Erastian and Sectarian Arguments in Religiously Affiliated American Law Schools

The legal education establishment in the United States some time ago gave up discouraging religiously affiliated law schools. Its support for them now, however, is conditioned on their approaching religious affiliation in a manner that is seen as consistent with the dominant American attitude toward religion—that religion is a private affair and that public moral issues, including issues of jurisprudence and professional ethics, are secular issues, to be talked about in secular language, pursuant to secular principles, and in a secular style. I begin here by considering the requirement of the American Bar Association, in its Standards for the Approval of Law Schools, that religiously affiliated law schools be diverse in faculty, staff, and student body. That requirement seems part of the secular condition, although it also seems to leave room for what I regard as a non-secular, theological response. Because the ABA's policy is (unwittingly, no doubt) theological, a theological response is possible. Indeed, the ABA's diversity requirement expresses (or at any rate parallels) a position similar to those taken within the religious groups that provide legal education, on what the people of God should be. There are three positions in the Christian theology of legal education: that the presence of the Church in the civil community should be a secular presence; that its presence should be Erastian; and that its presence should be sectarian. I do not accept the secular position, and argue that the Erastian position tends to become, perhaps despite itself, secular. I tend to favor the sectarian position. I believe an ideal legal education conducted in the Church would encourage distinct and religious views about the use of state power in the law and styles of lawyering

Political science · American Constitutional Law and Politics · Law · Multicultural Socio-Legal Studies