Christian Perspectives on Legal Thought
edited by Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella
Yale Univ. Press, 2001
518 pp.; $26.95, paper

How to bring faith and learning together? The bookshelves in my office overflow with the output of hundreds of Christian scholars who have reflected on this question, whether in the broadest terms or with respect to specific disciplines, and from the perspective of virtually every theological tradition, in a wide variety of historical and social contexts.

Surprisingly, however, given the pervasive influence of the law, American legal theory is one area of learning about which Christian scholars have been relatively silent. To be sure, law and religion has attracted attention. John Witte, Jr., directs an innovative Law and Religion program at Emory University, established in 1982. Several journals cover this terrain, which is also being explored by a growing number of scholars. The work of legal historian Harold Berman, for example—particularly The Interaction of Law and Religion (1974) and Faith and Order (1993)—is widely recognized for its depth of insight. Milner Ball—in books such as Lying Down Together: Law, Metaphor, and Theology (1985), The Word and the Law (1993), and Called by Stories: Biblical Sagas and Their Challenge for Law—has given the subject sustained reflection grounded in a deep knowledge of legal practice. In a very different vein, there is a body of literature focusing on what it means to be a Christian and a lawyer; Thomas Baker and Timothy Wood, eds., Can a Good Christian Be a Good Lawyer? (1998) and Joseph Allegretti's The Lawyer's Calling (1996) come to mind.

Still, except for a few specialized areas such as church-state law, American legal thought has largely escaped the Christian faith-and-learning enterprise. The reasons for this are not entirely clear, but the upshot has been that there are comparatively few resources to which one can turn to find Christian perspectives on the law and legal theory—until now. In Christian Perspectives on Legal Thought, law professors Michael McConnell, Robert Cochran, Jr., and Angela Carmella have compiled an impressive collection of essays—29 in all, plus a foreword by Berman—wherein prominent legal scholars address many aspects of the law in terms of their Christian faith. The result is a substantial contribution to both legal thought and to the literature of faith and learning.

Jesus, the editors note, once asked a lawyer, "What is written in the law? How do you read it?" (Luke 10:26). In an intellectual climate that encourages perspectivalism, such questions are timely indeed. Now is an opportune moment for Christian legal scholars to undertake a thorough probing of the many intersections of Christian faith and legal thought. What is remarkable about Christian Perspectives on Legal Thought is the collective sophistication of the essays performing this pathbreaking work. The contributors, coming as they do from a variety of theological traditions and schools of legal thought, have benefited from reading broadly in the literature of Christ and culture and of faith and learning, and the result is a book that consistently stimulates and delights.

There is, of course, as the editors acknowledge, no "single 'Christian' perspective" on the law, a truism that is amply fleshed out in the essays that follow. Part 1 provides Christian perspectives on various schools of legal thought: liberalism, legal realism, critical legal studies, critical race theory, feminism, and law and economics. I was particularly impressed with Michael McConnell's essay on liberalism and people of faith, Stephen Carter's essay on liberal hegemony and religious resistance, and Stephen Bainbridge's essay on law and economics. McConnell concludes that, while "secular liberals frequently disdain religious ways of thinking and use the powers of the state, especially in the field of education, to advance their ideology," the problem goes both ways:

Christians and other religious citizens often return the favor, disdaining liberalism as a hostile ideology. I believe this is a mistake for both groups. Liberalism, in its original form, was consistent with (and in many respects drawn from) major strains of Christian doctrine.

Part 2 examines American legal thought using H. Richard Niebuhr's typology from his 1951 classic, Christ and Culture. Cochran assigns Niebuhr's basic stances—synthesis, conversion, separation, and dualism/paradox—to specific theological traditions. (Niebuhr's fifth stance, accommodation or culturalism, by the way, is not addressed, under the assumption that it does not offer a distinctive "Christian critique to the law.") Other contributors then explore legal thought from the distinctive perspectives of Catholicism, Calvinism, Anabaptism, and Lutheranism. In this schema, then, the stance of synthesis is equated to Catholic natural law theory; conversion is seen through the lens of Calvinist and neo-Calvinist perspectives on the law; separatism is explored essentially as an expression of the Anabaptist influence on the thought of certain legal scholars; and dualism is collapsed to the Lutheran approach that supports law as a necessary evil in a fallen world.

Appropriating Niebuhr's framework is helpful, but only up to a point. Niebuhr realized that no typology could capture the dynamism and complexity of the Christ-culture interaction and that it would be a mistake to assume that these stances are static or mutually exclusive. Of course, these legal scholars know this; nevertheless, I found the assignation of basic Niebuhrian stances to specific theological traditions a bit artificial and limiting. Only by violence—blurring the diversity within each tradition and minimizing the overlap that exists across confessional divides—can such straightforward correlations be maintained.

Adding to my concern is a vague discomfort that my Wesleyan tradition didn't even warrant a Niebuhrian assignment in this schema. But then neither did Pentecostalism or Anglicanism. Is this because these traditions are so theologically eclectic? Or could it be that none of the writers in this section came out of these traditions? In any case, the reader is left to assume that Wesleyans, Pentecostals, and even Anglicans have nothing distinctive to say about American legal thought. Such concerns emerge when examples used to illustrate the Niebuhrian typology become too closely identified with it in a way that neither Niebuhr nor, probably, the editors of this book intended. Having said all this, I found several of the essays in this section to be first-rate, especially Carmella's essay on Catholic views of law and justice and David Caudill's essay on neo-Calvinism and legal scholarship.

The volume concludes with essays considering six substantive areas of the law. Here the reader sees how Christian insights "can contribute usefully to the analysis of practical legal questions." John Witte examines the history and present state of marriage law; Phillip Johnson continues his assault on scientific materialism, arguing that it has failed to offer "'root causes' of criminal behavior"; John Nagle provides a balanced assessment of Christianity and environmental law; Joseph Allegretti looks at what Christianity can contribute to legal ethics; C.M.A. McCauliff shows how two committed Christians—Lord Mansfield and Lord Denning—reformed Anglo-American contract law; and Cochran suggests that tort law is best understood based upon "intermediate communitarian theory" drawn from the Calvinist concept of "sphere sovereignty" and the Catholic notion of subsidiarity.

Christian Perspectives on Legal Thought deserves a broad readership. Indeed, it ought to be required reading for every American law school student, every professor of American legal thought, and even every pre-law student in a Christian institution of higher education. (In fact, I am proposing a new course in my college's pre-law curriculum focusing on Christianity and American legal thought. And this collection of essays will be the primary text.) Anyone—Christian or not—interested in how the American legal system ought to function in a pluralistic society that remains strikingly religious should read and reflect on this book. After all, there is much written in the law, especially when read with the eyes of Christian faith.

Donald A. Yerxa is professor of history and director of the pre-law program at Eastern Nazarene College and assistant director of The Historical Society.

Copyright © 2002 by the author or Christianity Today/Books & Culture magazine.
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