Legal Commentary

Apropos of Rick Hills' post on "theophobia" and the myriad comments that follows, Joseph Vining (Michigan) has posted Legal Commitments and Religious Commitments, a comment on Steven D. Smith's Law's Quandary (HT Larry Solum).  Here's the abstract:

Person, individual, purpose, value, authority: Can these be realities for law without making a commitment to law into a religious commitment? Can the affinities between the world of law and the world of religious life be as close as they are without leading one to conclude, empirically or introspectively, that these dimensions of experience are the same? In a comment on Steven Smith's Law's Quandary, this essay suggests law has an ontology of its own. As Smith argues, the language of everyday life does not fully reach what is real for law, and law's ontology is clearly not limited to the ontology of science and mathematics. But we can think law need not live in an "ontological gap" unless absorbed into religious life. What is real for law is connected to what is real in religious life, but a commitment to law and a religious commitment are not the same. As dimensions of human experience, law and religious life may be not separate but nonetheless not the same.

I've only skimmed this, but it addresses, it seems to me, the legitimate point of discussion somewhere in between the die-hard religionists and the die-hard atheists not only about the ontology of the law, but its apparent teleology.  That is, in Law's Quandary, Steven Smith ponders why, when we are all acknowledged legal realists, do we still speak a language of the law that implies there is some author?  The implication of Smith's final chapter is that the author really is the Author (God) - indeed, Justice Scalia (not surprisingly) wrote a review in First Things suggesting Professor Smith not beat around the bush.  Professor Vining, on the other hand, is looking for a way of explaining this sense of meaning or purpose without having to concede one needs to have a religious discussion in which to do it. 

Some commenters styled this kind of inquiry "thin" religion, a characterization that bothered me.  My wife and I were once considering changing synagogues (ours was in the midst of significant administrative turmoil).   We talked to the Reform rabbi of the temple we were considering leaving and to the Conservative rabbi (a former president of the world Conservative movement) who had married us.  To the latter I had expressed some concern about the movement's positions to which I objected.  Both acknowledged the far more difficult task of what the commenters call "thin" religion - if you are not orthodox or fundamentalist or a professional philosopher, religious institutions are where you engage with issues of meaning, purpose, good, and evil.  The Conservative rabbi went further to suggest that all differences among non-Orthodox Jews boiled down to whether you were what he called a "searcher" or not.

I'm not sure where in the continuum from Vining to Smith to thin religion to thick religion you draw the line and say we not searching any more.  I do think there's collateral damage to that entirely legitimate intellectual discussion from the theist-atheist wars Rick's post brought out.