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.