Christianity and Private Law

Robert Cochran, Jr, Michael Moreland, Robert F. Cochran, Jr, Michael P. Moreland

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000225099
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire sociale

This volume examines the relationship between Christian legal theory and the fields of private law.

Recent years have seen a resurgence of interest in private law theory, and this book contributes to that discussion by drawing on the historical, theological, and philosophical resources of the Christian tradition. The book begins with an introduction from the editors that lays out the understanding of "private law" and what distinguishes private law topics from other fields of law. This section includes two survey chapters on natural law and biblical sources. The remaining sections of the book move sequentially through the fields of property, contracts, and torts. Several chapters focus on historical sources and show the ways in which the evolution of legal doctrine in areas of private law has been heavily influenced by Christian thinkers. Other chapters draw out more contemporary and public policy-related implications for private law.

While this book is focused on the relationship of Christianity to private law, it will be of broad interest to those who might not share that faith perspective. In particular, legal historians and philosophers of law will find much of interest in the original scholarship in this volume. The book will be attractive to teachers of law, political science, and theology. It will be of special interest to the many law faculty in property, contracts, and torts, as it provides a set of often overlooked historical and theoretical perspectives on these fields.

Part I
Introduction

1 Introduction

Robert F. Cochran, Jr. and Michael P. Moreland

What is private law? And what does it have to do with Christianity? These are the animating questions of this book. This volume is part of a series on “Christianity and Law” sponsored by the Center for Law and Religion at Emory University. Some books in the series are on particular topics in law such as immigration or religious freedom, but there are also books in the series on Christianity and general fields of law—Christianity and family law, Christianity and natural law, and Christianity and criminal law, for example. But that leaves a large opening for the vast range of topics covered by “private law.” The volumes in the series are intended to be introductions, written for law students, lawyers, and non-specialists in areas of law to help orient them to how Christianity relates to those fields.

What is private law?

A word of clarification at the outset about this term “private law,” which may be unfamiliar to some readers. Law students discover early in their legal education that their basic courses can be divided into “public” and “private” law. There is a longstanding historical and conceptual tradition that denotes some topics as “private law”—namely property, contracts, business associations, and torts. Several of the chapters in this book address how those fields developed. A separate volume in this series addresses business associations, another topic often designated as private law.

1 Max Weber, Economy and Society: An Outline of Interpretive Sociology, vol. 2, ed. Gunther Roth and Claus Wittich (Berkeley: University of California Press, 1978), 641.

One way of approaching what constitutes private law and how it is distinct from public law is found at the outset of an influential account of the sociology of law, Max Weber’s Economy and Society. Weber writes that “[o]ne of the most important distinctions in modern legal theory and practice is that between ‘public’ and ‘private’ law,” though the distinction is sometimes difficult to draw. Broadly speaking, public law directly involves the state—as Weber puts it, “the total body of those norms which regulate state-oriented action, that is, those activities which serve the maintenance, development, and the direct pursuit of the objectives, of the state.”¹ In the usual American law school curriculum, criminal law and constitutional law, then, are “public law” courses, as are such areas as tax law and administrative law. By contrast, private law is, as Weber puts it, “the totality of those norms which, while issuing from the state, regulate conduct other than state-oriented conduct”; private law regulates the interests of individual parties.

Another difference between public law and much of private law is that whereas public law is created by the state—constitutional law, legislative enactments, and administrative regulation—much of private law is created by individuals. Individuals draft contracts, buy and sell property, and create and operate businesses. As to all of these areas of private law, the state creates the framework, but individuals organize and create many of the specific obligations under which individuals will govern themselves.

A third way of approaching the distinction between public and private law is the way private parties confront each other (in, say, a property or torts dispute) as opposed to the government initiating a legal action against private person (as Weber terms it, the difference between the law of coordination and the law of subordination). On this view, private law is “concerned with those legal affairs in which several parties are confronting each other so that the law treats them as being coordinated and that their legal spheres are to be ‘properly’ defined against each other….” In public law (a criminal prosecution, for example), “a holder of preeminent power, having authoritative power of command, is confronting those persons who are his subjects by virtue of the legal meaning of the norms.”²

2 Ibid., 642.

3 Ernest Weinrib, The Idea of Private Law, revised edition (Oxford: Oxford University Press, 2012), 7.

An important insight shared by many of the contributors to this volume is that private law is not public law by another name—there is an integrity to private law that is not reducible to merely functional or instrumental concerns. As summarized by Ernest Weinrib in his The Idea of Private Law (a work that played a significant role in rejuvenating interest in private law theory), functionalist accounts of law assume “that no distinction exists between private and public law.” On this view, because private law is always in the pursuit of public objectives, “private law is public law in disguise.”³ A widely influential such functionalist view would be law and economics, or at least some forms of economic analysis of law. For law and economics, legal rules (as a descriptive or normative matter) are shaped by economic efficiency or some other policy objective or function—thus Weinrib’s charge of functionalism. A recurring question raised by the chapters in this volume is whether Christianity is committed to non-instrumentalist and more formalist (in Weinrib’s sense) views of private law, and, if so, how such non-instrumentalist views might be vindicated. But there is also a recurring theme in this volume that private law is not simply empty formalism. As pointed out by Brian Leiter, “vulgar formalism” holds that “judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism.”⁴ Still, there is an inner logic to the law, and we might think that private law partakes of what Weinrib terms “immanent moral rationality”—there is a “normative force” to private law.⁵

Christianity and private law

In this collection, the content of that moral rationality in private law is spelled out in terms of the historical and conceptual ways in which the Christian tradition has informed the development and articulation of private law. A tentative hypothesis advanced in this collection is that a consideration of the Christian tradition helps us answer the question of what might be the special or distinctive aspects of private law. To that question there are conceptual answers tied to justice in particular forms and also historical answers (as private law emerged as a field), both of which are presented in these chapters. A besetting question for scholarship about law and religion is a concern that work at the intersection of Christianity and law ends up with crude “legal moralism.” That is rejected by the contributions to this volume.

Instead, we might look to what Stephen A. Smith writes in his book Contract Theory, where he lays out four types of views that one can take toward any area of law: historical, prescriptive, descriptive, and interpretive. In historical accounts, we “seek to explain how and why the law has developed the way it has; they reveal the law’s causal history.” This volume has many such contributions, mining the resources of the Christian tradition for clues to how central concepts in private law came to be as they are. In a prescriptive account, we seek to say “what the law should be” or the “ideal law.” Here, too, we have several chapters that critique the current state of fields of private law, pushing against (for example) aspects of individualism in property law or the demise of the doctrine of unconscionability in contract law. A descriptive account “aim[s] to describe the law as it is now or as it was at a certain time.” The reader will encounter much in this book that tries to summarize the state of current legal doctrine in private law or shows how, for example, property law in medieval England was understood. Finally, an interpretive account “aim[s] to enhance understanding of the law by highlighting its significance or meaning.” In that regard, each chapter in this volume is in some sense interpretive because each tries to “reveal an intelligible order in the law—it helps to ‘make sense’ of the law—and thereby helps us better understand it.”⁶ The bold claim advanced throughout this book is that the Christian tradition provides such an interpretive account of private law—not exhaustive, to be sure, but a valuable and neglected perspective on the fields of property, contracts, and torts.

4 Brian Leiter, “Legal Formalism and Legal Realism: What Is the Difference?” Legal Theory, 16 (2010): 111.

5 Weinrib, The Idea of Private Law, 23–24.

6 Stephen A. Smith, Contract Theory (Oxford: Oxford University Press, 2004), 4–5.

One way of examining this interpretive view is to consider the typology regarding the relationship of Christianity and forms of culture (we would include here legal culture) famously developed by H. Richard Niebuhr in his book Christ and Culture. Some of our authors address private law from one of these perspectives. Others describe the thought of Christian thinkers who have addressed an aspect of private ...