Jeffrey R. Baker on Religion, Law, and Violence—Part One
In the weeks after the Newtown massacre, we saw some very good-and some not so good-public discussion of theology, suffering, and social ethics. In terms of national discourse, if there is such a thing, the urgent emotional turbulence of that massacre has faded (though of course for those more immediately touched, the trauma never really ends). The policy discussion has continued, but we are, I think, somewhat less willing to examine the basic assumptions that shape our understandings of law, of responsibility, of political community itself. These issues redound on theological anthropology, philosophy of law, theodicy. I’ve asked some of the people whose insight I respect most on these topics to speak about them from their own areas of expertise and research. We’ll hear from two distinctively oriented theologians in the next couple of weeks, but today we turn to a law professor-and friend of mine-whose expertise in domestic violence suggests interesting parallels with the law’s potential to mitigate the worst instances of violence.
I’ve lightly edited this exchange for readability and flow, but altered nothing of substance Prof. Baker has argued. The discussion is in two parts. This is the first. The conclusion will be posted on Wednesday, February 20.
Jeffrey R. Baker is the Director of Clinical Programs & Associate Professor of Law at the Thomas Goode Jones School of Law of Faulkner University in Montgomery, Alabama. He directs clinical programs, began the Elder Law Clinic, and teaches and supervises the Family Violence Clinic and the Externship program. He focuses his scholarship on social justice, lawyering and legal history. In Montgomery, Professor Baker serves with the Montgomery County Task Force on Domestic Violence.
In 2009, Professor Baker received the Montgomery Advertiser’s King Spirit Honors Award, “created to recognize young adults in the community who show the hope that King’s dream will continue for generations to come.” He also received the 2009 Justice for Victims Award from the Family Sunshine Center in Montgomery.”
In Fall 2013, Prof. Baker will begin his appointment as an associate professor of law and the Director of Clinical Programs at Pepperdine University School of Law in Malibu, California.
Chris Dowdy: Jeff, many thanks for being willing to take the time to work through this together. This particular topic requires not only time, but considerable emotional energy. So your participation is truly appreciated.
Jeff Baker: Chris, thanks for the invitation.
CJD: We’ve processed together elsewhere some of the more toxic theological and political ideas coming across our Twitter feeds, Facebook TimeLines, and so on; in that your insight as a law professor with deep spiritual commitments to justice has been helpful to me. So what I’d like to do in this space is sort of let you loose on these other…ah…less than helpful ideas, let’s say. I thought we might begin with the Huckabee clip, which has gotten passed around quite a bit and is representative of a certain strand of response.
I’d like to focus first on what Huckabee frames as a choice between making more laws and affecting the heart—he suggests in these horrible cases we cross into pastoral territory which the law just cannot reach:
“Ultimately, you can take away every gun in America and somebody will use a bomb. When somebody has an intent to do incredible damage, they’re going to find a way to do it… People will want to pass new laws, but unless you change people’s hearts, they’re our transition to the pastor side. This is a heart issue, it’s not something, laws don’t change this kind of thing.”
Does Huckabee actually have a point here about the law and its limitations? How would you push back on this?
JRB: Huckabee makes a point and raises an implicit question about the role of law in society and the effect of law on personal behavior. The fundamental question here is whether and how law affects people and their behavior and their beliefs. (Here, when I say “law,” I’m talking about statutes that arise from legislative action and the common law as developed in judicial opinions.) Huckabee’s point here is wrongly place for two reasons, one arising from the incoherence of his own politics, and the other arising from observable reality.
To be certain, the law cannot change “people’s hearts,” and the law cannot eliminate evil. That, however, is an utter red-herring; no one says otherwise. Rather, laws affect behavior and action, by coercion, social compact and moral authority. We do not outlaw hatred, but we do outlaw murder. We cannot change a racist heart, but we proscribe discrimination. We cannot convert a lustful, greedy, misogynistic heart, but we outlaw prostitution and human trafficking. A court will not convict a person of coveting, but courts convict thieves every day. Huckabee knows and believes this, and this is the first flaw in his argument.
Huckabee has no problem at all asserting that the law should proscribe, limit or regulate homosexuality, abortion or other social ills with the law, despite acknowledging then that the law could not conform the nature of a heart. Rather, he would acknowledge that the law ought to proscribe behavior he considers immoral, despite the inability to convert a heart or drive evil from the world. Thus, his position here is incoherent and inconsistent on that score. The real question is not whether we can change hearts or eliminate evil. The real question is whether society, through the means of politics, policy and law, deems a behavior or certain actions to be so dangerous, undesirable or unjust as to set a law against them. On point, since we are talking about whether to ban or regulate certain weapons and their use, the question is not whether we will make people stop harming others but whether we want to limit access to the tools used in the harming. Alternatively, we might ask whether the ability to possess, use and transfer these weapons is worth the danger they present to school children in the hands of someone bent on their destruction (or unconcerned about who may die). We may not be able to sway a murderer’s heart, but we certainly can affect the tools at his disposal.
The second problem with Huckabee’s statement is that he is objectively wrong. We outlaw or regulate hand-grenades, switchblades, automatic weapons, shoulder-fired missiles, improvised explosive devices, nuclear weapons, chemical and biological weapons, tanks and radio waves. We regulate cars and aircraft. We regulate shoes, lotion and underwear at the airport. Tim McVeigh used fertilizer and a Ryder truck, and now buying that much fertilizer without a farm would likely invite an interview with the FBI. It is simply not true that the Newtown murderer would have used a bomb to blow up the school. It is simply not true that he would have somehow found a howitzer to shell it. He used the weapons at hand, the weapons his mother bought legally. Yes, people will be violent. People will be cruel. People will murder and maim. Even so, we can and do make the means harder to obtain, and we make the means harder to obtain quite successfully. Automatic machine guns are illegal, and the shooters in Aurora and Newtown did not use them. Rocket-propelled grenades are illegal, and they were not the weapon of choice, because they are much, much harder to obtain. The FBI has been quite successful in keeping terrorists from bombing on American soil since 2001, because gathering the materials for a bomb and assembling it are illegal and because law enforcement is pretty good at enforcing the law.
We actually can make AR-15s illegal to own, illegal to transfer, illegal to shoot. Short of that, we could require licensing, contingent on training and certification. Short of that, we could keep registries of gun ownership and then hold owners liable for the use of their weapons in a crime like this. We are not faced with a binary choice, to either flood the world with weapons or to ban them altogether. That choice is a failure of just and righteous imagination. Huckabee is wrong because laws actually do “change this kind of thing.” The Newtown shooter very likely would not have used a more destructive weapon had his been illegal; he almost certainly would have used far less lethal weapons.
With far less lethal weapons, he would have had much more trouble accessing the school and killing a score of kids in five minutes. The tools made him more lethal, and we have the ability to regulate and limit access to a weapon made for war, not made for self-defense. We are not talking about preventing murder; we are talking about preventing mass murder. It is empirically true that countries that have banned or regulated assault weapons have seen the incidents of crimes with assault weapons fall. It is empirically true that states with fewer gun restrictions have more gun crime. Of course, this is true; it is the effect of law.
The law works to affect people’s behavior, and you know this is true if you drove to work today on the right side of the road. The question is not whether we can ban or regulate weapons of war. The law bans and regulates all manner of combat weapons. Rather, the question becomes whether we are interested or willing to ban and regulate them. Thus, to your question about the limits of law, the law cannot change hearts, but the law can change behavior. Huckabee conflates these questions in a disingenuous posture. Because the law cannot change hearts does not mean that we cannot and should not limit behavior we find to be immoral, unjust or dangerous. We do it all the time, and we very often do it well.
CJD: This is too short. Give me something to work with.
JRB: Said the pot to the kettle.
CJD: I kid Jeff, this is a very clear case against of the claims of overreach that underlie Huckabee’s hand-wave to personal responsibility/pastoral care. Generalizing here a little from a theological perspective, this goes back to distinction between Augustinian and Thomist approaches to law, I think—where Augustine would basically characterize human law as restraint of sin and Aquinas would understand it as an inducement to become somewhat more virtuous (though Aquinas is nuanced on this). You seem to be saying that, both in principle and in terms of our current practice, we don’t have to depart from an account of law as restraint in the case of regulating weapons of war. Is that a fair summary of your position?
The question of rights to weapons seems quite distinct from this conversation, actually, though it has theological undertones (and overtones) in its own way. But before we turn to the surprisingly prevalent notion of God-given rights to guns, I wonder if you might say a little bit more about the possibilities of restraint. Specifically, what analogies do you see when it comes to domestic violence law, which seems historically to have provoked similar objections about the futility of law’s overreach?
JRB: Domestic violence and the law’s response to domestic violence are excellent laboratories for this question (and my field of inquiry and law practice, so well done!). Often, as you note, critics may question whether the law can or should intervene in intimate relationships, namely marriages, either because those relationships are beyond the reach of rightful law or merely because the law is futile to intervene and prevent domestic violence. Both of those objections have delayed and shaped law reforms for a century, but we can see with data and experience that the law has been and is very effective in addressing domestic violence. (At the risk of self-promotion, but to bolster the dialogue, I write at length on this in an article in the Cumberland Law Review. I specifically write about the limits and potential of law in intimate relationships in the Journal of Law and Family Studies and in a forthcoming article in the Loyola Law Review.)
For centuries in old English common law “coverture” was the law of marriage, that is, that a wife’s legal identity ceased and was dissolved into her husband’s. Thus, a wife had no standing, no legal capacity, when married but depended on her husband for legal existence. She was, literally, his ward. Ancillary to this was the doctrine of “chastisement” which held that a man could discipline his wife, even physically, in order to keep her from drawing him into legal liability by her actions. As a man had the legal authority to discipline children and servants, so he could discipline his wife. Chastisement came with a rule of reason to prevent cruelty, however, the “rule of thumb,” that a man could not beat his wife with a rod larger than the diameter of his thumb. Thus, we see legal authority for permissible wife beating, and when sheltered behind home sovereignty, where a “man’s home is his castle,” we see how culture and law combine to shelter domestic violence from legal intrusion.
England and America effectively abrogated chastisement by the early 19th century, but coverture was the law of the lands for a long time. (In fact, the U.S. Supreme Court did not formally reject the common law doctrine of coverture until 1992, long after it ceased to exist in practice in the states.) Even so, in the 1860’s, a state supreme court found that it should not intervene in a case of wife battery because the “trifling violence” was not worth the damage of legal intrusion into the private matters of a home.
Coincident with universal suffrage, naturally, this began to change…[and] this history is illustrative of the problem and potential you suggest in your question.
Look for the conclusion on Wednesday. If you have any comments or questions for further discussion, please do use the “Questions” link above.