Posted on by Perry Dane

Prophets in the Public Square – Part II

More from an unpublished talk I presented at the 19th Annual Journal of Law and Religion Symposium at Hamline Law School in 2009.

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In Part I, I talked about the importance of “authenticity” and the risk of succumbing to “cheap prooftexting” when Jews bring their religious values to bear in public debate.  While the general notion of “authenticity” is obviously also relevant to Christian interventions in public debate, it might seem at first glance that Christians need not worry about the more specific challenges facing Jews — especially the need to distinguish between religious law and religious exhortation and also between intra-group and universal norms.  After all, most Christians, unlike Jews, do not treat law, with its rigor and limitations, as central to religious life. Nor do Christians, at first glance, seem to be caught up as Jews are in a tense polarity between particularism and universalism.

But I want to sketch an argument that, to the contrary, there is a lot of resonance between the two cases. Read more

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Skeel on Hauerwasian Christian Legal Theory

David A. Skeel Jr. (U. of Penn. Law School) has posted Hauerwasian Christian Legal Theory. The abstract follows.

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

Posted on by Mark Movsesian

Wendel on Christian Legal Ethics

W. Bradley Wendel (Cornell) has posted Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions on SSRN. The abstract follows.

This paper was prepared for a conference on Stanley Hauerwas and the Law, held at Duke University in September 2011. One who shared Hauerwas’s theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper’s well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while the law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, citizens are necessarily required in some cases to seek advice from legally trained professionals to determine whether their proposed course of conduct may violate the law, or to employ mechanisms provided for by the legal system (such as contrasts, wills and trusts, and business entities) to achieve their goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients’ conduct; rather, they should assist their clients in implementing their own plans, providing technical assistance but not moral suasion. As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about, in which the autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community — for Hauerwas this is the church — and sharing in the ongoing development of its history. Thus, one may ask whether a Christian lawyer can follow some version of the standard conception, at least on Hauerwas’s conception of Christian social ethics.

With considerable hesitation, given the size and complexity of the corpus of Hauerwas’s scholarship, this paper attempts to offer an engaged Christian legal ethics in which the primary obligation of lawyers, acting in their Read more

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Schiltz on Exposing the Cracks in the Foundations of Disability Law

Elizabeth Rose Schiltz (University of St. Thomas School of Law) has posted Exposing the Cracks in the Foundations of Disability Law. This paper was presented at the September 9, 2011 Law & Contemporary Problems symposium, “Theological Argument in Law: Engaging with Stanley Hauerwas,” held at Duke Law School. The abstract follows. – ARH

The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.

Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. Read more

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Inazu on Stanley Hauerwas and the Law

As Marc DeGirolami has previously noted, John D. Inazu (Wash. U. School of Law) organized the September 9, 2011 Law & Contemporary Problems symposium, “Theological Argument in Law: Engaging with Stanley Hauerwas.” Inazu has recently posted a special editor’s introduction to that symposium entitled, Stanley Hauerwas and the Law: Is there Anything to Say? The abstract follows. – ARH

This essay is the special editor’s introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named “America’s Best Theologian” by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” including virtue ethics, the role of narrative and community, and understandings of medicine and illness. The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to thelaw: violence, liberalism, bioethics, theories of disability, theories of interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars (even among many of those who write in the area of “law and religion”) has contributed to a growing divide. Read more