1. Many extended works on these issues have appeared over the years. Among those appearing recently are: Morgan, R., The Supreme Court and Religion (1972)Google Scholar; Gianella, , Religious Liberty, Non-Establishment, and Doctrinal Development: Part II, The Non-Establishment Principle, 81 Harv. L. Rev. 513 (1968)CrossRefGoogle Scholar; Pfeffer, L., Church, State, and Freedom (1967 ed.).Google Scholar; Antieau, C., P. Carroll, & T. Burke, Religion under the State Constitutions (1965)Google Scholar; Howe, M., The Garden and the Wilderness (1965)Google Scholar; Sutherland, A., The Church Shall be Free (1965)Google Scholar; Antieau, C., Downey, A., & Roberts, E., Freedom from Federal Establishment (1964)Google Scholar; Katz, W., Religion and American Constitutions (1964)Google Scholar; Kauper, P., Religion and the Constitution (1964)Google Scholar; Stokes, A. & Pfeffer, L., Church and State in the United States (1964)Google Scholar; Kurland, P., Religion and Law (1962)Google Scholar; Miller, P., Roger Williams: His Contributions to the American Revolution (1953)Google Scholar.

2. The three organizations mentioned are by no means the only ones focused on the subject of law and religion in the United States for at least 13 other organizations are currently active. These are listed in an Appendix to this essay. The three mentioned here have been chosen because they have been in the forefront of activity which has fostered much of the renewed interest in law and religion from the distinctive perspective which this literature shares.

Of the 13 other organizations mentioned in the Appendix, the Christian Legal Society merits special note. The organization, with a membership of over 3000, is open to those who share a commitment to an evangelical Christian faith. The organization seeks to support its members in the articulation of their religious commitment in three ways. (1) It supports the care and nurture of the evangelical faith commitment. (1) It supports the work of the Center for Religious Freedom which monitors developments in the courts relating to church and state issues. (3) It conducts conferences periodically devoted to the issues which confront practicing lawyers with a view to bringing the evangelical view to bear on these issues. Most notable in this regard are recent conferences and activities devoted to studying and implementing proposals for alternative means of dispute resolution between people who share an evangelical Christian commitment.

In addition to the Journal of Law and Religion, other journals devoted to somewhat similar study, although from their own particular perspective are: The Christian Legal Society Quarterly, published by the Christian Legal Society; and The Jurist, published by the Canon Law Department of the Catholic University of America.

3. Law, Religion and Legal Education, 27 J. Legal Educ. 380-389; 595–598 (1976)Google Scholar; Symposium: Interaction of Law and Religion in the United States, 26 Cath. U.L. Rev. 17–72 (1976)Google Scholar; Theology and Law: Responsibilities of Vocation, 2 NICM J. 5–115 (1977)Google Scholar (“NICM J” refers to the NICM (National Institute for Campus Ministries) Journal for Jews and Christians in Higher Education); Religion and the Law, 29 Hastings L.J. 1257–1660 (1978)Google ScholarPubMed; Symposium: Religion and Law, 8 Cap. U. L. Rev. 345–464 (1979)Google Scholar; Symposium: The Secularization of the Law, 31 Mercer L. Rev. 401–476 (1980)Google Scholar.

4. Two conferences on ‘Law and Christianity’ were held in 1957 and 1958 respectively. The first, held in April 1957, in Whittinsville, Massachusetts, was sponsored by the Faculty Christian Fellowship and the United Student Christian Council. These are faculty and student organizations, respectively, related to the National Council of Churches of Christ in the United States of America. Papers from the 1957 conference were published simultaneously as a symposium in 40 The Christian Scholar 163–244 (1957)Google Scholar and in 10 Vand. L. Rev. 879–968 (1957)Google Scholar. The second conference was held in September 1958 at the University of Chicago. Papers from the 1958 conference were published as a symposium in 12 Okla. L. Rev. 45–146 (1959)Google Scholar.

5. For a listing of all of these articles, published as part of the symposia mentioned, supra note 3, as well as individually, see the Bibliography following this article.

6. See, e.g., Rothenberg, , Law, Religion, and Legal Education, 27 J. Legal Educ. 380 (1976)Google Scholar; Hall, Religion, Law and Ethics: A Call for Dialogue, 29 Hastings L.J. 1257 (1978)Google Scholar. Rothenberg, , Interaction of Law and Religion in the United States: Introduction, 26 Cath. U.L. Rev. 17 (1976)Google Scholar; Berman, , Introduction: The Prophetic, Pastoral, and Priestly Vocation of the Lawyer, 2 NICM J. 5 (1977)Google Scholar; Cole, , The Secularization of the Law: Introduction, 31 Mercer L. Rev. 401 (1980)Google Scholar.

7. Modern legal theory, for the most part, constitutes variant types of Legal Positivism. Legal Positivism and Natural Law are, broadly speaking, the two schools of legal theory which have dominated Western jurisprudence since the time of the ancient Greeks down to the 20th Century. Since much of the work in jurisprudence involves an elaboration of the central premises of one or the other of these two schools of thought, it may prove useful to briefly set forth an overview of certain distinctive characteristics of Natural Law and Legal Positivism. Natural Law theory reigned supreme until the enlightenment and ultimately fell into serious decline with the rise of utilitarianism in the 19th Century which became the basis of much of modern Legal Positivist theory. Both continue to play a role in contemporary jurisprudence although legal positivism dominates.

Natural Law theory has as its distinctive characteristic the understanding that law springs from and reflects enduring principles of universal application. The source of these may be transcendent ideals, as in Plato, or the Divine Law of God, as in the most systematic natural law thinker, St. Thomas Aquinas. Positive law is understood by natural law theory as a human endeavor which is law only insofar as it reflects the natural law. It further takes the position that natural principles of justice can be “discovered” and thus worked into positive law by the use of unaided human reason. This theory ultimately places true law outside of human limits but makes it accessible to human experience through the use of reason. A significant feature of natural law is that it sets up the possibility of determining whether human positive law is actually law by judging it according to the criterion of the natural law. Thus the natural law lawyer will declare in the face of an apparently unjust positive law that such a “law” need not be obeyed since it is not law.

Legal Positivism was developed in the modern era by John Austin. It is largely based on the utilitarian ideas of John Stuart Mill and Jeremy Bentham. This theory of law embraces the idea that law is essentially a general command of the highest political authority backed up by the coercive sanctions of that authority. Further, it claims that law as a category of human behavior is distinct from morals. Thus law is understood as imperative rather than indicative as in natural law. The conclusion of the positivist is that law is morally neutral. It does not, however, deny that law has moral consequences but rather, rejects the idea that unjust laws are not law. The positivist view of law espoused by Austin has roots in ancient philosophy. It was first proposed by the Sophists, themselves lawyers, and also appears in Plato's Republic. There Thrasymachus challenges Socrates' view that justice, and therefore law, consisted in rendering what is due another. Thrasymachus advocated the view that justice and law consisted only in the declaration and imposition of the will of whoever had the power to make and declare law. In Rome, the jurisconsult Ulpian took a similar view in his defense of the power of the Caesars to make, declare and impose law on the people. The most immediate roots of Austin's works are found in The Leviathan of Thomas Hobbes. Hobbes argued that law was the command of the absolute sovereign. For Hobbes this meant that the sovereign was superior not only to the subjects under the sovereign's law, but also that the sovereign was completely above law, unfettered in any manner by its constraints. The sovereign, for Hobbes an absolute monarch, was indistinguishable from a tyrant. Tyrannical though the power of the sovereign was to make and enforce law, Hobbes saw it as a necessity which arose out of the state of nature. In the state of nature, the human was fraught by insecurity due to the threat to one's security that came from others in the human society.

Modern legal positivism follows Hobbes by explicitly rejecting the notion that the members of a political society retain any rights not expressly recognized by the law of that community. Ultimately positivist theory stands opposed to the traditional concept of natural rights on the grounds that they are irrelevant and outside an empirical metaphysics. In this light, the Constitution of the United States is understood as the organic legislative act of the people. The Constitution is thus a law which established and organizes a government and places limitations on that government by legislating a system of structural checks and balances and an enumerated set of individual rights which are both political and legal. They are not natural rights, existing prior to the recognition given them by law. Prior to such recognition they are mere claims which may be grounded in a variety of moral theories. That, however, does not raise them to legal status. Only the sovereign can do that.

8. See supra note 4.

9. Katt, , Law, Christianity and the University, 10 Vand. L. Rev. 879 (1957)Google Scholar.

10. Pike, , A Symposium on Law and Christianity: Introduction, 12 Okla. L. Rev. 45 (1959)Google Scholar.

11. Although the lawyers' Canons of Ethics, in effect since 1908, were thoroughly reexamined in the 1960s and superceded by the Code of Professional Responsibility, a new call for examination of the professional code of responsibility was heard in many places. The practical impact of this took three forms. First, the teaching of courses in professional responsibility became mandatory in law schools. Second, mandatory continuing legal education was initiated in many states in an effort to improve lawyers' competency. This was done on a state by state basis. In Minnesota, for example, this was ordered by the Minnesota Supreme Court on November 6, 1975. A provision in the rules pertaining to Mandatory Continuing Legal Education in Minnesota includes a provision concerning legal ethics. Rule 101(b) states “the course shall deal primarily with matter directly related to the practice of law or to the professional responsibility or ethical obligations of the participants.” Third, a new ABA Commission on Evaluation of Professional Standards headed by the late Robert Kutak came into existence in the summer of 1977. Its task was to reexamine the Code of Professional Responsibility in light of the revelations of Watergate even though that code was less than ten years old. The proposed revisions which the Kutak Commission suggested included a requirement that lawyers “blow the whistle” on clients who violate the law. The Kutak commission recommendations were adopted, with modifications, by the ABA on Aug. 2, 1983 at its annual meeting.

12. Hall, supra note 6, at 1257.

13. Berman, supra note 6, at 5 and 6.

14. E.g., Martin Luther King, Jr.'s Letter from a Birmingham Jail poses a challenge to the authority of the law of the state and to to the witness of the institutional church. King, M. Jr., Letter From Birmingham City Jail at 77, in Civil Disobedience: Theory and Practice (Bedau, H. ed. 1969)Google Scholar.

15. Nader, , Law School and Law Firms, 54 Minn. L. Rev. 493 (1970)Google Scholar; Note, The New Public Interest Lawyers, 79 Yale L.J. 1098 (1970)Google Scholar.

16. See, e.g., Dandridge v. Wilhams, 397 U.S. 471 (1970); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973).

17. Symposium: The Secularization of the Law, supra, note 3.

18. Cole, supra note 6, at 401.

19. The AALS Section on Law and Religion was established by the AALS in 1974. The first annual program on law and religion was sponsored by the new section at the Annual meeting in 1974.

20. CORAL began as an informal association in Cambridge, Massachusetts in 1976 as the result of initiative by Harvard Law School students Frank S. Alexander and Thomas Porter and a Harvard Divinity School student, J. Mark Taylor. CORAL was later incorporated and the first meeting of the Board of Directors was held in Cambridge on November 19, 1977.

21. The SCE Interest Group was established by the SCE in 1976. The first “Ethics and Law” paper was read and a panel discussion was held at the 1977 Annual Meeting of the SCE.

22. The subjects of these nine programs were: The Secularization of Anglo-American Legal Education in the 19th and 20th Centuries, and the Role of Law and Religion in the Current Law School Curriculum, (December 29, 1974, San Francisco, California); Interaction of Law and Religion in the United States, (December 28, 1975, Washington, D.C.); Religious Conceptions of Law, (December 27, 1976, Houston Texas); The Specious Morality of the Law — Law as Our Civil Religion, (December 28, 1977, Atlanta, Georgia); Modern Law, Religion and Religious Law in the Quest for Marital Harmony, (January 4, 1979, Chicago, Illinois); Religious Challenges to Legalism, (January 5, 1980, Phoenix, Arizona); Church and State: A Comparative and International Perspective, (Jan. 4, 1981, San Antonio, Texas); Religion and Politics: A Constitutional Historian's Reply to Professor Freund and Pastor Falwell, (Jan. 8, 1982, Philadelphia, Pennsylvania); Religious Perspectives on War in the Nuclear Age, (Jan. 6, 1983, Cincinnati, Ohio).

23. of the papers presented since 1974 the following have been published in scholarly journals. Berman, , The Secularization of American Legal Education in the Nineteenth and Twentieth Centuries, 27 J. Legal Educ. 382 (1976)Google Scholar; Coulson, , Law and Religion in Contemporary Islam, 29 Hastings L.J. 1447 (1978)Google Scholar; Davies, , Paul and the Law: Reflections on Pitfalls in Interpretation, 29 Hastings L. J. 1959 (1978)Google Scholar. Decker, , Religion and Law in the United States: A Prognosis, 8 Cap. U. L. Rev. 357 (1979)Google Scholar; Dorff, & Rossett, , A Course Offering in Jewish Law, 27 J. Legal Educ. 595 (1976)Google Scholar; Dorff, , Judaism as a Religious Legal System, 29 Hastings L.J. 1331 (1978)Google Scholar; Lai, & Lee, , The Chinese Conceptions of Law: Confucian, Legalist, and Buddhist, 29 Hastings L.J. 1307 (1978)Google Scholar; Levinson, , A.A.L.S. Law and Religion Panel: Law as Our Civil Religion, 31 Mercer L. Rev. 477 (1980)Google Scholar; Bellah, , A.A.L.S. Law and Religion Panel: Law as Our Civil Religion, 31 Mercer L. Rev. 483 (1980)Google Scholar; Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U. L. Rev. 57 (1976)Google Scholar; Louisell, , Does the Constitution Require a Purely Secular Society?, 26 Cath. U. L. Rev. 20 (1976)Google Scholar; Noonan, , Belief in Law and Belief in Religion, 27 J. Legal Educ. 386 (1976)Google Scholar; Rocher, , Hindu Conceptions of Law, 29 Hastings L.J. 1283 (1978 Google Scholar; Rothenberg, , Law, Religion, and Legal Education, 27 J. Legal Educ. 380 (1976)Google Scholar; Sturm, , The “Path of the Law” and the Via Salutis: A Naturalistic Perspective, 26 Cath. U. L. Rev. 35 (1976)Google Scholar.

24. The newsletter published by the AALS Section has appeared nine times since its first appearance in 1976. In addition to this newsletter, one occasional paper has been distributed by the AALS Section to those on its newsletter distribution list.

25. A newsletter, published by CORAL, giving information on programs and initiatives related to law and religion has appeared ten times since the first issue appeared in 1977. Several conferences and symposia have been held since 1976. The themes pursued in these events are evident in the titles. “Theology and Law: Responsibilities of Vocation” (1976); “Professional Education and Ministry to Legal Communities” (1978); “Religion, Law, and the Political Process Today” (1981).

26. Several articles generated by CORAL conferences have been published since 1976. The major papers presented at the 1976 conference and responses to those papers were published as a symposium in Theology and Law: Responsibilities of Vocation, supra note 3. The major pieces making up this symposium are: Berman, , Introduction: The Prophetic, Pastoral, and Priestly Vocation of the Lawyer, 2 NICM J. 5 (1977)Google Scholar; Bresnahan, , Theology and Law: A Deeper Understanding of Vocation, 2 NICM J. 10 (1977)Google Scholar; Cramton, , The Ordinary Religion of the Law School Classroom, 2 NICM J. 72 (1977)Google Scholar (this was simutaneously published at 29 J. Legal Educ. 247 (1978))Google Scholar; Shannon, , Professional Responsibility: Who is Responsible for What?, 2 NICM J. 51 (1977)Google Scholar; Stendahl, , Afterword: Notes for a Future Agenda, 2 NICM J. 108 (1977)Google Scholar. In the case of the 1977 symposium on “Theology and Law: Responsibilities of Vocation,” the edited versions of some of the Responses to the major speakers appear at 2 NICM J. at 41-50; 62-71; 91-107 (1977).

27. Committee on Religion and Law, Interface: Programs in Theology, Law and Ethics (1977).

28. In 1983 the members of the Society of Christian Ethics numbered in excess of 670. Its members are drawn almost exclusively from the ranks of those teaching ethics in departments of religion at colleges and universities, seminary professors and those engaged in the practical work of social ethics sponsored by a variety of church bodies. Virtually all of the major figures in Christian ethics are members of the Society. A few of the members have law degrees in addition to graduate degrees in religion or ethics. These plus others interested in social ethics and law form the core of the Ethics and Law Interest Group of the Society.

29. The complete list of the papers given under the auspices of the Ethics and Law Interest Group since 1977 is: McDowell, , Ethics and Law: The Ethical Foundations of Bilingual Education Law (01 1982)Google Scholar (unpublished manuscript read at the Twenty-Third Annual Meeting of the Society of Christian Ethics, Washington, D.C.); Hiers, , Ethics and Law: Title VII and Judicial Policy-Making 1971-1971 (01 1982)Google Scholar (unpublished manuscript read at the Twenty-Third Annual Meeting of the Society of Christian Ethics, Washington, D.C.); Kammer, , Ethics and Law: Vocation and Professions, in The Society of Christian Ethics 1981 Annual 153 (Ogletree, T. ed.)Google Scholar; Lebacqz, , Ethics and Law: Professional Ethics: Power and Principalities (01 1981)Google Scholar (unpublished manuscript read at the Twenty-Second Annual Meeting of the American Society of Christian Ethics, New York, N.Y.); Lumbard, , Ethics and Law: Current Controversy about Professional Ethics of Attorneys, Remarks at the Twenty-Third Annual Meeting of the Society of Christian Ethics, Washington, D.C. (01 1982)Google Scholar; Malloy, , Ethics and Law: Isolation of the Criminal Agent: The Christian Rationalefor Imprisonment (01 1982) (unpublished manuscript read at the Twenty-Third Annual Meeting of the Society of Christian Ethics, Washington, D.C.)Google Scholar; Manning, , Due Process and Individual Rights in Court Decisions on Property and Liberty, in The American Society of Christian Ethics 1979 Selected Papers from the Twentieth Annual Meeting 117 (Stackhouse, M. ed.)Google Scholar; Rothenberg, , The Role of Judges and the Courts as Definers of Ethical Norms, in The American Society of Christian Ethics 1977 Selected Papers Eighteenth Annual Meeting 104 (Stackhouse, Max ed.)Google Scholar; Smurl, , Eligibility for Legal Aid: Whom to Help When Unable to Help All, 12 Ind. L. Rev. 519(1979)Google Scholar; Stassen, , Professional Ethicists' Testimony in Death Penalty Cases, in The Society of Christian Ethics 1980 Selected Papers Twenty-First Annual Meeting 125 (Allen, J. ed.)Google Scholar.

30. At its annual business meeting during the twenty-fourth annual meeting held in Indianapolis, Indiana, January 15, 1983, the membership of the Society approved a grant of $500 to the Journal and extended to it cooperating association with the annual mailings of the Society's office to its membership.

31. Berman, H., The Interaction of Law and Religion (1974) [hereinafter cited as H. Berman, Interaction]Google Scholar.

32. Professor Berman's major focus and reputation as a legal scholar is found in his work in comparative and Soviet Law. He is generally acknowledged to be among the foremost experts on Soviet Law. In this field he has published a large number of books and articles. For a representative sampling, see Berman, H., Documents on Soviet Military Law & Administration (1955)Google Scholar; Berman, H., Justice in the U.S.S.R.; an Interpretation of Soviet Law (1963)CrossRefGoogle Scholar; Berman, H., Basic Laws on the Structure of the Soviet State (1969)Google Scholar; Berman, H., Soviet Criminal Law and Procedure; The RSFSR Codes (1972)Google Scholar; Berman, , Companion of the Chinese and Soviet Codes of Criminal Law and Procedure, 73 J. Crim. L. 238–58 (1982)CrossRefGoogle Scholar.

33. See, e.g., Berman, , The Origins of Western Legal Science, 90 Harv. L. Rev. 894 (1977)CrossRefGoogle Scholar; Berman, , Theological Sources of the Western Legal Tradition, 1977 Rev. Jur. U.P.R. 372 Google Scholar; Berman, , The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. Chi. L. Rev. 553 (1978)CrossRefGoogle Scholar.

34. Berman, , The Crisis of the Western Legal Tradition, 9 Creighton L. Rev. 252 (1975)Google Scholar; The Religious Foundations of Western Law, 24 Cath. U. L. Rev. 490 (1975)Google Scholar; The Secularization of American Legal Education in the Nineteenth and Twentieth Centuries, 27 J. Legal Educ. 382 (1976)Google Scholar; Introduction: The Prophetic, Pastoral, and Priestly Vocation of the Lawyer, 2 NICM J. 5 (1977)Google Scholar; The Origins of Western Legal Science, 90 Harv. L. Rev. 894 (1977)CrossRefGoogle Scholar; Theological Sources of the Western Legal Tradition, 1977 Rev. Jur. U.P.R. 372 Google Scholar; The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. Chi. L. Rev. 553 (1978)CrossRefGoogle Scholar; An address entitled “The Interaction of Law and Religion” elaborating the themes of his 1974 book, supra note 31, and presented at three different conferences in virtually identical form, was subsequently published in three journals; The Interaction of Law and Religion, 2 Humanities In Soc'y 105 (1970)Google Scholar; The Interaction of Law and Religion, 8 Cap. U.L. Rev. 345 (1979)Google Scholar; The Interaction of Law and Religion, 31 Mercer L. Rev. 405 (1980)Google Scholar. In addition to these publications, Professor Berman published an article on the relation of law and Christianity in 1959. Berman, , The Influence of Christianity Upon the Developments of Law, 12 Okla. L. Rev. 86 (1959)Google Scholar. While this article demonstrated a well-developed and reflective consideration of some of the themes which are present in his more recent work, he did not publish again in law and religion, except for a brief piece in 1964; Berman, , Love and Law, 56 Episcopal Theological Sch. Bull. 11 (1964)Google Scholar; until his 1974 book, and the 1975 articles in the Cath. U.L. Rev. and Creighton L. Rev.

35. This course was first offered 25 years ago on a non-credit basis. It was initiated on the urging of law student, William Stringfellow. It has since been periodically offered for law and divinity students. Several have been active in the field since their student days. Among the notable contributions made by former members of the Adams-Berman seminar at Harvard are the following: William Stringfellow, author of several books and articles touching on themes related to the tension between religion and law, as well as a member of the editorial board of Christianity & Crisis; Mark Taylor, Frank Alexander, and Thomas Porter, prominent in the creation of the Council on Religion and Law, as well as contributors to the literature. For a representative sampling of the work and concerns of James Luther Adams in the field of theology see the essays collected in his On Being Human Religiously: Selected Essays in Religion and Society (Stackhouse, M., ed. 1976) Google Scholar.

36. This was published as Berman, , The Secularization of American Legal Education in the Nineteenth and Twentieth Centuries, 27 J. Legal Educ. 382 (1976)Google Scholar. Other presentations on the program were published as a symposium; Law, Religion and Legal Education, supra note 3.

37. Berman, , The Religious Foundations of Western Law, 24 Cath. U. L. Rev. 490 (1975)Google Scholar.

38. Berman, , The Crisis of the Western Legal Tradition, 9 Creighton L. Rev. 252 (1975)Google Scholar.

39. H. Berman, Interaction, supra note 31.

40. Berman participated in the planning of the 1976 and 1981 conferences noted in note 25 supra.

41. The presentations and responses at the conference were published as a symposium; Theology and Law: Responsibilities of Vocation, supra note 3.

42. Berman, , The Origins of Western Legal Science, 90 Harv. L. Rev. 894 (1977) [hereinafter cited as Berman, Origins]CrossRefGoogle Scholar; Berman, , Theological Sources of the Western Legal Tradition, 1977 Rev. Jur. U.P.R. 372 [hereinafter cited as Berman, Theological]Google Scholar; Berman, , The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. Chi. L. Rev. 553 (1978) [hereinafter cited as Berman, Background]CrossRefGoogle Scholar.

43. Berman makes reference to this work in progress under a different title in the footnotes of each of these three articles. Berman, Origins, supra note 42, at 894; Berman, Theological, supra note 42, at 371; and Berman, Background, supra note 42, at 553.

44. Berman, , The Interaction of Law and Religion, 8 Cap. U.L. Rev. 345 (1979)Google Scholar.

45. Symposium: Religion and Law, 8 Cap. U.L. Rev. 354–464 (1979)Google Scholar.

46. The address delivered at the conference was published in Berman, , The Interaction of Law and Religion, 2 Humanities In Soc'y 105 (1979)Google Scholar. The conference was held over a period of two days immediately preceding the annual meeting of the Society of Christian Ethics also held at the University of Southern California.

47. Berman, , The Interaction of Law and Religion, 31 Mercer L. Rev. 405 (1980)Google Scholar.

48. Symposium: The Secularization of the Law, 31 Mercer L. Rev. 401–476 (1980)Google Scholar.

49. H. Berman, Interaction, supra note 31. Professor Berman had, of course, addressed himself to some of these themes much earlier in the paper he delivered at the 1958 conference on Christianity and Law at the University of Chicago subsequently published in Berman, , The Influence of Christianity Upon the Developments of Law, 12 Okla L. Rev. 86 (1959)Google Scholar.

50. See, e.g., Levine, , “Whodunit?”: Religious Intolerance and the Secularization of Law, 2 Humanities In Soc'y 95 (1979).Google Scholar; Sturm, , Modernity and the Meaning of Law: The Importance of the Religious Factor, 2 Humanities In Soc'y 117 (1979)Google Scholar. For an earlier treatment which views law and religion as related and interactive in a common endeavor, see Guterman, , The Interaction of Religion, Law, and Politics in Western Society: Its Historical Character and Influence 17 U. Miami L. Rev. 439 (1963)Google Scholar. Cf. Roth, , Authority, Religion and Law, 58 Hibbert J. 115 at 120 (1960)Google Scholar, suggesting that “the struggle of law to re-create our societies” and “the struggle of religion to re-create [our] souls” are possibly the same struggle.

51. H. Berman, Interaction, supra note 31, at 12.

52. Id. at 11, 12, 24, and 49.

53. Id. at 21-30, 40, 77-78, and 125. Religion, according to Berman, when it becomes, excessively privatized, is unable to provide the underlying meaning and vision which gives vitality to the other aspects of social experience such as law.

54. Id. at 11.

55. Id. at 24.

56. Among the various characteristics of modern thought, Berman emphasizes the secularization of law and the privatization of religion.

57. H. Berman, Interaction, supra note 31, at 12.

58. See, e.g., Sturm, , The “Path of the Law” and the Via Salutis: A Naturalistic Perspective, 26 Cath. U.L. Rev. 35 (1976)Google Scholar; Decker, , Religion and Law in the United States: A Prognosis, 8 Cap. U. L. Rev. 357 (1979)Google Scholar; Rohr, , An Interaction: Theology and Legal Education, 8 Cap. U.L. Rev. 429 (1979)Google Scholar; Bresnahan, , The Interaction of Religion and Law-A Post- Vatican II Roman Catholic Perspective, 29 Hastings L. J. 1361 (1978)Google Scholar; Donahue, , The Interaction of Law and Religion in the Middle Ages, 31 Mercer L. Rev. 466 (1980)Google Scholar; Noonan, , Belief in Law and Belief in Religion, 21 J. Legal Educ. 386 (1976)Google Scholar.

59. See, e.g., Bresnahan, Task Force Report: The Task Force on Law and Ethics, 197681, in The Annual of The Society of Christian Ethics 1981, 237 (T. Ogletree ed.).

60. In addition to the works listed supra note 58, the following works make explicit reference to Berman's work on the interaction of law and religion and utilize it in the context of their own works: Sturm, supra note 50; Neuhaus, , Law and the Rightness of Things, 14 Val. U.L. Rev. 1 (1979)Google Scholar; Cramton, supra note 26.

61. Berman, supra note 49. This article was originally delivered at a conference held at the University of Chicago in 1958. See supra note 4.

62. Paris, Book Review, America, Jun. 15, 1974 at 482; Keefe, , Book Review, 33 Rev. For Religious 760 (1974)Google Scholar; Phillips, , Book Review, The Times Literary Supplement, 11 22, 1974 at 1323 Google Scholar; Gertz, , Book Review, The Christian Century, 03 12, 1975 at 264 Google Scholar; Boyle, , Book Review, 16 Heythrop J. 433 (1975)Google Scholar; Adams, , Book Review, 30 Interpretation 106 (1976)Google Scholar; Gilhooley, , Book Review, Thought, 03 1978 at 102 Google Scholar. A brief review of Berman's book is also found in Bresnahan, , A Note on Recent Literature: Religion and Law in a New Perspective, in The Annual of the Society of Christian Ethics 1981, 243 (Ogletree, T., ed.)Google Scholar.

63. See Boyer, and Cramton, , American Legal Education: An Agenda for Research and Reform, 59 Cornell L. Rev. 221 (1974)Google Scholar.

64. Berman and others have called for a new synthesis in response to the contemporary problems in modern thought. H. Berman, Interaction, supra note 31, at 110-118; Sturm, Law and the Cultural Crisis, address to the First Annual Meeting of the Council on Religion and Law Board of Directors, Cambridge Mass., Nov. 19, 1977; see also Cole, supra note 6; Levine, supra note 50; Sturm, supra note 50.

65. See e.g., D'Errico, , ‘The Law Is Terror Put into Words;’ A Humanist's Analysis of the Increasing Separation Between Concerns of Law and Concerns of Justice, 2 Learning and the Law 39 (1975)Google Scholar; Halpern, , On the Politics and Pathology of Legal Education, 32 J. Legal Educ. 383 (1982)Google Scholar.

66. See infra note 132.

67. Berman, Theological, supra note 42; Berman, Origins, supra note 42; Berman, Background, supra note 42.

68. 29 Hastings L.J. (1978)Google Scholar. This compilation consists of the following articles: Hall, Religion, Law and Ethics: A Call for Dialogue; Rocher, Hindu Conceptions of Law; Lai & Lee, The Chinese Conceptions of Law: Confucian, Legalist, and Buddhist; Dorff, Judaism as a Religious Legal System; Bresnahan, The Interaction of Religion and Law-A Post- Vatican II Roman Catholic Perspective; Bassett, Canon Law and the Common Law; Riga, Marsiglio of Padova: Father and Creator of the Modern Legal System; Coulson, Law and Religion in Contemporary Islam; Davies, Paul and the Law: Reflections on Pitfalls in Interpretation; Hertz, Luther and the Law; Wolf, Religion and Right in the Philosophia Christiana of Erasmus from Rotterdam; Burgess, John Courtney Murray and Martin Luther on the Relationship Between Church and State; Fingarette, The Meaning of the Law in the Book of Job; Konvitz, Conscience and Civil Disobedience in Jewish, Christian, and Greek and Roman Thought; Forer, Judicial Responsibility and Moral Values.

69. Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U.L. Rev. 57 (1976)Google Scholar; Morse, , A Legal Commentary on Thomistic Philosophy, 8 Cap. U.L. Rev. 387 (1979)Google Scholar; Alexander, , Validity and Function of Law: The Reformation Doctrine of Usus Legis, 31 Mercer L. Rev. 509 (1980)Google Scholar; and Donahue, , The Interaction of Law and Religion in the Middle Ages, 31 Mercer L. Rev. 466 (1980)Google Scholar.

70. Rocher, , Hindu Conceptions of Law, 29 Hastings L.J. 1283 (1978)Google Scholar.

71. Lai, & Lee, , The Chinese Conceptions of Law: Confucian Legalist, and Buddhist, 29 Hastings L.J. 1307 (1978)Google Scholar.

72. The authors point out that shortly after the “Legalists” led to the establishment of the first Chinese legal system, a “Confucian Legalist Synthesis” was accomplished. Id. at 1307. The authors summarize the extensive literature on the “Confucian-Legalist Tradition” and then proceed to a lengthy discussion of the “Buddha-Dharma” or “Law of the Buddha.” Id. at 1312-22. Their major concern is to summarize the impact of the Law of the Buddha upon past and present Chinese law. Id. at 1322-29.

73. Id. at 1308.

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108. Id. at 27.

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114. During the period 1897 through 1937, commonly referred to as the "Lochner Era", substantive due process was frequently and successfully invoked to protect the prevailing economic arrangements from interference by governmental regulation. This era ended after the decisions in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) and Nebbia v. New York, 291 U.S. 502 (1934). Since then the Court has repeatedly disavowed any attempt to return to the Lochner era.

115. The phrase is Justice Black's dissenting in Griswold v. Connecticut, 381 U.S. 479, at 516 (1965).

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130. E.g, Auerbach, J., Unequal Justice (1976)Google Scholar. For a brief statement of the thesis of this book see Auerbach, A Plague of Lawyers, Harper'S, Oct. 1976, at 37.

131. These attacks generally carry with them one or more of three themes: (a) That law schools are not serving the public due to a focus on professionalism at the expense of the potential client; e.g, Hacker, , The Shame of the Professional Schools, Harpers, 10 1981, at 22 Google Scholar; Halpern, , On the Politics and Pathology of Legal Education, 32 J. Legal Educ. 383 (1982)Google Scholar; (b) That law schools are dehumanizing to students; e.g, Halpern, supra; Bell, , The Law Student as Slave, Student Lawyer, 10 1982, at 18 Google Scholar; (c) That law schools fail to address the concern of justice in the curriculum; e.g, Auerbach, , What Has the Teaching of Law to do with Justice, 53 N.Y.U.L. Rev. 457 (1978)Google Scholar; Halpern, supra; D'Errico, , “The Law Is Terror Put Into Words;” A Humanist's Analysis of the Increasing Separation Between Concerns of Law and Concerns of Justice, 2 Learning and the Law 39 (1975)Google Scholar; Ayer, , Isn't There Enough Reality to go Around?; An Essay on the Unspoken Promises of Our Law, 53 N.Y.U.L. Rev. 475 (1978)Google Scholar.

132. The question of the future direction for legal scholarship provided the main theme of the 1983 annual meeting of the Association of American Law Schools. The plenary session was opened with a provocative address given by Robert Stevens, President of Haverford College, himself a lawyer, and former law professor. In his remarks Stevens, raised the possibility that legal scholarship is simply out of touch with the reality of the practicing bar. American Legal Scholarship: Structural Constraints and Intellectual Conceptualism, Address at the Association of American Law Schools Annual Luncheon, in Cincinnati, Ohio (01 7, 1983)Google Scholar. See also, Dawson, , American Legal Scholarship: Directions and Dilemmas—Past American Legal Scholarship, (unpublished manuscript read at Association of American Law Schools Annual Meeting Plenary Session, in Cincinnati, Ohio)Google Scholar; Vetter, , American Legal Scholarship: Directions and Dilemmas-Post World War II American Legal Scholarship, (01 7, 1983) (unpublished manuscript read at Association of American Law School Annual Meeting Plenary Session, in Cincinnati, Ohio)Google Scholar.

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134. Lessard, supra note 133 at 28.

135. Levinson, supra note 133, at 35.

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137. Id at 396-97; Professor Levinson argues in this book review that constitutional legal scholarship has failed to develop a comprehensible theory of the constitution. This complements Levinson's argument, expressed elsewhere, that the American faith in the Constitution has been cut off from its roots because of secularization in modern thought and thus is on extremely precarious grounds in our contemporary life. Levinson, , The Specious Morality of the Law, Harper's, 05 1977, at 35 Google Scholar; Levinson, , “The Constitution” in American Civil Religion, 1979 Sup. Ct. Rev. 123 Google Scholar; Levinson, , A.A.LS. Law and Religion Panel: Law as Our Civil Religion, 31 Mercer L. Rev. 477 (1980)Google Scholar.

138. E.g., Auerbach, supra note 130; Auerbach, supra note 131; Ayer, supra note 131; Hunsaker, , Law, Humanism and Communication: Suggestions for Limited Curriculum Reform, 30 J. Legal Educ. 417 (1980)Google Scholar.

139. Rothenberg, Law, Religion and Legal Education, supra note 6.

140. Noonan, , Belief in Law and Belief in Religion, 27 J. Legal Educ. 386 (1976)Google Scholar.

141. Id. at 389. For a fascinating study which employs similar insights on the role of persons in the belief system of law, see Noonan, J. Jr., Persons and Masks of the Law: Cardozo, Holmes, Jefferson, & Wythe as Makers of the Masks (1976)Google Scholar.

142. Cramton, , The Ordinary Religion of the Law School Classroom, 29 J. Legal Educ. 247 (1978)Google Scholar (this article was simultaneously published in 2 NICM J. 72 (1977)).

143. Id. at 248.

144. Rohr, , An Interaction: Theology and Legal Education Cap. U. L. Rev. 429 (1979)Google Scholar.

145. Sturm, , The “Path of the Law” and the Via Salutis: A Naturalistic Perspective, 26 Cath. L. Rev. 35, 56 (1976)Google Scholar.

146. See, e.g., Auerbach, A Plague of Lawyers, supra note 130; Hacker, supra note 131; Halpern, supra note 131.

147. Lieberman, J., Crisis at the Bar: The Unethical Ethics of Lawyers (and What to do about it) (1978)Google Scholar; Freedman, M., Lawyers Ethics in an Adversary System (1975)Google Scholar; Caplan, , Lawyers and Litigants: A Cult Revisited, in Disabling Professions, at 93 (Illich, I. ed. 1977)Google Scholar.

148. The lawyer's Code of Professional Responsibility, or “Legal Ethics” as it is often referred to, has long been the subject of comment and controversy. Three separate sets of codes have been proposed in the last eighty years. of these two have been in effect and the third is pending.

149. Pike, J., Beyond The Law: The Religious and Ethical Meaning of the Lawyer's Vocation, at 18 (1963)Google Scholar, cited with approval in — Rammer, , Ethics and Law: Vocation and the Professions, in the Society of Christian Ethics 1981 Annual 153, 168 (Ogletree, T. ed.)Google Scholar.

150. Kammer, supra note 149, at 171.

151. For earlier treatments of similar themes which root the larger context for the practice of law in a Christian understanding of reality see, Ellis, , The Christian Lawyer as a Public Servant, 10 Vand. L. Rev. 912 (1957)Google Scholar; MacKinnon, , Summary of a Statement of the Effect of Religions Principles on Lawyers' Ethical Problems, 10 Vand. L. Rev. 931 (1957)Google Scholar; Stringfellow, , The Christian Lawyer as a Churchman, 10 Vand. K, Rev. 967 (1957)Google Scholar; Mulder, & Olsson, , Christian and Lawyer, 12 Okla. L. Rev. 113 (1959)Google Scholar; Stringfellow, , Christianity, Poverty and the Practice of Law, 10 Harv. L. Sch. Bull. 4 (1959)Google Scholar, reprinted in 8 Cap. U.L. Rev. 451 (1979).

152. Manning, , A Socio-Ethical Foundation for Meeting the Obligations of the Legal Profession, 5 Cum.-Sam. L. Rev. 237 (1974)Google Scholar.

153. Symposium: Theology and Law: Responsibilities of Vocation, supra note 3.

154. Symposium: The Secularization of the Law, supra note 3.

155. Shaffer, T., On Being a Christian and a Lawyer (1981)Google Scholar.

156. Berman, supra note 6, at 6.

157. Kammer, supra note 149, at 171.

158. Bresnahan, , Theology and Law: A Deeper Understanding of Vocation, 1 Nicm J. 10 (1977)Google Scholar; Shannon, , Professional Responsibility: Who is Responsible for What?, 2 Nicm J. 51 (1977)Google Scholar; Cramton, , The Ordinary Religion of the Law School Classroom, 2 Nicm J. 72 (1977)Google Scholar (this article was simultaneously published in 29 J. Legal Educ. 247 (1978))Google Scholar.

159. Bresnahan, , “Ethics” and the Study and Practice of Law: The Problem of Being a Professional in the Fuller Sense, 28 J. Legal Educ. 189 (1976)Google Scholar; Bresnahan, , Ethical Theory and Professional Responsibility: Possible Contributions of Religious Ethics to Dialogue About Professional Ethics of Attorneys, 37 Jurist 56 (1977)Google Scholar; Bresnahan, , Theology and Law: A Deeper Understanding of Vocation, 2 Nicm J. 10 (1977)Google Scholar. See also Bresnahan, & Kane, , Professional Ethics and Competence in Trial Practice, 62 A.B.A.J. 988 (1976)Google Scholar. Bresnahan has also contributed an article dealing with the interaction of law and religion generally, The Interaction of Religion and Law—A Post-Vatican II Roman Catholic Perspective, 29 Hastings L.J. 1361 (1978)Google Scholar.

160. Bresnahan, “Ethics” and the Study and Practice of Law, supra note 159, at 189 & 192.

161. Bresnahan, Ethical Theory and Professional Responsibility, supra note 159.

162. In this respect, Bresnahan's anlaysis mirrors the new literature by insisting that the religious dimensions of reality must be included in any view of law or legal practice. He sets about, in his proposal for a dialogue between lawyer's and ethicists, to create the conditions under which this “dimension of ultimacy” might be recognized in the legal practice.

163. Bresnahan, Ethical Theory and Professional Responsibility, supra note 159, at 83.

164. Bresnahan, Theology and Law, A Deeper Understanding of Vocation, supra note 159.

165. Id. at 39-40.

166. Shannon, supra note 158.

167. Id. at 53.

168. Cramton, supra note 142.

169. Id. at 263.

170. The symposium along with several other articles and the AALS Section's Panel Discussion for 1977 which focused on “The Specious Morality of Law” are published in 31 Mercer L. Rev. (1980).

171. Cole, supra note 6, at 403.

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173. Sturm, , American Legal Realism and the Covenantal Myth: World Views of the Practice of Law, 31 Mercer L. Rev. 487 (1980)Google Scholar.

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175. Adams, supra note 172, at 535.

176. Sturm, supra note 173, at 487.

177. Id. at 488, 496-97.

178. Id. at 499. Sturm appropriates “the new realism in religious inquiry” as discussed in Meland, B., Fallible Forms and Symbols: Discourses of Method in a Culture 3 (1976)Google Scholar.

179. Sturm, supra note 173, at 499.

180. Id. at 505-06.

181. Taylor, supra note 174, at 545.

182. Id. at 546.

183. Id. at 547.

184. Rothenberg, , The Role of Judges and the Courts as Definers of Ethical Norms, in The American Society of Christian Ethics 1977 Selected Papers from the Eighteenth Annual Meeting 104 (Stackhouse, M. ed.)Google Scholar.

185. Id. at 123.

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190. Cole, supra note 6, at 404.

191. See, e.g., infra note 197, at 415.

192. Older attempts at a religiously based understanding of law include, e.g., Harding, A., Religion Morality and Law (1956)Google Scholar; Taylor, E., The Christian Philosophy of Law, Politics and the State (1966)Google Scholar; Berman, The Influence of Christianity Upon the Development of Law, supra note 34; Silving, , The Jurisprudence of the Old Testament, 28 N.Y.U.L. Rev. 1129 (1953)Google Scholar; Stumpf, , Theology and Jurisprudence, 10 Vand. L. Rev. 885 (1957)Google Scholar.

193. Decker, , Religion and Law in the United States, A Prognosis, 8 Cap. U. L. Rev. 357, 368 (1979)Google Scholar.

194. Professor Funk served as chairperson of the section for three years during which time he planned three programs, some of which have found their way into print, and initiated a newsletter on behalf of the section.

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196. Id. at 376.

197. Rodes, , Pluralist Christendom and the Christian Civil Magistrate, 8 Cap. U.L. Rev. 413 (1979)Google Scholar.

198. Id. at 415-16.

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202. Sturm, The “Path of the Law” and the Via Salutis, supra note 200 at 35.

203. Id. at 39.

204. Sturm, American Legal Realism and the Covenental Myth, supra note 200.

205. Id. at 505.

206. Id. at 507.

207. Id. at 508. Sturm articulates in more detail the need for lawyers to develop a “public philosophy” in a later article. Sturm, Lawyering and the Needfor a Public Philosophy, supra, note 200.

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209. Id. at 6.

210. Gaffney, , The Extraordinary Irreligion of the Law School Classroom: A Reply to Dean Cramton, 2 Nicm J. (1977)Google Scholar; Gaffney, , The Gospel and the Law: Jurisprudence of Richard Neuhaus, 14 Val. U.L. Rev. 15 (1979)Google Scholar. See also, Gaffney, , Law and Theology: A Dialog on Abortion Decisions, 33 Jurist 134 (1973)Google Scholar.

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