Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 4, 2021

Book Announcement: Christianity and Private Law

I am pleased to announce that a book I have co-edited with Bob Cochran, Christianity and Private Law, has been published by Routledge in its Law and Religion series and commissioned by the Center for the Study of Law and Religion at Emory. The book leads off with a Foreword from John Witte, an Introduction from Bob Cochran and me, and survey chapters by James Gordley and Brent Strawn. The rest of the book engages property, contracts, and torts from a range of theologically-informed views. In the torts section, Jeff Pojanowski and I have a chapter on "The Moral of Torts" on what a natural law perspective might bring to some debates in contemporary tort theory. Below are an excerpt from John Witte's Foreword and the Table of Contents.

“Private law” is a common phrase for Europeans who readily divide the legal world into public, private, penal, and procedural law categories, building in part on ancient Roman law, medieval canon law, and modern civil law.  “Private law” is a less common term for Anglo-American common lawyers. They are more familiar with several discrete legal subjects that Europeans gather under the canopy of private law – contracts, property, and torts at the center of the canopy, associational law, family law, testamentary law, civil procedure, remedies, and other topics nearer the periphery.  In both civil law and common law lands, private law focuses on the voluntary and involuntary legal relationships between private parties, whether individuals or private groups. The laws of the state – sometimes the laws of other non-state associations, too – facilitate and support those private relationships, articulate and vindicate interests and expectations that emerge from them, and offer remedies for harms that result from misfeasance, non-feasance, or breach of duty by another.  The editors and several chapter authors do a fine job defining and defending “private law” as a category, and drawing interesting relationships between contracts, torts, and property which are the main subjects treated in these pages.

“Christianity” comprises all manner of Christian ideas and institutions, norms and habits that are shaped by the familiar quadrilateral of Scripture, tradition, reason, and experience.  Distinct Catholic, Calvinist, Lutheran, Anglican, Anabaptist, and Evangelical voices, both historical and contemporary, come through in these pages, as does the powerful new Jewish voice of Michael Helfand.  The authors variously trace, describe, interpret, and critique the discrete contracts, property, and torts topics assigned to them.  Opening chapters in each of the four sections are devoted to biblical and traditional Christian teachings.  They underscore the depth, nuance, and complexity of Christian engagement with these fundamental private legal relationships.  Constructive and critical chapters later in each section highlight and illustrate the enduring value of these traditional Christian teachings for addressing discrete modern private law questions.  At the heart of many of these Christian reflections on torts, property, and contracts is the fundamental biblical question about how to love all of our neighbors – even our enemies and others who hurt us. Do we “turn the other check” to the tortfeasor?  Do we give aid and comfort to the stranger in imitation of the Good Samaritan?  Do we give our “second coat” to the thief who has stolen our first?  How do we responsibly acquire and use, have and hold, share and steward our property?  How do we balance freedom and fairness in contract?  It is just price or just market price that sets the bargain? Do we sue, arbitrate, or mediate our private conflicts, given the biblical injunction to “Go tell it to the church”?  And how do we judge and reason through the private law conflicts in a way that balances justice and mercy, rule and equity, principle and prudence?  These and many other questions have inspired centuries of deep thought by Christian jurists and judges who have variously drawn on biblical, theological, jurisprudential, historical, and natural law arguments to work out their legal systems. That rich world of Christian perspectives on private law is nicely illustrated in these authoritative but accessible chapters that will edify novices and experts alike.

Table of Contents

  1. Introduction
    1. John Witte, Jr. (Emory) – Foreword
    2. The Editors – Introduction
    3. James R. Gordley (Tulane) - Christian Origins of Private Law
    4. Brent A. Strawn (Duke) - Biblical Understandings of Private Law
  2. Property
    1. David W. Opderbeck (Seton Hall) - Christian Thought and Property Law
    2. William S. Brewbaker III (Alabama) - Augustinian Property
    3. Richard H. Helmholz (Chicago) - Religion and English Property Law: 1500-1700
    4. Adam J. MacLeod (Faulkner) – Property and Practical Reason
    5. Paula A. Franzese and Angela C. Carmella (Seton Hall) – Housing and hope: private property and Catholic social teaching
  3. Contracts
    1. Wim Decock (KU Leuven, Belgium) - Contract Law in Early Modern Scholasticism
    2. David S. Caudill (Villanova) - Private Law in Christian Perspective: The Example of Dooyeweerd on Contracts
    3. Scott Pryor (Campbell) - Destabilizing Contract: A Christian Argument For Revitalizing Unconscionability
    4. Val D. Ricks (South Texas) – Christianity, Freedom, and the Doctrine of Consideration
    5. Michael A. Helfand (Pepperdine) - Privatization and Pluralism in Dispute Resolution: Promoting Religious Values through Contract
  4. Torts
    1. Michael P. Moreland (Villanova) and Jeffrey A. Pojanowski (Notre Dame) – The Moral of Torts
    2. David F. Partlett (Emory) – Christianity and Tort Duties
    3. Nathan B. Oman (William & Mary) – Christianity’s Quarrel with Civil Recourse Theory
    4. Robert F. Cochran, Jr. (Pepperdine) - Tort Law and Intermediate Communities: Catholic and Calvinist Theories


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