Stuntz & Skeel on Christianity and the Rule of Law

Here is a new paper, "Christianity and the (Modest) Rule of Law," by Professor William Stuntz and Professor David Skeel:

Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity.

It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - is meant to play a different role than the law of code books and case reports. Good morals inspire and teach; good law governs. When the roles are confused, law ceases to rule and discretion rules in its place. That is a lesson that many of our fellow religious believers would do well to learn: Christians on the right and on the left are too quick to seek to use law to advance their particular moral visions, without taking proper account of the limits of law's capacity to shape the culture it governs. But the lesson is not only for religious believers. America's legal system purports to honor the rule of law, but in practice it is honored mostly in the breach. One reason why is the gap between law's capacity and the ambitions lawmakers and legal theorists have for it. Properly defining the bounds of law's empire is the key to ensuring that law, not discretion, rules.

I'd welcome others' reactions to what strikes me as a provocative claim.  How consonant, do we think, is the argument advanced by Stuntz and Skeel with "Catholic legal theory"?  On the one hand, I would think that Catholics can happily endorse the idea that the goal of law need not be moral perfection, that not every wrong should be a crime, and so on.  We can, and should, take seriously the constraints that a commitment to "the rule of law" imposes on well-meaning actions by officials and judges.  At the same time, it seems mistaken to divide too sharply the "moral law" which inspires and teaches and the law that "governs."  In any event, check it out.