A Christian understanding of law is nested in two ultimate convictions: that our world, even the cultural world we create, is a dynamic response to a higher law, a call that comes from the Creator; and that mercy and forgiveness for our myriad violations of the law are now freely offered because of the saving work of Jesus Christ. Both of these convictions impinge on how we understand human law, the role of courts, the responsibility of police, the nature of incarceration and corrections, and many other facets of society. But such convictions and assumptions are not usually premises in the sorts of arguments carried on in the law journals of the land—unless you’re looking at the work of Joan Lockwood O’Donovan. A British theologian and ethicist who has taught in Canada and the United States, O’Donovan has long tried to help liberal democratic societies understand the theological heritage of their political institutions. Her work is the perfect expression of “public theology for the common good.”
In this conversation with editor Jamie Smith, they consider how the church’s proclamation of Christ’s judgment and forgiveness is a public theological act that situates law, judgment, policing, and corrections in the saeculum—and why a society that forgets this falls prey to legal perfectionism and excessive surveillance. In short, the church carrying out its mission of proclamation, in practices of eschatological hope, makes societies more liberal, not less.
Read the first part of this interview online at go.cardus.ca/JLO.
James K.A. Smith: I was recently rereading your article “The Liberal Legacy of English Church Establishment”—a wonderfully counterintuitive title! I’m sure you were trying to be playful with that. I was intrigued by something you say in there about law as a form of political judgment. Political judgment, you point out, not only punishes past violations, which is, in a way, the role of the courts, but also tries to anticipate misdeeds in legislation and the creation of law.
I want to follow up on that and invite you to expand on it, because I wonder, first of all: If legislation is anticipatory, does that mean it is always only negative? That is, is it only trying to hem in misdeeds? Or could we imagine legislation that kind of nudges us, positively and constructively, towards good deeds, towards social concern? Is that already implicit in what you were suggesting?
Joan Lockwood O’Donovan: I’m not sure that I’m quite willing to accept your either/or there, but tell me if I’m misconstruing it. The question that you’ve posed—can the anticipatory action of law be positive, nudging us towards good deeds?—that’s the way I’ve understood it.
JS: Right. I was partly thinking of your account of early Protestant thought. They obviously didn’t want to have an overly scrupulous law code that was trying to “legislate morality,” as we sometimes say. But sometimes I think people hear that as a basically laissez-faire political philosophy: “Well, we’re just trying to prevent the most egregious harms.” But you’re right; I’m very open to being pushed that I’ve implicitly set up a false dichotomy— that in seeking to prevent misdeeds we are also trying to encourage the good.
JLO: Yes, here I would agree with that statement. What I would want to argue is that the anticipatory action of lawmaking should always be negative. I think I do want to hold on to that point. “Negative” in the sense of anticipating misdeeds. But the negative objective, insofar as it should be and is informed by sound knowledge of the good that is being protected, does nudge us towards good deeds. This is especially the case where government is properly responsible to its polity and where it has publicly to explain the social, moral rationale of its legislation, whether that legislation, say, be to prevent unjust discrimination in the workplace, or reduce inequalities in medical care, or curb destructive speculation in financial markets. Such legislation should, and does, incite widespread discussion and debate in our social media about proper conduct in the areas that are addressed by this or that piece of legislation.
Nevertheless, I would also want to hold that moral and social goods are best served if authoritative guidance about good and effective orientations and conduct in relation to them comes from sound professional and vocational wisdom and not from government legislating. Moral and professional formation requires the influence of mature, experienced people acting with proper freedom and discretion, and this is invariably stifled by invasive government legislation.
JS: Sure. I almost hear in that an argument for a kind of subsidiarity about where we expect the positive constructive formation to happen. It is not something that is primarily exercised by the state, but by guilds, by families, by other sorts of communities that are closer to the ground, as it were.
JLO: Yes, that’s right. I’m not sure, however, that I’m entirely happy with the term “subsidiarity,” as it can imply, and has frequently implied, a hierarchy of specifically political authorities, and it is crucial that the primary communities of positive formation are not essentially or institutionally political.
JS: Agreed. But if we work this picture, then, of courts responding retrospectively or retroactively to misdeeds, law and legislation are responding in an anticipatory way, can we fit policing in this picture again? Is policing another way that we both respond to and anticipate misdeeds? Is policing an expression of political judgment? How do you think about the relationship between policing and the law?
JLO: Let me go back to what I’ve already said, to an extent. It seems to me that police work does have to be seen as belonging to coercive law enforcement. To do it well no doubt does require the moral sensitivities of persons who understand the point of the laws that are being violated by offenders.
JS: Yes, right. You couldn’t have policemen who are just technicians without their own judgment.
JLO: Absolutely. But again, I’m very wary of any attempt to overburden the police with the larger social remit of getting communities on the side of the law—as it appears to me is being done in this country, and I don’t know, perhaps less in the States.
JS: In other words, charging them with the work of the formation of a citizenry is completely an outsized and disordered expectation.
JLO: Yes, that’s right. It’s very frightening to think about the impact on policing itself and the police force of those expectations that are spreading their energies too thin and are currently being combined with a high degree of media surveillance and criticism. That combination could make police officers pretty neurotic. It would make me neurotic if I were a police officer! It seems to me that the mixture of excessive accountability and false expectations only heightens the possibility of the police committing irresponsible acts and inept acts.
JS: That’s a very helpful insight, I think. I would say on this side of the Atlantic, it would be interesting to think about this same dynamic and the outsized expectations that are placed on what we would call public school teachers here—that is, state-based school teachers. How much these same sorts of expectations are foisted on to institutions that shouldn’t be expected to do that. Which then, as you say, creates its own kind of neuroses, or you can almost understand the distortions that take place because of that.
JLO: Indeed, indeed. In the end, and we’ve seen this here, and I imagine you have in the States too, people flee from the professions that are excessively stressful because of these incompatible pressures. I would say school teaching and some social services which are much needed are suffering from depletion of their resources by people simply escaping, deserting them.
JS: Absolutely, yes.
Let’s make a turn, because what’s intriguing, of course, to speak to a theologian about law in post-Christian societies. I want to read one sentence from your article I referred to earlier that I think is just so suggestive. You say this: “When public law no longer attests the ordering of jurisdiction to proclamation, or, in other words, when public law dissociates itself from God’s law in its Trinitarian fullness, then inevitably, it loses sight of its derivative, dependent, subordinate status in relation to the divinely ordained goods and rights of human moral communities.” That’s a brilliantly succinct summary of the kernel of a Christian theology of law, it seems to me.
But let’s think through a few implications of that. First of all, that would seem to have serious implications for secular societies— by that I mean ideologically secularist societies—that refuse to acknowledge a higher legislation, a divine lawgiver who’s also a compassionate savior. What are the implications of forgetting or failing to acknowledge this in our public law today, in places like the United Kingdom, in the United States, and Canada?
JLO: May I begin by just expanding slightly on that quote, in reflecting on the implications of the law’s failure to attest to the ordering of jurisdiction to proclamation?
JLO: In presupposing both actual wrongdoing and the universal human disposition to wrongdoing, coercive political judgment— as I earlier indicated but just want to repeat—belongs neither to the order of human freedom as God created it, nor to its renewing and perfecting in the community of the resurrected and ascended Christ.
The freedom that Christ promises and imparts to his faithful people is the fulfillment of God’s righteous commands that has overcome the rule of sin over human life, and also overcome the law’s condemnation of sin.
Coercive judgment cannot be wholly understood apart from these realities, for it is dependent on and ordered to them both. But it isn’t just that the practices of public law are not fully intelligible in the light of these two transcending realities, but that the proper practice of public law requires faithful knowledge of them. The lawgiver needs to act in the faith that God’s saving judgment of all humanity promises a future for human community beyond the tragedy of coercive human judgment, a future of common human obedience to Christ’s rule of love.
The dependence of jurisdiction on proclamation is operative not only in the bearing of the Christian faith on public lawgivers and legal teachers and theorists, but also, preeminently, in the bearing of the church’s universal practice of proclaiming God’s word of judgment in Jesus Christ on the secular practice of jurisdiction. It is only as the rulers and the ruled perceive the role of the church’s core practice of proclamation, that is, her common worship, in the eschatological renewal of human freedom that they can also appreciate the indispensable, yet comparatively peripheral, service of jurisdiction to human freedom.
It is in the light of the church’s eschatological practices, the light cast by these practices, that we perceive clearly why it is not the business of public judgment to render an extensive moral account of the various sets of relationships that constitute our common life, arranging and detailing the obligations that they entail. It is in this light that we comprehend why political judgment should not attempt to prescribe, nor aspire to effect, godly, righteous, and virtuous conduct, but rather to proscribe and seek to prevent only those graver violations of the moral law that threaten the precarious society of sinful human beings.
JS: It strikes me then that, in a sense, it is precisely the proclamation of an eschatology that saves us from the burden of the legal perfectionism where we think we have to manage everything and we have to manage it now.
JLO: Yes, absolutely.
JS: It’s just to the extent that a society forgets a genuine expectation of the eschaton that it now scrambles frenetically to think, “We are the only ones who can manage judgments or justice!” That would give rise to this sort of legal perfectionism, and maybe also this sort of excessive policing, because we feel like, “Well, if we don’t judge, who will?” It’s one of the backhanded effects of eschatological forgetting.
JLO: Yes, yes, yes. Absolutely. The result of this secular tendency to legal perfectionism is that the law encroaches not only upon the impaired and fragmentary freedom that is still available to sinful human beings in their natural moral relationships, but even more upon the renewed freedom of repentance and faith made available to sinful humanity in and through the church’s faithful ministries—”faithful” being the operative word.
It is important to understand that an excessive and misdirected public legal pedagogy assaults the freedom of the divine Spirit of Christ to reveal to repentant and believing human beings that fuller meaning and the fuller form of their natural obligations of love within the wholly reconciled human community, which God’s atoning and vindicating judgment of humanity in Christ has inaugurated.
JS: The church, then, has a role in what you call the “public legal pedagogy” of a secular society, in no small part, precisely by being the church—by the work of proclamation, which will include proclaiming kingdom come, and hence sort of continuing to press a society towards this eschatological remembering. I find that very helpful, because you’re not suggesting that the church take responsibility for public law, but you are suggesting that the missional work of the church, as proclaiming the gospel, has significant ramifications for how we understand public law.
JLO: Yes indeed. Again, I do want to emphasize that the church’s core proclamation consists in a set of unique, distinctive practices. The church is where God’s creative and saving word of judgment in Jesus Christ is proclaimed in its totality: not only in public reading of the Scriptures and preaching, but also in praising, prayer, sacramental celebration. It is here, by the power of the Holy Spirit, that God’s judgment is heard in these practices so as to bear spiritual and practical fruit among his people.
JS: This is why you several times revisit Cranmer’s vision for the Book of Common Prayer. Of course, this is primarily about being reconciled to God, but that also becomes a public good, insofar as it both receives and then offers, and almost prescribes, for the body of Christ a set of rhythms and rituals and practices that carry this word within it. It’s not just getting a message out. When you were talking about proclamation, it’s not just disseminating a message, it’s actually inviting people to absorb this in the practices.
JLO: Yes. It’s the “multifaceted communication” of the church’s faithful worship that makes present Christ’s promise of a communion of persons in obedient knowing, desiring, and judging, and in the common possession of the eternal good, the Triune God, and of creaturely goods in their relation of dependence on him. What is being communicated as promise is the total communication of divine and human right, and that cannot be done through any other set of practices. The institutions of jurisdiction need to understand that wholly reconciled community is only eschatologically present in these practices, and that their own work of public judgment is what I have called, as you know, “a shadowy mimesis” in unreconciled community of truly reconciling action.
Those undertaking this “shadowy mimesis” need to be aware of the moral ambiguities and limitations of their work. Chiefly, they need to be aware of the disunity inherent in the practices of public judgment that they are always seeking to overcome by adherence to procedural and substantive principles of justice. This disunity is visible both in acts of judgment and in their effects. Representative acts of legislating and of adjudicating cannot, for example, achieve, nor should they aim at, total consistency with preceding acts because they reflect, among other factors, shifting patterns of wrongdoing in sinful society, as well as shifting and conflicting social opinions about what constitutes grave wrongdoing worthy of public condemnation and rectification.
Neither should acts of public judgment seek, through the punishments and satisfactions they assign, to bring about the spiritual reconciliation of formerly antagonistic wills, which come only through the offender’s contrition and the injured party’s forgiveness of the offense. No matter how wise, discerning, and merciful their judgments may be, secular judges are not empowered to pronounce the judgment of Christ’s suffering and triumphant love that justifies and regenerates the repentant sinner and makes possible a community of forgiveness. They must be content with hoping that their merely outward rectification of wrongdoing and resolution of conflict creates a social and psychological space for the Spirit’s work of inward reconciliation and unification.
JS: It strikes me, then, despite the on-theground sociological realities of something like the United Kingdom—that is, given the post-Christian realities in which we find ourselves in liberal, pluralist societies—you would not advocate lowering the bar of how the church can contribute to our public life; rather, it would be the continued faithful proclamation of these truths for the sake of the commonweal, yes?
JLO: Yes. Of course I fully admit the unbelievable complexities of today’s religious and political situation in England. Nevertheless, I continue to advocate the benefits to the church’s mission and to the commonweal of retaining the legal establishment of the Church of England. I do this fully aware of the deficiencies in the church’s practices of proclamation, and not simply in her preaching and teaching, but more broadly in her worship practices.
In the face of these deficiencies, I still hope and pray that the Church of England may in the future be better equipped to carry out its evangelical and charitable duties laid down in primary law. For the commonweal, I am convinced, it is of central importance that the law continue to acknowledge the church’s singular claim of publicity and authority (in which claim all churches are included) among essentially nongovernmental institutions in society, and protect her ministries of proclamation, as constituting the highest spiritual goods of the common life. Such protection must, obviously, respect the secular purposes and limitations of public justice if it is to serve both the church’s evangelical freedom and the individual’s freedom of faith. Among the crucial ministries of the Church of England (and equally of the Catholic Church in England) is her ministry in education, in both the public and independent (that is, state and private) sectors. The thorniest issue, needless to say, is whether church-founded and church-linked schools can undertake their evangelical and pedagogical duties with integrity in an increasingly interfering and hostile social and political climate, ever tending to evacuate them of serious Christian content.
JS: You’re thinking of faith-based schools as, in a way, a kind of cognate extension of this kind of formative work of the church’s proclamation. This resonates with our work here at Cardus, where we frame Christian education as a public good, precisely to get away from this sense that “Well, they’re private schools, therefore, they are enclaves.” But in fact, no, the students who are shaped there are shaped more profoundly for the commonweal and for the common good than state-based schools. There’s encouraging data that bears that out.
Let’s return, however, to the unique pressures on this account of the church’s role in public life today, particularly the liberal ideology of rights discourse that tends to see any public role for the church as a violation of liberal ideals.
JLO: This has preoccupied me for a long time. It seems to me that the ideology of nondiscriminating, egalitarian rights is highly problematic, both as a civic ethic and the theoretical framework for the rule of law, because, to my mind, it demonstrates the distortions that afflict political thought and practice when it loses its theological moorings.
Briefly, I would make four critical points.
First, the conceptuality of the subject of rights is intrinsically juridical, so that an ethic constructed from it, a social ethic, which goes beyond a political ethic, casts moral agency, moral action, and moral relationships in a reductively juridical mold, a mold which suppresses the transjuridical dimensions of God’s law and the corresponding virtues in the common moral life—virtues, that is, of self-sacrificial loving, noncalculating generosity, deferring to one another, not standing in judgment on one another.
Within the ethos of rights, public judgment rather than common worship becomes the paradigmatic practice shaping social relationships. This is apparent all over society— particularly in the degree to which vindictive judgmentalism dominates a good deal of what is on the media.
Second, as a juridical conceptuality, the subject of rights is intrinsically proprietary, casting legal relationships as relationships among self-owning, self-disposing, selfprotecting individuals, individual proprietors who can be harmed in their personal property and in the contractual arrangements that attach to it.
Without the theologically problematic linchpin of an original, individual right of autonomous freedom, of which all other rights are derivative expressions, the legal usefulness of the conceptuality of rights would be much curtailed. In many domains of public law, the concept of duty and obligation would, I suspect, suffice.
Third, both as a civic ethic and as a legal framework, the humanist and voluntarist conceptuality of the subject of rights displaces the centrality of the trinitarian God, Father, Son, and Holy Spirit, as the original and ongoing source and telos of objective human right, whose steadfast, loving, righteous, and communicative will mediates the right judgments and actions of his human creatures.
Finally, the positive equality of human persons as bearers or possessors of rights drives towards an equality of social and legal treatment that constantly disregards the nature of the common goods to which they lay claim. Whereas an ethos of obligation makes the inherent structure of each social good decisive for the treatment of individuals.
JS: That’s a very helpful way to end. It gets at some of my frustration with some Christian public philosophies that seem insufficiently suspicious of rights-based frameworks for thinking about justice, related particularly, I think, to your first two points. This tends to reduce all modes of thinking about the good to the juridical, which ends up being an inherently conflictual and oppositional way of framing it.
JLO: Indeed, indeed.
JS: Thanks for a provocative and stimulating conversation.