The Unbearable Lightness of Christian Legal Scholarship
David A. Skeel, Jr., 57 Emory L.J. 1471 (2008)
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When the ascendancy of a new movement leaves a visible a mark on American politics and law, its footprints ordinarily can be traced through the pages of America’s law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the elite law review literature in 1976, the year Newsweek proclaimed as the “year of the evangelical,” one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship had finally begun to emerge in a few areas. But even today, the scope of Christian legal scholarship is shockingly narrow for so nationally influential a movement.
This Article argues that the strange trajectory of Christian legal scholarship can only be understood against the backdrop of the fraught relationship between religion and American higher education starting in the late nineteenth century. As the nation’s modern research universities emerged in the 1870s, leading reformers began to promote nonsectarian, scientific approaches to scholarship. These developments increasingly excluded religious perspectives. But the disdain did not run in one direction only. For *1472 much of the twentieth century, American evangelicals absented themselves from American public life. Theologically conservative Christians who remained in legal academia operated under cover, a stance reflected in the absence of Christian legal scholarship except on church-state issues, in the Catholic natural law tradition, and in a handful of other areas.
The first half of the Article is devoted to this historical exegesis and to a survey of current Christian legal scholarship. The Article then shifts from a critical to a more constructive mode, from telling to showing, as I attempt to illustrate what a normative, and then a descriptive, contemporary Christian legal scholarship might look like.
