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States of Exception

Stanley Hauerwas and the Law

Thanks to Dave for the invitation to write this guest post.  I am a professor of law and political science at Washington University in St. Louis.  I’m also serving as the special editor for a symposium volume of Duke’s Journal of Law and Contemporary Problems that focuses on theological argument in the law by exploring the work of Stanley Hauerwas.   That volume is the topic of this post—for those who’d like to go straight to its contents, you can find them here.

As I mention in my foreward, Hauerwas’s influence and views have been scrutinized for decades by some of the leading thinkers in religious studies, sociology, history, political theory, moral philosophy, and literary theory.  But until now, they have been largely ignored in legal scholarship.  The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to the law: violence, liberalism, bioethics, disability, interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars has contributed to a growing divide. As Jeffrey Stout observes in Democracy and Tradition, “the more thoroughly Rawlsian our law schools and ethics centers become, the more radically Hauerwasian the theological schools become.”

The articles in this volume connect Hauerwas’s theological arguments to discrete areas of the law and engage more broadly in questions of political and legal theory.  Cornell law professor Bradley Wendel challenges Hauerwas’s reluctance to address the kinds of local conflicts that emerge from what Jeremy Waldron has called “the circumstances of politics.”  Wendel argues that “the law provides a means to balance and resolve competing considerations, such as the need for economic development and the protection of the environment, in a way that allows citizens to treat one another with respect.”  He is not overly sanguine—he observes “striking” parallels between Hauerwas’s theological critiques and non-theological critiques suggesting that a legal ethics grounded in “thin, procedural values cuts lawyers off from the moral resources that would give meaning to their professional lives.”  But Wendel pushes Hauerwas toward a more hopeful view of legal practice.

Elizabeth Schiltz, professor of law at the University of St. Thomas, enlists Hauerwas to critique contemporary approaches to disability law.  Beginning with Hauerwas’s observation that “no group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped,” Schiltz explores some of the deep tensions in contemporary disability rights theory—including the implications for selective abortions and withholding of medical treatment. She builds upon observations by legal scholar Samuel Bagenstos but suggests that Hauerwas’s arguments expose significant problems in Bagenstos’s attempts to reconcile the tensions.  Schiltz situates much of her article in Hauerwas’s reflections on L’Arche, “an international federation of small, residential faith- centered communities where people with and without intellectual disabilities live together in friendship.”

Villanova law professor Michael Moreland explores the significance of Hauerwas’s writing to bioethics. Moreland examines the ways in which the philosophical framing of intentional torts—an important antecedent to the law of bioethics—“has become muddled in ways that Hauerwas’s own critique of bioethics and his earliest work in the philosophy of action indicate.” Moreland traces the significance of Elizabeth Anscombe’s work on intention to Hauerwas’s own thinking and then explains the implications of Hauerwas’s observations on the “confusion about intention” for notions of harm in legal doctrine. This confusion extended into the law of bioethics as philosophical argument in that area came to be dominated by autonomy and consequentialism—a confusion evidenced in some of the arguments advanced in the “right to die” cases, Washington v. Glucksberg and Vacco v. Quill. Drawing from these contemporary examples, Moreland shows the continued relevance of Hauerwas’s arguments to emerging questions of bioethics.

James Logan, a professor of religion at Earlham College, considers the difference that Christian theology might make in addressing the state of punishment and incarceration in the United States. His vision of “good punishment” embodies a “politics of healing the memories of wrongdoing by way of the acknowledgement of sin within a communal setting of forgiveness and reconciliation.”  Reading Logan’s article, one is struck by the visceral language that situates his argument, including a gruesome and detailed account of prison rape by a self-described “Black punk.”  A few sentences later, he appeals to “the memory of an executed-yet-living God to guide us while living at the crossroads of Good Friday and Easter.” These two descriptions are bound to encounter different receptions in the socially conditioned guild of legal scholars. We know what to do with the first one—critical theory has rightly shown us that we cannot begin to understand the plight of a “Black punk” or the social reality that he embodies if we sanitize his story or extract it from the background context that made it possible. But Logan’s second description warrants the same epistemic charity; indeed, it is the only way to make sense of what he means by the possibility of “good punishment.”

University of Miami law professor Charlton Copeland explores the narrative dimension of Hauerwas’s theology and asks whether legal and theological reflections on the politics of liberation push Hauerwas toward a more capacious and open-ended conception of narrative. Copeland draws connections between narrative arguments that took shape in law and theology in response to critiques of modernist assumptions in both disciplines. As he notes, proponents of “legal storytelling” use narrative to “critique, reject, and ultimately transform the dominant paradigms of the larger society,” while Hauerwas’s “narrative theology project aims to recover an authentic Christian identity for the Christian community’s self-understanding, rather than for its comprehension by the external community.” Copeland considers the implications of these different narrative frameworks for same-sex marriage debates.

Pennsylvania law professor David Skeel focuses on what he calls the “prophetic temptation” in Hauerwas’s writing—taking “prophetic stances” on public issues but showing less willingness to “intervene more directly in the political process.”  Skeel contrasts Hauerwas’s theological ethics with the “social optimism” of Walter Rauschenbusch and the “pragmatic” accommodation of Reinhold Niehbuhr.  Despite Hauerwas’s concern that political involvement could “dilute the visibility of the church,” Skeel contends that “Hauerwasian theology does not preclude participatory engagement.” He develops his arguments with three examples: the Civil Rights Movement, abortion, and debt relief laws.  Skeel suggests that Hauerwas’s abortion writings “gesture toward the possibility” of a participatory role for the church,” and challenges Hauerwas (and those influenced by his ideas) to engage in “the political debate over the legal structure of debt and debt relief.”

Notre Dame law and theology professor Cathleen Kaveny explores connections between Hauerwas’s work and contract law, building upon “the historical and normative overlap between the notions of ‘covenant’ and ‘contract.’” She turns to the theologian Karl Barth to frame “the possibilities for ad hoc engagement of theology and secular disciplines.” Kaveny also contends that Hauerwas should welcome Paul Ramsey’s account of natural law “because it privileges the context-dependent, narrative-oriented approach of the common law as a locus for the articulation of moral norms.” She concludes by suggesting that these narrative insights would be particularly fruitful in exploring “the norms embedded in and illustrated by the cases of contract law.”

Princeton political theorist Stephen Macedo offers a more critical take on Hauerwas’s challenges to the narratives of contemporary liberalism. Macedo questions Hauerwas’s uniformly negative description of the liberal project and his reliance on political theorists like Alasdair MacIntyre and Sheldon Wolin. As Macedo writes, “it is hazardous and unfair to interpret a tradition of thought based mainly on the claims of its harshest critics, as if taking one’s bearings on Christianity from the late Christopher Hitchens.” Macedo suggests that Hauerwas look more charitably at, or work toward a better description of, the “moral core” of the liberal project, which emphasizes “the political importance of equal basic individual rights” and “the demand that legitimate governments must secure citizens in a range of basic rights and that the people must be able to hold their governments accountable.” He argues that liberalism must be understood as a practical and moral program for responding to a variety of problems—including the problem of establishing peaceful democracies in conditions of religious and ethical diversity. Macedo suggests that many of Hauerwas’s critiques miss the moral core and the practical orientation of liberalism, and that once these are appreciated there may be more common ground than Hauerwas allows.

My contribution uses Hauerwas to critique Ronald Dworkin’s theory of legal interpretation. I pay particular attention to Dworkin’s assertion in Justice in Robes that “judges may not appeal to religious convictions or goals in liberal societies because such convictions cannot figure in an overall comprehensive justification of the legal structure of a liberal and tolerant pluralistic community.” I contend that this constraint unjustifiably excludes Hauerwas’s arguments from our common enterprise of legal interpretation and illustrate my claim by comparing the ways in which both thinkers approach the abortion controversy.

Yale law professor Stephen Carter’s article returns to one of the fundamental questions of law and one of the fundamental challenges to Hauerwas’s engagement with the law: “Must liberalism be violent?” Carter draws attention to Hauerwas’s nonviolence and suggests that “his views on the violence of war and his views on the violence of the liberal state are inextricably linked.” But Carter argues that this connection need not make the liberal state “irredeemable.” To the contrary, the critiques of liberalism that emerge from Hauerwas’s thought may have “important implications for public policy” and the law reform project.

The articles are followed by a transcribed dialogue between Professor Hauerwas and Duke law professor H. Jefferson Powell that covers a range of topics including the formation of law students, the civil rights movement, and the role of violence in the law.

Hauerwas’s response deepens some of the connections that others in this symposium have drawn between his work and legal theory. He suggests that lawyers have assumed a privileged role in our society because the law “became the only means we had to resolve moral disputes.” For this reason, “the law can manifest the deepest theological and moral commitments of a people,” and legal theory maintains “a deep regard for the continuing moral intelligibility of the law in what many regard as a morally unintelligible society if not universe.”  But, as Hauerwas writes, “there is only one problem—it is politics all the way down.” With that claim, Hauerwas reasserts his charge that “liberal political practice and ideology makes it impossible for liberals to recognize that they are exercising hegemonic power in the name of choice.”

And yet these arguments, familiar to Hauerwas’s readers, do not preclude his appreciation for the law. The law manifests power, but “power can also often be an alternative to violence.”  And while “the law certainly can be one of the forms that violence takes,” the law “can also be a gift that allows us to have as well as resolve conflicts without killing one another.”  As Hauerwas concludes, “the law is a morally rich tradition that offers a language otherwise unavailable for the conflicts we need to have as a society. That is a tradition in which I should like to count myself a participant.”

I hope that some of these contributions will be of interest to readers of this blog.  Feel free to contact me if you have and feedback or questions.

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