Journal of Christian Legal Thought Tribes Thinking 1 THADDEUS WILLIAMS Critical Theory and the Social Justice Movement 10 NEIL SHENVI AND PAT SAWYER Law Follows Culture, Except When It Doesn’t 14 JEFFERY J. VENTRELLA Christian Citizenship and Religious Liberty 23 DOUGLAS GROOTHUIS Stand Your Ground 30 P. ANDREW SANDLIN Proposed Regulations Would Protect Religious Student 32 Groups — and Why that Matters KIM COLBY VOL. 10, NO. 1 (2020) STATEMENT OF PURPOSE The mission of theJournal of Christian Legal Thought is to equip Journal of and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institu- tions. Christian Legal Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Chris- Thought tian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and develop- ment, and its relationship to the revealed will of God, as well VOL. 10, NO. 1 | 2020 as the practical implications of the Christian faith for their daily work. TheJournal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological PUBLISHED BY and practical reflection, both as a professional community and The Institute for Christian Legal Studies (ICLS), as individuals. a Cooperative Ministry of Trinity Law School and Christian The Journal seeks, first, to provide practitioners and stu- Legal Society. dents a vehicle through which to engage Christian legal schol- arship that will enhance this reflection as it relates to their daily The Mission of ICLS is to train and encourage Christian work, and, second, to provide legal scholars a peer-reviewed law students, law professors, pre-law advisors, and practicing medium through which to explore the law in light of Scripture, lawyers to seek and study biblical truth, including the natural under the broad influence of the doctrines and creeds of the law tradition, as it relates to law and legal institutions, and to Christian faith, and on the shoulders of the communion of encourage them in their spiritual formation and growth, their saints across the ages. compassionate outreach to the poor and needy, and the inte- Given the depth and sophistication of so much of the gration of Christian faith and practice with their study, teach- best Christian legal scholarship today, the Journal recognizes ing, and practice of law. that sometimes these two purposes will be at odds. While the Journal of Christian Legal Thought will maintain a relatively EDITORIAL ADVISORY BOARD consistent point of contact with the concerns of practitioners, William S. Brewbaker, III it will also seek to engage intra-scholarly debates, welcome Associate Dean and inter-disciplinary scholarship, and encourage innovative schol- William Alfred Rose Professor of Law arly theological debate. TheJournal seeks to be a forum where University of Alabama School of Law complex issues may be discussed and debated. Kevin P. Lee EDITORIAL POLICY Professor, Campbell University School of Law The Journal seeks original scholarly articles addressing the C. Scott Pryor integration of the Christian faith and legal study or practice, Professor, Campbell University, Norman Adrian Wiggins broadly understood, including the influence of Christianity School of Law on law, the relationship between law and Christianity, and Bradley P. Jacob the role of faith in the lawyer’s work. Articles should reflect Professor, Regent University School of Law a Christian perspective and consider Scripture an authorita- tive source of revealed truth. Protestant, Roman Catholic, Robert K. Vischer and Orthodox perspectives are welcome as within the broad Dean and Professor, University of St. Thomas School of Law stream of Christianity. However, articles and essays do not necessarily reflect the Editor in Chief: views of the Institute for Christian Legal Studies, Christian Michael P. Schutt Legal Society, Trinity Law School, or other sponsoring institu- Associate Professor, Regent University School of Law tions or individuals. Director, Institute for Christian Legal Studies To submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at [email protected]. Assistant Editor and Copy Editor: Laura Nammo 2020 Journal of Christian Legal Thought TRIBES THINKING The Epistemology of Social Justice By Thaddeus Williams ustice is not something we seek on some wispy Shorter Catechism. Answer: “The Word of God, which clouded plane of Platonic forms. Public policy does is contained in the Old and New Testaments, is the only not bubble into existence from a bathtub of quan- rule to direct us how we may glorify and enjoy him.”1 The Jtum particles. Law is never practiced in a vacuum. French Revolution and the ensuing Enlightenment were Our quest for a more just world occurs just there, in the also, among other things, epistemological revolutions. world, a world with cathedrals and chicken sandwich The Parisians who crowded into Notre Dame cathe- shops, board rooms and beer commercials, Super Bowls dral in 1792 to sing hymns to a teenage girl dressed as and social media feeds, a world animated by real people the “goddess of reason” were making an epistemologi- with pulses and plausibility structures. The world in which cal statement: Reason and science are where we stake we do our legal justice work is a world shaped by world- our utmost faith! And so modernity was born. The 20th views, our underlying beliefs about the perennial “big century witnessed another major epistemological shift questions,” questions of ultimate reality, human origins, with the advent of postmodernity, deconstructing all life’s meaning, the nature of truth, goodness, and beauty, claims of objective knowledge, confining all truth to the the fate of humankind, the fate of the universe, and more. subjective realm, leaving us all “lords of our tiny skull- sized kingdoms, alone at the center of all creation” in the EPISTEMOLOGY AND LAW words of David Foster Wallace. Every worldview features what philosophers call an Each of these shifting epistemological epochs finds “epistemology.” Everyone has an epistemology, whether some expression in the legal world. The Christian em- or not we have learned the fifty-cent term. It is how we, phasis on God as the Source and Standard of truth in- spired jurisprudential traditions that highlight the “law consciously or tacitly, answer the questions, “How do 2 we know what we know?” “What are the marks of justi- above the law,” with its corresponding emphases on in- fied true beliefs?” “How do we decipher between truth alienable rights, religious freedom, checks and balances to curb human corruptibility, and more.3 Likewise the and falsehood?” How we answer those questions shapes 4 culture, including law. legal positivism of Oliver Wendall Holmes and legal formalism of Langdon and Harvard Law around the It is eye-opening to view the historic movement of th Western culture as, among other things, a series of seis- turn of the 20 century are essentially what modernist mic epistemological shifts. With its waving banner of epistemology looks like when expressed as legal theo- sola Scriptura, the Protestant Reformation was one such ries. The same could be said for postmodern epistemol- ogy and the legal realism and critical legal studies of the shift. Reformers like Hus, Luther, Calvin, Bucer, and th Knox sparked an epistemological revolution in seeking later 20 century. It is not my purpose here to unpack all to restore God’s Word to a place of supreme epistemic the complexities of how culturally trending epistemolo- authority. “What rule hath God given to direct us how gies shape law, but to make the far more modest point we may glorify and enjoy him?” asks the Westminster that culturally trending epistemologies shape law. 1 Emphasis added. 2 See John Warwick Montgomery, The Law Above the Law (1975). For detailed historical analysis, see Harold Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Traditions (2003). 3 For a popular analysis of how a Christian worldview spawned and sustained these legal norms, see Francis Schaeffer, A Christian Manifesto (2005). 4 See Oliver Wendall Holmes, The Path of the Law. Harvard Law Review 10:457 (1897). 1 Journal of Christian Legal Thought Vol. 10, No. 1 group in protest over what they saw as the gross injustice “TRULY EXECUTE JUSTICE” of Sabbath day violations, he calls out their unwarranted Why does it matter? Francis Schaeffer answers in the moral outrage, their failure to get at the real issues: “Do opening of A Christian Manifesto: not judge by appearances, but judge with right judgment” (Jn. 7:24).6 The basic problem of the Christians in this We cannot separate the Bible’s commands to do country in the last eighty years or so, in regard justice from the Bible’s commands to be discerning. to society and in regard to government, is that Bad epistemologies generate false beliefs that can easily they have seen things in bits and pieces instead dupe us into thinking we are doing great work for oth- of totals. They have very gradually become dis- ers, when in reality we are doing them damage. It follows turbed over permissiveness, pornography, the that if we really care about working toward justice—giv- public schools, the breakdown of the family, ing both God and others what is due them—then we and finally abortion. But they have not seen should care about epistemology. this as a totality—each