Is There an Implicit Theology in the Practice of Ordinary Law? - Joseph Vining

• Citation: Vol. 53 No. 3
• Publication year: 2002

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Is There an Implicit Theology inthe Practice of Ordinary Law?

[/p]by Joseph Vining^*

We should have a text to help us—lawyers and theologians almost
always do. Consider this from Wordsworth, and ask whether it goes too
far if Wordsworth were thought to be speaking to the practicing lawyer:

Here you stand,

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Adore, and worship, when you know it not;

Pious beyond the intention of your thought;

Devout above the meaning of your will.

—Yes, you have felt, and may not cease to feel.

The estate of Man would be indeed forlorn

If false conclusions of the reasoning Power
Made the Eye blind, and closed the passages

Through which the Ear converses with the heart.¹

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This is a wonderful passage in Wordsworth's long Excursion, said to be
the only wonderful passage in what Wordsworth considered his great
work. It captures the question we are addressing today. Whether it
gives too strong an answer, with its references to worship, piety, and the
devout, depends on what piety leans toward and what worship is of. On
this, Wordsworth himself is nicely enigmatic. But in staying so he does
not close us off from the possibility of touching something universal in
exploring the connections between law. in the world and theology in the
world.

Any connection between worlds of human endeavor is in at least three
strands: what practitioners do; what they presuppose or presume or
take as starting points; and what they believe. Natural scientists and
social scientists may be compared along these lines and, connected thus
together, may then be contrasted with practicing lawyers and practicing
theologians.

Theology and law are first pulled together in a negative way—in what
their practitioners do not presuppose or, perhaps, do not believe. That
which they seek and which guides them is not just a process.

We talk much about law being a process, an open and ongoing
discourse, and "process" has its place also in theological description. But
you do not die for or embrace poverty for what is merely, only, no more
than a process. Nor, in law, do you move against someone (with what
can only be called violence) or restrain someone (again with violence) in
the name of what in the end is only a process, things interacting
producing things that interact, on and on, just that and no more than
that.

There is of course an implication of the substantive in this negative,
the "not only" and the "not merely," at the very least an opening to an
irreducible, in both the legal and the theological. Or, leaving behind this
contrast with the once popular "reductionism" of other fields, we can cast
the difference in the now popular language of "emergent properties" and
"complex systems" being used to describe the nature of things and the
human.

"Properties," nicely defined, emerge but are not predictable from the
"properties" of their component parts, which parts in turn emerge but
are not predictable from the "properties" of their own components. We
ourselves, some of us are saying to others of us, are complex systems,
properties, and wholly explicable in terms of the selection of properties
competing for survival under precisely defined rules at each ascending
level of complexity.

Put in these current terms of discussion, the contrast in legal or
theological thought is a willingness to start at the top rather than the
bottom of the emergent pyramid of processes so conceived and to see that
pictured efflorescence as operating in reverse. Down from us, this vision
of processes that are only processes, rather than up to and including us.
We are, after all, the ones who paint this picture. Legal thought knows
the law of property and how limited it is. What law works with—and
theology—escapes too often the precisely defined and the systems of
"property" or "properties" that depend upon precise definition.

This shaking off inadequate form in a reach for substance, this "not
only" and "not merely," can occur whether or not the word "spirit" enters
conversation. In law no less than theology, the reach for the "real," the "bona fide," the "actual," which usually ends in inquiry into the mind of
a speaker, is so common as almost to pass notice. But spirit does enter.
In method, the legal and the theological are both text-based in some
fashion. Both speak openly of the spirit informing the "letter" of their
texts. It is not gabbling to speak of the spirit of the law even today. If
pressed for wider reference on the nature of that spirit which is
presupposed in the search for it, lawyers and theologians have principal-
ly each other to turn to, perhaps to their surprise.

The substantive in law and theology puts them in a most definite
contrast now with other worlds of thought...