Stanley Hauerwas and the Law Part 2

Back in November I posted here about a conference held last year at Duke law school on the theology of Stanley Hauerwas and the law. There I expressed some doubt that much of use would be discovered. Given the occasional, frequently over-the-top comment of Hauerwas and his epigones (apparently known as Hauerbots in some circles), I thought that the only meaningful stance of Hauerwas toward the law would be criticism. Not that there's anything wrong with criticism, I believe it's a distinct part of the calling of Christian academics. Yet criticism alone become tiresome and seems easily to degenerate into hectoring.

But I may have been wrong. Perhaps a Hauerwasian take on the law has something to offer to those called to participate in the life of the law. At least that's the burden of David Skeel's piece, Hauerwasian Christian Legal Theory (abstract here). Skeel first identifies what makes so much of Hauerwas's writings on the law and social matters generally outré, a stance that Skeel identifies as prophetic engagement that "typically involves standing up against the violence of the state, or directly opposing the state in other ways." Skeel distinguishes the prophetic stance from the participatory in which the commentator makes positive suggestions for how a particular social problem might be solved.

Hauerwas typically assumes the prophetic stance, according to Skeel, for two reasons. First because Hauerwas locates the center of the Christian voice in the the church. Or, perhaps more specifically, as the Church. The Church bears witness of God's redemption of the world; it doesn't exist to make the world run more smoothly. After all, there's something profoundly and deeply wrong with the world that makes its redemption necessary. In turn, this suggests that helping the the modern liberal state help itself along the path of perdition is hardly the Church's calling. Even worse, providing that state (or any other) with a justification for its idolatrous self-sufficiency is contrary to the Church's calling.

Secondly, the Church lacks what could be called the institutional competence to give useful advice to the modern state. The work of the state in the modern political order is simply too complex for the Church as an institution to provide detailed policy advice. The question of at exactly what rate should capital gains be taxed not only presumes the legitimacy of market capitalism--a presupposition Hauerwas believes the Church should question--but is not the kind of question that the Church could meaningfully answer. To the extent the Church functions as a policy think tank it becomes, in Hauerwas's terminology, invisible, like the Social Gospel movement of the early twentieth century.

Skeel does a fine job, however, of teasing out the occasions when Hauerwas has taken a participatory stance, and how those examples might guide the Church with respect to other issues. Hauerwas's two forays, albeit rather limited, into political  participation have been the Civil Rights Movement and abortion. The Civil Rights Movement garners Hauerwas's blessing principally because of its church-centeredness. The Church was not co-opted by politics, it stood with those who themselves were excluded from the political process and did so as the Church, not as a political player. Of course the Civil Rights Movement was also a political movement and involved more than the Church but apparently for Hauerwas the balance was sufficiently opposed to the ways of the world and the American political order as it then existed to justify a participatory stance.

Hauerwas's blessing of the participation of the Church in the politics of abortion are nuanced. At the outset he criticizes the unipolar view of those who advocate the sanctity of life. After all, he asserts, life is not the ultimate value; such a position is more Kantian than Christian. Yet he concludes that "the Christian prohibition of abortion is but the negative side of their positive commitment to welcome new life into their community." In other words, openness to God's work of redemption in the world should make us open to inviting all to join his work, and that includes those not yet born. Even here the voice of the Church should be first internal, encouraging its members to take time for all their children, and secondarily by supporting those outside the Church who are so heavy-laden that their children seem like burdens. Only then should the Church decry the state's failure to protect life.

In the end, Skeel finds much to commend in Hauerwas's advocacy of only a limited role for social-political engagement by the Church. I find much good in such an approach as well but with one large caveat: both Hauerwas and Skeel, it seems, limit their understanding of the Church to the organism, i.e., the body of Christ manifest in the preaching of the Word and the administration of the sacraments. Is the biblical understanding of "Church" so limited? In other words, might "Church" comprise both the organism whose public role should be quite tempered and more broadly Christians who, as such, play a role in whatever polity they find themselves? The Kingdom of God, maybe?  Grist for another post.

State Bankruptcy

Just in time for Labor Day, David Skeel (noted here and here) has finally published a full-length article on the case for a new chapter of the Bankruptcy Code to permit individual American States to reorganize their financial affairs. Titled States of Bankruptcy, you can find its abstract here. Even though the relentless (and repetitive) American 24-hour news cycle no longer features the risk of State insolvency, we shouldn't mistake silence for success.

By narrowly-focused budget cuts (e.g., Wisconsin), substantial tax increases (e.g. Illinois), and better-than-expected increases in tax revenue (e.g., Virginia), American States dodged the bullet that hung over the heads of many of them earlier this year. However, the rapid slowdown of the anemic recovery from the Great Recession augurs ill for the continued success of such haphazard means; American States are out of Get Out of Jail Free cards.

And none of the list of one-shot items of short-term relief have addressed the dark nemesis that hangs over most of the States (and the federal government as well): unfunded pension liabilities. Combine one part of expectations for slow long-term economic growth with another of a greying American population plus a third of generous but unfunded pension promises and we have a recipe for deferred disaster.

Skeel argues that a voluntary regime of modification of enforceable obligations would spread the pain of Sate insolvency among all constituencies: taxpayers, current employees, retirees, and yes, even bondholders (creditors). Skeel also addresses, to my satisfaction anyway, six of the leading objections to creating a forum for State bankruptcy.

States of Bankruptcy is sufficiently long to put off all but those with a serious interest in the subject (policy wonks and academics). The rest of us should at least tuck it away for the day when the topic works its way back up through the news cycle.

"The Mosaic Law in Christian Perspective"

Another article has been posted to SSRN by two authors whose work, albeit in very different fields, I have long appreciated. David Skeel, who teaches law at the University of Pennsylvania, and Tremper Longman, who teaches theology at Westmont College, have co-authored The Mosaic Law in Christian Perspective. You can find it here.

The article is only 20 pages so don't expect analytic depth. I found it generally correct because the authors largely agree with me. (All of us draw extensively on Christopher J.H. Wright's Old Testament Ethics for the People of God (IVP 2004).)

Two applications suggested by the authors stand out. First, their critique of the "Jubilee 2000" campaign, which sough to apply the biblical principle of individual debt forgiveness in ancient Israel to contemporary international debt. Dead on. Second, their tentative support for some form of domestic partnership law in lieu of gay marriage that Longman and Skeel ground in the claim that "the Mosaic law suggests that blanket condemnation of existing cultural norms is not always the appropriate response." Well sure, but ...

In short, this piece is a good starting point for those who, like most Christians, have given little or no thought to the place of the Mosaic law in the contemporary world; something that pre-law students should read. On the other hand, it won't go far toward making use of the Mosaic law acceptable in the secularist academy nor do much of the heavy lifting that is required to acutally apply the Mosaic law to contemporary legal matters. But such were not the aims of this piece so it can stand as the impetus for others to get to work.

Religious Legal Theory Conference

Back from last week's conference hosted by Seton Hall Law School on "Religious Legal Theory: State of the Field."  Many Christian (Catholic and Evangelical) and Jewish scholars as well as a Muslim and a Buddhist professor spoke.  Sadly, my colleague M.S.Rajpurohit form NLU-Jodhpur at the last minute was unable to make it.  Rob Vischer's (University of St. Thomas) and Amy Uelmen's (Seton Hall) addresses greatly impressed me.  I'll work Amy's comments on a Trinitarian theory of the (lack of a) duty to render assistance in Torts will find its way into my discussion next semester of mitigation of damages in Contracts.

I was pleased that nothing Zach Calo (Valparaiso) said about human rights contradicted what I planned to say.  I worked with Nick Wolterstorff ("Justice: Rights and Wrongs"--see many of my pryorpostsindia blog entries) and Alan Jacobs ("Original Sin: A Cultural History") to provide an account for primary and secondary human rights as well as spreading the forums for vindication of violations of human rights across multiple jurisdictions.  Several good questions and suggestions from the audience.

Bottom line: even though, as David Skeel (UPenn) pointed out, the elite law reviews resist publishing distinctively Christian legal scholarship, plenty of it is happening by many folks at a variety of law schools.  Props to David Opderbeck and Angela Carmella for making this conference happen.