At Last!

Nearly two years ago I was part of a round-table at Pepperdine Law School to critique a series of papers to be included in a book Christianity and Private Law. We were hopeful that the collection of chapters would be published by Cambridge University Press sometime this year. Since that doesn't seem likely to happen, several of us have posted our individual chapters on SSRN or bepress. You can read mine ("Revisiting Unconscionability: Reciprocity and Justice") here.

In this post I want to direct my readers, especially sympathetic to the Reformed Christian persuasion, to download Nate Oman's chapter, "John Calvin’s Quarrel with Civil Recourse Theory." You can download it here. Cribbing from the abstract,

This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law. 

This may be a long summary but it makes a crucial point: as far as John Calvin was concerned, vindicating one's rights was an inadequate moral justification for seeking legal redress for civil wrongs. Oman canvasses Calvin's Institutes, commentaries, and extant sermons and his conclusion with respect to Calvin's position cannot be brushed aside.

Whether there is any other moral justification for the participation of an aggrieved person in tort litigation remains an open question, at least for those who take Calvin's position seriously. For such folks, however, even such alternative justifications must be measured against Calvin's conclusion on this one.