by John Witte, Jr. and Frank S. Alexander (eds). Cambridge and New York: Cambridge University Press, 2008. 400pp. Hardback. £55.00/$90.00. ISBN: 9780521194419. Paperback. £18.99/$29.99. ISBN: 9780521143745. Adobe eBook format. $24.00. ISBN: 9780511922671.
Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse, mcdougal.step [at] uwlax.edu.
John Witte, Jr. and Frank Alexander have gathered a set of most useful scholarly essays on the multiple, complex relationships between formal western law and the European religious heritage of Christianity. The readings are original essays, but as the book’s title proclaims, they are crafted as introductions to relatively discrete topics within the larger field of Law, Politics and Religion. Consequently, the authors here are not blazing new trails of scholarship, so much as reiterating in abbreviated form the insights and evidence of their larger research efforts.
At the risk of making myself feel old, let me begin by saying that “whenIwasingradschool,” religion was not really part of the curriculum, nor even much of the academic landscape. Back then, “religious discourse” meant the emerging “Far Right” (as it was termed dismissively), yet its possible influence in society – and therefore upon society’s law – was at best a micro-specialty. The dominant viewpoint was that social science, secular philosophy, and institutional inertia would prevail. Both realist and critical legal scholarship alike saw little of intrinsic importance in religion. Much of mainstream socio-legal scholarship seemed to follow a modernist path of taking religious knowledge as more-or-less the inverse of scholarly knowledge, and critical scholarship treated religiosity more-or-less as it did most institutions and traditions of western civilization.
Time passed, of course, and politics happened – religious politics, especially in the United States. Academic political science coped. There has been growing sophistication in the past 25 years, to be sure. A “field” has emerged and become institutionalized within numerous associations. Several excellent journals exist.
Contemporary scholarship proceeds with far more respect for the tremendous complexity of faith in the human condition. In Witte’s and Alexander’s volume, the complexity and historicity of western law, politics, and Christianity are illuminated across a range of modern legal categories and concepts. Many of the essays are historical in scope, tracing the ancient lineage of our modern, bedrock (and presumptively secular) legal concepts, and illustrating how major aspects of modern law rest historically within the overtly Christian culture of late Rome, the early Church, the medieval Catholic Church, and the Reformation. Witte’s introductory essay makes the authors’ concerns clear: “How do legal and religious ideas and institutions, methods and mechanisms, beliefs and believers influence each other – for better or for worse, in the [*140] past, present and future?” (p.3). He characterizes the interaction as dialectical and cross-fertilizing. The individual essays illustrate this quite effectively.
Consequently, the essays are focused squarely on one diverse religious tradition and on its complex political relationships with the formal State from the late Roman Empire onward. In addition, several essays focus on contemporary issues of religious liberty and church-state relations. Their common theme is that many of our contemporary postulates, ideas and methods of reasoning about legal authority were nourished in Christianity history. “All of these religious beliefs, values and practices the modern western state still protects, respects and reflects in its law,” ideas of justice, order, dignity, atonement, and so on (p.29).
Since so many of the essays are primarily works of history, Witte’s introduction sketches a very rough outline of the Church’s political development since Constantine, briefly relating political reality and official religious doctrine up to the Reformation. Witte also attempts to sketch out the dominant varieties of Protestant political and religious thinking that developed from the Reformation. In this respect, I offer my only negative comment: a reader without a good grasp of western history since the decline of the Roman Empire may have a hard time grasping all of the interconnected developments of state and church – and of secular legality – discussed in the individual essays. I would not use this book with lower division students, in all likelihood.
Be that as it may, the essays offer a treasure trove of historical case studies and contemporary commentary – evidence, if you will, with which to confront grand theories of all varieties.
In “Law and Religion in Judaism,” David Novak offers a sketch of the development of Jewish law from its Biblical Covenants through modern times, describing broadly its distinguishable historical eras. His theme is that religion is neither cause nor effect, and he uses it to illustrate the variable and uneasy political relationships through the centuries between the legality of Jewish communities and of the Christian princes. His focus is mostly on everyday life and on how Jewish law has declined as a distinctive legal system in modern western society.
Luke Timothy Johnson, in “Law in Early Christianity,” succinctly describes how the earliest Christian communities were caught between two legalities: the Law of Moses and the Law of Rome. The more distinctive Christianity became, the less Roman law recognized it as Judaism and the more politically vulnerable Christians became. Within the early communities, the law of the state was treated as alien and corrupting. The earliest efforts at articulating a distinctively Christian law rested in a re-reading of Torah, with Jesus’ life and teachings at the center of this reinterpretation. Johnson points out that Jesus was not taken to be a law-giver, as were Moses and Muhammad. The letters of Paul provided much guidance without themselves being taken as law. As the early Church developed and its institutions solidified, the letters of Church leaders and works of early [*141] scholars formed the basis for what eventually became a distinctively Christian legality. Yet at the outset, it was more a re-write than an act of creation. Its importance, however, lay in the frameworks that were invoked: early Christians’ own convictions and experiences, centered on the death and resurrection of Jesus, and out of which new visions of humanity emerged. Johnson points specifically to (a) legality now arising in the context of the Church, and not from ethnic or kinship loyalties – although such loyalties certainly remained a force in politics and local law; (b) Christian legality became an alternative to “totalitarian systems that demand complete allegiance to human rule” (p.68) – although subsequent European history offers many counter-examples; and (c) a concentration on individual consciousness to do the ‘right thing,’ which had a long-term impact on the development of the idea of personal liberty – although not for several centuries. I found Johnson’s essay fascinating, but he downplays the authoritarian aspects of Church history.
R.H. Helmholz’s “Western Canon Law” traces its development from numerous early councils and decrees that were localized and incomplete – more theology than law, none of which was treated universally as authoritative. He describes how the emergence of mature canon law was generally the work of medieval scholars who compiled and attempted to systematize all of those decrees and declarations – usually under papal gaze, and more and more so as the Papacy gained practical political power. Yet, some works, such as Gratian’s Decretum (complied during the 12th century) was broadly accepted as authoritative without official Catholic Church approval. In the 13th century, canon legality cemented into formal courts and a class of professionalized lawyers, who looked to Roman law to fill in the gaps presented by scholastic logic and/or litigation. Slowly much of Roman civil law was blended into Church canon law. The effectiveness and usefulness of canon courts spread across Europe, and (except in England and its emerging common law tradition) canon law became the basis of subsequent civil law. Even after the Reformation, the “ius commune” was enforced in the civil courts of newly Protestant principalities, minus of course all references to papal authority.
In “Natural Law and Natural Rights,” Brian Tierny presents a useful summary of Natural Law thinking from Aristotle through Locke and Pufendorf. He then traces its transformations from its decline after the French Revolution, to its reemergence in the UN Universal Declaration of Human Rights and the Second Vatican Council. Some familiarity with the existing varieties of natural law philosophy is needed to follow in detail Tierny’s discussion of all the trends over such a period of time and development. Yet, as an introduction to those trends, the essay is well worth studying.
Kurt Greenawalt looks to Christian history in “Conscientious Objection, Civil Disobedience, and Resistance” to find the theological foundations for justified disobedience to the State. He finds (by my count) eight distinct justifications that have been argued out of Christian theological roots. However, none are distinctively Christian, in that only a Christian consciousness could conceive of them. He concludes that a [*142] Christian approach to these topics is not “sharply distinct from an approach grounded in ‘detached’ political philosophy” (p.172).
Howard Berman’s “The Christian Sources of General Contract Theory” is a brief history of Contract Law before 19th century jurisprudence severed it from its historical roots, which Berman describes as its religious moorings. He argues that when 11th and 12th century legal scholars attempted to create “consciously systematic integrated systems of law” (p.128), their efforts relied mostly on the Justinian Code. Roman law back to the Republic had made the obligations of contract as much religious matters as commercial transactions. So, medieval Christian lawyers had little trouble recasting Roman contract law into Christian contract law. In doing so, however, they created much more. They developed “general principles drawing from Christian theological morality” (p.132). The binding character of a contract stemmed from the oath to God that was involved. Default was therefore a sin. It was much later, as commercialism became more important in social life, that a second shift occurred along Protestant lines, a “shift from a moral theory to . . . a bargaining theory of contract” (p.136). Most of the surface requirements of contract in fact remained the same. What changed were the underlying postulates which were used to organize the more discrete legal provisions into systematic explications. Call it a shift in cultural paradigms, or frameworks, if you will. Berman’s point is that it was theologians, not lawyers, who first articulated what became the underlying premises of the medieval law of contract (p.138). The 19th century’s un-mooring of contract law from its historical religious ‘sub-text’ was yet another such paradigmatic shift. Yet, Berman shows how the modern Law of Contract was to the greater extent the creation of a pre-capitalist, pre-rationalist, pre-individualistic, and pre-nationalist era.
Mathias Schmoeckel’s “Proof, Procedure and Evidence” describes how the basic aspects of modern legal procedure have truly ancient origins – rooted in Biblical concerns over maintaining a just social order and in Roman concerns for a natural social order. The Carolingian reforms of the 9th century first systematized many of our modern concepts of proper judicial procedure and the idea of justice through a rule-bound judiciary: rules for judges, written records, a right of appeal, and so forth. In the 9th century, however, these were religious obligations. Bad judges risked damnation. Good judges ensured their salvation.
In “Family Law and Christian Jurisprudence,” Don S. Browning illustrates a similar history in the development of medieval Christian ideas of marriage and family. Ancient cultural forms were converted into new viewpoints and arguments. A ‘trinity’ of Marriage-Family-Child was central, and always treated as desirable. Yet, Browning argues that at no point was there a real consensus or uniformity of Christian thinking. Numerous justifications, diverse in their specific arguments, have always existed about what the ‘proper’ family looks like, what the ‘proper’ family is for, and how the ‘proper’ family should operate. He touches on our contemporary conflicts [*143] over marriage and how so many of our own controversies mirror those of old.
The remaining essays are less history and more commentary, starting with editor Frank S. Alexander’s contribution, “Property and Christian Theology.” This essay is more like an academic meditation (if you will). Alexander begins with the historical fact that property has always been the subject of a tremendous amount of positive law, even as the forms of property and of ownership have evolved and diversified through western history. He presents a summary of early Church writings and later developed canon law around a model (which is my word) of ‘Creation-Fall-Redemption’ which lies at the center of the basic Christian narrative. He also notes that even back then, the canon law of property sometimes conflicted with local civil law. Alexander’s primary task is a comparison of this model to three modern ideas about property: ‘Property as Mine’, ‘Property as Yours’, and ‘Property as Ours.’ ‘Mine’ and ‘Yours’ build barriers and exclusions, which Alexander analogizes to The Fall. On the other hand, ‘Ours’ is close to the Christian concept of stewardship, which holds that all property (Creation) belongs to God. We are but stewards. Yet, the highly legalized western concepts of property (reflections of ‘Mine’ and ‘Yours’) are so ingrained as to smother anything else. Alexander posits that ‘Ours’ is a more appropriate framework for coping with (for example) the problems of environmental pollution. ‘Ours’ is analogized to Redemption. Alexander’s essay certainly offers much to argue with. Yet, he makes no claims about religious imperatives. Indeed, he navigates the line between detached scholar and policy advocate quite nicely.
In “Christian Love and Criminal Punishment,” Jeffrie G. Murphy offers “my own ‘take’ on what Christianity has to offer on the topics of crime and punishment” (p.220). Like Alexander, Murphy’s essay is a focused commentary. As such, it is not an historical overview or survey of diverse theological views. Murphy is confronting Thomas Shaffer’s argument that Christian love – ‘agape’ or love of neighbor – precludes most modern criminal punishments. Murphy argues, to the contrary, that “agape is not simply a matter of being nice and cuddly . . . It is also centrally concerned with promoting [criminals’] moral and spiritual good – helping their souls or characters to grow in virtue” (p.223). As such, forgiveness and punishment are not inherently in conflict. The interceding virtue is mercy, as distinguished with forgiveness. The distinction “allows us to see that there is no inconsistency in fully forgiving a person for wrongdoing but still advocating that the person suffer the legal consequences of criminal punishment” (p.227). It is the motives involved in legal, official punishment that are of central importance. Hatred and cruelty “should be guarded against in the realm of punishment” (p.230).
In “Christianity and Human Rights,” Michael J. Perry presents a discussion that is “not historical but, for want of a better term, conceptual” (p.237). The essay is a succinct summary of the claims to inherent, individualized human dignity and (therefore) universal human rights. Perry’s concern is over what happens when one asks “Why?” There are numerous extant answers to the [*144] question of why universal human rights should exist, including ones from various religious traditions, each with its own distinct perspectives. How might we “ground” such claims? Secular worldviews can ground claims of universal human rights in the choice to respect human dignity. A Christian worldview, Perry argues, “can and does ground the claim” in Christian love – “agape,” characterized by Perry as an orientation to the world and a state of social existence, which is often “an extreme demanding idea” (pp.239-241). Perry’s essay is short and assertive and not an argument with any secular position.
David Little’s “Religious Liberty” describes how universal human rights to freedom of religion arose in reaction to the fascist regimes of the 20th century. He characterizes this right broadly as “identity free of coercive interference or penalty imposed by outsiders, including the state” (p.249). He reviews several current legal controversies in Europe and US courts where this idea has been compromised. Little then argues against the view that the concept of religious liberty arose from the Enlightenment. He sets aside Locke and Jefferson, and looks to the Christian New Testament, Aquinas, Calvin and Roger Williams to argue that it was a Christian natural rights tradition that “provided, often against strong resistance, much of the terminology and some critical parts of the rationale for human rights, including religious liberty” (p.268).
Norman Doe’s “Modern Church Law” is less a commentary than a compendium of the tremendous diversity with which modern Christian denominations organize themselves internally. Each national church may have its written constitution, but the internal divisions of authority and responsibility vary substantially among national church bodies – highly centralized in some and highly decentralized in others. In most churches, there is an emphasis on informality in decision-making, which can compete with formal requirements. Many national church bodies have internal juridical systems, but not all are binding in the secular sense. US Christian pluralism extends to the administrative details, even if those forms mimic the secular world. Nevertheless, Little points out how the broad similarities of the rules of church organization provide a possibility for greater ecumenical efforts between denominations – what he terms “a rich resource for dialogue and for mutual understanding” (p.289).
William W. Bassett’s “Religious Organizations and the State: The Laws of Ecclesiastical Polity and the Civil Courts” discusses the other side from Doe: how church organizations have utilized secular legal forms to organize and run themselves. This creates the possibilities of “entanglement” by government in religious activities. Yet, by utilizing state law such as property or contract, churches enhance the possibility of such entanglement. Modern law and society have added such things as social security and employment, local health and safety regulations, zoning ordinances, civil liability to members, bankruptcy, and so forth. Bassett reviews several major US Supreme Court rulings pertaining to his theme. He ends with the argument that what needs protecting is religion’s “transcendent role in personal and social life” and the “voluntary call to [*145] conscience. Religion engenders, instills, motivates, and sustains values that the state cannot create” (pp.308-309). Doe and Bassett are read together quite usefully.
The volume ends with “Christianity and the Large-Scale Corporation” by David A. Skell, Jr. The essay is a return to history as a means of illuminating the present. Like many of the authors above, Skell demonstrates how the broad outlines of corporation law have historical roots in the Christian European Middle Ages. “The key characteristics of the corporation emerged fitfully over the centuries, with bursts of innovation occurring at irregular intervals” (p.314), with the Church “squarely in the middle” (p.316). With the Reformation, the Protestant positions mostly continued to support corporate forms of business. In the US, it was not until the late 19th century and the issue of economic Trusts that some religious opinion began to be critical of corporate business, although “Christian opinion was not monolithic.” Nonetheless, Christian religious rhetoric was an important part of progressive politics among mainline Protestants for most of the 20th century. Currently, however, progressive religious political rhetoric has greatly waned. Yet, Skeel ends with the argument that a “distinctively Christian critique of contemporary corporate law” is possible. “Christian Scripture offers insight into the benefits of maintaining a moral compass” (pp.326,327).
These essays are effective because they deal with things ostensibly familiar, things religious as well as things legal. The lessons possible from the collection are myriad: the necessity of understanding their mutual history in our criticisms of contemporary law; their empirical interdependence which so much contemporary legal theory keeps separate; the historical role of religious scholarship in the creation of positive law; and so forth. Some the essays may seem sketchy, but each offers an avenue to further study.
Finally, it is important to point out that the authors in this volume do not seek to come to conclusions about any grand scholarly issue. Witte’s introduction does refer to the larger debates about whether a secular and autonomous modern legality can actually exist, but he does not dwell on them, nor does he cast the collection as confronting them. A few essays use their analysis as the basis to advocate for specific positions on contemporary public policy issues, but there is no ontological or fundamentalist thinking here.
In my opinion, this is the great strength of the book. By not arguing for or against any particular grand paradigmatic scholarly method, the works here can challenge the conscientious reader’s own presumptions about law, politics and religion. Because they are (in this sense) ‘disengaged,’ the essays are likely to be powerful teaching tools.
© Copyright 2011 by the author, Stephen McDougal.