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Christian Perspectives on Legal Thought Paperback – December 1, 2001
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About the Author
Michael W. McConnell is Presidential Professor at the University of Utah College of Law. Robert F. Cochran, Jr., is Louis D. Brandeis Professor of Law at Pepperdine University School of Law. Angela C. Carmella is professor of law at Seton Hall University School of Law. Harold J. Berman is Robert W. Woodruff Professor at Emory University School of Law.
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Top Customer Reviews
One of the points that needs to be made by Christian legal scholars, time and again, is the special dignity of human beings, against its materialistic, naturalistic, neo-darwinistic detractors. Alschuler points out the excessive influence of the "nasty" Oliver Wendel Holmes in American Law. In fact, influenced by the dominant naturalistic paradigms of poswitivistic scientism, O.W. Holmes once said (as quoted by Alschuler): "I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand." Well, as a christian I see at least one substantial reason not to do so: Man (male and female) was created in the Image of God, as a rational and moral being, with free will and responsability. From this perspective, Man has nothing to do with baboons or grains of sand. Not even with chimps, as they are trying to make us belief with that "scientific myth" of 98,5% DNA homology.
Because of Man's sin, God himself assumed the image of Man, through Jesus Christ, and became the advocate that payed, through His life and physical ressurection, the penalty due for our sin. Thus created and redeemed, Man is incapable of being understood by means of naturalistic reduction.
Another point worth making is that of "Law as moral design", not just a random aggregate of adaptive strategies of "our" "selfish genes" (Richard Dawkins)or a kind of purposeless "self-organization of complex systems" (Stuart Kauffmann). As the dicta of Oliver Wendell Holmes about Man, baboons and grains of sand goes to show, Philip Johnson may have a point after all, with his seminal book "Darwin on Trial", when he warns against the ideological agenda behind the "scientific myth" of "particles-to-people evolution".
In fact, it is this ideological agenda, and not so much Holmes' nastyness, that has taken over a significant part of american legal scholarship, christian scholars notwithstanding. Christian legal scholarship, it seems to me, has no choice but to debunk naturalistic and darwinian accounts of the law, and to start from creationist and intelligent design assumptions. Science shouldn't be a christian's final authority, since "science" per se doesn't exist apart from basic assumptions (v.g. teism, deism, naturalism, uniformitarianism, catastrophism). However, thanks to the works of William Dembski, Michael Behe, Phillip Johnson, Werner Gitt, Jonathan Wells, Michael Denton, etc., it is becomming much easier to dismiss evolutionary arguments on purely scientific terms. Besides, darwinists have never proven their case with preponderance of evidence, much less beyond reasonable doubt.
As you suggest in your article, christian assumptions are far from giving us imediate answers to legal the questions and hard cases we have to deal with, such as abortion, homosexual marriage, freedom of expression, progressive taxation, redistribution, public policies, etc. I couldn't agree more. I spend a large part of my time trying to convince my fellow christian believers that that is in fact the case.
These assumptions may not even direct us christians to the adoption of a specific natural law theory, like those of man such as Augustin, Aquinas, Blackstone or John Finnis. Christian scholarship is compatible with adhering to different lines of legal theory. Only intolerant christianity would suggest otherwise.
Personally, I must say that I am very confortable with a liberal contractarian tradition building on names such as John Locke, John Rawls, Thomas Scanlon Jr. and Brian Barry (although, like Michael McConnell, I tend to favour a greater inclusion of religious discourse qua tale in the public sphere. This is the true liberal tradition that has its roots in the Protestant Reformation. Like McConnel, I find comprehensive liberalism disturbing.
But I also enjoy reading and learning from legal theory schools such as CLS, Critical Race Theory, Feminist Jurisprudence, Civil Republicanism, Communitarianism, Law and Literature, Law and Economics, Law and Music, and so on. As the Apostle Paul suggested, I try to examine all schools of thought and retain that which is good. I think this collection of articles does just that.
Christian assumptions are still important though. In international law, for instance, it has become particularly clear to me that anti-mataphysical, naturalistic, darwinistic assumptions have reinforced positivism, statism, realism and pragmatism in the XIX and XX centuries.
Legal theory is not value neutral, and assumptions (either overt or covert) do in fact play an important role. All strands of legal theory struggle with sinful elements. But some are more openly anti-God and more prone to do evil than others, since they degrade human beings. As William Stuntz says, in his review of this book for Harvard Law Review, "[i]t is worth getting the law right, and getting the law right may require getting the antecedent theory right".