Rule of law Archives - Bob on Books

Cover image of "Christianity and Constitutionalism" edited by Nicholas Aroney and Ian Leigh

Christianity and Constitutionalism, edited by Nicholas Aroney and Ian Leigh. Oxford University Press (ISBN: 9780197587256) 2022

Summary: Christianity and Constitutionalism explores the contribution of Christianity to constitutionalism in light of history, law, and theology.

What is constitutionalism? Broadly speaking, it refers to the written and/or unwritten legal framework by which a particular political entity orders its life, be it a monarchy or a democracy. The editors of this work, in their introduction emphasize that this is a contended term. It is either descriptive of what exists in a particular political community or prescriptive of what ought to be. They note its concerns with jurisdiction, authority, and the rule of law. And this reminded me of how important a check this can be on the intrusion of power beyond its proper sphere and the safeguard of the rule of law against corrupt exercises of power.

This purpose of this volume is to explore the contribution of Christianity to constitutionalism. In its three parts, the contributors delineate that contribution through three lenses: history, topics in constitutional law, and particular doctrines bearing on constitutionalism. My review will follow that plan of organization.

Part I: The Historical Influence of Christianity

The articles in this part span history from the Old Testament through Modernity. Jonathan Burnside shows the contribution of Torah to ideas of sovereignty (in this case the sovereignty of God), the covenantal relation between sovereign and people, limited government, separation of powers (kings, priests, and prophets), federalism, and civic virtue. Dorothea H. Bertschmann traces the tension between God’s ultimate rule and the deference due imperial rule. But what pertains when the emperor is Christian? Peter Leithart discusses Constantine and the limits upon state authority when the state recognized church authority. Then Mary Keys and Colleen Mitchell describe how Augustine’s City of God both reoriented love from the earthly to heavenly city while humanizing earthly politics.

As the church moves into the Middle Ages, the emergence of canon law deals with both superior law, binding all, and the division of powers. Richard Helmholz shows how this contribution to constitutionalism haltingly emerged. While the Reformation broke the uniform structures of church and state, it brought forth new elements contributing to constitutionalism. Thus, John Witte, Jr. delineates the new theories of church and state, authority and liberty, duties and rights, legislation and adjudication, and more that proliferated. Finally, Joan Lockwood O’Donovan shows the distinctive contribution of English Reformation public theology in the modern period.

Part II: Christian Perspectives on Constitutionalism

In this part, contributors turn to various topics in constitutional law. Beginning with the concept of sovereignty, Joel Harrison shows how Christianity contributed the idea of intertwining duality and plurality with the one. Li-ann Thio shows how the Christian idea of higher law enriches the rule of law and societal flourishing. Then Richard Ekins addresses the importance of self government to democracy and how ideas of equality and consent of the governed flow from an understanding of God’s rule. Carlos Bernal shows the biblical foundations for the separation of powers, already noted in the Old Testament essay. Julian Rivers offers a critiques of various approaches to human rights rooted in liberal ideologies, arguing that Christians “maintain a coherent and compelling theory of constitutional rights for the good of all.” Capping off these topical discussions, the editors contribute two fine essays on freedom of conscience vis-a-vis religious freedom and on federalism.

Part III: Christian Theology and Constitutionalism

To conclude this volume, the contributors address the relevance of several key Christian doctrines to constitutional law. David VanDrunen explores the relevance of scriptural revelation. Particularly, he focuses in on covenants and especially the Noahic covenant, which authorizes civil authorities to secure justice for capital crimes. According to David McIlroy, Trinitarian belief imposes limits on authorities and distributes authority. And it requires rulers to preserve God’s creational gifts. Jonathan Chaplin traces out eight contemporary implications of the biblical teaching on justice. Tracey Rowland, in a chapter on Christology explores the implications of Poland declaring Christ as her King.

John Milbank contributes one of the denser essays in this collection on natural law and natural right. Then, in an essay that was a highlight for me, Iain T. Benson writes on subsidiarity. Specifically, the focus on the local from families and neighbors to voluntary association re-centers governance in the face of the rise of various forms of statism and obsession with national politics. To conclude the book, Douglas Farrow argues the importance of eschatology for our teleology. We need to know not only for what we were made but also what the achievement of that end will look like. Our eschatological hope for bodily resurrection shapes all sorts of legal thinking about our bodies now.

Recommendation

In some of our countries, it seems that the only thinking about Christianity and law is trying to have enough power to enact our own moral vision into law. This volume represents a recovery of a deeper form of Christian thinking about how governments are constituted in such ways to support God’s aims for the flourishing of humanity and other creatures. There is good thinking about the relation of human constitutions to higher law, about the ways law directs both to good ends and protects from harm. Nicholas Aroney’s chapter on “Federalism” challenged me to think about why federalism exists, something I hadn’t considered since reading the Federalist papers.

The international team of scholars adds to the richness of this collection, representing every continent. This is an excellent supplemental text for courses in constitutional law and a valuable read for anyone who cares about governance. With only one or two exceptions, the chapters are both substantive and accessible, a tribute to the editorial work on this volume.

____________________

Disclosure of Material Connection: I received a complimentary copy of this book from the publisher for review.

The Rule of Laws, Fernanda Pirie. New York: Basic Books, 2021.

Summary: A four thousand-year history of the ways different cultures have ordered their societies through various forms of law.

Every group of people develops rules to order their life together. And this has been true throughout history, whether through rulings of the city elders at the gate resolving various disputes through various legal codes. Fernanda Pirie set herself the task in this book of describing and making some sense of the four thousand year global history of laws in their various forms.

She identifies three major streams of law, the Mesopotamian that influenced the West, the Indian Brahmin, and that of China, influence much of east and southeast Asia. The book consists of three parts: the visions of order that accounted for the rise of these traditions from the Code of Hammurabi through to the European courts that arose in the wake of the fall of Rome; the development of these traditions in the Medieval period tracing the expansion upon religious law, imperial law in China and the courts and customs of Europe; and finally, law in the modern law and the development of the rule of law in western democracies and its import into colonial situations, the growth of Islamic Law, and the expansion of international law.

She traces a common thread through history: the use and development of law to order society–punishing murder, compensating injuries and damages, regulating marriage, family, and inheritance, protecting property and regulating commerce. She explores the various forms of laws from case laws to legal codes and common law, administrative structures to promulgate and implement legal codes from trade associations to royal courts, and the judicial structures to adjudicate disputes, determining guilt and innocence, and passing sentences. One of the most fascinating chapters traced the use of ordeal when the veracity of witnesses could not be readily discerned to the subsequent development of rules of evidence and trials by a jury of one’s peers. What is also striking is the fascinating array of ways in which all this was implemented from mediators to local to royal rulers and emperors, to our modern courts.

For me, the book alternated between fascinating discussions and hard slogs through an array of practices and their variations in various European royal courts, along with movement, often within chapters from European to Islamic to Chinese systems. The array of detail made it difficult at times to see the forest for all the individually interesting trees. I found it hard to discern a larger argument or structure with the mass of descriptive detail, apart from the overview and concluding discussions of the universal development of legal systems to organize social life.

Perhaps it is the task this author set herself, one for which she evidences obvious enthusiasm, to render a global history of law in under 460 pages of text. The tension between comprehensiveness and elegant structure must have been a challenge. The work has this in its favor, it is free of legal jargon and highly readable over all. And it raises the profound question of why so many and various cultures found it necessary to use laws to order their lives.