Cain's Law

Abstract

In the heady days of Critical Legal Studies (CLS) conferences, we rarely discussed Bible stories. I am going to start, however, with Cain and Abel, or at least with an amateur Augustinian take on Cain and Abel. As Oliver O'Donovan has pointed out, the story provides a useful metaphorical frame for considering the task of human judging. My goal in starting with this story, and then moving on to some Christian theology, is to suggest that the classical period of the High Middle Ages, which is Steven Smith's primary historical reference point, has never been the only Christian view of how divine justice relates to human judging. While many did strive to find continuity between human law and the law of God during that classical period, a long and vibrant Christian tradition instead stresses rupture and discontinuity. That tradition's more deconstructive zeal, now revived by post-modernist forays into Christian theology, is not unlike the old CLS spirit, despite the Christian vocabulary. Many in CLS would have found that downright peculiar.