The Mighty Work of Making Nations Happy: A Response to James Davison Hunter

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild protest over the recent enactment of a “Christianized” constitution in Hungary is illustrative. Hunter worries that law is too much just about power. I agree with Hunter’s argument that for law to represent more than power, it must be linked to a realm that is not reducible to politics. Hunter indefensibly downplays, however, the role of the natural law and of the Church in establishing such an apolitical realm. Hunter’s thesis provides an opportunity to reconsider the modern orthodoxy according to which the ideal is for the state to be “separate” from the Church. The conscience of a free people is not all the spiritual authority there is – and more is needed. DO NOT DELETE 10/5/2012 4:44 PM 101 The Mighty Work of Making Nations Happy: A Response to James Davison Hunter Patrick McKinley Brennan* I. LAW’S INFLUENCE: “MOSTLY ILLUSORY”? II. LAW, CULTURE, AND INSTITUTIONS III. LAW AND AUTHORITY IV. WHITHER NATURAL LAW? V. NATURAL LAW NOT ENOUGH VI. TRADITIONALISM, NOT NEO-CONSERVATIVISM VII. FROM LAW TO GRACE (AND BACK) I. LAW’S INFLUENCE: “MOSTLY ILLUSORY”? The imposing honor of an invitation to respond to James Davison Hunter provided the welcome occasion to study his most recent book, To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World. As I made my way through Hunter’s iconoclastic work, I frequently found myself nodding in agreement, admiring the clarity of many of his insights, and anticipating the various arguments’ implications for this world of ours that is, on any honest accounting, thick with law. The more I read, therefore, the more I wondered, especially as someone whose field is law, when Hunter would finally take up the topic of law, thematize law, and say how we are to use law—or not use it—“to change the world.” With one partial but important exception, however, Hunter hardly mentions law except several times in passing. The one partial exception covers approximately a page and a half in Essay II, Chapter 6, “Illusion, Irony, and Tragedy,” the essence of which can be fairly captured by the following two block quotes: * John F. Scarpa Chair in Catholic Legal Studies, Associate Dean for Academic Affairs, and Professor of Law, Villanova University School of Law. This is a response to James Davison Hunter’s Law, Religion and the Common Good, 39 PEPP. L. REV. 101 (2012), and a part of Pepperdine University School of Law’s February 2012 conference entitled, “The Competing Claims of Law and Religion: Who Should Influence Whom?”. 1. JAMES DAVISON HUNTER, TO CHANGE THE WORLD: THE IRONY, TRAGEDY, AND POSSIBILITY OF CHRISTIANITY IN THE LATE MODERN WORLD (2010). 2. I had nearly completed this response by the time I received Hunter’s paper. Hunter’s paper ascribes greater efficacy to law than I found him ascribing to it in the book, an inconsistency worthy of exploration that I cannot undertake here. Like the book, though, the paper never remotely considers the role for law that I develop in this essay. DO NOT DELETE 10/5/2012 4:44 PM 102 The state can also address some of the legal and administrative aspects of these [i.e., social] problems and in this way either help or hinder the resolution of value-based problems. Laws that prohibit discrimination against minorities are one important illustration of the constructive influence of the state. And while politics can only do so much, it is also true that bad politics can do truly horrific things. These are all good reasons to be involved in the work of creating and maintaining good government. . . . What the state cannot do is provide fully satisfying solutions to the problem of values in our society. A few sentences later, Hunter continues: At best, the state’s role addressing human problems is partial and limited. It is not nearly as influential as the expectations most people have of it. It is true that laws are not neutral. They do reflect values. . . . It imputes far too much capacity to the state and to the political process. These are bold and contestable claims, and what Hunter writes next is important to assessing their truth value, but before unpacking the quoted language and continuing further with Hunter’s line of argument, it will be helpful to offer some real-world context providing a benchmark against which to measure Hunter’s argument, as well as my own competing argument. When I sat down in early January 2012 to write this response, the news was abuzz with stories about the new constitution of Hungary that the Hungarian Parliament approved by a 262 to 44 vote in April 2011 to take legal effect, as it did, on January 1, 2012. What made this especially newsworthy is the fact that Hungary’s new basic law is an explicitly Christian document. Repudiating that predominantly Catholic country’s Sovietera constitution of 1949 (as amended in 1989), this new basic law begins with the following words “O Lord, blessed be the Hungarian nation” and proceeds to a formal “National Avowal of Faith” that declares in pertinent part: “We are proud that one thousand years ago our king, Saint Stephen, based the Hungarian State on solid foundations, and made our country a part of Christian Europe. . . . We acknowledge the role Christianity has played in preserving our nation.” Article Q of the section entitled “Fundamentals” establishes that the National Avowal of Faith is no mere precatory throat-clearing, but rather that “[t]he provisions of the Fundamental Law shall be interpreted in accordance with . . . the Fundamental Law’s National Avowal of Faith.” The constitution prescribes a coat of arms topped by the Holy Crown of Saint Stephen I, canonized by Pope Gregory VII in 1083. The National Avowal further declares that “after the moral defeats of the twentieth century, our need for spiritual and intellectual renewal is paramount.” In keeping with that aim, 3. HUNTER, supra note 1, at 171.