LAW, RELIGION, AND RACIAL JUSTICE: A COMMENT ON DERRICK BELL'S LAST ARTICLE.

• Author: Stefancic, Jean
• Position: In this issue, p. 265, 2018

CONTENTS CONTENTS INTRODUCTION I. BELL ON RELIGION, LAW, AND RACISM A. SACRED TEXTS, INTERPRETATION, AND ETHICAL BEHAVIOR B. LEGAL REALISM C. NARRATIVE SCHOLARSHIP II. HOW FAITH CAN LEAD TO RACISM III. TWO EXAMPLES FROM ONE STATE'S HISTORY A. THE FIRST EXAMPLE--ALABAMA'S 1901 CONSTITUTION B. THE SECOND EXAMPLE--TEN COMMANDMENTS IN THE COURTHOUSE CONCLUSION INTRODUCTION

In his last article, Law as a Religion. (1) Derrick Bell sketched out his reflections on law and religion. In short, he concludes that religion is implausible, but fervently believed and that law, especially the U.S. Constitution, is idealized but does not deserve to be. In addition, both bodies of thought, he believes, have been compatible with racism, indeed can easily incline a true believer to adopt and espouse white supremacy--sometimes in a mild disguised form and on other occasions in an outright and dangerous way.

This essay examines Bell's reflections on religion and law and his exploration of how blind faith in either can incorporate racism. I offer two examples from Alabama's legal history to show how this can happen. (2) I then posit that his rejection of a fundamentalist approach to both religion and law led to his adoption of racial realism as a way to live a life of meaning and worth.

1. BELL ON RELIGION, LAW, AND RACISM

   In accord with Bell, I believe that religion and law, the two great ordering principles of social and human experience, need to maintain their distance from each other. Each does not much benefit from incorporating ideas, or frameworks, or habits of mind from the other. Religion can point us to knowledge and principles going beyond human experience. It can inspire us to live better, more ethical lives. Beyond that, if religion serves as a foundational cornerstone of life, it may lead one to intuit the divine. According to German philosopher and theologian Rudolf Otto, religion contains elements of mystery enabling apprehension of the numinous--the mysterium tremendum. (3)

   Law is a radically different ordering principle. Pragmatic in nature and aiming to create and enforce a system of rules that allow us to lead fruitful and productive lives together, it aims to reduce violence and antisocial behavior. It encourages reliable transactions and business exchanges. It formalizes families, town councils, and other small organizations that provide security, services, and reciprocity. (4) Laws are published in case reports and statute books, where everyone can find them, or find a lawyer who can do so on one's behalf.

   In Law as a Religion, Bell states that many people hold superficial beliefs about religion and law, but fail to question where these ideas come from or whether they are worthy of respect. (5) What we call religion developed many thousands of years ago when people first questioned the purpose of life and the meaning of death. (6) Religion's use of stories effectively serves these two functions. Bell, raised as a Christian, uses the Bible to illustrate his point. The New Testament provides stories of Jesus: the miracles, the virgin birth, the resurrection. Membership in Christian churches requires belief in these stories. (7) Scientific explanations and historical exegesis--critical interpretation of scripture--find scant welcome there, especially among the more fundamentalist devotees.

   1. Sacred Texts, Interpretation, and Ethical Behavior

      The Old Testament, if literally believed and accepted, provides rationales for opposing homosexuality, same-sex marriage, and even advocates slavery. (8) Yet, Christianity and other religions aspire to ethical living and offer codes of moral behavior--the Ten Commandments, for example. The contradiction between what religion teaches and the way many churchgoers lead their lives, then, stands in sharp opposition, which Bell and many others have noted.

      Bell then confronts the inconsistencies of religion found in Christian theology and practice. For example: What is the meaning of The Word?--the Gospel of John says that the Word (Logos) was made flesh. (9) Theology libraries contain a multitude of volumes exploring how to interpret this particular word. (10)

      The examination of texts, however, can lead down a thorny path. (11) Legal scholars face this dilemma when engaging in constitutional interpretation. (12) What is the meaning of a word, any word? Meaning derives from a word's relation to other words, or from the framework of the surrounding words written during a particular historical time. Hermeneutics, the study of interpretation, examines how the intent of the author, or how the experience of the reader or listener shapes interpretation of the words. (13) Postmodernism, however, builds on these observations to show that meaning is indeterminate, that there cannot be any one absolute meaning. (14)

      So, how should we think about religious texts? Bell posits that "religious belief is based on faith, a description that tends to end rather than advance discussion." (15) He was attracted to the writings of Bishop John Shelby Spong, who had been called a "rogue priest" and a "nightmare" by a member of the conservative wing of the Episcopal Church. (16) During the 1980s, Bishop Spong began to question literal interpretations of the Bible and to espouse views some of the most traditional members of his church abhorred, e.g., gay rights, same-sex marriage, and women as bishops, to name a few. (17)

   2. Legal Realism

      What was Derrick Bell writing at this time? In 1980, he had just published the second edition of Race, Racism, and American Law, his groundbreaking casebook on race and law, (18) as well as Brown v. Board of Education and the Interest-Convergence Dilemma. (19) In this, his most famous article, he showed that legal breakthroughs for blacks tended to arrive only when the breakthrough also advanced the interests of elite whites, such as with Brown, which supplied a dramatic and short-lived victory for school desegregation in order to demonstrate the superiority of Western values to those of our opponents--Cold War Russians. (20)

   3. Narrative Scholarship

      The Harvard Law Review Supreme Court Foreword, which he titled The Civil Rights Chronicles, (21) arrived a few years later. In 1985, Bell created the mighty and mysterious character, Geneva Crenshaw, (22) his interlocutor who enabled him to put forth his radical views on race in narrative form. If Interest-Convergence met much resistance, The Civil Rights Chronicles provoked astonishment. Critique was in the air: critical legal studies had caused consternation in the legal academy, (23) deconstruction reigned in English departments, (24) and critical race theory was soon to anger the defenders of the meritocracy. (25)

      Like many committed Christians, Bell felt the need to reconcile the faith he acquired early in life with analytic reasoning and scientific understanding that one acquires with education. He found the work of Elaine Pagels whose path-breaking study of the Gnostic Gospels (26)-- especially the Gospel of Thomas--a way to reconcile the literal teachings of early Christianity, which he had learned as a child, with the numinous experience of the divine he felt as an adult. He acknowledged that many people cannot cope with the anxiety and uncertainty of an open-ended approach to religion that did not depend on following unquestioned rules. He rejected fundamentalism in its many guises, in religion and in law. (27)

      Though I do not presume to know what personal religious beliefs guided Derrick Bell's life, (28) I turn now to another faith that Bell examines: faith as racism and its connection to religion and law. About various religions, Bell says "beyond their adherence to views that surpass belief and can lead to much evil, these religions can proffer inspirational guidelines for honorable and...