That's why it's always refreshing to come across a piece of Christian scholarship pointing out an instance where, long before secular scholars began grappling with an issue, Christian scholars were already on the scene. Disclosing Tilt, by David Caudill, a young Reformed scholar and a professor at Washington and Lee University Law School, is one such work. In it he demonstrates how Critical Legal Studies ["CLS"], a controversial Neo-Marxian critique of law currently "hot" in legal theory, utilizes a methodology for critical analysis of legal "ideology" similar to the methodology of worldview analysis previously developed by Calvinist scholars in the Dutch, Kuyperian tradition.
This is not a book for the casual reader. Caudill's study presumes a minimum familiarity with the vocabulary of legal theory and the major schools of legal thought. A little knowledge of major players in contemporary legal theory and literary criticism is also helpful, in order to fully appreciate why he interacts with these critics. Unless one is (like me) a connoisseur of end notes, Caudill's adoption of the law review practice of footnoting virtually every sentence can be vexing. However, this makes the end notes, along with his fine bibliography, a valuable resource for further study.
Aware of the inherent ambiguity in the word, "ideology," Caudill begins his exploration of the role of ideology in law by tentatively adopting a broad, positive definition of ideology as the "beliefs, values, concepts, ideas, myths, images, and views of the world that social groups exhibit and by which individuals live and pattern their lives" (p.5).
Turning next to illustrations of legal ideology in operation, Caudill acknowledges that the majority of legal scholars engaged in the ideology critique of legal practice hail from the Marxist tradition and thus "find in established law a foundational tilt' in favor of an empowered class or the capitalist system...." (p. 6) Thus, frequent targets of their radical analysis are labor law, criminal law, tort law, and contract law.
However, Caudill argues that the critique of legal ideology "...is not, or should not be, a leftist phenomenon." (p. 8) Therefore, shunning the radical critique, he discusses three everyday examples of contemporary legal disputes that reveal: (1) the role of ideology in interpreting treaties governing commercial transactions between private United States businesses and Soviet-bloc entities, (2) ideology operating in laws governing unmarried cohabitation, and (3) ideology latent in recent court decisions regarding Creation-Science.
Caudill easily demonstrates the role ideology plays in U.S./U.S.S.R. trade agreements and the confusion this causes as each side interprets treaty provisions according to their its political and economic perspective. However, far less satisfying is his discussion of the operation of ideology in marriage laws. Caudill goes beyond the descriptive task of revealing hidden assumptions in these laws to making a normative call for their change predicated on the fact that unmarried cohabitation is now "more popular and more socially acceptable" and there has been a "fundamental shift in values" relating to marriage. Sadly, he makes no trenchant critique of the ideology of law implicitly operating in his own call for change.
Caudill's demonstration of ideology operating beneath the surface of recent court opinions regarding Creation-Science is nothing short of superb and is must reading for anyone studying this issue. Caudill convincingly demonstrates how the hidden ideological assumptions of the judges who wrote these opinions doomed Creation-Science proponents at the outset from receiving an objective, impartial hearing on the merits of their case. By naively adopting the traditional positivist or "received view" of science, the judges ignored the pre-theoretical or "religious" assumptions operating in science itself. Thus, the judges arbitrarily bifurcated between what they considered "hard" science and "soft" tenants of religious faith, finding Creation-Science predicated upon the latter.
In his chapter exploring the history and heritage of the Critical Legal Studies movement, Caudill avoids the temptation, common in some quarters, to dismiss CLS as simply a cadre of nihilistic Marxist scholar-vandals out to "trash" the law. Although several themes recur in CLS writings -- the idea that law legitimates oppressive social orders, the call for "empowerment" of oppressed groups, the invalidity of economic analysis of law, the incoherence of liberal legal theory, the claim that law and legal institutions are not politically neutral -- Caudill finds that, "Describing with precision the essence of CLS is probably impossible because the sources of CLS scholarship are so various and divergent." (p. 40). Nevertheless, the influence of several intellectual movements is apparent, the chief ones being: Legal Realism, Kuhn's Paradigm theory, the Sociology of Knowledge (Wissenssoziologie) as represented by Mannheim, The Frankfurt School of Critical Theory, and Derrida's literary Deconstructionism.
Caudill finds two "vaguely distinct" versions of the CLS critique of ideology in law emerging from the CLS canon. The first, which he calls the "normative" critique, "...assumes that the critical enterprise leads to true consciousness, justice, and a better world." (p. 67). This version, which often endorses revolution and violent change, he finds impoverished because it uncritically assumes the self-evidence of its own leftist ideology. The second version, which he dubs the "methodological" critique, "...assumes the simpler goals of awareness, communication, and perhaps a better world if aware/communicating people can create one." (Ibid.) Caudill finds this methodological critique, wherein change occurs by a nonviolent paradigm shift, the most valuable contribution of CLS.
The centerpiece of Caudill's study is his discovery of similarities between CLS's methodological critique of ideology in law and the worldview critique carried on by Reformed followers of the Dutch Neo-Calvinist legal philosopher Herman Dooyeweerd. While admitting the irony of finding similarities between two such antithetical movements, CLS with its roots in Neo-Marxism and the Dooyeweerdians with their roots in Calvinist theology, Caudill finds that similarities exist in the methodology and goals of both groups.
CLS's methodological critique of legal ideology aims to demonstrate the myth of political or moral neutrality in law. "Legal theory is shown to reflect a particular set of tacit values and a particular vision of society that together form an ideology; the ideology constitutes our world by legitimating and justifying its institutions." This "[d]isclosure of tilt is the beginning of the genuine debate concerning the proper role and operation of law in society" (p. 68).
In like manner, Dooyeweerd and followers of Dooyeweerd's Philosophy of the Cosmonomic-Idea aim to demonstrate that the popular distinction between religious people and those who are simply rational or neutral regarding faith" is a myth, because "belief or faith is at the foundation of all human thought" (p. 87). "Religion," in the broad sense of an ideological or worldview commitment is internalized as to go unnoticed and unchallenged, is shown to form the basis for all theoretical thought. Thus, true neutrality or objectivity is a myth in all thought, of which legal thought is, of course, a subset.
Neither the CLS critique nor the Philosophy of the Cosmonomic-Idea, then, view ideology as something to be eliminated through critical enlightenment; both schools recognize the impossibility of this. Rather, the goal is "to identify the essential starting points for all theory and practice, that can only be revised or replaced by another ideological framework" (p. 105). According to Caudill, the nobility of this endeavor is that "no one has an edge in appealing to logic, common sense, or nature'" at the level of one's faith-based ideological or worldview commitments and the result is an "egalitarianism among faiths" (p. 90; 104). Significantly, although he doesn't fully develop the argument, Caudill contends that dialogue amongst competing worldviews is possible.
If only the general framework of the the ideology critique of law propounded by CLS and the Philosophy of the Cosmonomic-Idea is correct, what is its practical implications for Christians? Consider the following excerpt from a recent Christian book::
...for the purposes of civic debate and legislation [Christians] will not appeal to religious authority...in court and in much of civic activity, we can leave our Bibles closed and yet find means of expressing biblically informed truths according to rules on which persons of various religions can agree....If we have identified a biblical principle that should bear upon public policy, that principle will be capable of defense on ground in addition to the sheer appeal to the authority of Scripture.If the general strategy of the ideology critique is correct, then although these statements suggest a course of action that might be tactically expedient, at a foundational level they are simply wrong. Such statements constitute either a wishful appeal to a non-existent objective, neutral standard or a call for Christians to shelve their own worldview when they enter the public arena and to participate in the political sphere only while operating out of an ideology alien to their own. If the ideology approach is correct, then Christians participating in the public arena must not conceal their worldview but proclaim and defend it.