Divorce Lawyers who Hate Divorce

Over at Cross & Gavel Audio, my new podcast is up. I interview Bill Hollberg and Eric Wilborn, family law experts who won't sue for divorce or handle marriage dissolution cases unless the primary goal of the client is to restore the marriage.

Bill and Eric discuss their views of marriage, what they are seeing in the trenches, and what it means to seek to practice law to the glory of God and for the flourishing of the world-- even if you don't always see the results you are hoping for.

I wish more lawyers had their principles. I think this is a good example of a redemptive approach to law practice.

True to Form: Business "Corporations" Support Same-Sex "Marriage"

Inorganic Associations for Inorganic Unions

Here's a way to re-frame some of the ideas of my last post on appropriate corporate forms and the current anti-family structure of corporations law: The principles of modern corporations law justify same-sex marriage. This may either weaken Christian resistance to same-sex marriage, if we accept these principles, or force us to reevaluate the forms of modern corporations law.

The Basic Argument: just as corporations law grants businesses associations corporate status regardless of whether there is an underlying real, moral group entity, so too same-sex marriage law declares indifference as to whether a same-sex marriage is a real moral union. Both forms of legal association, business corporations and same-sex marriage, grant associational privileges without respect to an underlying real moral union. They both rely on the same commitment to legal constructivism, i.e. the idea that the law is permitted to privilege a social form without respect to a real underlying moral arrangement. In the case of business corporations, the replacement of the family as the primary mode of economic life has had massive effects as amoral anonymous business corporations were privileged over families. Homosexual "marriage" simply applies to marriage law the constructivism already enshrined in corporations law, further leeching away the privileged position of the organic family.

Consistency in their Principles

Consider how the defense of Christian marriage rests on the assertion that what is a real marriage should matter for law. In their well-known paper, What is Marriage?, p. 250-1, Prof. George, et al., recognize that normative evaluation of a legal institution in se assumes that it is not a pure construction of law: "First, marriage is not a legal construct with totally malleable contours—not 'just a contract.' Otherwise, how could the law get marriage wrong? Some sexual relationships are instances of a distinctive kind of relationship—call it real marriage—that has its own value and structure, whether the state recognizes it or not, and is not changed by laws based on a false conception of it. Like the relationship between parents and their children, or between the parties to an ordinary promise, real marriages are moral realities that create moral privileges and obligations between people, independently of legal enforcement ... the state cannot choose or change the essence of real marriage; so in radically reinventing legal marriage, the state would obscure a moral reality."

As there are real marriages, so there are real, organic corporations, e.g., people who have moral relationships that unite them into a single body with justified corporate powers and responsibilities. To use a classical example, an army, as opposed to a mob, is not just a crowd of individuals who happen to be together. An army is a real group with true moral relationships among its members, usually formed by oaths and mutual submission to military leadership, that justify treating it as one for many purposes, e.g., in attacking an individual member of an opposing army when the leadership of that army has declared war, though the individual has done nothing, or in imposing responsibility upon it for the acts of its members in violation of the laws of war. Another example: the Roman Catholic church, for historic and factual reasons, is regarded as a real, organic corporation under international law; it is not incorporated by any government, but it is afforded legal personality because it is considered a real group entity. In the Bible, nations are frequently treated as real corporate entities and they are treated this way under international law as well. The family is actually the central example in the Bible of a real corporate entity; thus, the actions of family heads, in acquiring property or making covenants or sinning or acting in faith, impact members across generations.

Under modern business corporations law, however, the absence of any real organic corporate existence is treated as irrelevant to the issue of whether the law should treat a particular business as having a corporate existence. Incorporation of a business commences and endures without reference to the existence of any real, social entity or moral relationship among shareholders. The shareholders of Exxon Mobil Corp., for example, lack any social relationship among themselves. With respect to one another, they are merely mutually anonymous contributors of capital to an enterprise from which they expect profit without bearing any responsibility for business operations. They have no real social unity and assume no real mutual social responsibilities. Nevertheless, modern corporations law gives associational privileges (legal personality, limited liability, formation facilitation, dispute-resolution support) to these shareholders.

If Christians affirm that corporations law may grant associational privileges regardless of the existence of an underlying moral group entity, then the same principle would support granting associational privileges to same-sex marriages regardless of the absence of a real marital union. The arguments would shift to the purely utilitarian considerations of constructing or not constructing such forms. By contrast, we may hold as Prof. George argues for marriage that "the state cannot choose or change the essence of real [corporations]; so in radically reinventing legal [corporations], the state would obscure a moral reality." In this case, we would believe that modern corporations law obscures the real corporate entities that should have our allegiance, e.g. the family and nation.

United for Homosexuality

Modern business corporations have joined the battle against Christian social forms. Fortune 500 corporations overwhelmingly fund and support homosexual activism. They rightly view the homosexual lobby as their natural allies in social constructivism. Christians should consider carefully whether the principles of corporations law with their massive social impact on how wealth and power are distributed away from natural communities of love, are consistent with the patterns of love to which they are committed. Having entrusted vast power to artificial corporations, Christians now find that those engines of efficiency are arrayed against the most basic institution of social life.

(Those interested in Christian legal theory may also note that there is a distinct idea of natural-law jurisprudence here. Instead of emphasizing natural-law jurisprudence in terms of our ability to rationally know what the primary norms of law should be, we might instead frame a commitment to natural law as anti-constructivist. A natural-law jurisprudence would insist that law should be made in relation to actual moral relations, whether known rationally or not, rather than creating artificial relations through force. Natural-law jurisprudence thereby loses its heavy epistemic commitments and becomes an ethic of law making favoring respect for naturally occurring organic relations over artificially created ones.)

Polygamy, Nature, Jefferson and Volokh

Liked Arguments from Nature

UCLA Professor Eugene Volokh, et alii coniurati, recently received the imprint of the Washington Post for their important libertarian law blog, The Volokh Conspiracy. Volokh’s recent salvo against the naturalness of heterosexual, monogamous marriage will no doubt ingratiate him to his new more liberal readership.

Doesn't Like Them

Volokh criticizes a Liberty Counsel press release, entitled “Virginia AG abandons natural marriage.” Volokh writes: “Really? What is so natural about exclusively one-man-one-woman marriage, as opposed to polygamy …?” Volokh proceeds to argue that because (a) polygamy is historically common behavior, and (b) naturalness consists of common behavioral patterns, so therefore, (c) polygamy is natural.

Volokh’s argument has all the force of a response to the Declaration of Independence which denied that the Laws of Nature entitle any people to independence because many people have, in nature, been denied independence. That is, Volokh’s argument does not even engage the position it opposes.

Those, like Jefferson or Liberty Counsel, who press the idea of “natural” as a guide to behavior plainly do not reduce nature to regular physical behaviors, as Volokh does. They speak of “the natural” normatively rather than descriptively. For example, to say that a car, according to its nature, transports people safely from place to place does not mean that cars crashes are not among the most frequent causes of serious injuries in modern society. It means that it is not in keeping with a car’s nature that they injure people when they are made in order to transport them safely. When Jefferson says that natural law entitles the colonies to independence, he makes no comment on whether most colonies have historically been afforded independence. He says something about the purpose for which governments exist among men. And, when a natural-law advocate says that man is not naturally polygamous or adulterous, he makes no necessary comment on whether men frequently have had multiple wives or cheated on their spouses. He says it is not in keeping with being a man to do so.

Volokh concludes “… the important point is that choosing what sorts of relationships to legally recognize as ‘marriage’ is a matter of social choice, not a ‘natural’ or ‘ontological’ matter.” Showing that marriage laws have varied, as Volokh does, says nothing about whether the shape of marriage law is merely a matter of social choice. Laws have varied on almost every subject, but this does not license us to reduce their shape to a mere matter of social choice. Does Volokh think that all the historic variations in the law of life, liberty and property makes all such issues mere matters of social choice? I don’t believe he does. 

Assorted Links

Peter Leithart, President of Trinity House and always worth reading, has an excellent meditation on Isaiah 60. In the context of discussions of natural law, one might ask which accounts of natural light avoid rivalry with the divine light summoning the nations to Zion? "Nations will come to your light, and kings to the brightness of your dawn." Christians in law want to be part of the light drawing the nations to Christ. When do efforts to justify the authority of law without reference to Christ do that?

Pastor Doug Wilson makes some effective remarks on behalf of natural law: here and here. He takes up the proper creational concept of nature and the problem of self-deception respectively.

Jordan Ballor and Brad Littlejohn have a nice exchange about Christian attitudes toward the minimum wage, with the spectre of Marx floating in the background.

The U.S. Supreme Court's recent decision in Daimler AG v. Bauman reverses the 9th Circuit's expansion of general jurisdiction over multinational companies based on the forum activities of their agent/subsidiaries. The 9-0 decision hides a more complex issue about the appropriateness of allowing multi-national corporations broad discretion in determining their corporate homes, though the Sotomayor concurrence, which really wants to be a dissent, brings this out a little. If the 9th Circuit decision had stood and spread, it would have ended the way that multi-national corporations do business in the world. The localist in me, the lover of the little platoons, would prefer to see all local businesses compete on more equal footing with the bigs.

NDPR reviews Wolterstorff's The Mighty and the Almighty. The book is important for Christians thinking about legal authority and wrongheaded in large part. For some, the review may fail to capture its importance and its most important errors.

Beautifully crafted essay on the problem of structure in nonfiction writing, particularly the conflict between chronology and theme. It nicely exemplifies the approaches to reconciling the two in the course of explaining the problem.

Lord Kames classic on equity is back in print thanks to Liberty Fund.

Natural Law and Ephesians 2:1-3

What idea of natural law would be consistent with Ephesians 2:1-3’s description of natural man?

And you were dead in the trespasses and sins in which you once walked, following the course of this world, following the prince of the power of the air, the spirit that is now at work in the sons of disobedience— among whom we all once lived in the passions of our flesh, carrying out the desires of the body and the mind, and were by nature children of wrath, like the rest of mankind. (ESV)

In this light, Christians must hold either that (1) natural man lacks the ability to know or follow the natural law, or (2) natural man's following the natural law is consistent with being sinful. To put it another way, if man’s reason and will are sufficient for lawful actions via natural law, then either (1) natural man lacks reason/will or (2) the kind of lawful actions involved in following natural law are consistent with being dead in trespasses and sins, i.e. natural law does not lead to righteous acts.

Here’s part of Calvin’s commentary on the passage:

A more severe condemnation of mankind could not have been pronounced. What does [Paul] leave to us, when he declares us to be the slaves of Satan, and subject to his will, so long as we live outside of the kingdom of Christ? …

Where is now the free-will, the guidance of reason, moral virtue…? What will they find that is pure or holy under the tyranny of the devil? …there is no obscurity in the apostle’s language; and all men who live according to the world … are here declared to fight under the reign of Satan.

Calvin seems to grant that will, reason and moral virtue are related, as do proponents of natural law. What he denies is that men can will, reason and attain moral virtue while they are under the tyranny of Satan. He denies, not that men can know natural law by reason, but that natural man can reason or will truly while he remains dead in sin.

In other words, a Christian idea of natural law cannot be determined simply by associating human reason with moral virtue; it must also take a position on whether human reason and will operate naturally before regeneration in Christ.

The Uses of Natural Law – Guidance and Inspiration

Myron rightly comments “we can’t manage [military] tactics effectively by asking ‘what does natural law teach us here?’” He and I both recoil from the idea that natural law can provide us with much necessary, demonstrable guidance as to regulatory specifics. Nevertheless, today, many Christians turn to natural-law arguments in an effort to demonstrate what the law should be in specific, usually controversial, areas. I suspect that Myron and I share significant doubts about the central role that natural law has assumed in Christian discourse about law. But, as Myron knows, Aquinas would remind us that, regardless of our contemporary practice, the right use of natural law is not necessarily to provide us with general cognitive principles from which particularized regulations can be determined more geometrico.

In addition to necessary logical deductions, natural law may alternatively inspire with a general vision that is given practical determination through the supra-logical art of the craftsman-ruler. Here’s the relevant bit from ST I-II, Q. 95, a 2:

… something may be derived from the natural law in two ways: (1) as a conclusion from premises, and (2) by way of determination of certain generalities. The first way is like that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape.

Aquinas says in essence: all law is derived from natural law – sometimes by syllogism, and sometimes by a process that is like an architect working from the idea of an ecclesial assembly-hall to the Chartres cathedral. Christian natural-law discourse today emphasizes its role in guiding public reasoning far more than its role in inspiring legal craftsmanship, but Aquinas might say that this is a fault of our modern rationalistic practice and not the use of natural law as a source of particular, specific laws.

For those of us seeking to encourage a Christ-centered response to law, the inspirational mode seems like it should be much more important. The Lordship of Jesus may not entail anything about modern law from a deductive standpoint. But it is a matter of historical fact that the life of Jesus and the belief in His Kingdom has successfully inspired a great deal of wonderful practical lawmaking, just as it has inspired a great deal of other art and craft. Cognitively, Jesus may mean very little for the science of aesthetics, but He has inspired vast amounts of our greatest art. Cognitively, Jesus may mean very little for the law, but the vision of His Kingdom, the thought of our Crucified King, has inspired our best legal reforms and structures.

If it is true that as a matter of deduction, Jesus entails little or nothing for law. Then we should conclude that the non-deductive use of natural law is the most significant or only use for Christians. That is, we should be gathering Christian inspiration for lawmaking, not public argumentation for specific policies. Indeed, we might say that the inevitable failure of public reasoning about law in the Christ-less terms of deductive natural-law reasoning is a necessary correlate to Jesus’ Kingship. Moreover, since we believe that Jesus reigns, we should still expect inspiration from Him about our laws, even if we determine that public reason cannot reach the necessary significance of Christ for public life in this age.

Stuff Worth Considering

Welcome to Friday. Here's some "stuff" from the past week that lawyers and law students might benefit from considering:

Discussion on the difficulties of women in the legal profession

• From Professor Liz Schiltz over at MOJ, a thoughtful discussion spurred by a consideration of the dearth of mothers on the Supreme Court
• From Above the Law, a completely different (as you might imagine) take on women's career paths and difficulties

Anderson Cooper's interview with Christopher Hitchens about his cancer (article and video). As you probably know, I am grappling with the issues raised by the church's responses to Hitch's illness. The interview is heartbreaking and illuminating.

The Proposition 8 decision:

• The opinion itself (good luck getting through it)
• Professor Steve Smith on the inevitability of this decision
• The WSJ Blog collects comments and links to commentary (great source for further reading)
• James Kushiner blogs at Touchstone Magazine
• First Thoughts wieghs in: David Mills on the fallacies in Judge Walker's logic, RR Reno on Thought Police, and Joe Carter on gender and polygamy in Walker's logic. There are embedded links within these interesting pieces as well.

Grab a cup of coffee and explore the rabbit trails!