Religion & Law

I went straight from class this afternoon to hear the keynote address, by Angela Harris (Boalt Hall), that kicked off Villanova Law's annual weeklong celebration of the life and legacy of Dr. Martin Luther King. Harris spoke eloquently and inspiringly about various currents of thought that animated Dr. King's dream, including the role of love in overcoming the effects and causes of the structural and personal sins and shortcomings that we face as individuals and as a society. In identifying the causes that must be overcome, Harris emphasized a "Hobbesian" legal culture.  This caused me to sit up.  Having taught Hobbes just thirty minutes earlier in the "Justice and Rights" class from which I had dashed to the lecture, I even had a copy of Leviathan in hand as Harris elaborated, to some extent, what about our way of conceptualizing, practicing, and teaching law is Hobbesian.  Harris seemed to represent that law as the establishment presents and practices it is Hobbesian in inspiration, justification, and operation.  Obviously, the devil here is, as always, in the particulars.  To the extent we are committed to crude forms of positivism, I see Harris's point about how Hobbes is at work in the jurisprudential picture.  Harris, however, seemed to be making something like the categorically different point that we as a culture view law as little or no more than established power controlling the weak.  Hobbes, of course, had a different case to make overall (the normative one about how to realize the demands of an emaciated natural law), but I do understand why he is invoked in connection with the more limited positivistic thesis.  What I don't see, however, is that our legal practice is accurately summarized as being broadly committed to merely accepting the results of power.  Arguments from justice are cognizable in our practice of law, the more so as they are articulated through modalities of legal reasoning accepted within our legal tradition.  The latter qualification may sound "conservative," but in fact it is an invitation to recognize the ways in which our legal tradition is in fact open to the incremental -- and sometimes bold -- *development* of legal institutions in the service of ordered liberty.  "Conservative" doesn't begin to do justice to the aspirations of our legal system as it functions most of the time.  And I don't believe we are, collectively, closet Hobbesians.