William S. Brewbaker III

THE BIBLE AS LAW BOOK? THOMAS AQUINAS ON THE JURIDICAL USES OF SCRIPTURE

William S. Brewbaker III — Wed, 04 Aug 2010 12:37:23 PDT

Thomas Aquinas’s Treatise on Law is enjoying a resurgence of interest among legal scholars. It is excerpted in leading legal philosophy texts, assigned in jurisprudence courses, and even cited in law journal articles and legal monographs on a wide range of subjects. Although the Treatise consists of nineteen chapters (“questions”), the average student of legal philosophy is likely to have been exposed only to portions of the first eight and little, if any, of the last eleven.The Treatise is not a short work, and most of the editorial decisions are both practically necessary and pedagogically understandable. Nevertheless, omitting the “rest” of the Treatise has had some unfortunate consequences. The omitted questions include the bulk of Thomas’s account of the relationship of theological revelation to human law, a subject of increasing importance to contemporary debates about religion and politics. The omissions also tend to reinforce the impression that Thomas’s natural law system can be hived off from his religious and cultural context. To be sure, Thomas does make the familiar natural law claim that there are moral truths that all human beings must know merely by virtue of being human, but the deeper one goes into the Treatise, the clearer it becomes that Thomas’s treatment of natural law is part of a complex and theologically-informed understanding of nature, reason, revelation and the unfolding story of God’s action in the world.This article expounds and analyzes the role of Scripture in Thomas’s account of legislation and judging, arguing that Thomas leaves only modest room for the Bible to influence human law directly. After explaining some key theological presuppositions that underpin Thomas’s account of law generally, the article shows how Thomas divides the laws found in Scripture into several overlapping categories, only one of which (the “moral law” found in the Old Testament) has any direct continuing relevance for the Thomistic jurist. Even here, Scripture serves mostly to confirm the moral truths that human beings (at least the “wise” ones) already know.Nevertheless, it would be an overstatement to conclude that the Bible is completely irrelevant to the Thomistic jurist. The Scriptures bear witness to the grace of Christ, which, in Thomas’s account is critical to the jurist’s proper exercise of his or her vocation. Moreover, the Thomistic jurist’s understanding of law cannot but be shaped by the Scriptures’ account of nature, the human person and ethics. While these theological starting points may not always make much difference in legal details, they do lead Thomas (and presumably his followers) to a vision of law that is famously at odds with many modern accounts.

A Tale of Two Presidents

William S. Brewbaker — Mon, 01 Jun 2009 12:46:52 PDT

Law, Higher Law, and Human Making

William S. Brewbaker — Mon, 11 Aug 2008 08:04:24 PDT

This paper examines what Christian theology teaches about the nature of human creative activity, and asks whether there might be anything to be learned about "making" human law on the basis of that investigation. I do not contend that "making" is the best metaphor for whathuman judges and legislators do. Nevertheless, there is a sense in which judges and legislators are "making" law, so the question seems worth asking.Rather than attempt to survey and synthesize multiple theological accounts of human making, I have chosen to focus on just one Dorothy Sayers' The Mind of the Maker-- and this, in part, because Sayers' Thomistic account is highly suggestive as to the role higher law might play in the human activity of judging.Sayers argues that the human creative act has a trinitarian structure that includes Idea, Energy and Power. These three elements correspond roughly to (i) the whole idea of the work in the mind of the artist with reference to which the creative activity is carried out (Father), (ii) thecreative activity that makes the work incarnate (Son) and (iii) the work's capacity to influence the human person and the community's public context (Spirit).Sayers' Idea the concept of the whole, finished work that regulates human creative energy forms an obvious analogy with what classical legal theory calls "the law." However, the concept also contains an obvious disanalogy in the legal context multiple authorship. One obvious solution to this dilemma is to posit divine authorship of "the law" in the form of natural law. Sayers' account is suggestive, however, of a different approach-- a culture-relative version of "the law" that might exert a regulative influence on judicial decision making.The concept of the Energy, or Activity, draws attention to the medium of law and the craft of legal decision making. Finally, attention to a work's Power the fact of its encounter with human beings in a public context helps explain how laws can fail when they run afoul of higherfacts when they are unworkable with respect to the conditions they seek to regulate or sit uneasily with other existing law or are opposed by public opinion. Laws may also have effects not envisioned by their human makers, as they are appropriated or even distorted by other people. Reception of the legal work is also critical as to whether the law will be obeyed and, if so, whether that obedience will be free or merely coerced.

THEORY, IDENTITY, VOCATION: THREE MODELS OF CHRISTIAN LEGAL SCHOLARSHIP

William S. Brewbaker — Sat, 08 Mar 2008 18:04:18 PST

Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world.This article develops three models of Christian legal scholarship— theory, identity and vocation. I employ these models— each with its own set of strengths and weaknesses— to argue that failure to address foundational questions about knowing and learning undermines much of the potential distinctiveness of Christian scholarship because that scholarship remains unconsciously subject to modern/postmodern assumptions.Specifically, Christian legal scholars have sometimes acted as if they believed that human beings could attain godlike knowledge, assuming a posture of transcendence over and above the world rather than of participation within it. This tendency is exhibited primarily in the theory model. Christian legal scholarship that loses touch with the participatory nature of human knowing leaves insufficient place for disagreement on legal and political arrangements and easily degenerates into theologically unwarranted claims about what God requires of the legal system.Identity models of Christian legal scholarship follow the lead of postmodern critics of the enlightenment in asserting that reason and objectivity are not neutral, self-defining ideas. While this move helps scholars avoid the making of unwarranted universal claims, its besetting temptation is undue skepticism and nihilism. Even so, the identity model helpfully calls attention to particulars of the Christian narrative that help explain our legal practices. The model also frames human law in a particular historical perspective that is at odds with both modernity’s undue epistemological optimism and postmodern despair.Finally, a vocation model emphasizes that legal scholarship is one of many human (and not merely Christian) callings, the point of which, as with other such callings, is the glory and enjoyment of God. In order to know what pleases God, the scholar will need to study the Scriptures and theology; he or she will need the church. But the scholar will also need to study God’s creation, including not only the world God has made directly, but also those relevant human institutions that, in God’s providence, inhabit it. On this view, there is no reason to prescribe a uniform methodology for Christian legal scholars, nor should we necessarily expect widespread agreement among Christians on contestible legal issues.

Book Review, Stephen J. Grabill, Rediscovering the Natural Law in Reformed Theological Ethics

William S. Brewbaker — Fri, 23 Mar 2007 14:04:25 PDT

After Reason and Will

William S. Brewbaker — Fri, 23 Mar 2007 13:59:08 PDT

Will Physician Unions Improve Health System Performance?

William S. Brewbaker — Fri, 23 Mar 2007 13:37:06 PDT

Overview of the Health Care Marketplace, Structural, Legal and Policy Issues

William S. Brewbaker — Fri, 23 Mar 2007 13:30:18 PDT

Health Care Corporate Law: Managed Care

Mark A. Hall — Fri, 23 Mar 2007 12:16:16 PDT

Health Care Corporate Law: Facilities and Transactions

Mark A. Hall — Fri, 23 Mar 2007 12:13:00 PDT

Will Physician Unions Improve Health System Performance?

William S. Brewbaker — Fri, 23 Mar 2007 12:04:10 PDT

Physician Unions and the Future of Competition in the Health Care Sector

William S. Brewbaker — Fri, 23 Mar 2007 10:12:04 PDT

Medical Malpractice and Managed Care Organization: The Implied Warranty of Quality

William S. Brewbaker — Fri, 23 Mar 2007 10:08:49 PDT

Managed Care Liability

William S. Brewbaker — Fri, 23 Mar 2007 10:05:49 PDT

Rejoinder to Professor Merrill

William S. Brewbaker — Fri, 23 Mar 2007 10:03:16 PDT

Health Care Price Controls and the Takings Clause

William S. Brewbaker — Fri, 23 Mar 2007 09:59:13 PDT

Antitrust Conspiracy Doctrine and the Hospital Enterprise

William S. Brewbaker — Fri, 23 Mar 2007 09:56:07 PDT

Who Cares? Why Bother?: What Jeff Powell and Mark Tushnet Have to Say to Each Other

William S. Brewbaker — Thu, 08 Mar 2007 10:28:45 PST

This essay reviews Michael W. McConnell, Robert F. Cochran, Jr., and Angela Carmella's Christian Perspectives on Legal Thought (Yale 2001). In doing so, it argues that Christian legal scholarship ought to be of interest to legal scholars generally and evaluates the book's efforts to assist scholars in recovering Christian traditions of political and jurisprudential reflection.

Learning to Love the State Action Doctrine

William S. Brewbaker — Wed, 07 Mar 2007 12:29:56 PST

The state action doctrine receives relatively little attention in the Federal Trade Commission/Department of Justice 2004 report on competition in the health care sector. Not surprisingly, the report focuses primarily on urging states to reconsider specific laws that tend to restrict competition in health care markets but that are clearly shielded by the state action doctrine. Relatively little attention is given to the interpretation of the doctrine itself. This article employs the twin themes of institutional choice and market failure to evaluate a number of interpretive proposals affecting the state action doctrine that were available to, but not taken up by, the agencies. It also proposes using the state action doctrine to ease the burden on courts in market-failure cases in which there is an obvious threat to competition and the alternative of publicly accountable regulatory action is available.

Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory

William S. Brewbaker — Wed, 07 Mar 2007 12:12:18 PST

The subject of this paper is Blackstone’s famous declaratory theory of law– the claim that judges find the law, rather than make it. Blackstone’s claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the “brooding omnipresence” view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone’s theory fails for other reasons– namely, because his account does not square well with law practice as it exists and because his distinction between legislative “lawmaking” and judicial declaration is ultimately unsustainable.Despite its faults, Blackstone’s account of judging remains popular in some circles– particularly among evangelicals. The patrician Oxford law professor seems an unlikely hero for American evangelicalism, which is a fundamentally a populist movement. Nevertheless, evangelicals have their reasons for admiring Blackstone. Historically, the assault on Blackstone in American law schools coincided with the academic movement to secularize American law. Philosophically, Blackstone’s moral realism and epistemic optimism sit well with evangelical habits of mind.While Blackstone’s moral realism may be appealing to orthodox Christians (including evangelicals), his account of law ought to be unacceptable on the basis of their own theological presuppositions, because it represents a deficient understanding of traditional Christian teaching about creation. The traditional Christian theological understanding of creation emphasizes the world as a part of the larger story of God’s purposes. This understanding does not depend on any particular account of how the world came to be the way it is, but it has some surprising implications for how we understand the human activity of lawmaking. Indeed, it helps illuminate why accounts of law that treat law as either “merely found” or “merely made” have proven unsatisfactory.