Category: Law and Policy

Comments on Book Launch

Post author By dopderbeck
Post date October 21, 2020

We had a wonderful book launch event for my book Law and Theology: Classic Questions and Contemporary Perspectives at the law school Monday. Here’s the text of my remarks.

It’s amazing beyond words to have my book celebrated like this by our community. I’m very grateful to the Dean’s office for hosting this event. I’m so glad Professors Carmella and Uelman could present. I’m humbled and flattered and challenged by their remarks. I’ve known Amy for a number of years, I think since I first helped host a law and theology conference here at Seton Hall about a decade ago. I admire her thoughtful, deeply theologically and pastorally informed perspective on the law and the lawyer’s vocation. If I speak too much about Angela’s part in this I will get inappropriately emotional. Angela was my law and religion teacher when I was a law student – dare I say it – 30 years ago. That she is now a faculty colleague is hard enough to imagine. That she is helping present my book to you is more than anything I could have dreamed up 30 years ago. One thing I can definitely say is that I’m glad everything was done only on paper in my student days, not stored on computers, so that whatever I might have submitted in Professor Carmella’s seminar has, hopefully, long since moldered away.

When I had the opportunity to transition from full time law practice to academia, I knew that I somehow needed to bring my faith commitments, and my passion for theology, into deeper conversation with my life as a law teacher and scholar. To that end I pursued formal theological training – in a deliberate if sometimes piecemeal way, over the years. My specialty areas as a legal academic concern law and technology, cybersecurity, and intellectual property. I’ve been able to work on some projects involving intellectual property and religious thought, and my doctoral dissertation on theology, coming out as a book probably sometime next year, involves law, neuroscience and theology. I love that very wonky kind of stuff.

But this book, though it has its wonky moments, is really a passion project – a cri de coeur. My original title for the book was “Law and the Mission of God.” This reflects my interest in a movement called “missional theology,” rooted ultimately in the work of the great Swiss theologian Karl Barth, that ties to shape theological conversation around the missio Dei: the grand story of God’s redeeming and reconciling work in the world. The publishers thought that title was too narrow, and maybe they were right.

In the broadest sense, though, this book isn’t meant to be about the details of the law, whether natural law or positive law. It’s meant to be a call to the Church – to all persons called by God to participate in God’s great work of restoration. This is a call to hear, and embody, what the Apostle Paul called the euangellion – the Gospel – the good news. Christians claim that the news we have heard, and to which we bear witness – that in Christ, God is reconciling the world to Himself – is really, truly, unreservedly, good news.
If law – both natural law and positive law – plays some part in the missio Dei, in the good news, we should be able to tell a story about how law helps enable human flourishing and human liberation.

As Professor Carmella noted, I discuss both natural law and positive law in the book. Of course, in the modern legal academy, it takes some effort to talk about natural law at all, much less a kind of natural law that can’t exist apart from some tradition-specific discussion of creation, God, and transcendence. But in my view, that kind of tradition-specific discussion is exactly what’s needed, and I won’t shy away from it. Natural law is basic to human flourishing because “natural law” is simply one term for creation’s participation in the goodness of God. When we try to explain concepts like “goodness” without ideas about God and creation, and when we try to talk about “law” without a transcendent “goodness,” I think we end up talking nonsense that dissolves the human person away without any moral remainder –more on that next year in my next book on law and neuroscience! This is why the first part of the book is a tradition-specific survey of scripture, of important thinkers in the Christian tradition, and of the messy course of Church history. I hope in particular that my treatment of the Bible as narrative, and my focus on some less well known figures beyond the usual suspects of Aquinas, Augustine, Calvin, and Luther, brings something to the table.

As Professor Carmella also noted, however, my focus isn’t primarily on natural law. My focus is on positive law – the law humans make. My goal here was to draw out a theme that I think has been lost in our contemporary polarization: contingency. Natural law, flowing from the goodness of God’s being, is broad and unchanging. Positive law confronts specific human circumstances in specific moments of time. Natural law is the way things truly are, the way things ought to be, the way things one day will be – enveloped in God’s loving embrace. Positive law deals with the raw facts on the ground, now, when things are not yet as they should be. Positive law, then, is limited – it can’t do everything, indeed, sometimes it can’t do very much at all. Positive law is, and must be, connected with natural law, with moral truth – another sentiment, sadly, that is dangerous to express in the legal academy given the dominance of legal positivism. But positive law cannot, and should not, try to encode in detail all principles of morality. I think my view probably leans towards Lon Fuller’s approach to procedural morality, but with a nod towards the goals of liberation theology. Positive law should mostly be about institutions, processes, and ground rules that embody basic principles of peaceable community, human dignity, and fairness – with specific provisions that prefer the poor and oppressed.

In the praxis section of the book on contemporary issues, I hope, the theme of liberation comes into closer focus. The missio Dei is a mission of liberation: liberation from what the Christian scriptures and tradition call the powers of sin and death, and from what the Hebrew scriptures and tradition call slavery and oppression.

This is where my heart aches. I noticed early on in my academic career that almost every “law and religion” conference featuring Christians titled strongly towards the neo-Conservative, Federalist Society, originalist end of the spectrum. Now, this is an interesting set of perspectives, which should be part of any balanced discussion of the kinds of difficult, sensitive questions I try to address in this book. The scholars I know in the academy who promote these views do so out of the concern for procedural justice that I mentioned a moment ago. But how has this become the widespread default – not only among elite legal scholars and judges, but among people in the pews? Where are the Christian moderate or progressive legal scholars and judges, who want to discuss how Constitutional norms and legal rules could provide greater equity for the poor and oppressed? Where is the focus on the stuff that the Hebrew prophets railed about? My goodness – where is Jesus, the crucified preacher of the Sermon on the Mount? Why do some people, both among the elites and in the pews, seem so willing to sacrifice common decency and civility to pack the courts with originalists?

I think there are a number of reasons, which I discuss in the book. Let me briefly mention three in these remarks. This is where, forgive me, my remarks might cause some trouble, but I hope it’s “good trouble” as the late Rep. John Lewis put it.

Number one is a much deeper and darker history of racism. As religion scholar Robert Jones convincingly demonstrates in his recent book “White Too Long,” the history of Christianity in America is inextricably bound up with the American original sin of race. The origins of crabbed and limited Constitutional interpretation, an emphasis on state’s rights Federalism, and culture war alarmism, aren’t in contemporary disputes about school prayer, abortion, or LGBTQ rights. They’re in racism – specifically in claim by white Christians, from the antebellum period, through reconstruction and the civil rights movement, to today, that white Christian society is under attack by “the other.” It’s a gross and despicable legacy, one that many other Christians, worked to oppose, including, of course: Christians from minority communities who challenged the white Church as well as white Christian abolitionists and civil rights activists. Please hear me clearly: I am not, not suggesting that everyone today, much less any of my friends in the legal academy, who argues in favor of neo-Conservatism or originalism is a racist. We shouldn’t commit the genetic fallacy. On the other hand, dark evils – in the New Testament language, demonic powers – have a way of surfacing over and over again if we don’t expose them to the light. I think we are seeing those powers at work in our present racial divisions. This legacy should provoke a humbling conversation.

Number two is the tragedy of the evangelical and Catholic Christian culture wars against LGBTQ people. The current posture that this is all about religious freedom and preserving some degree of cultural pluralism – I’m sorry, this is going to cause trouble also – I believe is a farce. Again, don’t get me wrong: I believe ardently in religious freedom as well as in cultural pluralism. The hermeneutical and pastoral question of how Christian communities should love and care for LGBTQ people does not admit only one answer. Church communities that are doing their best to hold together a traditional Christian view of marriage and sexuality while learning how to love LGBTQ people should be legally protected and I support their honest efforts.

But the voices driving the culture war against LGBTQ people are voices, to put it simply, voices of fear and hate. Remember, when faced with equally divisive cultural and moral issues in the first century church, in a Roman world far more diverse, dangerous, and hostile than ours, Paul didn’t tell the Romans Christians to seize control of the reins of political power. Instead, he said,

Bless those who persecute you; bless and do not curse. Rejoice with those who rejoice, and weep with those who weep. . . . If your enemy is hungry, feed him, and if he is thirsty, give him a drink. . . . Do not be overcome by evil, but overcome evil with good. (Romans 12:14-21).

Within our own Christian communities, we can continue to debate and disagree about what the great political theologian Oliver O’Donovan rightly called a delicate hermeneutical issue that requires, first of all, a posture of listening: how to relate the ancient horizons of our scriptures and tradition to our horizon, the world in front of the text, with an understanding of sexual orientation and with possible ways of life for LGBTQ people that didn’t exist two or three thousand years ago. I’m not going to try to answer that question today, and I’m just one legal scholar-slash-theologian, not qualified in any event to answer it definitively. The one thing I can say for certain is that the answers Jesus solicits from us don’t involve fear or hate.

Number three is the role of conspiracy theories. The bizarre “Q” conspiracy has gotten lots of press lately. I’m not the least bit surprised that this kind of craziness is penetrating actual politics to the point where people espousing these views are actually getting elected to Congress. Conspiracy thinking has been part of conservative evangelical movements since the turn of the 20th century, and there have been outbursts of chiliastic conspiracy movements throughout Church history. One I discuss in the book, if you don’t know the story, is the Munster Rebellion by radical Anabaptists in 1534-1535. The violence in that episode, by the rebels as well as by the Protestant and Catholic authorities, is where all such things end.

In the U.S., conservative evangelical conspiracy thinking rapidly gained momentum in the cold war years. It funded a thirty-million dollar “Creation Museum” in Kentucky dedicated to the proposition that mainstream science is a well-orchestrated conspiracy to deny God. It has underwritten countless best-selling books about how the Pope, the latest leader of the Soviet Union, the Chinese, the Muslims, Hilary Clinton, George Soros, a propitious sequence of “blood moons,” or all of the above, are ushering in the end of days. Yes, you heard me say “the Pope.” The cooperation between some evangelicals and Catholics on issues like abortion and gay marriage is relatively recent and still paper thin at the popular level.

We might make light of this, but it is enormously, powerfully influential at the grass roots level. The elites, like most of us in this virtual room, who discuss law and religion at a professional level may only have heard of such things second or third hand. Whether we are taking a more “progressive” or a more “conservative” position, we should take more care about our rhetoric. Christians do believe that history has a goal and that God is bringing about and will bring about a different world, a peaceable Kingdom, through Christ. Christians do believe that positive law matters, that positive law can protect, empower, and liberate, and that positive law can destroy, debilitate, and weaken – and that all of this, across ages and cultures and nations, somehow is part of what God is doing in the world now and what God will do in the world in the future – and that some Christians are called to work as lawyers, judges, lawmakers, public officials, and so-on. But sound Christian theology and practice refuses identify any given moment with that last “day of the LORD.” As teachers and lawyers who care about such things, let’s make absolutely clear that our moment in history, and our place in it, is limited, brief, and in the end not of singular importance.

In my personal devotional reading of the Bible I often return to the wisdom texts of the Psalms, Job and Ecclesiastes. They remind me that my life is just a breath in God’s time – to put it bluntly, that I’m not very consequential. But I also study the prophetic texts like Ezekiel, Isaiah, and Micah, and I also read, with fear and trembling, the words of Jesus, the one Christians identify as Prophet, Priest, and King. Those words remind me that what I do related to God’s Kingdom of peace and justice now reverberates into God’s future world to come. I am inconsequential, a fading breath; I am an agent within a Divine project of creation and reconciliation that endures forever. This is the both-and of the lawyer who wants to think like a theologian.

Atheists, Christians, the Pope, and Doing Good

Post author By David Opderbeck
Post date May 24, 2013
2 Comments on Atheists, Christians, the Pope, and Doing Good

The headline of a recent Huffington Post article caught my eye: “Pope Francis Says Atheists Who Do Good are Redeemed, Not Just Catholics.” Another HuffPo article notes that “Atheists Like What They See in Pope Francis’ New Openness.” What’s going on here? Good things, I think.

We need to dig a bit into the homily delivered by the Pope for the Feast of Santa Rita – Patron Saint of impossible things – to understand the theological undercurrents of these remarks.

The cornerstone of the Pope’s homily is a concept of natural law:

The Lord created us in His image and likeness, and we are the image of the Lord, and He does good and all of us have this commandment at heart: do good and do not do evil. All of us. ‘But, Father, this is not Catholic! He cannot do good.’ Yes, he can. He must. Not can: must! Because he has this commandment within him.

This is not a new teaching. Some notion of natural law has been part of Christian theology from the first century New Testament writings until today (see, for example, Romans 1:20, the locus classicus for Christian natural law thinking). Atheists, of course, will reject the concept of a natural law implanted in universal human nature by God. They will offer other reasons for the good that they do. But Christian theology has always held that all human beings in their created humanness bear the image of God and have a “natural” sense of what is good.

Christian theologians, however, have often disagreed about how or whether or to what extent sinful human beings can follow the natural law. The key question here is the effect of sin on human nature and the accessibility of God’s grace to sinful humans (again, a locus classicus is Romans 1). We can illustrate this through two historically important Christian thinkers: Pelagius and Martin Luther. Pelagius held that even after sin, a human being could theoretically follow his or her created nature and obtain perfection through the natural law alone. One of Pelagius’ concerns was to preserve human freedom to follow or not follow God. Luther, in contrast, wrote a tract titled “On the Bondage of the Will” in which he argued that sin has erased human freedom. A sinful human person always does evil.

Both Pelagius and Luther were more complex as thinkers than this sketch suggests. Just as some sense of natural law has always been a part of Christian thought, so has Christian thought always recognized the weight and tragedy and depth of human sin and the utter dependence of human beings on God’s grace. Both Pelagius and Luther – as well as St. Paul and Athanasius and Augustine and Aquinas and Calvin and Barth and many other great Christian thinkers throughout history – have wrestled with this tension. As is always the case, distortions (“heresies,” in the historically freighted lingo) crop up when one node of a tensioned web of thought is amplified so that the web snaps.

In this case, the nodes are human freedom and human bondage to sin. Or, stated in more common theological terms, the nodes are “nature” and “grace.” The tensioned web of robust Christian thought (“orthodoxy”) holds that all human beings are both (1) created morally free and accountable and (2) thoroughly sinful and utterly in need of God’s grace.

At the equilibrium point of this tension we find another passage in Pope Francis’ homily that caught the attention of the HuffPo headline writers:

The Lord has redeemed all of us, all of us, with the Blood of Christ: all of us, not just Catholics. Everyone! ‘Father, the atheists?’ Even the atheists. Everyone! And this Blood makes us children of God of the first class! We are created children in the likeness of God and the Blood of Christ has redeemed us all! And we all have a duty to do good.

For a journalist unacquainted with Christian theology, as well as for many Protestant evangelicals, a statement like this sounds like bland universalism. Many of us from evangelical backgrounds are trained to think of “redemption” as something utterly separate from our created selves that only becomes part of our experience when we forcibly take hold of it. That is, we completely sever “nature” and “grace.”

A more careful account is that sin’s corruption of human “nature” in fact makes us into something “un-natural.” We are not now as we are created to be. This is one of the essential points of the Biblical story of Adam and Eve and Eden. The literary genre of that story surely is not “literal history” (whatever that would mean), but it tells a basic truth. We cannot, because of sin, be or become what we truly are, without God’s help. But the help – the grace – God gives us does not erase or replace “nature.” “Nature” is already grace-shaped. “Nature anticipates grace,” as Aquinas said, and grace perfects nature. Redemption, then, is not alien to who we are in our created humanity. What is “alien,” in fact, is the separation and death and emptiness of sin.

We – evangelicals and Americans more broadly – also are accustomed to think of “redemption” to mean “who goes to heaven.” It’s as though redemption were a magic potion on a store shelf. We might be directed to the correct aisle and grab the bottle of potion and force the potion down our throats, or we might not. Even if the bottle is in theory universally accessible to every shopper – indeed even if there is a voice on the PA system announcing “attention shoppers, Redemption Potion is in the bottles in aisle four” — not many find it or grab it or swallow the bitter draught. Some in very severe Reformed traditions might even say the bottle is hidden behind other things and is only made accessible to a chosen few. Maybe a clerk whispers in the ears of those who are chosen – “psst, check out aisle four….” In any event, it’s all about this magic potion, which instantly transforms those who drink it from “unredeemed” to “redeemed.”

I think the Pope had a different notion of “redemption” in mind in this quote. I think he had in mind the redemption of all creation, including human nature as something universal in which all particular human beings share. In this sense, all human beings are already redeemed by the blood of Christ. The defects of universal human nature were assumed by Christ and are healed in Christ. All particular human beings are capable of doing good, since all particular humans participate in universal human nature, which Christ has healed. And to the extent any particular human is doing good, he or she is already in some fashion participating in the new humanity, the new Adam, brought about by the faithfulness of Christ.

This concept is of course contrary to hard-line Reformed theologies that suggest the “good” done by non-Christians is only a sort of “civil good” and not genuine good. But it is, I believe, thoroughly consistent with scripture and the broad Christian tradition, and it is a truth recognized by most Protestants today outside some narrow circles. At the very least, God’s prevenient grace allows every human being to know and do the good to some extent. Those of us within the Church, in fact, ought to be the first to acknowledge how far we regularly fall short in doing good, even with the benefits of regular Christian worship and sacramental life.

Does this mean that every particular human being is “going to heaven?” No. The freedom available to us because of Christ’s victory over sin and death remains contingent on our participation by faith. We are free to reject the freedom of Christ and to accept instead the bondage of sin. And in Catholic theology, along with the broad tradition of Christian thought, it is clear that this centrally involves the freedom to respond or not respond to the gospel of Jesus Christ as it is made known to us. But, broadly speaking, Catholic theology is much more reticent to claim knowledge of precisely how God reveals Himself to others and precisely how others are or are not responding to God’s grace. It may be that every atheist is beginning to respond and will finally respond “yes” to Christ, or it may not. It may be that every professing Christian has expressed and will express a fundamental “yes” to Christ, or it may not. Scripture suggests that only God finally knows the wheat from the tares, the sheep from the goats.

Does this then mean that anyone can “earn” heaven by “doing good?” Again, no – and I don’t think the Pope would say so. We are “justified” by faith, not by works. Catholic, Orthodox, or Protestant, this is a basic and beautiful truth of the Gospel. But the scriptural content of “justification” involves being made “just” – not only in name or by judicial declaration, but in fact. We are made just only as a free gift of God’s grace made available to us by the faithfulness of Christ in his death and resurrection. To accept that gift means, by the power of the Holy Spirit, gradually being made into a person more like Christ. It means “abiding” in Christ, like a branch on a vine (John 15). It means participating in the loving life of the Triune God.

The Pope’s conclusion is also important because it reflects this holistic notion of justification and redemption:

And this commandment for everyone to do good, I think, is a beautiful path towards peace. If we, each doing our own part, if we do good to others, if we meet there, doing good, and we go slowly, gently, little by little, we will make that culture of encounter: we need that so much. We must meet one another doing good. ‘But I don’t believe, Father, I am an atheist!’ But do good: we will meet one another there.

Notice that “redemption” in this picture is about making culture and meeting one another – starting here and now! It is not only about getting to heaven someday. And notice that this redemptive construction of culture does not, and cannot, happen all at once. I love the notion of creating culture “gently, little by little.” How often I fail that ideal! In a world where grave violence persists, it is not always possible to go “gently” (I am thinking at the moment of efforts to combat human trafficking and child pornography). Nor does going “gently” mean avoiding clear articulation of differences or eschewing evangelism. But in this process of recognizing the genuine “good” done by the other, maybe this gift of gentleness – which, after all, is among the particular fruits of the Holy Spirit (Gal. 5:23) – can be realized.

Law and Policy

They Preached Liberty?

Here’s a letter to the Editor of mine published in today’s Wall Street Journal in response to the editorial “They Preached Liberty.”

Law and Policy

Christians and the Supreme Court's Health Care Decision

Post author By David Opderbeck
Post date July 2, 2012

I have a post up on Jesus Creed. Here’s the text:

Thursday last week the U.S. Supreme Court issued its decision in National Federation of Independent Business v. Sebelius – the health care law case. Not surprisingly, the talk shows, the newspapers, the blogosphere, Twitter, Facebook, and every other imaginable outlet are lit up with comments and arguments. What should Christians think about this case?

I will offer some thoughts about how I think Christians should think about it. But first, and perhaps most importantly, I’d like to suggest that there is no single position that can be called the Christian view on this particular case. It’s a complex issue in terms of economics, social policy, history, and the law. Let’s try to give each other the freedom to express nuanced opinions on these difficult questions.

There are at least two common themes running through much of the Christian commentary on the decision. On the right, the view is that the Court’s decision, as well as the law itself, represents a threat to freedom. For example, here is something posted on the Trinity Forum’s Facebook page, from TTF Trustee Edwin Meese:

The Court was correct to find that Congress does not have the authority to compel purchases under the Commerce Clause. But it erred in contorting the statute to declare the penalty a tax. And the fact that the Court decided to allow this abuse under the government’s taxing authority, not the Commerce Clause, doesn’t change the fact that individual freedom has been dealt a serious blow.

On the left, the decision, and the law itself, are viewed as an important victory for justice. Here is Jim Wallis of Sojourners: “This is an important victory for millions of uninsured people in our country and ultimately a triumph of the common good.” Nevertheless, Wallis qualifies his praise:

While I believe the decision is reason to celebrate, it doesn’t mean that this legislation is somehow the flawless will of God; it is an important step in expanding health care coverage and reducing long term costs, but it still is not perfect and more work is yet to be done.

The U.S. Conference of Catholic Bishops opposed aspects of the law but did not ever argue for its repeal. Their concerns about the law were not based on the notion of universal health care itself, which is something Catholic Social Teaching supports (or at least can be read to support). Rather, the Bishops are concerned that the law that seems to support abortion, compromises rights of conscientious objectors, and does not provide adequately for immigrants. In their statement on the Court’s decision, the Bishops conclude:

Following enactment of ACA, the U.S. Conference of Catholic Bishops (USCCB) has not joined in efforts to repeal the law in its entirety, and we do not do so today. The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above. We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws.

Before I offer my thoughts on these varying representative perspectives, let me step back and note once again that each of them represents good faith efforts to think Christianly about the Court’s decision. The fact that they finally offer different visions of the end result should give us pause before we argue that there is only one faithful way to think about it.

That said, from my own perspective, the Trinity Forum / Edwin Meese comment is the most theologically problematic of the three I’ve referenced. Even more problematic, I think, are the more extreme libertarian critiques of the law heard in many outlets. Meese’s comment is at least measured in tone, which is not the case with much of the libertarian rhetoric that feeds into what many Christians have said and are saying about “Obamacare.” How quickly does the dreaded “s” word – “socialism” – arise in many of these comments?

I wonder when “individual freedom” became the sine qua non for Christian social ethics about health care? It seems to me that Christians of all people should be willing to sacrifice some of their “individual freedom” in order to ensure that everyone, particularly “the least of these,” has access to health care. In scriptural and Christian theological terms, true “freedom” is not libertarian license, but rather is the full participation of a person in God’s self-giving love. And true “freedom” is never about isolated individuals – as God is a Triune community, so we as human beings can only be truly “free” in community.

Of course, even if we agree that Christians should be willing to give up some “individual freedom” to facilitate health care for others – or, perhaps better, that Christian freedom means moving beyond selfishness — the question remains whether such care should be provided through government, through private associations, through Churches, through families, and so on. There is a long and tangled tradition of Christian political theology on all of these questions – and, at least in my opinion, there is no simple right answer. It isn’t enough here merely to refer to “sphere sovereignty” or “subsidiarity,” just as it isn’t enough merely to refer to the immanent “peaceable Kingdom.” I do think some ways of working through this are much better than others, but these are the subjects of long and carefully worked out philosophies that can’t be reduced to sound bites. (For a flavor of what I think is a wonderful example of contemporary Christian political theology regarding public goods and markets in areas such as health care, see Pope Benedict’s Encyclical Caritas in Veritate).

From my perspective there is less to criticize in Wallis’ comment on the decision. Nevertheless, I would much more significantly qualify my enthusiasm for the result because of Justice Roberts’ reasoning on the taxing power. In fact, ultimately I think it’s a poorly reasoned judicial opinion that opens a can of worms concerning what the government can call a “tax.” It seems to me troublesome development that the Constitution’s taxing power can extend to a choice not to buy a product – a choice not to act. I don’t want to pay taxes, for example, for choosing not to buy a car or a bicycle or broccoli. This really does seem to expand the government’s economic power in ways I find troubling.

While “individual freedom,” in libertarian terms, is not the central concern (as I see it) of Christian social ethics, nevertheless the integrity of the person very much is a central concern. And this does mean that persons, not States, finally are the basic subject of politics, and that freedoms of the person and of private associations of persons are of basic importance. An essential function of any just political structure therefore must be to hold the State’s power in check through the rule of law. Whether the majority or the liberal-wing dissenters in the Sebelius case were right about the commerce clause issue – itself a legally and historically complex question — I believe the commerce clause should have been the basis for the decision rather than the taxing power. In my view, the payments required for uninsured persons under the individual mandate clearly are a “penalty,” not a “tax,” and therefore they should stand or fall as an exercise of federal governmental power under the commerce clause.

Given my reference to Pope Benedict’s Caritas in Veritate, it’s perhaps not surprising that I personally find the USCCB statement about the Court’s ruling the most appropriate of the three I’ve referenced. In my view, Christians should desire that all persons have access to decent health care, and markets alone cannot meet this goal either from a moral or a pragmatic perspective. A Christian social ethic therefore should recognize that it is a necessary and appropriate function of government to facilitate universal access to healthcare. However, where “healthcare” includes things like elective abortions, which raise serious moral concerns for many persons and religious associations, appropriate exemptions should be included. And I fully agree with the U.S. Bishops that, particularly from a Christian perspective of welcome, immigration reform is essential, not least as in relation to education and healthcare.

So, I don’t have a final answer concerning how Christians should thing about the Sebelius case and the health care law. I hope, however, that we can try to think about it in more careful and theologically nuanced terms than usually surface in popular debates.

Law and Policy Theology

The Relationship Between Doctrine and Ethics

Post author By David Opderbeck
Post date November 17, 2011

This is a new post I have up over on Jesus Creed.

It has been a while since I posted on Nicholas Wolterstorff’s books Justice: Rights and Wrongs and Justice in Love – life and work have been busy! Today I return to the theme of “justice.” However I will take a diversion from Wolterstoff’s particular thesis to address a question that underlies, and I think in some ways animates, his project: the relationship of Doctrine to Ethics and Justice. This seemingly arcane issue is timely and relevant because it goes to the heart of contemporary Evangelical debates such as Calvinism vs. Arminianism, the doctrine of final judgment and Hell, and gay marriage.

The question is this: do Ethics serve as a control on Doctrine? Or does Doctrine serve as a control on Ethics? Or do Doctrine and Ethics stand in a perfectly harmonious relationship? Or do Doctrine and Ethics stand in some more complex sort of relationship?

Rob Bell’s book Love Wins at times seems to suggest that Ethics control Doctrine. That is, if our ethical beliefs are offended by some construction of the doctrine of final judgment, then that doctrinal construction is wrong. Francis Chan’s book Erasing Hell and Mark Galli’s book God Wins at times seem to suggest that Doctrine controls Ethics. That is, if the doctrine of God’s sovereignty says “God can do whatever he wants,” and the doctrine of scripture says God’s word is inviolable, then the doctrinal belief that God has ordained the damnation of the majority of humanity cannot be questioned, even if this offends our ethical beliefs.

So who is right?

A helpful sketch of the options can be found in Alan Torrance and Michael Banner’s introduction to the excellent volume The Doctrine of God and Theological Ethics. Torrance and Banner trace the modern influence of the “Doctrine controls Ethics” theme to Emmanuel Kant. For Kant, who sought to establish ethics on the foundation of “pure reason,” “[e]ven the holy one of the Gospel must be compared with our ideal of moral perfection, before he is recognized as such.” The problem with this approach is that “God” becomes reducible to human reason – and thus ceases to be God.

Torrance and Banner cite Karl Barth and Dietrich Bonheoffer as champions of “Doctrine controls Ethics.” Barth famously rejected any “natural theology” and therefore refused to locate ethics outside of dogmatics – “dogmatics itself is ethics,” Barth said. Torrance and Banner do not mention Cornelius Van Til, whose presuppositionalist apologetic holds significant influence over American neo-Calvinists and many other Evangelicals. Van Til thought Barth was a heretic, but he was cut from the same mold as Barth concerning the priority of Doctrine over Ethics. The key difference was that Barth’s doctrine of revelation was Christological – for Barth, Christ was the ground of revelation and of ethics – whereas Van Til’s doctrine of revelation was Biblicist. The problem with the “Doctrine controls Ethics” approach is that “Ethics” become reducible to the pure exercise of power – and thus cease to be Ethics.

As Torrance and Banner note, however, a “control” relationship between Doctrine and Ethics is not the only option. Many great Christian thinkers have held that Doctrine and Ethics, properly understood, stand in a perfectly harmonious relationship. This was the view of Thomas Aquinas, whose theory of “natural law” remains the basis for contemporary Roman Catholic social teaching and also informs many contemporary Evangelical ethicists. For Aquinas, the “natural law” is part of the created order, which flows from the very being of God. Natural law, as part of creation, is knowable through natural reason. But the proper exercise of reason is never “pure reason,” apart from faith. Reason is rather a preparation for contemplation of the deeper truths of faith, which enrich and go beyond, but never contradict, the truths of reason. A problem with this approach is that it can tend to discount the effects of sin on nature and the consequent need for grace to overcome the corruption of nature. (This perceived priority of nature over grace was a key point of disputation between Martin Luther and the the Catholic apologists who opposed him).

It is also possible, Torrance and Banner suggest, that Doctrine and Ethics could simply occupy entirely different spheres of knowledge. In this heuristic, “Doctrine” is essentially the mystical contemplation of a God who is rationally unknowable, and Ethics represents what is necessary to get by in the material world. Torrance and Banner cite the Germen pietist and Anabaptist quietist traditions as examples of this approach. The emphasis for ethics here is withdrawal from the corruption of the world. We might add that some Eastern Orthodox and Pentecostal approaches fit this mold. (There is also, I think, a significant pietist / quietist strain in Mark Galli’s recent books, along with a “control” strain).

Finally, Torrance and Banner offer a hybrid approach, to which they clearly are partial: “the relationship – or better, relationships – between doctrine and ethics are more various and subtle than can be represented by any one of the positions thus far mentioned, taken in isolation.” This final position, they say, “will not simply reject these accounts; indeed it will think it likely that these accounts were founded on certain insights or seeming insights which must, in turn, be accommodated or accounted for in any satisfactory treatment of this matter.”

It probably would be no surprise to anyone who has read any of my essays and blogs that I tend to agree with this hybrid / dialectical approach, which of course must be carefully developed. But what do you think of this sketch of different approaches to the relationship between Doctrine and Ethics? How might a better understanding of the relationship between Doctrine and Ethics help inform our present debates about Calvinism, Hell, and social issues such as homosexuality or the welfare state?

Justice Law and Policy

Richard Stearns / World Vision on Foreign Aid

Post author By David Opderbeck
Post date November 11, 2011

In today’s Wall Street Journal, World Vision President Richard Stearns writes:

One objection that I often hear from evangelicals is that while aid is good, it is not the government’s job. Yes, individuals and churches play a vital role in aid and development. But governments play a unique and vital role that private organizations cannot. The poverty-focused programs in the foreign-aid budget are facing cuts of between $1.2 billion and $3.2 billion from 2010 levels. In comparison, the largest American Protestant denomination, the Southern Baptist Convention, has a budget of $308 million for its missionary and aid organization.

We cannot let others suffer simply because times are tough in the U.S. All Americans must understand the urgency of the human need and the effectiveness of our government’s aid programs.

Excellent.

Law and Policy

Recent Activity

Post author By David Opderbeck
Post date November 10, 2011

It’s been a long time since I’ve posted — work and life have been busy! For those who might be interested, here are some presentations I’ve recently given:

Cyber-terrorism as a Crime and Cyber-surveillance, NJIT Cybersecurity and Terrorism Conference

Dealing with Hackers, Practicing Law Institute Cybersecurity Panel

Law and Policy

Joseph Singer on American Ambivalence About Government

Post author By David Opderbeck
Post date July 28, 2011
2 Comments on Joseph Singer on American Ambivalence About Government

A nice quote from Harvard law professor Joseph Singer, from the Cornell Law Review of all places:

Americans reflexively oppose “big government” but support the myriad regulations and social programs that government enacts. They do not want regulations, but they do want laws that protect them from unsafe products and workplaces; laws that protect them from polluted air and water; and laws that regulate land use to prevent factories from being located in the middle of residential subdivisions. They do not want government to interfere with the free market but they do want government to protect ‘hard working Americans’ from losing their homes. They are skeptical of big government but just as skeptical of big business. They like the idea of small government but not the practice: when hard times strike, they demand government action. This suggests that the American people embrace both sides of the libertarian / progressive split. It turns out that we are deeply ambivalent about the relationship between law and economics. It also means that we we have a similar ambivalence about property rights.