The Christian jurisprudence of Robert E. Rodes, Jr

Notre Dame Law Review

Volumn 73, Issue 3, 1998, Pages 737-767

  Shaffer, Thomas L ^a,b  

^a UNIVERSITY OF NOTRE DAME   (United States)

^b Notre Dame Legal Aid Clinic   (United States)

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EID: 11844260795     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (126)

1. G.K. CHESTERTON, HERETICS (1905), reprinted in 1 THE COLLECTED WORKS OF G.K. CHESTERTON 37, 125 (David Dooley ed., 1986).
2. G.K. CHESTERTON, HERETICS (1905), reprinted in 1 THE COLLECTED WORKS OF G.K. CHESTERTON 37, 125 (David Dooley ed., 1986).
3. See Appendix, infra note 116, for a list of Rodes's publications.
4. ROBERT E. RODES, JR., PILGRIM LAW (forthcoming 1998).
5. Id. at xi-xii.
6. Recorded conversation of Michael J. Baxter, David B. Burrell, James T. Burtchaell, Drew Christiansen, Frederick J. Crosson, Patrick D. Gaffney, John H. Garvey, Richard H. Helmholz, Vinodh Jaichard, Mary Kate Kearney, Douglas W. Kmiec, Thomas Kohler, William M. Lewers, David T. Link, John R. Martzell, Anjelika Mueller, John T. Noonan, Jr., Mary Lee Noonan, Leo J. O'Brien, Gerard Powers, John H. Robinson, David Rodes, Jane Rodes, Jeanne Rodes, Robert E. Rodes, Jr., Maura A. Ryan, Thomas L. Shaffer, Paul Titus, Paul J. Weithman, and John Howard Yoder at the University of Notre Dame (March 25, 1995) (on file with author) [hereinafter Conversation].
7. RODES, supra note 3, at 11; cf. Karl Rahner, Utopia and Reality, 32 THEOLOGY DIG. 139, 142 (1985), quoted and discussed in Paul G. Crowley, S.J., Rahner's Christian Pessimism: A Response to the Sorrow of AIDS, 58 THEOLOGICAL STUD. 286, 299 (1997). We come from a beginning we did not choose and go to an end that is lost in God . . . . We never know with ultimate certitude how we relate with our freedom to the inescapable situation of our existence; we have to accept our beginning, give our ultimate love to the end we call God, and with hope leave whether or not we do it in God's hands. Id.
8. RODES, supra note 3, at 11; cf. Karl Rahner, Utopia and Reality, 32 THEOLOGY DIG. 139, 142 (1985), quoted and discussed in Paul G. Crowley, S.J., Rahner's Christian Pessimism: A Response to the Sorrow of AIDS, 58 THEOLOGICAL STUD. 286, 299 (1997). We come from a beginning we did not choose and go to an end that is lost in God . . . . We never know with ultimate certitude how we relate with our freedom to the inescapable situation of our existence; we have to accept our beginning, give our ultimate love to the end we call God, and with hope leave whether or not we do it in God's hands. Id.
9. RODES, supra note 3, at 11; cf. Karl Rahner, Utopia and Reality, 32 THEOLOGY DIG. 139, 142 (1985), quoted and discussed in Paul G. Crowley, S.J., Rahner's Christian Pessimism: A Response to the Sorrow of AIDS, 58 THEOLOGICAL STUD. 286, 299 (1997). We come from a beginning we did not choose and go to an end that is lost in God . . . . We never know with ultimate certitude how we relate with our freedom to the inescapable situation of our existence; we have to accept our beginning, give our ultimate love to the end we call God, and with hope leave whether or not we do it in God's hands. Id.
10. Conversation, supra note 5. "I learned it in college," he said. "I have no idea from whom." Id.
11. Second Vatican Council, Gaudium et Spes: Pastoral Constitution on the Church in the Modern World, in CATHOLIC SOCIAL THOUGHT: THE DOCUMENTARY HERITAGE 166 (David J. O'Brien & Thomas A. Shannon eds., 1992).
12. RODES, supra note 3, at 12.
13. Id.
14. Id.
15. Conversation, supra note 5.
16. AVIVAH GOTTLIEB ZORNBERG, GENESIS: THE BEGINNING OF DESIRE 376 (1995).
17. RODES, supra note 3, at 13.
18. Rodes acknowledges HUGH COLLINS, MARXISM AND LAW (1984), as his principal source on Marxist theory - along with Karl Marx & Friedrich Engels, Manifesto of the Communist Party, in BASIC WRITINGS ON POLITICS AND PHILOSOPHY 1 (Lewis S. Feuer ed., 1959).
19. Rodes acknowledges HUGH COLLINS, MARXISM AND LAW (1984), as his principal source on Marxist theory - along with Karl Marx & Friedrich Engels, Manifesto of the Communist Party, in BASIC WRITINGS ON POLITICS AND PHILOSOPHY 1 (Lewis S. Feuer ed., 1959).
20. Collins defines Marxist notions about false consciousness in terms of rulingclass ideology, citing two perspectives: (i) the epistemological: "[A]ll knowledge is false consciousness or at least . . . the present dominant conceptions of the world are false and only Marxism has truly understood reality"; and (ii) using the metaphor of reflection: "[C]ultural achievements, scientific ideas, religious and legal thought [are] all merely reflections of the relations of production." COLLINS, supra note 15, at 35-36. Marx himself (whom Collins quotes) held that social being determines consciousness, so that ideas, knowledge, and motivation are constructed in response to practical experiences. That is, it is experience that drives history, not ideas. See id. at 37. By the way, Marxist analysis has of late attracted surprising allies, not least of which are Wall Street and Pope John Paul II (before he became pope). See, e.g., John Cassidy, The Return of Karl Marx, NEW YORKER, Oct. 20 & 27, 1997, at 248; Jonathan Kwitny, Neither Capitalist Nor Marxist: Karol Wojtyla's Social Ethics, COMMONWEAL, Oct. 10, 1997, at 17.
21. RODES, supra note 3, at 31.
22. Rodes follows COLLINS, supra note 15, at 27-28, who treats class instrumental-ism as it applies to the law. For Marx, Engels, and Lenin, law was a creation of the state apparatus to further the ends of the ruling class.
23. RODES, supra note 3, at xv.
24. Id. at 3.
25. MILOVAN DJILAS, THE NEW CLASS (1957).
26. RODES, supra note 3, at 23.
27. Id. at 24.
28. See, e.g., EVGENY B. PASHUKANIS, LAW AND MARXISM: A GENERAL THEORY (Barbara Einhorn trans. & Chris Arthur eds., Ink Links 1978) (1929); JOSE PORFIRIO MIRANDA, MARX AND THE BIBLE: A CRITIQUE OF THE PHILOSOPHY OF OPPRESSION (1974). Rodes identifies what Djilas called the "new class" under socialism with the "managerial class" in so-called free-market economies. Rodes's historical analysis is similar in many ways to the analysis of "managerial capitalism" among students of business, most notably that of Alfred D. Chandler, Jr.: As technology became more sophisticated and as markets expanded, administrative coordination replaced market coordination in an increasingly larger portion of the economy. By the middle of the twentieth century the salaried managers of a relatively small number of larger mass producing, larger mass retailing, and large mass transporting enterprises coordinated current flows of goods through the processes of production and distribution and allocated the resources to be used for future production and distribution in major sectors of the American economy. By then, the managerial revolution in American business had been carried out. ALFRED D. CHANDLER, JR., THE ESSENTIAL ALFRED CHANDLER: ESSAYS TOWARD A HISTORICAL THEORY OF BIG BUSINESS 396 (Thomas K. McCraw ed., 1988). Chandler's analysis depends on size and complexity, and size and complexity depend on growth that is consequent on capitalistic success. He does not use class analysis, but he could. His "new class" would grow out of historical circumstance, the key economic development in which appears to be the decline of what he and other scholars call "market coordination." Another of these scholars, William Lazonick, focuses on what Rodes calls accountability and sees a significant shift in American business from discipline within organizations to the discipline of professional groups, so that experts move from enterprise to enterprise. They move between systems of accountability without leaving the managerial class; Lazonick appears to regret the transition: [T]he historical significance of managerial capitalism is that there was a time when the strategic managers of U.S. industrial corporations were also disciplined by their membership in their own business organizations and saw their own individual success as dependent on the long-term growth and stability of the organization as a whole. That also happened to be a time when U.S. industry dominated the international economy. William Lazonick, Controlling the Market to Corporate Control: The Historical Significance of Managerial Capitalism, in ENTREPRENEURSHIP, TECHNOLOGICAL INNOVATION, AND ECONOMIC GROWTH: STUDIES IN SCHUMPETERIAN TRADITION 153, 194 (Frederic M. Scherer & Mark Perlman eds., 1992). I am grateful to Professor Brian C. Shaffer, who brought this parallel to my attention; to Brian Nettleingham, who worked it out for me; and to Professor Nancy F. Koehn.
29. See, e.g., EVGENY B. PASHUKANIS, LAW AND MARXISM: A GENERAL THEORY (Barbara Einhorn trans. & Chris Arthur eds., Ink Links 1978) (1929); JOSE PORFIRIO MIRANDA, MARX AND THE BIBLE: A CRITIQUE OF THE PHILOSOPHY OF OPPRESSION (1974). Rodes identifies what Djilas called the "new class" under socialism with the "managerial class" in so-called free-market economies. Rodes's historical analysis is similar in many ways to the analysis of "managerial capitalism" among students of business, most notably that of Alfred D. Chandler, Jr.: As technology became more sophisticated and as markets expanded, administrative coordination replaced market coordination in an increasingly larger portion of the economy. By the middle of the twentieth century the salaried managers of a relatively small number of larger mass producing, larger mass retailing, and large mass transporting enterprises coordinated current flows of goods through the processes of production and distribution and allocated the resources to be used for future production and distribution in major sectors of the American economy. By then, the managerial revolution in American business had been carried out. ALFRED D. CHANDLER, JR., THE ESSENTIAL ALFRED CHANDLER: ESSAYS TOWARD A HISTORICAL THEORY OF BIG BUSINESS 396 (Thomas K. McCraw ed., 1988). Chandler's analysis depends on size and complexity, and size and complexity depend on growth that is consequent on capitalistic success. He does not use class analysis, but he could. His "new class" would grow out of historical circumstance, the key economic development in which appears to be the decline of what he and other scholars call "market coordination." Another of these scholars, William Lazonick, focuses on what Rodes calls accountability and sees a significant shift in American business from discipline within organizations to the discipline of professional groups, so that experts move from enterprise to enterprise. They move between systems of accountability without leaving the managerial class; Lazonick appears to regret the transition: [T]he historical significance of managerial capitalism is that there was a time when the strategic managers of U.S. industrial corporations were also disciplined by their membership in their own business organizations and saw their own individual success as dependent on the long-term growth and stability of the organization as a whole. That also happened to be a time when U.S. industry dominated the international economy. William Lazonick, Controlling the Market to Corporate Control: The Historical Significance of Managerial Capitalism, in ENTREPRENEURSHIP, TECHNOLOGICAL INNOVATION, AND ECONOMIC GROWTH: STUDIES IN SCHUMPETERIAN TRADITION 153, 194 (Frederic M. Scherer & Mark Perlman eds., 1992). I am grateful to Professor Brian C. Shaffer, who brought this parallel to my attention; to Brian Nettleingham, who worked it out for me; and to Professor Nancy F. Koehn.
30. See, e.g., EVGENY B. PASHUKANIS, LAW AND MARXISM: A GENERAL THEORY (Barbara Einhorn trans. & Chris Arthur eds., Ink Links 1978) (1929); JOSE PORFIRIO MIRANDA, MARX AND THE BIBLE: A CRITIQUE OF THE PHILOSOPHY OF OPPRESSION (1974). Rodes identifies what Djilas called the "new class" under socialism with the "managerial class" in so-called free-market economies. Rodes's historical analysis is similar in many ways to the analysis of "managerial capitalism" among students of business, most notably that of Alfred D. Chandler, Jr.: As technology became more sophisticated and as markets expanded, administrative coordination replaced market coordination in an increasingly larger portion of the economy. By the middle of the twentieth century the salaried managers of a relatively small number of larger mass producing, larger mass retailing, and large mass transporting enterprises coordinated current flows of goods through the processes of production and distribution and allocated the resources to be used for future production and distribution in major sectors of the American economy. By then, the managerial revolution in American business had been carried out. ALFRED D. CHANDLER, JR., THE ESSENTIAL ALFRED CHANDLER: ESSAYS TOWARD A HISTORICAL THEORY OF BIG BUSINESS 396 (Thomas K. McCraw ed., 1988). Chandler's analysis depends on size and complexity, and size and complexity depend on growth that is consequent on capitalistic success. He does not use class analysis, but he could. His "new class" would grow out of historical circumstance, the key economic development in which appears to be the decline of what he and other scholars call "market coordination." Another of these scholars, William Lazonick, focuses on what Rodes calls accountability and sees a significant shift in American business from discipline within organizations to the discipline of professional groups, so that experts move from enterprise to enterprise. They move between systems of accountability without leaving the managerial class; Lazonick appears to regret the transition: [T]he historical significance of managerial capitalism is that there was a time when the strategic managers of U.S. industrial corporations were also disciplined by their membership in their own business organizations and saw their own individual success as dependent on the long-term growth and stability of the organization as a whole. That also happened to be a time when U.S. industry dominated the international economy. William Lazonick, Controlling the Market to Corporate Control: The Historical Significance of Managerial Capitalism, in ENTREPRENEURSHIP, TECHNOLOGICAL INNOVATION, AND ECONOMIC GROWTH: STUDIES IN SCHUMPETERIAN TRADITION 153, 194 (Frederic M. Scherer & Mark Perlman eds., 1992). I am grateful to Professor Brian C. Shaffer, who brought this parallel to my attention; to Brian Nettleingham, who worked it out for me; and to Professor Nancy F. Koehn.
31. See, e.g., EVGENY B. PASHUKANIS, LAW AND MARXISM: A GENERAL THEORY (Barbara Einhorn trans. & Chris Arthur eds., Ink Links 1978) (1929); JOSE PORFIRIO MIRANDA, MARX AND THE BIBLE: A CRITIQUE OF THE PHILOSOPHY OF OPPRESSION (1974). Rodes identifies what Djilas called the "new class" under socialism with the "managerial class" in so-called free-market economies. Rodes's historical analysis is similar in many ways to the analysis of "managerial capitalism" among students of business, most notably that of Alfred D. Chandler, Jr.: As technology became more sophisticated and as markets expanded, administrative coordination replaced market coordination in an increasingly larger portion of the economy. By the middle of the twentieth century the salaried managers of a relatively small number of larger mass producing, larger mass retailing, and large mass transporting enterprises coordinated current flows of goods through the processes of production and distribution and allocated the resources to be used for future production and distribution in major sectors of the American economy. By then, the managerial revolution in American business had been carried out. ALFRED D. CHANDLER, JR., THE ESSENTIAL ALFRED CHANDLER: ESSAYS TOWARD A HISTORICAL THEORY OF BIG BUSINESS 396 (Thomas K. McCraw ed., 1988). Chandler's analysis depends on size and complexity, and size and complexity depend on growth that is consequent on capitalistic success. He does not use class analysis, but he could. His "new class" would grow out of historical circumstance, the key economic development in which appears to be the decline of what he and other scholars call "market coordination." Another of these scholars, William Lazonick, focuses on what Rodes calls accountability and sees a significant shift in American business from discipline within organizations to the discipline of professional groups, so that experts move from enterprise to enterprise. They move between systems of accountability without leaving the managerial class; Lazonick appears to regret the transition: [T]he historical significance of managerial capitalism is that there was a time when the strategic managers of U.S. industrial corporations were also disciplined by their membership in their own business organizations and saw their own individual success as dependent on the long-term growth and stability of the organization as a whole. That also happened to be a time when U.S. industry dominated the international economy. William Lazonick, Controlling the Market to Corporate Control: The Historical Significance of Managerial Capitalism, in ENTREPRENEURSHIP, TECHNOLOGICAL INNOVATION, AND ECONOMIC GROWTH: STUDIES IN SCHUMPETERIAN TRADITION 153, 194 (Frederic M. Scherer & Mark Perlman eds., 1992). I am grateful to Professor Brian C. Shaffer, who brought this parallel to my attention; to Brian Nettleingham, who worked it out for me; and to Professor Nancy F. Koehn.
32. RODES, supra note 3, at 25.
33. Id. at 35.
34. Id. at 36.
35. Richard Helmholz on the one side, and Rodes and John T. Noonan, Jr. on the other, had a passing exchange during the conversation on the way lawyers write history. Helmholz said: Historians criticize lawyers who write about the past. Commonly they say that they just see the past as precedent for the future. They miss all of the economic and social factors that really determine things. The law has never really been autonomous and so it . . . shouldn't be looked at in isolation. Conversation, supra note 5. He gave as a small example Rodes's account of Erastianism within the Church of England: Rodes "pushes the doctrine . . . further than it should be pushed [and] loses touch with the voices within the church that were calling for the independence of the church." Id. However, more generally, Helmholz does not criticize the way Rodes does legal history: I do think historians criticize lawyers for using legal history for precedents for the future, but I did not mean to say that Bob had done this. In fact, I think the reverse. His work shows a real sensitivity to the times about which he is writing. He does not look at law in isolation. This is one of the strengths of his work. Id. On the remark about Erastianism, Helmholz later added, "This is a matter of emphasis. It does not . . . suggest that Bob had fallen into the trap of simply looking at history as a large source of precedents for modern problems." Id. Helmholz later wrote that he regrets not having said more in the conversation about Rodes's history of the Church of England as "a real accomplishment (as a historical work)." Letter from Richard H. Helmholz, Ruth Wyatt Rosenson Professor of Law, University of Chicago, to Thomas L. Shaffer, Robert and Marion Short Professor of Law Emeritus, University of Notre Dame (Sept. 23, 1997) (on file with the author). In any event, Noonan defended his fellow lawyer-historian: "There are advantages in seeing an idea in its various forms [as 'vertical' historians do]. Horizontal historians usually miss the nuances, because they haven't seen the antecedents." And, in any event, "Most historians are inhibited about the law." Conversation, supra note 5.
36. RODES, supra note 3, at 57.
37. Id. at 58.
38. Id. at 61-62.
39. Id. at 64.
40. Id.
41. Id. at 68.
42. Id. at 66. I think of the fact that law schools are the most secular places - the places where ideological neutrality is the most prominent dogma - on university campuses.
43. Id. at 68.
44. Id. at 73.
45. Id. at 103.
46. Conversation, supra note 5.
47. RODES, supra note 3, at xii.
48. Conversation, supra note 5.
49. RODES, supra note 3, at 11 (quoting 1 Corinthians 2:9). One of the rare instances in which Rodes quotes scripture - from memory, of course.
50. Conversation, supra note 5.
51. See ROBERT E. RODES, JR., LAW AND LIBERATION 7-8 (1986).
52. RODES, supra note 3, at xiii.
53. ROBERT E. RODES, JR., THE LEGAL ENTERPRISE (1976).
54. RODES, supra note 3, at 89.
55. Id. at 10.
56. Id. at 29.
57. See RODES, supra note 46, at 119-23.
58. RODES, supra note 3, at 123.
59. RODES, supra note 44.
60. RODES, supra note 3, at 41.
61. Id. at 112.
62. Id. at 42-43.
63. Id. at 52.
64. Conversation, supra note 5.
65. Mark Van Doren tells of reading to his brother Carl from a draft of Mark's: [He] would lie on the floor, a pillow doubled under his handsome head, and read every word I had written since yesterday; and most of the time he would approve, though one night when he found that I had said "values" when the word meant nothing, as usually it does in literary criticism, he leaped to his feet and said with a kind of moan: "'Values!' Good God, you can't say 'values'! Decide what you mean and then say that!" THE AUTOBIOGRAPHY OF MARK VAN DOREN 99 (1958).
66. RODES, supra note 3, at 126.
67. Id. at 131.
68. Id. at 94.
69. Id. at 132.
70. Conversation, supra note 5.
71. Rodes later added: "In fairness to Bell, it should be pointed out that his 'proposal' wasn't a serious proposal; it was to make a point about racial attitudes." Id. 65 Id.
72. Id.
73. The test, as the actor Martin Sheen expresses it, is: "Would this decision help or hurt this person?" Actor Swings to the Left, SOUTH BEND TRIB., March 7, 1996, at C12. The question then is why this (poor) person, rather than that (better off) person, given that any use of power will help some people and harm others. Imitatio Dei is in my opinion a sounder theology than the preferential option seen as the consequence of a particular duty of care, based on relative need, or because we better-off people have something to learn from the poor. See generally Stephen J. Pope, Proper and Improper Partiality and the Preferential Option for the Poor, 54 THEOLOGICAL STUD. 242 (1993).
74. The test, as the actor Martin Sheen expresses it, is: "Would this decision help or hurt this person?" Actor Swings to the Left, SOUTH BEND TRIB., March 7, 1996, at C12. The question then is why this (poor) person, rather than that (better off) person, given that any use of power will help some people and harm others. Imitatio Dei is in my opinion a sounder theology than the preferential option seen as the consequence of a particular duty of care, based on relative need, or because we better-off people have something to learn from the poor. See generally Stephen J. Pope, Proper and Improper Partiality and the Preferential Option for the Poor, 54 THEOLOGICAL STUD. 242 (1993).
75. Conversation, supra note 5.
76. Id.
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. Letter from Robert E. Rodes, Jr., Professor of Law, University of Notre Dame, to Thomas L. Shaffer, Robert and Marion Short Professor of Law Emeritus, University of Notre Dame (July 26, 1997) (on file with author).
83. KARL BARTH, ETHICS 190 (Geoffrey W. Bromiley trans., 1981).
84. Conversation, supra note 5.
85. Id.
86. Id.
87. Rodes chose the English church because of its adherence to medieval Christendom. "Both the Reformation and the Counter-Reformation involved a return to first principles . . . whereas the English experience was a constant [effort] to update the original nexus, so that all of the changes were incremental. . . . I have the idea of church and state as an integral phenomenon." Id.
88. Robert E. Rodes, Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 CAP. U. L. REV. 413 (1979); Law, History, and the Option for the Poor, 8 LOGOS (USA) 61 (1985) and 9 COMMUNIO 321 (1982).
89. Robert E. Rodes, Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 CAP. U. L. REV. 413 (1979); Law, History, and the Option for the Poor, 8 LOGOS (USA) 61 (1985) and 9 COMMUNIO 321 (1982).
90. Robert E. Rodes, Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 CAP. U. L. REV. 413 (1979); Law, History, and the Option for the Poor, 8 LOGOS (USA) 61 (1985) and 9 COMMUNIO 321 (1982).
91. Conversation, supra note 5.
92. Id.
93. Id.
94. In my horseback understanding of Murray's project: He thought that naturallaw moral argument, from Catholic theology but not identified as such, could be a language for political dialogue with American Protestants. See generally JOHN COURTNEY MURRAY AND THE GROWTH OF TRADITION (J. Leon Hooper, S.J. & Todd David Whitmore eds., 1996), especially therein Jean Porter, In the Wake of a Doctrine: A Reassessment of the Doctrine of Natural Law as Developed in We Hold These Truths, at 24.
95. Rodes later noted, "I wrote Murray along these lines with a reprint of an article. I still remember with gratitude the kindness and generosity of his response, encouraging me to keep working on a line of thought so different from his own." Conversation, supra note 5.
96. Id. If each of these is in some circumstances the sort of organic community Ryan suggested, neither is for Rodes a place of moral discernment.
97. Id; see also J. Leon Hooper, Theological Sources of John Courtney Murray's Ethics, 57 THEOLOGICAL STUD. 19 (1996). But see Thomas Hughson, S.J., John Courtney Murray and Postconciliar Faith, 58 THEOLOGICAL STUD. 480 (1997).
98. Id; see also J. Leon Hooper, Theological Sources of John Courtney Murray's Ethics, 57 THEOLOGICAL STUD. 19 (1996). But see Thomas Hughson, S.J., John Courtney Murray and Postconciliar Faith, 58 THEOLOGICAL STUD. 480 (1997).
99. Conversation, supra note 5.
100. Id.
101. RODES, supra note 3, at 163-66 (quoting This Land is Home to Me, in RENEWING THE EARTH: CATHOLIC DOCUMENTS ON PEACE, JUSTICE AND LIBERATION 472 (David J. O'Brien & Thomas A. Shannon eds., 1977)).
102. Conversation, supra note 5.
103. See RODES, supra note 3, at 37-44.
104. Conversation, supra note 5.
105. Id.
106. "My approach is irretrievably Constantinian and will go on being." Id. The substance of this is, I think, in what Rodes calls Erastianism. But the use of Constantine is, as John Howard Yoder puts it, a symbol: During the Christian Middle Ages Constantine became [a] symbol. . . . The assumption [about him] tends to be that in order to continue being a sovereign, he [needed] to continue to act the way a (non-Christian) sovereign "naturally" acts, thereby creating some tension with what the latter prophets and Jesus taught about domination, wealth, and violence. JOHN HOWARD YODER, THE PRIESTLY KINGDOM 82 (1984). More specifically (in a note to the statement I quote here), Yoder writes that Constantine was "the first Roman emperor to tolerate, then to favor, and then to participate in the administration of the Christian churches." Constantine then became, for later centuries, a symbol hailed by "mainstream" theologians and historians from Eusebius onward, and regretted by "radical historians" who argued "that the change was not all for the good." Id. at 201-02 n.4. Rodes's genius in Pilgrim Law is to combine the claim he makes about being a Constantinian with a Marxist analysis of legal and economic history - to, in other words, turn the Emperor Constantine into a dissenter.
107. Conversation, supra note 5.
108. It probably began (begins) with a bid for the cooperative influence on which Erastian success depends: "[T]he mainline church's core problem: The Christendomesque aspiration to be a respected, mainstream cultural authority dominating every Main Street in a properly Christianized society." Christian Smith, Book Review, 54 THEOLOGY TODAY 258, 260 (1997). Rodes often seems to me to discount the danger that Christian faith would then disappear into secular culture. See, e.g., Charles R. Morris, A Tale of Two Dioceses, COMMONWEAL, June 6, 1997, at 11, 18 ("[O]nly 'hightension' religions prosper in America. Once a religion assimilates to the culture, it almost invariably diminishes into a social center or a kind of low-cost group therapy. There are now fewer Episcopalians in America than there are Catholics in Los Angeles."). This is a rather different risk than the one he identifies as the managerial class's excluding religion.
109. It probably began (begins) with a bid for the cooperative influence on which Erastian success depends: "[T]he mainline church's core problem: The Christendomesque aspiration to be a respected, mainstream cultural authority dominating every Main Street in a properly Christianized society." Christian Smith, Book Review, 54 THEOLOGY TODAY 258, 260 (1997). Rodes often seems to me to discount the danger that Christian faith would then disappear into secular culture. See, e.g., Charles R. Morris, A Tale of Two Dioceses, COMMONWEAL, June 6, 1997, at 11, 18 ("[O]nly 'hightension' religions prosper in America. Once a religion assimilates to the culture, it almost invariably diminishes into a social center or a kind of low-cost group therapy. There are now fewer Episcopalians in America than there are Catholics in Los Angeles."). This is a rather different risk than the one he identifies as the managerial class's excluding religion.
110. "Erastus [1524-83] was a Swiss theologian who taught that the church had no proper coercive jurisdiction independent of the civil magistrate. His name became attached to those Anglicans who were content with the substantial role played by Crown and Parliament in the affairs of their church." RODES, supra note 3, at 141.
111. Conversation, supra note 5.
112. Id.
113. Id.
114. RODES, supra note 3, at 142-43.
115. Conversation, supra note 5.
116. Id.
117. Id.
118. Id.
119. Id.
120. Id.
121. Rodes is kind enough to credit this point to me, and to refer to an anecdote or two I have written about, from my own years in a corporate law firm. See THOMAS L. SHAFFER, FAITH AND THE PROFESSIONS 131-40 (1987).
122. Thomas Kohler was less romantic about his memories of being a corporate lawyer: "As an associate, I had absolutely no power . . . . I once refused to sign a challenge to the conduct of a National Labor Relations Board election, and that almost ended my time there." He said he had two problems with Rodes's theory of using natural law as the measure of law practice: "One of them is, How do you talk to outsiders for whom these are not legitimate questions. . . . So that there is no telos for the person. . . . The second is, How do we recapture the natural-law tradition in a fashion such that we can begin to move forward with it?" Both questions, as well as the aspiration that natural law is a lingua franca for moral discourse in America, he said, are about how to talk to people (e.g., clients) "who are not convinced that you even have questions they want to hear." Rodes's answer to this was partly the sort of critique Powers identified, and partly an appeal to something more revolutionary: Our politics is based on two factions of the ruling class trying to appropriate the outrage of the whole society with the whole class. Somehow the corporate wing has been winning. But it is possible to go over the heads of the ruling class to the real people. . . . One way or another it has to be done. Conversation, supra note 5.
123. Id. David Burrell picked up on a couple of Rodes's illustrative anecdotes from in-house corporate law practice; he told about a telephone-company lawyer who threatened to resign over his client's mistreatment of women - and his client relented. "He saw himself as a kind of prophetic part of management - for the good of the company." Rodes accepted the story but pointed out that the particular situation of the lawyer in such a business story is that the lawyer has a discursive advantage: "Such a lawyer is in part exercising simple management responsibility, which any other officer could exercise. But, in addition, lawyers threaten with the law." Id.
124. Id.
125. Id.
126. RODES, supra note 3, at xiii.