Tag Archives: First Amendment

When law professors grouse behind closed doors, one of their favorite topics is how law students lack fundamental knowledge and skills they were supposed to get in high school and college.  According to prevailing wisdom, law students don’t know how to write a proper sentence, are ignorant of the most basic historical facts, have no concept of economics, and couldn’t construct a syllogism to save their lives.

Much of this is curmudgeonly hazing of the young by the old that is a regularized and institutionalized rite of one’s transition from youth to age.  “In the good old days, we actually learned things in school.”  Having passed the forty-year mark and hence being an official curmudgeon, I shall indulge in a little whining of my own.  My complaint is the lack of basic religious literacy among law students. 

To be fair, this is not just a phenomenon of law students or the young more generally. A 2010 Pew survey found an appalling lack of religious knowledge in the United States, which is by many measures a highly religious country. More than half of Protestants could not identify Martin Luther as a leader of the Protestant Reformation. And about four in 10 Jews didn’t know that Maimonides was Jewish.  Forty-five percent of Roman Catholics didn’t know that, according to church teaching, the bread and wine used in the Eucharist becomes the body and blood of Christ.  (Interestingly, atheists and agnostics scored higher than religious adherents in the survey).

It’s my sense that the mainstream of the American educational system eschews teaching about religion, not necessarily out of hostility, but out of a fear that religion is too hot and divisive a topic to handle in polite company.  The demise of universal Sunday School or comparable religious training and the diminished rigor of such training even where it exists have contributed to a state of affairs where most people know little about their own religion, much less the religious beliefs of others.

This dearth of general religious knowledge is borne out in my own experience as a law professor.  Comments drawing on religious teachings or metaphors—Moses’ smashing of the tablets, the parable of the Good Samaritan, etc.—are often greeted with blank stares, uncomfortable silence, or nervous giggles, as if I were making oblique references to early 80s Swedish disco music.  The occasional student will tell me outside of class that they enjoyed my references since they were a religion major in college, as if the key tenets of the religions that shaped Western civilization are today the sorts of esoteric and specialized knowledge committed to a few nerdy academics.

Unlike early 80s Swedish disco music (which is catchy but insipid), religious literacy remains key to legal literacy.  One cannot understand the development of the common law, the American constitutional order, or even the rise of the modern regulatory state without some conception of the underlying system of religious beliefs. 

One wonderful example:  In The Origins Reasonable Doubt:  Theological Roots of the Criminal Trial, Yale legal historian Jim Whitman shows that our current assumptions about the reasonable doubt standard in criminal cases have the history exactly backwards.  Today, everyone assumes that the reasonable doubt standard is meant to protect the criminal defendant—to give him every benefit of the doubt and erect barriers to over-zealous prosecutors.  Whitman shows that, historically, this story has it absolutely backwards.  The reasonable doubt standard developed not for the purpose of making prosecutions harder but to make them easier.  To understand why requires a basic understanding of Christian doctrine.  In eighteenth century England, jurors took seriously Jesus’ command, “judge not or you will be judged.”  The jurors feared that if they passed a wrongful judgment of conviction—keeping in mind that Jesus himself was wrongly convicted—they themselves would be eternally damned.  The crown finally started telling juries that if they found guilt beyond any reasonable doubt, then surely they wouldn’t need to worry about damnation.  So the reasonable doubt standard came into being not to protect the criminal defendant but to facilitate convictions.

Similarly, when my Contracts students struggle to understand the seemingly arbitrary differences between legal and equitable remedies that persist to this day, it’s essential for them to understand that the early Chancellors were Anglican clergymen—and all that implies for the moralistic and religious qualities of equity.  Why the unclean hands doctrine bars a request for an injunction but not one for damages makes no sense unless one understands the role of Christian theology in the development of the English common law and legal institutions.

Alas, helping law students make sense of these subtleties requires introducing some remedial religious education to law school, a project that relatively few law professors have the willingness or capacity to carry out.  While law schools are finding ways to make up for their students’ educational deficits in such areas as writing, economics, history, and logic, religion is largely confined to specialized first amendment courses which are less about the substance of religious doctrines than the ways that the law can avoid touching them.  Legal pedagogy is largely a religion-free zone.

As I said, curmudgeonly whining is a time-honored rite of passage . . .