In a fascinating article in this Journal,Footnote 1 John Witte has described something of the recent explosion in interdisciplinary scholarship dedicated to the study of the religious dimensions of law, the legal dimensions of religion and the (occasionally fissiparous) interaction of the two. Howard Lesnick's weighty reader is a stimulating and thought-provoking contribution to the field, with a distinct emphasis on ‘the relation between religion and moral obligations (including obligations to support or oppose, or to obey or disobey, certain legal requirements)’ (p xix).
Professor Lesnick has skilfully gathered together over 100 highly edited and carefully selected pieces from authors as varied as Augustine and Aquinas to Walter Brueggeman, Richard John Neuhaus, Richard Mouw and Pope John Paul II, not so much to provide ‘answers’ – there are very few in this wide-ranging book – but to trigger the reader's engagement with the various authors' claims, in order to
understand religious perspectives at work in the arenas under consideration and to articulate their relevant themes accurately, emphatically and in some depth. My goal is to enable readers with widely varying responses to the call of religion to understand their own responses more fully and to appreciate that they can understand as well the beliefs and practices of others, without having to validate or endorse them. (p xix)
By means of contributions from a wide range of legal and religious scholars, the book examines an impressive span of moral issues in public and private life from a religious, but not a devotional, perspective.
Five questions are posed that undergird the flow of a sizeable book. Where do moral imperatives come from and how do the answers found in religion and in law affect one another? What is the significance of the religiously grounded character of a moral norm for our thinking about moral obligation and disputed issues of public policy? What are the differences (and similarities) between religious and secular sources of moral norms? How can religion's importance to our legal thinking, and its grounding in (differing) claims of revelation, be honoured in a manner that also honours our commitments to pluralism and freedom of conscience and our self-concepts as morally and intellectually responsible agents? How can we integrate our religious commitments with our choices in our work lives? The topicality of the questions is surely unmistakable.
Professor Lesnick, a former law clerk to US Supreme Court Justice John M Harlan, is a scholar at the University of Pennsylvania Law School and a founder and past president of the Society of American Law Teachers. He links his skilful selection of pieces with comment and questions of his own, aimed perhaps more at the seminar room than private reflection. He means to provoke, to challenge, to stimulate, perhaps even to help his readers see problems where previously there seemed to be an obvious answer.
Immensely sympathetic to a ‘religious’ worldview, convinced that religious tradition has ‘a unique depth and power … to illuminate … to inspire … to fuel the will …’ (p 503), conscious of his own ‘receptivity to Jesus and to Christian teaching’ (p 551), and drawing on very many obviously Christian sources, Lesnick nevertheless grants no easy ride to orthodox Christianity, nor will he tolerate any platitudes pronounced simplistically in the public square, asserting that while
I do not object to the decision of conservative religionists to believe (as I do not) that ‘divine revelation can be formulated in irrevocably and universally true creedal and dogmatic propositions’. I do fault their refusal to allow those who do not join them in their beliefs to have what we do believe taken seriously, and described with accuracy and respect; we do not all warrant consignment to a common grave, our headstones labelled ‘widely prevalent’, ‘sophisticated intellectuals’, or ‘cultural relativists’. This kind of sneering polarization is a manifestation of the triumphalist spirit that is conservative religion's tragic flaw. (p 505)
Himself a Jew, Lesnick is honest enough to say
bluntly, albeit as respectfully as I can, that I do not believe the central narrative of either Judaism or Christianity – the giving of the Torah on Mount Sinai, or the incarnation of divinity in the person of Jesus – ever happened, in the usual sense of that word. It is primarily for this reason that I resist thinking of myself as a believer. (p 502)
He prefers to say that the biblical stories ‘carry truth’ rather than that they ‘are true’ (p 502), but still (somehow) insists that the call ‘to listen for the voice of God, to seek to learn God's will’ (p 505) is at the very heart of our humanity. About the latter he is surely right.
Core chapters at the heart of the book assemble a fascinating range of scholarship in the debates surrounding economic justice, bioethical questions, abortion, homosexual sex, war, capital punishment, and religion and (dis)obedience to law – the gem of Martin Luther King Junior's famous 1963 letter from Birmingham City Jail to his fellow clergy being a sheer delight.
The pieces offer often unsettling and always serious engagement with the thorniest of issues. Lesnick abhors simplistic answers and labours throughout to find common ground in debates where so much ultimately devolves into questions about what it means to be human and to live well. But perhaps even more useful and stimulating (certainly to the practising lawyer) are the broader chapters (from sources most of us would probably not readily encounter) grappling with moral obligation, moral discernment and moral decision-making in professional life. Here Lesnick's 50 or more years' experience tell, as he himself writes movingly of ‘personal fulfilment in the changing world of law practice’ and the call to ‘stand with those in trouble’ (p 13), or of ‘the religious lawyer in a pluralist society’, called to function without ‘bleaching out’ his or her faith (p 393).
He concludes the book with a section entitled ‘Religiously grounded moral decision-making in professional life’, in which one author (Amelia J Uelmen) refers to ‘the pain of moral lawyering … when a lawyer's personal moral code conflicts with the client's goals’ (p 593). She continues:
a religious lawyer searches out, highlights and acts on the opportunities to refer to relevant ethical and moral considerations. Moral lawyering presupposes that what is at stake is not just the lawyer's own ‘highly particular’ beliefs or a personal ‘need’ to ease one's conscience, but a broader and more objective vision of the common good. (p 594)
Working that out may, at times, be easier said than done.
This detailed, carefully nuanced book may make trite answers a little harder to come by, but it is a rich contribution to a contemporary debate that is growing ever more complex.
