“CLS” was an acronym with two very different meanings when I was a fledgling law student some thirty-five years ago. For most, it meant “critical legal studies,” a burgeoning new movement of sundry neo-Marxist jurists and philosophers collectively bent on exposing the fallacies and false equalities of modern law. Many of my first-year law professors were the high priests of this CLS movement. They were making serious waves at the time with their denunciation of much that was considered sound and settled in the law. The best CLS professors taught black letter doctrine—and then shredded it with rhetorical and analytical power. That instruction appealed to my native ethic of semper reformanda—always reforming and working to improve our traditions. Other professors simply taught their pet critical topics, sending us students scrambling to the bookstore in search of study guides that would acquaint us with the legal basics. After a year of such CLS instruction, I could not wait to take the upper-level electives that would no doubt unveil the new and better legal system CLS had in mind. Little was on offer. The “crits,” I soon learned, were better at deconstruction than reconstruction of the law. Not surprisingly, this movement has now faded and fractured into sundry special interest groups.

It is a remarkable fact that ancient Christianity did not establish a distinct legal system. The early Christians did not take over the Jewish law as the basis for the church. Rather, they accepted the administrative and legal context of the Roman Empire and developed their religious and ethical views within this framework. Consequently, unlike in Judaism and Islam, a “Christian law” was not established, even not after the acceptance of Christianity as the official religion in the Roman Empire or as Christianity became the prevailing religion in the Middle Ages and remained so into modern times. Nevertheless, Christianity developed its own perspective on legal and ethical matters. Distinctive for this view is the difference between the commitment to God's will on the one hand and the respect for human legal systems on the other. In other words, Christianity developed a perspective on the relationship of law and theology that can be described as the implementation of a double directive: Christians are bound to an ethos oriented towards God's will, but at the same time they accept the rules and authorities of this world. This view also means that God's commandments found in the scriptures of Israel are now interpreted in a new way. They are not regarded as ethical and ritual rules that would separate Christian communities from society. Rather, God's law, interpreted by Jesus Christ, serves as the guideline for a life of the Christian believers within the world of the Roman Empire. Both of these concepts—the acceptance of the legislation of the society and the commitment to God's will—can come into conflict with each other, as has often happened in Christian history. Already in early Christianity it was pointed out that obedience to God should prevail over human law.

This essay was presented as the 2015 McDonald Distinguished Scholar Lecture at the Center for the Study of Law and Religion, Emory University.

Here is a model for “legal theology,” a way of learning and teaching about God that arises in and responds to the desire to understand the significance of law: a son is moved to ask “what is the meaning” of the law followed by his father, and the father is commanded to explain by teaching about God's deliverance. There are three similar commands in Exodus (Exodus 12:26, 13:8, 13:14), linked in tradition, where sons wonder and fathers are commanded to explain how a particular law signifies God's redemption. These four commands in Exodus and Deuteronomy indicate a method for legal theology.

The biblical authors often portray God as a royal judge who brings justice to a fallen creation. This portrayal analogizes God's role in governing humanity to the role played by judges in human legal systems. The divine judge, like human judges, investigates and evaluates conduct, measuring human acts against applicable laws. Like human judges, he fashions punishments and rewards to accomplish justice in light of the conduct disclosed.

Theological explorations of law have sometimes followed a “prophetic” model in which scripture or theological ethics serves as the primary norm for human law. After all, if God has spoken his Law into the world, especially a world beset by sin and oppression, should not human law answer to that Law? Moreover, is not law more authoritative when it is “found” or “discovered” within the framework of divine revelation than when it is “made” autonomously by fallen human beings?

This essay was presented as the 2015 McDonald Distinguished Scholar Lecture at the Center for the Study of Law and Religion, Emory University.

This essay was presented as a 2016 McDonald Distinguished Scholar Lecture at the Center for the Study of Law and Religion, Emory University.

Ecclesiology is the study of the church which explores the origins, nature, and purposes of the church universal. Its method includes developing categories to indicate the attributes of the church, as e.g. one, holy, catholic, and apostolic; the people of God; and the fellowship of the spirit. One aim of ecclesiology is to teach and help us understand what may be authentic, required, permissible, or appropriate church structures, such as in ministry, government, discipleship, evangelism, worship, and teaching. Legal theology might be considered to be a branch of ecclesiology. Many scholars refer to church law as applied ecclesiology, and in so doing they speak of a “theology of church law” and a “theology in church law.” The former is a doctrinal and perhaps more speculative exercise; the latter is more descriptive and scientific.

Theology, the study of God, consists of a network of subdisciplines: biblical theology, moral theology, ecumenical theology, and so on. Each branch of theology has its own distinctive object of study, methods, and purposes. For example, pneumatology studies the Holy Spirit, practical theology uses the pastoral cycle, and liberation theology seeks to transform unjust societal structures that oppress the marginalized. Each branch of theology has its own distinctive community of scholars. It is a common view (though perhaps a contested one, as between the different church traditions) that the main purpose of Christian theology is to proclaim the Gospel of Christ. The branches of theology, in turn, are vehicles for each of this core purpose. Legal theology could become a branch of theology with its own distinctive objects of study, methods, and purposes. What follows explores these themes, how the subdiscipline of legal theology might be defined and developed in the context of the study of the systems of law, order, and polity, of churches across the Christian traditions that deal with, for example, forms of regulation, ministry (lay or ordained), governance (institutions and functions), discipline, doctrine, worship, rites, property, and external relations. It does so as to the following. (1) The object of study: legal theology should at its core be about the relationship between theology and church law—more particularly, the relationship between church law and each of the other branches of theology. (2) The method of study: legal theology may involve the theological study of church law and/or the legal study of theology using standard juristic methods (such as text and context, critical, historical, analytical) as well as methods used in the other branches of theology (3) The purpose of study: the development of a community of scholars collaborating with a view to its impact on ecclesial practice. Theology is indispensable to a full understanding of the place of law in the life of the church; and law provides evidence to test the propositions of theology in the practical life of the church as this is translated through norms to action.

What is divinity if it can come
Only in silent shadows and in dreams?
—Wallace Stevens

In this essay, I argue for the fittingness of restoring in the era of secularization the dialogue between theology, the rational discourse about the divine, and the jurisprudence of the secular legal system. From a secular point of view, it is suitable for legal thinkers and legal philosophers to be familiar with theology, just as it is best for an architect to be familiar with the type of soil on which to build a structure. From a theological point of view, it is also appropriate for theologians to be familiar with the secular-legal, just as it is suitable for an environmental soil scientist to know the type of structures that can be built on a landscape. Interactions, synergies, and communication between sciences play an important role in the development of a scientist's knowledge.

The academic interdisciplinary study of law and religion is in a unique place, brimming with hope and promise. This constellation of scholars, conferences, journals, academic centers, books and book series, and public interest law firms has matured considerably since the “path-breaking” commencement of the movement, the publication of Harold Berman's 1974 short book, The Interaction of Law and Religion. No longer can the study of law and religion be solely identified with the study of the First Amendment's religion clauses. Scholars have explored topics both large scale and fine grain in history, church law, the intersection of religious ethics and law, religion and international human rights law, and in other subareas of the field.

“Legal theology” must mean more than theological reflection on legal topics just as “feminist theology” means more than theological reflection on “women's issues.” This is no simple application procedure, but a dynamic interaction between two fields of play, each with an internal variety of methods, considerations, and arguments. Amidst the varieties of Christian theology, Christian feminist theology has distinct methodological features that reflect experiences of subjugation and political commitments to equality and mutuality. Similarly, Christian legal theology—should it in fact develop—cannot claim to represent all Christian reflection as though Christian theology is monolithic and neutrally applied to a stagnant list of legal topics. Rather, Christian legal theology would reflect a distinctive way of doing theology in light of experiences, commitments, and practices within the “world of law.” Given the variety internal to Christian theology and the world of law, the configurations for Christian legal theology are indeed myriad.

The liberal principle of reciprocity requires that states maintain neutrality with respect to their citizens’ competing comprehensive worldviews (both religious and secular) while officially justifying the law and while adjudicating under it. But the very possibility of such liberal neutrality has come under attack in a post-Enlightenment world in which even foundational arguments for the principle of reciprocity itself are no longer taken for granted. This article offers a pragmatist path to the resolution of this liberal dilemma. It recommends a “default and challenge” model for legal justification and legitimation that is rooted in social-linguistic practice. By rooting justification and legitimation in practice, it is argued liberal neutrality can be preserved without need for appeals to controversial foundational commitments at any level of public political justification. The article closes with a fictional case study concerning abortion to show how politicians and courts can apply this method to preserve liberal neutrality while addressing even the most controversial issues.

In this essay I argue that religion, understood as harmony with the transcendent source of existence and meaning, is a good that practical reason grasps as an objective, distinct, and important aspect of human well-being, one that reasonably takes pride of place among the various aspects of a good human life due to its architectonic role in structuring and adding a transcendent meaning to all of the other goods that we pursue. On the basis of this view of religion, I suggest that religious belief and practice deserve special protection in law, above and beyond mere preferences and even other conscientious commitments. I develop this view through a dialectical engagement with Ronald Dworkin, Brian Barry, and Christopher Eisgruber and Lawrence Sager.

This article develops a legal and theological critique of the Shelby County, Alabama v. Holder decision that dismantled portions of the Voting Rights Act. Defending the Voting Rights Act in light of four basic features of voting rights—access, participation, empowerment, and expression of conscience—I refute the Shelby decision in terms of its oversimplified notions of discrimination and its overly narrow construal of federalism as state sovereignty and equality. I draw upon Catholic social teaching's subsidiarity and Johannes Althusius's federalism to defend the individual and communal dimensions of voting rights. I examine post-Shelby developments, including voter-identification laws, and I argue that such laws are unfounded and have deleterious effects. I conclude by offering modest recommendations for a post-Shelby world, including continued roles for Congress and the Department of Justice, the use of intermediary organizations, and the rescinding of felon disenfranchisement laws.

While histories of ideas in premodern perspectives habitually understood history as divisions of fixed periods, modernists tend to narrate these histories in terms of flowing streams curving through timelines, intersections, and junctions. Crucial moments, accordingly, are turns and returns, shifts and orientations. I am not sure what it takes to diagnose and proclaim an intellectual turn or how to affirm or refute such a phenomenon, but I take the audacious risk and argue that the last couple of decades have seen a “legal turn” in the study of religions—a renewed focus on legal aspects of religion that includes legal concepts, theories, and practices.

Australia adopted the Charities Act of 2013, consolidating and restating the country's governing statutes on the registration and qualification of charities, but leaving to the future any reconciliation between faith-related charities claiming religious liberty and others demanding marriage equality and no discrimination based on sexuality. Concurrent to this development, but with an eye to the direction of charity law in common law systems throughout the world, major works have come to us from two Australian scholars. In this review I offer much about these two monographs, but the discussion that immediately follows concerns the law of charitable nonprofits in the United States, the basic structure of that law, and current issues implicating religious freedom.