Law and Theology

Classic Questions and Contemporary Perspectives

David W. Opderbeck

• Publisher: Fortress Press
• Year: 2019
• Print ISBN: 9781506434322
• eBook ISBN: 9781506434339
• Topic: Theology & Religion
• Subtopic: Religion, Politics & State

Law and Theology offers the definitive account of the relationship between law and theology in the Christian tradition. Drawing on diverse biblical texts and classic authors from the early church to contemporary voices from the modern period, David W. Opderbeck examines key legal questions and controversial case studies from an interdisciplinary perspective, breaking new ground for legal scholars and theologians alike. As a law professor, practicing attorney, and theologian, Opderbeck writes as an insider from both disciplines. This unique look brings fresh insight for both fields in a context where questions of theology and law are especially relevant--and increasingly urgent. Going beyond the culture wars, Opderbeck brings these real-world cases to life, examining the ins and outs of the most important legal questions facing American civic and religious life. Scholars and students of law and theology will find this book to be required reading in and outside the legal and theological classrooms.

I

Theology

Part 1 surveys the biblical witness and the historic Christian tradition for insights about the nature and purposes of law. It concludes with thoughts on a constructive contemporary theology of law. I argue that there is a natural law connected with creation’s participation in God’s being. Because God is altogether loving, good, beautiful, true, and just, the love, goodness, beauty, truth, and justice toward which creation tends are not merely arbitrary accidents but rather possess metaphysical substance. At the same time, creation is not necessary, so that even the natural law as realized in this present creation exhibits a degree of contingency. Further, God relates to humanity in history, so that divine commands to humanity also exhibit a significant degree of contingency, even in the garden before human sin. Beyond the ordinary contingency of creation and divine command, because of sin, human society often tends away from the true ends of creation. Prior to the eschaton, human positive law is therefore necessary to restrain evil, mirror God’s righteousness, guide human conduct, and promote human liberation. However, because of sin, no human society can fully realize the natural law, so that human positive law is radically contingent on history and plays a limited role in God’s economy of salvation.

1

Law and the Narrative of Scripture

Introduction

The Bible is “full of legal material.”^[1] This includes, for example, the specifically legal texts in the Torah, reflections on law and justice in the prophetic and wisdom literature, the summations of the law in Jesus’s teaching, particularly in the Sermon on the Mount, the moral exhortations (parenesis) in Paul’s epistles, and further wisdom and prophetic reflections on law and justice in New Testament wisdom texts, such as James and Hebrews, and in apocalyptic texts, including Revelation. Various parts of these biblical texts have been central to religious and social life in the Christian West, the Islamic world, and the Jewish diaspora, and through that influence have directly impacted ideas about law and justice in Western and Arab civilizations since antiquity. As biblical scholar Brent Strawn has noted, “It does not seem to be going too far to say that all of the Bible is—or has been or could be—law, even if only (!) of a religious sort.”^[2]

The diversity of literary genres in which this biblical legal material is embedded, the vast differences in ancient cultural and historical contexts through which the biblical literature was produced, and the distance between those ancient contexts and later moments in history—including our present moment, of course—presents enormous challenges for how (or whether) we should use the Bible as a source for reflection about law today.^[3] Consider just this one command from the Torah:

If someone has a stubborn and rebellious son who does not obey his father and mother and will not listen to them when they discipline him, his father and mother shall take hold of him and bring him to the elders at the gate of his town. They shall say to the elders, “This son of ours is stubborn and rebellious. He will not obey us. He is a glutton and a drunkard.” Then all the men of his town are to stone him to death. (Deut 21:18–21 NIV)

Very few contemporary Christian, Jewish, or Muslim interpreters would suggest that this law, or anything like it, should be enacted today. Nor did the ancient Jewish rabbis interpret such laws inflexibly. Indeed, the Talmudic jurists understood this law about the rebellious son to limit the otherwise unilateral power of a father who is head of a family by requiring a kind of trial before the elders, and further restricted the circumstances under which the punishment of stoning could be applied, such that the text served a more symbolic than practical purpose.^[4] Many modern biblical scholars believe the Deuteronomic Code, from which this text is drawn, was the product of reforms of King Josiah (c. 639–609 BCE) or reflects forms of Assyrian and other ancient Near Eastern laws brought into the context of Israel’s covenant relationship with God.^[5]

With this historical background, many modern scholars understand the Deuteronomic Code primarily as theological and hortatory—a form of moral instruction—rather than law as we might understand that term. As biblical scholar Daniel Block suggests, “Treating [the Deuteronomic Code] primarily as ‘law’ and limiting ‘law’ to this section obscures its theological agenda and invites readers to expect legislation like that passed in our own modern legislatures. The entire book is ‘Torah’—which is best understood as instruction in righteous living as defined by the spokesman (Moses) for the divine suzerain (Yahweh).”^[6]

This example, which briefly discusses only a few considerations relating to one small part of the Bible, demonstrates how difficult, and even dangerous, it can be to use the Bible as a source for lawmaking today. Interpretation is never a straightforward matter of reading what the Bible “literally” says and applying the words directly to contemporary circumstances. We always must pay attention to the “world behind the text”—its historical context—the “world within the text”—its literary features—and the “world in front of the text”—the very different later historical circumstances, including our own, to which the text may relate.^[7] As Christian interpreters, we also must remain sensitive to how the Holy Spirit may use the text, including through forms of reading that are more meditative or devotional than didactic, and including through new insights and applications that may not have been apparent to previous readers, as well as to the role the community of the church may play in shaping or constraining idiosyncratic interpretations. Embedded in this paragraph, of course, are enormous, intractable theological debates about the nature of biblical inspiration and authority, the role of tradition, reason, and experience as sources of theological authority, ecclesiology, pneumatology, and so on.

Addressing any of those debates in detail is far beyond the scope of this book. The best I can do is identify the approach I have chosen and try to connect it with my methodology for a constructive theology of law. My approach to Scripture here is narratival. As many contemporary biblical scholars and theologians have noted, the Bible can be read to suggest an overarching story involving “creation, ‘fall,’ Israel, Jesus, and the church” and the coming consummation.^[8] As Richard Bauckham notes, “A narrative hermeneutic recognizes the way narrative creates its own world in front of the text and so interprets our world for us; how narrative opens up new possibilities of living that change us and our world; how we are given our identities by the narratives of our own lives and the wider narratives to which they relate.”^[9]

Of course, any such narrative scheme across the sprawling, diverse canon of Scripture could be contested and threatens to flatten the distinctiveness of any given text. There is a sense in which any narrative scheme for the canon is an imposition upon any given text—a problem, as Bauckham notes, of the relation between the “particular” details of any given text and the “universal” narrative.^[10] The overarching narrative does not always spring so neatly from the particular texts as narrative theologians might like. I think, however, that the concept of a general canonical narrative fits with the notion of the “canon” itself. The canon, after all, was identified by the church well after its particular texts were composed based in significant part on the church’s lived experience in the story of redemption, in particular through the “rule of faith” that places the life, death, and resurrection of Jesus Christ at the center of history.^[11]

Indeed, the narratival approach to Scripture connects with another theological theme of this book, which is that a theology of “law” inevitably entails a theology of “history.” The narrative of Scripture discloses God’s purposes for creation, consummated in the life, death, and resurrection of Jesus Christ. “Law” as a feature of the biblical narrative, and as a feature of human history, plays an important, even central role in that narrative. If we wish to develop a constructive theology of law, and if we wish to reflect and act wisely and faithfully concerning law in our present moment in the divine drama, we must discern the times before (or if) we prioritize one kind of legal reform or another as an aspect of the church’s mission in the world. My approach, then, both to Scripture, history, and the philosophy and theology of law, is to explore the age-old question of how the “universal” relates to the “particular.”

Law and the Narrative of Scripture: Creation

At the start of the canonical biblical narrative, in Genesis 1–4, God creates the heavens and the Earth, and establishes humanity as stewards over the Earth.^[12] At the climax of the Bible’s first creation narrative in Genesis 1, on the sixth day, God creates humanity—הָֽאָדָם֙, hā’āḏām, the generic term “the adam”^[13] (Gen 1:26–28). God tells humanity to “be fruitful and multiply, and fill the earth, and subdue it; and rule over the fish of the sea and over the birds of the sky and over every living thing that moves on the earth” (Gen 1:28 NASB). The Hebrew text uses the words פְּר֥וּ (p’rū), וּרְד֞וּ (ūr’ḏū), וּמִלְא֥וּ (ūmil’ū), and וּרְב֛וּ (ūr’ḇū), an interesting rhythmic pattern not noticed in English translation.^[14] The rhythmic pattern sets up a sort ...

Table of contents

• Cover
• Praise for Law and Theology
• Title Page
• Copyright
• Table Of Contents
• Introduction
• Theology
• Praxis
• Conclusion: Law, Fear, and Eschatology
• Acknowledgments
• Names and Subjects Index
• Scripture Index