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What Law and Religion Can Teach Each Other About Public Discourse

What Law and Religion Can Teach Each Other About Public Discourse

October 19, 2015

Religion and law are two of the most important institutions through which people try to make sense of the world and how to live in it, and each can teach the other valuable lessons that would be beneficial in public discourse, said Professor Sherman Clark during a recent Michigan Law talk, "What's Law Got to Do With It?".

Clark, the Kirkland & Ellis Professor of Law, highlighted six areas in which lawyers can learn from those who think and speak about religion.

Soul. "One of the first things that any great religious tradition highlights for us is that material stuff isn't what matters," Clark said. "Whatever we're going to do about living a rich and full life together, it's not going to be about material comfort and success. It's going to be about what's beyond our material well-being. Law ignores this every day, but religious traditions do not."

Virtue. "Virtue relates to what you like, your attitude and priorities, what you think and believe, the kind of person you are. What religious traditions recognize, and what the law ignores, is that it is not the physical stuff that makes the most difference, but it's who you are."

Humility. "What I mean by humility is the constant awareness of how much we have to learn and how little we know," Clark explained. "Some of the stuff that really matters in our lives is going to be hard to understand. We're not going to be able to explain it fully, to embrace it and measure it. Law forgets that and tends to focus excessively on things that can be measured with precision. Religious traditions recognize that many of the things that are most important are things that can't be precisely measured."

Piety. "This is the capacity to care about, to demonstrate concern for, things that we don't understand fully. When you keep kosher, when you attend Mass, when you observe traditions that are in themselves meaningless or to someone else silly, you are communicating your concern for something beyond your care. It's a way of trying to figure things out."

Responsibility. "Law is about external responsibility and accountability," Clark said. "The kind of responsibility religious traditions are talking about is responsibility to yourselves. You are accountable to yourself—your soul—for facing up to the consequences of who you are and what you've done. I can't think of a better way to capture that than through the notions of sin, soul, and responsibility. They capture the deeply important sense that you are connected to what you've done, that even if no one holds you responsible, you ought to own up to it. Religious traditions encourage us to carry the moral responsibility for what we do."

Conversation. "What matters more than what we do to people is how we talk to people," Clark said. "I don't mean what we persuade them to do, I mean what we do to them when we are talking to them. It's about communicating respectfully so that we can get things done. The character of our discourse can be potentially damaging, or it can be elevating, and religious traditions understand that the way in which we talk to each other matters."

While the law can learn greatly from religious traditions, the relationship isn't one-sided, Clark noted. Religious traditions can also learn from the law, and perhaps the biggest lesson lawyers can teach those in religion is how to persuasively share their convictions in public discourse.

"Suppose you have a conviction about the rightness or wrongness of something—about the moral status of an unborn child, about the value of life in a death penalty context—and you want to make that part of your reasoning in politics," Clark said. "How can we communicate concerns that derive in part from our religious traditions in a broader public discourse? This is where we turn to what religion can learn from law. Lawyers know how to persuade, to reach people who don't agree with them from the outset. The key to persuasion is sympathetic engagement—me fully understanding and appreciating where you are coming from. When you get in the habit of seeing things from a wide range of views, you get better at seeing things in general and understanding the world better."

Clark suggested framing one's argument in this manner: "'I have an insight about the moral status of an unborn child, about the relevance of the death penalty, that my religious tradition has helped me to see,'" he said, which is an appeal to the insight of one's religious tradition, not the authority of one's tradition. "You want to make your religiously based arguments into persuasively based arguments in public discourse because they deserve weight, not because some person or institution says they deserve weight. That means you need to engage with the intellectual tradition of your faith, and you need to help somebody see what your religious tradition has helped you to see about how we need to live together. A good way to translate it would be, 'I heard the committee of millions of people who spent 2500 years thinking carefully about this in good faith and rigorousness, and perhaps you might want to listen to what we conclude.'"

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