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The contributors bring various perspectives to the subject. Some engage the prominent schools of legal thought: liberalism, legal realism, critical legal studies, feminism, critical race theory, and law and economics. Others address substantive areas, including environmental, criminal, contract, torts, and family law, as well as professional responsibility. Together the essays introduce a new school of legal thought that will make a signal contribution to contemporary discussions of law.
Liberalism, though born of Protestant Christianity, seems to have become hostile toward religion. Liberalism teaches that human beings are individuals, whose rights are supreme, and who have little claim on one another aside from the claim to be free from aggression. Christianity teaches that human beings are brothers and sisters under the Headship of Christ, bound together in community, with responsibilities to one another. How inevitable is this tension between liberalism and Christianity?
Because of the importance of liberal theory to the modern condition, we present four authors with different perspectives on the matter. Michael W McConnell emphasizes the difference between early liberalism, which was rooted in Protestantism and congenial to religious conscience, and modern secular liberalism, which is not. He urges Christians and other people of faith not to abandon liberalism but to "take it back." Stephen L. Carter writes more pessimistically of the effects of modern secular liberalism on religious commitment in the public, and sometimes even the private, sphere. Elizabeth Mensch provides an intellectual history of the paradoxical relation between liberalism and Christianity. H. Jefferson Powell addresses three features of modern liberalism-individual rights, centralization, and governmental secularism-from an Augustinian perspective. He notes the problematic cultural effects of each but argues that a "chastened version" of each is defensible as a strategy for achieving social peace.
Old Liberalism, New Liberalism, and People of Faith
Michael W. McConnell
In many circles, religion is seen as an illiberal phenomenon in our public life-a challenge to the rational and tolerant ethos of modern liberalism. Liberal democracy, it is said, is predicated on "reason," which is said to be antithetical to faith. Religion is alleged to be authoritarian, divisive, irrational, and exclusionary. The suggestion that religion-as opposed to secular philosophies or ideologies-might be entitled to special protection in our legal system is thus foreign to many modern secular liberals. One scholar has called the Free Exercise Clause "a limited aberration in a secular state."' Indeed, it is often said that providing special protection for religion violates the neutrality that lies at the heart of the liberal state. This point of view is linked to a tradition in intellectual history which traces liberal democratic theory to a struggle against the chains of feudalism and Christian ideological hegemony. In this view, liberal democracy represented the triumph of the secular Enlightenment over the powers of priest and king.
Some Christians have accepted this claim and have concluded, as a result, that Christians cannot be liberals. They perceive a hostility between liberalism and Christianity-indeed, any serious religion that claims to be based on truths that are beyond rational and empirical demonstration-and believe that secular liberalism is a prescription for a society based on materialism, atomistic individualism, and ultimately nihilism. Thus some Christians have become critics of the liberal regime.
I think it is a mistake for Christians to give up on liberalism, and that it is an arrogant pretension on the part of secular liberals to attempt to relegate Christianity or any other religion, to the sidelines of public life. Liberalism in its original form was more a product of the Reformation than of the Enlightenment, and it placed respect for the primacy of conscience at the center of the political project. Long before liberalism was conceived in theory or in practice, the division between temporal and spiritual authority in Christian thought gave rise to what would become the most fundamental features of liberal democratic order: the idea of limited government, the idea of individual conscience and hence of individual rights, and the idea of equality among all human beings. These ideas came about not in rebellion against religion, but in defense of religion against the encroachments of the state. If religion has become controversial again in our liberal society-and it has-this is not because religion has changed or the idea of liberty has changed, but because liberalism has changed. And not for the better.
I am not arguing that liberalism-in any of its forms-is an inescapable deduction from Christianity. Christianity is not, at bottom, a political doctrine, and sincere believers over the centuries have deemed it compatible with a wide variety of regimes. Some Christians are not liberals. Nor am I arguing that liberalism is exclusively a product of Christian thinking. Like John Rawls, I think that liberal democracy in the United States can be, and is, defended on the basis of a number of different comprehensive doctrines, of which Christianity is only one. Many liberals are not Christians. I am arguing, however, that certain doctrines of mainstream Christianity point in the direction of liberalism, and that historically, liberalism was a product of those Christian impulses. It is, in short, no accident that liberalism arose when and where it did, in the lands of the Protestant Reformation. It is time to reclaim the noble ideal of liberalism from the secularists.
THE FOUNDATIONS OF LIBERALISM
Let us consider some of the ways in which the foundational beliefs of liberalism find support in Christian doctrine and experience.
Original Sin and the Rejection of Utopianism
Perhaps the most fundamental connection between liberalism and Christianity is their common belief in the pervasive and ineradicable nature of sin. That may sound surprising. Some believe that liberal democracy is a hopeful doctrine, predicated on the view that the people can and will rule wisely and justly. This is a misunderstanding. The central insight of liberal politics is that all human beings and human institutions are prone to abuse of power. That is why liberal constitutionalism insists on dividing power and on creating checks and balances. Liberals do not believe in philosopher kings. If they did, they would advocate not liberal democracy but enlightened despotism. Nor do liberals believe in philosopher peoples. If they did, they would create governments of direct democracy, along the lines recommended by Condorcet and other French revolutionaries. Nor do liberals think that governments can be trusted to dominate and control the most important things, such as religion and family life. If they did, they would create a civil religion, as Rousseau recommended and Robespierre tried to do. Better to allow many millions of people to make mistakes each in their own way than to license the civil magistrate to foist error on the entire nation.
The Christian idea that government must be created in recognition of the sinfulness of mankind pervades The Federalist Papers (to take one example of a liberal text). Madison's analysis of the problem of government is based on the existence of faction, and the "latent causes of faction," he says, are "sown in the nature of man." "As long as the reason of man continues to be fallible, ... different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other." Note that this statement presupposes that human reason is inherently fallible, and that human reason is distorted and influenced by selfishness, which is at the heart of human sin. This is familiar Calvinist doctrine, and stands in sharp contrast to the naive faith in "reason" found among epigones of the secular Enlightenment. Moreover, Madison's prescription for government-to rely on the clash of "opposite and rival interests" to remedy "the defect of better motives"-is similarly based on this pessimistic view of human virtue. "It may be a reflection on human nature that such devices should be necessary" Madison wrote. "But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
The Christian understanding of human sin leads, therefore, to the idea that Christian politics should be antiutopian in character. We will not bring about the Kingdom of Heaven on this earth through our political efforts. If we allow our governments to try, the result will be tyranny. Liberals take human nature as given, and make modest efforts to improve community life at the margin. That disposition is closely aligned with the Christian view that we must not rely on earthly institutions for our salvation or for our regeneration. Utopian politics is dangerous and deceptive. More importantly, it is a kind of idolatry.
Limited Government and the Separation of Church and State
A second aspect of the doctrine and experience of the Christian religion that is part of the foundation of liberalism is the separation between church and state, or what medievalists were more likely to call libertas ecclesiae, the "freedom of the church." This separation was a reality long before it was an idea. In Christian Europe after the fall of Rome, there were many warring nations but only one catholic Church. This stubborn geopolitical reality persisted despite, not because of, ideological commitments-whether they be the romantic ideal of Christendom, reflected in Charlemagne's Holy Roman Empire, or the imperial vision of Marsilius of Padua. No one seemed to favor the separation. But it would not go away. And it had consequences. No king, however powerful, could dominate a church that existed beyond his own borders. Like multinational corporations today, a multinational Church defied effective regulation and control. This meant, moreover, that the Church could serve as a countervailing power within every state. The king may have commanded more troops, as well as the power of legal coercion, but bishops had normative authority. They translated the will of God to man, and enforced it, if necessary, through powers of absolution and excommunication. This was a more equal division of powers than one might at first expect. Think of Henry II and Becket.
Later, when the Protestant Reformation divided the church into many different bodies, the danger of a genuine union between church and state increased. The Church of England lost its independence in a way that the Church of Rome never could. But when the formula of "one prince, one church" broke down into "one prince, many churches," statesmen acquired an incentive to extend some measure of equal treatment to members of different denominations. If they did not, differences in religion (which could not be eradicated) might become occasions for treason. A policy of evenhandedness toward the different principal religions was the easiest way to create loyal citizens. This led to a different kind of "separation"-separation based on neutrality rather than on competition.
Although this division between spiritual and temporal authority began in practice rather than theory, it was soon articulated in theological, and later in constitutional, terms. It found expression in papal teachings as early as the fifth century and was elaborated in the two-kingdoms theology of the Lutheran and Calvinist traditions. Two-kingdoms theology conceived of humans as owing allegiance to two sets of authorities, the spiritual and the temporal. "God has appointed two kinds of government in the world," explained Isaac Backus, a Baptist leader and one of the most influential advocates of religious freedom at the Founding. These governments "are distinct in their nature, and ought never to be confounded together; one of which is called civil, the other ecclesiastical government." In this view, religious freedom comes into being not as a result of ontological individualism but as a result of the jurisdictional separation between these two sets of authorities. Elisha Williams, a New Light Congregationalist and Rector of Yale, drew an analogy to one king attempting to govern the people of another kingdom: "If Christ be the Lord of the conscience, the sole King in his own kingdom; then it will follow, that all such as in any manner or degree assume the power of directing and governing the consciences of men, are justly chargeable with invading his rightful dominion; He alone having the right they claim. Should the king of France take it into his head to prescribe laws to the subjects of the king of Great Britain; who would not say, it was an invasion of and insult offer'd to the British legislature."
The two-kingdoms view is at the heart of our First Amendment. The first paragraph of the most important document explaining the Founders' conception of religious freedom, James Madison's Memorial and Remonstrance Against Religious Assessments, reasons as follows: "It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must also do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign." Madison's view of the grounding of religious freedom was thus surprisingly similar to Elisha Williams's. It was not a deduction from the personal autonomy of the individual but an inference from the sovereignty of God and the duty of human beings to obey God as they understand Him. Religious exercise, under this view, is an inalienable right because it follows from the duties owed to God by His creatures. "It would be sinful for a man to surrender that to man which is to be kept sacred for God," according to Madison's constituent, the Baptist leader John Leland.
While theological in its origin, the two-kingdoms idea lent powerful support to a more general liberal theory of government. The separation of church from state is the most powerful possible refutation of the notion that the political sphere is omnicompetent-that it has rightful authority over all of life. If the state does not have power over the church, it follows that the power of the state is limited. The extent of state power need not be left to the discretion of the rulers. And once limits are conceived in this way, it becomes possible to craft further limitations on the scope of governmental authority, in service of broader liberal ends.
Excerpted from Christian Perspectives on Legal Thought Copyright © 2001 by Yale University. Excerpted by permission.
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|Pt. 1||Christian Perspectives on Schools of Legal Thought|
|Sect. 1||Enlightenment Liberalism|
|Old Liberalism, New Liberalism, and People of Faith||5|
|Liberal Hegemony and Religious Resistance; An Essay on Legal Theory||25|
|Christianity and the Roots of Liberalism||54|
|The Earthly Peace of the Liberal Republic||73|
|Sect. 2||Legal Realism|
|A Century of Skepticism||94|
|Sect. 3||Critical Legal Studies|
|Law and Belief: Critical Legal Studies and Philosophy of the Law-Idea||109|
|Sect. 4||Critical Race Theory|
|What's Love Got to Do with It? Race Relations and the Second Great Commandment||133|
|Reinhold Niebuhr and Critical Race Theory||149|
|Hispanics, Catholicism, and the Legal Academy||163|
|Independence or Interdependence? A Christian Response to Liberal Feminists||178|
|Citizen-Soldiers Are Like Priests: Feminism in Law and Theology||194|
|Sect. 6||Law and Economics|
|Law and Economics: An Apologia||208|
|A Catholic Social Teaching Critique of Law and Economics||224|
|Pt. 2||Christian, Traditions and the Law|
|Christian Traditions, Culture, and Law||242|
|Sect. 1||Synthesists: Reconciling Christ and Law|
|A Catholic View of Law and Justice||255|
|Sect. 2||Conversionists: Christ Transforming Law|
|The Calvinist Paradox of Distrust and Hope at the Constitutional Convention||293|
|A Calvinist Perspective on the Place of Faith in Legal Scholarship||307|
|Sect. 3||Separatists: Christ Against Law|
|The Radical Reformation and the Jurisprudence of Forgiveness||321|
|"Incendiaries of Commonwealths": Baptists and Law||340|
|On Liberty and Life in Babylon: A Pilgrim's Pragmatic Proposal||354|
|Sect. 4||Dualists: Christ and Law in Tension|
|A House Divided? Anabaptist and Lutheran Perspectives on the Sword||370|
|Making Our Home in the Works of God: Lutherans on the Civil Use of the Law||386|
|Pt. 3||Christian Perspectives on Substantive Areas of the Law|
|God's Joust, God's Justice: An Illustration from the History of Marriage Law||406|
|Human Nature and Criminal Responsibility: The Biblical View Restored||426|
|Christianity and Environmental Law||435|
|Can Legal Ethics Be Christian?||453|
|A Historical Perspective on Anglo-American Contract Law||470|
|Tort Law and Intermediate Communities: Calvinist and Catholic Insights||486|