f/k/a archives . . . real opinions & real haiku

November 27, 2004

in re Religious Law Schools

Filed under: — David Giacalone @ 9:51 am

                                                       religious law schools offer no salvation

Thanks to an article in the New York Times earlier this week, many Americans are now

aware of and talking about the existence of faith-based law schools.  Naturally, members

of the weblog community (like Professors Althouse and Bainbridge, and many others) have

also been discussing the topic.  As is usually the case, the Editor of this weblog is skeptical

about any proffered panacea for complex problems — especially, when the legal profession

will have a big part in the outcome. 


  Will faith-based law schools be the salvation of the American legal profession, justice

system, government or society?  “Not by a long shot” is my best guess. 


In Religious Law Schools, Steve Bainbridge asserts that there is “something distinctive and

useful about a faith-based legal education,” and he trumpets a “revivial of serious Catholic legal

education,” that is (quoting Villanova’s law dean, Mark Sargent) “unapologetically and actively

committed to discerning and expressing distinctively Catholic approaches to law and lawyering.”  

I wonder, though, just when and where such “Catholic” legal education ever existed and which

cohort of lawyers from those schools worked to form a noticeably better legal system and society

than we now have.


Ann Althouse‘s cautious reaction to religious law schools seems more practical:

“What’s needed are law schools that expose law students to the full range of professional

debate. It doesn’t make much sense to counter one law school with another law school:

the poor student has to go one place or another!”

After spending the first two decades of my life at Catholic schools, I entered the Great Satan of legal

agnosticism, Harvard Law School.  In my own experience, nothing that happened at HLS was aimed at or tended to produce lawyers who function without a sense of right and wrong or social responsibility.  


Barack Obama is a prominent example of a person who did not lose (nor have to hide) his moral      

or social compass in order to be a spectacularly successful HLS student.  Those who leave law school

lacking in such attributes almost certainly came without them (seeking wealth and power more than legal or social justice).  The words of Will Rogers about legislating lawyer ethics are a bit cynical and overinclusive, but he would almost certainly have applied them to legal education as well:

I don’t think you can make a lawyer honest by an act of legislature. You’ve got to work on 

his conscience. And his lack of conscience is what makes him a lawyer

Advocates of faith-based law schools start with a premise with which I strongly disagree — they believe

that it  is impossible to have a strong moral code or sense of social responsibility outside of a religious

context.  (See Dean Mengler, “What’s Faith Got to do with It? [faith provides the “missing premise”

supporting the social obligation to perform pro bono service]). 


Over the 30 years since I entered law school, I’ve come to be a strong critic of the ethical and moral lapses, and the social irresponsibility of much of the legal profession, which mostly stem from making money the top priority.  [see our ethicalEsq archive]  And, to be frank, I see absolutely no evidence that lawyers — or any other members of society — who consider themselves to be “believers” have any stronger code of morality or ethics than those they would call non-believers.  If anything, I’d say that those lawyers who appear to care the most about social justice and morality, and the least about amassing wealth through the morally-indifferent practice of law, have a disproportionate number of “nonbelievers” in their ranks.

  • It is not at all surprising, therefore, that students interviewed for the NYT article at Rev. Jerry

    Falwell’s Liberty Law School were at least as likely to want to go into real estate law or

    commercial litigation, as to litigate religious issues.

I can also confess that no one at Harvard Law School tried to turn me into a judicial activist, or a lawyer who would seek out such jurists in order to subvert the legislative will and the Constitution.  I’m afraid we might not be able to say the same thing for some of the more extreme advocates of faith-based law school.   Jerry Falwell, cancellor of Liberty University states:

“If our graduates wind up in the government, they’ll be social and political conservatives. If they

wind up as judges, they’ll be presiding under the Bible.”

  Ann Althouse aptly replies: “Try saying that at your confirmation hearing!”  Like Falwell, professors at Liberty Law School say they often look at court opinions and statutes in light of “biblical principles.”  Professor Jeffery C. Tuomala insists that “Something that is contrary to the law of nature cannot be law.”


Dean Mengler of St. Thomas Law School tries to reassure critics of his school’s “dedication to academic freedom”:

“The University of St. Thomas School of Law understands its mission as greatly expanding, not limiting, the scope of discovery and inquiry. In the words of Ex corde Ecclesaie, ‘[I] t is the honor and responsibility of a Catholic university to consecrate itself without reserve to the cause of truth’.”

But, what does the search for “truth” mean to a Church that insists it has been given all the Truth. Thus, in an article called “No Contradictions in Truth,” one Catholic scholar warns against accepting positions taken by other Christian faiths, saying:

“The sincere follower of Christ, though, knows that he must accept as divine truth everything that Christ revealed, including what is beyond human reasoning. Revelation was entrusted to the Church and the Spirit of truth given to the Church to guide it and keep it from error.”


If one law school thinks judges must apply the truths its believers find in the Bible, and another thinks that an infallible Pope can interpret truth in all matters of Faith, we are no longer talking about a Nation of Laws or a legal system that is accountable to the Constitution or the People. That should worry lawyers and all American citizens.

Even a quick look at the Eight Beatitudes/Sermon on the Mount (Matthew 5 – 7) shows that there is a lot to learn and live up to in the teachings and values of Jesus Christ.  I have a lot of respect for the values of the Judeo-Christian tradition (and of the other religions of the world), and try to adhere to them, but I do not believe that we need law schools that emphasize the dogma or “truth” of any particular religious sect in order to create a better profession or society.  For example, Dean Sargent and Prof. Bainbridge want to promote “distinctively Catholic approaches to law and lawyering.”   As a former Catholic, who is fairly knowledgeable about the Church’s dogma and history, I am not convinced that our legal profession and our Republic have a lot to learn from a Church Institution whose legal system now or when it had “temporal” power:

    • rules under a hierarchy modeled after an absolute Monarchy, with a Leader deemed to be the infallible spokesman of God (when he declares that he’s speaking ex cathedra

    • spent centuries banning and burning books that contradict Church doctrine, and continues to decree it to be a sin for its members to read a large list of offending books (soon law review articles and court decisions, too?)

    • met its financial needs by selling get-out-of-hell free cards (indulgences)

    • covered up decades of child sexual abuse to protect its image

    • imprisoned Galileo for saying the earth rotated around the sun

    • denies certain roles for women because (purportedly) they did not perform them 2000 years ago

    • disseminated a Voter’s Guide last month, detailing “non-negotiable issues” for voting without sinning

    • sent great armies on Crusades to spread its Word & Truth (and do a little looting)

Catholics and evangelical Christians can be great lawyers, legislators and citizens.  But legal education will not be improved through religious indoctrination or blinders. 


one by one
don’t the pennies drop?
winter prayers




harvest moon-gazing
priests, samurai



Issa, translated by David G. Lanoue     


update:  You will find a lighter treatment of this topic at our post issue-spotting for faith-based law schools.

Also, see Dagger in Hand.


update (Dec. 1, 2005): see gay priests, Catholic Laws Schools & CLT.


# Posted by David Giacalone on 11/24/04; 6:41:40 PM – Trackback [1] Comments [0]

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