Varieties of Law and Religion Scholarship

Steve Bainbridge has a nice post on a paper by David Skeel dealing with the Dodd-Frank Act, in which Skeel “consider[s] the legislation from a distinctly Christian perspective.”  Professor Bainbridge concludes his post with these thoughts about the varieties of law and religion scholarship:

  1. Studies of how the law impacts religion. This probably is the dominant form of law and religion scholarship, but it’s really mostly Constitutional law dealing with the free exercise and establishment clauses of the First Amendment. Not really distinctively Christian.
  2. Critiques of policy recommendations made by religious figures. This is what I mostly do in the law and religion field. Where US Catholic Bishops have made legal and regulatory proposals grounded in Catholic social thought, for example, there is a space for distinctively Christian legal scholarship that engages those proposals not only from secular grounds like economics but also from theological perspectives. 
  3. Christian critiques of laws like Dodd-Frank. This is the area where I think it is hardest to do something that is both rigorous and distinctively Christian. As far as I can tell, for example, there’s very little in either the Bible or the Magisterium that would help me answer the question of whether executive compensation at TARP recipient firms should be capped.

I think these are useful categories, and, as Bainbridge rightly says, there is nothing distinctively Christian about category 1.  The other two categories are part of a larger group of scholarship that approaches legal policy issues from a Christian perspective, and this is certainly a variety of law and religion scholarship (and there is nothing distinctively Christian about it — the perspective might be Jewish, Islamic, and so on).

But it strikes me that Bainbridge’s categories are all strongly normative (like so much of legal scholarship).  I think that if we are examining the field of law and religion scholarship, there are many other fields that are emerging now or on the horizon which are more in the nature of descriptive, critical, or historical, rather than normative, scholarship: comparative work in law and religion, history of various ideas or concepts within religion and law (justice, for example), studies of what were perceived historically to be the interdependencies of religion and law (some of my own recent work touches on this), which features law and religion, as systems of social control and obligation, share, and many more.  These kinds of scholarship may not be “Christian” (or anything else) in the sense that they are not making normative criticisms of law from a Christian point of view.  But is it necessary to do normative policy criticism using Christian sources in order to engage in Christian legal scholarship?  I do not think so, but I am curious about what others think.  And check out Bainbridge’s good post.  — MOD (x-posted MOJ)

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