Radical Christian legal theory, part 3: Bearing witness through law

Evangelicals love to talk about the “culture wars,” usually with some mixture of zeal and disdain. I wish we could dispense with the term. It frames our moral agenda all wrong. Christians aren’t called to be at war with their culture. We’re called to be witnesses to the Kingdom of God – in our worship, words, and deeds.

I don’t doubt that bearing witness sometimes feels like war. Jesus promised, after all, that we would have trouble in the world. But rather than fight back, He urged us to “be encouraged” because He has already won the battle – “conquered the world,” as He put it – through His death and resurrection. As evangelicals, we need to focus less on fighting a war with our culture, and more (much more) on following the way of the cross.

But however we frame our moral agenda, a dilemma remains. For evangelicals, activism has long been a key feature of our faith. Whatever the cause – from abolition of slavery to ending human trafficking, from women’s suffrage to respect for life  – evangelicals have been among the country’s most passionate advocates of social change. Indeed, the very definition of “evangelical” includes this sort of Gospel-grounded activism.

But activism often gives rise to moralism, the insistence that our moral preferences be enshrined in law. This conceptual move – from social concern to legal coercion – is easy to make. If X is wrong, then X should be illegal, right? There’s undeniable logical force to that intuition, and most Americans, certainly most evangelicals, think this way.

Christians are called to think critically – which is to say, Gospel-centricly  – about our moralist instincts. As Christians, is our moral agenda always a legal agenda? Is it ever? When we link our social cause to the coercive powers of the state, are we being faithful witnesses to a Gospel that insists on “foolish[ness] … to shame the wise” and “weak[ness] … to shame the strong” (1 Cor. 1:27)?

These are questions that legal scholar William J. Stuntz takes up in his seminal essay “Christian Legal Theory.” They form Part 3 of this series exploring the theoretical and theological underpinnings of a Gospel-centered theory of law. (Part 1, “Law, Gospel, and foolishness” laid the groundwork for this discussion. Part 2 covered “Justice for the poor.”)

How then shall we legislate?

Let’s get something out the way at the outset. The question here is not whether we should “legislate morality.” This is hardly a useful approach to the issue. All law is normative, which means all law has moral content. When law ceases to be normative in this way, it ceases to be law and becomes only a will to power, a tool of oppression to be wielded by whoever happens to hold the scepter of public authority. Law devoid of moral content is tyranny.

At some point, everyone’s a moralist. Everyone has a list of moral wrongs they think should be legally punished and moral rights they think the law should encourage, permit, and secure. (Indeed, at its root, what is the democratic process but an attempt to peacefully reconcile competing moralistic visions for society?) The question, then, is not whether we should “legislate morality,” but what kind of morality we should legislate.

Stuntz argues that the proper Christian approach to this issue is legal agnosticism, particularly when the relevant moral principles are contested. When the public is divided over what’s right and wrong, Stuntz insists we should “err on the side of freedom rather than legal restraint.” In his view, we shouldn’t forbid, or at least we shouldn’t criminally punish, “behavior that a large fraction of the populace thinks is morally permissible.”


The question is not whether we should “legislate morality,”
but what kind of morality we should legislate.


As a concrete example, Stuntz offers up the morally charged fight over abortion. He thinks this issue is a “good candidat[e] for legal compromise, for solutions that do not award total victory to either side.” Moralists should be seeking to persuade, not legally coerce, targeting the culture instead of the law.

Stuntz tries to ground his legal agnosticism in both Scripture and history. First, he suggests that in the Sermon on the Mount, Jesus’s definition of sin was so expansive as to make true moralism impossible. Society might aspire to punish all murder and adultery, but it could not feasibly punish anger and lust (see Matt. 5:21-28). By defining sin “so radically,” Stuntz says, Jesus removed any justification for a legal regime that seeks to forbid all sin.

Second, Stuntz asserts that historically, “[l]egal prohibition of morally contested behavior has not been a successful strategy,” pointing to the 19th century fight over slavery. Slaveholders won many of the legal battles: the Kansas-Nebraska Act of 1854, which opened new territories to slavery, and the infamous Dred Scott decision, which opened all territories, even free states, to slavery. Yet in each case, legal victory led to political defeat for slaveholders. Kansas-Nebraska gave birth to the Republican Party, and Dred Scott spurred the election of the first Republican president, Abraham Lincoln, who would later write the Emancipation Proclamation.

Stuntz’s essential argument is that moralism is counterproductive and self-defeating, that unwelcome legal coercion is often a flashpoint and catalyst for political and social change. I don’t find this argument compelling, though. Worse, I do not think it’s fully faithful to the Gospel.

Jesus’s legal theory: moral seriousness about law

To begin, I think Stuntz gets Jesus’s teaching in Matthew 5 precisely wrong. When Jesus connects murder to anger and adultery to lust, He’s drawing on the familiar rabbinic concept of “drawing a hedge” or “building a fence” around our legal obligations. It’s wrong to murder, and to avoid committing that sin, we should also avoid things that, while not murder themselves, might lead to it – like anger. It’s wrong to cheat on your spouse, and to avoid committing that sin, we should also avoid things that, while not adultery themselves, might lead to it – like lust.

Most people grasp this concept intuitively. If you’re dieting, you shouldn’t keep cheesecake around the house. Seeing the cheesecake and having it around, of course, aren’t cheating, but they certainly make cheating more likely. So you toss it.

This principle of “building a fence” is familiar to modern jurists. In the First Amendment context, courts routinely strike down laws that, while not directly inhibiting speech, threaten to “chill” it, i.e., reduce the amount of speech or make people reluctant to express their views. Both Jesus in the first century and judges in the twenty-first are making the same jurisprudential move: they’re using a prophylactic rule to protect a more important legal principle.

If there’s a lesson from Matthew 5, it’s that we need more law, not less, at least when we’re protecting paramount interests like human life and marital faithfulness. And here’s the connection to abortion. If murdering a human being is wrong, the law should be such that we avoid even the possibility of wrongfully taking a life. So even if we’re not sure whether a fetus is a human person, we should “build a fence” – we should protect it. We shouldn’t draw our legal obligations so narrowly that we risk transgressing the moral principles at the heart of the law.

Contrary to Stuntz, then, I read Jesus in Matthew 5 as demanding moral seriousness about law, not agnosticism and compromise.

Second, I don’t think Stuntz has the right read on 19th century history. Slaveholders and abolitionists both used legal coercion to achieve their social and economic goals. Abolitionists, after all, wanted to ban slavery and racial segregation and to back up those prohibitions with the force of law. And in the end, the abolitionists won. The aftermath of the Civil War brought the 13th Amendment, which outlawed slavery and involuntary servitude everywhere in the United States. It also spurred the enactment of civil rights laws that allowed private citizens to sue public officials for the deprivation of constitutional rights. The motivation for these laws was clear: “to restore peace and justice to the [South] through the subtle power of civil enforcement” (Wilson v. Garcia). It was law doing the powerful work of social change, even though the American public was still deeply divided about the relevant rights and wrongs.


If there’s a lesson from Matthew 5, it’s that we need more law, not less, at least when we’re protecting paramount interests like human life.


It’s hard to read Stuntz’s insistence on legal agnosticism as anything other than a passive wait-and-see approach: “only after society comes around, then see to the necessary legal reforms. In the meantime, compromise.” But doesn’t that only prolong injustice? Aren’t some social ills simply too grave and too urgent?

Stuntz’s agnosticism about law creates a systematic bias that should trouble anyone with a conscience. If law should stand down whenever moral principles are publicly contested, then law will always give way whenever social wrongs can be recast as civil rights.That’s the logic that underlies both Dred Scott and Roe v. Wade – decisions that will live in infamy – and Stuntz’s approach has no real answer to them. His legal agnosticism would consistently favor a freedom to harm over a conscientious demand for justice as long as public opinion remains divided.

Christian activism: a signpost of God’s redemptive work

For Christians, the trouble with Stuntz’s legal agnosticism goes even deeper: it allows culture to dictate our moral witness. It counsels compromise whenever our calls for social change lack cultural currency. But that is not the role of the church in society. We are not called to be simply another social institution – negotiating, bargaining, lobbying, jostling for power and influence, brokering compromises to get “our way.” The church is something else entirely. It must be a signpost for the arriving Kingdom of God. It must be, in Eugene Peterson’s phrase, “a colony of heaven in the country of death.”

We must be ever bending society toward justice and the common good, recognizing that God is working in and through His people, and through history, to accomplish His redemptive purposes. In their social activism, Christians must align themselves with that work first, foremost, and finally, always “preparing the way” for God (Is. 40:3). Sometimes that will mean legal and political victory. But sometimes – and maybe more often – it will mean sounding a prophetic voice in the cultural wilderness.

When social desolation is all around us, our task as Christians is not to settle down in the desert. It’s to build a highway through it, to “make straight” a path for the renewing, restorative work of God in Christ. It’s no coincidence that the prophets speak of law and justice in this way:

Behold, a king will reign in righteousness,
  and princes will rule in justice.
Each will be like a hiding place from the wind,
  a shelter from the storm,
like streams of water in a dry place,
like the shade of a great rock in a weary land.

(Is. 32:1-2).

As Christians, then, this should be our model for social activism: moral seriousness about the law, grounded in the work of Christ at the cross, pointing ever and always to the Kingdom He is quickly ushering in.

 

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