Mirror of Justice

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Wednesday, November 21, 2012

Theological Argument in the Law

From our friend, John Inazu, announcing publication of the volume of Duke's Journal of Law & Contemporary Problems that he helmed (and to which I and Michael Moreland, among others, contributed):

Dear Friends and Colleagues,

I am pleased to announce the publication of a volume on Theological Argument in Law just out in Duke's Journal of Law & Contemporary Problems.  The volume bridges connections between legal scholarship and the work of theologian Stanley Hauerwas.  Contributors include Bradley Wendel, Elizabeth Schiltz, Michael Moreland, James Logan, David Skeel, Cathleen Kaveny, Charlton Copeland, John Inazu, Stephen Carter, and Stephen Macedo.  The volume also includes a dialogue between H. Jefferson Powell and Stanley Hauerwas, and a response to the articles from Hauerwas.

 The table of contents for the full volume is here (all articles are freely downloadable as pdf files):  

 http://lcp.law.duke.edu/

 For those interested in a brief overview, here are are a few words from my introduction to the volume:

 

Stanley Hauerwas has emerged as one of the foremost scholars and public intellectuals of the last four decades. He has written scores of books and hundreds of articles, has been named 'America’s Best Theologian' by Time magazine, and has 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.  Hauerwas’s arguments have shaped theological education and reached a broader public through books and sermons—both his own and those of the pastors and educators whom he has influenced.  His views have been scrutinized by some of the leading thinkers in religious studies, sociology, history, political theory, moral philosophy, and literary theory.  And they have been largely ignored in legal scholarship.


The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to the law: violence, liberalism, bioethics, disability, 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. As Jeffrey Stout has observed, '[t]he more thoroughly Rawlsian our law schools and ethics centers become, the more radically Hauerwasian the theological schools become.' . . .

Some of Hauerwas’s critics may be right to argue that he 'reacts against a type of liberalism that exists mostly on the pages of books by Rawls, Rorty, and their followers, and not in actual practice.'  But that description is least true of the academy.  Much teaching and scholarship relies upon unacknowledged constraints on argumentative practices from professors who embrace the ideals of Rawlsian public reason or, more strikingly, whose epistemic commitments welcome a spectacular diversity of viewpoints and worldviews—except for theological ones.  As a result, a great deal of scholarship ignores or too easily dismisses theological argument. . . .

 

Engagement with theological argument is not easy—it requires patient reading and thinking, particularly from those confronting unfamiliar discourses and ideas. But the effort is both philosophically and vocationally warranted. With respect to the former, an openness to the 'other' is a core dimension of the poststructuralist thought embraced by many legal scholars. With respect to the latter, the task of mediating unfamiliar concepts and ideas is part of what lawyers do. Our engagement with challenging ideas—including theological ones—helps us to make 'connections to possible and plausible states of affairs' and to 'integrate not only the ‘is’ and the ‘ought,’ but the ‘is,’ the ‘ought,’ and the ‘what might be. . . ’

 

And here are a few excerpts from Professor Hauerwas's response at the end of the volume:

 

That the law has always been important for me may seem odd. After all, I am usually associated with those who began to emphasize the importance of the virtues as an alternative to ethics, which is more determined by analogy to the law. Of course I have never been happy with the assumption that an ethic of the virtues is somehow antithetical to, or exclusive of, law-like accounts of our moral lives. I have associated the idea that you must choose among a deontological, teleological, or virtue ethic with minds who think that typologies can be identified with thinking. . . 

 

There is another reason the law has always fascinated me, which may surprise some given my commitment to Christian nonviolence. The law is so interesting because it is about power and manifests power. That power may at times be violent, but power can also often be an alternative to violence. These are not theoretical issues but everyday realities entailed by the work of the law.

 

The law is a morally rich tradition that offers a language otherwise unavailable for the conflicts we need to have as a society. That is a tradition in which I should like to count myself a participant.

 

I hope that these and the rest of the contributions will be of interest to you.  I would welcome any feedback you have.

 

John Inazu 

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