Wolterstorff on Justice

Way back in 2009 I posted and then some on Nicholas Wolterstorff's Justice: Rights and Wrongs. (These posts can be accessed by going to the "Fulbright to India" link under the "Topics on This Blog" column.) Check out this short video here for a few comments from the man himself.

Forgiveness and Justification Part 1

Theology alert! This post is devoted to an issue of exegetical and systematic theology and has nothing to do with the law. For those who might find such a topic even more arcane than my usual, you have been warned.

In Justice and Love Wolterstorff takes a crack at dogmatic theology.  I have to give him credit; he doesn’t pick topics at the margins. He goes to the heart of Western theology (and especially that of the tradition into which he was born, Reformed Christianity) and tackles the doctrines of justification and election. His effort to read the epistle to the Romans afresh proves provocative on the one hand but on the other reaffirms the truism that “‘just me and my Bible’ is the shortest route to heresy.” I found his exposure of some unclear language in longstanding expressions of the doctrine of justification helpful. I cannot say the same about his proposed solution

Let’s start with the question Wolterstorff raises: If on account of faith Christians are in some sense accounted righteous, then what is the point of God’s forgiveness? In other words, if forgiveness is, as Wolterstorff defines it, “the enacted resolution of the victim no longer to hold against the wrongdoer” the wrong done” (Justice in Love at 169), then what does the guilty party need in terms of righteousness? Conversely, if human beings somehow become or are accounted righteous, then for what does God forgive them? If God forgives, Wolterstorff concludes, the question of the righteousness of the sinner (infused or imputed) is irrelevant. (If only we had some good analytic philosophers in the sixteenth century—no need for that messy Reformation!) On the other hand, if the sinner becomes or is accounted righteous, then God’s forgiveness is superfluous: there’s no need to forgive someone who’s in effect done no wrong.

Wolterstorff quotes Thomas Oden to illustrate what he takes to be theological incoherence:

[On the one hand,] God’s justifying verdict is compared to a judicial act by which God declares the sinner free from guilt—acquitted. [On the other,] the judge forgives the one who repents and believes . . . . (Justice in Love at 257)

What gives?

On any account there are plenty of biblical texts that speak of God’s forgiving sinners. But what of those many passages that also speak of God’s righteousness being revealed in some way and of Abraham’s faith being counted as righteousness? For example, “And to one who does not work but trusts him who judgment the ungodly, his faith is reckoned as righteousness.” (Romans 4:5) Is the Bible itself as incoherent as Wolterstorff claims is the Western Theological tradition? Why does it seem to teach both that God forgives the penitent sinner and that the former object of God’s wrath is now righteous?

Wolterstorff suggests an arcane answer: first, that God’s forgiveness is complete and thus no righteousness (imputed or infused) on the part of the forgiven sinner is required. Second, to make sense of the recurrent Pauline forensic metaphor—where God’s charges against sinners are resolved in their favor—I will quote Wolterstorff at length:

While fully cognizant of the fact that the person before him has done what he, the judge, hold him accountable for doing, the judge takes note of the fact that he has faith. The judge then reckons that to him as dikaiosunē. The idea, quite clearly, is that after the judge has done the reckoning, the one whose faith is reckoned to him as dikaiosunē has the same status before the law as the one who is declared innocent (dikaios) of misdeeds. (Id.  at 264)

This sounds a bit like the governmental theory of the atonement of Hugo Grotius. The sinner is not in any sense actually righteous but simply treated as if it were so. Wolterstorff elaborates on this phenomenon as follows:

What might that same legal status be—given that it is not the status of having been acquitted: The status of there being no valid charges against him—the status of being in the clear . . . by having the charges dismissed. I suggest that for God to justify the sinner on account of his faith is for God to dismiss the charges on account of his faith. (Id.)

Forgiveness trumps righteousness and the forensic metaphor is substantially recast. I’ll defer my thoughts until later.

Christians and the Conflicting Demands of Citizenship

A quote from a great piece by Nicholas Wolterstorff (Christian Political Reflection: Diognetian or Augustinian, 20 Princeton Sem. Bull. 150, 168 (1999)):

To remember only the political martyrs of the church and to forget her prayers for good rulers is to forget or ignore the fact that sometimes the church must say "Yes" to the rules--if she is to be faithful in her witness to the King who saved us. To remember only the church's prayers of thanksgiving for good rulers and to forget the martyrs is to forget or ignore the fact that sometimes the church must say "No" to the rulers--if she is to be faithful in her witness to the King who saved us.

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.

Calvin, Calvinism, and Rights

A close associate (thanks, Jeremy) referred this link to me http://www.calvin.edu/january/2009/witte.htm. It’s an hour-long lecture by John Witte, professor of law at Emory Law School in Atlanta. Two years ago Witte published The Reformation of Rights (Cambridge 2007) in which he argued that John Calvin and subsequent Calvinism were the grandfather and father of the modern understanding of human rights. Don’t let the length of his talk put you off, Witte is an extraordinarily engaging lecturer. The best parts of his comments concern the work of Geneva’s Consistory, its highest ecclesiastical court. Unlike the Lutheran reformation, the Calvinists had a high regard for the law within and without the Church (no law-grace dichotomy for Calvin). The Consistory dealt with all sorts of matters (including marriage, family, and sex), resolving most without recourse to the civil law system but referring the recalcitrant to the magistrate and his power of the sword.

However, Witte’s fundamental thesis about Calvin’s place in the history of rights seems simultaneously anachronistic and Whiggish. While Witte admits that Calvin’s understanding of rights was localized (and not universal) and theologically, indeed, scripturally grounded, his paean of praise suggests a closer connection between early-modern and post-modern rights talk than I believe a careful examination will bear. Witte’s discussion of the tight Calvinistic nexus between rights and duties (particularly early modern Calvinism’s identification of rights as means by which to perform duties) is so different from the modern conception of rights as markers of zones of personal autonomy as to call his thesis into question.

Witte’s lecture (and book) also suggests that Calvin’s discussion of rights and early modern Calvinism’s expansion of the scope of rights was sui generis, a rupture with the medieval past and without parallel in the contemporary European context. In fact, a number of Catholic legal scholars were actively developing the concept of natural rights during the 15th and 16th centuries. See, e.g., Domenicus Soto and Tomasso di Vio. See also Nicholas Wolterstorff, Justice (Princeton 2008) and James Gordley, Foundations of Private Law (OUP 2006).

The popular nature of a public lecture, the occasion of his address (“The January Series” at Calvin College, this year honoring the 500th anniversary of John Calvin’s birth), and Witte’s irenic nature all contribute to what I think is an overestimation of Calvin’s place in the story of rights in the Western tradition. The subsequent efforts of Calvinists in the Dutch Republic, England, and New England bear up much better as historical sources for human rights but Witte’s classification of the Unitarian John Adams (and even, IMHO, the Separatist John Milton) as a Calvinist undercuts even this argument.

Nonetheless, I heartedly recommend taking an hour to listen to a master of legal and cultural history at his best

Metamorphosis

Pryor Posts India is now Pryor Thoughts. It's hard to believe that I left India six weeks ago but I certainly haven't forgotten India or Indian law. I've started writing a piece comparing impossibility under Section 56 of the Indian Contract Act with impracticability/frustration under American common law. I'm scheduled to present this at the SEALS conference in Florida in August so I need to keep plugging away. I'm also helping my wife with her India scrapbook so we've been re-living our 4+ months on the Subcontinent.

Professor Rajpurohit, one of my colleagues at NLU, will be giving a paper at Seton Hall University Law School in New Jersey in November on the theme of Religious Legal Theory. I'm also scheduled to present. I plan to refine my critique of Nicholas Wolterstorff's take on the nature of the image of God and human rights. See my Fulbright to India posts for more details.