Author’s Note: Several years ago, on a different personal site, I published a series of three essays on “Christian Legal Theory.” The essays interact with and critique a law review article of the same title by the late legal scholar William J. Stuntz. Harvard Law School, where Stuntz spent the last 11 years of his academic career, maintains the “Professor William J. Stuntz Legacy Project,” whose aim is to “establis[h] a comprehensive online repository of his works—both published and unpublished.” The About page there aptly notes, “Professor Stuntz’s Christian faith was integral to his work, influencing his focus on the dignity of every person and the importance of grace and mercy as guiding principles in law.”
Much has changed in the nine years since I wrote these essays, but they stand up pretty well, so I’m going to publish them in three parts here. My views have changed on a few things, so I’m adding editorial footnotes to clarify, or in some cases contradict, my then-expressed views. Here’s the first of the three.
Radical Christian legal theory, Part 1: Law, Gospel, and foolishness
Originally published Aug. 20, 2016
It’s not often one can say a law review article affected them profoundly. But for me, that’s true of “Christian Legal Theory” by the late Harvard scholar William Stuntz.
This post is the first in a series on Stuntz’s article. My goal: to illuminate Stuntz’s ideas for a broader audience, to shed some light on the question that Stuntz poses in his opening sentence: “Why should anyone think about law in Christian terms?”
Law, Gospel, and Foolishness
The impetus for Stuntz’s piece is Christian Perspectives on Legal Thought, a series of law professor essays on the intersection of Christian thought and American legal theory. Stuntz spends time summarizing and critiquing the essays, which cover a broad range of topics, from the Christian roots of liberal thought to Christian perspectives on— and defenses of—the issues of the day: racial equality, feminism, environmentalism, economics, criminal justice, and even contracts, torts, and legal ethics.
Ultimately, Stuntz finds Christian Perspectives as a whole “moderate and familiar,” “comfortable,” and “ordinary.” “If this book is a fair gauge of the effect serious Christians might have on legal thought,” Stuntz writes, “those who like legal thought just as it is needn’t worry.”
I want to reserve my own judgment on the book, but Stuntz’s critique is astringent, and for good reason. The Apostle Paul taught that the Gospel is “unto the Greeks, foolishness” (1 Cor. 1:23). It is at odds with the wisdom of the world. (Eugene Peterson calls it “the seeming absurdity of God.”) But as Stuntz dryly observes, anyone reading Christian Perspectives “might be excused for wondering why the transcendent God seems to think like a typical American law professor.”
The trouble with many of the book’s essays is that they start in the wrong place. They begin with a particular cause du jour, like racism or sexism, and work their way backwards, hoping to show that Christian thought is compatible with contemporary legal perspectives. The essayist’s task is less a Christian lens on law, and more a legal lens on Christianity.
But Christian thought shouldn’t be so mainstream. True to itself, the Gospel is upside-down religion. As Stuntz notes, Christ in his teachings “is constantly reversing the natural order of things, saying that the last shall be first and the first last, that those who lose their lives will save them (and vice versa).” If subversion of the natural order lies at the core of the Gospel, it should also be at the center of any Christian perspective on law.1
That intuition is both Stuntz’s central insight and the key driver of his critique of Christian Perspectives. So in his essay, Stuntz sets about to divine first principles and lay the groundwork for a Christ-centered understanding of law, one that’s faithful to the subversive implications of the Gospel. The result is a different kind of Christian legal theory, what Stuntz calls radical Christian legal theory.
Radical Christian Legal Theory
To be fair, Stuntz doesn’t see himself as divining first principles, but as taking disparate strands of Christian thought and weaving them into a common legal-ethical fabric. For him, any legal theory that calls itself “Christian” must take into account at least four ideas:
[Note: I’ve reformulated and stylized these, but they are faithful to Stuntz’s thought.]
Ethical theism: Underpinning all of Christian thought is the belief that God has an abiding interest in man’s everyday conduct and thus “cares deeply about law and the moral messages it sends.”
The taint of sin: Because sin affects everything we do, it should induce caution and uncertainty—not about God, but about ourselves, our motivations, and our perceptions.
Relationships over rules: The emphasis of Christianity is on right relationships, not rules.
Christ-centered radicalism: In pointing to a different reality, a different Kingdom, and a different King, the Gospel turns the systems of the world on their head, law included.
What does all this mean for legal theory? Stuntz begins to sketch out the implications.
Most important is Stuntz’s suggestion that there really is no Christian legal theory at all: “instead of looking for the Christian theory of contracts or criminal law or anything else,” he writes, “we ought to be looking for the Christian lines of critique, the sin-induced tendencies that run through all legal fields and all legal forms.”
That insight really is radical because it works against the human tendency to systematize, a tendency that (perhaps paradoxically) affects lawyers and theologians more than most. Indeed, if there is a moral-legal thrust to the Gospel, it is anti-systematic. Christianity, as Stuntz puts it, “embraces no one theory but criticizes all.” It is ever skeptical of the way that rules and systems—the domain of law itself—tend to reflect our self-interest and the entrenchment of power.2
Stuntz’s emphasis on critique over theory is the key that unlocks the rest of his essay, and he works out its implications in three areas: distributive justice (i.e., special concern for the poor), moralism, and humility. I plan to explore each of these in subsequent posts.
Redeeming Law
A parting thought on the theological implications of Stuntz’s essay. At the root of “Christian Legal Theory” is the intuition that the Kingdom of God and the message of the Gospel are for the here-and-now. As Christ taught us to pray, “Your will be done on earth as it is in heaven” (Matt. 6:10). Even to speak of a Christian perspective on law is to believe that God is acutely concerned not only with human actions, but also with how those actions point to a deeper reality, the reality of a Kingdom breaking through.
Between these two poles lies the moral agenda of Christian people: the restoration of right relationships over against the ubiquitous taint of sin (starting with our own). Law has an important role to play in this project, but only if it remains oriented toward the grace-filled, redemptive work of Christ.
Looking back, I was insufficiently critical of Stuntz’s conception of the Gospel. It’s wrong, I think, to characterize Jesus’s teaching as “subversive” of the “natural order.” As Creator, God is the author of the natural order, yet because everything has been marred by sin, God is ever working to restore the goodness of his creation, not “subvert” it. At times, the Bible, and thus Jesus’s teaching, work against the selfish, sin-induced tendencies of human beings—like worshiping false gods, harming our neighbors, lying, and forsaking the poor. So Jesus teaches us to love God fully and to love our neighbors as ourselves. The aim of these commandments (and the rest that “hang” on them) is restorative—to reconcile us to God and to one another as the Image-bearers and Creation-stewards that God created us to be.
Calling the Gospel “anti-systematic” is my own 2016 gloss on Stuntz’s article, and perhaps not a faithful one. Regardless, I do not share Stuntz’s view that Christianity merely embraces “lines of critique.” To be sure, the Bible is serious about (and thus critical of) sin, but this is situated within the Bible’s larger, covenant-shaped narrative of God’s redemptive work in history. Nor do I view Jesus’s teachings as “anti-systematic” or merely critique-oriented. Rather, I view Jesus as a sophisticated legal thinker with his own well-developed, though mostly underappreciated, theory of law—or least of biblical law, the Torah. I explore some of this in the third essay in this series (forthcoming). And there’s been excellent recent scholarship on this point, including from Paul Sloan (Jesus and the Law of Moses), Logan Williams (see especially his “The Stomach Purifies All Foods: Jesus’ Anatomical Argument in Mark 7.18–19”), and Matthew Thiessen (Jesus and the Forces of Death).
You’ve packed a lot in here! Much more than my simple mind can comprehend, but I’m learning! I’m looking forward to the next parts.