Some "Cultural" Implications of CLS v. Martinez

Today at Duquesne Law, I spoke to a small group of students and faculty on the cultural consequences of the Supreme Court's decision in Christian Legal Society v. Martinez.

I won't go into detail here, but here is a snippet:

If ever there was a community crying out for a diversity of voices, suggesting moral solutions to the problems caused by rampant pragmatic instrumentalism, it is the American legal academy. American law schools are the most morally sterile environments on the planet, having reduced law to social engineering and the engineers to power politicians. We sure don't read Blackstone anymore. Heck, we don't even read Rawls.

Hastings-like policies intentionally sterilize one of the few remaining fertile fields for discourse-- student organizations-- for the sake of marginalizing religion. In doing so, these schools shoot themselves in the foot at a time when they can ill afford the injury. Hastings, and like-minded administrations, who adopt policies that restrict all speech in the name of free speech, gut the conscience of the law school in the following ways:

• They discourage diverse moral inquiry and discussion. Let's face it: law faculties are nowhere near as diverse of student bodies. And not nearly as morally centered. The lock-step pragmatic orthodoxy of the academy is breathtaking.
• They usher in the tyranny of the majority (the silly all-comers policy is designed to allow majority opinion to trample unpopular speech);
• They crush true scholarship-- the pursuit of truth, beauty, and goodness for their own sake-- in favor of the prevailing politically correct orthodoxy;
• They continue to encourage the disintegration of the human person, shouting that moral knowledge is not really knowledge, and that religion has no place in public life.

All the while, their schools look more and more like technical colleges and their graduates sell out to greed, materialism, and narcissism. Go figure.

'Buck v. Bell, India Style' at Pryor Thoughts

Over at the relatively new (and fine) blog, Pryor Thoughts, my colleague Scott Pryor comments on an Indian case reminiscent of the infamous Buck v. Bell (1927).  

Have a look.

BTW, it's nice to be back after a summer teaching in the Regent Law School Summer Program in International Human Rights in Strasbourg. I'll post a debrief and some pics later. 

The Lawyer's Vocation -- Part II

Let's review:

Thinking vocationally means viewing the practice of law as a means to love our neighbors in and through the law. The reality is that God is doing the ministry through us. We are God’s instruments-- limited and sinful instruments, of course, but instruments nonetheless—of mercy, reconciliation, retribution, encouragement, vindication, defense, counsel, or freedom, to, through, or for our clients or law partners (or even legal institutions themselves).

3 Further Points to Ponder

1. If we resist this concept, it is often because we have too narrow a view of the Great Commission or the good news itself. In order to think vocationally, we need to ask: What is the Gospel and what areas of human life and creation does it seek to reach?

In other words, part of our task is to discern Christ’s mission and work in the legal arena. Are there gospel implications in vindicating rights of victims? In the state’s reasonable punishment of criminals? In reconciling parties? In assisting families or groups of individuals to create or shape culture or build wealth? In helping parents leave an inheritance for their children?

2. Being a law student or lawyer, then, involves a diligent seeking for biblical-theological understanding of law and law practice in light of the ministry of the Triune God. What is law? What is the state and what is it for? What is the adversary system and may me be involved and where should we resist involvement? What is the end of criminal punishment? Are there impermissible kinds of punishment? Are corporations helpful tools for carrying out the cultural mandate in Genesis or simply means of avoiding moral responsibility?

Questions like these also lead to other questions, and in our seeking we will begin to find resources and allies throughout the historic and contemporary church. Godly men and women have been thinking through these issues by the power of the Holy Spirit for centuries.

3. For lawyers and law students, this sort of inquiry can be challenging, even for those committed to vocational thinking, because of the biases of American legal education. Law school is not a “hostile” place for Christians, but the foundation of contemporary legal education is generally based on false views about the nature of law and the human person, and, because it is contrary to truth, is hostile to a “Christian” view of the world.

Put simply, a sophisticated historical-biblical-theological approach to law is made difficult by the pragmatism and instrumentalist bent of the American legal academy. Law students, novices at this sort of high level thinking, are at a distinct disadvantage in trying to sort out the truth about torts, contracts, criminal law, and procedural rules. In addition, the conflict in first-order assumptions is made even more difficult to identify in law school, since these presuppositions are just that: presupposed without discussion, acknowledgement or debate.

Instrumentalism and American Law

So far, most of the questions that readers have asked about the substance of Redeeming Law focus on the topic of instrumentalism. Law is, in fact, instrumental, they say—it is a social tool, and it is used to deter, encourage, and engineer behavior. That’s a fact, is it not? If so, why do I villify legal instrumentalism in the book and, in fact, blame it for the loss of the moral center in the legal academy (see pp. 32-33, e.g.)?

It is true, of course, that law is a tool for shaping behavior. So it is instrumental. Yet it is not primarily or essentially a tool to be used on people, behaviors, or institutions. Even though law can be a tool and we often treat it as tool, its essence, its nature, its first order purpose is not as a tool to be wielded. (Note here the passive voice, which points out a secondary problem: who is the righful wielder of the tool and who decides what end is to be sought?)

The late Harold Berman put it this way:

It is widely accepted in our law schools that law is essentially something that is made by political authorities, including legislators, judges, and administrators, to effectuate their policies; that law is essentially a means of social engineering; that law is essentially a pragmatic device, an instrument, used by those in power to accomplish their will. Of course, law is all that. But it is not solely that-- it is not essentially that. What is omitted from the prevailing view is a belief that law is rooted in something bigger than the people who hand it down -- that law is rooted in history and in the moral order of the universe.

HAROLD J. BERMAN, The Crisis of Legal Education in America, in FAITH AND ORDER: THE RECONCILIATION OF LAW AND RELIGION 333-34 (Scholars Press 1993) (cited in REDEEMING LAW, p. 24).

In short, the question is whether the essence, the nature, the primary purpose of law is instrumental: that is, something created by those in power to accomplish particular ends. The answer is no: it is not primarily, essentially, naturally a mere tool. When law is reduced to a pragmatic human artifact, it loses its very nature as something rooted, as Berman says, in the moral order of the universe.