God's Joust, God's Justice: Law and Religion in the Western Tradition (review)

This, the latest and widest-ranging of Professor Witte's explorations of the overlapping realms of law, theology, and history, is engaging, thoughtful, and respectful of the different intellectual and religious traditions with which he deals. It covers three distinct topics, human rights law, the American church-state relation, and family law. For each, Witte uses the same methodology. He examines the contributions of the various religious traditions, Catholic, Protestant, and as far as he finds them applicable, Orthodox, Jewish, and Islamic. He relates all these to the contribution of the secular Enlightenment tradition, and tries to develop a synthesis that will allow today's Christians to live in love and peace with their neighbors. His conclusions are decent, humane, and ecumenical, and his treatment of debatable questions is very fair to both sides. Among other valuable discussions, he has a thorough and sympathetic account of the attitude of the Russian Orthodox Church and the post-Communist Russian government toward evangelizing initiatives from Western Europe and America, and an enlightening examination of the legislative history of the religion clauses of the First Amendment.

But he has fallen into a few historical gaffes. On page 300, for instance, he says that the Tametsi decree of the Council of Trent made parental consent a requirement for marriage. It did not. Rather, it provided that although the marriage of minors without parental consent should be discouraged, it was not invalid. Parental consent has never been required, or supposed to be required, for the marriage of adults. On page 234, he says, "In Church of the Holy Trinity v. United States, the Court refused to uphold a federal law forbidding contracts with foreign clergy, a vital issue for Catholic clergy." The federal law in question did not forbid contracts with foreign clergy; it forbade contracts with foreign workers generally. The Court did not refuse to uphold it; it refused to apply it. The lawfulness of making contracts was not a vital issue for Catholic clergy, who (unlike the Anglican priest involved in the Holy Trinity case) are generally assigned to their positions rather than contracted for. Such errors of detail—and these are not the only ones—may seem trivial in a work as broad in scope as this. But they undermine confidence. As the author sweeps across many centuries and several disciplines, many different readers will find him covering some subjects with which they are familiar, and many subjects with which they are not. If they find mistakes on things they know about, they may begin wondering how far they can trust him on other things.

In his account of the development of human rights, Witte is curiously neglectful of natural law, which he seems to think only the Orthodox have made central to their doctrine on the subject (p. 91). In fact, Roman Catholic, Protestant, and Enlightenment versions of natural law have all played important parts in the development, and it was Jacques Maritain's appropriation of the Roman Catholic tradition that made possible his crucial role in the adoption of the Universal Declaration of Human Rights. There are other places as well in which Witte seems to slight one or another of the relevant categories. For instance, he takes up "the repeated clashes between Protestants and Catholics over separationism" in the United States (pp. 230–37) without considering the basic ecclesiological difference between the two traditions. For Protestants, the common Christianity of a people did not have to have a common institutional or liturgical manifestation. Hence, it was easy to separate the Christian Commonwealth from any such manifestation. For Catholics, on the other hand, Christianity was inseparable from its institutional and liturgical manifestation. Hence, to separate church and state was to marginalize religion. This difference, while it was seldom fully articulated, was central to the debate.

In the introduction to...