The Problem With “Legal Realism”

The Problem With “Legal Realism” July 21, 2014

As I write these lines, one of the most ancient Christian communities in the world is earning the glory of persecution for the sake of the Kingdom. In the middle of dinner with orthodox Jewish friends yesterday I received a text message from my wife warning me for our personal safety after (later confirmed) reports that rioters were attacking kosher stores and restaurants in the heart of Paris, a latest in the unbearable drumbeat of anti-Semitic violence now shaking my old country. I must confess that I was filled with not a little pride and joy at the idea that I might be granted the blessing to suffer in solidarity with Jews attacked for being Jews, although in any event that night the persecutions spared us.

Obviously I am not comparing myself to the heroic Christians of Mosul, only taking stock of my state of mind as I write these lines. I might be accused of unfairness on account of introducing a reflection on theoretical theological matters with not-too-subtle evocations of the fascist jackboot. But every Christian will surely recognize that there is, or must be, a straight line between theological reflection and action; that, at least for the follower of Christ, a theology without consequences is no theology at all; and that, therefore, it is not useless when evaluating a theology to ponder what its consequences might be, especially in a world wracked by sin and concupiscence.

Which leads me to a post by Elizabeth Stoker Bruenig evaluating Augustine’s theology of private property. Bruenig writes against the notion that Augustine had a desert theory of property, i.e. that property is legitimate insofar as it is the product of human industry or creativity or whatever. I myself have no dog in this particular fight. I have no problem acquiescing to the idea that in a world which inherits such a long and catastrophic legacy of oppression, the notion of “just desert” of anyone’s property is highly dubious. My main problem with critiques of desert theory is the way in which they, almost always by a sleight-of-hand, fail to distinguish between the moral and legal status of property; in other words, just because Bob’s wealth is of morally dubious origin, does not, at least not ipso facto, mean that the state (or anyone else for that matter) has a right to confiscate it.

But never mind. In contrast to desert theory, Bruenig argues, Augustine had a much more straightforward theory: everything, properly speaking, is the property of God; whatever earthly right of property fallen sinners may have “is totally [emphasis mine] reliant upon our governing structures, the systems we create to order ourselves, whatever those may be.”

In other words, there is no “natural” or “human” right (as we would describe it in contemporary terms) of private property; instead, Augustine’s theory is better understood, Bruenig writes, as a “Christian legal realism”; that is to say, the position that human beings have no intrinsic rights (at least in the domain of property, although why this should be true about property and not other rights is unclear) that human institutions and laws are bound by higher laws to respect, and that such rights are “totally” fictitious creations of the sovereign that the sovereign is only bound to respect–or not–insofar as it serves the common good. This “Christian legal realism”, Bruenig informs us, is “directly applicable…today.”

I confess to not being a knowledgeable enough scholar of Augustine to be able to assess whether this is an accurate rendition of his theory. I might just query whether it makes sense at all to use the category of property or ownership to describe the relationship of an utterly transcendent and benevolent God to his created order, but this is an aside.

Augustine’s theory of property is, in and of itself, of little consequence to me, for no one, not even a Doctor of the Church, summarizes by herself the full Catholic doctrine. For example, we justly do not feel bound by the almost universal Patristic evaluations of slavery as a regrettable, but permanent, feature of human society. I find myself much more at home with what I take to be the “generic” Catholic understanding, heavily influenced by Scholasticism, of private property as a kind of God-granted stewardship, which issues in both a natural right of private property and a moral duty to use this faculty in accord with the will of God; and with the declaration of the Ecumenical Council of Vatican II that every human being, as an image-bearer of God, has transcendent dignity, one consequence of which is the existence of natural rights that human institutions are bound by divine law to respect.

What is most striking about Augustine’s theory is that, as Bruenig dutifully records, he argues for it in support of his decision, in her words, to use “Roman state force to strip the heretical Donatists of their property.” While Bruenig helpfully assures us, in less-than-forceful language, that she is not in favor of that “tack” and that this was “a bad thing to do”, the disquieted reader cannot help but raise an eyebrow at how undisturbed she seems to be by the fact that her chosen exposition of her pet theory is found in a letter written in justification of what can only be called an atrocity. And perhaps I will be forgiven for a hint of panic upon Bruenig’s seeming total peace there.

People like me can often seem boringly Cassandra-ish in our warnings of somber totalitarian impulses unleashed by the reduction of human rights to, well, nothing at all. Here, the use of “legal realism” to oppress a minority is not some potential, hypothetical, future step down the slippery slide, it is literally coeval with the exposition of the theory. Bruenig approvingly relates how Augustine brushes off the Donatists’ pleas for a modicum of justice as so much pish-posh. “Thus, Augustine says, quit trying to act like what is happening to you is not legit.” Yeah, Donatists. Just quit whining already.

I do not mean here that Bruenig is anxious to strip heretics and other minorities of their properties and their other rights. I have no problem believing her when she says that she honestly views it as “a bad thing to do.” But the problem with intellectual ammunition is that it is rarely used by those who inhabit the halls of power in quite the same way as their authors intended. Many French Revolutionaries were duly horrified by the massacres of the Vendée (although a great many were not). This is why we have this notion of human dignity and human rights to begin with; in a world where sovereigns did not use their prerogatives to take the wrong “tack”, we would have no need of it. And minorities, religious and otherwise, do get their property confiscated and do endure state or state-abetted violence, on a regular basis, making it only slightly alarmist to point out that these things do happen.

The only thing that Bruenig’s exposition on “Christian” legal realism manages to demonstrate, with perfect simplicity and innocence, is that under this theory, even in a world ruled by men as wise and holy as Augustine minorities will end up despoiled and brutalized by the state. And that is sufficient to reject it.


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  • Labarum

    Word crime alert!

    You keep using “desert” where you should be using “dessert.” Threw me off initially.

  • NicholasBeriah Cotta

    This is one of those subjects that is just horribly difficult for me to take seriously. Has Mrs. Bruenig lived off of a college campus much? She loves Augustine and loves to reference him, reference her studies of him, and so on and so forth – we get it, you are Augustine’s champion – the Lutherans lay this claim as well because Augustine would have sided with them surely! I get the impression here that the argument put forth is one of a student immersed in theory and scholastic credentialing to even make a credible argument. I am glad that the author here in this piece points attention to the fact that one Church Doctor a diagnosis does not make. We have a well developed treatise in the Church on the obligations of the state and also a clear right to private property – who cares about things so far out of context?

    Sometimes the writer world is this: I married a writer, I know writers, Ross Douthat acknowledges me on twitter, I’m important, I have things to say, I have my own angle here – “I’m a pro-life progressive Christian ethicist” or blankety-blankety some other bullshit category in which I stake my claim to the national conversation.

    There are people in and there are people out and the people in coming up with theories that we should subserve the state based on their interpretation of one Church Doctor should acknowledge their arrogance. This star has risen more quickly because of pharisaic reasons rather than substantive ones. Boring.

  • montanajack1948

    Re “People like me can often seem boringly Cassandra-ish in our warnings of somber totalitarian impulses unleashed by the reduction of human rights to, well, nothing at all. “: you are not boring in the least. But perhaps someone could forward your acknowledgment to Rod Dreher and also to many of the writers at First Things and at Crisis Magazine?

  • Peg, there’s actually a gaping hole in EB’s take on Augustine. She explains correctly he offers two rationales and rebuttals for property:

    1. Divine Law

    2. Human Law

    As an heathen, I’ll forget about Divine Law mostly. Other than to say that I can agree that believers ought to, each of his own accord, endeavor to remember these teachings everyday, and make proofs (good acts) rather than professions (sermonizing) to convince others that Divine Law is true.

    Now then, to Human Law. Sadly, Augustine was used to emperors, so this is mental error EB makes, she equates emperor = state = government. It’s a horribly common flub.

    Why do we no longer have Emperors?

    Because we as individuals got rid of them. Who commands the true power of human law? We do. We ALWAYS have.

    States, Kings, Emperors, and Governments are human constructs created by individuals thru a simple process of hegemony. Force is always there. Credible and non-credible threats. But so is personal morality, organized doctrine, greed, and kindness, family, invention, genetics, upbringing, all these things that are NATURAL. Emperors were truly NATURAL for their time. But underneath it all are end agents, unique nodes in a p2p framework. Sometimes it appears very Central serverish, but so did the supernode approach of JoltID (Kazaa / Skype).

    Individual men and women in both a state of nature (SoN) and under a State establish either rules amongst themselves (SoN) or laws within geographical boundary (State). Continuing, the tech metaphor, It should be clear that the bitcoin blockchain is literally a stateless turn towards what the believers hope will be a more peaceful SoN.

    Now let me say that Augustine wasn’t infallible, he too was susceptible to the agency problem – he was self-interested. His frame of God or Emperor, serves to reinforce God!

    If he said, “there is divine law, and you are merely stewards, and there is an emperor who’s law is only valid if you people allow it to be”

    He’d be killed.

    If he said “human law is whatever you as individuals decide amongst yourself is the law”

    He have to grant that the individuals who said, “just deserts” can have that be the law. And he couldn’t do that!

    From EB:

    “Augustine’s worst episode was his use of Roman state force to strip the heretical Donatists of their property. In this letter, he’s responding from letters from the Donatists saying “please stop using Roman state force to strip us of our property, because we’ve worked for it and it is ours.”

    How could he use human law to snake their stuff if he said THAT?

    Now it should be clear EB is defenseless here:

    “You can say you are entitled to something via divine law, or that you’re entitled to it by human law. Since you are not being righteous (i.e. you are heretics) you can’t claim divine entitlement, and since the state is telling you that the law now says you’re no longer entitled to what you have, you don’t have a human right to it either”

    The obvious out is to disband the state so your property can be respected. That’s what human law allows! And that’s been the foundation for the creation of many human states. It NEVER follows that the Emperor is the final word. The Emperor is just one possible supernode, built on end nodes. Supernodes, governments, are ONLY bits of code. Nodes, individuals, are ALL the resources.

    Let me suggest another way of visualizing property vs. Divine Law:

    Imagine in future, the earth goes stateless, we end the State, connected by computers we all amongst ourselves break into different religious factions. There are even some of us dead-ender heathens too.

    And the council of divine leaders each dealing with their own conception of God need to ensure peace and tranquility between individuals of differing religions.

    There will still be property. It will be the “human law.”

    Instead of “render unto Caesar” the Christian Church will preach “do not covet” “do not steal”

    The point is, Christianity / Divine Law is about each individual, each node, endeavoring to be Christ like, you aren’t expected to be Christ.

    Your good works, your serving of human kind, your friends and enemies alike… they are about YOUR RESOURCES, your CPU cycles, RAM, memory and bandwidth being dedicated to other nodes – under your own discretion, under your own free will.

    If humans want there to be property there is property. If there is property today, why is that?

    Because humans want it.

    Depending on your religious persuasion, Divine Law may or may not encourage you to participate in a system of property title. That’s for you to debate with EB.

    But on human law, EB, like Augustine has nothing. There is property title, because the hegemony of humankind wants it.

    Altho, I’d suggest if she and her husband want to persuade the humanity’s hegemons that we should stop granting ourselves property, they too should do it with good works (policy ideas that we find palatable), instead of sermons.

    Hegemons aren’t Divine. We don’t pretend to be. We’re kind and virtuous, appeal to our good natures. We are willing to tithe thru the state. But we want it to go to the poor, not the priests.

    But the Donatists HEARD Augustine, and they are now the Emperor!

    And EB and Augustine need to deal the human law as it is, just like Augustine preached.