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Description
'Theology and Law: Partners or Protagonists?' edited by Christine Parker and Gordon Preece, 8(1) Interface: A Forum for Theology in the World (Adelaide: ATF Press, 2005) pages i-ii, 1-125. Price A$19.95 (softcover). ISBN 1929691 46 4.
[The collection of essays found in 'Theology and Law: Partners or Protagonists?' makes a valuable contribution to the exploration of the relationship between law and religion. Still, there is a flaw with the volume." #fails to define and distinguish "theology' and 'religion '. Drawing a distinction between the two terms has methodological implications. This review essay offers a means of distinguishing the two terms, from which two methodological approaches flow: 'law and religion' and 'theology and law '. A volume devoted solely to the latter would make a significant and unique contribution to existing Australian legal literature, while one devoted to the former would merely add to a relatively well-established body of research. While this review essay argues that the volume is directed more to law and religion than theology and law, it also concludes that the volume is significant and important because it opens a sustained and focused dialogue between religion (which includes theology) and law.]
CONTENTS I Introduction II The Need to Define and Distinguish 'Theology' and 'Religion' III Two Methodological Approaches IV Law and Religion V Theology and Law VI Concluding Reflections
I INTRODUCTION
Is there a relationship between theology and law? If so, is there any relevance in exploring this relationship? And can the endeavour to find possible parallels, overlaps or intersections bear fruit? The paucity of Australian legal literature in this area suggests a negative response to each of these questions. In introducing the collection of essays in 'Theology and Law: Partners or Protagonists?', (1) Gordon Preece suggests that this may be a consequence of the fact that theology and law are 'two of the currently least popular and least esteemed disciplines and professions in western societies.' (2) Nevertheless, because 'these are two institutions at the very heart of our society, whose individual health and healthy relationship society has a vested interest to maintain', 'Theology and Law' 'explores that relationship with a view to renewing the health of both'. (3) This is an important goal, for while the two disciplines may arguably be lacking in public esteem, and there may exist a gap in the Australian legal literature on the relationship between them, it does not mean that engaging with them bears little fruit or is irrelevant to a full understanding of Australian society.
The rich and diverse American legal literature reveals a number of possible dimensions to society's relationship with both theology and law. (4) Some scholars consider the ways in which law exhibits theological dimensions, the ways in which law is a dimension of theology, and the fact that theology played a role in, and influenced the development, application and operation of, 'secular' (5) domestic civil law. (6) Each of the three monotheistic traditions--Judaism, (7) Christianity (8) and Islam (9)--are represented in this enterprise. Others study religious law, itself based upon theological conclusions, as an inherently interesting and important field in its own right. (10) Still others note the necessity of understanding the history of a theological tradition in order to comprehend the contemporary operation of a modern legal system. (11)
The search for historical connections and influences in the development of modern law has been particularly illuminating in the case of Christianity. (12) The earliest courts in England, for instance, were not the courts of common law but the ecclesiastical courts. By the 12th century, when judicial process was only just beginning in the English secular courts, ecclesiastical courts had already long looked very much like what we would call a court today: a judge trying to find out what had happened between the parties, comparing evidence given by witnesses, and applying rules that could be looked up in books. (13) Harold J Berman, in his monumental study Law and Revolution: The Formation of the Western Legal Tradition, writes that:
basic institutions, concepts, and values of Western legal systems have their sources in religious rituals, liturgies, and doctrines of the eleventh and twelfth centuries, reflecting new attitudes toward death, sin, punishment, forgiveness, and salvation, as well as new assumptions concerning the relationship of the divine to the human and of faith to reason. Over the intervening centuries, these religious attitudes and assumptions have changed fundamentally, and today their theological sources seem to be in the process of drying up. Yet the legal institutions, conceptions, and values that have derived from them still survive, often unchanged. Western legal science is a secular theology, which often makes no sense because its theological presuppositions are no longer accepted. (14)
In other words, the history of the Western legal tradition, of the common law itself, is intimately bound up with Christian theology. (15) Recent American scholarship builds upon this conclusion, elucidating the extent to which the United States Constitution was strongly influenced by the Christian faith of its authors. (16) It was S F C Milsom who famously argued that it is only '[o]ur own age ... which has felt able to relegate the relationship between law and morals to the class-room.' (17)
The Australian legal academy seems to have forgotten--and perhaps overlooks, in favour of a more secular account--the historical relationship between theology and law. (18) This results in a more serious contemporary omission: a failure of the two disciplines to speak to, and learn from, one another. (19) While there may be reasons for this, such as the comparatively recent rejection of natural law as having anything useful to say in the modern legal academy, (20) it is nonetheless disappointing. Writing in the American context about property, Harvard law Professor Joseph William Singer explains that by studying theology
we can learn from centuries of study and debate about the appropriate role of morality in the economic world. Major religions have grappled with the question of what obligations a good person has in the world of commerce, and have suggested ways to make an economic system compatible with the full range of our values. By looking at religious traditions, we may deepen our engagement with those values and find some inspiration on how to negotiate tensions we face between the pursuit of profit and the pursuit of humanity. (21)
The interdisciplinary study of theology and law seeks to determine the ways in which both may actually be pursuing the same goal--morality and justice--and how, in that common pursuit, they might offer insights to one another. (22)
The novelty of 'Theology and Law', therefore, lies in its contribution to Australian legal literature. Australia's theologians--indeed, those of most countries--have long recognised the interplay between the two disciplines, and they continue to grapple with the impact of theological understanding and religious conviction upon law, law-making, and legal processes. (23) Those in the law schools, however, remain in need of rediscovering the theological background to Anglo-Australian law and a fuller understanding of the world in which we live. The collection of essays applies existing theories to early and contemporary manifestations of the interplay between theology and law in Australia. The essays found in 'Theology and Law'--written by antipodean academic lawyers and theologians (24)--open a much-needed dialogue between theology and law in relation to both the historical antecedents of the Western legal tradition, and the deeper relationship, as concerns morality and justice, between them. This allows each to learn from the other. And while it may add little to the American literature on the topic, it makes a unique contribution to Australian legal literature. Still, as this review essay will show, one weakness emerges.
This review essay is divided into six parts. Part II identifies the weakness with 'Theology and Law'--its failure to define and distinguish 'theology' and 'religion'--and also provides a means of distinguishing the two. Part III outlines two methodological approaches which flow from the distinction between theology and religion. Using the two approaches set out in Part III, Parts IV-V reorganise the essays found in the volume on the basis of whether they deal with the relationship between religion and law, or theology and law. Part V offers some concluding reflections on the study of the relationship between theology and law.
II THE NEED TO DEFINE AND DISTINGUISH 'THEOLOGY' AND 'RELIGION'
Notwithstanding the great value of 'Theology and Law' in opening dialogue and exploring the relationship between theology and law, there is a weakness: the failure to define and distinguish 'theology' and 'religion'. While these terms are obviously related, they are not the same. This may seem a minor point, yet in fact it makes all the difference; as we will see it has implications for the methodological approach one adopts.
There are many ways in which one might have approached the task of defining and distinguishing theology and religion--a vast literature covers this area, and no claim is made here to be comprehensive. (25) In offering a means of defining and distinguishing the two terms, the intent is not to criticise what is done in 'Theology and Law', but to strengthen its... |
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