FROM LEGAL POSITIVISM TO INTERDISCIPLINARY LEGAL STUDY

So wrote Yale law professor Grant Gilmore, to conclude his Ages of American Law. The book was published in 1974, just at the end of the ‘age’ of legal positivism. Gilmore crafted this catchy couplet to capture the pessimistic view of law, politics and society made popular by the American jurist and Supreme Court Justice Oliver Wendell Holmes Jr (1841–1935). Contrary to the conventional portrait of Holmes as the sage and sartorial ‘Yankee from Olympus’,Footnote ⁷ Gilmore portrayed him as a ‘harsh and cruel’ man, chastened and charred by the savagery of the American Civil War and by the gluttony of the Industrial Revolution. These experiences, Gilmore argued, had made Holmes ‘a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and the weak’.Footnote ⁸ The cruel excesses of the Bolshevik Revolution, the First World War and the Great Depression in the first third of the twentieth century only confirmed Holmes in his pessimism that human life was ‘without values’.Footnote ⁹

This bleak view of human nature shaped Holmes' bleak view of law, politics and society. He regarded law principally as a barrier against human depravity – a means to check the proverbial ‘bad man’ against his worst instincts and to make him pay dearly if he yielded to temptation.Footnote ¹⁰ Holmes also regarded law as a buffer against human suffering – a means to protect the vulnerable against the worst exploitation by corporations, churches and Congress. For Holmes, there was no higher law in heaven to guide the law below. There was no path of legal virtue up which a man should go. He saw the ‘path of the law’ as cutting a horizontal line between heaven and hell, between human sanctity and depravity. Law served to keep society and its members from sliding into the abyss of hell; but it could do nothing to guide its members in their ascent to heaven.

Holmes was the ‘high priest’ of a new ‘age of faith’ in American law, Gilmore wrote with intentional irony, which replaced an earlier era dominated by the Church and the clergy.Footnote ¹¹ The confession of this new age of faith was that America was a land ‘ruled by laws, not by men’. Its catechism was the new case law method of the law school classroom. Its canon was the new concordance of legal codes, amply augmented by New Deal legislation. Its church was the common law court, where the rituals of judicial formalism and due process would yield legal truth. Its church council was the Supreme Court, which now issued opinions with as much dogmatic confidence as the divines of Nicea, Augsburg and Trent.

This new age of faith in American law was in part the product of a new faith in the positivist theory of knowledge that swept over America in the later nineteenth and twentieth centuries, eclipsing earlier theories of knowledge that gave religion and the Church a more prominent place. In law, the turn to positivism proceeded in two stages. The first stage was scientific: inspired by the successes of the early modern scientific revolution – from Copernicus to Newton – nineteenth-century American jurists set out to create a method of law that was every bit as scientific and rigorous as that of the new mathematics and the new physics. This scientific movement in law was not merely an exercise in professional rivalry. It was an earnest attempt to show that law had an autonomous place in the cadre of positive sciences, that it could not and should not be subsumed by theology, philosophy or political economy. In testimony to this claim, American jurists in this period poured forth a staggering number of new legal codes, constitutions, legal encyclopaedias, dictionaries, textbooks and other legal syntheses that still grace, and bow, the shelves of our law libraries.

The second stage of the positivist turn in law was philosophical. A new movement – known variously as legal positivism, legal formalism and analytical jurisprudence – sought to reduce the subject matter of law to its most essential core. If physics could be reduced to ‘matter in motion’ and biology to ‘survival of the fittest’, then surely law and legal study could be reduced to a core subject as well. The formula was produced in the mid-nineteenth century, most famously by John Austin (1790–1859) in England and Christopher Columbus Langdell (1826–1906) in the United States: law is simply the concrete rules and procedures posited by the sovereign and enforced by the courts. Many other institutions and practices might be normative and important for social coherence and political concordance, but they are not law. They are the subjects of theology, ethics, economics, politics, psychology, sociology, anthropology and other human disciplines. They stand, in Austin's apt phrase, beyond ‘the province of jurisprudence properly determined’.Footnote ¹²

This positivist theory of law, which swept over American law schools from the 1890s onward, rendered legal study increasingly narrow and insular. Law was simply the sovereign's rules, and legal study was simply the analysis of the rules that were posited and their application in particular cases. Why these rules were posited, whether their positing was for good or ill, how these rules affected society, politics or morality were not relevant questions for legal study. By the early twentieth century, it was common to find American law schools separated from other parts of the university with their own faculties, facilities and libraries. It was common to read in legal textbooks that law is an autonomous science, that its doctrines, language and methods are self-sufficient, that its study is self-contained.Footnote ¹³ It was common to think that law has the engines of change within itself; that, through its own design and dynamic, law marches teleologically through time, ‘from trespass to case to negligence, from contract to quasi-contract to implied warranty’.Footnote ¹⁴

Holmes was an early champion of this positivist theory of law and legal development. He rebuked more traditional views with a series of famous aphorisms that are still often quoted today. Against those who insisted that the legal tradition was more than simply a product of pragmatic evolution, he wrote, ‘The life of the law is not logic but experience’.Footnote ¹⁵ Against those who appealed to a higher natural law to guide the positive law of the state, he cracked, ‘There is no such brooding omnipresence in the sky’.Footnote ¹⁶ Against those who argued for a more principled jurisprudence, he retorted, ‘General principles do not decide concrete cases’.Footnote ¹⁷ Against those who insisted that law needed basic moral premises to be cogent, he mused,

Despite its new prominence in the early twentieth century, American legal positivism was never without its detractors. As early as the 1920s and 1930s, sociologists of law were arguing that the nature and purpose of law and politics cannot be understood without reference to the spirit of a people and their times – of a Volksgeist und Zeitgeist as their German counterparts put it.Footnote ¹⁹ The legal realist movement of the 1930s and 1940s used the new insights of psychology and anthropology to cast doubt on the immutability and ineluctability of judicial reasoning.Footnote ²⁰ The revived natural law movement of the 1940s and 1950s saw in the horrors of Hitler's Holocaust and Stalin's gulags the perils of constructing a legal system without transcendent checks and balances.Footnote ²¹ The international human rights movement of the 1950s and 1960s pressed the law to address more directly the sources and sanctions of civil, political, social, cultural and economic rights. And Marxist, feminist and neo-Kantian movements in the 1960s and 1970s used linguistic and structural critiques to expose the fallacies and false equalities of legal and political doctrines.

By the early 1970s, the confluence of these and other movements had exposed the limitations of a positivist definition of law standing alone. Leading jurists of the day – Lon Fuller, Jerome Hall, Karl Llewellyn, Harold Berman and others – were pressing for a broader understanding and definition of law.Footnote ²² Of course, they said (in concurrence with legal positivists) that law consists of rules – the black-letter rules of contracts, torts, property, corporations and sundry other familiar subjects. Of course, law draws to itself a distinctive legal science, an ‘artificial reason’, as Sir Edward Coke (1552–1634) once put it.Footnote ²³ But law is much more than the rules of the state and how we apply and analyse them. Law is also the social activity by which certain norms are formulated by legitimate authorities and actualised by persons subject to those authorities. The process of legal formulation involves legislating, adjudicating, administering and other conduct by legitimate officials. The process of legal actualisation involves obeying, negotiating, litigating and other conduct by legal subjects. Law is rules, but it is also the social and political processes of formulating, enforcing and responding to those rules.Footnote ²⁴ Numerous other institutions, besides the state, are involved in this legal functionality. The rules, customs and processes of churches, colleges, corporations, clubs, charities and other non-state associations are just as much a part of a society's legal system as those of the state. Numerous other norms, besides legal rules, are involved in the legal process. Rule and obedience, authority and liberty are exercised out of a complex blend of concerns, conditions and character traits – class, gender, persuasion, piety, charisma, clemency, courage, moderation, temperance, force, faith and more.

Legal positivism could not, by itself, come to terms with law understood in this broader sense. As Grant Gilmore predicted in his 1974 title, a new interdisciplinary ‘age’ of American law was dawning. In the 1970s and thereafter, American jurists began to (re)turn with increasing alacrity to the methods and insights of other disciplines to enhance their formulations. This was the birthing process of the modern movement of interdisciplinary legal study. The movement was born to enhance the province and purview of legal study, to refigure the roots and routes of legal analysis, to render more holistic and realistic our appreciation of law in community, in context, in concert with the human, social and exact sciences.Footnote ²⁵ In the 1970s, a number of interdisciplinary approaches began to enter mainstream American legal education, combining legal study with the study of philosophy, economics, medicine, politics and sociology. In the 1980s and 1990s, new interdisciplinary legal approaches were born in rapid succession: the study of law coupled with the study of anthropology, literature, environmental science, urban studies, women's studies, gay and lesbian studies and African-American studies. And, importantly for our purposes, the study of law was also recombined with the study of religion.

FROM STRICT SEPARATION TO EQUAL TREATMENT OF RELIGION

The rise of law and religion study in America coincided not only with the gradual implosion of legal positivism but also with the gradual erosion of the wall of separation between Church and state. The American positivist ideal of strict separation of law and religion had been one of the foundations of the American constitutional ideal of strict separation of Church and state. As legal positivism became stronger in the first two-thirds of the twentieth century, the wall of separation between Church and state rose higher in constitutional and cultural importance. As legal positivism declined after the 1970s, the wall of separation gradually crumbled, too.

The wall of separation metaphor had many early champions in American history, but it was especially the writings of America's founder Thomas Jefferson (1743–1826) that would prove to be the most prescient and influential in the twentieth century.Footnote ²⁶ In a series of writings from the 1770s to the 1820s, Jefferson argued that true religious liberty could be achieved only by privatising religion and secularising politics. Religion must be ‘a concern purely between our God and our consciences’, he wrote in 1802. Politics must be conducted with ‘a wall of separation between church and state’. ‘Public religion’ is a threat to private religion and must thus be discouraged. ‘Political ministry’ is a menace to political integrity and must thus be outlawed. Religious privatisation is the bargain we must strike to attain religious freedom for all. A wall of separation is the barrier we must build to contain religious bigotry for good.Footnote ²⁷

Jefferson read this understanding of religious liberty directly into the new 1791 constitutional guarantee of the First Amendment: ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof’. On the one hand, he argued, the state must protect the liberty of conscience and free exercise of all its peaceable subjects – however impious or impish their religious beliefs and practices might appear: ‘The Jew and the Gentile … the Mahometan, the Hindu and [the] Infidel of every denomination’ is equally deserving of religious liberty.Footnote ²⁸ ‘Almighty God hath created the mind free’, and thus

On the other hand, Jefferson said, the state should disestablish all religion. It should not give special aid, support, privilege or protection to religious doctrines or groups – through special tax appropriations and exemptions, special donations of goods and land or special laws of incorporation and criminal protection. The state should not direct its laws to religious purposes. It should not draw on the services of religious associations, nor seek to interfere in their order, organisation or orthodoxy.Footnote ³⁰ Religion flourishes best if state officials leave it alone.

Jefferson continued by saying that the state, in turn, operates best if religious officials leave it alone. Church officials must respect the wall of separation as much as the state's officials. Clerics need to stick to their speciality of soulcraft rather than interfere in the speciality of statecraft. Religion is merely ‘a separate department of knowledge’, Jefferson wrote, echoing the new positivist philosophy of the Frenchman Auguste Comte (1798–1857).Footnote ³¹ Far from being queen of the sciences, as traditionally thought, religion is just one specialised discipline alongside physics, biology, law, politics, medicine and many other disciplines. Preachers are the specialists in religion and are hired by their congregants to devote their time and energy to this religious speciality alone.

In his own day, Jefferson's call for a strict separation of Church and state was considered to be too radical to effect much constitutional change. But these separationist ideals gradually found their way into a number of state constitutions in the later nineteenth and early twentieth centuries.Footnote ³³ And in the 1947 case of Everson v Board of Education, the United States Court read this Jeffersonian understanding of religious liberty directly into the First Amendment as well.Footnote ³⁴ Justice Hugo Black wrote famously for the Everson Court:

In its early First Amendment free exercise cases (and free speech cases on religion), the Supreme Court used this Jeffersonian logic to protect the private exercises of religion, even those of unpopular religious groups. The Court held repeatedly that religious proselytisers such as Jehovah's Witnesses could not be denied licences to preach, parade or pamphleteer just because they were unpopular.Footnote ³⁶ Public school students could not be compelled to salute the flag or recite the pledge if they were conscientiously opposed.Footnote ³⁷ Other parties with scruples of conscience could not be forced to swear oaths before receiving citizenship status, property tax exemptions, state bureaucratic positions or social welfare benefits, or standing in courts.Footnote ³⁸ And religious organisations had constitutional protection to adjudicate their own internal disputes over property and polity without state interference.Footnote ³⁹ On the religion side of the wall of separation, the First Amendment provided religion with ample protection.

On the political side of the wall, however, religion could not depend upon the state's patronage. The Court drove this point home in a long series of establishment clause cases from 1948 to 1987 that banished religion from the nation's public (government-run) schools. The court outlawed the use of religious teachers, prayers, bibles, devotions, Decalogue displays, creationist teachings and moments of silence in public schools on the argument that these traditional educational practices violated the wall of separation of Church and state.Footnote ⁴⁰ The Court also removed religious schools from much of their traditional state support. States could not provide salary and service supplements to religious schools, could not reimburse them for administering standardised tests, could not lend them state-prescribed textbooks, supplies, films or counselling services, could not allow tax deductions or credits for religious school tuition.Footnote ⁴¹ The wall of separation between Church and state, the Court insisted, also required a wall of separation between public state schools and private religious schools. The free exercise clause protected religion in private schools, but the establishment clause barred religion in public schools or public patronage of religious schools.

In Lemon v Kurtzman (1971), the Court distilled the Jeffersonian logic of its early cases into a general test to be used in all First Amendment establishment clause cases. Henceforth, every law challenged under the establishment clause would pass constitutional muster only if it could satisfy three criteria. The law must: have a secular purpose; have a primary effect that neither advances nor inhibits religion; and foster no excessive entanglement between Church and state. Incidental religious ‘effects’ or modest ‘entanglements’ of Church and state could be tolerated, but defiance of any of these criteria would be constitutionally fatal.Footnote ⁴²

This constitutional reification of Jeffersonian logic rendered the establishment clause a formidable obstacle to many traditional forms of state patronage of and co-operation with religion. The lower federal courts in particular used this test to outlaw all manner of government subsidies for religious charities, social services and mission works, government use of religious services, facilities and publications, government protections of Sundays and Holy Days, government enforcement of blasphemy and sacrilege laws, and government participation in religious rituals and religious displays. It often did not take law suits to effect these reforms. Local governments in particular, sensitive to the political and fiscal costs of constitutional litigation, often voluntarily ended their prayers, removed their Decalogues and closed their coffers to religion long before any case was filed against them. The Jeffersonian logic of the establishment clause seemed to demand this.

While many officials and citizens – and the elite media with them – have remained faithful to this Jeffersonian logic, the reality is that separation of Church and state is no longer the law of the land in America. Over the past 30 years, the Supreme Court has been quietly defying its earlier separationist logic and has reversed some of its harshest separationist precedents.Footnote ⁴³ The Court has several times upheld government policies that provide religious parties and non-religious parties with equal access to and equal treatment in public activities, forums, facilities and funds. Under this new equality logic, Christian clergy are just as entitled to run for state political office as non-religious candidates.Footnote ⁴⁴ Church-affiliated pregnancy counselling centres can be funded as part of a broader federal family counselling programme.Footnote ⁴⁵ Religious student groups can have equal access to state university and public high-school classrooms that are open to non-religious student groups.Footnote ⁴⁶ Religious school students are just as entitled to avail themselves of general scholarships and remedial and disability services available to public school students.Footnote ⁴⁷ Religious groups have equal access to public facilities or civic education programmes that were already open to other civic groups.Footnote ⁴⁸ Religious parties are just as entitled as non-religious parties to display their symbols in public forums.Footnote ⁴⁹ Religious student newspapers are just as entitled to public university funding as those of non-religious student groups.Footnote ⁵⁰ Religious schools are just as entitled as other private schools to participate in a state-sponsored educational improvement or school voucher programme.Footnote ⁵¹

The Court has defended these more recent holdings on wide-ranging constitutional grounds: among other arguments, as a proper accommodation of religion under the establishment clause; as a necessary protection of religion under the free speech or free exercise clauses; and as a simple application of the equal protection clause. Collectively, these cases have shifted the centre of gravity of the First Amendment religion clauses from separationism and secularisation to equal treatment of public and private religious expression.

One theme common to the Supreme Court's recent First Amendment cases is that religion no longer needs to remain hidden on the private side of the wall of separation between Church and state. Public expression of religion must be as free as private expression – not because the religious groups in these cases are really non-religious; not because their public activities are really non-sectarian; and not because their public expressions are really part of the cultural mainstream. On the contrary, these public groups and activities deserve to be free, just because they are religious, just because they engage in sectarian practices, just because they sometimes take their stands above, beyond and against the mainstream. They provide leaven and leverage for the polity to improve.

A second theme common to these cases is that the freedom of religion sometimes requires the support of the state. Today's state is not the distant, quiet sovereign of Jefferson's day, from whom separation was both natural and easy. The modern welfare state, whether for good or ill, is an intensely active sovereign, from whom complete separation is impossible. Few religious bodies can now avoid contact with the state's pervasive network of education, charity, welfare, child care, health care, family, construction, zoning, workplace, taxation, security and other regulations. Both confrontation and co-operation with the modern welfare state are almost inevitable for any religion. When a state's regulation imposes too heavy a burden on a particular religion, the free exercise clause should provide a pathway to relief. When a state's appropriation imparts too generous a benefit to religion alone, the establishment clause should provide a pathway to dissent. But when a general government scheme provides public religious groups and activities with the same benefits afforded to all other eligible recipients, establishment clause objections are rarely availing. And, even on rare occasions, when federal courts do target religion for special burdens or benefits, Congress and state legislatures provide statutory fixes.

A third theme common to these cases is that freedom of public religion also requires freedom from public religion. Government must strike a balance between coercion and freedom. The state cannot coerce citizens to participate in religious ceremonies and subsidies that they find odious. Nor can it prevent citizens from participation in public ceremonies and programmes just because they are religious. It is one thing to outlaw Christian prayers and broadcast Bible readings from the public school; after all, students are compelled to be there. It is quite another thing to ban moments of silence and private religious speech in these same public schools. It is one thing to bar direct tax support for religious education, quite another thing to bar tax deductions for parents who choose to educate their children in religious schools. It is one thing to prevent government officials from delegating their core police powers to religious bodies, quite another thing to prevent them from facilitating the charitable services of voluntary religious and non-religious associations alike. It is one thing to outlaw governmental prescriptions of prayers, ceremonies and symbols in public forums, quite another thing to outlaw governmental accommodations of private prayers, ceremonies and symbols in these same public forums.

A final theme common to these cases is that the freedom of public religion does not mean the establishment of a common religion. Today, the public religion of America is a collection of particular religions, not a combination of religious particulars. It is a process of open religious discourse, not a product of ecumenical distillation. All religious voices, visions and values, in all their denominational particularity, have the right to be heard and deliberated in the public square. All public religious services and activities, unless criminal or tortious, have a chance to come forth and compete.

Some conservative evangelical and catholic groups in America have seen and seized on this insight better than most. Their rise to prominence in the public square in the last three decades should not be met with glib talk of censorship or habitual incantation of Jefferson's mythical wall of separation. The rise of the so-called Christian right should be met with the equally strong rise of the Christian left, of the Christian middle and of many other Jewish, Muslim and other religious groups who test and contest its premises, prescriptions and policies. That is how a healthy democracy works. The real challenge of the new Christian right is not to the integrity of American politics but to the apathy of American religions. It is a challenge for peoples of all faiths and of no faith to take their seat in public debate.

Unlike a generation ago, no-one seated at this table of public deliberation today needs to hide their Bibles, Qur'ans, or prayer books. No-one needs to remove their yarmulkes, headscarves or crucifixes. No-one needs to cover their deep convictions under a patina of purported neutrality. American judges and jurists are slowly overcoming their allergies to public expressions of religion. They have come to realize that every serious position on the fundamentals of public and private life – on warfare, marriage reform, bioethics, environmental protection and more – rests on a set of founding metaphors and starting beliefs that have comparable faith-like qualities.Footnote ⁵² As the federal judge John T Noonan Jr writes: it impossible for judges or other officials ‘to pretend that they are neutrals somehow free from all prejudice when they decide intrachurch disputes, determine who has a religious claim, or balance the State's interest in relation to the First Amendment’.Footnote ⁵³ Today, easy claims of neutrality and objectivity in public and political argument face very strong epistemological and constitutional headwinds.

THE MAIN THEMES OF AMERICAN LAW AND RELIGION SCHOLARSHIP

The field of law and religion scholarship in America has profited from both trends described in the previous two sections: the gradual implosion of legal positivism and the gradual erosion of the wall of separation. Religion is now a legitimate voice in legal and political discourse and a legitimate subject of interdisciplinary legal study. In the vast new law and religion literature that has emerged in the American academy over the past three decades, ten themes stand out, some more prominent than others.

First, by far the largest body of law and religion scholarship is devoted to the American law of religious freedom, which I summarised in the last section. This is in part the law of the First Amendment, as interpreted and applied by the federal courts. The no-establishment case law has been heavily focused on the role of religion in public education, the place of government in religious education and government use and support of religious symbols, ceremonies and services. The free exercise case law has treated a wider swath of claims: the claims of individuals to conscientious objections to military service, education, oath swearing, medical procedures and more; their claims to special constitutional protections for religious dress, grooming, proselytism, holy day observance and access to sacred sites; their calls for special accommodations within the military, prisons, hospitals, public schools, government agencies, public forums and private workplaces and associations. The federal courts have used both the establishment and free exercise clauses to deal with the rights of religious groups to incorporate, to hold and use property, to govern their religious polity and clergy, to maintain internal laws and norms of discipline, to resolve internal disputes and to provide education, charity and other services.

While many of these religious liberty questions in America remain subject to federal – and increasingly also state – constitutional laws, they now also arise under federal, state and local statutes and regulations. Over the past three decades, hundreds of special protections, immunities and exemptions for religion have quietly found their way into the laws governing evidence, civil procedure, taxation, bankruptcy, labour, employment, workplace, military, immigration, prisons, hospitals, land use, zoning, education, charity, child care and more. Ironically, parties seeking religious freedom protections today get more protection under one of these statutes than by filing a First Amendment case in federal court. Hundreds of American legal scholars have been writing on these religious liberty themes and this topic will continue to dominate American law and religion scholarship in the foreseeable future.Footnote ⁵⁴

Second, a growing number of American scholars of religious liberty have been drawn to the study of comparative and international laws of religious freedom and of the religious sources and dimensions of human rights. This is a relative new field of study in American law schools; few American jurists engaged seriously with this topic before 1990. This new scholarly emphasis is part and parcel of the general rise of comparative legal studies in American law schools, catalysed further by the Supreme Court's new use of international norms to help make constitutional judgments. It is driven, in part, by new interest in the constitutional transformations of post-colonial Africa, post-fascist Latin America and post-Communist Russia, Eastern Europe and central Asia. It is also driven by new interest in the jurisprudence of religious freedom in the European Court of Human Rights and in various European national courts. And it is driven by the new great awakening of religion around the world that has radically shifted the religious demographic landscape of the West. American legal scholars have been in the vanguard of a growing international guild of scholars dedicated to the study of the international and regional human rights instruments affecting religion and of the contributions of various faith traditions to the cultivation – and abridgement – of human rights and democratic norms around the world.Footnote ⁵⁵

A small library of books has emerged from this international guild, documenting the contributions of the main world religions, especially Western Christianity, to modern understandings of human rights. A central question animating this literature is whether human rights are a universal good of human nature or a distinctly Western (Christian) invention that has no easy resonance in other cultures with different founding beliefs and values. If human rights are truly universal, what other formulations besides those rooted in Western philosophy, theology and culture need to be incorporated? If human rights are distinctly Western (Christian) inventions, what other normative structures and systems do non-Western traditions offer to protect human dignity and to promote peace, justice and an orderly society? A related question is whether human rights norms must now be cast in secular or neutral language in order to be legitimate and universal. Are Christian, Jewish, Islamic, Hindu, Buddhist, Confucian, Indigenous and other such declarations of human rights now in vogue, by definition, parochial and exclusive?Footnote ⁵⁶

Another small library of books has emerged analysing the wide range of human rights issues that confront religious persons and communities today. A central question at work in this literature is whether freedom of religion and belief is something distinctive or simply the sum of all the other rights that other parties can claim, too. If religious freedom is distinctive, what special rights and liberties attach uniquely to religious parties that are not given to other non-religious parties? If religious freedom is not distinctive, how do core claims of conscience or central commandments of faith get protected when they run contrary to the cultural mainstream or majoritarian rules?Footnote ⁵⁷

A third large body of scholarship in American law schools has gathered around the perennially contested issues of law, religion and family life. Historically, in the West and in many religious communities still today, the marital household was viewed as both a spiritual and temporal institution, and sexual activity had both moral and corporeal dimensions. Western churches and states thus collaborated in governing sex, marriage and family life. They both had rules and procedures for sexual etiquette, courtship and betrothal; for marital formation, maintenance and dissolution; for conjugal duties, debts and desires; for parental roles, rights and responsibilities. They collaborated in setting moral and criminal laws to police and punish illicit sex. For many centuries, these two powers kept overlapping rolls of sexual sin and crime: adultery and fornication, sodomy and buggery, incest and bestiality, bigamy and polygamy, prostitution and pornography, abortion and contraception. They also operated interlocking tribunals to enforce these rules on sex, marriage and family life. The Church guarded the inner life through its canons, confessionals and consistory courts. The state guarded the outer life through its policing, prosecution and punishment of sexual crimes. Of course, Church and state officials clashed frequently over whose laws governed. And their respective laws on these subjects did change a great deal – dramatically in the fourth, twelfth, sixteenth and nineteenth centuries. But, for all this rivalry and change, Christianity – and the Jewish, Greek and Roman sources on which it drew – had a formative influence on Western laws of sex, marriage and family life.Footnote ⁵⁸

Most of these classic legal doctrines have now been eclipsed by the dramatic rise of new public laws and popular customs of sexual liberty and personal privacy in America and other Western lands. Courtship, cohabitation, betrothal and marriage are now mostly private sexual contracts with few roles for Church and state to play and few restrictions on freedoms of entrance, exercise and exit. Classic crimes of contraception and abortion have been found to violate constitutional liberties. Classic prohibitions on adultery and fornication have become dead or discarded letters on most statute books. Free speech laws protect all manner of sexual expression, short of obscenity. Constitutional privacy laws protect all manner of voluntary sexual conduct, short of child abuse and statutory rape. The classic prohibitions on incest, polygamy and homosexuality still remain on some law books, but they are now the subjects of bitter constitutional and cultural battles. All this has attracted a large body of scholarship among American lawyers and legal historians. A central question of this scholarship is how to rethink and reconstruct traditional family norms and practices in a manner that respects modern norms of privacy, freedom and equality, yet protects women, children and other dependents, who have often suffered gravely in the modern sexual and divorce revolution.Footnote ⁵⁹

Three new questions at the intersection of law, religion and family are now attracting a great deal of new scholarly attention. The first concerns the growing contests between religious liberty and sexual liberty. May a state require a minister to marry a gay or interreligious couple, a medical doctor to perform an elective abortion or assisted-reproductive procedure, or a pharmacist to fill a contraceptive prescription when those required actions run counter to those parties' core claims of conscience or central commandments of their faith? May a religious organisation dismiss or discipline an official or member because of their sexual orientation or practice, or because they had a divorce or abortion? These are becoming major points of contestation and litigation.Footnote ⁶⁰

A second question concerns religiously based polygamy. A century and a half ago, the United States Supreme Court firmly rejected the religious freedom claims of Mormons to practise polygamy. These issues are back in the American courts and culture wars again, with Fundamentalist Mormons and various Muslim groups pressing their case on grounds of religious freedom, sexual autonomy, domestic privacy and equal protection. This, too, has triggered a small avalanche of writing.Footnote ⁶¹

A third question concerns the growing call by selected Muslims and other religious minorities to opt out of the state's family law system and into their own religious legal systems. This is raising a lot of hard legal and cultural questions: what forms of marriage should citizens be able to choose and what forums of religious marriage law should state governments be required to respect? How should religious minorities with distinct family norms and cultural practices be accommodated in a society dedicated to religious liberty and self-determination and to religious equality and non-discrimination? Is legal or normative pluralism necessary to protect Muslims and other religious believers who are conscientiously opposed to the values that inform modern state laws on sex, marriage and family? Doesn't state accommodation or implementation of a faith-based family law system run the risk of higher gender discrimination, child abuse, coerced marriage, unchecked patriarchy or worse, and how can these social tragedies be avoided? Won't the addition of a religious legal system encourage more forum shopping and legal manipulation by crafty litigants involved in domestic disputes, often pitting religious and state norms of family against each other? Does the very state recognition, accommodation or implementation of a religious legal system erode the authority and compromise the integrity of those religious norms? Isn't strict separation of religious norms and state laws the best way to deal with the intimate questions of sex, marriage and family life? These hard questions are generating a great deal of important new scholarship.Footnote ⁶²

Fourth, this last question – about the place of faith-based family laws in Western democracies – points to a larger question about the overall place of religious legal systems in Western democracies and the forms and functions of law within organised religious bodies. The internal religious legal systems of Christians, Jews and Native American Indians have long attracted small groups of scholarly specialists in American universities. These topics are now becoming more mainstream in American law schools as well: several law schools now have specialised programmes or concentrations on these topics. Among Christian legal systems, Roman Catholic canon law gets the closest scholarly attention – in part because of the promulgation of the Code of Canon Law in 1983, in part because recent scandals over clerical paedophilia have focused new attention on the internal government of the Roman Catholic Church. American Episcopalians, Lutherans, Presbyterians and other mainline protestants, as well as Evangelicals and Orthodox Christians, have historically had less comprehensive internal bodies of ecclesiastical law and discipline. This is now leading to costly litigation in secular courts in disputes over church property, schools, charities, labour and employment and more. Non-catholic Christian groups in America have begun working assiduously to put their legal houses in order with the aid of law professors – though they have not yet constructed a body of ‘American ecclesiastical law’ on the scale of the English ecclesiastical law so ably developed by Mark Hill, Norman Doe and others.Footnote ⁶³

Jewish law, especially in its historical and Orthodox forms, has long had a small foothold in American law schools. This topic has become more mainstream with the rise of organised Jewish law courts in America that now arbitrate a number of issues of marriage, divorce, property, inheritance and commerce for the Jewish faithful who prefer to appear before them rather than before secular courts.Footnote ⁶⁴ American Jewish law courts are, in fact, now viewed as models of religious arbitration for Christian, Muslim, Hindu and other religious groups in America who prefer to avoid litigation in secular courts.

The study of Muslim law (sharia) is now a major growth industry in American law schools and other university departments. Part of this new interest is the natural consequence of the rapid growth of different Muslim communities in America and other Western lands, and the need to discern their distinct legal needs and accommodations. But more of it is driven by the increased tensions between Islam and the West born of the terrorist attacks of 11 September 2001 and 7 July 2005 (‘9/11’ and ‘7/7’), the Fort Hood shooting, the rise of al-Qaeda and the bloody wars against terrorism in Iraq, Afghanistan and beyond. While some American legal scholars continue to perpetuate ‘a clash of civilizations’Footnote ⁶⁵ ethic, more of them have seen clearly the need to deepen our legal, cultural and religious understandings across Muslim, Christian and Jewish lines and to develop a pan-Abrahamic jurisprudence of public, private, penal and procedural law.Footnote ⁶⁶

Fifth, the emerging new scholarship on religious legal systems has moved into a broader scholarly inquiry about the influence of world religions on the secular legal systems around them, both historically and currently. Part of this inquiry concerns the exportation, transplantation or accommodation of discrete internal religious rules or procedures into secular legal systems. But more of it concerns the influence of religious ideas and practices of each of these world religions on the public, private, penal and procedural law of the state. Cambridge University Press has inaugurated a series of fresh studies on law and Christianity, Judaism, Islam, Hinduism, Buddhism, Confucianism and Indigenous Religions.Footnote ⁶⁷ Other books are beginning to emerge offering intra- and interreligious perspectives on discrete legal topics – human rights, family law, constitutionalism, private law and more.Footnote ⁶⁸

Sixth, and as a specialised form of this last topic, American jurists have long studied the historical influence of Christianity on the Western legal tradition. Since the days of James Kent and Joseph Story in the early nineteenth century, legal historians of Anglo-American law have documented the influence of early modern English ecclesiastical law and mediaeval canon law on the American legal system. More recent historians have also addressed the influence of discrete groups such as the New England Puritans on colonial law, or eighteenth-century Baptists on First Amendment religious liberty law. These early specialised pockets of study are becoming broader in their inquiry and more mainstream in their influence. American legal historians such as Harold J Berman, James A Brundage, Charles Donahue, Richard Helmholz, John T Noonan Jr, Brian Tierney and others have shown the enduring influence of mediaeval and early modern Catholic canon law on American and broader Western laws of marriage and family, constitutionalism and human rights, criminal law and procedure, property and inheritance law and much more.Footnote ⁶⁹ Several American law professors, most notably Alan Watson, have unearthed the classical Roman law foundations on which these mediaeval canon law developments were built.Footnote ⁷⁰ And a few legal historians are following this story of Christian legal influence into the European and North American protestant worlds of the sixteenth to nineteenth centuries.Footnote ⁷¹

Seventh, natural law theory is becoming a topic of growing interest in American law schools – despite Holmes' deprecation of the natural law as a ‘brooding omnipresence in the sky’. The modern study of natural law theory began in the mid-twentieth century. The horrible excesses of Nazi Germany and Stalinist Russia catalysed the modern international human rights revolution, which defined and defended the natural rights protections of human dignity and the natural law limits on state power. The rise of Roman Catholic social teachings coupled with the monumental reforms of the Second Vatican Council in 1962–1965 gave further powerful impetus to Catholic natural law theories. Today, American scholars such as John Finnis, Robert George, Russ Hittinger, Stephen Pope, Jean Porter and others illustrate the wide range of Catholic natural law and natural rights teachings on a whole range of fundamental legal, political and social issues.Footnote ⁷² A number of Jewish, Protestant, Eastern Orthodox and Muslim scholars are now also resurrecting the rich natural law teachings of their own traditions and developing new natural law theories to address fundamental legal questions in and on terms that others with different faith traditions can appreciate.Footnote ⁷³ And all these groups have found interesting overlaps with the burgeoning religion and science scholarship that is exposing the natural foundations of human morality and sociability. Natural law theory, while still controversial, is becoming a promising new arena of interreligious and interdisciplinary dialogue.

Eighth, natural law arguments often inform a related area of continued importance in law and religion study: the topic of legal ethics, both by itself and in comparison with theological ethics, business ethics, medical ethics and more. Legal and theological ethicists have long recognised the overlaps in form and function of the legal and religious professions. Both professions require extensive doctrinal training and maintain stringent admissions policies. Both have developed codes of professional ethics and internal structures of authority to enforce them. Both seek to promote co-operation, collegiality and esprit de corps. There are close affinities between the mediation of the lawyer and the intercession of the cleric, between the adjudication of the court and the arbitration of the consistory, between the beneficence of the bar and the benevolence of the diaconate. Ideally, both professions serve and minister to society, and both professions seek to exemplify the ideals of calling and community. Nonetheless, there can be strong tensions between one's legal professional duties and one's personal faith convictions. What does it mean to be a Christian, Jewish, Muslim, Hindu or Buddhist lawyer at work in a secular legal system? These topics have now attracted a small cluster of important new scholarship.Footnote ⁷⁴

Ninth, this last question – about the place of the religious believer in the legal profession – has raised the broader question of the place of overt religious arguments in legal discourse altogether. This is in part an epistemological question: whether legal and political argumentation can and should forgo religious and other comprehensive doctrines in the name of rationality and neutrality. In America, this is also in part a constitutional question: whether the First Amendment prohibition on establishment of religion requires that all laws be based on secular and neutral rationales in order to pass constitutional muster. In the heyday of secular liberalism and strict separationism in the 1960s and 1970s, it was common to insist that all political debates should be undertaken in terms of rationality and neutrality.Footnote ⁷⁵ Today, as we saw above, a number of jurists have argued that religious and other comprehensive doctrines are essential parts of an enduring legal and political morality.Footnote ⁷⁶

But welcoming serious public deliberation by people of all faiths imposes its own strong demands. It demands that these faith communities develop a clear conceptual bilingualism: the development of a public language that casts deeply held convictions into terms that others, with different faith assumptions and experiences, can understand and accept, even for their own reasons. It demands deep and sincere empathy: learning to appreciate the deep convictions and cardinal practices of the other, even if only by distant analogy; that is the heart of the Golden Rule. It demands long and respectful patience: spending the time to listen to and to deliberate every serious position before rushing to cultural, constitutional, or political judgement. And it demands unswerving commitment of all parties to the first premises of American constitutional democracy: that there be religious freedom for all and religious establishment for none.

Tenth, and finally, questions of law and religious language have also raised broader questions about the overlaps between legal and theological interpretation, translation and hermeneutics. Legal historians have long been intrigued by the overlaps between the scholarly methods used to interpret the Bible and the Constitution, a code and a creed, a consistory judgment and a judicial opinion. The rise of modern literary theory and of form-critical methods of biblical interpretation has heightened this scholarly interest in how to discern the original meaning and understanding of authoritative texts. And with the rise of globalisation and the study of global law and world religions, a number of American jurists have become keenly interested in the questions of translation, transplantation and transmutation of legal and religious ideas across cultural, disciplinary and denominational boundaries.Footnote ⁷⁷

THE DISTINCT CHALLENGES OF CHRISTIAN JURISPRUDENCE

As the foregoing makes clear, catholic and protestant scholars have been among the leaders of the law and religion movement in American legal education – along with growing numbers of Jewish and Muslim scholars and an increasing number of specialists on Asian and Traditional religions. Legal scholars from these various religious traditions have already learned a great deal from each other and have co-operated in developing richer understanding of sundry legal and political subjects. This comparative and co-operative interreligious inquiry into fundamental issues of law, politics and society needs to continue – especially in our day of increasing interreligious conflict and misunderstanding.

Christian scholars of law and religion, however – those who tend to be the readers of this distinguished Ecclesiastical Law Journal, including this author – face some distinct challenges and opportunities in this new century that are worth spelling out by way of conclusion.

A first challenge is for us Western catholics and protestants to make room for our brothers and sisters in the Eastern Orthodox Christian tradition. Many leading Orthodox scholars deal with fundamental questions of law, politics and society with novel insight, often giving a distinct reading and rendering of the biblical, apostolic and patristic sources that Christians have in common. Moreover, the Orthodox Church has immense spiritual resources and experiences, whose implications are only now beginning to be seen. These spiritual resources lie, in part, in Orthodox worship – the passion of the liturgy, the pathos of the icons, the power of spiritual silence. They also lie in Orthodox church life – the distinct balancing between hierarchy and congregationalism through autocephaly, between uniform worship and liturgical freedom through alternative vernacular rites, between community and individuality through a trinitarian communalism, centred on the parish, on the extended family, on the wizened grandmother (the ‘babushka’ in Russia). And these spiritual resources also lie in the massive martyrdom of millions of Orthodox faithful in the last century – whether suffered by Russian Orthodox under the Communist Party, by Greek and Armenian Orthodox under Turkish and Iranian radicals, by Middle Eastern Copts at the hands of religious extremists or by North African Orthodox under all manner of fascist autocrats and tribal strongmen.

These deep spiritual resources of the Orthodox Church have no exact parallels in modern Catholicism and Protestantism and most of their implications for law, politics and society have still to be drawn out. How the Orthodox Church can apply them to the nurture of law, constitutionalism and human rights is one of the great challenges – and opportunities – of this new century. At the very least, it would be wise for us Westerners to lay aside our simple caricatures of the Orthodox Church as a politically corrupt body that is too prone to clerical indiscipline, mystical idolatry and nominal piety to have much to offer to a legal regime. A Church with nearly 300 million members scattered throughout the world defies such a glib description. It would be wise to hear what an ancient Church, newly charred and chastened by decades of oppression and martyrdom, considers essential to the regime of religious rights. It would be enlightening to watch how ancient Orthodox communities, still largely centred on the parish and the family, will reconstruct social and economic rights. It would be prudent to see whether a culture more prone to beautifying than to analysing might transform our understanding of cultural rights. It would be instructive to listen to how a tradition that still celebrates spiritual silence as its highest virtue might recast the meaning of freedom of speech and expression. It would be illuminating to feel how a people that have long cherished and celebrated the role of the woman – the wizened babushka of the home, the faithful remnant in the parish pews, the living icon of the Assumption of the Mother of God – might elaborate the meaning of women's rights.Footnote ⁷⁸

A second challenge is to trace the roots of these modern Christian teachings into the earlier modern period of the seventeenth to nineteenth centuries. Scholars have written a great deal about patristic, scholastic, early protestant and post-Tridentine Roman Catholic contributions to law, politics and society. But many of the best accounts of the history of Christian legal, political and social thought stop in 1625. That was the year that the father of international law, Hugo Grotius (1583–1645), uttered the impious hypothesis that law, politics and society would continue even if ‘we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him’.Footnote ⁷⁹ While many subsequent writers conceded Grotius' hypothesis and embarked on the great secular projects of the Enlightenment, many great Christian writers did not. They have been forgotten to all but specialists. Their thinking on law, politics and society needs to be retrieved, restudied and reconstructed for our day.

A third challenge is to make these modern Christian teachings on law, politics and society more concrete. In centuries past, catholic, protestant and orthodox traditions alike produced massive codes of canon law and church discipline that covered many areas of private and public life. They instituted sophisticated tribunals for the equitable enforcement of these laws. They produced massive works of political theology and theological jurisprudence, with ample handholds in catechisms, creeds and confessional books to guide the faithful. Some of that sophisticated legal and political work still continues in parts of the Christian Church today. Modern Christian ethicists still take up some of the old questions. Some Christian jurists have contributed ably and amply to current discussion of human rights, family law and religious liberty. But the legal structure and sophistication of the modern Christian Church as a whole is a pale shadow of what went on before. It needs to be restored lest the Church lose its capacity for Christian self-rule and its members lose their capacity to serve as responsible Christian ‘prophets, priests and kings’.

The intensity and complexity of the modern culture wars over family, education, charity, religious liberty, constitutional order and other cardinal issues demand this kind of fundamental inquiry. Too often of late, Christians have marched to the culture wars without ammunition – substituting nostalgia for engagement, acerbity for prophecy, platitudes for principled argument. Too often of late, they have been content to focus on small battles such as prayers in schools and Decalogues on courthouses, without engaging with the great domestic and international soul wars that currently beset us. The Church needs to re-engage responsibly with the great legal, social and political issues of our age and to help individual Christians participate in the public square in a manner that is neither dogmatically shrill nor naively nostalgic but fully equipped with the revitalised resources of the Bible and the Christian tradition in all their complexity and diversity.

A fourth challenge is for modern catholic, protestant and orthodox Christians to develop a rigorous ecumenical understanding of law, politics and society. This is a daunting task. It is only in the past three decades, with the collapse of Communism and the rise of globalisation, that these three ancient warring sects of Christianity have begun to come together and have begun to understand each other. It will take many generations more to work out the great theological disputes over the nature of the Trinity or the doctrine of justification by faith. But there is more confluence than conflict in catholic, protestant and orthodox understandings of law, politics and society, especially if they are viewed in long and responsible historical perspective. Scholars from these three great Christian traditions need to come together to work out a comprehensive new ecumenical ‘concordance of discordant canons’ that draws out the best of these traditions, that is earnest about its ecumenism and that is honest about the greatest points of tension. Few studies would do more both to spur the great project of Christian ecumenism and to drive modern churches to get their legal houses in order.

A final challenge and perhaps the greatest of all will be to join the principally Western Christian story of law, politics and society known in North America and Western Europe with comparable stories that are told in the rest of the Christian world. Over the past two centuries, Christianity has become very much a world religion, claiming some two billion souls. Strong new capitals and captains of Christianity now stand in the South and the East – in Africa, Korea, China, India, the Philippines, Malaysia and well beyond. In some of these new zones of Christianity, the Western Christian classics are still being read and studied. But rich new indigenous forms and norms of law, politics and society are also emerging, premised on very different Christian understandings of theology and anthropology. It would take a special form of cultural arrogance for Western and non-Western Christians to refuse to learn from each other.