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The Christian and Politics—Bainbridge, Stuntz, Bayly,and Pope Paul

November 1st, 2018 Leave a comment Go to comments

Professor Bainbridge recently wrote an especially good blog post,

Gaudium et Spes on the Christian’s Vocation: With Application to the Question “What Does It Mean To Be a Christian and a Lawyer?” and my old Friend Bill Stuntz.”

https://twitter.com/ProfBainbridge/status/1057748719578308614 .

In it, he muses as to what the late Professor Stuntz, a Harvard Law professor of criminal law and a Bible-believing Christian, would have thought about the 1965 papal encyclical Gaudium et Spes (Pastoral Constitution on the Church in the Modern World). http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651207_gaudium-et-spes_en.html . I knew Professor Stuntz a little also. We and our families all attended Christ the King Church in Central Square, Cambridge while I was on sabbatical at the law school around 2001. I’m going to have to read Gaudium et Spes some time; it looks like good stuff and I wonder if there is any of it I would disagree with. The post is a great and touching compliment to Bill Stuntz. How many of us will have friends wondering what we’d think about an issue after we’re dead?

In the blogpost Professor Bainbridge touches on a point where he thinks Stuntz would disagree with him and with Gaudium et Spes: whether Christians and the Church should try to make the world behave morally. It is this that I’ll comment on here, because it’s a very important controversy among intellectual conservative Christians, though one which is largely unconscious and where temperament and fear are as important as logic in determining one’s position. Essentially: should you make yourself hated by trying to deter sin in the world by political means, or should your Christianity have no effect on the policies you advocate? In its verbalized form, this is what my pastor calls the “R2K” heresy, short for “Radical Two Kingdoms”, a school of thought popular among conservative calvinist pastors that says the Church, meaning not only pastors but ordinary Christians, should stay out of political controversies on matters such as abortion and homosexuality. http://baylyblog.com/blog/2013/04/what-two-kingdoms-theology-and-why-does-it-matter

But first let’s think about Gaudium et Spes and Bill Stuntz and the things which are not only true Note that all the boldfacing is mine; I find it easier to follow quotes if the most important parts are highlighted like that.

“My friend the late Bill Stuntz was one of the most faithful men I have ever had the privilege of knowing and also one of the greatest legal scholars of my generation (criminal law). Several times I heard him discuss with great insight the question of what it means to be a Christian and a lawyer (or law professor). In a brilliant book review essay, Bill observed that:

“Christianizing the legal profession might have a much larger effect on law practice than on law. To see why, consider Jesus’s occupation for most of his adult life: he made tables, or whatever it was that ancient Middle Eastern carpenters made.Were the tables he made distinctive? Did he use different wood or a different manufacturing process than other carpenters used? The likely answer is no–at least, the gospel accounts offer no reason to think otherwise.

Now change the question: focus less on the noun and more on the verb. Instead of asking whether Jesus’s tables were different, ask whether he made the tables differently–whether his motivations and attitudes toward his work, the ways he treated his customers and his coworker, differed from the practices of other carpenters. The answer to that question is surely yes.”

William J. Stuntz, Christian Legal Theory, 116 Harv. L. Rev. 1707, 1721–22 (2003).

That insight was called to mind by my preparation today for the next session of my Catholic Social Thought and the Law seminar. We will be reading Gaudium et spes (literally “joy and hope,” but formally referred to as The Pastoral Constitution on the Church in the Modern World).

They are mistaken who, knowing that we have here no abiding city but seek one which is to come, think that they may therefore shirk their earthly responsibilities. For they are forgetting that by the faith itself they are more obliged than ever to measure up to these duties, each according to his proper vocation. Nor, on the contrary, are they any less wide of the mark who think that religion consists in acts of worship alone and in the discharge of certain moral obligations, and who imagine they can plunge themselves into earthly affairs in such a way as to imply that these are altogether divorced from the religious life. This split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age. Long since, the Prophets of the Old Testament fought vehemently against this scandal and even more so did Jesus Christ Himself in the New Testament threaten it with grave punishments. Therefore, let there be no false opposition between professional and social activities on the one part, and religious life on the other. The Christian who neglects his temporal duties, neglects his duties toward his neighbor and even God, and jeopardizes his eternal salvation. Christians should rather rejoice that, following the example of Christ Who worked as an artisan, they are free to give proper exercise to all their earthly activities and to their humane, domestic, professional, social and technical enterprises by gathering them into one vital synthesis with religious values, under whose supreme direction all things are harmonized unto God’s glory.

Secular duties and activities belong properly although not exclusively to laymen. Therefore acting as citizens in the world, whether individually or socially, they will keep the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields. They will gladly work with men seeking the same goals. Acknowledging the demands of faith and endowed with its force, they will unhesitatingly devise new enterprises, where they are appropriate, and put them into action. Laymen should also know that it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city; from priests they may look for spiritual light and nourishment. Let the layman not imagine that his pastors are always such experts, that to every problem which arises, however complicated, they can readily give him a concrete solution, or even that such is their mission. Rather, enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role.”

I wonder what Bill would make of that passage.

Bainbridge thinks that Stuntz would disapprove of using law— the power of the state— to try to improve morals. In the Harvard Law Review article, Stuntz says:

“People fear the claim that right answers exist–that God is God, that he is sovereign, that Christ’s ownership of all time and space is total. Those are strong claims, and they are not readily susceptible to secular argument. The fear makes sense, though, only if another claim follows: that the speaker knows–really knows–what all the right answers are. The second claim does not follow from the first. The proposition that God’s agenda governs (the idea for which Scalia was castigated) does not entail the proposition that Christians know what that agenda is. Indeed, for Christians the real implication is nearly the opposite. My conclusions are suspect because the reasoning that produces them is tainted by my sin. My faith makes me less confident about my views, legal and otherwise, not more so. (1726)

The point is not that morals and law don’t mix. They plainly do. Rather, the point is that when morals are contested–when the populace is divided about the relevant rights and wrongs–the side that gets its hands on the law’s weapons often finds that those weapons backfire. Backlashes against this kind of legal moralism are not the exception in American history. They are the rule. That pattern suggests that moralists should usually target the culture instead of the law. (1739-40)

Law may sometimes be an effective moral teacher, though I confess to having some doubts; I suspect that law follows the culture, not the other way around. Even if I am wrong, law surely teaches best when the relevant legal norms are enforced across the board, and when the moral precepts on which those legal norms rest are widely shared. In the spheres conservative Christians tend to emphasize most–reproduction, sexuality, physician-assisted suicide–the relevant morals are not widely shared. Where that is so, agnosticism–a poor moral stance, but often a wise legal posture–may be the law’s best option.” (1740)

Bainbridge ends thus:

I wonder whether there is something inherently Protestant about Bill’s approach to the question. (Bill was an evangelical who attended Park Street Church in Boston, a large and historic Congregational church.) I ask that because Gaudium et spes rather clearly thinks that there is a discernible Christian view, if not always an immediately obvious Christian solution.

I wish Bill was still alive so I could ask him.”

I find it’s 12:56 a.m. now, and I have postponed my grading too long and ought to use the energy this topic has inspired to do it, though the FTC Economics Conference starts at 8:30 tomorrow. So I’ll have to polish this up and post it, and write most of my own thoughts later. You can find a lot of what I think at the Bayly blog at

http://baylyblog.com/blog/2013/04/theological-critique-escondido-two-kingdoms-theology-i-they-adore-separation-church-and-state . I’d like to talk about what separation of church and state means. Christians have always believed in it, even during the Middle Ages, when, in fact, Pope and Emperor fought numerous wars over the boundaries between Church and State. It meant something different then, though. It meant that the State would not control the Church, and that the Church would leave the use of force to the State, even when force was used for religious purposes. Thus, the common understanding was that while the Church could withhold the sacraments and fellowship from a heretic or a blasphemer, only the State could execute him— but that the State should do that, and the Church was there to help advise the State on what it should do. Calvin did not think his church had the right to execute Servetus for heresy; he thought the City of Geneva had the duty to do it. Ferdinand and Isabella did not think the church had the right to burn heretics at the state; they thought they had the right, and so they—not the Church— set up the Spanish Inquisition to investigate heresy and recommend execution if appropriate. The Spanish Inquisition essentially consisted of church experts hired by the state to decide whether someone was a heretic or not, rather than leaving the decision to non-expert laymen. There was a clear separation, however, between church and state. That is also Luther’s Two Kingdoms theory, though his emphasis was on how the state, unlike an individual, not only should not “turn the other cheek” but had a duty to do many harsh things which would be sinful for the Christian acting as an individual. This is in complete contrast to what modern liberals mean by separation of church and state, which is that the state cannot support religion in any way and that if someone’s political views are based on his religious views, they are illegitimate, even if the same views would be fine if based on atheism, self-interest, or mere confusion. I would quote CS Lewis on keeping religion out of public life. But all that must wait.

Bill Stunt was irenic. It was rumored he would have been named Dean of Harvard Law School except for the severe back pain which eventually turned out to be cancer and killed him. We professors are generally irenic. But that is not a compliment. We probably shouldn’t be, at least in this day and age.

“Put bluntly, the American Old School Southern Presbyterian tradition was a theology developed to protect the “peculiar institution” of slavery from theological criticism by seeking to put political questions outside the realm of the “spiritual” concerns of the institutional church.” http://baylyblog.com/blog/2013/04/what-two-kingdoms-theology-and-why-does-it-matter.


Eric B. Rasmusen, “Law, Coercion, and Expression: A Review Essay on Frederick Schauer’s The Force of Law and Richard McAdams’s The Expressive Powers of Law.” Journal of Economic Literature, 55 (3):1098-1121 (September 2017). What is law and why do people obey it? Frederick Schauer’s The Force of Law and Richard McAdams’s The Expressive Powers of Law, consider alternative motivations fo law. While coercion, either directly or in its support of internalized norms, seems to dominate law qua law (and not as a mere expression of morality), a considerable portion of law serves other uses such as coordination, information provision, expression, and reduction of transaction costs.


“Creating and Enforcing Norms, with Special Reference to Sanctions,” (with Richard Posner), International Review of Law and Economics, > 19(3): 369- 382 (September 1999). Two central puzzles about social norms are how they are enforced and how they are created or modified. The sanctions for violation of a norm can be categorized as automatic, guilt, shame, informational, bilateral- costly, and multilateral-costly. Problems in creating and enforcing norms are related to which sanctions are employed. We use our analysis of enforcement and creation of norms to analyze the scope of feasible government action either to promote desirable norms or to repress undesirable ones. In Ascii txt and pdf ( http://rasmusen.org/published/Rasmusen_99.IRLE.norms.pdf).

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