Lawyers talking enthusiastically about love can feel a little like African American bishops preaching at royal weddings. The sound of jaws dropping may be heard in the quiet courtyards of the Inns and the glass conference rooms of the Magic Circle. And yet, how strangely refreshing a change from the usual, tired homilies. ‘Love’. What a gospel word in a society, a ‘real world’, so often given over to hatred, vengeance and exclusion. And yet a word not heard regularly in legal discourse.
These two lively, sophisticated and interesting collections of essays, from some fine thinkers (with different perspectives, traditions, concerns and styles) in the fields of contemporary law, philosophy, ethics and theology, underline not only how the global law and religion community continues to grow in strength, influence and eloquence, but also how much we owe to energetic and talented scholars like John Witte Jr and Norman Doe, who have done so much to drive the different publications’ series of which each of these books is a part.
Agape, Justice, and Law is part of the Law and Christianity series with which readers of this journal will be familiar. The series aims to publish cutting-edge work, largely from the richness of the protestant and catholic intellectual traditions, promoting deep Christian reflection by leading scholars on some fundamentals of law, ethics and politics. This collection grew from a 2014 ‘Law and Love’ conference at Pepperdine University, which had, in part, taken as its focus Jeffrie G Murphy's provocative question: ‘What would law be like if we organised it around the value of Christian love [agape], and if we thought about and criticised law in terms of that value?’ The question is a timely one for, as Richard J Mouw, echoing Calvin, says in his Foreword, ‘love is what the Law is all about, and Law is what gives substance to the life of love … Law without love is blind, and love without Law is empty’ (p xvi). If he is right, and agape can and should be understood as the end of law, it will be vital to attempt, as the essays do, to tease out the jurisprudential logic of this view.
The editors, in their excellent Introduction, rightly say that ‘The idea that law should be a manifestation of love stands in stark contrast to reigning modern legal theories’ which are so often ‘ultimately reductionistic’ (p 1). They continue:
This book offers agape as a resource for critiquing contemporary legal theory and for thinking anew about concrete problems within law. Law grounded in agape offers the possibility of more fully encouraging human flourishing in relationship and community than the theories that have dominated legal discourse in recent decades. (pp 1–2)
The book's aim is not merely to provide, in agape, a ‘new and timely lens through which to think about questions of pressing import within law and politics’ but also to point to agape as ‘the end of law and as thus containing within it a new jurisprudential logic’ offering ‘ways to fundamentally reorient our thinking about legal meaning and legal problems’ (p 10).
Contributors readily recognise that the relationship between agape and justice has long been a hotly contested issue. Close to the heart of the debate, and the search for consensus, is the issue of whether ‘agape stands in tension with justice or is rather its fulfillment’ (p 4). How, in practice, is agape – the central ethical category of Christianity – to inform modern thinking about legal meaning and order? In short, the editors are persuaded that ‘Law grounded in agape may be a way of thinking about and developing law that will bring meaning to those involved in creating law and yield human flourishing for those impacted by law’ (p 9).
The 14 essays that follow are grouped under three heads: biblical foundations; modern perspectives on agape, justice and law; and applications of agape to law. In Part I Robert Cochran Jr and Darryl L Tippens reflect respectively on Jesus and Paul. Christ's call to sacrificial love to help others flourish means that agape should manifest itself in the exercise of all political and legal power. Agape is central ‘to the restoration of all things’ (p 44), thus ‘to separate justice from love is artificial and arbitrary and, to the Christian, incoherent and hollow’ (p 53).
In Part II four essays of a more theoretical nature follow, unpacking fascinatingly the relationship between love, justice and law. Timothy Jackson, Nicholas Wolterstorff and David VanDrunen in particular offer some lively interaction with one another's views and revisit some familiar ground in the ‘agapist’ debate. Are agapic love and justice compatible or even co-operative? Is agapic love blind and deaf to justice and injustice or is doing justice an example of love? Are not retributive justice and Christian love at irreconcilable odds? Thomas C Berg comments on this later, in Part III:
From Wolterstorff we can draw the insight that treating people justly is a necessary aspect of treating them with love. Jesus both commanded love and said he was bringing (and God's reign would bring) justice, thus, Wolterstorff argues, love must incorporate justice, and love that perpetuates injustice is malformed. In particular, Wolterstorff argues, justice emphasises not only advancing people's well-being but also treating them as having worth and deserving respect. (p 284)
The eight essays in Part III turn, in an accessible and stimulating way, to some specific applications of agape in areas such as crime, tort, vulnerable groups, corporate, commercial and international law and intellectual property. Thomas Berg's contribution on intellectual property is characteristically insightful: ‘Creativity is a fundamental gift from God and IP law should encourage the dissemination of that gift to others to benefit them, and empower them to realise their own creative gifts’(p 274).
This book is fresh and refreshing, spiritually challenging and vocationally provocative, as much for the practitioner as the theologian. As James Boyd White says in his Afterword: ‘We need a new place to stand from which we can see ourselves and our world more truly. Let us take Jesus seriously when he locates that place in agape, that is, in love of God and our neighbour’ (p 324).
Law, Religion and Love is part of Norman Doe's admirable Law and Religion series. The 14 essays follow an elegant introduction by the joint editors. The contributors are distinguished international scholars writing (largely) from Christian, Islamic and Jewish backgrounds. Their aim is to ask whether ‘there is a place for love in the establishment and application of law’ (p 4). The essays recognise that the debate has taken on new urgency ‘in the 21st century neo-liberal world’ (ibid), stemming from the revival of religion as a source of meaning and values for many people. ‘Increasingly, though, the modern neo-liberal world marginalises any notion of religion or spirituality, leaving little or no room for the sacred in the public sphere’ (ibid).
The authors pursue two themes: first, ‘the rules which particular religions have adopted about how to treat and interact with non-members of their faiths’; and second, ‘the methods by which secular state law can encourage and support the achievement of a standard of “good mutual living” for all’ (p 6). In short, the concern is ‘how law animated by love may foster … understanding and lead to unity’ (ibid), especially at a time when there is a widespread perception that religion causes conflict and its excesses need to be controlled by law. Again, the essays are grouped in three sections: religious perspectives on love, legal perspectives on love, and the synthesis of law and love.
The first contribution, for instance, written by Brett Scharffs, explores the boundaries of love and asks whether love as an idea makes sense without God. He recognises that, from a Christian perspective, God's love is ‘the first and most important reality’, ‘our most important mandate’ (p 43). Joshua Neoh then reflects on the Garden of Eden story, common to the monotheistic faiths, and concludes that, while ‘law may help us to avoid our worst fears … it is love that defines our best hopes’ (p 68). Stephen Resnicoff's chapter examines the relationship between free will, responsibility and hope within Jewish thought, and Michael Trainor unpacks some of what he terms (perhaps not entirely helpfully or exegetically soundly) ‘texts of terror’ in the New Testament. That said, it is impossible to disagree with his conclusions about the value of dialogue conducted in a spirit of humility and openness as the ‘other’ is encountered in the complexity of contemporary life. Finally in this part, Ibrahim Haruna Hassan al-Wasewi's chapter explores the relationship between sharia and external political influences, and how that connection shapes sharia's understanding of the ‘other’.
The more directly ‘legal’ chapters and, later, the ‘synthesis’ chapters range widely, highlighting experience (frequently painful) in jurisdictions as diverse as Poland, Armenia and Italy. The arguments are detailed, often technical and all well footnoted. The contradictions and complexities of life in secularist, pluralist and religious societies are not ignored. The realm of law often seems to be the last place to look for love and yet, as Robert Crotty says, law so often has a real role in ‘protecting the public order of a cultural group or of a multicultural society; its purpose, in other words, is to maintain the cultural umbrella’ (p 264). Love, with its utter commitment to the ‘other’, can surely only enrich that process. Who might have thought, then, that only one European country, the Russian Federation, even mentions ‘love’ in its laws, tucked into its Family Code in an aspiration to ‘build family relations on feelings of mutual love and respect’ (p 301)?
Martin Luther King Jr was surely right when, in one of his landmark speeches, he said: ‘Power at its best is love, implementing the demands of justice, and justice at its best is love, correcting everything that stands against love.’ Lawyers have much to learn about power and love and what it means to be genuinely other-regarding. These fine collections, as Jonathan Burnside neatly put it, ‘refract the light of agape through the prism of scholarship, enriching with colour an understanding of law that is often all too grey’ (Agape, Justice, and Law, p i).