The Marriage of Law and Grace
A transcript of the talk that Professor Stuntz delivered last fall – he never fails to challenge. Dear Reader, I hope you get something out of it too.
I want to thank you for inviting me to speak with you today. I doubt this is much of a treat for you, but it’s both a pleasure and a privilege for me.
The title of this talk is “the marriage of law and grace.” Both the title and the topic require a little explanation. I’ve been around Christian law students for twenty-six years, since I was a first-year student myself. One pattern I’ve noticed throughout that time is that a large percentage of Christian law students are uncomfortable with law school, and alienated by it. And a very large percentage of Christian law students are uncomfortable with the legal careers for which they’re preparing. There is a widespread sense of unease about law and the legal profession, a sense that this enterprise is hard to square with our faith, that God is disappointed with us, that if you and I were really being true to our beliefs, we’d be in seminary or on the mission field. Not here.
I know I used to feel that way, and my guess is, at least a few of you do. Why is that? I’m not sure, but I think the heart of the problem goes to the relationship between the legal profession and the gospel. I have a couple of pastor friends who believe that all problems in Christian life stem from an incorrect understanding of the gospel. This problem, I believe, stems from an incorrect understanding of our profession. We think law and grace represent incompatible visions of life; you can pick one or the other, but you can’t buy both. That isn’t a ridiculous thing to believe, as I want to explain in a moment. But in the end, I’m pretty sure it’s wrong—and understanding why it’s wrong is one of the keys to living an energized Christian life in this profession.
I want to make three points. First, I want to explain why we are tempted to believe that law and grace are incompatible. Second, I want to explain why that belief is wrong, why the marriage of law and grace is a real possibility—in this world, not the next. And third, I want to try to explain some of the practical benefits that flow from that marriage.
So let me take those points in turn. Why does law seem so at odds with grace and the gospel?
All legal systems have hidden ideologies: beliefs and premises that are rarely articulated and almost never defended that form the foundation for everything the system does. I think the hidden ideology of twenty-first-century American law rests on three beliefs: the ease of drawing lines, the utility of utility, and the power of power. Sit in on any class anywhere in the law school, and the odds are pretty good you’ll hear a conversation or a lecture about why this court decision or that statute draws some legal line in the wrong place. The premise of all those conversations and lectures is the same: it’s easy to distinguish the kinds of behavior we want to punish from the kinds of behavior we don’t. Courts that draw legal lines in the wrong places are either dumb or dangerous, since it’s a simple enterprise to draw lines in the right places. That’s the first premise.
Second, the utility of utility. Ours is a Benthamite legal system; it is utilitarian to its core. Judges and legislators, lawyers and law professors all believe that law is about the business of getting the greatest good for the greatest number—that the search for utility, pleasure, satisfaction drives human behavior, and the job of any legal system is to see to it that as many people as possible find as much utility as they can.
Third, the power of power. Twenty-first-century American lawyers believe that, if you want people to behave in a particular way, you need to hammer the ones who behave differently. If you want to stop people from killing one another, lock up or execute more murderers. If you want to stop corporate polluters from polluting, increase the number and size of the fines those polluting corporations pay. That’s the way legal systems operate. Power works. Success succeeds. Victory yields yet more victory.
Now think about those three principles—the ease of drawing lines, the utility of utility, and the power of power—in light of the gospel of grace.
Start with the ease of line-drawing. In Christian terms, this idea is nonsense. In the Sermon on the Mount, Jesus defined murder as anger, or (depending on your translation) maybe unjustified anger. By either definition, I’m a serial killer, and so are most of you. We aren’t just sinners; we’re murderers. Our sins kill souls, and soul-killing is, in the end, much worse than body-killing, because bodies are temporary but souls are permanent. Most legal line drawing consists of mass murderers choosing which other mass murderers to condemn. Not a promising enterprise.
What about the belief that the search for utility and pleasure makes the world go round? Christians would say: no, the search for beauty and relationship makes the world go round. Recall the story of the woman who poured expensive perfume on Jesus’ feet and washed then with her hair and tears. When some of the disciples criticized her, Jesus said something very interesting: Leave her alone; she did a beautiful thing. That woman gave everything she had so that she might, in some small measure, be in relationship with the One who personifies Inexpressible Beauty. And through that relationship, by attaching herself to that beauty, some of it rubbed off on her. Her hair, which must have been filthy and wet and sticky with mud, may have been, at that moment, the loveliest thing on this Earth. What she did made no utilitarian sense. But it was supremely beautiful—which is why she did it.
Now think about that third belief: the power of power. Christians know that the power of weakness is far greater. Success fails; failure succeeds. Death brings life. Everything is upside-down. Moses was raised in Pharaoh’s household. Power surrounded him; he was swimming in it. But he didn’t exercise real power until he experienced slavery and banishment. Joseph too was sold into slavery, and then thrown in prison for a crime he didn’t commit—and because of those things, because of his weakness, he was raised to power sufficient to save a nation from starving. The greatest victory in human history stemmed from a litigation defeat: Jesus was condemned, first by the Council and then by Pilate (he lost both his trial and his appeal)—and through his condemnation and defeat and punishment, he brought life and joy and redemption to more souls than any of us can number.
Let’s stop for a moment and take stock. Maybe the reason so many Christians find law school so uncomfortable is that it should be uncomfortable. People in my job regularly tell people in your job things that, deep down in your bones, you know are false. Most of those lines that sound so easy and obvious in law school classrooms are impossible to draw with any confidence. This world is not just one big mass of utility-maximizers trying their best to snatch a little more pleasure from one another; there is something deeper and more beautiful at work in the world. And power regularly produces not success but failure.
All of which sounds like bad news for a room full of people about to join a profession that lives by the exercise of power. Maybe we all need to find another line of work. But I don’t think so. The vision of law that twenty-first-century Americans embrace is emphatically not the only vision out there. You can see law differently—and for most of our history, people have seen it differently. Here’s the good news: seeing law differently actually helps you understand and practice it better.
Which leads to the second point: law and grace are a good deal more compatible than we tend to think. Consider three historical episodes.
The first concerns eighteenth-century English criminal procedure. Jim Whitman, a friend of mine who teaches legal history at Yale, has a book that’s due to be published this December. The book is about the theological origins of English criminal procedure. Here is Whitman’s basic story line. Around the time of American independence, English judges believed their criminal justice system faced a crisis: the system couldn’t punish enough criminals; most offenders were unconvictable. Christian jurors worshipped a Savior who was Himself the victim of wrongful criminal punishment, and they feared damnation if they did as Pilate and the Council had done. So they refused to convict defendants in the face of any doubt, however small, about defendants’ guilt. So much for the ease of drawing lines. Here’s the strange thing about that story: during the four centuries in which this alleged crisis took hold, England’s crime rate fell steadily and dramatically—London, once one of the most violent cities on earth, became one of the most peaceful. If the point of the criminal justice system was to control crime while minimizing unjust punishment, England’s system was doing a great job. All those judges who thought the system was in a state of crisis got it badly wrong.
My second historical episode is similar. Another book I read recently is about homicide in Chicago during the late nineteenth and early twentieth centuries. This was a time of enormous social chaos. Chicago saw massive population growth, unprecedented waves of immigration from a half-dozen different countries (mostly countries that were hostile to one another), and the emergence of organized, ethnically based criminal gangs whose primary job was revenge killings. If you want an equivalent picture in our own time, Bosnia, Beirut, and Baghdad come pretty close. And yet Chicago was not an especially violent place. Its murder rate rose in the late nineteenth century, though by our standards it remained low even then. By the early twentieth century, murders were falling, and falling substantially. Chicago in 1920 was amazingly peaceful by the standard of almost any big city today.
How did that happen? Here’s a big part of the explanation: Most murder prosecutions in Chicago in this period ended in acquittals. Chicago juries acquitted whenever the defendant had some explanation for his conduct other than simple hatred or greed. Christians of all people should understand why that lenient justice system worked. Residents of poor city neighborhoods a century ago believed that the legal system treated them fairly—because it usually did; poor defendants weren’t convicted unless they had no excuse or explanation for their behavior. Today, residents of poor city neighborhoods don’t believe the legal system treats them fairly—because it usually doesn’t; the law today is stacked in the government’s favor. When people think the law is fair, they tend to obey it. When people think the law is unfair, they tend to ignore it. All those prosecution defeats—all those acquittals—did more to encourage compliance with the law than all the criminal convictions American prosecutors win today. So much for the power of power.
The third historical example is the civil rights movement of the 1960s, the movement that Martin Luther King led. King and his followers didn’t try to avoid suffering and defeat; they invited those things. To what end? The answer is truly astonishing: King suffered and bled and ultimately died seeking the right to be in relationship with those who refused relationship with him. That vision gave rise to the two most successful pieces of legislation in American history: the Civil Rights Act of 1964, which barred employment discrimination and created the potential for an integrated economy, and the Voting Rights Act of 1965, which guaranteed the right to vote and thus created the potential for an integrated political community. Martin Luther King’s movement rested on a very simple, very strange, and very Christian idea: the idea that sacrifice and unmerited suffering produce reconciliation. And reconciliation, not retribution, was King’s goal. He wanted his enemies’ embrace.
It makes no utilitarian sense. But it was the most beautiful episode in the history of American politics, lovelier and more captivating than you can imagine if you didn’t see it. And it transformed the culture.
King’s movement worked. So did the criminal justice system of eighteenth-century England, and so did the justice system of early twentieth-century Chicago. Notice: None of the key actors in these episodes did an especially good job of identifying and punishing wrongdoing. Most of England’s criminals got off, as did most of Chicago’s killers. There were no reparations attached to the Civil Rights Act, no long train of prison sentences that followed in the wake of the Voting Rights Act. But then, punishing evildoers wasn’t the point. The Christians whose decisions defined those three episodes were trying to perform three other, better tasks: to prevent unjust punishment, to relieve pain (including the pain of those who inflict pain on others)—and to promote and protect relationship and community.
When people strive to prevent unjust punishment, when they sacrifice in order to relieve others’ pain, when they try to strengthen bonds among people who are alienated from one another—when people do those things, transformative change happens, as it happened in those three settings I just described. Lawyers and laws and legal institutions are well situated to bring about that kind of change. It sounds strange to a lot of people, but a legal career can actually be a beautiful thing. We can, in our professional lives, model humility and weakness rather than arrogance and power. Both law and law practice can be much more grace-like than we imagine.
The world that surrounds us badly needs the kinds of grace lawyers can provide. America’s legal system today may be the most efficient dispenser of legal punishment in human history—but punishment is not what our world hungers for. What it hungers for is less pain, less injustice, and more relationship. Those are the things we should be using our professional lives to dispense. So how does that happen? What practical benefit do you get from seeing law in more grace-like ways? Here are four answers:
(1) The first one applies now, in law school, and it applies to professors and students alike. You and I can understand things that our colleagues don’t. You can see why legal incentives often fail, why the movement to establish crisis pregnancy centers worked much better than abortion bans ever did, why massive punishment for drug crime has had no effect on the amount of drug crime. Why King’s movement succeeded, while America’s other culture wars have failed. The more you understand, the better able you are to make good arguments. You and I have an edge here—and our edge doesn’t stem from a willingness to compromise our faith; it follows from embracing our faith.
(2) Once you’re out in the world of practicing lawyers, you can represent all kinds of clients, and you can do so in good conscience. I’ve heard lots of Christians over the years ask how it’s possible for believers to represent guilty defendants in criminal cases, or tobacco company executives or corporate polluters in civil cases. I have to say, respectfully, I don’t understand the question. Plainly, Christian lawyers should not do wrong things to help guilty clients win, but doing legal and honest things to help them win, even fighting aggressively for them, is one of the most Christian enterprises I can imagine. Lawyers—including, by the way, corporate lawyers—get to act out the gospel in their working lives: they get to help people who deserve punishment escape it. Just as our Advocate did for us.
(3) If you’re not going to be a litigator, if you spend your career trying to help people plan their activities in ways that keep them out of court, you too are engaged in a deeply Christian enterprise: you’re bringing peace to a world full of conflict, and you’re promoting relationship and community in a world filled with isolation. If you work for rich corporations, you’re helping them employ people—and as King and his colleagues understood, nothing does more to promote justice and shalom and to relieve suffering than giving broken people jobs. Jobs build relationship and community; jobs allow us to be creative, to be more like the One in whose image we were made. Jobs give suffering people the greatest gift they can possibly receive: the gift of a life that is about something more than their own suffering. You can be the means by which people are given that gift.
(4) The last benefit may be the most important. I’m pretty sure that some of you long to do revolutionary things. You hunger for a life that brings radical change to a world that plainly needs it. Our profession—and I mean the ordinary parts of our profession—is a great place for people who feel that hunger. I want to tell two stories about my friend Rich Dean, who makes a living representing Americans who do business with governments and individuals in former communist countries. After the fall of the Soviet Union in the early 1990s, a lot of people came to Rich and asked for his help setting up businesses in Russia. Here’s what he told them: “If you want to do this, I’ll help you as best I can. But first, I have to advise you that it’s a mistake. Things are very unstable over there, and a lot of the people who are making big investments right now are going to lose their shirts.” The response was predictable: those would-be clients took their transactions and their fees elsewhere. Some of them did lose their shirts. Word got around that there was one lawyer in Washington, DC who knew post-Soviet Russia who seemed to care more about his clients’ welfare than about his law firm’s bottom line. The culture of that piece of the law firm market was transformed, because one Christian lawyer decided to love his clients instead of using them for his own ends.
Here’s the other Rich Dean story. Throughout his early years at his firm, Rich noticed how badly lawyers treated their secretaries. So, when he joined the committee in his firm that supervised partnership decisions, he passed the word that, when making those decisions, he would interview staff and secretaries and ask how the candidates had treated them. The culture of that law firm was transformed: because one Christian lawyer decided to love the people who work under him, instead of using them for his own ends.
That, I believe, is what Christian legal careers can and should look like. I’m not likely to figure out the perfect legal theory or teach the perfect class or write the perfect law review article—and you’re not likely, when you leave this place, to write the perfect brief or opinion draft or make the perfect oral argument. But you and I can do our best, out of love for the people for whom and with whom we work. Just as you can fight for people who don’t deserve to have anyone fight for them—and, by doing so, give them a small taste of the gift you and I were given by the One who fought for us when we didn’t deserve it. You can help people keep their jobs, and help them employ others—and thereby do more to relieve suffering than a lifetime’s worth of charitable giving. Last but not least, all of us can change the cultures of the institutions where we work, make them more loving and hence more beautiful, and so do honor to the One who embodies beauty. In doing those things, we serve others, which is a good thing—but according to the strange magic that governs this strange world, we also serve ourselves. When you touch beauty, beauty touches you. That’s one infection from which you never heal.
There is a strain in Christian culture that says: don’t pour your heart into your work; that’s idolatry. Keep your distance from your professional culture; it might corrupt you. Don’t have too many non-Christian friends; you might start behaving like they do. With respect, I need to say this: Those messages are dangerous. Spend your life fearing the world’s effects on you, and you can be certain that you’ll have little effect on the world. We’re called to pour our hearts into our jobs and into the people and places where and with whom we work. We’re called to love those people—and you can’t love people from whom you remain detached. You will be corrupted by the professional world in which you work—and you know what? You’ll also be corrupted if you spend your working lives in churches or on the mission field. Welcome to a fallen world: Life is corrupting. Thanks be to God: Grace can shield you from the worst of it. Better still, by sharing that grace with others, by embodying that grace in our professional lives, we can corrupt the world, in good ways—we can infect it with that wonderful healing disease from which, please God, we may never recover.