New Papers by John Breen

Our former blog-colleague John Breen has posted a few new papers on SSRN.  Here is "John Paul II, the Structures of Sin, and the Limits of Law":

Nearly three years ago, Pope John Paul II passed away. Regardless of one's religious background, the late pope must be regarded as one of the most significant figures of the twentieth century. John Paul left behind an enormous record of teaching. One of the topics of the late pope's many texts is the relationship between law and culture, which this article discusses.

As someone who saw Poland ravaged by Nazism and totalitarian socialism, John Paul was aware of the need for a legal system dedicated to justice and the rule of law. Regardless of the issue, John Paul supported the use of legal mechanisms to address unjust attitudes and behaviors that assume institutional form - what he called “structures of sin.” However, John Paul knew that law subordinates culture, as every legal system is the product of culture, and suffers from serious limitations when employed to bring about social change. I use a passage from Dostoevsky's The Brothers Karamazov to introduce the pope's teaching on these matters.

Furthermore, in an article entitled Christianity and the (Modest) Rule of Law, law professors David Skeel and William Stuntz argue that law should be modest in its ambitions, as it may not be an appropriate response to many social problems. They argue that law suffers when it attempts to regulate what it cannot change – a vice they call “legal moralism.” They make these arguments from an Evangelical Christian perspective.

Although Skeel and Stuntz agree with John Paul in many respects, their analysis could have benefited from a broader engagement with the Christian intellectual tradition. They fail to appreciate the way in which law helps to form cultural norms and practices by serving a teaching function. Furthermore, Skeel and Stuntz are mistaken in identifying the legal regulation of abortion as an example of “legal moralism.”

And, here is "Modesty and Moralism:  A Reply to Steel and Stuntz":

In a recent article, Christianity and the (Modest) Rule of Law, law professors David Skeel and William Stuntz argue that American law should be modest in its ambitions. They contend that law is not an appropriate response to many social problems, including abortion. They argue that the rule of law suffers when law attempts to regulate that which it cannot change – a vice they refer to as “legal moralism.” Skeel and Stuntz make these arguments from an Evangelical Christian perspective.

This essay examines Skeel and Stuntz's ideas concerning legal modesty and legal moralism, particularly regarding abortion. I argue that their essay could have benefited from a more thorough engagement with the Christian intellectual tradition.

I also argue that Skeel and Stuntz undermine their claim that law is frequently incapable of affecting social change by relying on Gerald Rosenberg's deeply flawed discussion of abortion prior to Roe v. Wade. By relying solely on Rosenberg's book, Skeel and Stuntz ignore evidence that abortion increased following the state reform efforts of the late 1960s and early 1970s and the decision in Roe.

Many commentators have argued that law should be used in a non-coercive manner to curb the incidence of abortion through greater social assistance to women and families. I show that data indicates that these sorts of laws would have a marginal effect on the nearly 1.3 million abortions that take place each year.

Skeel and Stuntz see that culture enjoys a priority over law in influencing individuals' choices. However, they misunderstand the importance of law in shaping culture. I argue that abortion as a social problem cannot be resolved solely by legal means. Instead, law should be part an effort of cultural transformation. I offer the example of how law has worked with cultural norms in significantly reducing the incidence of drunk-driving fatalities beginning in the 1980s.

Finally, here is the Skeel and Stuntz paper that John is engaging:

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.

For some earlier MOJ posts on the Skeel & Stuntz paper, go here, here, and here.