the possibility that, regardless of

whether Christianity is a source of much wisdom about law, law might

be a source of some insight into Christianity.

In all of these discussions, the arguments about Christian doctrine

are, of necessity, laymen's arguments. Christian Perspectives is not a

book of theology or church history, and this review is definitely not the

work of a theologian or church historian. Another qualification is

worth noting at the outset: the arguments offered here, like those offered

in each of this book's essays, come out of a particular mix of denominational

practice and tradition. The book's title makes the point

well: there are many perspectives that can lay claim to the modifier

Christian. The authors of Christian Perspectives have perspectives

of their own, as do I. And I suspect that the authors and I share something

else: we all see our different Christian visions as much more than

matters of taste, yet less than claims of certain truth. When different

people look through a glass, darkly, 8 they tend to see different things.

That may be the key to any Christian approach to legal thought.

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8 For now we see through a glass, darkly; but then face to face: now I know in part, but then

shall I know even as also I am known. 1 Corinthians 13:12.