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.
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.
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.
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.
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.
The Gospel is anti-systematic, 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.
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.