Why Think on Legal Realism?

Last week I talked quite a lot about Christian legal realism and the Patristic view of private property ownership. If you hung in there with that ping pong match, much appreciated! And if not this post will still answer the question: why go on and on about the Patristic wisdom on property ownership?

Firstly, as Brad Littlejohn, wise man and editor of Political Theology Today, confirmed after last week’s debate, the Christian legal realist view of private property ownership is not a quirk of patristic thought. He is definitely the person to listen to on Aquinas, with whom I’ve done comparatively little. Brad locates the Christian legal realist impulse very distinctly in Aquinas, quoting from John Finnis:

“The moral or juridical relationships to such an entity that we call property rights are relationships to other people. They are matters of interpersonal justice. Arguments for founding property rights on alleged ‘metaphysical’ relationships between persons and the things with which they have ‘mixed their labour’, or to which craftsmen have ‘extended their personality’, are foreign to Aquinas.”

Brad concludes:

“Thus, to Pegobry’s insistent question as to whether, according to Ms. Bruenig, “under correct Christian ethics, all property is contingent and rights of property . . .  have only instrumental and not intrinsic value,” it must be answered, in Thomistic terms at least, “Yes, instrumental to the service of the common use of humankind.”  Indeed, it is difficult to conceive, within such a framework, of just what sort of “intrinsic value” such rights could have.”

In his longer meditation on his blog as to the broader implications of the motives of this debate, Brad points out that there are very real reasons to express concern with the tyranny of the state, the wrong use of property, and the question of desert. I agree with Brad on all these counts, and it’s why I want to expand here upon what the use of Christian legal realism is, in my thinking.

In my opinion, it is not Christian legal realism that occludes questions of orthodox approaches to state power, desert, and the right use of property. It is rather a non-Christian liberal ethic that superimposes itself onto Christian discourse and claims that all of these questions have already been spoken for. This liberal ethic re-imagines Christian attitudes to property in the image of its own non-Christian framework, and leads to an understanding of the Christian view of property that comes to be seen as ‘common-sensical’ even though it is a secular innovation on historical Christian thought. In this weird inverted world, historical Christian understandings of property — that is, the ones that belong to our long, rich tradition — are then viewed as quaint and outmoded, while the liberal approach to property, Christian in name only, casts itself as the obvious and dominant one. It is at this point that Christianity can be leveraged to support a liberal politics that is antithetical to its own mission and ethics.

And make no mistake: this is what has happened. There’s a reason Brad and I appear to be taking oddball positions here. The reason is that now, after many years of liberal imposition onto Christian thought, Christians now speak of property in the language of ‘rights.’ As Joan Lockwood O’Donovan points out, this wasn’t always so:

The concept of subjective rights, or rights ascribable to individuals and groups, has entered contemporary political and legal currency primarily through the liberal contractarian tradition. Consequently, the meanings of the term ‘rights’ cannot be properly ascertained in detachment from this theoretical context. For these meanings are embedded in a constellation of political-legal, philosophical and theological concepts with a complex history. Thus, to appraise the contemporary vocabulary of ‘rights’ is to appraise the dynamic theoretical complex that has given rise to it. If such an appraisal seeks its standard of judgement in the Bible, then it is bound to proceed theologically…

A close analysis of the history of the concept of subjective rights reveals a progressive antagonism between the older Christian tradition of political right and the newer voluntarist, individualist and subjectivist orientation. Whereas in the older tradition, God’s right established a matrix of divine, natural and human laws or objective obligations that constituted the ordering justice of political community, in the newer tradition God’s right established discrete rights, possessed by individuals originally and by communities derivatively, that determined civil order and justice

Not until the seventeenth and eighteenth centuries did the subjective rights of individuals supersede the objective right of divinely revealed and natural laws as the primary or exclusive basis of political authority, justice and law. These centuries dominated the transformation of the Western Christian tradition of natural law and natural right into a tradition of natural rights.

Emphasis mine. What O’Donovan is up to here, in her own words, is to “delineate the inherited theoretical content of the Western ‘rights’ tradition,” so that her readers can determine for themselves (not without later help from her husband Oliver) whether or not what we end up meaning when we talk about rights — including property rights — is consonant with Christian ethics. She points out that, through the adoption and use of the liberal language of rights, the content of those rights has come to be the main determining factor of political justice and law. In other words, where the Church fathers would have firstly considered the corporate human right to ultimate goods to try to understand the revealed matrix of obligations and duties that they would then infer to define political order, we now instead look to the content of ‘rights.’

So, okay — the idea of rights now dominates Christian political discourse in many venues (especially the popular); big deal, right? Maybe the liberal language of rights is a positive innovation that doesn’t interfere with underlying Christian commitments, one imagines. But the problem is that the language of rights is not empty (by this I mean neutral) rhetoric, but rather a piece of an overall liberal moral order; this is the ‘inherited content’ O’Donovan refers to. Using the language of rights, at least in the realm of property (where my concentration is) but likely in others as well, is therefore to import not only secular ideas into Christian thought, but also to import non-Christian morality and, by extension, to invite non-Christian ethics. Charles Taylor explains:

Now the modern idea of order, in contradistinction to the mediaeval Christian ideal, was seen from the beginning as for the here-and-now. But it definitely migrates along a path, running from the more hermeneutic to the more prescriptive. As used in its original niche by thinkers like Grotius and Pufendorf, it offered an interpretation of what must underlie established governments; grounded on a supposed founding contract, these enjoyed unquestioned legitimacy. Natural Law theory at its origin was a hermeneutic of legitimation.

But already with Locke, the political theory can justify revolution, indeed, make this morally imperative in certain circumstances; while at the same time, other general features of the human moral predicament provide a hermeneutic of legitimacy in relation to, for instance, property. Later on down the line, this notion of order will be woven into ‘redactions’ demanding even more ‘revolutionary’ changes, including relations of property, as reflected in influential theories, such as those of Rousseau and Marx, for instance.

Thus while moving from one niche to many, and migrating from theory into political imaginary, the modern idea of order also travels on a third axis, and the discourses it generates are strung out along the path from the hermeneutic to the prescriptive. In the process it comes to be intricated with a wide range of ethical concepts, but the resulting amalgams have in common that they make essential use of this understanding of political and moral order which descends from modern Natural Law theory.

Here ‘Natural Law’ refers to the emergent liberal doctrines of the seventeenth and eighteenth centuries, of which Locke is a major author. The point Taylor makes here is that what begins as descriptive — and what contemporary Christians might still feel tempted to view as simply descriptive, such as ‘property rights’ — actually becomes prescriptive over time, that is, comes to dictate ethics rather than describe political or social realities. Nowadays, when we talk about property rights, we do so in the way liberal theorists would have us do. We refer to contractarian and individualist terms, we view rights themselves as subjective (that is, tied to the subject, the person, not strictly related to the right use of creation and revealed obligations/duties) and we see the state as existing more or less to harmonize those conflicting rights claims. But this anthropology (that the subject or individual precedes in fullest terms society and corporate life, for instance) is not Christian, and the ethics that follow — for instance, that my right to property ownership should be politically protected while my obligations to others should have no political character — are not particularly grounded in the Christian tradition, either.

The result of all this is that the status quo in relation to property — that is, the way property now exists in our collective political imagination, as the claim of an intrinsically valuable right — conflicts essentially with a Christian construal. In practice, it means there are also contradictions in the Christian ethics of property use and ownership and the liberal ethics of the same. But because the liberal language of ‘property rights’ has insinuated itself so tightly into Christian discourse, it can be hard for Christians to see those contradictions, much less begin to imagine how to politically act on a different understanding of property. And so Christians wind up batted back and forth between the same old political options, none of them very appealing, all of them premised on the same flawed anthropology, and thus tending toward the same flawed practices.

So my hope with the legal realism stuff is to help to articulate an approach to property that is tenable in modern politics without submitting hook, line, and sinker to the liberal language of rights that has superimposed itself onto Christian discourse. I want to do this because I think it can help Christians act politically without the usual limitations that bracket the expression of Christian ethics in politics, e.g. the limitations that arise from uncritical acceptance of, say, the intrinsic good of property ownership via rights claims. And I think the legal realism discussion can help illuminate the degree to which the structures liberal political order so highly venerates are in fact within our control and subject to our moral judgment, not constitutive of it. We should therefore not be judged by the degree to which we promote, protect, or politically enshrine the alleged ‘intrinsic value’ in private property ownership, but should rather judge the political enshrinement of private property ownership by the degree to which it cooperates with a Christian anthropology and understanding of divine will for creation.

Or as Paul Bourget wrote, “one must live as one thinks, under pain of sooner or later ending up thinking as one has lived.” I think the legal realism point has the potential to cleanly and clearly illuminate some realities of property that are otherwise obscured, and to open up helpful conversations in the realm of Christian political engagement. To me, this is a helpful step toward freeing Christians and Christian thought up from liberal ethics of property that threaten to tamper with and occlude orthodox understandings of the divine will for humanity and creation.

**Quick notes: no, this doesn’t mean there’s nothing of value in the liberal rights tradition. No, this doesn’t mean that if the liberal rights-based theory of property isn’t consonant with Christian thought, then its opposite (usually conceived as communism) must be necessary.