Law at the Jesus Creed: David Opderbeck 1

Lawbook.jpgI announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law — should be fun.

What is “Law”?

My question for the opening post in this series is “what is ‘Law’?”

Here’s the questions for this post: Which approach – formalism or realism – better accounts for “law” and for the role of “law” in society?  As Christians living in a post-industrial, scientific, and/or postmodern age, are there approaches to “law” we can adopt without falling into either an extreme formalism or an extreme legal realism?

Many people respond to this question with what legal scholars would call a “formalist” definition:  law is a set of rules or principles that govern behavior.   This sort of definition raises important questions about the sources of “law” and the functions of a legal system.  

In the Western tradition, “law” historically was rooted in metaphysics – for the Greeks, in the realm of pure thought (Plato’s “forms”); for the Romans, in the divine authority of the Emperor; and for Christendom, in God, particularly as God’s will was mediated through the Church, reason, and the King.   During the Enlightenment, “law” was still mostly conceived of in formalist terms, but the primary source of law became reason, or “Natural Law.”   This is why the Declaration of Independence grounds universal human rights in the “Laws of Nature and of Nature’s God.”

By the late Nineteenth Century, however, many legal scholars
and jurists had come to recognize that the supposedly universal foundations for
formalistic law were neither universal nor secure.  Broadly speaking, this skepticism was in accord with
post-Enlightenment intellectual history. 
These scholars and jurists began to develop what we now call a “realist”
definition of “law.”

A famous text in the development of “legal realism” is
Oliver Wendell Holmes’ essay “The Path of the
.”  In that essay, Holmes
views the law from the perspective of a “bad man” – a person whose conduct
might run afoul of the law. 
According to Holmes, the “bad man” cares nothing about whether “law” is
grounded in reason, God, or Natural Law. 
The “bad man’s” only concern is whether, and to what extent, a
particular judge or jury will punish him for his actions.  As Holmes eloquently put it, “If you want to know the law and nothing
else, you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or outside of it, in
the vaguer sanctions of conscience.”

In short, viewed from the “bad man’s” perspective, “law” is
merely a social construct used to produce whatever social outcome the judge or
jury deems desirable.
to reason, God, or Natural Law in relation to “law” are superfluous at best. 

The “realist” approach has had a profound effect on Western
jurisprudence.  The dominant
perspectives reflected in American legal education, including “law and
economics” and “critical legal studies,” have roots in legal realism.  Few law professors today would identify
themselves as formalists (though in some circles there is a move towards a “new
formalism”).  In most law school
classrooms, including my own, judicial precedents are analyzed to examine the
policy motivations behind the rules adopted by the court, not primarily to
extract from them universal principles of law.

Which approach – formalism or realism – better accounts for
“law” and for the role of “law” in society?  As Christians living in a post-industrial, scientific, and/or
postmodern age, are there approaches to “law” we can adopt without falling into
either an extreme formalism or an extreme legal realism?


Further reading:

Larry Solum’s “Legal Theory Blog” includes an excellent
entry on formalism vs. instrumentalism

Oliver Wendell Holmes’ essay “The Path of the Law” is
available online
and as a part of a useful collection titled “The
Canon of American Legal Thought

Harold J. Berman’s two-volume Law and Revolution: The Formation of the Western Legal Tradition
and Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition
is a magisterial treatment of how Christianity shaped early
Western notions of law.


About Scot McKnight

Scot McKnight is a recognized authority on the New Testament, early Christianity, and the historical Jesus. McKnight, author of more than fifty books, is the Professor of New Testament at Northern Seminary in Lombard, IL.

  • phil_style

    Excellent. I’m looking forward to the continuation of this series.

  • mick

    Interesting topic. Especially how law has evolved in it’s meaning over the centuries and what philosophical (and now psychological) school of though has influenced it.
    My only thought as I was reading it similar to “truth”. There are various understandings of what truth is, or even if it exists. Throughout most of western civilization these interpetations were “under God”. Now, they are under “us” and we are many. It seems law, like truth (especially as revealed in Jesus), is less propositional and more relational. They are best known, understood and applied in relation to the Other.

  • Scot McKnight

    David, this is excellent. Had no idea is what was going in my head. Our laws themselves, no doubt, emerged out of a variety of contexts, and I suspect some from formalist definitions — right?
    Can the realist view be said to be shaped by consequentialism/consequences, so that law simply spells out culpability and consequences for behavior contrary to a specific law?

  • T

    Glad you’re doing this. Scot, the realist perspective is extremely pragmatic, and is, as a result, at the heart of what real clients of real lawyers want to know: what is the judge actually going to enforce (and how). So the focus is not purely on what is actually written in the constitutions, statutes or cases or even what the writers of those instruments intended, but in predicting what judges will actually do, all things considered (and “all” that actually is and should be considered by judges is a matter of much debate, as illustrated by the various “schools” of jurisprudence such as feminist, law & economics, original intent, etc.).

  • Rick

    Looks to be an interesting series.
    When I hear “Natural Law”, I think of the Clarence Thomas nomination and the controversy that surrounded his support, or previous support, for that philosophy.
    Your post helps shine more light on why that was a hot-button issue.

  • pds
    Interesting stuff. Where do you come down? Seems like we need to start with the Biblical texts on law, civil authority and civil law. But how to apply that to living as free citizens in a pluralistic democracy? There’s the rub.

    This is why the Declaration of Independence grounds universal human rights in the “Laws of Nature and of Nature’s God.”

    Does that part of the Declaration violate the Establishment Clause of the Constitution?

  • Mark Baker-Wright

    It’s not explicitly stated here, but it seems to me that a lot of our modern religious thought stems from this concept of “legal realism” as well. Indeed, I would posit that much of our contemporary concept of Hell and our evangelical impulse may be rooted in this essentially modern concept. We encourage people to become Christian so that they won’t “suffer the consequences” of going to Hell.
    (It’s been stated elsewhere, but this system for typing in capcha text is both broken and infuriating. Having to re-type an entire post because I mistyped a letter is more than a little off-putting. And “helpful” suggestions to copy the text to the clipboard before hitting “post” are NOT helpful at all. It just comes off as Monday morning quarterbacking.)

  • Scot McKnight

    Hey Mark, it’s better than getting sacked!
    (Said by someone who’s been sacked a number of times by the captcha.)
    I just copy before I click.

  • RJS

    Good stuff, I hope to comment more later.
    I’ve been stung by the captcha several times and copy. But I have not figured out how to copy on my phone yet. So I type fast and pray. A somewhat frivolous prayer.

  • dopderbeck

    Great comments so far!
    Scot (#2) — yes, I think there’s a clear affinity between utilitarian / consequentialist ethics and legal realism. Having said that, many contemporary legal theorists who are heirs of the legal realist tradition would eschew any connection with broader ethical theories, including utilitarianism. “Law and economics” scholars, in particular, often see themselves as doing work that is primarily empirical and descriptive, rather than normative. But many who critique the “law and economics” movement think the posture of that movement is irreducibly rooted in utilitarian ethics.
    Mark (#6) — very interesting connection. This wouldn’t surprise me, because “law” and “theology” as disciplines are similar in many ways: both deal with foundational texts, both use similar tools of hermeneutics and reasoning, both relate to visions of the “good” life, and so on. The broad intellectual currents that affect one discipline inevitably will affect the other.
    pds (#5) — I don’t come down on either side. I think there’s an overstated binary that often is at work when we think about law. One goal for me of this series is to expose some of those binaries as overly simplistic.
    So here’s a little more of my thinking (I should note, BTW, that all of these categories are hotly debated by legal theorists and philosophers, including even among Christians).
    I think the legal realists were largely correct about what lawyers, judges, juries and litigants do “on the ground.” That said, as a Christian theist, I’m ultimately going to view “law” as an aspect of a created reality that derives from the Trinitarian life and will of the creator-God.
    Human beings, as created co-creators made in God’s image, certainly “construct” civil law. Civil law is indeed a “social construction,” and so all civil “law” is inevitably situated, historically contingent, and local. Nevertheless, there are God-given purposes to this constructive activity rooted in the objective reality of God’s being, such that we can speak objectively about whether a given law is “just” or “good.”
    Therefore, the final legitimacy of “law,” I think, has to inhere in its fidelity to the purposes of God. As you note, the scriptures are a primary source from which we can learn of those purposes, though I’d also include reason, tradition, and experience. I’ll hopefully write more about this in a subsequent post, but let me flag here the notion that there are manifold difficulties involved in identifying scripture as a source of learning about God’s purposes with respect to civil law. I am not, by any stretch, a theonomist, and I’m afraid that some of the rhetoric of the “religious right” in North America has tended towards incorrect theonomic ideas. This doesn’t elide scripture as a source, but it does suggest that we’ll need to proceed with nuance and caution.

  • Terry

    My head is already spinning David, in a good way. I am really looking forward to this.
    Captcha is misspelled, it’s actually Caughtya — and it is very tiresome on a phone.

  • Ray Ingles

    What if one takes a third option – that ‘law’ has both “realistic” and “formalistic” aspects?
    I posted a chess analogy on one of the previous posts. Are chess strategies justified by a realistic or formalist scheme? I’d say, it depends. There are fundamental strategic rules like “don’t sacrifice your queen at the start of the game” which are practically formalist – given the rules of chess, that’s (virtually) never a good idea. But there are aspects that are more realist – which is the “best” opening? That depends a lot on your own strengths and who you’re playing against.
    Note that this models fairly well how the law has evolved. Hunter-gatherers and tribes at war tend to inflict major casualties and even go as far as genocide. (E.g. the Hebrews arriving in the Promised Land.) Later, slavery developed – more humane than genocide, at least in some ways. Nowadays, we have the Geneva Conventions, which go a lot further. We’ve found better ways, better rules – better strategies – for handling such things.
    Chess strategy has developed in a similar way. If you had two equally-matched opponents, one playing with 18-century chess strategies and one playing with modern strategies, I know who I’d bet on to win.

  • Matt

    Thanks for this. Good thoughts!
    I was reading over the Holmes quote and I have a question for you about it. Can you adopt a “realistic” approach to law without denying formalism? I didn’t read the entire piece by Holmes, but he doesn’t seem to deny formal laws, just their relevance. Am I understanding him correctly?
    If you believe in a sovereign God who gives laws, then I think you have to acknowledge formalist law at some level. But postmodern epistemology questions our ability to understand those laws, and the secular, pluralistic, state questions the source of those laws.
    Ultimately, I have to say that I believe in formalist law. But, the starting point for my identification of laws has to be my own senses, experiences, and reasoning. I don’t think I have access to the realm of the formal laws unfiltered through myself. Thus, I think I would have to take a realistic approach to law based on my understanding of the formal laws.

  • MattR

    Interesting discussion… look forward to more!
    I’m wondering how much post-critical/deconstruction theory comes into play here.
    I’m thinking about the difference between ‘justice’ and ‘law.’
    Justice, in this sense can be more of an abstract, and therefore what you are calling ‘formal’ principle… however ‘law’ should always be more flexible and pragmatic, or ‘realist,’ in order to best serve and mediate, in different contexts, what a society deems just.
    I always think ‘law’ then needs to be a balance of both of what you describe… probably leaning more towards the ‘realist.’
    I’m obviously coming at this from more the theology/philosophy side…

  • Karl

    dopderbeck, I love your response to pds referencing the “overstated binary.” Actually, I find it a huge relief as it puts into words my gut feeling when wrestling with these questions in pre-law classes as an undergrad and in law school classes thereafter. I always felt like I had to choose a “side” and no school of thought completely answered all my questions or all of the objections of the others. Yet I felt disloyal as a Christian if I gave up on Natural Law. Great stuff. As a practicing attorney I don’t have the luxury to stop and think about these questions very often, but these types of discussions were really my favorite part of law school.

  • Karl

    “the primary source of law became reason, or “Natural Law.”
    dopderbeck, wouldn’t a Natural Law theorist take issue with this? I understood the primary source of natural law (in that theory) to be God, or the divine. And the role of “right reason” is to discover that law.
    Not that reason might not have too elevated a place in natural law theory. But I never understood reason to be the stated source of Natural Law. Isn’t C.S. Lewis’s argument in The Abolition of Man regarding what he calls the Tao, basically a Natural Law argument?

  • EricG

    This looks like it will be an interesting series.
    We’ve clearly come a long way since the time our judges believed that it was their job to apply some natural common law that was pre-existing, and which they were merely to attempt to discover. That sort of idea sounds very foreign to us now, and it was obviously very naive.
    Some judges today still have the idea that all they need to do is, in an unbiased way, apply the statutes and common law that have been handed to them. When a federal judge decribed his role to me that way, I suggested that it is impossible to separate yourself from your biases, since we are all the product of our experiences. When those experiences are diverse, you will inevitably have different approaches. And there is often not one “right” answer. The best we can do is recognize our biases and try not to let them affect our decisions in a “negative way” (whatever that means!)
    So a retreat from natural law, and move toward realism, has been a good thing, IMO. I’m all in favor of combining this with the understanding that God is the source of all authority, and that there are some laws that are more just than others. But many Christians (particularly conservatives) tend to take that idea way too far when they approach law.

  • Yet Another Matt

    I’ve been a civil litigator for about 17 years, now, and I’m a regular Jesus Creed reader. I’m going to be following this series with great interest.
    A few initial observations:
    1. Like every other lawyer that I know, I am trained to think within a system that is ordinarily characterized as “realism,” which is chiefly exemplified by the “law and economics” perspective. In fact, I can’t imagine a modern legal “world” that functions any other way.
    2. But I’m not quite so sure that the “law and economics” foundation is rooted in realism. What this perspective is ultimately doing is trying to grease the wheels of the Western economic system. The law of contracts ensures that people can rely on the bargains they make with others, encouraging commerce, and the law of torts ensures that we can all feel safe to engage in commerce – both production and consumption – with an expectation that others will compensate us if their wrongful (usually, unreasonable) actions injure us. In that sense, I believe that there is an ultimate ideological “god” that is being served in that system, and that it may – in fact – be yet another formalistic system in disguise.
    3. To answer Scott’s (?) question in the last paragraph, I think there is a certain paradox that is at play in the “Christian” perspective of law. On the one hand, we are very suspicious of law because of its capacity to perpetuate systems of greed and other “social constructs” that are ultimately associated with the powers. Jesus’ refusal to become a “judge” in a civil dispute in Luke 12, and his subsequent parable are a great case in point.
    4. On the other hand, it is quite difficult to read – say – Romans 13, and not conclude that the law plays an important role in maintaining social order in a fallen world.
    5. …which raises an interesting point. Is Romans 13 espousing a formal or realistic perspective of law? Without trying to exegete the text in this already overly long comment, I think I could make a pretty good argument that, as usual, Paul is articulating a third perspective that is neither, both, and much, much more.
    Looking forward to reading more in this series.

  • John Sobert Sylvest

    Like others, I am also interested in the interplay between pragmatic, consequentialist, formalist, realist, utilitarian notions and so on. I have seen similar patterns and tensions in play in epistemology, ethics and even aesthetics. The manner in which I have come to understand such interplay has been largely influenced by the American pragmatist tradition, primarily Charles Sanders Peirce and William James, who were in the Harvard Metaphysical Club with Oliver Wendell Holmes, Jr.
    Prompted by this post, I wrote a short essay laying out how these different approaches might be profitably related. Those who are interested can look at it here: The Fugue: truth, beauty, goodness & unity Basically, it explores pragmatism as a “test” and not a “theory” of truth.
    We can also distinguish between realism as associated with both metaphysical and moral realisms, which is somewhat related to correspondence theory and foundational epistemology, and that realism which has a more pragmatic connotation, which means to be realistic, or to have appropriate expectations, such as when we talk about political realism. I am gathering that legal realism belongs to the pragmatic brand?
    I have not studied Holmes, in particular, or the law, in general, but have only delved a little into such questions as how much moral reality and legal reality should overlap. My approach to that has been informed by John Courtney Murray and I thus buy into the notion that good jurisprudence is ordered mainly toward the maintenance of the public order (contra an extreme social conservatism, for example). I hope at some point we can cover such matters.
    I am glad Professor Opderbeck is able to lead such a discussion and am anxious to revise and reform my notions of how all of these epistemic, aesthetic, moral, legal and political realities interact. Professor, I value your contributions on other threads and your clarity, goodwill and good sense.

  • dopderbeck

    John (#19) — thanks!
    Maybe I’ll sketch this out in a little more detail in a future post, but here is one thing I’ve been thinking about. I’m drawn to virtue ethics. Within virtue ethics, one of the cardinal virtues is phronesis, or “practical reason.” Practical reason, I think, subsumes consequentialist thinking. It is right, good and necessary to consider the consequences of any action, and so social welfare analysis, law-and-economics, etc. are valuable tools. But these tools fit within a broader teleological ethic. Calculating social welfare is only the beginning, not the end, of any ethical analysis.

  • John Sobert Sylvest

    dopderbeck (#20) I resonate with the implications of the distinctions you are drawing, such as between beginning and end, and the concepts you employ, such as subsumes and necessary (but not sufficient).
    My calculus similarly distinguishes between means and ends such that, for example, the normative “moment” is a means and the evaluative “moment” posits the end. We also need a descriptive moment, which describes and identifies the moral reality in question.
    If in our descriptive moment, we are describing what the reality involves, then our evaluative moment will evaluate its significance – asking what this reality means to me, or better yet, to us? We then travel from the is to the ought in our normative moment, as norms suggest the best ways to either acquire or avoid the reality, mindful of the classical distinctions between higher and lesser goods, real and apparent goods, a discernment that inheres in an aretaic or virtue ethical stance. Think What? Why? How?
    That we “should” want what is “really” good for us, provides the self-evident prescriptive premise that can be coupled to a sound descriptive premise such that we can then reason our way to a sound prescriptive conclusion, moving from facts to values, from our ontological “is” to our deontological “ought.”
    So, I’m inclined to suggest that our moral-practical reasoning includes an aretaic moment (descriptive), a deontological moment (normative) and a teleological moment (evaluative), each with autonomous methods (asking different questions), each necessary but none sufficient, hence, all axiologically-integral. There is also an interpretive moment, where our religious or ideological stances come into play, including our metaphysical conceptions. In a pluralistic society, we needn’t bracket our religious beliefs or metaphysics, however, we do need to translate them into a lingua franca or common idiom in order for them to have any normative impetus for others.
    My calculus then, is that the normative mediates between the descriptive and the interpretive to effect the evaluative. And I see this pattern playing out in epistemology, aesthetics, ethics and other human value-realizations. (Peirce had said that the normative sciences mediate between phenomenology and metaphysics. Robert Cummings Neville provides the axiological slant. I combined their approaches into my calculus with my neologisms.) One could just as easily say that the deontological mediates between the cosmological and the ontological to effect the axiological.
    Or, that the semiotic mediates between the theoretic and the heuristic to effect the dogmatic, where the semiotic entails concepts that are non-negotiable if meaning itself is to remain possible (think philosophy), where the theoretic involves concepts already negotiated by a pluralistic community of value-inquiry (think science), where the heuristic represents concepts still-in-negotiation (think metaphysics) and the dogmatic represents concepts yet to be negotiated between different communities of value-inquiry (think whatever you want [wink]). (At least this is the executive summary of my joint project with theologian Amos Yong.)