CONTINGENCY AND CONTESTATION IN CHRISTIANITY AND LIBERALISM.

• Author: Moreland, Michael P.

Critiques of liberalism in law and politics come in waves. The liberal-communitarian debate of the 1980s marked by Robert Bellah's Habits of the Heart, (1) Alasdair MacIntyre's After Virtue, (2) and Michael Walzer's Spheres of Justice (3) has given way to the current spate of anti- or postliberalism in Patrick Deneen's Why Liberalism Failed (4) and the writings of Adrian Vermeule. (5) Some of these critiques of liberalism have been expressly anchored in Christian or other theological perspectives and some in a more secular vein. Debates about liberalism have an ineliminable theological dimension, as noted by Ronald Beiner. "It is hard to appreciate the full contours of the [liberal-communitarian] debate," Beiner writes, "without being aware of the degree to which it involves a Jewish-Catholic challenge to the 'Protestantism' of contemporary Kantianism (even if some of the spearheads of this Kantian revival are themselves non-Protestant)." (6) Such critiques of liberalism capture an intellectual and cultural mood. But such debates about liberalism and Christianity have infrequently occurred within legal scholarship as such, so it is especially valuable that the Notre Dame Law Review has convened this Symposium of such prominent scholars to shed light on some legal dimensions of these debates.

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliator)' to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; and (4) the renewed interest in the relationship between liberalism and Christianity in light of a new-generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question--posed forcefully at the end of Steven Smith's paper--of if not liberalism, then what else? (7)

Several of the essays offer a welcome engagement with particular theological traditions. Much of the discussion of religion in political theory and in law deals in abstractions, treating religion as a black box of more or less obscure and unreasonable beliefs. Some of that abstraction about religion in law is well-founded in a reluctance by courts, for example, when adjudicating religious free exercise claims to engage in scrutiny of religious belief. Even if that reluctance leads to a theologically dissatisfying category of "religion," judges (at least in American constitutional law) are in a poor position to do any more. The essays in this Symposium, however, consider theological concepts such as eschatology, sin, providence, and redemption and thereby offer a corrective to such abstract regard for religion generically.

The essays that do offer such an engagement with theology vary in their ecclesial perspectives and in the range of questions opened up by their foray into theological terrain. Kathleen Brady's essay uses modern Catholic social thought to offer a criticism of Catholic integral ism, though much remains to be said about how to read the various sources in Catholic political thought. (8) In Brady's essay, we see an example of how those sources can be read in liberal or conservative ways. One reading emphasizes the "dynamic" (in Brady's term) evolution of Catholic social doctrine in the twentieth century to embrace liberal democracy and the pluralism of modernity with a concomitant commitment to religious freedom in the Second Vatican Council's Declaration on Religious Freedom, Dignitatis Humanae. (9) A competing reading of those sources, though, emphasizes the steady commitment of the Catholic social tradition to the authority of the Church and a suspicion--most prominent in the nineteenth century and in the wake of the French Revolution, but still present in modern Catholicism--of forms of liberalism that are hostile to Catholicism's claims about human persons and communities. (10)

To take just one theme in that discussion, a significant aspect of the current debates about liberalism and Christianity is how best to understand the common good. Indeed, Adrian Vermeule's most prominent contribution to the current debate is a book entitled Common Good Constitutionalism. (11) So also Patrick Deneen's critique of liberalism invokes common good-related considerations about community, family, religion, and economics. (12) Brady's essay responds by offering a more liberal understanding of the common good based in modern Catholic social teaching, an understanding that places more emphasis on how the common good can be squared with democracy, human rights, pluralism, a free market economy, and religious neutrality. (13) So also Melissa Moschella's essay draws on Catholic social thought and the so-called "new natural law" account of the political common good and subsidiarity to argue both for a commitment to a limited state (defending something close...