Christian Legal Thought. Materials and Cases
by Patrick M. Brennan and William S. Brewbaker III.
Foundation Press, 2017.
Hardcover, 678 pages, $213.
Reviewed by Gerald J. Russello
Does Christianity have a place in the law? Many American jurists said it did, and most Americans would have had that general impression until the 1960s, or even the 1970s. And they would not have been wrong. If the Founding generation was overwhelmingly Christian (and it was), and if the legal system they imported was from a Christian country (as it was), then why wouldn’t that legal system reflect Christianity, not as a protected class of beliefs but as part of the architecture of the legal system itself? Almost every colonist in 1787 would have understood the Constitution only as embedded within their larger, religious society.
As early as the 1811 case, People v. Ruggles, Chief Justice Kent upheld a blasphemy prosecution under New York law in part because such prosecutions were appropriate under English common law, despite the state constitution’s guarantee of religious freedom. He wrote that “the people of this state, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order.” As Russell Kirk explained in his Rights and Duties, American jurists did not seek to impose the full Christian revelation upon the nation, but they also did not forget that the system of laws already in place was inspired from a very particular religious tradition. And of course many states had established churches into the 1830s.
But what would applying “Christian legal thought” mean in our current society? Historically, the law was widely assumed to have some role in public morality, and because the majority of people were Christian, that meant a Christian moral baseline. That in turn meant laws restricting “sinful” practices or furthering virtuous ones were not seen as beyond the bounds of public discussion. A common good was reflected, even if implicitly and oftentimes imperfectly, in divorce laws, “blue laws” regulating liquor or other sales on Sundays, obscenity laws, and corporate laws. The congruence was not complete, and there was plenty of room for debate, and one cannot forget that minorities such as the Amish, African-Americans, and Catholics might demur from this picture of Christianity and the law. However, the idea that Christianity should mean something in the law was a common view among religious believers of all kinds.
This is, to be clear, a different question than the constitutional protection of Christianity under the First Amendment. A generation of legal theorists and judges, working mostly under various versions of originalism, have provided a bulwark against an assault limiting the protections of the religion clauses; as Richard Garnett has noted, there is ample authority to support the view that the Constitution can protect religion generally as against irreligion. But those actions, as important as they are, ultimately are rearguard protections for those interested in whether the law should have moral content of any kind, Christian or otherwise. One can easily (perhaps too easily!) imagine a pagan society where churches get to pick their ministers and worship in peace but are otherwise sidelined from public life through a mixture of legal action and social opprobrium. Such a society might still be very hostile to Christians and the natural-law principles Christians believe should order political society.
The larger problem with originalism (as Adrian Vermeule recounts) is that it is largely focused on method, while progressivism is primarily substantive. Whether the law is conducive to the common good, for example, is not generally the primary goal of the originalist judge (though not always: some originalist scholars believe, for example, there should be a “default to liberty” in constitutional interpretation). Progressives, on the other hand, are all in on results. These methods vary because they are concerned with being democratic (or not), but they align in furthering a set of substantive goals such as equality, secularism, or non-judgmentalism against those they perceive as their enemies. One proof that this might be the case is the example of the fifty state constitutions: they contain all sorts of guarantees and protections that reflect substantive commitments to a common good.
The law is increasingly subject to the “dominion” of liberalism. Court decisions and regulatory agencies are often hostile specifically to Christianity. The controversies over the Obama administration’s “contraceptive mandate,” which pitted religious belief against assertions of equality and healthcare, are just one recent example. And some law professors have begun a cottage industry by asking what is so special about religious freedom anyway (short answer: not much).
We seem now to be at a tipping point between a legal society with embedded Christian understandings of the person, the family, and such mundane legal topics as contract or finance, and one with (sometimes very different) understandings. Law still both imposes and reflects morality; at the moment it is simply a confused and mixed morality. The “woke” legal subject is different from the citizen or the Christian, and the law would necessarily reflect that difference. We can see these fissures in cases like 1989’s Michael H. v. Gerald D. Justice Scalia’s discussion in that case to fundamental rights as being those generally recognized in our tradition or at common law only make sense as part of a Christian tradition; that is where the tradition and common law come from in our society. But if you think, for example, that that tradition is motivated by a Justice Kennedy-like “animus,” then whether a right was not considered fundamental at a Christian-inflected common law is not that relevant.
This is part of the reason why Christian Legal Thought, by Patrick M. Brennan and William S. Brewbaker III, is so important. Drawing on significant scholarly work that has been done in the past couple of decades on what “Christian legal thought” might look like, the book provides an overview of various Christian traditions with a rich selection of readings, ranging from extensive sections of the Bible to Mary Ann Glendon, Oliver O’Donovan, various papal texts, Protestant thinkers such as Abraham Kuyper, Reinhold Niebuhr, Dietrich Bonhoeffer, and Karl Barth, as well as texts that form part of the American civil religion, such as Lincoln’s Second Inaugural, Martin Luther King Jr.’s Letter from a Birmingham Jail, and the Massachusetts Body of Liberties.
As the authors write, “Christian theology sometimes reinforces the standard jurisprudential accounts, sometimes supplements them, and sometimes even corrects them.” The book reminds us that Christianity remains embedded in the background of the law, both statutory and common, but that these traces can be hard to see. However, it also shows us where that background is dissolving. Brennan and Brewbaker include the 1934 decision permitting the distribution of James Joyce’s Ulysses, as well as Obergefell, as examples of the new relationships between larger cultural forces and the law. In Ulysses, Judge Augustus Hand determined that because the “dominant effect” of the novel was not obscene, then it could be imported into the United States despite a federal law to the contrary. That led the way to a more general judicial approach that so long as some artistic artifact has “merit” it should be allowed, even if it is otherwise obscene. This has had expanding effects, for example, rendering most local restrictions on activities or performances deemed obscene more difficult to enforce except on a seemingly neutral “health and safety” ground. Obergefell is an example of a case establishing open-ended liberty interests based on application of the principle of equality.
But those are only the most contested areas. McKinley and Brewbaker address a range of other topics such as property, environmental law, and corporate and business law to either illustrate how we still, at times, operate within a Christian framework and at other times how Christian concepts may serve as a critique. As a current example, officials in California and Tennessee have both recently enforced anti-price-gouging or anti-hoarding laws. Such laws have a clear goal of maintaining a “just price” (though the laws don’t use that term) in a state of emergency. One could easily imagine a state where such laws did not exist, so that every person was at the mercy of the “market.”
As the authors discuss, contract law includes similar protections for those at a disadvantage. A contract can have terms that are simply unfair, even if the parties willingly entered into its terms. In Jones v. Star Credit (1969), included here, a New York state court invalidated a contract that, while not fraudulent, took advantage of poor people to their detriment. The idea that there could be an “unconscionable” contract implies, well, a conscience, and implies as well a set of objective criteria to which that conscience must adhere. Indeed, as contract theorist James Gordley has argued, such cases are congruent with natural law arguments for a “just price,” since the doctrine is based on the unfairness of the terms, not (as in modern law and economics) whether both parties bargained in good faith and in the absence of fraud. Recognizing the roots of those contractual doctrines is a way for Christian legal theorists to show how different premises about how the law should protect those at a disadvantage would result in very different legal regimes.
The financial system is another example. Here, however, the pressure on Christian legal thought comes from a different direction: not progressive wokeness but a sort of stripped-down profit-maximizing individualism. Take usury. Lending at interest has long been condemned by Christian authorities, even as it has become increasingly common: “[t]he Christian prohibition of [usury], however, is clear and unequivocal (even if the particulars of what constitutes usury admit of legitimately wide disagreement among Christian sources).” But these arguments fall on deaf financial ears without adequate alternatives, even though some residual usury laws are on the books.
Numerous types of financing instruments and arrangements look like loans but may not be, but there has been little analysis of which instruments are appropriate in a Christian framework. That framework offers a critique of some financial practices not as rooted as each party trying to get the greatest profit from the other but conceptualizing lending as a relationship in which one shares in the project rather than an individualistic enterprise that “make[s] a return on a loan possible without there being an ongoing relationship between the parties, or a connection between a return on the loan and the use of the money.” Compare that gap to the extensive work major financial institutions have done on developing financial instruments consistent with Islamic principles. There is no reason why such instruments cannot be developed or promoted, and then made legally enforceable.
Similarly with even drier areas of the law such as property. William Blackstone’s celebrated definition of property rights as “sole and exclusive dominion” is deeply embedded in Anglo-American law; indeed, defense of absolute property rights is something of a mark of American conservatism. And modern property law does have a strong bias toward the power to dispose of property at will (what the law calls its alienability), But this concept, without further glossing, is in tension with the more permeable treatment of property rights in the Christian tradition. The Church Fathers, Aquinas, and more recent statements such as the Catechism insist on a “universal destination of goods” that limits private property rights. And here, too, American law echoes that tradition. The authors include cases where absolute alienability has been restricted for a number of reasons, including where adhering to the wishes of the property owner would harm neighbors, a community, or the owner’s family.
So what does this mean for our current situation? Well first, that Christian concepts remain important, and can be used as an instrument to move the law in particular ways. Although constitutional law has taken up most of the attention, as this casebook shows the law is a vast and still-to-be contested battleground.
Second, this scholarship could serve to show how these embedded principles of the law reflect a certain kind of legal person, which is different than the person imagined under a different kind of jurisprudence. Interested lawyers should focus on explaining and preserving some of these concepts from contracts, from property, from environmental law, and so on. This would involve more historical, scholarly work of a kind, perhaps, that Ofir Haivry has done with John Selden and, in a different way, Richard Reinsch has done with Orestes Brownson. There are judges whose biographies need to be written, doctrines whose histories need further uncovering.
The third aspect of Christian legal thought should be as goad. The law is constantly pushing and pulling those subject to it in certain directions. It is not wrong for Christian legal thought to acknowledge that one of its purposes may very well be to get us closer to the Kingdom of God; it is prescriptive as much as liberalism is. But what these materials show is that the Christian tradition also encapsulates a lot of what people think they like about secular legal culture. There is room, in a Brownsonian fashion, to find common ground with believers of different faiths, or of none, in a way that liberalism, in its current woke form, does not permit. Moreover, the American federalist structure allows for a lot of flexibility in particular expressions of property, contract, family law, and other areas, so that even within a broad common acceptance variations are still possible. Christian lawyers can infuse these concepts as well.
This project need not be sectarian—the authors here are refreshingly ecumenical, again in contrast to current legal academia. One theme that comes through from these materials is simply that people have thought about the law differently, and that secular or progressive assumptions can be questioned. At the same time, lawyers should be developing strategies to identify and use these resources, as the Becket Fund has used the law guaranteeing religious liberty. Some ideas are starting to ferment, especially in the areas of finance and securities law. More is waiting to be done.
Gerald J. Russello is a lawyer and editor of The University Bookman
