Christians and Legal Theory

My friend Jeff started a series on thinking about the law, with a post titled “What is Law?” Jeff summarized a basic approach to law as follows: the law is a collection of rules.

This is a popular understanding of “law,” but it’s a rather reductionist, formalist definition. See legal scholar and Legal Theory Lexicon maven Larry Solum’s definition of formalism, which just about exactly describes law as a collection of legislated rules that judges must apply more or less directly.

Formalism is of course a viable theory of law, and it figures prominently in neconservativism. But it is subject to some compelling critiques from legal realism and instrumentalism. Legal realism says that even when judges purport to act according to formalism, they really are making the law as they want it to be. Instrumentlism says that the encoded law should be interpreted and applied according to its purposes rather than strictly according to its encoded language. Instrumentalism and realism, then, would not see law primarily as a set of written, encoded rules, but would see it more in terms of what judges and juries actually do in application.

If you are looking for a descriptive theory of what actually happens in the legal system rather than a prescriptive theory of what should happen, I’d suggest that you have to pay careful attention to realism and instrumentalism.

Of course, formalism and realism are only two ways to look at law. You also need to consider social contract theory, as expressd by Hobbes, Locke and Rousseau, and as presented in a contemporary Kantian form by Rawls. Rawls’ view is more prescriptive than descriptive, but in many ways it also decribes the deep Lockean roots of U.S. law as found in the U.S. Constitution. Essentially, Rawls’ view is that law should reflect what individuals who know nothing of the circumstances of other members of society would want for themselves. This basic core of rights and protections then forms the minimal social contract rules required for a just society.

Then there’s Ronald Dworkin’s “legal holism.” For Dworkin, law is not a set of discrete rules, but is a “seamless web” of social relations, such that the judge must go beyond a particular set of propositions to decide any given case.

All of these theories are essentially liberal theories of law (liberal here meant in the classical sense of essentially democratic). You also have to consider theories of law that primarily derive from notions of authority, particularly the medieval concept of the divine right of kings, and eastern concepts of law that derive authority from the social order. And, you need to consider dialectical theories of law drawn from Marxism, as well as the dialectical theories represented by the critical legal studies movement.

If you are looking for a particularly Christian jurisprudence, I’d suggest that you can’t stop at formalism, realism, social contract theory, legal holism, or authority or dialectical theories. You need to consider the Thomistic natural law tradition. In that tradition, law is not a set of man-made rules. True law is that which conforms to the deeper divine law woven by God into creation. In my scholarship, currently I’m exploring what I think is a deeper and perhaps even more truly Thomistic and Aristotelian rendition of natural law theory, which is called virtue jurisprudence. But then of course you need to consider some of the Reformed critiques of natural law theory and the common grace jurispurdence of Kuyper and others. And then there are anabaptist and other peace traditions, reflected in folks like Hauerwas and Glen Stassen. (An excellent anthology on Christian legal theory came out last year for intrepid readers.)

This little survey is only the tip of a big iceberg. Legal theory and jurisprudence is endlessly fascinating, and for the Christian thinker, demanding subject. Unfortunately, evangelicals are often quick to settle on formalism as the “right” theory of law. Formalism has advantages and disadvantages, and can’t be seen as the end of the discussion.