Introduction
Jurisprudence can be defined more or less capaciously. In a narrow sense, it is the philosophy of law, located at the overlap of moral, social and political philosophy, concerning itself with basic questions of the content, nature and purpose of law. But it is not helpful to exclude reflection on general truths about law, even if these are not strictly necessary from a philosophical perspective. For example, it may be correct that coercive enforcement is not conceptually necessary to law. A workable system of rules can be sustained by convention and voluntary submission alone – think of clubs and societies in which expulsion is a last and rare resort. Nonetheless, coercive enforcement is a typical and important feature of law, requiring critical interrogation and justification. Or to take another example, it is not part of the definition of law that it provides a mechanism for class oppression, but if Marx and his followers are right, that is an insight of central importance.
We might then say that jurisprudence is the study of law in general. This would have rather uncertain limits. Some jurisprudential works have indeed sought to outline the basic elements of contract, property, family, criminal, constitutional and international law, and when one remembers that the study of law at university can only ever introduce students to the main elements of law, one might as well call the whole of an undergraduate degree in law, ‘jurisprudence’ – as some universities do. Even if it is impractical to allow the scope of jurisprudence to expand to cover the entire field of scholarly reflection on law, it remains true that a wide knowledge of law is the best preparation for engaging with its philosophical core.
One way of trying to fix the scope of jurisprudence so that it is neither too broad nor too narrow is to observe that it concerns itself with certain central questions about law as a universal human phenomenon. These are the perennial puzzles of jurisprudence. H.L.A. Hart suggested that three main questions concerned the relationship between law and morality, law and rules, and law and coercion. More broadly, we might call these the problems of the normative justification of law, the analytical form of law, and the social expression of law. They are headings for a series of more specific questions.
Normative justification: Does law have a necessary moral purpose? Are grossly unjust laws valid? What is justice, anyway? By what right does one person rule over another? Do we have a moral duty to obey the law? Is the rule of law beneficial? What is law for?
Analytical form: What exactly are rules and principles? Does law consist of rules? Can individual decisions be fully determined by laws? What are rights and how do they relate to rules and principles? What makes legal reasoning distinctive? How does law work?
Social expression: What institutions are typical of legal systems? How does law relate to ‘the state’ and ‘politics’? What is its role in social forms such as families, businesses, and recreational societies? Why do people actually follow law? Whose interests does the law tend to serve?
Christians will want to locate answers to these questions within a broader theological framework, and supplement them by further questions which arise when one seeks to understand law in the light of the purposes of God: Does human law have a divine purpose? What is the place of legal thinking (e.g. biblical law, divine law, moral law, …) in the life of the Christian? Should churches be governed by law – and if so what sort of law? How does legal values relate to theological virtues such as faith, hope and love? Will there be law in the new creation?
If you wish to lay to rest any lingering suspicions that God and human law simply don’t connect, read Gary Haugen, Good News About Injustice: A Witness of Courage in a Hurting World (IVP, 1999). Written by a UN Genocide Inspector who was confronted with the horrors of the Rwandan genocide, this easy-to-read book shows how justice and good law are on God’s heart.
The last 25 years has seen an explosion of writing about the relationship between Christianity and Law. The best introduction to this literature is now the Oxford Handbook of Christianity and Law (ed. John Witte, Jr., and Rafael Domingo, Oxford University Press 2024). Much of this writing explores the relationship historically, biographically, or in terms of Christian perspectives on the content of specific areas of law. It is good preparation for a Christian jurisprudence, but not jurisprudence itself. The final part of that work contains seven essays on ‘enduring legal principles and values’ which get somewhat closer to the syllabus of a standard jurisprudence course: love, justice, human dignity, equality, the rule of law, sovereignty, judgment and solidarity. They provide a good introduction to a set of ethical concerns which Christians will typically want to bring to the study of law in general.
However, the best preparation for engaging in a Christian way with jurisprudence is to orientate oneself historically. Many jurisprudence courses give the impression that thinking about the relationship between law and justice only began in the nineteenth century or even in the 1960s. It is good to be reminded that scholars have been puzzling over the nature of law for millennia! J.M. Kelly’s mid-length book, A Short History of Western Legal Theory (Oxford University Press, 1992, repr. 2010), is the best single volume introduction to the sweep of Western thinking about law from the time of the Ancient Greeks onwards.
After this, it helps to orientate oneself systematically. David Opderbeck, Law and Theology: Classic Questions and Contemporary Perspectives (Fortress Press, 2019). provides a good example of a comprehensive account of law which starts with biblical foundations, reflects on the Christian intellectual tradition of jurisprudence, applies this material to debates within the philosophy of law, and then applies it to contemporary questions of Christian engagement with law. You probably won’t agree with all of his conclusions, but it is a great example of how Christian theology has implications for law. If you want a brief overview of Opderbeck’s thought, read David McIlroy, ‘Law as the Calling of Human Nature: The Theology of Law of David W. Opderbeck’, (2022) 189 Law and Justice 157-168.
Biblical foundations
If you are interested in exploring the biblical foundations of law in more depth, then David McIlroy, A Biblical View of Law and Justice (Paternoster, 2004) takes you through the Bible’s story and shows how justice is part of God’s desire for human beings. It will help you think through the ways in which human laws are necessary for justice to be done but how Christians are not to place our hope in law but in Jesus.
Then read: Hetty Lalleman, Celebrating the Law? Rethinking Old Testament Ethics 2nd ed. (Authentic Media, 2016), which is a good introduction to what Christians are supposed to do with the ethical rules in the Torah and the rest of the Old Testament before you move on to major treatments such as Christopher J.H. Wright, Old Testament Ethics for the People of God (IVP, 2004) or Jonathan Burnside, God, Justice and Society (Oxford University Press, 2010).
A valuable extensive reference work in this area is Brent Strawn (ed.), The Oxford Encyclopaedia of the Bible and Law (OUP, 2015).
Natural Law
The most important question for Christian jurisprudence is arguably the problem of natural law. It is closely connected to the question of natural theology. To what extent do we human beings naturally know something of God and God’s law, and to what extent does human law express and apply this ‘natural’ law?
A good place to start is with C.S. Lewis, The Abolition of Man. Written in 1943, this short book is not so much as theory of natural law as an exploration of why natural law matters, not just for jurisprudence but also for anyone who cares about the future of civilisation.
Christian engagement with natural law theory is complex and contested. Given the content of most modern jurisprudence courses it is perhaps best to start with the most successful current manifestation, which is the ‘new classical’ natural law theory of John Finnis and related scholars. For some students, John Finnis’s Natural Law and Natural Rights (2nd ed., Clarendon, 2011) may be the only book written by someone who is obviously a Christian that is set on a jurisprudence reading list. It is a central text arguing that law can only be understood in reference to its ethical purpose, which is to coordinate human action such that it secures the conditions for human flourishing understood as participation in basic human goods.
The extent to which Finnis’s theory is ‘new’ and the extent to which it is ‘classical’ is itself rather controversial. There is not much theology visible on the surface in Natural Law and Natural Rights. In the essay J.M. Finnis, ‘Grounding Human Rights in Natural Law’, (2015) 60 American Journal of Jurisprudence 199-225, Finnis explains why he wrote Natural Law and Natural Rights in the way that he did. It is a useful guide to think about how to write in a way which disarms the objections of those whose starting point is deeply opposed to the Christian faith.
There is now a substantial literature relating to Thomist Natural Law Theory. Here is a sample:
Robert P. George, In Defense of Natural Law (Oxford University Press, 1999) tackles a number of challenges to the Natural Law thesis, but is then more interested in the application of Natural Law Theory to specific questions of public morality, particularly in the US context.
Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (ISI Books, 2003) is more overtly Catholic, and also more interested in institutional and systemic questions of law and adjudication, again in a US context.
Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Eerdmans, 2005) and Ministers of the Law: A Natural Law Theory of Legal Authority (Eerdmans, 2010) is more directly inspired by Aquinas than is the work of Finnis, offering a defence of his approach as a philosophical foundation for ethics and law.
Sean Coyle, Natural Law and Modern Society (Oxford University Press, 2023) is a new philosophical restatement of the Thomist tradition in the light of debate generated by Finnis and his contemporaries.
Catholic or Protestant?
John Finnis himself, and many of the writers who align themselves with his thought, are practising Roman Catholics. Protestant theology has typically been less optimistic about natural theology and natural law.
Michael Cromartie (ed.), A Preserving Grace: Protestants, Catholics and Natural Law (Eerdmans, 1997) is an accessible introduction to the debate. Stephen J. Grabill, Rediscovering the Natural Law in Reformed Theological Ethics (Eerdmans, 2006) offers a fuller explanation of the way in which Protestant theologians of the past have grappled with the problem of natural law.
Two important legal philosophers within the Protestant natural law tradition are Herman Dooyeweerd and Nicholas Wolterstorff. Herman Dooyeweerd developed a distinct Reformed Christian philosophy in the Netherlands in the twentieth century building on the work of the neo-Calvinist Abraham Kuyper. Jonathan Chaplin’s book Herman Dooyeweerd: Christian Philosopher of State and Civil Society (University of Notre Dame Press, 2011) does a great job at expounding Dooyeweerd’s ideas in a way which makes them accessible and shows their relevance to contemporary debates about the size and role of government.
The contemporary philosopher Nicholas Wolterstorff sets out a Christian philosophical account of justice which has rights at its heart. His thought is developed through four substantial, but accessible, works: Justice: Rights and Wrongs (Princeton University Press, 2008), Justice in Love (Eerdmans, 2011), The Mighty and the Almighty: An Essay in Political Theology (Cambridge University Press, 2012) and Understanding Liberal Democracy: Essays in Political Philosophy (Oxford University Press, 2012). Journey Toward Justice (Baker, 2013) is a short read and the best place to start exploring Wolterstorff’s perspective.
The place of positive law within Protestant theology has been extensively discussed within 20th century German theology. An excellent overview of the debates can be found in Bradley Shingleton, Modern Protestantism and Positive Law: The Contours of a Continental Theological Tradition (Pickwick Publications, 2019).
Classical or Liberal?
All the authors mentioned so far reach more-or-less ‘liberal’ political conclusions, in the sense that they accept a limited role of the state, government and human law in relation to Christianity in particular and religion more generally. They are sympathetic to broadly liberal-democratic constitutional arrangements as an expression of Christian political order, treating state secularity as valuable, and only rejecting secularism
In recent years, these assumptions have come under increasing theological scrutiny. In order to assess what, if anything, is inadequate about the liberal legal tradition, it is important to understand how it grew out of Christian political thought in the first place.
Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge University Press, 1996) provides a full overview which is also sensitive to the theological presuppositions of early modern thinkers. Jeremy Waldron, God, Locke and Equality (Cambridge University Press, 2002) offers a detailed study of the theological foundations of an early modern thinker who is central to liberal democratic thought.
Framed in this way, it becomes possible to notice the ‘liberal Protestant’ assumptions of the entire Kantian tradition of legal philosophy from Kant himself to contemporary mainstream jurisprudential scholars such as John Rawls, Jürgen Habermas, Ronald Dworkin and Robert Alexy. If you have read John Rawls and wondered why he sometimes sounds like a Christian and at other times does not, this article provides brief details of his intellectual biography and situates him in a line of liberal thought running from John Locke and Immanuel Kant: David McIlroy ‘Locke and Rawls on Religious Toleration and Public Reason’, (2013) Oxford Journal of Law and Religion 1-24.
Oliver O’Donovan has done the most to re-present an alternative classical Christian vision of the role of politics and law in human flourishing. He and Joan Lockwood O’Donovan produced a really helpful sourcebook: From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Eerdmans, 1999). He developed his own thinking in The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge University Press, 1996), but The Desire of the Nations is not an easy read. The Ways of Judgment (Eerdmans, 2008) seeks to cash out O’Donovan’s ideas and is an easier way in to his thinking.
Read David McIlroy, A Trinitarian Theology of Law (Wipf and Stock, 2009) chapter 3 ‘Oliver O’Donovan: Political Authority in the Light of the Ascended Christ’, available at www.theologyoflaw.org, if you want an introduction to orientate yourself before taking the plunge into O’Donovan’s writings.
For a completely different assault on the liberal democratic tradition, see now Kevin Vallier’s recent book, All the Kingdoms of the World: On Radical Religious Alternatives to Liberalism (Oxford University Press, 2023).
Although Vallier also covers non-Christian religions, his main example is of ‘Catholic Integralism’, a resurgent Catholic moral and political philosophy, which is a full-blooded embrace of the role of the state and its law in the service of God and the Church.
And for a more focused critique on the notion of liberal rights from the perspective of Christian conservatism, read Nigel Biggar, What’s Wrong with Rights? (Oxford University Press, 2020).
Idealistic or realistic?
Thomist and Neo-Calvinist visions of politics and law can present a vision of law as a grand project to bring about a Christian society (in the integralist Thomistic account), to redeem society (in various Protestant renderings) or to establish a stable, just, common framework (the New Natural Law theory of John Finnis etc. and the Neo-Calvinist account of Herman Dooyeweerd). Against these accounts, another strand of Christian thought, most often associated with Luther but tracing its origins to Augustine, argues that Christians inevitably live as citizens of two kingdoms: as redeemed citizens of the Kingdom of God but also as citizens of earthly kingdoms which, despite being bound up with sin, are instruments used by God to preserve human social life. Arguably the most prominent advocate of the two kingdoms approach today is David VanDrunen. He summarises the approach in Living in God’s Two Kingdoms: A Biblical Vision for Christianity and Culture (Crossway, 2010) and explores its relationship with natural law in Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (Eerdmans, 2010) and in Divine Covenants and Moral Order: A Biblical Theology of Natural Law (Eerdmans, 2014).
Those who study contemporary jurisprudence courses are likely to spend some time studying various sociological and critical perspectives on law deriving from the thought of Karl Marx. Although there is less material by Christians engaging specifically with Marxian and other critiques of law, Augustinian realism provides a helpful bridge.
David McIlroy, The End of Law: How Law’s Claims Relate to Law’s Aims (Edward Elgar, 2019) introduces the natural law tradition, which so many Christian thinkers have formed part of, as an attempt to answer the question: why should I obey the law? It explores how law rests on a combination of power and appeals to morality. Taking his cue from Augustine’s realism about law’s limits and the failures of law in practice, McIlroy provides a much more critical and cautious account of human law without losing sight of its necessary reference to an ideal of divine justice.
Thorough-going critiques of liberal legalism are provided by those who align themselves with ‘radical orthodoxy’ and ‘post liberalism’. The seminal text here is John Milbank, Theology and Social Theory (Blackwell, 2006). This is rich and dense text, and Milbank has also written more specifically about law and rights here:
John Milbank, ‘Against human rights: liberty in the western tradition’ (2012) 1 Oxford Journal of Law and Religion 203-234.
A substantial engagement with critical theory, which touches at times on legal themes, is: Christopher Watkin, Biblical Critical Theory (Zondervan, 2023)
Joel Harrison, Post-Liberal Religious Liberty (Cambridge University Press, 2020) also engages with central jurisprudential concerns, showing what Christian theoretical legal scholarship can learn from classical and critical responses to Christian legal liberalism.
Questions about the relationship between Christianity and law are sometimes framed in terms of ‘Church and State’, and as you read you should constantly bear in mind that answers to the questions such as: ‘what is law for?’, ‘how does law work?’, and ‘how does law relate to the state’? also raise and may depend on big theological questions about the nature of the Church and its calling.
* This resource has been prepared originally for the Gospel and Academia Project.
