In Law and Theology: Classic Questions and Contemporary Perspectives, David Opderbeck sets out to provide “an introduction to a Christian theology and praxis of positive law” (1). The book does have an introductory character in the way it traverses a great many biblical, theological, and practical legal issues in fairly concise manner, and also in the way it brings a range of voices from the Christian tradition into the conversation. But Opderbeck also advances a strong thesis about how Christians ought to view law and, in this sense, seeks to do more than we might expect of an introductory volume.
Part one, “Theology,” begins with a long chapter discussing law in the Old and New Testaments. Embracing a “narratival” approach, Opderbeck follows the basic structure of the biblical canon to describe the place of law in the unfolding biblical story and accomplishment of God's purposes. The second chapter turns to church history, beginning with the Acts of the Apostles and continuing through the Protestant Reformation. Here, Opderbeck focuses on how a number of the church's most prominent theologians spoke about law, and he also considers Constantinianism and the evolving relationship of civil and ecclesiastical authority through the Middle Ages. The third chapter concludes part one by exploring a variety of issues at the intersection of law and theology. Although its focus is “after modernity,” it deals with perennially important topics and engages many premodern thinkers as well. Among the issues it addresses are natural law, the historical contingency of positive law, liberation theology, pacifism, and the consent of the governed.
In part two, Opderbeck turns to “praxis,” seeking “to apply some of the principles in part I to some practical problems in the law” (143). He begins with a short chapter addressing topics “more mundane” than the “culture war issues” (145) that tend to get the most attention in Christian legal thought. Opderbeck focuses on bankruptcy law and pharmaceutical regulation. He then spends the bulk of part two on culture war issues. Chapter 5 addresses American Christian controversies about slavery, segregation, and the civil rights movement, particularly in relation to federalism. Chapter 6 extends the discussion of the previous chapter to controversies about abortion and LGBTQ rights. Opderbeck brings issues of consent and religious liberty into this conversation. Finally, in the conclusion he makes a brief case that a chiliastic, dispensationalist eschatology has played an important but detrimental role in the controversies considered in the previous chapter.
This book is worthwhile simply for the range of biblical, theological, and practical legal issues it covers. Because Opderbeck addresses so many important issues and does so in a clear and engaging way, readers have opportunity to agree with, dissent from, and contemplate his reflections on a host of weighty matters. Intellectual stimulation is on generous offer. But Opderbeck not only provides an introduction to many important law-and-theology issues but also advances a constructive thesis about how Christians ought to approach positive law. In order to provide a more specific evaluation of this volume, therefore, it may be helpful first to identify the main thread of argument that runs through it. Opderbeck himself does not summarize things in this way, but I believe the following captures the broader case he seeks to make, a case that holds the book's many strands together.
Opderbeck finds it helpful to take a narratival approach to scripture. This does not imply that the biblical story is historically accurate in all of its parts, and Obderbeck repeatedly explains why he does not think many Old Testament stories are historical accounts. But the canonical biblical narrative does communicate an “overarching story” that moves from creation to fall, Israel, Jesus, the church, and a coming consummation (19). This story concerns the “mission of God,” which promotes peace and liberation from oppression. This mission of God reaches its ultimate goal in the eschatological future, but also breaks into this world now. What role does positive law play in this mission? According to Opderbeck, Christians should not jump directly from particular biblical texts to positive law, since texts have a variety of contexts and purposes and simply were not intended to prescribe specific legal rules fit for all times and places. The natural law, however, communicates a universal ideal of justice, and positive law ought to reflect this. But positive law is always the product of a particular human culture and thus is never able to capture the natural-law ideal perfectly.
That raises questions about how to move from natural law to positive law. A “core part” (181) of Opderbeck's answer is that positive law ought to promote liberation from oppression. Another way to put it is that Christians should inquire how positive law can support the mission of God and thereby even “embody the kingdom of God” (140). Yet Christians should never identify any particular positive law with that mission. In fact, positive law plays only a modest and limited role in advancing it. For issues of everyday law, such as bankruptcy or pharmaceutical regulation, Opderbeck continues, few Christians are tempted to identify specific rules with the mission of God. But matters have been more complicated when it comes to culture-war issues such as slavery and segregation. Many Christians who actively opposed slavery and segregation provided helpful examples of how to move positive law in the direction of liberation. In contrast, other Christians supported slavery on theological grounds and thereby opposed the mission of God, and still other Christians fell short by insisting on a slow and non-confrontational approach to improving the legal standing of victims of racial injustice.
When it comes to more recent culture-war issues such as abortion and LGBTQ rights, Obderbeck's thread of argument concludes, the “religious right” has erred catastrophically, despite having some legitimate concerns. “Conservative evangelicals” have much too closely identified positive law with the mission of God on issues that involve considerable moral ambiguity. Even to the extent they express moral concerns relevant to the mission, their way of going about things has actually damaged the mission terribly.
This concludes my summary of the thread of Opderbeck's larger argument. As it indicates, two themes are especially important in holding the various parts of this volume together: First, Christians should take a limited and modest approach to positive law and, second, they should seek to shape positive law in ways that support the mission of God, especially by promoting liberation from oppression. This dual focus does create a certain tension, for the idea that positive law should promote the achievement of God's eschatological purposes and even “embody” the kingdom of God seems neither inherently modest nor limited. Readers’ overall evaluation of the book will probably hinge, to a significant extent, on how well they think Opderbeck has navigated this tension.
In my judgment, he has made a strong case for a modest and limited perspective on positive law. Whether in discussing the hazards of biblical proof-texting, the inevitable gap between universal natural law and concrete human law, or the complications of moving from moral concerns to legal action, Opderbeck presents a sustained and coherent argument for humility and restraint. And he has made this argument while defending the existence of objective truth in the natural law and biblical narrative, thereby staving off objections that such appeals for humility are simply the result of a resigned relativism. He also effectively shows how so many of the greatest Christian theologians have recognized the cultural particularity of positive law.
But Opderbeck's contentions about positive law and the mission of God are less well supported and less clearly rooted in the great thinkers of the Christian tradition. Although Opderbeck relies on the work of several recent theologians who support a popular vision of the so-called missio Dei, he provides little argument for some of its more contested claims. These include the central idea that the “mission of God” is in part about legal and political achievements here and now. This idea rests upon a rather “realized” eschatology, as theologians might call it, which Opderbeck acknowledges as controversial on at least one occasion (83) but does not defend in any rigorous way. Readers already initiated into this way of reading scripture may find this unproblematic, but those inclined in other directions will likely not find compelling arguments here to change their minds. A related issue is Opderbeck's characterization of natural law as (in part) redemptive. He summarizes his own view by saying that natural law, “woven into creation, has both a preservative and a liberative function” (145)—and in the context of this book, “liberative” implies God's redemptive mission. Opderbeck stands squarely in the mainstream of the Christian tradition by defending the existence and importance of the natural law. But his claim that natural law serves supernatural ends as well as natural ends (to use classical terminology) is controversial, and also in need of a biblical and theological defense, which he does not provide. Another related matter is Opderbeck's equivocal use of “the church.” The term seems to refer at times to the corporate institution and at other times to individual Christians or non-ecclesiastical Christian organizations. Since many Christian traditions distinguish the ways in which the institutional church (on the one hand) and Christian individuals/organizations (on the other) relate to the positive law and the mission of God in the world, greater precision in terminology would have been helpful.
The final chapter demands a separate analysis, since it has a somewhat different feel from the rest of the volume. In the previous chapters, Opderbeck has made his own views known and yet has often played the role of a moderator among various competing approaches—between “Augustinian ethicists” and “ecclesial ethicists,” for instance, or between liberation theologians and advocates of non-violence. But the final chapter turns explicitly polemical. It uses strong language not present earlier in the volume, describing the “religious right” in terms of “rantings” (198), “manipulation and opportunism” (199), “irrational” (200), and “fearmongering rhetoric” (201). To be sure, the “religious right” is an easy target and the criticisms are generally well deserved. Nevertheless, there are reasons to question the consistency of Opderbeck's polemic with his initial five chapters. Two examples illustrate. He suggests, to pro-life advocates, that “maybe a different focus, based in a more nuanced theology of positive law, would make room for a slower, more patient kind of change” (207). This is a reasonable suggestion, although it is not entirely clear how this comports with his criticism in chapter 5 of Christians who advocated for a slow and patient approach with regard to the civil-rights movement. Opderbeck also address those seeking religious-liberty exemptions from recent LGBTQ legislation. He points out that having to change one’s career is a hardship, but it is not like facing execution in a Roman arena. Another good point, but one notes that he did not make an analogous observation when discussing those denied service at some restaurants because of their racial designation.
Limiting my comments here to the abortion issue, I observe that much of Opderbeck's case in the final chapter rests on the conviction that abortion is a less clear and thus more debatable moral matter than slavery or segregation. However, if abortion kills an innocent human person, as pro-life advocates believe, then it makes perfect sense that they would promote the prohibition of abortion just as strongly as anti-slavery and anti-segregation advocates promoted their causes. Indeed, pro-life advocates believe they are doing exactly what Opderbeck says in the book's final paragraph: “Prioritize the poor and oppressed” (229). So much hinges on whether Opderbeck is correct that “reasonable and faithful Christians” can disagree about when an embryo becomes “a ‘person’ or at least a ‘potential person’” (200) and that this issue “involves some ambiguities” (203). Opderbeck is not unaware of how much hinges on this, and he does offer some defense of his conclusion, but this defense is very brief. In a way, it is unfair to ask Opderbeck to make a more detailed argument about the status of unborn human life in an introductory law-and-theology volume, but it is also unrealistic to think that readers with pro-life convictions will find Opderbeck's polemic against them persuasive without it.
Even apart from the morality of abortion and other legal issues considered in chapter 6, Opderbeck's critique of the tactics and strategy of the “religious right” has many powerful elements that all Christians would do well to ponder. And that leads to my final comment. All Christians would do well to ponder it. Thus, while the “religious right” would be foolish to ignore this critique, they may well wonder why Opderbeck aims it exclusively at them. Are there no other examples of contemporary Christian legal activists who fall short at similar points? Those who already disdain the “religious right” do not really need to read Opderbeck's critique of them. But members of the “religious right”—whom Opderbeck surely wishes to persuade (or else, what's the point?)—may feel less inclined to receive his critique in a charitable spirit when they see that the book climaxes with a long and biting critique of them alone.
