Skeel on Christian Legal Scholarship

Penn law prof David Skeel has posted a new paper, The Unbearable Lightness of Christian Legal Scholarship.  Here is the abstract:

When the ascendency of a new movement leaves a visible a mark on American law, its footprints ordinarily can be traced through the pages of America's law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the law review literature in 1976, the year Newsweek proclaimed as the "year of the evangelical," one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship had finally begun to emerge in a few areas. But even today, the scope of Christian legal scholarship is shockingly narrow for such a nationally influential movement.

This Essay argues that the strange trajectory of Christian legal scholarship can only be understood against the backdrop of the fraught relationship between religion and American higher education starting in the late nineteenth century. As the nation's modern research universities emerged in the 1860s and 1870s, leading reformers began to promote nonsectarian, scientific approaches to education. Within a few decades, these trends hardened into a hostility to religion that has not disappeared even today. But the disdain did not run in one directions only. For much of the twentieth century, American evangelicals absented themselves from American public life. The few theologically conservative Christians who remained in legal academia operated under cover, a stance reflected in the absence of Christian legal scholarship except on church-state issues and in a handful of other areas.

The first half of the Essay is devoted to this historical exegesis and to a survey of current Christian legal scholarship. The essay then shifts from a critical to a more constructive mode, from telling to showing, as I attempt to illustrate what a normative, and then a descriptive, Christian legal scholarship might look like. Normatively, I outline a Christian theory of criminal and civil liability that implies a far more limited role for the secular law than the standard "law as morality" perspective suggests. My descriptive theory begins with a puzzle; call it the Bono puzzle. In both England and the U.S., the recent debt relief campaign and related movements have deep Christian roots, but the Christian influence has manifested itself very differently on the two sides of the Atlantic. I argue that the relative lack of theologically conservative Christian enthusiasm for debt relief in the U.S. stems from evangelicals' historical distrust of activism on social issues, which dates back to the evangelical confrontation with modernity in the late nineteenth century. Only through the work of high profile norm entrepreneurs like Bono has it been possible to overcome the presumption against intervention. Although the apparent shift in the norm against intervention on social issues has focused on debt and poverty in Africa, the shift could have dramatic feedback effects on U.S. politics.

Rob