The "Ugly Head" of Justice

Click here for a short clip from Judge Frank Easterbrook. Really. It's only a minute 39 seconds and it's rare to see a judge at such a senior level (United States Court of Appeals for the Seventh Circuit, sitting in Chicago) demonstrate such passion.

Justice is an "empty concept," it has "no content," and Judge Easterbrook is furious whenever it rears its "ugly head."  Well, other than that Mrs. Lincoln, how did you enjoy the play?

Several thoughts. First, there's not a whole lot than can be argued cogently in 99 seconds, and we should cut Easterbrook some slack for failing to provide a well-rounded demonstration for his conclusion that justice has no place in contract law. But Easterbrook is really bright and he provides enough of an argument to criticize.

First is the question of legitimacy. If contract law (not necessarily the social practice of bargaining for the exchange of goods and services) has no connection to justice, why are we willing to expend public resources to interpret contracts and ultimately utilize public officials to vindicate a judgment that a contract has been breached? I pursued the answer to the "legitimacy question" at length here. For Easterbrook the answer would run along the line that state sanctions for breach of contract increase public welfare (i.e., wealth maximization is the chief end of the law); he's a rule-utilitarian. But who says that wealth maximization should be the purpose of the law? In any event, for Easterbrook, without coming out and saying so explicitly, a net increase in public welfare amounts to justice, and I believe a reading of some of his opinions confirms this to be the case.

Second, long-established rules of contract law incorporate substantive conceptions of justice. At the front end are defenses to contract formation like fraud, mistake, duress, and the like. We can see midstream justice-oriented rules like the doctrines of implied terms, constructive conditions of exchange, material breach, impracticability/frustration, etc. Finally, at the back end, so to speak, we see limits on remedies and excuse of conditions that would otherwise constitute a forfeiture. Party autonomy (what I prefer to call liberty; take a look here) may get the contractual ball rolling but the "ugly head" of justice is threaded all along the way to judicial enforcement. And lest we forget, the law has long provided a remedy "off the contract" for parties who "unjustly enriched" (oh, the horror!) another in connection with a failed contract. (Quantum meruit, anyone?)

But what of Judge Easterbrook's concerns that courts might impose one of a variety of competing conceptions of justice to re-write the parties' agreement? What of it? Judges make foolish decisions all the time and we don't therefore get rid of the office. For what it's worth, justice (specifically its commutative form) is the formal cause by which courts have the authority (not merely the power) to vindicate breached contracts with a legal remedy. Enforcing that to which the parties agreed (cabined by the sorts of doctrines noted above) is the just thing to do.

More could be said but I hope this is enough.

Renewed Parts 5 to 7. From Racism to Afghanistan

Westminster Reformed Presbyterian Church's Renew Conference featured a number of breakout sessions in addition to the plenary speakers. I attended three: Camille Lewis on racism in the history of Evangelicalism, Hayden Hill on "social justice" close at home (human trafficking in southeastern Virginia and beyond as well as ethical shopping), and Larry Lewis (no relation to Camille) on Christ and war (ethics and law relating to minimizing civilian casualties).

These workshops ranged from excellent to superb, just don't ask me which was which. Who knew that the second incarnation of the Ku Klux Klan was part of revivalism in the 1920s and 1930s? (Check Camille's blog here.) Or that sex trafficking is a growing problem close to home? Or that there is no necessary trade-off between reducing civilian casualties and preserving lives of American servicemen?

More could be written but suffice it to end with kudos to the organizers of and presenters at the Renew Conference. It was more than a worthwhile time; it was challenging, edifying, and occasionally even exasperating--just what a conference should be. I'm already looking forward to next year.

Renewed Part 4. World-and-Life View Thinking: Threat or Menace?

Warning: On the longish side.

Carl Trueman wrapped up Westminster Reformed Presbyterian Church’s Renew Conference Saturday morning with an address on whether Christianity is a world-and-life view. In brief, Trueman’s answer was that there are multiple Christian world-and-life views, as many as there are Christian traditions. World-and-life views (worldviews for short) are, for Trueman, so inextricably bound up with doctrine as to make any generic worldview something to be eschewed. Pan-denominational worldview thinking is dangerous because it undercuts doctrinal truth by substituting pragmatic results. In short (and in my words), worldview thinking is evangelical in the peculiarly American sense of the term. Contrasting with Trueman’s commitment to confessional orthodoxy, worldview thinking will always come up short.

Trueman cited several examples from recent history in support of his characterization of worldview thinking as a cover for evangelical pragmatism. First is the about-face in the evangelical reaction to Roman Catholic candidates for president of the United States. In 1960, evangelicals were opposed to John F. Kennedy because they thought he might be “too Catholic” and put loyalty to the Pope above the loyalty to the Constitution. Fast forward to 2004 when evangelicals were opposed to John F. Kerry because they were concerned that he wasn’t Catholic enough. What happened over those 44 years according to Trueman? Morality—in terms of opposition to abortion—had come to trump doctrine. Not that abortion isn’t a great evil. And not that there should not be civic cooperation between evangelicals and Roman Catholics on issues like abortion. Only that such cooperation should not be couched in terms of a generically Christian worldview. Protestant and Catholic common opposition to abortion, according to Trueman, comes not from a common worldview but in spite of different worldviews.

In addition to evangelical and Catholic rapprochement along pragmatic grounds covered by the fig leaf of worldview, Trueman pointed to the appointment of the devout Roman Catholic Dinesh D’Souza as president of The King’s College in New York City, a Protestant institution. Such an appointment could be explained from Trueman’s point of view only because of shared conservative political beliefs, fleshed out in terms of an abstract “worldview.” Worldview cast at a level of generality sufficiently high that it can be shared by Catholics and Protestants cannot do the heavy lifting necessary to run a college so for Trueman it must be political pragmatism, and not worldview, that provides the unifying core for a place like King’s.

Lest it be thought that Trueman casts bric-a-brac only at Protestant/Catholic pragmatic ventures, he leveled the same sort of criticism at the thoroughly Protestant Gospel Coalition whose members agree to disagree about important doctrinal matters such as baptism but must share a complementarian view of gender roles in the Church churches. Trueman didn’t have time to address how it is that there can be a common civic platform among doctrinally discreet ecclesial bodies but one can assume it has to do with a “two-kingdoms” approach. (See some of my many posts on two- vs. one-kingdom thought here, here, and here.) Had Trueman reached this topic I would like to have asked him if the two-kingdom approach amounts to a worldview. I suspect the answer would have been, “No, it’s a doctrine of the Church,” but that’s a hard claim to substantiate given the diversity of opinion on the subject within a denomination as small as even the Orthodox Presbyterian Church, Trueman’s ecclesial home in America.

As one who prefers to identify himself as a confessional Protestant instead of evangelical, I find much to like about Trueman’s critique of worldview thinking. From my observation far, far too much that passes for worldview thinking is an excuse for not thinking. Pigeon-holing those with whom one disagrees as modern, pre-modern, or post-modern is certainly not the same as actually coming to understand what she or he is saying. As Mark Steiner noted earlier, evangelicals must earn the right to be heard in the public square and sloppy, simplistic worldview categories simply won’t cut it.

Yet I don’t believe sectarianism is the answer. Narrowing world-and-life view to ecclesiastical doctrine leaves too much of the world out of the picture. Even a tradition with as robust a set of doctrinal statements as the Orthodox Presbyterian Church cannot find the answers to all of life’s persistent questions therein. Surely there is some level of “worldview” specificity below the broad categories of creation, fall, redemption, and consummation but above the specifics of the Westminster Standards from which we can begin the process of analyzing and critiquing modern culture and the world of ideas. At least I hope so since the Westminster Standards have only so much to say about my field of the law—contracts. And although I may be wrong, I believe my scholarly writing and teaching substantiates that conviction that such a middle level exists.

All in all, much grist for the mill. I certainly enjoyed Trueman’s provocative ideas, straightforward explanations, and earnest demeanor. I learned much and at the least my own thinking has been sharpened.

Renewed Part 3. The Rhetoric of Faithful Witness

Mark Steiner led off the first morning session of Westminster Reformed Presbyterian Church's Renew Conference with a lecture entitled "'Faithful Witness' As a Model for Faith and Politics." Far less intense a rhetorical exercise than his comments from the previous evening. (See my thoughts about it here). Steiner’s features for such a faithful witness are well taken. Christian political engagement should be characterized by (1) modesty (about ourselves, what we can know for certain, the limits of persuasion, and what we can expect from the political process); (2) a primary concern for truth and God’s glory; (3) an embrace of complexity and mystery; and (4) respect for the importance of ethos (IOW, the right to be heard must be earned).

Steiner  reminded his audience or the reality that we are finite and affected by sin as well as the necessity of compromise in the political process and the risk of co-optation by far more shrewd political operatives. He lobbed a few grenades in toward Scottish Common Sense Realism (we can know the truth by simply “reading-off” our sense perceptions of nature and, in its evangelical guise, by simply reading the Bible) but left me wondering about his epistemological commitments; too much a rhetorician may not be a good thing. In fact, Steiner’s subsequent invocation of the outspoken Christian Civil Rights leader Fannie Lou Hamer as an example of one committed to truth and God’s glory puzzled me. Hamer doesn’t quite fit Steiner’s model Christian political activist; I’m sure she seemed neither modest nor one committed to “mystery and complexity" by Lyndon Johnson or Hubert Humphrey in 1964. (Check the “Democratic National Convention” heading on the Fannie Lou Hamer Wikipedia page here.) Steiner needs to do a little work relating points (1) and (2).

For Steiner, “embracing complexity and mystery” finds its foundation in the narrative model of knowing while his last point means that we must understand the arguments of others better than they do if we want to persuade rather than hector. To be sure we know only in part but I don't want to concede that we can't know. While we will never know everything about anything, that doesn't mean we can't know some things with certainty.

I still left concerned about Steiner’s conclusion that Christians, even in the political sphere, should worry less about political work than sharing what we have with others. That the process is what really matters. One hopes that folks can do well in both, getting the policy right and winsomely sharing in the process. One need not be a contemporary culture warrior to believe there are better and worse solutions to political problems.

Finally, I had suggested in my previous Steiner post that Paul's summary Christian confession "Jesus in Lord" had and has political implications. Caesar was Lord for Paul's Roman audience and YHWH was Lord for his Jewish readers. The Christian confession that Jesus was Lord was treason to Roman ears and blasphemy to Jewish ones. Jesus' earlier statement to render to Caesar what is Caesar's and to God what is God's made the same point. Caesar had his limits and so does the modern civil state. That Jesus is Lord is Lord continues to rebuke both the hard totalitarianism of certain regimes like North Korea but also to softer ones whose creeping scope of government authority continues to crowd out all competitors.

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Renewed Part 2. Rhetorical Irony

Dr. Mark Steiner was the second the two keynote speakers at Westminster Reformed Presbyterian Church's Renewal Conference Friday night. You can read a blub about Steiner here. Steiner is a professor of communication, rhetoric back in the day, and took a rhetorical tack to his analysis of contemporary Christian political action. Appropriate Christian engagement in politics "is less about substance" than it is about "who we are." In other words, it's not what we say that's important but how we say it. Gotta wonder what Carl Trueman thought, with his emphasis on the purity of the Church and such.  But back to Steiner.

Steiner used Bartholomew and Goheen's The Drama of Scripture (Baker 2004), a biblical-theological approach to the Bible drawing heavily on N.T. Wright's more academic version of the same, as his jumping-off point.

Starting with a bang (rhetoric in action),Steiner criticized contemporary evangelicals for their Pharisaism. Taking his notes from Bartholomew and Goheen, Steiner identified four leading concepts of first-century Pharisaism with respect to the Kingdom of God: it was temporal (to be here and now, not in the future); the Kingdom was to be political in nature (which indeed it is, but more about that later); the Kingdom was to come in a straight-line, formulaic fashion; and finally, the Pharisaic understanding was, in Steiner's words, therapeutic, i.e., the hoped-for immanent temporal arrival of the Kingdom of God made the politically impotent Jews of first-century Palestine feel good.

Concurrent with his list of Pharisaic proclivities, Steiner compared contemporary evangelical political activity to what he perceived as their first-century brethren. In short. American evangelicals believe that the future aspect of the messianic Kingdom will arrive through political action; that their belief in a one-time-but-now-lost Christian America is a myth; that Pharisee-like formulaic thinking leads to anti-intellectualism; and that the purpose of evangelical boundary-drawing is to make themselves feel good (hasn’t Steiner heard of Rob Bell?).

I suppose two or three out of four isn’t bad but rather than interacting with Steiner point-by-point I suggest that the purpose of his address was to embody what he criticized and thus to encourage a cathartic rejection of contemporary evangelical political action, at least in its conservative form. In other words, it was “less about the substance” of what Steiner said than it was about “who he was.” And “who he was” was a sort of reverse evangelical political activist. An inverted evangelical Stephen Colbert. Pretty cute but it remains to be seen if he employs the same shtick today.

Renewed Part 1. A Church Historian Looks at the Church & Politics

Tonight's Westminster Reformed Presbyterian Church Renewal Conference lead-off speaker was Carl Trueman (see earlier post here). As he had stated in his book, Republocrat, Trueman's thesis was the danger that the American evangelical church would be reduced to a took in contemporary cultural and political conflicts and would, in turn, lose sight of the message of the gospel. The reality that the broadly Christian culture that had once prevailed in Western Europe has disappeared and will be gone from American in the next 50 years. Two common responses--despair or histrionics--are equally unhelpful, Trueman argued. Trueman suggested that instead of giving up and retreating into sectarian enclaves or throwing in their lot with a particular party and fighting to the bitter end, evangelicals would be better served by looking at how the Church dealt with an even more precarious position during the days of the Roman Empire.

Trueman noted that three aspects of the dominant first century Greco-Roman culture and political system were particularly challenging to the early Church: its syncretism, the civic function of Roman religion, and its pragmatic understanding of that religion. In addition to these ever-present burdens on Christian belief and practice were the culture's anti-Christian values, notably regarding sexual mores, and the empire's occasional open hostilities in the form of sporadic but intense persecutions. The first four of these matters are, according to Trueman, characteristic of contemporary American culture while political oppression remains in the future.

Turning to the Pauline correspondence, primarily the Pastoral Epistles, Trueman teased out what he sees as Paul's response to these pressures and suggests that evangelicals follow them today. Sexual libertinism in the Church was met with a firm Pauline "no," which carries equal weight today. The physical persecution meted out to Paul was, in turn, met most notably with the injunction in 1 Timothy to pray for those in authority so that the Church would be left in peace to preach the gospel. Notable by its absence from Paul's correspondence was any suggestion that the Church or Christian individuals seek some sort of political solution for their situation. Even more significant for Trueman was the Apostle's recurring emphasis on the threat to the Church of internal heresy and false practices to which the Apostolic response was to remind the Church to appoint good leaders. The real problem did not come from outside the Church but from within; the primary struggle is for ecclesiastical purity not cultural reform.

With a quick nod to the work of the Greek Apologists and a reference to the similar epistolary Prefaces to each of the editions of John Calvin's Institutes of the Christian Religion, Trueman argued that the Church has historically followed Paul's example to focus inwardly and look for little in the way of cultural change.

Of course there's only so much that can be done in 45 minutes but one might hope for a more balanced approach to the topic of the relationship of the Church to the world of politics. One might be forgiven for wondering if Trueman in his role as vice president of academic affairs (and now provost) of Westminster Theological Seminary is aware of what the New Testament faculty is teaching. I doubt that they are quite so ecclesially-centric as Trueman posits the New Testament teaches. Unless there's been a remarkable about-face, I suspect that those who work with the text and theology of the New Testament (rather than the history of the Church) find its center in the Kingdom of God. And what of the Old Testament? Does it have nothing to say to Christian political ethics?

Even the history of the Church suggests a far more robust role for Christian political action. One doesn't need to raise tradition to the level of Scripture to understand that it was the Church around which Western civilization was reorganized after the fall of Rome. And it was the Church that successfully fought for its independence from Medieval political powers in the Gregorian Revolution. And it was Calvin's immediate followers who led the political fight for many civil and political rights; and it was Trueman's English (and theological) forbears who lopped of the head of Charles I in the seventeenth century.

None of these criticisms of Trueman's limited remarks should be taken to justify current Christian political action. The willing co-optation of American evangelicals by the Republican Party is embarrassing at best and syncretistic at worst. From what I can see, the typical evangelical (at least those over 40) believes in American capitalism and property rights with every bit as much fervor as he or she believes in the Trinity and its implications for social order. All of which should not cause us to deny that the Christian faith has political implications. After all, it was the same Apostle Paul whom Trueman cites for quietism who also penned the words, "Jesus is Lord," which were politically explosive in their day (and should be today).

Trueman's critique of contemporary American evangelical political action is spot on. However, his truncated understanding of the scope of Christ's Kingdom is not the solution. A far better one would be to take seriously Christ's claims of cosmic authority as well as to acknowledge the complexity of appropriate modern political and social action.

Not Quite Friday Night Live

Tonight begins Westminster Reformed Presbyterian Church's Renew Conference. (Read about it here; you can register at the door.) The title of the conference, Voting for Jesus: Engaging Politics With the Gospel, suggests that it will be interesting if not exciting. I posted about the book by one of the keynote speakers here. Suffice it to say that remarks of a politically middle-of-the-road Englishman in a  right-of-center community should stir up some controversy. But there's lots more going on so I hope to blog about each of the plenary speakers as well as any of the break-outs I attend.