Faith and Law: How Religious Traditions from Calvinism to Islam View American Law 9780814772928

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Faith and Law

Faith and Law How Religious Traditions from Calvinism to Islam View American Law

edited by

Robert F. Cochran, Jr.

a New York University Press new york and lond on

new york universit y press New York and London www.nyupress.org © 2008 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Faith and Law : how religious traditions from Calvinism to Islam view American law / edited by Robert F. Cochran, Jr. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-8147-1672-4 (cloth : alk. paper) ISBN-10: 0-8147-1672-5 (cloth : alk. paper) ISBN-13: 978-0-8147-1673-1 (pbk. : alk. paper) ISBN-10: 0-8147-1673-3 (pbk. : alk. paper) 1. Religion and law—United States. 2. Christianity and law. 3. United States—Religion. I. Cochran, Robert F., 1951– BL65.L33H69 2007 201'.7—dc22 2007027008 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America c 10 9 8 7 6 5 4 3 2 1 p 10 9 8 7 6 5 4 3 2 1

To Denise, Christina, Robbie, and Kevin for bringing so much joy to my life

Contents

Acknowledgments Introduction

xi 1

Robert F. Cochran, Jr.

part i 1

The Augustinian Framework: The City of God and the City of Man Augustine

11 13

Augustine and Law Elizabeth Mensch

part ii 2

Reformation Faiths

Calvinists

31 33

Neo-Calvinism and Science: A Christian Perspective on Post-Daubert Law/Science Relations David S. Caudill

3

Lutherans

48

A Lutheran Perspective on Legal Ethics Robert W. Tuttle

4

Anabaptists

64

Anabaptist Law Schools Thomas L. Shaffer, in conversation with John Howard Yoder

5

Baptists

77

Toleration and Dogmatism: The Contribution of Baptists to Law Timothy L. Hall

vii

viii Contents

part iii 6

Home-Grown American Faiths

Evangelicals

89 91

Evangelicals, Law, and Abortion Robert F. Cochran, Jr.

7

African-American Churches

116

“Go Down, Moses!”: Law through the Eyes of the African-American Religious Tradition Anthony V. Baker

8

Churches of Christ

130

Reason, Freedom, and Apocalyptic Vision: Churches of Christ and the Practice and Teaching of Law Thomas G. Bost

9

Latter-Day Saints

149

Footings of Mormon Conceptions of Law: Vantage Points for Understanding Constitutional Law and the Law of Religious Freedom W. Cole Durham, Jr., Michael K. Young, and Brett G. Scharffs

part iv 10

Catholicism

173

Catholic Natural Law

175

Sovereign States? The State of the Question from a Catholic Perspective Patrick McKinley Brennan

11

Catholic Social Thought

195

Catholic Social Thought and Immigration José Roberto Juárez, Jr.

part v 12

Judaism

Orthodox Jews Self-Incrimination in Jewish Law, with Application to the American Legal System Samuel J. Levine

209 211

Contents ix

13

Reform Jews

223

Reform Judaism, B’tzelem Ehlohim, and Gay Rights Ellen P. Aprill

part v i 14

New Immigrant Faiths

Hindus

239 241

A Hindu Perspective on Euthanasia and Physician-Assisted Suicide Kisor K. Chakrabarti

15

Buddhists

254

Interdependence and Victim Compensation: Views from Buddhist Tibet and Post-9/11 United States Rebecca R. French

16

Muslims

272

Enhancing Democracy, Respecting Religion: A Dialogue on Islamic Values and Freedom of Speech Anver M. Emon

Contributors Index

291 295

Acknowledgments

In 2000, my then dean Richard Lynn and I attended the conference of the Religiously Affiliated Law Schools at St. John’s University. At the conclusion of the conference, Howard Eisenberg, the RALS director and Marquette dean, rose to ask if one of the member schools would host the next conference. Dean Lynn turned to me and asked, “Would you organize it if Pepperdine hosts it?” I said I would do so if he gave me a reduced teaching load for one semester. He said, “Done,” and volunteered us for the conference. The entire exchange took seven seconds. What emerged was a conference entitled “Viewing Law through Eyes of Faith.” It explored the secularization of the legal academy and the insights that people from various religious faiths might bring to law. A part of the conference was a roundtable discussion among people from different religious traditions (including twelve who wrote essays for this book). This book grew out of that conversation. The conversation continued during the editing process. At times the conversation involved me pressing authors to explain their beliefs in ways that someone from the outside (like me) could understand. Throughout the process, the conversation was conducted with grace, good cheer, and a deep desire that our readers might have greater understanding. I would like to thank Bill Brewbaker, Os Guinness, David Lyle Jeffrey, George Marsden, and Dallas Willard for reading portions of this book and offering helpful suggestions. Thanks as well to Marie Failinger, John Witte, and Frank Ravitch for suggesting possible chapter authors and to Deborah Gershenowitz and Salwa Jabado of NYU Press for their wise advice and gentle encouragement. In addition, thanks to Pepperdine’s Institute on Law, Religion, and Ethics, and to deans Richard Lynn, Charles Nelson, and Ken Starr for their support of this project. Finally, many thanks to my research assistants, Jeff Hassler, Jeff Wyss, Lori Eropkin, and Land Murphy. They responded with creativity, intelligence, skill, and diligence to my every request. xi

Introduction Robert F. Cochran, Jr.

In his book American Lawyers and Their Communities, Thomas Shaffer envisions a downtown street. On one side of the street is a house of worship; on the other is a courthouse. According to Shaffer, law schools train lawyers to look at the religious congregation from the courthouse—that is, to analyze the problems that the religious congregation creates for the law. Law schools ignore the possibility that there might be a view of the courthouse from the house of worship—that the law might create problems for the religious congregation. Prophetic witness is discounted in law teaching. Our part of the academy, more than any other, has systematically discouraged and disapproved of invoking the religious tradition as important or even interesting. It ignores the community of the faithful so resolutely that even its students who have come to law school from the community of the faithful learn to look at the [religious congregation] from the courthouse, rather than at the courthouse from [the religious congregation].

Shaffer encourages lawyers to “walk across the street and look at the courthouse from the church.”1 In the United States, of course, there are many churches and many synagogues, and increasingly many temples and mosques, at varying distances from the courthouse, with quite different perspectives on it. In this book, authors from a wide variety of religious traditions walk across the street (or down the street or across the railroad tracks) and look at the courthouse from our religious congregations. Our primary goal is to be faithful to our own religious traditions. Most of us believe in a God who is concerned about the things of this world, 1

2 r o b e r t f. c o c h r a n , j r .

and we want to be faithful to his teaching. We write in the hope that readers will think more deeply about the way that their own religious traditions view law. Each author provides a summary of the way that his or her religious tradition looks at law and the way that his or her religious tradition might approach one legal issue currently facing the United States. Few of us would claim to present the approach that our tradition takes on the issue we address. We acknowledge that within each of our religious traditions there are other people who would reach different conclusions. There are different views of the courthouse from within each religious congregation.

A Prophetic Voice Though our primary goal is to be faithful to our own traditions, we also believe that bringing religious perspectives to law will be good for law. While we acknowledge that great evil can be done in the name of religion —most of us confess that great evil has been done at times in the name of our own traditions—we believe that the religions that are likely to influence American law are likely to have a positive influence on law. The central moral teaching of most faiths is something like the Golden Rule—“do unto others as you would have them do unto you.” The moral teachings of our religious faiths encourage justice and care for the neighbor, and though they may have greatly differing visions of justice and care, those goals are a better starting point for law than the likely alternative, selfishness. Religious understandings of law are especially important for the sake of the powerless. On many issues, from slavery to child labor to civil rights to immigrant rights, religious congregations have served (with others) as a check on the state. Some of history’s greatest social evils arose because religious believers failed to view law through the critical vision of their faith. In Nazi Germany and the Jim Crow South, the great fault of many Christians was their failure to act on the basis of their religious values. If law is to be humane, it may need divine guidance. At times our traditions have served as a corrective to the state, but at other times they have served as tools of law. There is a danger that religious faith will be co-opted by the state. It is important that religious congregations remain independent—that they remain able to serve a prophetic role to the state. We need authentic religious faith to act as a check on civil religion (a “faith” that too often merely supports the status quo).

Introduction 3

There is a danger that in the prayers and songs for our nation, “stand beside her” will drown out “and guide her, through the night with the light from above.”

Religious Convictions in the Public Square? Some argue that basing laws on religiously grounded values is incompatible with liberal democracy. For example, John Rawls suggests that citizens set aside every aspect of their personality before considering public policy issues.2 Such proposals are contrary to our history and undemocratic. The founding of the United States was based on the belief that tyranny violates “the laws of nature and of nature’s God.”3 Tocqueville recognized a few decades later that religion is the foremost of our political institutions. Under Rawlsian rules of public discourse, we would have been deprived of Lincoln’s second inaugural address and Martin Luther King, Jr.’s “Letter from a Birmingham Jail.”4 It is also undemocratic to suggest that religious people should enter the public square as other than who they are. In a democracy, law is supposed to be the product of a conversation based on who people really are. Religious discourse may be heated, but identifying differences and addressing them frankly is what democracy is all about. To exclude some people from the discussion is to abandon the hope of democracy. As Kent Greenawalt has noted, at the roots of positions on all sides of many public policy matters are nonrational convictions.5 To exclude holders of religious convictions, but not holders of secular convictions, would be mere prejudice. Some argue, however, that though it is appropriate to base one’s positions on religious convictions, religious language should stay out of the public square.6 Public argument should take place in a form of moral Esperanto, a language that is accessible to all citizens. For some, this is a matter of democratic conviction—religious discourse excludes those who do not share the religious language. For others, the argument for secular language is pragmatic—we are unlikely to persuade fellow citizens in language that they do not understand. But limiting public discourse to secular terminology will severely limit the conversation in the public square in several ways. First, such a limit will exclude some people from the public square. Some citizens are not bilingual; some never learned to speak Esperanto. To exclude those citizens who cannot express their ideas in religiously neutral terms would be

4 r o b e r t f. c o c h r a n , j r .

inconsistent with the democratic desire to include all citizens in the conversation. In addition, requiring citizens to speak a form of moral Esperanto in the public square will limit the sort of ideas that can be expressed. Some deeply held viewpoints can be expressed best in religious terms. Just as Esperanto was based on European language, moral Esperanto generally is the language of the European Enlightenment—the language of rights, equality, and individualism. It is not neutral language, and he who controls the language controls the debate. Secular public policy discourse generally becomes a matter of “rights talk”7 and utilitarian balancing of material interests. Ideas always lose something when they are translated from one language into another. For example, it is difficult to justify the dignity of the individual person in other than religious language—the person is sacred, a child of God, a bearer of the divine image. A “secular language only” rule might ultimately diminish the value of the person. Finally, there is a danger that requiring that all argument be expressed in secular language will limit the development of religious understandings of law within congregations. If some ideas are not easily expressed in secular language, a requirement that people speak only in secular language will lead religious groups to develop only those aspects of their tradition that can be expressed in such language. We agree that religious argument should aspire to express itself in ways that can be understood by others—indeed, that is one of the purposes of this volume—but it is better that the public understand the underlying religious bases for an argument than that such justifications be stifled. We may need to understand one another at a deeper level in order to find common ground or a basis for compromise.

Candid Discourse and Mutual Understanding We write in the hope that this book will generate conversations among those of various religious traditions and that those conversations will yield mutual understanding. Thoughtful commentators have expressed varying views of the possibilities of such a conversation. As George Marsden has noted, “Ultimately we do not solve all of the rules of pluralism by better communication and more ‘dialogue.’ The more we understand each other the more likely we are to also discover some fundamental differences.”8 Alasdair McIntyre notes, “From our rival conclusions we can argue back

Introduction 5

to our rival premises; but when we do arrive at our premises argument ceases and the invocation of one premise against another becomes a matter of pure assertion and counter-assertion.”9 But it may be that there will be more agreement on premises than McIntyre suggests. C. S. Lewis identifies a common Tao, a set of moral values shared across cultures. As he demonstrates, there is broad agreement among cultures on many basic issues of morality.10 Many common values are so well established (e.g., the value of human life, the dignity of the human person) that we overlook them. As Jeffrey Stout notes, “overlapping consensus” does a substantial amount of “ordinary justificatory work.”11 When we look at our present disagreements, we may see little hope of resolution. But when we look at our history—the civil rights movement being a notable example—we can see areas where common understandings have emerged. As Anthony Cook said of Martin Luther King, Jr., “He showed us that as we go deeper into our traditions, we discover commonalities.”12 Some religious traditions have been persuaded by the others. Calvinists came to support religious freedom; Catholics came to support democracy. Our history also shows, however, that these conversations are not easy. It took hundreds of years of conversation and struggle within and among religious traditions to resolve questions about race, slavery, civil rights, religious freedom, and democracy. For such a conversation to be effective, participants must respect one another, seek to understand one another, and seek to persuade one another.13 Note that respecting one another does not preclude attempting to persuade one another—engaging in thoughtful argument with someone can be one of the foremost signs of respect. Participants must be willing to think critically about their own traditions—whether religious or secular. With dialogue may come empathy and a new appreciation of the other. Religious discussions may lead to mutual understanding and common ground; a deeper understanding of one another’s positions may lead us to identify unseen possibilities; reflection may yield transformation. The success of this conversation is extremely important. The eruption of terrorism and violence throughout the world is, in part, the result of the lack of democratic dialogue across religious boundaries. Secularization is not the answer. Many (most) of the people in the world see the world through religious lenses. Secularization, which by some readings served to stop the wars of religion, may now serve as a catalyst to new wars of religion. In Western Europe, the most secular region of the world, excluding and ignoring religious voices now serves as a cause of violence. That is not

6 r o b e r t f. c o c h r a n , j r .

to suggest that interreligious discourse is a panacea. Many religious voices are intolerant and seem to have no interest in religious dialogue. Many of the issues in this book have no apparent solution that will be satisfying to all concerned. If there is to be a clash of civilizations, let us pray that it will be a clash of words, in democratic dialogue, rather than a clash of arms. As to some issues, we may just need to muddle through. Philosophers and theologians can talk forever at a theoretical level about morals, but voters, lawyers, judges, and legislators must make decisions. Ideally, discourse will build consensus, but if consensus about some area of law cannot be reached, decision-makers may have to resort to other options. One option is to leave law out of an area of life, to leave an issue to private decision. Private individuals can choose whether to go to church, whether to own slaves, whether to pollute, whether to have abortions. Removing law from an issue leaves it to private conscience and persuasion. To take law out of an issue promotes freedom, but it may yield injustice. Hopefully, at the end of the day, conversation about public issues will yield consensus. If not, in a democracy, we vote. In one sense, voting is the last resort in a democracy, but in another sense it is not—after the vote, we begin the conversation again.

The Authority of Law The future of our democratic republic may turn on its ability to involve people of various faiths in a discussion of law and our common life. Law in the United States relies primarily on voluntary compliance. As Arthur Leff noted in his classic law review article, when someone (whether private individual or governing authority) makes a demand on people, they reasonably respond, “Sez who?”14 If law is not based on the moral and religious beliefs of people, obtaining compliance with it becomes merely a matter of force.15 If law is contrary to the deepest beliefs of a people, they will not support it. As occupying forces have learned in India, Vietnam, Afghanistan, Northern Ireland, and elsewhere, even overwhelming military force will not easily establish the rule of law over a people who have not bought into it. As many of these examples illustrate, legitimacy is likely to be in part a matter of religious legitimacy. If the state does not reflect the deepest values of its people, there are three unpleasant possibilities. If the state is weak, it will be unable to enforce the law; there will be anarchy. If the state is strong, Big Brother will

Introduction 7

be everywhere; there will be a police state. Finally, if the state is seen as unconnected to its constituents, people will retire to their separate communities, with little sense of commitment to the commonweal. When times are good, such a society can maintain an uneasy tension. But during times of war, economic crisis, or civil disturbance, it will be difficult to rally the nation to necessary sacrifice. For people to support the civic order, they must believe that it reflects their values. Of course, in a state made up of diverse religious communities, like the United States, finding agreement may be difficult. It is our hope that this book will assist the search for common ground.

Repression? Some people fear that attention to the religious bases of law will lead to an intrusive, repressive, totalitarian regime. They can certainly point in history to periods of religious oppression. Many religious people came to America to escape persecution at the hands of other religious people. Unfortunately, the first thing that many of them did when they arrived on these shores was to deny freedom of religion to others. But it was through religious discourse that first free exercise and then nonestablishment became the norm. What emerged in the early years of the republic were states that protected the free exercise of religion and rejected established churches but adopted laws built on religiously-grounded moral values. At times those values worked to the benefit of the needy, but at other times they served the cause of oppression—some Christians used religiously grounded moral values to justify slavery, racial discrimination, and religious discrimination. But in many cases it was through thoughtful analysis within religious communities that the current consensus opposing these injustices developed. Martin Luther King, Jr.’s “Letter from a Birmingham Jail”—written to a group of that city’s religious leaders—is an example of such religious discourse. We hope that this book will encourage thoughtful —rather than unthoughtful—evaluation of law by religious communities.

This Book Selecting the religious traditions to include in this book was a challenging task; there are over one thousand religious denominations in the United

8 r o b e r t f. c o c h r a n , j r .

States. But many of our religious traditions draw from the same sources in their views of law. For example, most of the mainline Protestant groups are heavily influenced by John Calvin in their view of law. The choice of traditions to include in this volume was based on several factors. In part it was a matter of numbers—in a democracy, numbers are a gauge of political strength, and political strength is likely to have a big impact on law. Most of the groups represented in this volume have a significant number of members in the United States. I also wanted to include the broad range of positions that American citizens take toward law. Where there is a range of views on a particular issue, I tried to include groups on opposite ends of that range. For example, on the question whether Christians should attempt to influence law, Calvinists advocate that religious faith control law, Anabaptists are reluctant to use law, and other Protestants fall somewhere in between; this book contains essays on Calvinist and Anabaptist views. On the question of the centrality of Jewish scripture as a source of guidance, Orthodox Jews look most strongly to the Torah, Reform Jews look to a broad range of other sources, and other Jews fall somewhere in between; this book contains essays presenting Orthodox and Reform views. I could have attempted to arrange the essays in this book in any of several patterns. Political inclination did not work well, because within many religious traditions there are people with widely varying political commitments. For example, many political activists at the front of each American political party are motivated by a Calvinist vision of transforming the state to reflect God’s priorities. Baptists, who at one time wanted merely to be left alone by the state, are now much more politically engaged. Though this is not a book about history, I decided to place the traditions roughly in the order in which they first came into a position where they could have a significant role in the American conversation about law (whether or not they actually did). Historical order has the added benefit of breaking the essays roughly into Protestant, Catholic, Jewish, and new immigrant faith sections. Readers will note that the essays have very different styles. To some extent, the styles reflect the different styles of the religious traditions represented. Augustinians, Calvinists, those within the Churches of Christ, Orthodox Jews, and Natural Law Catholics tend to be analytical. Other traditions tend to be more relational, more conversational. These essays reflect both the variety of styles and the variety of positions found within American religious faiths today.

Introduction 9

notes 1. Thomas L. Shaffer, American Lawyers and Their Communities (South Bend, IN: University of Notre Dame Press, 1991), 209–10, 214. 2. See John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971). 3. The Declaration of Independence, para. 1 (U.S. 1776). 4. See Jeffrey Stout, Democracy and Tradition, cited in Gilbert Meilaender, “Talking Democracy,” First Things 25 (April 2004): 26. 5. Kent Greenawalt, “Religious Convictions and Lawmaking,” 84 Mich. L. Rev. 352 (1985). 6. Ibid. at 359. 7. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991). 8. George Marsden, The Outrageous Idea of Christian Scholarship (New York: Oxford University Press, 1998), 58. 9. Jeffrey Stout, Ethics after Babel (Princeton, NJ: Princeton University Press, 2001), 210–11, quoting Alasdair MacIntyre, After Virtue (South Bend, IN: University of Notre Dame Press, 1984), 263. 10. C. S. Lewis, The Abolition of Man (Basingstoke, UK: Macmillan, 1975), appendix. 11. Stout, Ethics after Babel at 213. 12. Comment at Critical Legal Studies “Forum on Spirituality,” San Francisco, California, January 9, 1998. 13. The Williamsburg Charter, available at http://religiousfreedom.lib.virginia .edu/const/Willburg.html. 14. Arthur Leff, “Unspeakable Ethics, Unnatural Law,” 1979 Duke L.J. 1229, 1249 (1979). 15. Ibid.

Part I

The Augustinian Framework The City of God and the City of Man

Our essays begin with Augustine. He set the framework within which discussions of religion and the state in the West have taken place since his time. Whether his name is invoked or not, he has had great influence on American thought about law since the earliest days of the New England colonies. Historian Perry Miller argues that his influence on Puritan thought in New England was even greater than that of John Calvin.1 Augustine is second only to Thomas Aquinas in his influence on Catholic views of law. Augustine viewed the believer as a member of two cities, the City of God and the City of Man.2 His discussion of the tensions between the two cities provides meat for his successors, whether they advocate that Christians rule the City of Man, keep to themselves in the City of God, or attempt to hold the two roles in tension. Among the early Americans, as well as among Americans today, there were believers who went in each of these directions. In our collection, Elizabeth Mensch explores the tensions within Augustine’s writings about criminal punishment.

notes 1. Perry Miller, “The Augustinean Strain of Piety,” in Perry Miller, The New England Mind: The Seventeenth Century (Cambridge, MA: Belknap Press, 1939), 4. 2. Augustine, City of God, Book XI (Grand Rapids, MI: Eerdmans, 2002).

11

Chapter 1

Augustine Augustine and Law Elizabeth Mensch The Augustinian perspective on justice raises paradoxes deeply rooted in Augustine’s description of self, society, and world. Augustinian reality is darkly tragic, inevitably riddled with signs of human sin; yet it is also, simultaneously, a world shot through with surprising signs of abundant grace. For the Augustinian, this radical intermixture of sin and grace marks every aspect of human life. Augustine points to an unrelenting darkness of indescribable depth. “Whose eloquence,” he asks, could “number and weigh the woes of this mortal condition?” (CG XIX 4).1 Deformity and disease sap strength from mind and body; treachery and cruelty may lurk beneath the tranquil surface of family life; friends may be enemies, and enemies friends. This gnawing uncertainty which undercuts trust “is a kind of ignorance similar to madness,” Augustine comments (CG XIX 8). Even true affection brings anxiety and loss, since disasters and death stalk those we love. Similarly, the external peace of the city is fragile and deceptive: legal trials both signify and intensify internal divisions, implicitly representing, in muted form, the ever-present threat of civil war. Huge empires achieve broad unity, as with the Pax Romana of Augustine’s day, but their supposed universality rests on a foundation of suffering: “how many great wars, what slaughter of men, what outpouring of human blood have been necessary to bring this about?” (CG XIX 7). In the midst of this darkness, however, signs of God’s love and peace abound, often in unlikely places: “What tigress does not purr softly over her cubs and lay her fierceness aside while she caresses them? What kite, solitary as he is while he hovers over his prey, does not take a mate, make a nest, help to hatch the eggs, rear the chicks, and preserve with the mother

13

14 e l i z a b e t h m e n s c h

of his family, as it were, a domestic society which is as peaceful as he can make it?” Even within the grim physicality of death, inside a decaying carcass itself, insects busily eat the remains and “all those little bodies . . . serve their little spirits in the peace that preserves their lives,” while the carcass, “particle by particle,” unites with the elements and “passes away into this peace” (CG XIX 12). Although Augustine’s thought thus defies linear description, this most irreducibly Christian of the major political theorists has exerted an unshakable influence on centuries of legal thought, secular as well as Christian. That legacy, however, eludes categories. For example, Augustine helped to lay the foundation for a highly institutionalized and politicized Catholic authority, but his writing helped to inspire Luther’s challenge to that authority, and also subsequent experiments in church/state separation. His analysis of knowledge and language ranks Augustine among postmodernists in epistemological sophistication, yet he found in the human mind tools for understanding even divine mysteries like the Trinity. Although he seemed to counsel submission to all government, including tyranny, some have found in his work hope for human freedom, and for defiantly new beginnings even in the face of numbing totalitarianism. Beneath these contradictory directions lies a unifying problem, the “Augustinian dilemma.” That dilemma has two sides: first is the inescapable need for legal authority in an imperfect world where sin is always pressing human reality; second is the equally inescapable Christian illegitimacy of every exercise of domination over others, an illegitimacy that deflates any human claim to be doing real “justice.” For Augustine, the exercise of legal force, never untainted by the evil of coercion, is at best only a tragic necessity, a sad reminder of sin; yet the peace it brings, though tainted and imperfect, is nevertheless a real good, an instance of the harmony willed by God, and therefore a sign of grace. Therefore, scholars after Augustine who attempted to construct an unassailable ethical foundation for the legitimacy of legal force (from Thomas Aquinas in the Middle Ages to John Rawls in recent times) were writing in implicit response to the Augustinian critique of law. Conversely, utopians who proposed the perfectibility of society without law (from millennialist Christian sects of the Middle Ages to secular Marxists) were in effect trying to counter the Augustinian insistence on sin’s inevitable power and the need to contain it. Indeed, our own constitution can be read as Madison’s Augustinian concession to political reality: the natural Eden of the New World had produced, not new Adams, but divisive, self-

Augustine and Law 15

ish factions that, Madison concluded, could not be transformed into a model of perfect political virtue—only channeled and balanced within an artificial framework of legalized institutions. Augustine thus stands as a brooding presence in the history of legal thought. He posed dilemmas that remain at the core of any definition of “justice,” yet he also found hope even (and precisely) in our inability to find certain answers. Augustine wrote during the waning of the Roman Empire, and legend has it that this linguistic skeptic wrote more than any one person could ever read. Before his conversion, the restless quest for both philosophic truth and success in Roman public life had led, by his own admission, to inflated pride, but also to mounting discontent. With sadness he had given up a woman he loved, the mother of his son, because as a “concubine” (a semilegalized but inferior status) she could not be a respectable wife; yet he could not renounce his search for sexual pleasure. Only conversion to his mother’s Christianity, a faith he had previously rejected as insufficiently philosophic, brought the promise of peace, of finally coming to “rest” in God (Conf. 1, 5). After his conversion, as bishop in North Africa of the established Church, Augustine exercised quasi-judicial as well as religious authority. From the Romans he inherited a model of justice drawn in its general assumptions from the Greek celebration of reason and strikingly similar to modern accounts. As recounted by Augustine, that model presupposed, in the admired words of Cicero, the true commonwealth as “a group of rational beings bound together by a common rule of right and a community of interests.” Within the commonwealth, reasoned justice meant giving to each “his or her due” (CG XIX 22). That Roman definition foreshadowed modern social compact theories of justice: people unite to protect their interests, joining a polity pledged to protect those interests according to a principle of “right.” John Locke drew on ancient models when he described the protection of our rights to life, liberty, and property as the just aim of government—an aim that with Jefferson became protection of “life, liberty, and the pursuit of happiness.” Such rights-based social contract models are, arguably, implicitly retributivist: criminal punishment is what the criminal is “due”— even owed—by the state, as a matter of right.2 Violating the rights of another person means violating the norms of one’s own reason, which require equal respect for the autonomy of the other; the criminal is legitimately punished for, in effect, violating the “right” of each party to the crime.

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For the Romans, however, the self was not quite an originally “private,” pre-political individual who joined a “public” state but whose rights remained essentially private, as we tend to conceptualize the relationship. Instead, the relation was one of microcosm and macrocosm: the citizen was an inner version of the polity, and politics defined the self. By GrecoRoman tradition, within each well-ordered citizen reason governed disruptive passions, like lust or rage, which threatened the calm discipline of virtue. Similarly, within the well-ordered household the citizen-father imposed the reasoned calm of male discipline on the potential irrationality of wife, children, slaves, and animals. So too, within the polity virtuous authority meant the imposition of reason and structure on the otherwise diffuse, threatening masses.3 Discipline of self and family was thus reciprocally related to legality within the polity. In every case the boundary of reason protected an inner order against an ever-present presupposed threat, just as the internal order of Rome itself required territorial defense against the hoards at the outposts. Augustine argued by reference to the micro/macrocosm model but also dramatically disrupted its terms and thereby undercut the Ciceronian definition of justice. To state his analysis in broad terms, Augustine challenged the Roman model of the self, with its focus on reason’s struggle against the passions. After intense self-examination, as recounted in the Confessions, he concluded that the problem of sin lay not in the passions but in the internal divisions of the will, where the prideful preference for self over God dislocated the once perfect alignment of Adam’s will with God’s. This original dislocation, he insisted, reproduced itself in divisions that marked every aspect of inner and outer life, including the exercise of a never unsullied “reason.” Reaching outward from the self, Augustine argued that the same dislocations replicated themselves in inevitable divisions within family and polity. Human societies began with Cain’s jealous slaughter of Abel, and Rome was founded when Romulus murderously seized power from his twin brother. Mindful of the power of those myths, Augustine described politics as a history of conflict, a history obfuscated by bland Ciceronean accounts of reason and common interest. He refused, too, to be beguiled (as were many Revolution-era Americans) by legends of Rome’s golden age of robust republicanism, as if the problem of political legitimacy could be ascribed to modern corruptions of earlier idyllic political virtue; and he resisted terms that implied false unity:

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For the Romans always lived . . . surrounded by the disasters of war and the shedding of blood which, whether that of fellow citizens or enemies was human nonetheless. The joy of such men may be compared to the fragile splendor of glass: they are horribly afraid lest it be suddenly shattered. . . . [Therefore let] us not allow ourselves to be swayed by idle bombast. Let us not allow the edge of our attention to be dulled by the splendid names of things when we hear of “peoples,” “kingdoms,” and “provinces.” (CG IV 4)

If the problem of self and polity lay in sin as an original dislocation of the will, the solution did not lie in summoning up yet more heroic reasoned virtue, to do more violent battle within self or polity. It lay instead only in the healing power of grace—in the experience of a supra-abundant love of God and neighbor which alone brought both inner peace and outer harmony. Once capable of such healing, however, the self became a citizen, not of this earthly city, with all its boundaries, defenses, and divisions, but of the City of God. This heavenly City, this mystical unity that could never be institutionalized on earth, was characterized by a continual reciprocity of love and therefore by true peace and real “justice.” Its foundation lay not in the exercise of power and “reasoned” legal violence but in the self-sacrificial powerlessness and boundless (unjustified, unreasonable) forgiving love of Christ. Acceptance of that love, through grace, began the Christian’s release from inner division, but it also made the Christian an alien to the legal forms of earthly justice—estranged from its harsh relations of power and coercion. In Augustine’s famous formulation, drawn from John 17, the pilgrim on earth was “in” but not “of ” the world. Nevertheless, to be “in” the world meant being dependent on its outward, legalized forms—needing “the peace of Babylon” even while being “delivered from Babylon by faith” (CG XIX 26). Therefore, the peace offered by the polity would never replicate the peace of the City of God. As an artificial human construction, designed to perpetuate power, the polity was marked by inevitable self-contradiction: for purposes of governance it summoned up and depended on the same prideful lust for power (as in the politician’s ambition for office and influence) that, unchecked, threatened precisely the peace that the polity claimed to preserve. Nevertheless, in the face of unrelenting human sin —even the pilgrim was not completely healed—that artificial peace was preferable to the violent chaos that would follow its dissolution. Thus, in

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contrast to many early Christian pacifists, Augustine allowed that the city on earth, whatever its form, could claim the loyalty of Christians, even in warfare. The concession was striking because Augustine abhorred war, not only for its bloodshed but also because it did violence to the sensibilities even of victorious rulers, who perversely long to discover the wickedness of others in order to justify combat, for they must “have someone to hate or fear in order to have someone to conquer” (CG IV 16). Augustine’s formulation of two cities, in contrast to the one all-defining polity of Roman jurisprudence, set in motion the famous dialectical relationship between the City of God and the earthly city, a dialectic that dominated political thought for centuries, as theorists struggled to defend the legitimacy of cities on earth, which could never quite be the City of God. That dialectic also meant that the Christian stood in paradoxical relation to existing legal forms—bound even by love of neighbor to serve the earthly peace that law brought but acutely aware that its legitimacy was provisional, contingent, and inevitably rooted in sin. The same dialectic meant that the church played an ambiguous role. Clearly the church was “in” the earthly city and, even, “of ” it: in a world characterized by an intermixture of sin and grace, no institutional church could claim to be the City of God. Indeed, Augustine denounced (even labeled heretical) the divisive goal to achieve complete ecclesiastical purity: since nobody is sinless, Augustine insisted, only God could separate the wheat from the tares; attempting such separations on earth represented prideful failure of Christian charity. Moreover, as an earthly institution, the church could never be unsullied by politics. Augustine himself summoned, albeit reluctantly, political authority to help quash influential, disruptive outbursts of heresy; partly because of Augustine himself, therefore, Christian doctrine could never claim autonomy from coercive power relations. Nevertheless, equally clearly, the peace that the church offered, when it held out the model of Christ and the means of salvation, was the antithesis of the peace of the earthly city—as antithetical as the contrast between the humility of Christ’s self-emptying renunciation of power (the founding moment of Christian freedom) and Romulus’s proud and fratricidal seizure of power (the founding moment of Roman justice). A broad description of his analysis cannot capture the complexity of Augustine’s commentary; it does not even quite explain his rejection of Cicero. A fuller (although still superficial) explanation requires that we move back to the Augustinian description of the self, which was the starting point for his analysis of family and polity, even as politics would then

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move back to implicate the self. Specifically, Augustine’s understanding of sin and redemption determined his understanding of justice and led to his conclusion that the law of the polity could never achieve real justice. Augustine is well known for citing sexuality as a sign of original sin. “Sign” did not mean “cause,” however. The troubling force of sexuality was not “passion” overcoming “reason” but was simply an outer, visible sign of deeper inner dislocations and divisions. The capricious nature of sexuality intrigued Augustine because its pesky, persistent insistence on having a will of its own in defiance of the self ’s own highest yearnings replicated the original human choice to disobey God. Such perversity was a sign of a will at every level deeply divided even against itself. As Augustine described his own yearning to serve God, “it was I myself who willed it and I myself who did not will it. It was I myself. . . . Therefore, I was at war within myself, and I was laid waste by myself ” (Conf. 8, 10). Memory, for Augustine, was at least as mysterious as sexuality. Existing in time, the self knew its own identity as self only by its own memory, yet memory was as variable and unstable as sexuality, as prone to frustrating lapses and obsessive intrusions. Much remained hidden in the mind’s murky, cavernous depths, beyond the willed capacity for retrieval. We were thus always hidden from ourselves, yet aware of ourselves at the same time. No less than modern philosophers and scientists, Augustine knew that understanding the mind was a prodigious challenge: “Lord, I truly labor at this task, and I labor upon myself. I have become for myself a soil hard to work and demanding much sweat. . . . Consider: the power of my own memory is not understood by me, and yet apart from it I cannot even name myself ” (Conf. 10, 8). However elusive and changeable, memory seemed to Augustine a prison because there was no “self ” to be located apart from it. Whereas some scholars, including Christian Gnostics, had described the materiality of the body as a prison within which the mind or soul was trapped, seeking escape to a more ethereal existence, for Augustine the mind was the self ’s own prison. This confinement was intensified by the limits of language, which Augustine found an obvious sign of a fallen world. Babel was a metaphor for the way language, a social construct, separated cultures from one another. As Augustine commented, a person could more readily hold a “conversation with his dog” than with one speaking another language (CG XIX 7). Language separated us not only from other cultures but from the external world, from one another, and from our own experience—none of which could be known as they were but only as we described them to ourselves

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in words. Trapped within the forms of language, we were encased in layers of separation, with access, through memory, of only a mediated, conventionalized account of our own lives. Moving outward from self, Augustine recognized that language was also a tool of public power. Once, in the quest for a successful career, he had taught rhetoric to young lawyers and learned to treat language as a weapon to be manipulated to achieve legal victories. Foreshadowing George Orwell, he also noted that the manipulability of language also made it a powerful tool for political domination. Therefore, paradoxically, the diversity of languages in the world, a punishment and a sign of sin because it was a sign of division, was also a gift: language difference, which could be overcome only by conquest, by “outpourings of human blood” (CG XIX 7), at least obstructed totalizing power. Given his analysis of both self and language, Augustine refused to adopt Rome’s confidence that reason, whose dictates were always expressed in the forms of language, could be a dependable source of truth, and therefore of justice. Since human knowledge of the world was always incomplete, no judge could confidently tell the guilty from the innocent: knowledge of the truth at the factual, evidentiary level is always uncertain, as is knowledge of the defendant’s conscience; moreover, inevitable human ignorance also precluded certain knowledge at the initial propositional level of defining reasoned standards. Later Catholic thinkers, most notably Thomas Aquinas, would elaborate a theory of natural law based on the supposed congruence between nature, human reason, and the mind of God. Luther’s dramatic repudiation of that natural-law tradition of “reason” represented a return to Augustine’s conviction that no effort to “know” what reason requires can ever escape the initial problems of sin, language, self, and power. Thus, power over others, Augustine thought, was never wholly legitimated by “reason.” Instead, the existence of power relationships was a problem, not a solution. He believed the problem was located deep in the recesses of memory, in habits of finding inner peace and satisfaction by making demands on others (as in the simple example of the infant demanding food from the mother). Before people quite knew what had happened, the habit of using others for the material goods of the world became deeply engrained. Forms of legalized servitude were only obvious examples of such daily objectification. In effect, Augustine identified the problem of alienating commodification long before Marx, and he recognized it as a pervasive sin of social life.

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The longing for inner peace became a struggle not just for material goods but for knowledge that can ease doubt and nagging uncertainty. To satisfy this form of hunger people latched onto propositional truths, to human linguistic formulations, and proudly defended them as complete truth. As with all human formulations, such truths were destined to be partial; but the longing for certainty was so great that, habitually, people took partial and contingent truths to be whole truths and then proclaimed them with pride. Extended outward, habits of proud self-assertion became the habit of dominion in household and polity. Pride “hates a fellowship of equality under God, and wishes to impose its own dominion upon its equals” (CG XIX 12), and that quest for dominion, justified by reason, became social habit. Although Augustine warmly described the possibility of true sociability within families and among friends, he refused (unlike later naturallaw theorists) to find in that sociability the justification for political authority or inequality. Liberty, Augustine insisted, “belongs to man’s nature,” and servitude was “introduced by sin.” It was thus “that God created man . . . not man over man, but man over the beast” (CG XIX 15). Hierarchy, rulership, and legalized relations of power, like property and forms of servitude, might be inevitable in a fallen world, but they were still a sign of sin, a “bad habit” in the deepest sense. Although habits seemed to be habits before they were self-conscious choice, their repetition was always, Augustine insisted, an act of free will. Moreover, habits could be broken. New beginnings were possible. In this promise, which was the promise of grace, Augustinian paradoxes abounded; sin and grace were inextricably interrelated in the process of redemption, a process that undercut all arguments for Roman justice. For example, Augustine argued, the same remembered inner peace that came from satisfying physical hunger was a real peace, an undeniable “good,” even though it was also a source of sin. Augustine drove the point home with his description of Cacus, the mythological half-human monster who lived alone in a cave that “reeked with the blood of recent butchery,” butchery of all the people he had devoured. Even Cacus, Augustine said, loved peace; the inner harmony he achieved by gnawing on human flesh was a real harmony (CG XIX 12). The restless search to renew inner peace usually led people to further predations and then elaborate self-certainties, but the same search might instead lead toward recognizing the pervasive gaps and errors in human knowledge. At that point the mind began to recognize itself, not through proud commitment to false certainties but

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rather through its own awareness of error. As Augustine stated in a passage elusively foreshadowing Descartes: “For if I am mistaken, I exist. . . . And since, if I am mistaken it is certain that I exist, how can I be mistaken in supposing that I exist?” (CG XI 26). In a parallel move, remembered contentment based on material satisfaction pressed itself forward as demand for future happiness; yet the future held only the stark reality of death, one’s inevitable end within the terms of the perishable world. Confronting the reality of death might occasion just more frantic greed for wealth and power, but it could instead occasion a deeper move back, so to speak, to real origins, to the fact that we are not our own creator but rather the creature of a Creator God. Thus, the self, driven by its own remembered satisfactions, might find itself encountering the reality of God. Moreover, in Christ through grace, that encounter with the Creator was an encounter with boundless love and mercy, not reason and justice. People experienced their own “justification” (salvation) not through the norms of justice (by which all were equally condemned) but only through the infinite, freely given self-sacrifice of Christ. At that point the memory of the past, which seemed to imprison the self, became, paradoxically, a source of freedom: moving back through memory, by confession, people could take responsibility for themselves— in effect, “recollect” themselves from earlier dispersion in the world, from misdirected loves and false certainties. Then selfless humility finally replaced the prideful claim of self-mastery, so that even where the world allowed dominion, as with the father’s role in the household, the actual relationship was transformed: in the household of one who lives by faith, “even those who command are the servants of those whom they seem to command. For it is not out of any desire for mastery that they command; rather, they do so from a dutiful concern for others: not out of pride in ruling, but because they love mercy” (CG XIX 14). Thus, whereas external relations of power remained and, as structures, could not be redeemed, the individuals destined to live within those structures could be redeemed through grace. That individual transformation held the key to the Augustinian critique of reasoned justice. Conversion, which occurred through grace, confession, and the gradual release of old habits, was a redirection of desire, not its obliteration. Cupiditas became caritas—still “desire” but now a desire transformed into the selfless, boundless love of God and neighbor exemplified by Christ. This redirection of love healed the old Roman conflict

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between duty and desire, between reason and passion. The human will realigned with God’s through Christ meant boundless love, a “desire” that was also the only possible definition of Christian “duty,” or justice. The key question about the self became, then, not the rigor of one’s reasoned virtue but the direction of one’s love. Extended outward, this emphasis on love meant, first, that the Roman definition of a commonwealth explained nothing because it did not address the question of love. Many disreputable groups met the Roman definition of commonwealth, Augustine pointed out. A robber band might join together in unity of interest and develop reasoned norms of “right” for allocating plunder, thereby constituting a commonwealth. Robber bands earned our contempt not because of any irrationality or injustice in their distributional norms but because of the deficiency in what they loved. That same deficiency might exist in a powerful nation: The band itself is made up of men; it is governed by the authority of a ruler; it is bound together by a pact of association; and the loot is divided according to an agreed law. If, by the constant addition of desperate men, this scourge grows to such a size that it acquires territory, establishes a seat of government, occupies cities and subjugates people, it assumes the name of kingdom more openly. For the name is now manifestly conferred upon it not by the removal of greed, but by the addition of impunity. (CG IV 4)

Augustine maintained that Rome, despite its size and legalized administrative bureaucracy, was not inherently a better polity than that of a robber band. The definition of a “people,” he said, should be a multitude “bound together by a common agreement as to the objects of its love.” Therefore, to discover the character of a commonwealth one must look not to its norms of justice but to “what it loves. . . . the better the objects . . . the better the people; and the worse the objects, the worse the people” (CG XIX 24). Qualitative judgment, therefore, could only result from a nuanced analysis of cultural values, not of formal law, and Augustine’s own description of Rome was itself nuanced, filled with shades of gray. Augustine assumed that a government of people liberated from selfishness by their love of God and neighbor would be superior to governance by people still enslaved to love of self. (Thus, following an Augustinian impulse, early New Englanders required that voters be church members, having shown evidence of conversion.) Nevertheless, Augustine disavowed hope of a Christianized, redeemed polity. Moreover, despite his careful

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attention to Rome’s political history, Augustine never considered true enslavement to be personal servitude or enslavement to bad government but rather enslavement to sin. Thus, the “good man, though a slave, is free; the wicked, though he reigns, is a slave . . . to as many masters as he has vices” (CG IV 3). The problem with the implicitly retributive Ciceronian account of justice, however, was not just definitional. It lay instead in Augustine’s absolute (some would say maddening) insistence that justice be defined strictly in Christian terms, an insistence that led to a radical separation between divine justice and human law. Divine justice related to human law only in the structural sense that every instance of ownership or domination was a sign of God’s retribution, a sign that all were condemned in this world never to escape the effect of sin and therefore condemned to live in conditions of inequality, under some form of political rule. As originally created, no person was “the slave either of another man or of sin” (CG XIX 15), but servitude was now tragically embedded in human life. That structural reality, however, did not mean that the human exercise of justice was ever a reflection of God’s justice or that God’s justice was explicable in human terms. Many Christians, influenced by classical culture, have wanted to see exactly such an analogical correspondence: God’s law and human law both impose reasonable demands and then inflict punishment as a “just” response to the freely willed refusal to obey. The later Augustine repudiated the correspondence. Indeed, he pointed out that God distributed political power with flagrant randomness, “to both good men and bad,” for reasons “hidden from us” (CG IV 33)—just as the good often suffered while the bad flourished with outrageous impunity. Although these distributions seemed arbitrary and therefore unjust in human terms, that very “injustice” precluded our supposing that the powerful and wealthy had triumphed because God favored their virtue. So too, political and military successes were unconnected to divine justification. This reality served to admonish the childish desire for worldly rewards from God and also operated to check the equally childish tendency to idolize power, to give it the ultimate trust and allegiance that it falsely claimed for itself. Legalized worldly power and Christian justice, in Augustinian terms, were thus unrelated terms, existing in different realms. Augustine’s conception of Christian redemption underscored the unbridgeable gap between them. The Roman model defined the nature of justice to be about the defense of boundaries, a defense inevitably couched in terms of exclusions and limitations. Such exclusions, however, were contradicted by the

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only example of divine justice that God held out to imperfect humanity: an example not of retribution (by which all would be justly condemned to exclusion) but of Christ’s boundless, merciful love. Christ’s own “justice” in relation to the believer was not about rights—measured, bounded entitlements and exclusions—but about radically unlimited inclusion. A person conscious of redemption through Christ experienced, therefore, a reciprocal humility and spirit of forgiveness, not a commitment to the norms of retribution by which he or she would have been condemned. Thus, neither the structural reality of sin in the world nor the radical nature of grace could be captured by reasoned human norms. The relation of earthly justice to the justice that prevailed in the City of God, which was the justice of unbounded love, was a relation of antithesis, not analogy. An Augustinian Christian judge, therefore, faces a wrenching quandary, posed especially starkly by criminal prosecutions. The act of judging and sentencing perpetuates the usurpations of political dominion and runs counter to the spirit of forgiveness that should fill the heart of the godly judge. Nevertheless, Augustine affirmed, love of neighbor also requires that peace be kept in the earthly city, and that peace is threatened by criminality. Therefore, a person who answers the “claims of human society” by judging should not on that account alone be considered wicked (CG XIX 6). How, then, should judging be done? Obviously there are no easy answers, but it is tempting to look to Augustine’s own experience as a bishop for hints. Although the precise reach of his civil jurisdiction is uncertain, bishops’ ecclesiastical tribunals were often preferred to the slower and more corrupt legal courts, and Augustine was authorized to hand down sentences of fines and floggings, as well as ecclesiastical punishments, and heard disputes involving property contract, slavery, theft, and murder. As bishop he also oversaw church members and those in orders, a responsibility that, like other Christians of the period, he viewed in familylike communal terms—the line seemed to blur between the communalism of the church as household, on the one hand, and civil authority, on the other.4 In judging the legitimacy of corrective action, Augustine’s standard was the elusive one of “love.” He used metaphors of a physician’s efforts to heal (a comparison that he also used to describe the effect of grace, as a “healing” of division) and of familial protective correction. He often quoted 2 Thessalonians 3:15, “I do not mean to treat him as an enemy, but reprove

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him as a brother,” and he saw his task as described by 1 Thessalonians 15:14–15: “Rebuke those who are unruly, comfort the apprehensive, care for the weak, be patient with everyone. See that nobody render to someone evil for evil.” The legitimacy of punishment was thus determined not by norms of retribution but by the spirit of the sentencer—control of sin should be an act of love and service, not self-righteousness. Augustine himself agonized over his own doubts: I doubt that many have become better for fear of impending punishment, or have gone away worse. . . . If you punish people you may ruin them. If you leave them unpunished, you may ruin others. I admit that I make mistakes in this matter every day. . . . What trembling, what darkness. (Ep. 95.3)

As pastor Augustine preferred to deal privately with infractions that were not yet publicly known, even in serious cases like murder, and at least within the religious community advised following the sequence outlined in Matthew 18:15–18: those who sin should first be confronted alone and “regained” as members of the community; only if they are stubborn should others be brought as witnesses; public community action would follow only if absolutely necessary. Evidence suggests that Augustine was more tolerant of sins of passion than those of calculated self-interest and looked more to motive and moral effect than to formal legal definitions, but Augustine was careful to know Roman law and sometimes urged strict enforcement—as with legislation forbidding slave traders from stealing African children, a practice usually protected by corrupt public officials. Augustine defended church sanctuary (at the time important for debtors faced with high taxes) and urged the appointment of officials (defensores) whose role was to protect the legal rights of the poor, arguably an early version of publicly funded legal aid. For punishment, Augustine generally urged mere verbal admonition, and reconciliation whenever possible, without bloodshed. He nevertheless ordered floggings with some frequency, but not with the commonly used lead-tipped whips; and he pleaded against the death penalty, which foreclosed the possibility of redemption (ep. 100.2), although he recognized the polity’s authority to impose it. Despite some positions now viewed as “progressive,” however, Augustine was not simply a cuddly bishop who helped to humanize Roman law. His views on the role of criminal punishment were complex and, some would argue, contradictory. At one level, he seemed to suggest that crimi-

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nal prosecution was justified only by deterrence—by the need to keep an always fragile civil peace. In his role as bishop, however, Augustine saw himself as required to name and confront sin, not just offer forgiveness. Since awareness of sin was part of the process of redemption, Christians were obliged to offer familial “correction” to each other, and those in ecclesiastical offices were sometimes required formally and publicly to apply sanctions. The correct spirit was a merciful desire for community instruction and the sinner’s reconciliation. Within his quasi-civil jurisdiction, Augustine seemed to extend the notion of Christian correction to civil prosecutions, implying that the polity’s law (however crudely) served a valuable function in helping to instill an awareness of sin (epp. 153, 185, 134). In seeming to draw this correspondence between (communal) church procedure and (retributive) civil justice, Augustine was, with typical paradox, suggesting a relationship that at another level remained utterly antithetical. The difficulty in interpreting Augustine was never clearer than during the early colonial period in America. The Reformation had brought Augustinian political thought to the fore, supplanting Catholic confidence in natural law, and in their New Eden many colonists, in Augustinian terms, felt a new freedom from past, imprisoning “habits” of domination and structures of servitude. That impulse toward realizing, in concrete form, a new Christian communitarian liberty, however, coexisted with dark and very Augustinian ironies. Like the Roman colonies Augustine had described, the Americans would build their new empire on a foundation of bloody conquest and would sometimes find themselves strengthening, not weakening, the alienating, commodifying boundaries (often of race) by which they justified using others for their own material needs.5 Colonists found, moreover, that even their best-intentioned Augustinian sensibilities led in wildly different directions, often with resulting conflict, not peace. The Mennonites sought separated communities altogether unsullied by the coercive legalities of the earthly city; the same communal practices of forgiveness and reconciliation Augustine advocated wholly replaced law. Some Rhode Island Baptists, banished from Massachusetts Bay, interpreted Christian liberty to mean a flamboyant freedom utterly unfettered by law. Under Roger Williams’s guidance, however, Rhode Island eventually enacted a legal code as necessary to contain sin but scrupulously avoided any claimed connection between secular law and Christian legitimacy; individuals could be redeemed, but never the polity. By contrast,

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most New England communities, seeking greater divine legitimacy, used many of the specifics of Old Testament law as a primary source and limit, but they did so in complex interrelationship with a household model of Christian communal oversight, clergy arbitration of conflict, and paternalistic magistrate discretion. Public criminal penalties, New Englanders thought, helped to shape conscience, which was a public task, but were incapable of forcing conversion—which, following Augustine, was a (voluntary) transformation of desire and an unearned gift of grace. The most astute New England theologians, however, recognized in New England the tendency to claim on behalf of reasoned, coerced legality a fusion with Christian redemption. In the South, meanwhile, Christian love was invoked expansively to justify an interlocking of household paternalism with discretionary gentry authority and thereby to justify the most brutal slave laws of the colonies. Therein, of course, lies the danger: Augustine insisted on love as providing a limit to what a Christian judge might legitimately do; ironically but easily, love became an excuse for pretending to do God’s own (paternalistic) justice, a claim totally undercut by Augustine’s monumental effort to show the ultimately unbridgeable gulf between divine and human justice. Perhaps it is not surprising, therefore, even if paradoxical, that the origins of a modern return to a retributivist theory of criminal punishment seem to lie in Immanuel Kant’s pietist Augustinian roots—in the humility of his acknowledgment that because human ethics can never claim to be a reflection of divine law, people must rely on their own unaided human reason.6 As against the complacent cruelties of unbounded paternalistic authority, retribution seemed to recognize the dignity of both victim and accused. Augustine had also argued, however, that an inevitably flawed human reason could not cleanse of sin the always inherently illegitimate exercise of coercive legalized power. As with Cicero, the invocation of reason, like the invocation of love, can serve to gloss over the real “wretchedness” (CG XIX 6) of criminal justice realities and the darkness of the judge’s role. Augustine did not offer a solution to that darkness; he only insisted that the judge stare it in the face and then somehow, with humility, try to proceed responsibly, with love. notes 1. For the sake of brevity, quotations from Augustine are cited in the text, by book and chapter number for The City of God, ed. and trans. R. W. Dyson (Cam-

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bridge: Cambridge University Press, 1998) (cited as CG), and The Confessions, ed. and trans. John K. Ryan (New York: Image Books, 1960) (cited as Conf.), and by number for the letters, as cited and described in Augustine through the Ages: An Encyclopedia, ed. Allan D. Fitzgerald (Grand Rapids, MI: Eerdmans, 1999). Accordingly, the first citation refers to The City of God, book number 19, chapter number 4. Given centuries of his influence, it seems impossible to read Augustine except through the lens of history, interpretation, and modern times. My own view of Augustine has been influenced most recently by Peter Brown, Augustine of Hippo (Berkeley: University of California Press, 2000), Jean Bethke Elshtain, Augustine and the Limits of Politics (South Bend, IN: Notre Dame Press, 1995), John M. Rist, Ancient Thought Baptized, rev. ed. (Cambridge: Cambridge University Press, 1994), H. Jefferson Powell, “The Earthly Peace of the Liberal Republic,” in Christian Perspectives on Legal Thought, ed. Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella (New Haven, CT: Yale University Press, 2001), Hannah Arendt, Love and St. Augustine, ed. Joanna Vecchiarelli Scott and Judith Chelius (Chicago: University of Chicago Press, 1998), Garry Wills, Saint Augustine: A Penguin Life (New York: Viking, 1999). 2. See Markus Dirk Dubber, “The Right to Be Punished: Autonomy and Its Demise on Modern Penal Thought,” 16 Law and Hist. Rev. 113 (1998). 3. For a vivid description of this relationship, see Peter Brown, The Body and Society: Men, Woman and Sexual Renunciation in Early Christianity (New York: Columbia University Press, 1998), 10–12, 62, 83–84. 4. For the centuries of continuing influence of household as model, see Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005). 5. Notably, Pocock’s description of the republican tradition locates these ambiguities explicitly within the Augustinian framework: his last chapter, about the early American experience, ends by invoking Augustine. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1998). See especially 31–48 and 506–52. See also Mark McGarvie and Elizabeth Mensch, “Law and Religion in Colonial America,” in The Cambridge History of Law in America, ed. Christopher Tomlins and Michael Grossberg (Cambridge: Cambridge University Press, forthcoming). 6. See generally Walter Lowe, Theology and Difference: The Wound of Reason (Bloomington: Indiana University Press, 1993).

Part II

Reformation Faiths

The dominant influences on American law at the founding were Western European immigrants, children of the Protestant Reformation. The religious language used at the founding of the country was the language of religious commonality—Americans declared their independence based on rights established by “nature and nature’s God.”1 The First Amendment to the Constitution guaranteed that Congress would not interfere with religious freedom, nor would it establish a national church or interfere with the states’ established churches. By 1836, only South Carolina had an established church. Though the founders rejected the notion of an established church, they recognized the importance to the republic of religious values, and law reflected Christian values. John Adams wrote to Benjamin Rush, “I agree with you . . . that religion and virtue are the only foundations, not only of republicanism and of all free government, but of social felicity under all governments and in all the combinations of human society.”2 This part of the book includes essays from four Reformation faiths: Calvinists, Lutherans, Anabaptists, and Baptists.

notes 1. The Declaration of Independence para. 1 (U.S. 1776). 2. Letter from John Adams to Benjamin Rush (August 28, 1811), in The Spur of Fame: Dialogues of John Adams and Benjamin Rush, 1805–1813 (Indianapolis: Liberty Fund, 1966), 192.

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Chapter 2

Calvinists

John Calvin taught that the world is a theater for the glory of God,1 and that the state is a part of that theater. Calvin believed in the “total depravity” of man and recognized the danger that any person with too much power will misuse it. Therefore Calvin separated the offices of clergy and magistrate. As Marci Hamilton has demonstrated, the Constitution’s doctrine of separation of powers is probably a product of Calvinist realism about the nature of power.2 But Calvin had high regard for the role of magistrate, going so far as to argue that “civil authority” is “the most sacred, and by far the most honorable, of all stations in mortal life.” 3 Calvin’s view that Christian teaching should transform the state was reflected in the Puritan colonies and the mainline churches, and it is increasingly reflected today in evangelical churches. Calvin’s view that Christian faith speaks to all of life is demonstrated in David Caudill’s essay. He argues that Calvinist thinking informs us on a subject that many would think outside the orbit of religious influence: the role that judges should play in determining whether to allow an expert witness to present scientific evidence at trial.

notes 1. See Susan Schreiner, The Theatre of His Glory: Nature and the Natural Order in the Thought of John Calvin (Durham, NC: Labyrinth Press, 1991). 2. See Marci A. Hamilton, “The Paradox of Calvinist Distrust and Hope at the Constitutional Convention,” in Christian Perspectives on Legal Thought, ed. Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella (New Haven, CT: Yale University Press, 2001), 293. 3. John Calvin, Institutes of the Christian Religion, Bk. IV, Ch. XX, Sec. 4 (1536).

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Neo-Calvinism and Science A Christian Perspective on Post-Daubert Law/Science Relations David S. Caudill Introduction In any survey of the potential contributions of religious thought to contemporary legal theory and practice, some connections are more obvious than others. For example, one might expect scholars who work within identifiable religious traditions to help “secular” courts and commentators understand the nature of religion, the significance of certain religious practices, the organizational structure of a “church” or similar association, and so forth. One can also easily identify policy arguments from a religious perspective, addressing legal controversies over the death penalty, abortion, freedom of expression, same-sex marriage, taxation of charitable enterprises, the meaning of pluralism in a democracy, or school choice and governmental education benefits. Finally, in light of the fact that prominent thinkers in various religious traditions have throughout history reflected on, responded to, or otherwise criticized law and legal institutions, one can imagine sectarian contributions to legal theory and its perennial debates. In the contemporary Christian tradition discussed in this essay, a particular type of Calvinism, all such potential contributions either have been attempted or could be developed on the basis of the substantial literature associated with that tradition. For example, the Kuyperian notion of “sphere sovereignty”—the independence of institutions like the church, the state, the family, and schools—offers a useful framework for analyzing church/state separation, the limitations of government in family matters, and the concept of Christian education as distinct from the church or state. Abraham Kuyper explained that in a “Calvinistic sense we understand . . . that the family, business, science, art and so forth are all social spheres, which do not owe their existence to the state, and which . . . obey a high authority within their own bosom; an authority which rules . . . just as the sovereignty of the state does.” As to the church, “she has her own

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king. Her position in the State is not assigned her by the permission of the government, but jure divino.”1 Less obvious, perhaps, is the significance of neo-Calvinist reflections on science for law and legal processes. In the decade since Daubert v. Merrell Dow Pharmaceuticals,2 courts and a vast number of commentators have struggled with the standards for admissibility of expert testimony. Arguably in response to concerns about “junk” science in the courtroom, the U.S. Supreme Court in Daubert attempted to define valid science, suggesting that admissible science is to some degree characterized by testable hypotheses, a low error rate, peer-reviewed publications, and general acceptance in the scientific community. The Federal Rules of Evidence were, in the wake of Daubert, revised to confirm that scientific testimony should be based on sufficient data, reliable methodology, and reliable application of that methodology to the facts of the case.3 Federal (and many state) court judges have become less-than-deferential “gatekeepers” on the basis of that jurisprudence, but critics have variously claimed that the new rules are unworkable, that judges are not sufficiently educated in scientific matters to apply the rules, that science and its methodology are idealized in the courtroom, and even that the Court’s definition of science is incomplete or wrong.4 It is my contention that those who work in the neo-Calvinist tradition of Christian thought can enter that fray and contribute useful insights. Over thirty years ago, as a Christian student (from an evangelical background) attending a state university, I heard about the neo-Calvinist tradition from a friend. Through my previous readings of Francis Schaeffer5 and Harry Blamires,6 I was already enamored of the notion that a Christian commitment had relevance for all of life—politics, art, social and business relationships—and was not merely personal or a matter of worship and prayer. Once I began reading some neo-Calvinist literature, its effect on me was life changing—within a few years, I entered the Free University of Amsterdam, Kuyper’s creation, to study Dooyeweerdian philosophy (Herman Dooyeweerd had retired, but many of his prize students were my professors) and to pursue a doctorate in philosophy. Since that time, in the study, practice, and teaching of law, I have always viewed legal, political, and academic or scholarly discourse as “religious,” and never neutral—popular appeals to common sense and rationality always end up, for me, as matters of faithlike commitment. That perspective has informed my scholarship over the years, but in my recent research on scientific expertise

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in the courtroom, a neo-Calvinist evaluation of science appears particularly relevant. I begin with a brief summary of neo-Calvinism and then focus on the history of reflection on science within that tradition. The nature of scientific thought is practically an obsession for neo-Calvinists, due to their intense desire to discover God’s will or “laws” for the creation. Faith and science are therefore integrally related, which results in both a striking reverence for scientific knowledge and a strong critique of its purported neutrality. That balance, I argue, is the appropriate one for law/science relations and leads to a modest assessment of the certitude of science. I conclude that some federal judges already show signs of a willingness to adopt such a stance toward science.

Dutch Neo-Calvinism: From Groen to Kuyper to Dooyeweerd The nineteenth-century revival of Calvinism in Holland can be traced in part to the work of Guillaume Groen van Prinsterer (1801–1876), who studied law and letters at Leiden, practiced briefly as a barrister, and served as a clerk and secretary to the Royal Cabinet of King Willem II (1772–1843). In 1829, he started editing a small journal, Nederlandsche Gedachten (Dutch Reflections), and he became a leader in the Christian “Anti-Revolutionary” party, serving twice (1849–1857 and 1862–1866) in the Second Chamber of the Dutch Parliament. In his articles and books on history and politics, Groen confirmed his reformational Christian worldview, which included a critique of the “religion of unbelief ” that drove the French Revolution, a commitment to Christian political action, a belief that Calvinism was the historical essence of Holland, and a conviction that every philosophical and political viewpoint—even those considered secular or humanist—was rooted in a “religious” faith or belief system.7 Abraham Kuyper (1837–1920), Groen’s successor intellectually and in Anti-Revolutionary politics, was a theologian and journalist who became prime minister of the Netherlands (1901–1905) and the leader of a small segment of Dutch Protestants who undertook an extraordinary program of re-Christianization aimed at every area of culture. Notable among the initiatives taken by these neo-Calvinists—in addition to a new [Reformational] denomination, a new political party, a new daily newspaper, and

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a new labor union—was the establishment in 1880 of . . . the Free University of Amsterdam.8

When Kuyper was invited to give the 1898 Stone Lectures at Princeton University, he chose as his topic “Calvinism,” which he identified as a world and life view. At the outset of his six lectures, Kuyper acknowledged the ambiguity of Calvinism, which he claimed was rooted in a form of religion which was peculiarly its own, and from this specific religious consciousness there was developed first a peculiar theology, then a special church-order, and then a given form for political and social life, for the interpretation of the moral world-order, for the relation between nature and grace, between Christianity and the world, between church and state, and finally for art and science.9

In short, Calvinism “was not just a theology but a total view of all of life and the world which had direct implications for every area of human affairs.”10 The Free University of Amsterdam was founded on the idea that every discipline could be taught from a Christian perspective, “free” from church or state control. The philosopher and legal theorist Herman Dooyeweerd (1894–1977), a prolific writer who is best known for his four-volume A New Critique of Theoretical Thought, is credited with explicating the Calvinist worldview described by Kuyper. Indeed, Kuyper’s influence permeated Dooyeweerd’s life in every way. Dooyeweerd was raised in Amsterdam in a Kuyperian home, attended a neo-Calvinist classical high school (gymnasium) just down the street from Kuyper’s Free University, studied [there] and earned a doctorate in 1917, then worked for some years as director of the Kuyper Institute [the research center of the Anti-Revolutionary Party] in The Hague, and finally, from 1926 to 1965, was a professor at his alma mater.11

Dooyeweerd frequently acknowledged his debt to Groen and Kuyper even as he developed his own complex and compelling systematic philosophy known as “De Wijsbegeerte der Wetsidee” (The Philosophy of the LawIdea). Inspired by neo-Kantianism, Dooyeweerd developed a transcendental critique of theoretical thought, an account of the faithlike ground-

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motives (grondmotieven) in Western philosophy, and a theory of the various “modes of being” in the world, which theory categorizes the primary aspect (among thirteen or fourteen aspects) in which anything (e.g., a flower, a law, a church, or a painting) functions (respectively, the biotic, the juridical, the “pistical,” and the aesthetic). A fundamental feature of this philosophical perspective is the discovery of “the intrinsic and necessary connection between religion and science” —the latter term “science” is a translation of wetenschap, analogous to Wissenschaft in German, and refers to all scholarly study or theoretical inquiry (including history, theology, and philosophy), not just to natural or social science. As a Christian theorist, Dooyeweerd anticipated the charge of religious bias: “I do not pretend that my transcendental investigations should be unprejudiced. On the contrary, I have demonstrated that an unprejudiced theory is excluded by the true nature of theoretic thought itself.” Dooyeweerd here distinguishes theoretical inquiry—“science” in its general sense—from supra-theoretical “prejudices,” a distinction that is hidden or confused by the notion of “autonomous” science. In briefest terms, theory is always dependent on pre-theoretical assumptions that Dooyeweerd characterizes as religious or faithlike. Significantly, however, genuine theory is not merely a “dogmatic confession”: That [any] critical investigation is necessarily dependent upon a [supra-] theoretic starting point does not derogate from its inner scientific nature. This latter would only be true if the thinker should eliminate a . . . scientific problem by a dogmatic authoritative dictum, dictated by his religious prejudice.12

Science, therefore, is not the same as religion, but they are always connected insofar as some belief system precedes and influences any theoretical inquiry. Dooyeweerd’s philosophy is therefore a critique of the socalled autonomy of reason in science—the notion that secure knowledge is founded solely on theoretical and scientific principles. The religious impulse in Dooyeweerd’s philosophical investigations is rooted in the neo-Calvinist conviction that fundamental beliefs motivate everyone’s choices and decisions, that human life is “integrally religious.” Moreover, Dooyeweerd’s Calvinian confession of the sovereign rule in creation by God in Christ implies the need for subjecting all our lives, including our life of

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scholarship, to Christ. . . . Thus, he insisted that . . . science is not the final arbiter of questions of truth, the nature of reality, or even the understanding of matters of fact. . . . [Nevertheless,] science has a special and relative character of its own that should be respected and developed.13

Note that Dooyeweerd, from his neo-Calvinist perspective, is challenging the popular perception that science and religion represent two distinct modes of knowledge production, the former characterized by an unprejudiced and relatively objective methodology and the latter characterized by faith in otherworldly or divine phenomena. Rather, for Dooyeweerd, scientific reason is not an autonomous starting point but proceeds on the basis of faithlike precommitments. Similarly, religious scholarship—for example, philosophical, sociological, or political theorizing that begins with precommitments associated with a particular religious tradition—is not thereby rendered unscientific or unreasonable (or relegated to mere “theology”). In other words, “the opposition of ‘religious’ to ‘secular,’ or of ‘theological’ to ‘more strictly academic,’ is a false one.”14 Although science is obviously not “religious” in the sense of an association with a denominational church practice, it is “religious” in the sense of dependence on pretheoretical commitments. Another important aspect of Dooyeweerd’s philosophy is the distinction between naive or everyday thought and rigorous or theoretical inquiry, the latter of which is characterized by its Gegenstand (“standing over against”) relation, that is, its artificial abstraction from (and tension with) the intact reality of common experience. As Hendrik Hart, a student of Dooyeweerd, explains, In a theory, Dooyeweerd maintained, we have a splitting up of reality, a dissection of the world into its various parts and aspects. . . . By contrast, the knowledge of everyday experience is contextual and the conceptually known object remains embedded in the coherence of all its real relations. In short, theoretical knowledge [represents] a Gegenstand, an abstracted, isolated aspect of reality which . . . exists in tension with . . . reality [as a whole].

Hart goes on to say that this “tension” “is produced by the stubborn protrusions of the meaning of the whole into the meaning of the abstracted aspect. . . . The relation between our abstractive pull on reality and reality’s stubborn refusal to be abstracted is what Dooyeweerd referred to in terms

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of tension and resistance.” The details of Dooyeweerd’s exposition of the contrasting features of naive and theoretical “knowing” are beyond the scope of this chapter, and in any event are subject to criticism even by his disciples (Hart, for example, argues that “Dooyeweerd did not carefully develop his concept of naive experience. . . . He did not consider . . . that all thinking may be conceptual and necessarily abstractive and therefore characterized by tension”). Nevertheless, it is useful to contrast the everyday or naive experience of reality (as unproblematically given) with the production of scientific knowledge; the latter is “not simply a direct and neutral given of observation, but . . . is in part a subjective cultural product of our subjective selves with all our underlying philosophical assumptions.” In another formulation, theoretical thought is for Dooyeweerd the “skillfully designed result of human abstraction from some point of view.”15 Again, this is why Dooyeweerd viewed the theoretical enterprise as inevitably “religious” (in terms of faithlike pretheoretical commitments) and why he rejected the “dogma of the autonomy of reason [as] a point of departure in theoretical thought.”16 Indeed, Dooyeweerd’s disclosure of the “connections between theory and the ultimate commitments of the people who theorize” provides a link between his Christian philosophy and contemporary history and philosophy of science. What is often called foundationalism today, which Dooyeweerd referred to as the autonomy of reason, was really, he argued, an uncritically adopted prejudice. Long before that tradition . . . became widely untenable for philosophers in general . . . Dooyeweerd developed the Gegenstand theory in order to expose the fallacies of this unexamined dogma. Michael Polanyi’s theory of the scientist’s indwelling in his framework of commitment [i.e., all knowledge is personal], Jürgen Habermas’s theory of the role of human interest in science, Gerald Radnitsky’s theory of steering fields internal to science, and Thomas Kuhn’s theory of the role of paradigm in the natural sciences are all prefigured in the way Dooyeweerd worked out his theory.17

Dooyeweerd’s critical reflections on theoretical thought are not so much a critique of science—he considered his own work “scientific” (in the sense of the Dutch word wetenschap or the German word Wissenschaft)—as a critique of scientism, of the view that scientific knowledge is the opposite of and epistemologically superior to religion. Dooyeweerd’s critique of theoretical thought echoes Calvin’s belief in

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the radical corruption of human reason and his revolt against the Scholastic “view that up to a certain point human reason retained its self-sufficiency and ability to discover truth.” (Significantly, however, in an “exceedingly nuanced” fashion, Calvin also admired science as well as classical “heathen authors [whose] apostate reason ‘. . . is still clothed and ornamented with God’s excellent gifts’”; Kuyper likewise believed that “science is seriously affected by sin,” while he admired Plato, Aristotle, Kant, and even Darwin because God’s common grace allows sparks of light in the unregenerate scientist.)18 Moreover, Dooyeweerd’s use of the term “religious” to characterize all scientific thought betrays the influence of Groen van Prinsterer, who, for example, identified in the ideology of the French Revolution a “religion” of “unbelief.”19 Finally, the genesis of Dooyeweerd’s exposition of the intrinsic and necessary connection between religion and science can be found in Kuyper’s fourth Stone Lecture on Calvinism: Notice that I do not speak of a conflict between faith and science. Such a conflict does not exist. Every science in a certain degree starts from faith. . . . Every science presupposes faith in self, in our self-consciousness; presupposes faith in the accurate working of our senses; presupposes faith in the correctness of the laws of thought; presupposes faith in something universal hidden behind the special phenomena . . . and especially presupposes faith in the principles, from which we proceed; . . . all these indispensable axioms, needed in a productive scientific investigation, do not come to us by proof, but are established in our judgment.20

As previously mentioned, however, neo-Calvinist references to science (wetenschap) include not only the natural (or “exact”) and social sciences but also the humanities, including philosophy and theology. Kuyper’s assessment of the natural sciences is quite positive, at his own stage in the development of neo-Calvinism, and tends to be almost scientistic: Kuyper [thought] that in the natural sciences general validity and common acceptance is to a large extent possible because so much depends on exact, objective observations. On the other hand, in history, philosophy and the other humanities, the subjectivity of the researcher is at stake, since questions . . . cannot be solved through observation. With respect to the physical sciences, Kuyper does not want to place an opposition between what is Christian and what is unchristian.21

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Kuyper’s position is understandable because it is difficult to conceive of a distinctively Christian mathematics or physics, and Christians do not want to be (and need not be, according to the doctrine of common grace) in the position of rejecting scientific progress on the ground that many contemporary scientists are “apostate.” On the other hand, Dooyeweerd did not miss the opportunity to attack the myth of neutrality in the natural sciences, where (in Kuyper’s terms) “the subjectivity of the researcher is at stake” as well. The production of natural science, like all theoretical thought, is personal and creative—“a real, actual, concrete act of a person” —involving extratheoretical factors, culture, and faithlike commitments.22

Neo-Calvinism and Science in Law The U.S. Supreme Court’s Daubert opinion can be read as an idealization of natural science, insofar as the Court’s characterization of the scientific enterprise—as involving testable theories (with a low error rate), peerreviewed publications, and general acceptance—mirrors science’s own self-image.23 Indeed, some commentators have suggested that post-Daubert “legal culture must assimilate the scientific culture”24 and even that the facts of science presented in court should be treated as matters of law since they have “quite a trans-case and law-like nature.”25 This view finds support in Daubert, as trial judges are required, in their admissibility decisions, to determine “whether the reasoning or methodology underlying the testimony is scientifically valid.”26 It bears mentioning, however, that the “four factor” test for scientific validity—testability, peer review or publication, low error rate, and general acceptance—is not set out in Daubert as a “definite checklist,” as “[m]any factors will bear on the inquiry.”27 Nevertheless, Daubert is usually interpreted, by trial judges and commentators alike, as deferential to scientific methodology as authoritative. Consequently, just like most scientists, courts and commentators generally fail adequately to account for the social, rhetorical, and institutional aspects of science. The trial lawyer’s common technique, in cross-examinations of expert witnesses, of identifying bias, interest, and motivation is likewise based on the assumption that the best scientists are not biased, interested, or motivated. This is of course understandable, because when scientific knowledge is imported into law to stabilize a controversy, the last thing we want is another contested and rhetorical controversy that mirrors the legal

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context. Science, that is, should be more than a social construction, a cultural product, a rhetorically persuasive argument, or an institutionalized dogma. On the other hand, data requires human theorists, methodological conventions are not “given” in nature, and the scientific enterprise is inevitably institutional, rhetorical, faithful to dominant theoretical models, and dependent on economic interests. Scientists gain credibility, persuade one another, favor some theories over others, and get paid. The history of scientific progress includes numerous episodes where scientists just got it wrong. Is our faith in science justified? The neo-Calvinist perspective on science is especially timely and useful, I think, because of its simultaneous reverence for the scientific enterprise and critique of scientific pretensions of neutrality. Bias, interest, and motivation are inevitable, because that is how theory works. Indeed, science has flourished because of its bias toward methodological conventions, its interest in some problems and not others, and the opportunistic motives of scientists. Scientific utility and progress, nevertheless, are not to be devalued for those reasons. We might say that because neo-Calvinists neither devalue religiously based scholarship in law, history, philosophy, or theology nor contrast the certainty of natural science with the uncertainty of other such disciplines, the pinnacle on which science has been placed need only be shared with other rigorous enterprises. A close reading of post-Daubert judicial opinions involving admissibility of experts reveals that some federal district judges are reversed because they idealize science or they defer too easily to the social authority of scientists.28 For example, some trial judges disallow testimony because they expect too much of science. In Cooper v. Carl Nelson & Co., the trial judge in a personal-injury case rejected as unscientific a medical expert’s reliance on a worker’s patient reports (of his construction-site injuries) rather than on objective measurement techniques; but the appellate panel in that case found the trial judge to be an “overly aggressive . . . ‘gatekeeper’ ”—subjective narratives are an “accepted diagnostic tool,” and we should not demand more.29 In Walker v. Soo Line Railroad Co., an electrical-trauma case, the testimony of three experts was deemed inadmissible at trial because of their uncertainty, reliance on teamwork, and alternative explanatory models; the trial judge was reversed for mischaracterizing the scientific field, which often involves an inability to conclude (and even contradictory conclusions), teamwork, and alternative explanatory models.30 In Jahn v. Equine Services, a veterinary-malpractice case in which the cause of the death of a race horse was at issue, a trial judge who viewed an expert’s

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probabilistic analysis as mere guesswork was reversed by an appellate panel that recognized that science is sometimes less than certain and that scientists often piece together probable events under less than ideal conditions.31 A trial judge in Smith v. Ford Motor Co., involving a van accident caused by failure of a steering mechanism, was likewise reversed for requiring peer-reviewed publications (in support of an expert’s testimony); the appellate panel held that an expert’s practices and experience are often more relevant than idealized formalities.32 Finally, the district court in U.S. v. Smithers rejected social-science expertise, a decision that was reversed as an idealism concerning the natural sciences.33 In each case, the social, institutional, and rhetorical aspects of science, and its practical goals and limitations, were misunderstood to be problematic by the idealistic trial courts but acknowledged to be inevitable by pragmatic appellate judges. In addition to rejecting reliable science on the basis of its pragmatic aspects, a trial judge who idealizes science also risks deferring to unreliable experts because of their social authority (which does not always signal reliability). For example, in Goebel v. Denver & Rio Grande Western Railroad Co., involving a claim of brain damage from diesel fumes, a trial judge deferred to the causation testimony of a credentialed expert without making specific findings on the expert’s reasoning and methodology; the appellate panel held that the trial judge abused his discretion by “relying solely upon the ipse dixit of the expert.”34 Likewise, in Libas, Ltd. v. United States, involving a question whether a particular fabric was power-loomed, the trial judge relied on the results of an expert’s Customs Service test (proving power-looming) that was “generally accepted”; the appellate panel reversed the verdict because the expert’s technique had been challenged (there were no power looms in the Indian village from which the fabric came), so the trial court should have considered other factors (such as error rate) to “assure itself that it has effectively addressed the important issue of reliability.”35 Finally, in Elsayed Mukhtor v. California State University, Hayward, a challenge to tenure denial on the basis of race discrimination, an expert on racism was allowed to impress the jury “without any discussion of [his] reliability”; the appellate panel, recognizing the potential disconnect between authority and reliability, vacated the plaintiff ’s verdict because the expert’s testimony, albeit “cloaked in authority,” lacked methodological justification.36 The authoritative force of science—a social and institutional aspect of the enterprise—is not a “natural” phenomenon but rather a rhetorical accomplishment. That statement is not a critique of

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science’s capacity to represent nature in compelling and useful ways but a recognition that methodological mistakes can go unnoticed under the cloak of expertise, just as novel methodological advances can be lost without the social authority that comes with general acceptance in the community of scientists.

Conclusion The potential for a neo-Calvinist contribution to law-and-science studies is significantly increased by the precedent created in the foregoing cases. Placing science on a pedestal in court, if it results in keeping out reliable experts and allowing unreliable experts, can be shown to be misguided. Pragmatic judges who neither idealize science nor automatically defer to its mantle of authority, and who have started to trace the social, institutional, and rhetorical (and not just the methodological) aspects of science, have opened the way for a reconsideration of the place of science in law. The tradition of neo-Calvinist reflection on science offers in this context a balanced perspective: science, even in its technological and practical advances, is never neutral, never free of faithlike commitments. Although that may sound theoretical, and too philosophical for the practice of law, recall that mainstream interpretations of Daubert have (perhaps unwittingly) established a philosophy of science that finds concrete application in every trial involving scientific issues. There is nothing impractical or overly theoretical about a critique of the pretensions of science in law.

notes 1. See Abraham Kuyper, Lectures on Calvinism (Grand Rapids, MI: Eerdmans, 1931), 78–109. 2. 509 U.S. 579 (1993). 3. See Fed. R. Evid. 702. 4. See, e.g., John H. Mansfield, “An Embarrassing Episode in the History of the Law of Evidence,” 34 Seton Hall L. Rev. 77, 81 (2003) (The U.S. Supreme Court’s “fundamental error” in adopting “science” as a legal category immediately gave rise to uncertainty as to whether Daubert “had made it more or less difficult for expert testimony to gain admission, a harbinger of the confusion that now surrounds the whole subject of admissibility of expert testimony”); Sophia I. Gatowski et al., “Asking the Gatekeepers: A National Survey of Judges on Judging

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Expert Evidence in a Post-Daubert World,” 25 Law and Hum. Behav. 433, 433 (“Survey results demonstrate that [many judges lack] the scientific literacy seemingly necessitated by Daubert”); David S. Caudill and Lewis H. LaRue, No Magic Wand: The Idealization of Science in Law (Lanham, MD: Rowman and Littlefield, 2006). 5. See especially Francis Schaeffer, The God Who Is There (Downer’s Grove, IL: InterVarsity Press, 1968) and Escape from Reason (Downer’s Grove, IL: InterVarsity Press, 1968). 6. See especially Harry Blamires, The Christian Mind (New York: Seabury Press, 1963). 7. See generally Harry van Dyke, Groen van Prinsterer’s Lectures on Unbelief and Revolution (Jordan Station, ON: Wedge Publishing Foundation, 1989). 8. Albert M. Wolters, “The Intellectual Milieu of Herman Dooyeweerd,” in The Legacy of Herman Dooyeweerd, ed. C. T. McIntire (Lanham, MD: University Press of America, 1985), 2. 9. See Kuyper, supra n. 1, at 17. 10. Wolters, supra n. 8, at 2. 11. Ibid. 12. Herman Dooyeweerd, Transcendental Problems of Philosophic Thought (Grand Rapids, MI: Eerdmans, 1948), v. 13. See Hendrik Hart, “Dooyeweerd’s Gegenstand Theory of Theory,” in The Legacy of Herman Dooyeweerd, supra n. 8, at 144–45. 14. Wolters, supra n. 8, at 1. 15. Hart, supra n. 13, at 144, 156n. 1, 147, 152–53, 159n. 20. 16. Dooyeweerd, supra n. 12, at 37. 17. See Hart, supra n. 13, at 145, 150. 18. See Jacob Klapwijk, “Calvin and Neo-Calvinism on Non-Christian Philosophy,” in The Idea of a Christian Philosophy: Essays in Honor of D. H. Th. Vollenhoven (Toronto: Wedge Publishing Foundation, 1973), 46–47, quoting Calvin, Institutes of the Christian Religion, ed. J. McNeil (Philadelphia: Westminster Press, 1960), vol. II, ii, 15; see also Klapwjk, supra, at 54–55, citing Abraham Kuyper, III De Gemeene Gratie 495, 498 (Kampen, Netherlands: J. H. Kok, 1931). 19. See van Dyke, supra n. 7, at 224 (Groen, of course, was not referring by his term “religious” to matters of church and worship, for which he reserved the term godsdienst, which also means “religion” in Dutch). 20. Kuyper, supra n. 1, at 131. 21. Klapwijk, supra n. 18, citing Kuyper, Gemeene Gratie, supra n. 18, at 508, 512. 22. See Hart, supra n. 13, at 149. 23. See 509 U.S. at 593–94. 24. David L. Faigman, David H. Kaye, Michael J. Saks, and Joseph Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony, 2d ed. (St. Paul, MN: West, 2001), vol. 1, ix.

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25. See Michael J. Saks, “The Aftermath of Daubert: An Evolving Jurisprudence of Expert Evidence,” 40 Jurimetrics J. 229, 232–33 (2000). 26. See 509 U.S. at 592–93. 27. See 509 U.S. at 593–94. 28. See Caudill and LaRue, supra n. 4. 29. See 211 F.3d 1008, 1012, 1019–21 (7th Cir. 2000). 30. See 208 F.3d 581, 585–89 (7th Cir. 2000). 31. See 233 F.3d 382, 387–93 (6th Cir. 2000). 32. See 215 F.3d 713, 716–21 (7th Cir. 2000). 33. See 212 F.3d 306, 310–13 (6th Cir. 2000). 34. See 215 F.3d 1083, 1085–88 (10th Cir. 2000). 35. See 193 F.3d 1361, 1366–69 (Fed. Cir. 1999). 36. See 299 F.3d 1053, 1061–68 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).

Chapter 3

Lutherans

Martin Luther and his followers are not as comfortable as Calvin with the notion that Christian principles can rule the state, because the fallen nature of man requires the exercise of power in ways that are inconsistent with pure Christian faith. Magistrates play a role in the state in the service of their fellow men as an act of love, but Christian teaching cannot be their guide, because the state operates by its own rules.1 In his essay, Robert Tuttle illustrates this in his acceptance of the American Bar Association’s role for the lawyer— a role that Christians of other traditions have criticized.

notes 1. “Do you want to know what your duty is as a prince or a judge or a lord or a lady, with people under you? You do not have to ask Christ about your duty. Ask the imperial or the territorial law.” Martin Luther, “The Sermon on the Mount,” in From Irenaeus to Grotius, ed. Oliver O’Donovan and Joan Lockwood Donovan (Grand Rapids, MI: Eerdmans, 1999), 599.

A Lutheran Perspective on Legal Ethics Robert W. Tuttle Introduction I have a confession to make. For the past decade, I have been teaching Lutheran ethics to the students of George Washington University Law School. This confession will come as something of a surprise to my students and

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colleagues. GW is not, after all, a religiously affiliated law school, much less a Lutheran one; and the course in question is supposed to be the school’s standard, two-credit class in professional responsibility. Of course, in the twenty-odd times that I have taught the course, no one seems to have objected to, or perhaps even noticed, this religious character. One might sensibly regard the gap between my confession and others’ perception as a mark of failure, either of the teacher or the theological ethics being taught. I cannot comment on the former, but the latter would certainly ring true as one of the modern critiques of Lutheran ethics. Largely following Ernst Troeltsch, many scholars have claimed that the Lutheran distinctions between grace and law, or the kingdom of God and the kingdom of this world, produce in believers a kind of ethical quietism that ultimately baptizes the status quo, rendering silent the Christian witness or, worse, enlisting the gospel in support of unjust systems.1 In my life and work, however, I have found in the Lutheran confessional tradition a powerful source of insight about the shape of Christian life and a most compelling presentation of the gospel of Jesus Christ. Although I was born and raised in the Lutheran tradition, my serious engagement with it only began through the study of Christian ethics. Reading Dietrich Bonhoeffer in college first suggested to me the richness within Lutheran moral reflection, and I followed that study through seminary and graduate school in religious ethics, where I focused on Reformation-era and contemporary Lutheran sources. I continue to work in that tradition—both explicitly as a teacher within the church and implicitly in my other writing on ethics—because I believe that the Lutheran perspective addresses, in a unique way, critical aspects of contemporary moral life. In these pages, I suggest how a Lutheran understanding of legal ethics can provide important insights about the moral structure of the lawyer’s professional role and relationships, especially through its idea of vocational service to neighbors. This account starts with a brief description of the core components of a Lutheran ethics and then unpacks the significance of each of those components for legal ethics.

Core Components of Lutheran Theological Ethics Justification by Faith At the center of Lutheran ethics stands the doctrine of justification by faith, as expressed in the Augsburg Confession:

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we cannot obtain forgiveness of sin and righteousness before God through our merit, work, or satisfactions, but . . . we receive forgiveness of sin and become righteous before God out of grace for Christ’s sake through faith when we believe that Christ has suffered for us and that for his sake our sin is forgiven and righteousness and eternal life are given to us.2

Implicit in this understanding of justification, of course, is a claim about the human predicament east of Eden. We are all sinners, alienated from God, from one another, and from all creation. We deny God and instead worship the gods of our own desiring: ourselves, our possessions, and our ideals. This distorted worship leaves us empty and perpetually grasping for more, as the objects of our desire cannot bear the weight we place on them. Indeed, no human effort or creation, whether fame, riches, or a saintly life, can achieve for us reconciliation with God. Such reconciliation comes only through Christ, who on the cross took upon himself the full weight of human alienation, experienced death, which is the final result of that alienation, and yet was raised again to new life. Through faith, we are joined with Christ in his death and resurrection —death to our sinful, grasping selves, followed by God’s merciful resurrection of us into a new being in Christ. For Luther, our experience of dying and rising with Christ is a daily feature of the Christian’s life, reflecting believers’ ongoing struggle with sin and continual memory of the grace poured out on them in baptism.3 The Two Uses of Law My description of justification by faith omits one essential part of the theological dynamic—the role of law. For Luther, the grace of God’s merciful act in Christ is always preceded, temporally and existentially, by the law that confronts sinners in their alienation. This confrontation reflects the two uses of law. In its theological use (principally the divine law preached in the church), law accuses and convicts sinners, making it possible for them to receive the word of the gospel. In its civil use, the law, which is given shape and administered by civil governments, restrains the violence and chaos that sin invariably brings to human community, and it achieves a measure of peace and justice. Understood in this way, the two uses of law relate closely to the other aspects of what is sometimes called Lutheranism’s “doctrine of the two”— the two kinds of righteousness, the two kinds of government (or two king-

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doms, as it is better, though less accurately, known). The two kinds of righteousness, passive and active, correspond to the two uses of the law. The theological use of the law prepares the sinner to be made righteous before God, but not by the sinner’s own achievement. This righteousness is entirely passive, a gift of a restored relationship in Christ, created solely through God’s mercy. The civil use of law corresponds to the second kind of righteousness—just relations with other people—and this kind is a proper aim and achievement of human efforts. The concept of two kinds of government likewise relates to the two uses of law. Spiritual government rules through the preaching of law and gospel, whereas temporal authority rules through the sword. Insofar as they live in Christ, Christians are ruled by the former; the whole world comes under the rule of the latter. Because Luther regards Christians as continually involved in a struggle with their own sinfulness until their time of death, even believers come under the rule of both kinds of government. The theological use of law, passive righteousness, and spiritual government are distinct because they relate to our ultimate destiny in Christ, the gift of God’s “special grace”—grace given to believers. The civil use of law, active righteousness, and temporal government nevertheless remain important gifts of God, manifestations of God’s “common” or “general” grace —grace given to all creation. In a world filled with sin, temporal authority reflects the Creator’s ongoing work to make possible human life. The Creator provides us with structures, including the law and institutions that give shape to our life in human community. Luther often refers to these structures as “orders of creation,” and although they are not instruments of our redemption, they are places in which the Creator works to create and sustain human life. Despite being ordained by God, these institutions are also infected by human sin and often bring chaos, violence, and oppression rather than order, peace, and justice. Such misuses, however, do not destroy the original dignity and purpose of the institutions. Hidden deeply beneath even the most corrupt or repressive human government is the divine ordination of that institution, and such governments should be recalled to their foundational commission. Vocation Luther’s understanding of vocation extends the basic ideas underlying the doctrines of justification and the two uses of the law. With respect to

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the doctrine of salvation, Luther’s concept of vocation functions primarily in the negative. Religious vocations are not a special means of achieving salvation or a path of life holier than that of the laity. In Luther’s theology, all human callings share the same status. None brings its occupant any closer to God; none has any redemptive significance. Those who choose religious vocations in the hopes of gaining spiritual merit have fallen into the sin of seeking to achieve their own salvation, rather than relying on the mercy of God in Christ. As a direct response to the then-prevailing view of religious vocations, Luther turned to his own reading of 1 Corinthians 7:20. “Let everyone remain in the calling (Beruf ) in which he was called.”4 Beruf here signifies the ordinary occupations and tasks of human life in community. Mothers and fathers, teachers, farmers, laborers, police officers, and the untold number of other roles in which people work—these are the situations of life in which believers are called to a new life in Christ. The believer’s new life neither requires nor even invites the believer to abandon his or her worldly tasks. Instead God calls each to return to his or her labor. Although works are not a condition of receiving God’s grace, Luther insisted that true faith invariably produces fruit in the form of good works. Vocations give concrete shape to the love of neighbors, providing a context in which believers can perform this “divine service” of good works. The phrase “divine service” contains an intentional double meaning. Service in vocation is the Christian’s obedience to God, who enjoins us to use our work in love toward our neighbors. But vocational service, for Luther, is simultaneously the work of God—service that is properly attributed to God even though performed by a human agent. In his commentary on Psalm 147, Luther writes, What else is all our work to God—whether in the fields, in the garden, in the city, in the house, in war, or in government—but just such a . . . performance, by which He wants to give His gifts in the fields, at home, and everywhere else? These are the masks of God, behind which He wants to remain concealed and do all things. . . . He could give children without using men and women. But He does not want to do this. Instead, He joins man and woman so that it appears to be the work of man and woman, and yet He does it under the cover of such masks. . . . God gives all good gifts; but you must lend a hand and take the bull by the horns; that is, you must work and thus give God good cause and a mask.5

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Our work in vocation, then, is part of the Creator’s ongoing creation and preservation of human life. Note here that this “divine” status of the work does not in any way depend on the worker’s own religious confession. The status inheres in the functions and tasks themselves. Like the orders of creation, these vocations are continually being distorted by human sin. Those who serve as the masks frequently seek their own advantage rather than serving their neighbors’ welfare. Luther’s response to such abuse is one with which we are certainly familiar. Misuse of a position does not destroy the legitimacy of the office itself; it reflects only the infidelity of the current holder of the office.6 Luther found even more troubling, yet equally widespread, a different kind of distortion. People, he claimed, have a perpetual tendency to confuse the mask with the one hidden behind it. In short, we too often worship the mask rather than the God who uses the mask to preserve and provide for us. Such masks are never more (or less) than instruments through which our neighbors may be served.7 It is the duty of believers to understand, and to help others to understand, that the masks are signs of God’s “common grace,” poured out on all creation. The Golden Rule and the Shape of Christian Life Thus far, my discussion of Lutheran ethics has focused primarily on form—civil law, the orders of creation, vocation—rather than on the substance or content of Christian moral life. This is, at least in part, a reflection of Luther’s own emphasis on theological rather than moral reformation, and especially on recovery of the doctrine of justification. Luther certainly believed that this theological reformation carried ethical significance, but he tended to describe that significance in a way that seems, at first glance, to provide only the most general moral guidance. For Luther, the chief precept of the Christian moral life is also the chief precept of the natural law: the Golden Rule. “Do unto others as you would have others do unto you.”8 The Finnish theologian Antti Raunio has captured the profound theological significance of Luther’s use of the Golden Rule.9 Rather than looking at the Golden Rule as an endorsement of self-interested rationality (i.e., we help others because we want them to help us), Raunio shows how Luther situated the Golden Rule within the broad sweep of God’s selfgiving love for all creation. Creation, Raunio writes, “is an ‘order of love’

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because God himself continuously gives his good through creatures.”10 Whether in the form of natural goods—animals or plants—or as human institutions, Luther finds in creation a consistent witness to the Creator’s overwhelming generosity. The archetype of this generosity, for believers, is Christ, who gives up his life for the salvation of the world. In Christ, those who believe are conformed to his image, summoned to “do unto others” as Christ has done unto (or for) them. This conformity calls believers to put themselves imaginatively in the place of the neighbor, in order to discover what the other needs, and then strive to meet that need. Moreover, the rule enjoins love not only of those who are “in some way useful for the lover . . . [but even of] those who are the most difficult and unappealing.”11 This is especially true for the most vulnerable, who may have the greatest need, but are the least “useful for the lover.” As Christ sought out those most in need, and sought nothing from them in return, so we are called to do the same. Participation in this cycle of divine love—receiving God’s gifts and then sharing them with others—is the order of all creation, not just the special mark of Christian life. The blessings of God’s common grace are poured out for all. The vocations and orders that distribute the divine blessings are also shared and exercised by all people. Indeed, Luther believed that the Golden Rule itself is understood by everyone. All people can recognize how much they enjoy receiving benefits. And each can also be invited to experience the moral exchange at the heart of the Golden Rule, an exchange that usually begins with the question, How would you feel if someone . . . ?

A Lutheran Perspective on Legal Ethics From its stark confession of human violence and alienation to its words of thanksgiving for God’s common blessing for all creation, and, especially, God’s special mercy in Christ, Lutheran ethics is a theology-soaked enterprise. Thus, the question I raised at the outset surely must remain: what can this religious confession have to offer lawyers and the law of professional responsibility? In what follows, I try to describe the influence that the four components of Lutheran ethics have on my teaching and understanding of legal ethics.

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Justification At first glance, the Lutheran account of justification may seem to offer an unlikely point of contact with secular professional responsibility, but it actually brings a crucial insight to the subject. Our work may be important, but it is not redemptive. We look to work for meaning and purpose in our lives and expect to find in our callings a sense of identity. A Lutheran understanding of justification, however, suggests that work will not fulfill such expectations. In thinking about this issue, I have turned on several occasions to Kazuo Ishiguro’s novel The Remains of the Day, a wonderful tale about a butler, Stevens.12 The story depicts Stevens’s life in service to a Lord of dubious character, a life that involved complete immersion in his professional role and the attendant extirpation of most marks of common humanity—such as his apparent disinterest at the death of his father. Others have profitably used this work in reflecting on legal ethics, and it does serve as a useful vehicle for challenging students to address and critique the idea of a distinct “role morality”—a specialized ethics for an office that is inconsistent with ordinary human obligations. I draw from The Remains of the Day a somewhat different insight: the moral importance of a degree of detachment from one’s professional role. Those whose identity becomes wholly entangled with their work often pay significant costs for that entanglement. Those costs can be described in three ways. First, in the narrowest sense, those who stake their identity on professional success may be devastated when such success does not come or fades away after it seemed to be in hand. Anyone who has taught law students in the second semester of first year can recognize the disillusionment of the half of the class that now finds itself in the bottom half for the first time. This reflects more than mere disappointment at not getting better grades. With an eye toward big-firm jobs and prestigious clerkships, many students feel that their desired future has now been closed. And of those who do succeed at this early stage, more will experience that despair when not retained as associates or when passed over for partnership. Second, complete identification of self with professional role can also diminish or foreclose the possibility of a richer human life, including time for family and friendships, recreation and rest, and, yes, worship. We struggle with this identification because it has become the professional norm in the culture of many law firms. A culture that expects twenty-four hundred billable hours each year (and, in some cases, even more) in fact requires

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lawyers to work more than sixty hours a week, which leaves very little time for any life outside the firm. Third, and most important, complete identification of oneself with one’s work can make it very difficult to say no to improper requests. We can acknowledge any lawyer’s concern about the economic consequences of refusing certain work—loss of a client, perhaps even loss of one’s position in a firm—but for those whose role constitutes their identity, such concerns may never even arise, because he or she fails to recognize the need to refuse such tasks. A healthy detachment from one’s role may provide, or at least open the possibility of developing, the resources necessary to recognize and withstand the pressures to perform impermissible acts. The Two Uses of Law Luther’s account of law as a divine blessing translates into secular legal ethics as an attitude of moral respect for law and legal institutions. One implication of this attitude of respect for law is jurisprudential, which then leads into certain moral claims. In contrast to an exclusively instrumental understanding of law—whether of legal realism or critical theory —I try to expose students to arguments for law’s integrity and intrinsic value.13 Students often seem especially attracted to legal theories that portray law as an infinitely malleable tool of human interests and that portray legal institutions as the places in which that manipulation plays out. Part of my response—in ethics as well as the other subjects I teach—involves challenging students’ affection for legal indeterminacy, showing them that there are “better” and “worse” arguments, with evaluation based on something other than unreflective taste or bias, and with a recognition that we can sensibly say, at times, that a judicial or administrative decision was wrong or right. That jurisprudential approach leads to my central normative claim for legal ethics. Lawyers have a prima facie moral obligation to obey, and counsel obedience to, the law.14 The obligation, as Thomas Morgan and I have argued, arises out of law’s origin in fundamentally just democratic institutions, coupled with the lawyer’s special privilege to represent clients in legal fora and the lawyer’s oath to uphold the law. This moral obligation tracks Luther’s approach to law in several important ways. Perhaps most important, the law stands as a check on our temptations to enrich ourselves or aggrandize our power at others’ expense. These temptations are present even—and perhaps especially—when we

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are convinced that what we are doing deserves a special exception because of the good that will result or because of our distinctive need. We can be quite proficient in rationalizing disobedience, whether for ourselves or our clients, particularly when we think of law as no more than a tool for the realization of individual interests or desires. In addition, I believe that the law as enacted often represents the culmination of an ongoing tradition of moral reflection and judgment. For example, the American Bar Association’s Model Rules of Professional Conduct are regularly disdained by law students, lawyers, and academic commentators who perceive in them some taint of the bar’s self-interest or self-protection. Although some rules at some times may justly deserve such accusations, the standards as a whole embody moral and legal principles that bear up well under ethically sophisticated scrutiny. Finally, the law defines the normal scope and context for the lawyer’s agency relationship with clients. It is, in an important sense, the world in which the lawyer works. Rather than viewing the law primarily as an instrument for manipulation to serve the client’s interests, lawyers should see themselves as mediating between the client and the law, helping to shape the client’s interests and needs in light of the opportunities and protections afforded by law. This attitude of respect does not require or encourage an uncritical attitude toward the law or its various modes of implementation. A prima facie moral obligation means just that: a good faith interpretation of law’s requirement deserves considerable weight among one’s reasons for acting, and one should be especially skeptical of incentives to violate the law, but the obligation is not absolute. At times, disobedience may be morally warranted. But such disobedience still can and should reflect respect for law by being transparent in the act of disobedience and willing to accept the law’s punishment for its violation. Vocation The Lutheran account of vocation, unlike the doctrines of justification or the two uses of law, has more obvious links with secular professional responsibility. My understanding of those links, however, is somewhat different than that of several other scholars who have explored the intersection of faith and lawyering.15 A full account of our differences is beyond the scope of this essay, but one observation is important here. Even with Luther’s view of callings as “masks of God,” the notion of one’s vocation—

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or one’s clients—as “sacred” poses too great a risk that we might see work as salvific. This is especially true when such an understanding of vocation is designed specifically to improve lawyers’ sense of personal fulfillment in their work. I draw three general insights from the Lutheran account of vocation. vo cation as a useful cr aft

As I described earlier, the Lutheran approach to vocation focuses primarily on each role’s usefulness in serving the neighbor. This usefulness, in turn, depends on competent performance of the role’s tasks. Vocation may carry deeper resonances, but none is more important than a claim about possession and mastery of the knowledge and the core set of skills —of rhetoric and practical judgment—that define excellence within the lawyer’s profession. To fulfill the vocation, then, one must acquire and practice these marks of the profession and provide mutual encouragement and critique of others in their performance of the office. This notion of vocation as service useful to the neighbor also rules out a number of obvious abuses of the role, including carelessness in performing one’s work, undertaking work for others that damages one’s own efforts for the client, or stealing from the client (which includes overbilling in all its manifold forms). Reflection on vocation as useful service may also touch those who do not experience their current work as useful to anyone, whether because of the typical cycles of demand in a firm or a broader concern about the type of practice in which one may be involved. My short answer is similar to the one Luther gave to such questions: just look around; there’s always plenty of need. For those who cannot make broader commitments, most bar associations regularly schedule pro bono opportunities open even to lawyers who may not have their firm’s permission to take on additional (nonpaying) clients. Bar associations also offer training sessions for those who may be interested in exploring different kinds of pro bono work. Indeed, these may even lead into new areas of practice for those in search of their neighbors’ needs. vo cation as agency

Lawyers have a distinct kind of vocation, one in which the lawyer is called to “re-present” the client within the legal world.16 Although the hyphenated “re-present” may be unusual, it captures an interesting dynamic

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in the lawyer’s vocational service. One aspect of this dynamic is fairly easy to understand. The lawyer bears the client’s name and purposes into the legal realm, making the client present in a wide range of transactions. Other facets of this re-presentation are less obvious but no less important. As part of the mediating role I described earlier, the lawyer presents the legal world to the client, helping the client to understand the law’s opportunities and constraints. The lawyer also presents the broader world, legal and otherwise, to the client, helping the client to understand how others may perceive and react to his or her actions. Finally, the lawyer presents the client to him- or herself, holding a mirror up to the client, understanding the effect of various choices on the client’s other commitments or values. Successful practice of re-presentation depends on ethical commitments that comprise some of the most basic features of a legal ethics course. As a dialogic practice, re-presentation rests heavily on the norms that structure and protect the lawyer-client conversation. Foremost among those norms is a commitment to confidentiality, which provides lawyer and client with the space in which to work out the details of the person who will be presented to the public. The principle of informed consent is equally important. The lawyer’s moral authority to speak and act on behalf of the client depends on the lawyer’s fidelity to the client’s considered judgments, which the lawyer helps to shape by presenting the client with relevant legal (and other) considerations. one vo cation among others

In sharp contrast to any elitist understanding, the Lutheran account of vocation envisions a world filled with callings. Everyone has at least one, and many have multiple vocations. A lawyer may have her professional vocation, and she is simultaneously called to be mother, daughter, wife, sister. Beyond those roles she may also serve as board member for a community organization and Sunday-school teacher. Each calling has its distinctive responsibilities, its own opportunities for useful service to neighbors, and its own claim to respect as a part of a full human life. This recognition of vocation’s universality produces fruit in the most important practical contribution of Lutheran ethics for my understanding of legal ethics. Just as lawyers bear their vocation in representing their clients, clients also come to lawyers as bearers of their own callings. Too much of our academic and professional reflection on legal ethics tacitly

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assumes that clients come to lawyers as autonomous actors. In fact, however, clients frequently hold positions that are legally or morally constitutive of their identity. The lawyer who ignores the client’s role—or permits the client to ignore that role—courts legal disaster for both of them. The lawyer who represents a trustee provides the most obvious example. Although the trustee may be the lawyer’s formal client, the client’s acts with respect to the trust property and trust beneficiaries are circumscribed by the powers and duties set forth in the trust document and background law. The same is true of any clients who serve as fiduciaries, whether the officers and directors of a public corporation, a midlevel government bureaucrat, or a son who cares for his aged parents. In each instance, the lawyer must understand fully—and help the client to appreciate—the shape that the client’s constitutive vocation gives to the lawyer’s representation. The Golden Rule and the Shape of the Lawyer’s Life In the first part of this essay, I described Luther’s understanding of the Golden Rule as the shape of the believer’s life in Christ. We receive many blessings from God, give thanks, and then turn toward our neighbors in love, sharing with them what God has provided. The distinctive mark of this life is the believer’s trust in God’s abundant generosity. That trust contrasts sharply with sin’s fear of scarcity, a fear that impels us always to grasp for more—wealth, fame, goods, or security—never resting in the faith that what we have, and will be provided, is enough. For many people, both inside and outside the law, the legal profession seems the chief example of a world built on scarcity. In our own practice, we grab, and even require others to grab, what we can as fast as we can: hours, clients, and fees for ourselves, along with whatever our clients happen to want. The law itself seems to depend on a fear of scarcity, with each clash reflecting a competition for finite resources as mercenary lawyers abet their grasping clients. This description of the lawyer’s work may be appealing to those who are hostile to lawyers, and it certainly bears some elements of truth, but the description is hardly an accurate portrayal of most lawyers’ work, and it is certainly not a necessary feature of legal practice. Many aspects of our work bear at least a tentative witness to the faith in God’s abundance reflected in Luther’s account of the Golden Rule. Consider the lawyer’s basic

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skill of formulating the opponent’s strongest argument in order to prepare one’s own case. While of undoubted tactical significance (no one likes to be surprised at oral argument), the exercise inevitably has a humanizing and chastening effect. We often come to see others in a fuller light, to see the strengths and perhaps even the justice of their cause, and the limitations of our own. Such an exercise, then, is equally important for prompting the settlement of disputes as it is for litigating them. Lawyers employ a similar approach in counseling clients. If for no other reason than to temper clients’ expectations, lawyers routinely ask clients to imagine the dispute or transaction from the other side’s perspective. When done well, the practice can help to lessen a client’s frequent antipathy for the other in litigation. Moreover, the practice can engender a greater desire (or at least willingness) to reach a mutually satisfactory deal, one that “enlarges the pie” by making all parties better off. Although these are important contributions, it is no less important to avoid the illusion that our work is an uninterrupted story of saintly cooperation and generosity. The practice of law can provide a glimpse of that, at times, but even when it falls short of that vision, the law remains our most important safeguard against scarcity’s unfettered grasping. The question for us is how we understand our own participation in that struggle over scarcity. Through that assessment, we can better appreciate the attitude of respect for law as a defining mark of our profession. A market economy works by harnessing the power of human desire and self-interest in the creation of broader communal wealth. “Harnessing” is, however, an achievement of law—and a fragile one at that—rather than the automatic process assumed by simple models of market economics. Lawyers participate in the complex distribution of a market system’s benefits insofar as they work to harness that power. They do so primarily by assisting clients to abide by the rules crucial to the healthy functioning of the market: promoting the transparency and accountability of public corporations, monitoring agents’ temptation to divert collective assets for their own benefit, protecting those who are most vulnerable to the market’s processes. But lawyers also can—and often have—helped clients in ways that injure that same system, including hiding transactions from public scrutiny, assisting clients who prey on those who are unable to protect themselves, insulating officials (and themselves) from accountability. Although my focus has been on economic life, closely analogous demands apply to lawyers who work in or with public agencies. The choice is stark

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but important to place in front of those in, or preparing for, this vocation: will you serve the cause of plenty or that of scarcity?

Conclusion Taken together, the four components of Lutheran ethics—justification by faith, the two uses of law, vocation, and the Golden Rule—offer what I believe is a compelling account of a life in trust, gratitude, and service. I hope students in professional responsibility catch some glimpse of this vision. Whether or not that glimpse comes out of a shared (or any) religious confession, I believe the glimpse can show some of the possibilities for a humane practice of law: one that neither expects too much nor asks too little of the practice, one that acknowledges the humanity of clients and nonclients alike, one that participates in the plenty that God provides.

notes 1. For a general introduction to Luther’s social teachings, see William H. Lazareth, Christians in Society: Luther, the Bible, and Social Ethics (Minneapolis: Augsburg Fortress, 2001) (see especially chapter 1 for his discussion of various critiques of Lutheran ethics). 2. Article IV, “The Augsburg Confession–German Text,” in The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. Robert Kolb and Timothy J. Wengert, trans. Charles Arand et al. (Minneapolis: Augsburg Fortress, 2000), 38–40. 3. Luther’s 1535 “Commentary on Galatians” offers what many believe is the reformer’s best-developed account of his understanding of justification. 26 Luther’s Works 4, trans. J. Pelikan, ed. J. Pelikan and W. Hansen (St. Louis: Concordia, 1963). For accessible analysis of Luther’s teaching on justification, see Mark D. Kravnik, “Luther on Baptism,” and Robert Kolb, “Luther on the Two Kinds of Righteousness,” both in Harvesting Martin Luther’s Reflections on Theology, Ethics, and the Church, ed. Timothy J. Wengert (Grand Rapids, MI: Eerdmans, 2004). 4. My discussion here relies primarily on Karlfried Froehlich, “Luther on Vocation,” in Harvesting Martin Luther’s Reflections on Theology, Ethics, and the Church, supra n. 3. See also Robert Benne, Ordinary Saints: An Introduction to the Christian Life, 2nd ed. (Minneapolis: Augsburg Fortress, 2003) (especially chapter 2, “Places of Responsibility,” and chapter 8, “Work”). The classic text on Luther’s understanding of vocation is Gustaf Wingren, Luther on Vocation, trans. Carl C. Rasmussen (Philadelphia: Muhlenberg Press, 1957).

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5. Martin Luther, “Commentary on Psalm 147,” in 14 Luther’s Works 107, 114–15, trans. E. Sittler, ed. J. Pelikan and D. Poellot (St. Louis: Concordia, 1958). 6. See Luther, “Whether Soldiers, Too, Can Be Saved,” 46 Luther’s Works 87, trans. Charles M. Jacobs, ed. Robert C. Schulz (Philadelphia: Muhlenberg Press, 1967) (see especially p. 97 on the distinction between the person and the office). 7. In his “Commentary on Galatians” (1535), Luther writes, “There must be masks or social positions; for God has given them, and they are His creatures. The point is that we are not to worship and adore them. The emphasis is not on the things themselves but on our use of them.” 26 Luther’s Works, supra n. 3, at 95. 8. See, e.g., Martin Luther, “How Christians Should Regard Moses,” 35 Luther’s Works 155, trans. and ed. E. Theodore Bachmann, ed. Helmut T. Lehmann (Philadelphia: Muhlenberg Press, 1960) (especially pp. 164–168); Martin Luther, “The Sermon on the Mount,” 21 Luther’s Works 1, ed. and trans. Jaroslav Pelikan (St. Louis: Concordia, 1956); Martin Luther, “Treatise on Good Works,” 44 Luther’s Works 15, trans. W. A. Lambert, ed. Helmut T. Lehmann (Philadelphia: Muhlenberg Press, 1966). 9. Antti Raunio, “Natural Law and Faith: The Forgotten Foundations of Ethics in Luther’s Theology,” in Union with Christ: The New Finnish Interpretation of Luther, ed. Carl Braaten and Robert Jenson (Grand Rapids, MI: Eerdmans, 1998), 96. I discuss Raunio’s essay at length in Robert W. Tuttle, “All You Need Is Love: Paul Ramsey’s Basic Christian Ethics and the Dilemma of Protestant Antilegalism,” 18 J. L. and Religion 427, 445–52 (2003). 10. Raunio, “Natural Law and Faith” at 104. 11. Raunio, “Natural Law and Faith” at 107. 12. Kazuo Ishiguro, The Remains of the Day (New York: Knopf, 1989). A number of other people have used this book for teaching or thinking about legal ethics. See, e.g., Rob Atkinson, “How the Butler Was Made to Do It: The Perverted Professionalism of The Remains of the Day,” 8 St. Thomas L. Rev. 199 (1995). 13. I have found Lon Fuller’s work to be the most useful for this purpose. See Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1977). 14. For a more detailed description and analysis of this claim, see Thomas D. Morgan and Robert W. Tuttle, “Legal Representation in a Pluralist Society,” 63 Geo. Wash. L. Rev. 984 (1995). 15. I have in mind here primarily Joseph Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice (Mahwah, NJ: Paulist Press, 1996). 16. For a somewhat different use of “re-presentation,” see Anthony V. Alfieri, “Impoverished Practices,” 81 Geo. L.J. 2567 (1993).

Chapter 4

Anabaptists

The Anabaptist wing of the Reformation rejected the use of law, because law requires the threat of physical coercion, a coercion that is inconsistent with Christian faith.1 Anabaptists are “nonresistant,” in contrast to “pacifist”— they will not fight the state, nor will they fight for the state, but they make no claim that non-Christians should not use force. The most doctrinaire of Anabaptists refuse to vote or serve in public office. Anabaptists seek to transform culture by separating themselves from culture and following the pure gospel, thereby hoping to attract others to Christ. They serve as a valuable challenge to those who are quick to exercise the power of the state. They are a strong witness for the use of nonviolent and nonadversarial means to resolve disputes, combat injustice, and seek reconciliation. Within some Anabaptist communities, there is a significant question whether their members can become lawyers, in light of the threat of coercion that is an integral part of much law. Our Anabaptist selection is based on a series of letters between the late Mennonite theologian John Howard Yoder and Catholic law professor Thomas Shaffer on the nature of legal education in the United States. If we listen to the Anabaptists in our midst, we might develop a dramatically different system of law and legal education.

notes 1. Donald Durnbaugh, The Believers’ Church (Scottdale, PA: Herald Press, 1985), 64–93.

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Anabaptist Law Schools Thomas L. Shaffer, in conversation with John Howard Yoder There are no Anabaptist1 law schools.2 There are a few Mennonite colleges, none with a law school attached. An association has been formed in North America of Mennonite lawyers who studied at law schools operated by a province or state or by associations not affiliated with an Anabaptist church. Although there are no Anabaptist law schools, we think it would be useful to imagine an Anabaptist law school as a way to help lawyers think about what one kind of sure-enough religiously affiliated law school3 would be up to. One way or another, believers who are in law schools need to find ways to get serious about being Jews and Christians in going about what we do, and an Anabaptist law school would be a place for being serious about one’s religious faith. My understanding of what an Anabaptist law school would be like has been enriched by decades of correspondence with the late Mennonite theologian and my former colleague on the Notre Dame University faculty, John Howard Yoder. Some of that correspondence is contained in Moral Memoranda from John Howard Yoder: Conversations on Law, Ethics, and the Church between a Mennonite Theologian and a Hoosier Lawyer (2002).4 In the materials below, I draw heavily on that correspondence. I have placed contributions from John in italics.

Community In an Anabaptist law school, “We can afford to begin with the gospel notions themselves and then work out from there . . . rather than beginning with the ‘real world’ out there (someone else’s definition of ‘the nature of things’) and then trying to place the call of God within it.” That working out is, for law professors, an academic enterprise. What is more important, for us and for other believers, is that this is the enterprise of a community. Anabaptists know a lot about community; attempts to preserve communities have earned for Anabaptists the slightly pejorative label “sectarian,” a label that would undoubtedly be affixed to an Anabaptist law school, if there were one:

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“A distinguishable believing community is the prerequisite for a pattern of moral thought in which Jesus Christ (rather than some lesser value like the well-being of the nation) is the norm, and for a nonviolent social ethic. . . . There is no such thing as an isolated word of the Bible carrying meaning in itself. It has meaning only when it is read by someone and then only when that reader and the society in which he or she lives can understand the issue to which it speaks.” All of which leads me to suppose that the substantive “sectarian” claim a sure-enough believers’ law school would make for itself, its communal claim, would be (i) richer, (ii) narrower, and (iii) broader than claims (if any) made by the religiously affiliated law schools many of us serve. (i) Richer because the “sectarian” communal claim in an Anabaptist law school would pay some legal attention to the Anabaptist insistence on independence from the state; on economies of sharing that are not compatible with corporate capitalism; and, most of all, on the rejection of the violence of war and the lethal punishment of criminals. As legal, the witness of the Anabaptist law school would be negative in those three ways. If this Anabaptist law school were to speak more positively about the life of a lawyer—the life, the witness, more than about the law—it would insist on the “normativeness of the power of love.” (Yoder was fond of associating the words “power” and “love.”) It “is God who saves, but not by reinforcing the selfishness and living up to the appetites of . . . people: [a God] who may save other people, other peoples as well, and who may even ask . . . people to love their enemies. Such a God affirms a given people’s tribal identity and posterity as a good thing, but not as over against their enemies and adversaries. The purposes into which [God] calls them will involve sacrifice, but not in order to obtain [God’s] grace. . . . it should be no surprise that on down through history, people who know that about God would be different from their neighbors, and would make problems for their rulers. Thus being out of place or out of phase will be one of the marks of their identity. This is what has been going on in Jewish life, for now nigh on twenty-six hundred years.”5 (ii) Narrower. One interesting and specific implication of the communal claim would be attention to membership—a concern lived out in ways that would be unusual among the rest of us. I mean to speak of membership as a claim on both sides of the relationship: (1) concern for membership on the communal side: who the school admits as students and the law professors it employs, and (2) concern for membership from the individual’s side, since membership among Anabaptists is radically voluntary. (As their name implies and the witness of the Anabaptists of the sixteenth

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century made explicit, Anabaptists limit initiation to membership—baptism—to willing adults.) “If you were to take seriously the perspective of the New Testament and the early centuries . . . the only people [law students] who can be counted on to be the ‘church,’ in the normative sense . . . are the ones who voluntarily ask for it. That commitment to discipleship cannot be the guaranteed product of a curriculum or even of the impact of charismatic teachers . . . if it is not part of the conditions for entering or leaving the school. . . . Following Jesus is, he himself warned [Luke 14:25ff], not a normal thing to decide to do. Some people have made that choice; some clearly have not. The fuzziness of the categories, i.e., —that some have made it but are inconsistent; —that some have not but are sometimes decent; —that some are undefined; does not change the fact, on the principled level, that some people are and some are not addressable in virtue of their baptismal vows (or functional equivalent). . . . [Then:] Suppose this: The presence of the law school ought to be the presence of the power of truth and love in the interest of the truth and the neighbor rather than the power of . . .” (ending ellipsis in original). The Anabaptist law school would also be (iii) broader than our notsure-enough religiously affiliated law schools are, because it would seek to influence the law from its substantive theology and would deliberate on ways to join in professional and political dialogue from its perspective. (Both its theology and its perspective are broader than American civil religion, which is the theology and perspective of most religiously affiliated American law schools.)6 The communal deliberations in an Anabaptist law school might, for instance, ponder what the Prophet Jeremiah wrote to captive Judah: “Seek the welfare of the city to which I have carried you off, and pray to the Lord for it; on its welfare your welfare will depend” (Jeremiah 29:4–8, N.E.B.). That, coupled with a nonviolent legal agenda, suggests the possibilities of international statecraft without war and criminal justice without using either destructive confinement or death as criminal punishment. The agenda also suggests contemplation of regimes, ancient and modern, that tried to get along without war and without destructive violence. (John Yoder liked to contemplate the Quakers in colonial America.) The mainline Protestant (Calvinist) theologian Walter Brueggemann covers both the internal dimension of this communal identity and the external dimensions—what the Prophet Jeremiah called the peace of the city—when he

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writes of the community as particular (“sectarian,” if you like) but also concerned with care for others—as biblical Israel is called, in the Torah and by the Prophets, to be a priestly people and a light to the nations.7 Brueggemann’s attention to the narrowness and the breadth of particularity might justify comparison to the Roman Catholic Vatican II document on the church in the modern world, Gaudium et Spes, which suggests, I think, the distinction Brueggemann had in mind.8 The ways in which the faithful community might seek the peace of the city turn on what members of the faithful community learn by being in and part of the city. Members draw from their participation in and observation of that city the raw material for their internal communal discussion. From the raw material, the faithful community decides what it should do by way of seeking the peace of the city; the criteria for decision, and the manner in which the community makes the decision, are internal and particular. A friend who is a Mennonite and a lawyer once said to me, “There are some things we do.” Much of the content of one of Yoder’s last books, For the Nations: Essays Evangelical and Public (1997),9 builds on the ecclesiology my friend implied. Yoder, in his most influential book, The Politics of Jesus (1972),10 called that ecclesiology “the hermeneutics of peoplehood.” My hypothetical Anabaptist law school community would not hold values derived from outside itself. The vocation of its members would be to go out and observe and come back and report, and then to join in figuring things out in community, the community deliberating by itself. And then, with those figured-out things in mind, its members would seek the peace of the city: “Since Aristotle people have been trying, and failing, to speak morally in the name of a community that would be ‘everybody.’ The state presumes to be that community of everybody for those who live within its borders and to be unaccountable to others. The believer is the person who refuses to acknowledge that claim. What enables that result is her or his rootedness in the formative life of a particular community.” I think an Anabaptist law school community would not set out to be countercultural but would know that it might end up that way. It would know because that is what happened to the sixteenth-century Anabaptists. (The old, enduring book in that tradition, second only to the Bible, is called The Martyrs Mirror.) “Those who seek to modify society by taking ‘more positive’ attitudes toward it are actually rendered unable to do so, when by ‘positive attitude’ they mean abandoning an independent standpoint.” John talked, on this point, about “concrete situational detachment,” which is not something the believer achieves alone: “The consistency which counts

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is the concrete community process of discernment, as that community converses, in the light of the confession ‘Christ is Lord,’ about particular hard choices. . . . It is the actual functioning fellowship of the church within human experience which validates claims to have known the will of God . . . meaningful and accountable only when those who call for it have a place to stand.” The community in such a case not only gives substantive witness to the society around it; it also models communal deliberation—shows the society how to notice and talk about the witness it delivers: “The call to ‘transformation’ can only have substance if there has already been some modeling of that to which the hearers are called.” To be a lawyer identified with such a place would mean, as John put it, “[not] working cleanly within the rules of the guild, but, rather [working] corruptly at the edge,” as the biblical Prophets and the Swiss Anabaptists did.11 Speaking truth to power, as the Quakers say. Maybe, after all, John was not describing an Anabaptist law school. Maybe he was talking about what the rest of us would be like—whenever, wherever we are, whatever we are doing—if we were serious Christians. This “working corruptly at the edge” carries with it a certain cost, of course; what Dietrich Bonhoeffer called “the cost of discipleship” imposes that cost, as discipline, on each member of the community. Much of John’s thought, late in his life, was a sometimes mildly inconsistent oral pondering of the cost of that cost. It was not, for one thing, a “social” cost: “I am not sure that believers should be obliged to make their moral claim in secular language, but neither should they have a right to a government-subsidized interpreter if they insist on doing it in Yiddish.” On the other hand, an issue in “the hermeneutics of peoplehood” was whether part of the discipline of membership was to share in the cost of translation: “If we really ‘seek the peace of the city,’ why should we fear that by saying our message in Babylonian we would have to destroy its meaning? Why should we not be able to translate? . . . It is true that every statement in one language is unique and not absolutely translatable. It is also true that between any two linguistic cultures a moderately bilingual person can produce a functionally adequate equivalent in one language of what you said in the other. That would be to say, if I understand John and apply his thought accurately, that members of the Anabaptist law school, as they talk among themselves about their lives as Christians, should not have to speak the language of American civil religion. What John wrote to me about language should not, though, obscure his concern for what the Prophet Jeremiah was writing about: “my primary frame of reference is the people of God, but it does not follow that I have no

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concern for the civil society. That concern is derivative, but it is real. I’d rather have [a civil society] where potholes get fixed than one where they don’t. ‘Morally inert like the weather’ [a phrase I had written somewhere, that John did not like] is not a good metaphor [for the government]. . . . One can change government; the religiously farthest out of the Fathers, [Roger] Williams [a Baptist] and [William] Penn [a Quaker], did the most to make American polity viable. One can change government best if one is most independent of it. The position which cannot change government is the Erastian,” the arrangement, embodied in the state church in the United Kingdom, where the government controls the church.

Discipline I cannot quite figure out how discipline would work out in the Anabaptist law school community. When, for example, would the community call into question the membership of a given student or teacher, even ask such a person to leave it? The New Testament community is, in enduring Anabaptist insistence, voluntary. Deliberation includes everybody in the community; every person who wants to speak is heard from; all have a moral obligation to listen to what each person says. The worst that members of, for example, an Amish community do to the rebel, the renegade, the deviant, is to turn their backs. (Of course, turning their backs, a communal movement that has come to be called “shunning,” is a powerful thing to do within a close-knit community.) Serious internal discussion of nonviolent discipline is characterized by tension or irony or both: the community is told to treat the stubborn, recalcitrant member as a pagan or a tax gatherer (Matthew 18:17, N.E.B.) and then is told about a Master who sought out and associated with pagans and tax gatherers. I think Stanley Hauerwas had the irony of this about right when he, reflecting on how Christians punish people, said the Gospel idea is that punishment is a call to come home. I can imagine the tension in such a practice, and its irony, as part of the content of the Anabaptist law school’s conversation on discipline. What I cannot imagine is the outcome of the conversation. (It might be useful to notice that in some of the communities I am thinking of conversation seeks consensus and is therefore recurrent and sometimes endless.) I suppose the outcome would, when it has to be reached, be provisional and tentative. I think of Roger Brooks’s account of rabbinical deliberation in Talmudic times and

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of how the Rabbis, as they reached a conclusion in a disputed case, preserved the argument that lost because it might become the conclusion of some future deliberation.12 Voluntary particularity is like that.

On Being a Christian and a Lawyer I suppose a question that should be kept alive in an Anabaptist law school would be the question of whether a Christian should be a lawyer. I once worked with a law student who had been one of John’s students in college. He had talked to John about coming to law school and had apparently mentioned to John pros and cons that had occurred to him as he tried to decide what to do. This young man reported to me, later, when he was in law school, that John had said to him, “Well, maybe a Christian should not be a lawyer.” When I reported that account to John he (characteristically) talked about the issue only after first breaking it into pieces. I am sure he would have proceeded that way—breaking issues into pieces—if he had been teaching law in an Anabaptist law school; our conversation about the young man was one of many occasions on which I noticed how John could dive into the middle of close analysis with the best of the “Socratic” law-teaching guild: “I wonder whether ‘lawyering’ is so univocal that one could or should decide, in the terms in which you set it up, ‘I as a Christian must be a lawyer’ or ‘I must not.’ Writing wills and contracts so as to be easy to implement, defending poor widows against the housing authority, defending people against capital punishment, prosecuting, judging, postponing the implementation of environmental rules, structuring corporate mergers leveraged with junk bonds, are all lawyering, but they are not all the same morally. “Instead of, ‘Am I as a Christian called to be a lawyer?’ would not the question, ‘Which of the things that lawyers do is a follower of Jesus called to do?’ be a more discriminating and manageable question? If either my friends in the guild or my brothers and sisters in the church want to help me discern, would that not be what they would do? Although in ultimate moral accountability, you (following William Stringfellow) refused in principle to sell out morally to any less-than-divine Lord, you do begin with an epistemological absolute, i.e., that the concept ‘lawyer’ is univocal. In real life there are notions already built into the culture, there are events, there are institutions, there are persons, there are the factual data of the material world— each of these dimensions being meaningful in terms of the others. Reality is

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multidimensional, just as is the hermeneutics of peoplehood.” That is, as a “Socratic” law teacher will try to show in a common-law class, there are more issues than the “student” notices at first, and analysis begins with identifying the issues. Then, as in the conversation of the church, there are different roles to be played by members in the assembly. “You want to distinguish qualitatively between saying, ‘A Christian cannot be a soldier’ (as the early church disciplines did, though we don’t know how they were applied) and saying, ‘A Christian might be a lawyer, but there are some kinds of lawyering she would not do. . . .’ [The question would be] how many of the components of lawyering or soldiering (in a specific setting) are incompatible with following Jesus. If ‘the barrier is put up in front of the category,’ that can be wise pastoral advice without its moral claims being dependent on needing to prove just how many things normally done in the category are wrong. Stringfellow’s point [when he said he was not a member of the legal profession but was a biblical person working in the law] was to relativize his lawyering, being only his job, whereas, in the arguments I care about, the point is to affirm the autonomy of the ‘vocation’ as a moral guide, including duties different from discipleship.” I do not understand John to have here endorsed, say, the Lutheran moral theology of vocation.13 That would have been interesting, but it would not have been Yoder, who once told me he was as suspicious of the ethics of vocation as he was of the ethics of the natural law. I think he meant here that he cared about affirming the autonomy of each ethical position so that he could say it was inconsistent with his view of the Christian life. That seems to me to say that he agreed with Stringfellow (although, being John, he might have wanted to argue a bit). When I move on from marveling at what a wonderful, traditional, even “Socratic,” law teacher John Yoder would have been, I can imagine how the semester would begin, in each course in an Anabaptist law school—how the first question (if I read right Yoder’s gloss on how our student’s story plays out) would be like the question John asked here: What does a lawyer do if a lawyer does that, and what might doing that have to do with following Jesus? But that would be neither a limitation on discussion nor a narrow definition of what was to be done in the course. Students in the Anabaptist law school are learning for witness as they learn about the legal world in which they will bear witness: “We should feel guilty, not when we need to be corrected but when we claim to bypass that need, as if our link to our origins were already in our own hands.”

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Wherein “Radical”? John’s and my mutual friend Edward Gaffney once explained the origins of Anabaptism to me as the rejection of the practice of enrolling babies in the civil order. When the Swiss Anabaptists in the 1520s refused to permit the baptism of their babies, that was the believers’ rejection of a Christian civil order that had been set up by the Roman emperor Constantine and formed by the medieval church. It was that refusal, Gaffney said, rather than Anabaptism’s developing pacifism or its rejection of capital punishment or its theology of the Sacraments, that at first defined the Radical Reformation. “What matters to the radical reformation position is not its radicality but its Lord. In situations where that appeal to the normativeness of Jesus does not trigger defensive expulsions, the free church has no commitment to schism or to extremism. . . . We report an event that occurred in our listeners’ own world [the life, death, and resurrection of Jesus] and ask them to respond to it [each of them, as each of them reaches a level of maturity where response is possible]. What could be more universal than that? . . . “The exercise of civil power need not be boiled down by definition to the wielding of the sword. A sectarian ethic can, when it has a chance, govern an American colony (William Penn) or can exercise major institution-building pressure and creativity (Gandhi, King, [Danilo] Dolci). Thus to argue that for believers to derive their ethic from Jesus demands that they withdraw from society is . . . an argument which follows neither from empirical experience nor from the content of the gospel message, but from the hermeneutic a prioris of the majority traditions.” In fact, though, the free church tradition, including the Anabaptists, has characteristically found itself in a minority—and persecuted—position. This has given it a certain perspective, a view not so much from the bottom of the pile as from a place that seems powerless. That perspective (which one could call peaceful) gave Yoder insights that were denied to those of us who write from one of the world’s command posts. He noticed, for example, that his tradition may appear to Calvinists, Catholics, and Lutherans to be passive in the face of social evil. But “one of the differences between being powerful and powerless is that one has thought more about the fact that there are evils one cannot prevent.” That being so, disestablishment of the church (the issue when one’s child is enrolled in Christendom or when a law student enrolls in American civil religion) “is

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not simply an accidental trait but an affirmative definition.” If you pressed Yoder on the point, he was likely to talk about the powerlessness of Jesus and to scoff at the mainline church’s claiming responsibility and guilt for what our “Christian nation” does when it tries to prevent an evil it cannot prevent: “Nor can we bring justification . . . to the effect that any growing community will have to dilute its morality a little in order to take charge of a society for the good of that society.” Not in an Anabaptist law school.

notes 1. I use the term Anabaptist in reference to the Radical Reformation of the 1520s in Zurich. Random House American Dictionary 44: “Anabaptist . . . an adherent of a religious and social movement which arose in Europe shortly after 1520 and was distinguished by its strict requirements for church membership, insistence upon being baptized over again, rejection of infant baptism, and by its demands for social reforms.” One historical moment of particular force for legal education was in October 1523, when the radical reformers declined to join Ulrich Zwingli when he sought the approval of the local government in Zurich for liturgical reforms he and they had decided to pursue. William R. Estep, The Anabaptist Story: An Introduction to Sixteenth Century Anabaptism, 3d ed. (Grand Rapids, MI: Eerdmans, 1996), 15–18. The Schleitheim Confession of 1527, assembled under the leadership of the Anabaptist martyr Michael Sattler (d. May 20, 1527), summarizes the jurisprudence of the Radical Reformation, distinguishing these reformers from both the Roman Catholic Church and Protestants whom the Anabaptists called “magisterial,” because they sought the protection of law. The seven articles of the Schleitheim Confession are the true articulation of the “free church”—the idea of a church of believers separated from the existing church and dominant society. . . . [T]he accord . . . expressed a deep sense of separation from all other institutions. . . . The articles opposed the oath, which became the primary symbol of rejection of political authority. . . . Schleitheim rejected the sword and made pacifism the normative position. . . . Following the radicals’ initial opposition to the tithe [imposed by law], Schleitheim now counseled payment of it, since refusal did not fit the pattern of nonresistance and suffering. J. Denny Weaver, Becoming Anabaptist (Scottdale, PA: Herald Press, 1987), 49–50. See also C. Arnold Snyder, The Life and Thought of Michael Sattler (Scottdale, PA: Herald Press, 1984); Thomas Finger, A Contemporary Anabaptist Theology: Biblical, Historical, Constructive (Downers Grove, IL: InterVarsity Press, 2004); Duane K. Friesen, Artists, Citizens, Philosophers: Seeking the Peace of the City; An Anabaptist Theology of Culture (Scottdale, PA: Herald Press, 2000); Hans-Jürgen Goertz, ed.,

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Profiles of Radical Reformers: Biographical Sketches from Thomas Müntzer to Paracelsus (Scottdale, PA: Herald Press, 1982). A contemporary American picture is in Dorothy O. Pratt, Shipshewana: An Indiana Amish Community (Bloomington, IN: Quarry Books, 2004). 2. I am not part of a true Anabaptist community, such as the Mennonites, Amish, or Hutterites, nor a member of a denomination that traces its origin to the Radical Reformation, such as the Church of the Brethren or the Seventh-Day Adventist Church. I do have tenuous connections with Anabaptism, having been raised in the Baptist Church (which itself is very distantly related to the Anabaptist churches) before I became a Roman Catholic in 1951. The one advantage I have in understanding what an Anabaptist approach to law and legal education might be is that I learned a lot from John Howard Yoder. 3. A “sure-enough religiously affiliated law school” is one I have elsewhere categorized as “sectarian”: Thomas L. Shaffer, “Erastian and Sectarian Arguments in Religiously Affiliated American Law Schools,” 45 Stan. L. Rev. 1859 (1993). 4. (Eugene, OR: Wipf and Stock, 2002). Selections from Moral Memoranda are used with the permission of the publisher. 5. John Howard Yoder, The Jewish-Christian Schism Revisited (Michael G. Cartwright and Peter Ochs, eds., Grand Rapids: Wm. B. Eerdmans Pub. Co., 2003), 243–44. The particular tension for an Anabaptist law school would be to somehow move the focus from imposing, administering, practicing law to the use of the law as an instrument of peace—or, at least, learning how to live with law without making things worse. See Guy F. Hershberger, “Litigation,” Mennonite Encyclopedia 375; Carl Kreider, “The Use of the Law,” Gospel Herald, July 3, 1979. 6. I tried to work with the idea of American civil religion, in a context such as this, in the 1998 Joseph B. Brennan Lecture at Georgetown University, later published as “Nuclear Weapons, Lethal Injection, and American Catholics: Faith Confronting American Civil Religion,” 14 Notre Dame J. L. Ethics and Pub. Pol’y 7 (2000). I depended there on a definition of American civil religion suggested by my colleague Philip Gleason: a form of idolatry that, early in American history, produced “a sacred dimension to American ideology and institutions, a ‘superreligion,’ and a common denominator to which every citizen is expected to subscribe if she is to be both religious and an American.” Gleason, Speaking of Diversity: Language and Ethnicity in Twentieth-Century America (Baltimore: Johns Hopkins University Press, 1992), 256–57. No serious Anabaptist would subscribe. See also my “Erastian and Sectarian Arguments in Religiously Affiliated American Law Schools,” 45 Stan. L. Rev. 1859 (1993). 7. See, for example, Brueggemann’s essay “The Legitimacy of a Sectarian Hermeneutic: 2 Kings 18–19,” in Interpretation and Obedience: From Faithful Reading to Faithful Living (Minneapolis: Augsburg Fortress, 1991), 41–69. He expresses the distinction as between “particularity” and “largeness of vision,” in Praying the Psalms (Winona, MN: Saint Mary’s Press, 1986), 63.

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8. “Gaudium et Spes: Pastoral Constitution on the Church in the Modern World” (December 7, 1965). As is customary in papal literature, the title consists of the first few Latin words in the document, which, in English, begins, “The joys and hopes, the griefs and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these too are the joys and hopes, the griefs and anxieties of the followers of Christ.” My teacher, colleague, and friend Robert E. Rodes, Jr., in a discussion at the law school at the University of Dayton, joined me in trying to ponder the meaning for jurisprudence and legal education of these words. “A Christian Theology for Roman Catholic Law Schools,” 14 U. Dayton L. Rev. 5 (1988). 9. Grand Rapids, MI: Eerdmans, 1997. 10. Grand Rapids, MI: Eerdmans, 1972; rev. ed., 1994. 11. From John’s essay on H. Richard Niebuhr’s Christ and Culture, in John Howard Yoder, Glen Stassen, and Diane Yeager, Authentic Transformation (Nashville: Abingdon Press, 1996). 12. See Roger Brooks, The Spirit of the Ten Commandments: Shattering the Myth of Rabbinic Legalism (New York: HarperCollins, 1990). 13. Which I attempted to describe (to Lutherans!) in the 1981 Rightor Lectures at Valparaiso University, in “The Legal Ethics of the Two Kingdoms,” 17 Val. U. L. Rev. 1 (1983).

Chapter 5

Baptists

The Puritan Massachusetts and the Anglican Virginia colonies, with the threat of jail and whip, prohibited Baptists from spreading their faith. Not surprisingly, Baptists were among the earliest advocates of religious freedom. But as Timothy Hall’s contribution to this collection illustrates, their support for religious liberty also grew from the teachings of their religious faith. Baptists’ traditional position in favor of a “wall of separation between Church and State” (a metaphor first invoked by Thomas Jefferson in his famous letter to the Danbury Baptists in 1802, describing his understanding of the First Amendment religion clauses)1 was based on their belief that Christianity must be freely chosen and that the exercise of political power is likely to corrupt the church.

notes 1. “Jefferson to the Danbury Baptist Association, January 1, 1802,” reprinted in John T. Noonan, Jr., and Edward McGlynn Gaffney, Jr., Religious Freedom (St. Paul, MN: West, 2001), 205–6.

Toleration and Dogmatism The Contribution of Baptists to Law Timothy L. Hall Hot Sundays still remind me of funeral fans, with pictures of the Good Shepherd or the lush green banks of the Jordan River where John baptized Jesus. The fans were made of stiff cardboard with a picture on one side 77

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and an advertisement for a local funeral parlor on the other. The cardboard was fastened to a flat piece of wood that soaked up perspiration from hands that glided back and forth through the summer heat, parting the heavy air like Moses parted the Red Sea. Funeral fans swirled the air of my childhood summers and mingled the warmth rising off the congregation with the preacher’s breath. I don’t remember the name of the funeral home that provided my church with the fans: I was a child and had no thought for death or its caretakers. But the funeral fans are still a fixture of my memory, wedged behind the hymn books whose songs were the chief accompaniment to my life for all the years I was growing up. My father was, from the time I was five years old, a part-time director of music in a trilogy of small Southern Baptist churches. On weekdays he worked as a sales representative for a succession of power companies and later as a tax assessor when I was in high school. But on Wednesday nights and twice on Sundays he directed a church choir and led the congregation in singing. The years I was growing up he sang in churches and tent revivals and in the open air, launching his voice further than he could see. I didn’t know at the time that the churches in which my father sang were “fundamentalist.” These were years before the Moral Majority came on the American political scene and long after the fundamentalist-modernist controversy of the early twentieth century had produced stark divisions among American Protestants. It wasn’t until I left home for college, then graduate school, and still later law school, that I learned that the churches that had been the incubators of my faith were, at least in the eyes of some observers, dangerously dogmatic. This is to say that the Southern Baptist churches of my youth were certain about some things. They were certain that God could be known because He had made himself known through Christ and through the pages of Scripture. Moreover, they were certain that they, as Baptists, had made better sense of what God had revealed in Scripture—on at least some points—than, say, the Pentecostals who worshiped across the street or the Methodists who worshiped down Highway 6 or, for that matter, any other churches that were not Southern Baptist. This is not a story, though, about someone who grew up Baptist but now embraces a different spiritual vision—and there are a respectable number of these, even among legal scholars. For much of my adult life, I have found a spiritual home among communities of believers who refer to themselves as Southern Baptists. Over the years since my wife and I were married in 1977, we have frequently, though not invariably, been mem-

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bers of Southern Baptist churches in the communities where we lived: in Houston and Austin, Texas, and later in Oxford, Mississippi. Though in recent years my family has worshiped with other Protestant fellowships, I still count myself as a close friend of the Baptists, and, in most of my theological thinking, I am still a Baptist at heart. I am not so certain about so many things today as those Southern Baptist congregations of my childhood. But I am a dogmatist when it comes to the essentials of Christian orthodoxy represented, say, in the Nicene or the Apostle’s Creed: I believe that the propositions stated in these creeds are true, not simply for me but for everyone. At least according to many secular observers, I shouldn’t exist—the I, that is, who believes in the essentials of what C. S. Lewis called “Mere Christianity.”1 After all, the first great myth of modernity is that religion is on the brink of extinction. We are routinely advised that it is no longer possible to believe. The poet Matthew Arnold, for example, lamented the retreat of faith in “Dover Beach,” comparing it to a tide’s ebbing: The Sea of Faith Was once . . . at the full, and round earth’s shore Lay like the folds of a bright girdle furl’d. But now I only hear Its melancholy, long, withdrawing roar, Retreating, to the breath Of the night-wind, down the vast edges drear And naked shingles of the world.2

Arnold is hardly alone in his vision of religion’s retreat. His great nephew, biologist Julian Huxley, predicted that religious belief would, in the near future, be no longer tenable, at least for educated people: It will soon be as impossible for an intelligent, educated man or woman to believe in a god as it is now to believe that the earth is flat, that flies can be spontaneously generated, that disease is a divine punishment, or that death is always due to witchcraft. Gods will doubtless survive, sometimes under the protection of vested interests, or in the shelter of lazy minds, or as puppets used by politicians, or as refuges for unhappy and ignorant souls.3

Many contemporary observers have difficulty moving beyond this first myth of modernity, even though the decades continue to pile up evidence

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that religion, even among intelligent people, is in no danger of extinction. At most, these observers have been chastened into announcing somewhat more remote dates for the celebration of God’s funeral. During the 1960s, for example, noted sociologist Peter Berger predicted that by “the 21st century, religious believers are likely to be found only in small sects, huddled together to resist a worldwide secular culture,” and likened the twentyfirst-century believer to “a Tibetan astrologer on a prolonged visit to an American university.”4 Berger has since abandoned this view (more recently he suggested that the twenty-first century is “an age of exuberant religiosity”), but it continues to exert a powerful attraction on some secular minds.5 The second myth of modernity, comforting to those who have lost faith in the first, is that dogmatic religion, at least, will shortly need last rites. Thus, Thomas Jefferson prophesied that rational religion, shorn of supernatural elements adhered to by such “impious dogmatists” as Athanasius and Calvin, would prevail within a generation. “I trust that there is not a young man now living in the United States,” he asserted in a letter written to Dr. Benjamin Waterhouse, dated June 26, 1822, “who will not die a Unitarian.”6 Both myths of modernity survive in the face of overwhelming evidence to the contrary. Neither religion generally nor dogmatic religion in particular show any signs of relinquishing the field. Unitarianism flourished in the nineteenth century, but it never became anything other than a minor tributary of American religion. The Unitarian William Ellery Channing and Universalist Hosea Ballou will always come up short in a name-recognition competition with Billy Sunday or Billy Graham. More recently, controversial Episcopal bishop John Shelby Spong insisted that Christianity must “change or die,”7 meaning by this that Christianity must surrender its historic belief that Jesus of Nazareth is Lord and Christ, conveniently failing to mention that it is precisely those Christian churches that have changed in the ways attractive to Bishop Spong that are dying or, at least, declining in numbers of adherents. Many churches still possessed of faith in Jesus as God remain very much alive. I would classify these two myths merely as the harmless superstitions of the wise but for a significant social reality: the most prominent accounts of toleration in American public life at the beginning of the twenty-first century implicitly embrace these myths. By common account, religious dogmatism, especially religious fundamentalism, is the enemy of toleration: as dogmatism wanes, toleration blossoms. But if toleration depends

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on the overthrow of religious dogmatism, then we are all very much in trouble, because dogmatism shows no signs of waning. Flannery O’Connor described a character in her story “Greenleaf ” as “a good Christian woman with a large respect for religion, though she did not, of course, believe any of it was true.”8 There are, however, good Christian men and women, as well as men and women of other religious traditions, who believe that the doctrines and precepts of their religions are true—not simply true for them, or their time and place, but true. The secular scripture that posits the imminent disappearance of these kinds of believers needs to be demythologized in Bultmann-like fashion.9 To erect a vision of toleration on the expectation of this disappearance is a significant mistake. Baptists belong to one of those dogmatic faiths that are supposedly destined for extinction in the modern age but that continue to flourish in spite of secular expectations to the contrary. Harold Bloom suggested in the early 1990s that Mormons and Baptists “will be at the center of what is to come” in the future of American religious life, “since more than any other groups they are imbued with the ambivalent vitalism of our national faith.”10 Baptist flourishing contradicts the myth of religious extinction. And the history of the Baptists, especially the important role they played in the struggle for religious liberty in colonial and revolutionary America, contradicts the popular notion that religious dogmatism is antithetical to religious toleration. Consequently, I think Baptists have something significant to contribute to our understanding about what toleration means. Baptists distinguish themselves from other Protestant groups flowing out of the Reformation by views relating to the Christian ordinance of baptism. They believe, for example, that baptism expresses the symbolic alignment of Christian believers with the death and resurrection of Christ. Consequently, they have traditionally insisted that this symbolism requires a baptism by immersion rather than by sprinkling. More important, Baptists reject the practice of infant baptism, believing that the ordinance of baptism should be reserved for those who have personally received the gift of salvation offered through Christ. This rejection reflects a radically individualistic view of salvation. I have elsewhere suggested that Baptists view salvation as the passage through a kind of turnstile, through which each soul “had to pass individually, separated at the moment of entry from both those who had passed before and those who would follow.”11 Baptist dogmatism about the nature of salvation has traditionally been coupled with dogmatism about “soul liberty,” making both important forces in the early struggle for religious freedom in America. Consider

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Virginia Baptists in the 1780s, who opposed a state legislative proposal to support Christian teachers with public funds. The Virginia struggle produced American history’s most eloquent defense of religious liberty, James Madison’s Memorial and Remonstrance.12 But Madison’s Memorial, circulated as the body of a petition, did not garner the most signatures in a petition drive that ultimately produced eleven thousand signatures against the proposed support of Christian teachers and one thousand in favor. Evangelical protests against the assessment bill drew more numerous signatures, and Baptists were a leading voice among these protests. They expressed their opposition to the bill in a series of petitions that typically began with the ringing announcement, “We do . . . earnestly declare against . . . [the assessment bill] as being contrary to the spirit of the Gospel and the Bill of Rights [i.e., the Virginia Declaration of Rights].”13 Note, in the first place, the spiritual bilingualism of this declaration. Bearing witness as a community of faith, the Virginia Baptists invoke the Gospel. But seeking also to find points of contact with their contemporaries, they refer as well to the Virginia Declaration of Rights. Baptists have long wrestled with the problem of speaking the language of Zion in the precincts of Babel. The assessment controversy of the 1780s is a case in point. Shall we accuse these Baptists of incivility for their commingling of religious and secular referents in the petition? Have they introduced an element of divisiveness into public discourse by their dogmatic appeal to the Gospel? Some contemporary legal commentators have marshaled arguments that would suggest as much. Consider for example, David Luban, who argued in an article about Martin Luther King, Jr.’s “Letter from a Birmingham Jail” that the religious elements in King’s letter were less attractive modes of political discourse than the secular elements. “[T]he Christian particularism of King’s Letter,” Luban wrote, “ultimately reflects a deep weakness in the biblical narratives as a mode of organizing a universalist political movement. Religion eventually divides a community, where egalitarian liberalism aims to unite it.”14 But what of the unifying potential of religion? The Virginia Baptists found in the Gospel reason to unite with James Madison and Thomas Jefferson to forge a new form of civil society, one in which church and state were no longer wed. This is the great irony, that the same religious beliefs that divided the evangelical Baptists from Madison and Jefferson became the causal grounds for the Baptists to join in a civil alliance with these two men and the Enlightenment sensibilities they represented.

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Note, in the second place, the dogmatism of the Baptist petitions, which complained about the proposed establishment scheme as “contrary to the spirit of the Gospel.” Here, with a swift rhetorical sweep, the Baptists cast aside a millennium of Christian teaching about the necessity of government support for religion without so much as an interfaith conference to soften the blow. They viewed the law through the eyes of faith and found it wanting. Having made their scriptural calculation, they pressed forward to announce it. Dogmatism was a defining characteristic of their faith. An eighteenth-century Virginian complained that you could not meet a Baptist in the road without him trying to ram a scriptural text down your throat.15 Baptists did not surrender their dogmatism as the price for grasping the idea of religious toleration. Indeed, toleration flowed from their faith. That is why their commitment to toleration is so instructive for a present in which dogmatism continues to flourish. The rest of the story is that the Bill for Providing for Christian Teachers died and Jefferson’s Bill for Establishing Religious Liberty was enacted as law. Madison and Jefferson found common cause with evangelical Protestants, Baptists especially and Presbyterians to a lesser extent, to defeat the proposed tax scheme to support Christian teachers. What should we conclude from this curious episode? In particular, how is it possible that religious dogmatism should support toleration? The modern mind, overly impressed by the horrific spectacle of the Inquisition and the Crusades, tends to imagine that the world can only be made safe from religiously inspired persecution if religious believers can be persuaded to take their beliefs less seriously. Serious believers, by this account, are the chief threats to religious liberty. (Of course, in spite of the mass murders prompted by various secular ideologies in the twentieth century, one seldom hears secularists suggest that perhaps they should take their secular ideologies less seriously.) But the history of colonial America makes this account difficult to support. There, ardent believers such as the Baptists were crucial allies of religious liberty. Why? Because the very religious beliefs that they so ardently held made religious persecution intolerable. They were convinced that the government could no more inspire its citizens to possess true religious faith than it could inspire a particular woman and man to fall in love with each other. In fact, Baptists believed that government-backed attempts to coerce religious belief actually harmed the cause of true belief, because these attempts were likely to inspire hypocrisy on the part of citizens.

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If we wish to sustain a commitment to religious toleration in a world still inhabited by militant religious certainties, we must find new patron saints. Justice Oliver Wendell Holmes is too skeptical and Thomas Jefferson too religiously indifferent to rally religious dogmatists to the stern work of toleration. Holmes famously defended the idea of free speech by suggesting that we imagine “a marketplace of ideas” in which customer buying preferences would ultimately reveal the truth. Holmes erected his “marketplace of ideas” metaphor upon the settled conviction that “time has upset many fighting faiths.”16 But what if the fighting faiths have simply abandoned their more tangible weapons and remain as militant as ever? After all, “Onward Christian Soldiers” continues to do a brisk business in Christian hymnals. Jefferson treated religious controversy with disdain, famously quipping that “it does me no injury for my neighbor to say that there are twenty gods, or no gods. It neither picks my pocket nor breaks my leg.”17 But Jefferson is a poor ambassador of toleration to those who find reason to fear from religious error more substantial harms than those. Contrary to the expectations of Jefferson and Holmes, religious dogmatism continues to flourish. I am such a dogmatist myself, and I have no difficulty finding spiritual company among those who believe with me that Jesus is Lord. But I have not the slightest temptation to coerce my fellow citizens into a common profession of this belief. Like the Virginia Baptists, I am convinced that coercion cannot produce real faith but only hypocrisy. The Christ I profess to follow spoke sharply against the use of physical coercion—in the form of a sword—to defend his cause.18 He relied on persuasion alone to communicate the Gospel, even though persuasion did not always convert unbelief into faith. And his reliance on persuasion rather than coercion did not spring from a lack of power, for he was very God and had legions of angels at his disposal.19 He left no other pattern than his own for his disciples, whom he subsequently charged to make disciples of all nations.20 There was no temporary plan B implemented for making disciples noncoercively until Christians were able to seize power within the Roman Empire and then inaugurate a coercive plan A for making disciples. There was always only the one pattern established by Christ. This pattern, to be sure, might involve strong words (“Woe to you, Korazin! Woe to you, Bethsaida!”),21 just as it might invoke a gentle invitation (“Come to me, all you who are weary and burdened, and I will give you rest”).22 But it was a pattern that left no room for coercive exercises of power.

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It is true, of course, that some religionists are happy to resort to coercive measures to see their views triumph in the public square, just as some nonreligionists are happy to resort to the same coercive measures. (Is it possible, any longer, to speak of the Inquisition or the Crusades without also speaking of Stalinism? Dogmatism has flourished in both religious and secular varieties.) What all dogmatists are in need of is a continued conversation about why toleration is a good thing—not simply a necessary evil forced on them until such time as they have power to have their way but a bonum in and of itself. If anything, religious dogmatists should be leading participants in this kind of conversation. Religious believers, after all, were the principal midwives of toleration initially; why should we not expect them to be its principle nurses today? Now, the modern discourse of respect sometimes construes toleration to include a prohibition even against attempts to persuade one another about religious matters. Lurking behind this view of toleration is a highly contested proposition: that religious matters cannot be characterized as either true or false or that they are otherwise not amenable to reasoned discourse. Religious dogmatists, of course, cannot assent to this proposition. Accordingly, they are categorically excluded from the company of those capable of practicing any toleration erected upon this proposition. Evangelical Christians, for example, believe that Jesus is Lord and Savior and that his identity as such is the heart of the New Testament Gospel, the evangellion or “good news.” They cannot surrender this belief without surrendering the very essence of their faith. And they cannot, even in the name of toleration, deny the command of their Lord to “make disciples of all nations.”23 Consequently, no one who understands evangelical Christian belief should have been remotely surprised that Southern Baptists might announce, as they did at an annual meeting in 1996, their desire to see Jews converted to Christ.24 To the extent that there was some discriminatory aspect to the Baptists’ missionary zeal toward Jews, it seems to me likely to have proceeded from the very antithesis of anti-Semitism. The Baptists may well have thought that the labor of loving evangelism was especially owing to those whom God had referred to as “my people.” Some Southern Baptists, for example, have justified their support for the state of Israel by referring to God’s statement to Abraham in Genesis 12:3: “I will bless those who bless you, and whoever curses you I will curse; and all peoples on earth will be blessed through you.”25 Jews certainly have historical reasons for finding talk of conversion ominous, since forced conversions of Jews by Christians have been among the nastier sins of

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Christendom. But it oversimplifies and distorts the complicated relationship between conservative Christians and Jews to characterize Christian evangelism among Jews as anti-Semitic. In any event, press releases concerning the announcement by the Southern Baptists in 1996 may have failed to disclose the fact, but it is also the case that Southern Baptists would happily see Hindus and Buddhists and any number of other nonChristian religious believers converted to Christ. What should we conclude about a view of toleration so characterized as to deny Southern Baptists—and many other dogmatic believers—the very possibility of exhibiting this civic virtue, since they would be forced to (and cannot) surrender core beliefs as a condition for joining the fraternity of the “tolerant”? I think we can fairly say that such an account of toleration is itself intolerant as well as imprudent. It is intolerant because it labels as deformed citizens those who will not surrender deeply held religious beliefs thought to be wrongheaded by their more ecumenically spirited neighbors. Requiring such a surrender as the price of civil fraternity seems to me the very essence of intolerance. Toleration will seek to sustain forms of civil life that do not call on citizens to make such severe sacrifices, and it will not lightly brand as inferior citizens unable to make them. Finally, an account of tolerance that religious dogmatists cannot embrace is imprudent in a world full of religious dogmatists. I am suspicious, though, of the unexamined axiom that treats religious dogmatists as the most likely harborers of intolerance and have elsewhere suggested examples from American history tending to show that between dogmatic and more ecumenically spirited believers, the dogmatists have sometimes practiced a more vigorous commitment to religious liberty than their more ecumenical neighbors.26 What we need is a kind of tolerance that can be practiced by dogmatic believers. Fortunately, this kind of tolerance has been around for a long time, and, as I have tried to suggest in this chapter, Baptists themselves deserve a good deal of credit for helping to invent it. This tolerance requires that we each respect the other’s capacity to participate in reasoned discourse and that we do nothing to substitute coercion for this discourse. It also requires that we speak to one another—even in the areas of our most fervently held beliefs and our sharpest differences— in a manner appropriate for fellow citizens who share jointly in the work of democratic self-governance and who possess equal religious liberty.

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notes 1. C. S. Lewis, Mere Christianity (New York: Macmillan, 1945). 2. “Dover Beach,” in The Poems of Matthew Arnold, ed. Kenneth Allott (London: Longmans, Green, 1965), 239–43. 3. Religion without Revelation (New York: Mentor, 1957), 62, quoted in Huston Smith, Why Religion Matters (San Francisco: Harper San Francisco, 2000), 72. 4. “A Bleak Outlook Is Seen for Religion,” New York Times, April 25, 1968, 3, quoted in Rodney Stark and Roger Finke, Acts of Faith: Explaining the Human Side of Religion (Berkeley: University of California Press, 2000), 58. 5. Peter L. Berger, “Globalization and Religion,” The Hedgehog Review 4 (2002): 7, 10. 6. Thomas Jefferson: Writings (New York: Library of America, 1984), 1459. 7. Why Christianity Must Change or Die: A Bishop Speaks to Believers in Exile (San Francisco: Harper San Francisco, 1998). 8. Flannery O’Connor, “Greenleaf,” in Flannery O’Connor: Collected Works (New York: Library of America, 1988), 506. 9. Rudolf Bultmann, New Testament and Mythology and Other Basic Writings, ed. and trans. Schubert M. Ogden (Philadelphia: Fortress Press, 1984). 10. Harold Bloom, The American Religion: The Emergence of the Post-Christian Nation (New York: Simon and Schuster, 1992), 191. 11. Timothy L. Hall, “ ‘Incendiaries of Commonwealths’: Baptists and Law,” in Christian Perspectives on Legal Thought, ed. by Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella (New Haven, CT: Yale University Press, 2001), 341. 12. James Madison, “A Memorial and Remonstrance,” in The Mind of the Founder: Sources of the Political Thought of James Madison, rev. ed. (Hanover, NH: University Press of New England for Brandeis University Press, 1981). 13. Rhys Isaac, “The Rage of Malice of the Old Serpent Devil,” in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History, ed. Merrill D. Peterson and Robert C. Vaughan (Cambridge: Cambridge University Press, 1988), 151. 14. David Luban, “Difference Made Legal: The Court and Dr. King,” Michigan Law Review 87 (1989): 2152. 15. Rhys Isaac, The Transformation of Virginia: 1740–1790 (New York: Norton, 1982), 164. 16. Abrams v. U.S., 250 U.S. 616, 629 (1919) (Holmes, J., dissenting). 17. Thomas Jefferson, Notes on the State of Virginia, in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 285. 18. Matthew 26:52. 19. Matthew 26:53. 20. Matthew 28:19.

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21. Matthew 11:21 (New International). 22. Matthew 11:28 (New International). 23. Matthew 28:19. 24. Laurie Goodstein, “Southern Baptists Support Resolution to Convert Jews: Move Seen as ‘a Great Setback’ for Interfaith Dialogue,” Washington Post, June 15, 1996, A2. 25. Malcolm Foster, “Jews Have Mixed Reactions to Pro-Israel Fervor of ‘Christian Zionists,’ ” AP Newswire, January 30, 2003. 26. Timothy L. Hall, Separating Church and State: Roger Williams and Religious Liberty (Urbana: University of Illinois Press, 1998), 160–62.

Part III

Home-Grown American Faiths

Whereas North America was the destination of the Protestant groups discussed in the previous section, it was the womb of many other religious groups, especially in the early nineteenth century. The Second Great Awakening, generally dated from the Cane Ridge Revival in 1801, added greatly to the number of evangelical churches, often at the expense of Congregationalist, Presbyterian, Reformed, and Episcopalian congregations.1 It also “introduced to the American scene a host of newly minted faiths—Adventists, Christian Scientists, Disciples, Holiness Churches, Jehovah’s Witnesses, Mormons, Pentecostals, Unitarians, and Universalists.”2 Many of these faiths place a strong emphasis on personal salvation and preparing for the next world, often at the expense of cultural engagement and changing this world. As new religious movements, they did not have long histories of thought about law and government to draw on. Nevertheless, the morality taught by these faiths had a great influence on the law. This section begins with consideration of the evangelical churches. Though evangelicals were present in the early days of the republic—represented by the essay on Baptists in the previous section—the explosive growth of the evangelical churches in the United States during the Second Great Awakening and since that time warrants consideration of evangelicals as a home-grown faith. In addition, this section contains representatives from three of the traditions that were spawned during the Second Great Awakening, the African-American, the Restorationist, and the LatterDay Saint churches.

notes 1. John Witte notes that between 1780 and 1860, the proportion of Calvinist (Congregationalist, Presbyterian, and Reformed) churches in the United States went from 50.2 to 18.6 percent, Anglican/Episcopalian from 14.8 to 4.1 percent,

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and Evangelical (mostly Methodist and Baptist) from 16.7 to 61.2 percent. John Witte, Jr., Religion and the American Constitutional Experiment, 2nd ed. (Boulder, CO: Westview, 2005), 120. 2. Ibid. at 119.

Chapter 6

Evangelicals

Within this collection, the Baptist, African-American, and Restorationist essays could all be characterized as “evangelical,” though many people within those traditions might not use that term to describe themselves. Most people within those traditions share the two primary evangelical beliefs: (1) the importance of a “born again” experience and (2) the authority of scripture. As the following essay indicates, evangelical beliefs regarding culture and law have varied wildly. Among evangelicals have been some who wish to withdraw from culture and some who wish to engage it, political liberals and conservatives, and some of the strongest proponents and opponents of the separation of church and state. In recent decades, evangelicals have become much more active in cultural issues in general, and in political and legal issues in particular. In this essay, I discuss that new engagement.

Evangelicals, Law, and Abortion Robert F. Cochran, Jr. For most of the twentieth century, evangelical Christians, though accounting for a third of the population of the United States, had little noticeable impact on public life. They seemed to be content to remain in their families and churches and allow others to run America’s public institutions. But things changed. Evangelical Jimmy Carter was elected president in 1976, and Newsweek magazine declared that the “year of the evangelical.”1 Over the next thirty years, three evangelicals (Carter, Clinton, and George W. Bush) served as president, and evangelicals were widely credited with having elected the other two (Reagan and George H. W. Bush). 91

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What might this influence mean for law? In this essay, I will consider how evangelicals might approach law in general and how we might approach the challenging topic of abortion.

What Is an Evangelical? I begin with an introduction to evangelicals, but first an introduction to myself: I am an evangelical, with strong evangelical roots. My mother and maternal grandmother were Bible teachers, each teaching groups of up to fifty people in Sunday-school classes almost every week. My father, raised in a poor, single-parent family, walked a sawdust aisle in a tent revival meeting as a young teenager, gave his life to Christ, and has been preaching for sixty-five years. Like many PKs (“preacher’s kids”) I rebelled against my no-dancing, no-drinking upbringing, but in law school, through reading C. S. Lewis’s Mere Christianity and John Stott’s Basic Christianity, I got serious about following Christ and returned to the evangelical fold. I graduated from law school in 1976 (the “year of the evangelical”), and I have lived on both sides of the evangelical divide, in both its private and its public mode. I have spent most of my adult life as a law professor, wrestling with the implications of Christian commitment on law. Evangelicals are part of a large, very diverse family, which includes Dutch Calvinists, African-Americans, Mennonites, South American Pentecostals, Catholic Charismatics, Southern Baptists, and those who attend American megachurches. There are evangelicals in almost every church, evangelical churches in almost every denomination, and fifty-two denominations in the National Association of Evangelicals.2 The evangelicals who get the most media attention are fundamentalists, whom George Marsden, one of the great historians of evangelicalism in America, defines as angry evangelicals.3 Most evangelicals are not angry, at least about most things, but the media finds that angry spokesmen generate the most interesting sound bites. As David Brooks has noted, most Americans do not even know the name of the most influential evangelical, the British Anglican pastor John Stott.4 Some have called him the “Evangelical Pope.” He has written more than forty books, translated into more than seventy-two languages. I am from the John Stott school. Though he has been writing for decades, addressing cultural and political issues and encouraging other evangelicals to do the same, he keeps these issues in perspective. At a breakfast meeting,

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following Brooks’s “discovery” of Stott, Brooks found that “when I tried to talk politics with him, you could see his eyes sort of cloud over. But whenever we would talk about Jesus, he was just alive and vibrant.”5 Evangelicals have two central beliefs in common. First is the importance of a new birth in Christ. There is especially good authority for this. Jesus told Nicodemus, a religious leader of his day, “You must be born again.”6 Evangelicals preach the good news that though we have all sinned, Christ died for our sins. Anyone can turn from his or her sins, accept God’s forgiveness, and follow Christ. Following Christ gives one a personal relationship with God, a meaningful life today, and eternal life with God. Evangelicals are called to share this good news to others. Second, evangelicals believe in the authority of scripture. The reliability of scripture is based on the reliability of its writers. The authors of the New Testament—the portion of the scripture that describes Jesus and the early church—were willing to die rather than recant what they wrote. It does not take a lawyer to recognize that they make reliable witnesses. At times it is said that evangelicals take a literal approach to scripture. That is not exactly correct. Evangelicals recognize that the Bible contains many types of literature—history, poetry, parables, prophesies, letters, metaphor, simile, and hyperbole. The key to interpretation is the intent of the author. When Jesus says, “I am the gate,”7 he does not mean that he is a physical gate. He symbolically states that he is the means of entering into a relationship with God. But when Luke says that he based his record of Jesus’ life on a careful investigation of the facts,8 we take his book as history. Evangelical ethics are a response to God’s grace. The substance is captured by the bracelets that evangelical kids wear that say “WWJD”—“what would Jesus do?” The evangelical environmentalists’ question, “Would Jesus drive an SUV?” is, or should be, a compelling question for evangelicals. The question raised by this book is more complicated: “Would Jesus favor laws that prohibit other people from driving SUVs?” Of course Jesus had no legal power, so the question of an evangelical political ethic is a challenging one. First, a look at the history of evangelicals in America.

Evangelicals in America Explosive evangelical growth came to America in the First and Second Great Awakenings. The First Great Awakening, marked by the influence of intellectual Congregational pastor Jonathan Edwards and visiting British

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evangelist George Whitefield, occurred largely among the established churches during the 1720s, 1730s, and 1740s. The Second Great Awakening arose in the early 1800s, largely outside of the established churches. Some scholars have noted the strong influence that evangelical churches had on the early growth of democracy in the United States,9 but the influence went both ways. As historian Nathan Hatch has noted, the democratic impulse of the American Revolution fueled evangelical fervor. Evangelical churches “offered common people, especially the poor, compelling visions of individual self-respect and collective self-confidence.”10 The movement was antielitist. “Respect for authority, tradition, station, and education eroded.”11 Liberty was a high value among these new believers. Tocqueville was surprised to find that in contrast to Europeans, “[f]or Americans, the ideas of liberty and Christianity are so mingled that it is almost impossible to get them to conceive of one without the other.”12 The Second Great Awakening had an enormous influence on American society. Between 1775 and 1845, the number of Christian ministers jumped from eighteen hundred to nearly forty thousand.13 According to Hatch, this movement “did more to Christianize American society than anything before or since.”14 It brought social reform, as well as evangelism.15 Sociologist Robert Bellah refers to it as the “second American revolution” and argues that it “determin[ed] the direction of the popular consciousness for the rest of the [nineteenth] century.”16 Evangelicals were at the forefront of the most important social movements in the century, including the antislavery movement, women’s suffrage, child-labor laws, and temperance. Abraham Lincoln’s childhood Baptist roots were among his first antislavery influences.17 America’s most liberal presidential candidate, William Jennings Bryan, may also have been its most evangelical presidential candidate.18 Evangelical social action in the nineteenth century is not entirely a pretty story. Antislavery evangelicals had to contend with proslavery evangelicals in the South, and there was heavy evangelical support for the anti-Catholic, anti-immigrant campaign of James G. Blain.19 Early in the twentieth century, evangelicals made what some historians have called “the great reversal.”20 Evangelicals retreated in the face of modernism into their (often fundamentalist) enclaves and left social issues to proponents of “the social gospel” in the mainline churches.21 But there were voices that were critical of the evangelical/fundamentalist withdrawal. Carl Henry, in The Uneasy Conscience of Modern Fundamentalism (1947), encouraged evangelicals to engage social and legal concerns. He

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and other “neo-evangelicals” laid the groundwork for the evangelical reengagement that was to emerge later in the century. Though Newsweek declared 1976 “the year of the evangelical,” two events in 1973 may have made it the more important year for evangelical political and legal engagement. In that year, a broad range of evangelicals met and issued the Chicago Declaration of Evangelical Social Concern. They confessed the failure of evangelicals to be involved in important social issues, confessed their responsibility for racism and sexism, and declared their opposition to poverty and materialism. Marjorie Hyer of the Washington Post wrote prophetically that their meeting “could well change the face of both religion and politics in America.”22 This was also the year of the Supreme Court decision that served as the catalyst for much evangelical legal engagement—Roe v. Wade declared a constitutional right to abortion. Until that time, evangelical attention to abortion had been limited and mixed, but evangelicals reacted strongly to the Roe decision. Abortion has been the driving concern behind much evangelical political involvement since that time.23 As the preceding two paragraphs illustrate, evangelicals do not fit easily under the liberal or conservative labels.24 Evangelical “liberals” tend to be pro-life and pro-family; evangelical “conservatives” tend to favor a “compassionate conservatism.” The National Association of Evangelicals’ 2004 statement, For the Health of the Nation: An Evangelical Call to Civic Responsibility, encourages evangelicals to work for laws that will not only protect the family and prevent abortion but also protect religious freedom, combat poverty, encourage peace, and protect the environment.25 Despite agreement among evangelicals on many goals, however, there is great disagreement on what issues to emphasize.

Scripture and Law Evangelicals believe in the authority of scripture, but what does scripture teach about law? In this section, I briefly consider a few biblical themes that influence evangelical perspectives on law.26 Morality, Justice, and Love of Neighbor Much of the Bible’s moral teaching has potential implications for law. The Mosaic Law, given by God to Israel in its earliest days as a nation,

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included ceremonial, moral, and positive law. It is difficult to classify in contemporary political terms, imposing harsh penalties for interference with life and family and light penalties for property crimes.27 Land could be bought and sold, but at the end of every fifty years—in the Jubilee Year —it was returned to the families that originally owned it.28 Loans were forgiven every seven years.29 The poor were allowed to pick the crops at the edges of all fields.30 Though the prophets of Israel often draw attention for their ability to foretell the future, their primary role was to speak on behalf of God to Israel and surrounding nations.31 Often, what they talked about was injustice: [Y]ou hate the one who reproves in court and despise him who tells the truth. . . . [Y]ou deprive the poor of justice in the courts. . . . Hate evil, love good; maintain justice in the courts. . . . [L]et justice roll on like a river, righteousness like a never-failing stream!32

Throughout the scripture, but especially among the prophets, a nation is judged by its care for orphans and widows.33 Much of Jesus’ moral teaching focused on the need to transform the heart, but he spoke of moral law as well. He summarized the law in two commands: Love God with all your heart, soul, and mind and “Love your neighbor as yourself.”34 At one point, a lawyer seeking to “justify himself ” asked, “Who is my neighbor?”35 Jesus responded with the story of the Good Samaritan, in which a member of the despised Samaritans serves as the role model, caring for the needs of a man who has been beaten and robbed and taking him to an inn at the Samaritan’s own expense. Are there implications for law in the command to love our neighbor? While affirming the actions of the Good Samaritan, Jack Sammons suggests that lawmaking might be an act of love: law might deal “with the underlying problems of the dangerousness of passage to Jericho, or the need for medical care to travelers in distress, or, for that matter, the hardhearted financial shrewdness of innkeepers.”36 The development and enforcement of wise laws can be among the most loving acts that a person can do. “Love your neighbor as yourself ” suggests not only that we should care for others but also that others are equal to us. The implications of this command are even clearer in the section of the Mosaic Law from which it is drawn, in what may have been the first “equal protection” clause: “The

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alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt.”37 Freedom A second scriptural theme with implications for law is that of freedom. This theme has special resonance with evangelicals. As noted previously, evangelical growth in America, especially during the Second Great Awakening, occurred in part because Americans associated freedom with religion. The central stories in the Bible are stories of freedom. God frees people from slavery, from sin, from obsession with the law. The central story of the Old Testament is a story of political freedom—God through Moses leading the Jewish people out of captivity in Egypt. The central story of the New Testament is one of spiritual freedom—“So if the Son sets you free, you are free indeed.”38 The evangelical love of freedom tends to lead white and black evangelicals in different directions. The ancestors of many white Americans came to America to escape oppressive governments. In their family stories, government is the bad guy, and their response is, “Don’t tread on me.” Though African-Americans were originally oppressed by laws enforcing slavery and segregation, law ultimately came to their aid. They tend to see law as Moses, the liberator. To some people, the biblical emphasis on freedom is surprising, for the doctrine is accompanied by challenging moral commands. Americans think of rules as limits on freedom, but God’s moral laws complement and enhance freedom in several respects. In the United States, we generally think of freedom as “freedom from”—freedom from slavery, freedom from oppressive government. The Bible affirms this sort of freedom in the story of Moses and elsewhere, but it also promotes “freedom for.” Oliver O’Donovan describes this as the freedom ideal of aristocrats—freedom to pursue broader opportunities.39 The scripture teaches not only that God frees us from bondage but that he frees us to serve the church, the community, and the world. Scripture also teaches that we exercise the most freedom when we live within the moral structures for which God made us. Moving outside those structures subjects us to bondage to other things—in Bob Dylan’s very biblical phrase, “You’ve got to serve somebody.” The illustration heard often in evangelical churches is that fish have great freedom so long as they stay in water. They are in big trouble when they get out.

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In addition, submission to God gives the believer freedom relative to the state. Submission to the ultimate authority reduces the power of the penultimate authority. This is why all dictators seek to destroy or control churches. The early Christian confession that “Jesus is Lord” stands as a direct challenge to the confession that “Caesar is Lord.” Jesus’ View of Law In what may be Jesus’ most direct teaching regarding law, he addressed the only section of the Mosaic Law that discussed divorce. In my view, his comments help to identify the task of all who have an impact on law, including voters, lawyers, judges, and legislators. The relevant section of the Mosaic Law says, “If a man marries a woman who becomes displeasing to him because he finds something indecent about her,” and he divorces her and she remarries and her second husband dies or divorces her, the first husband may not remarry her.40 The meaning of this section was hotly disputed in Jesus’ time among Jewish legal scholars. Though the only explicit regulation in it is the prohibition of remarriage under the circumstances mentioned, it appears to accept divorce where the wife “has become displeasing to [the husband] because he finds something indecent about her.” Shammai argued that adultery was the only basis for divorce. Hillel argued that this rule permitted divorce for almost anything, including the wife’s burning the husband’s food or the husband’s seeing a woman he preferred to his wife.41 Some religious leaders presented this dispute to Jesus. He first emphasized that it was God’s original intent that marriage be permanent, and then he said, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for marital unfaithfulness, and marries another woman commits adultery.”42 Though Jesus affirmed the permanence of marriage as a moral matter, he accepted the Mosaic rule as a matter of law, basically adopting Shammai’s interpretation that “marital unfaithfulness” is the only proper basis for divorce. Jesus affirmed the validity of the Mosaic Law, though it deviated from the ideal, noting that Moses allowed divorce “because your hearts were hard.” Jesus approved of law that does not impose the ideal, in light of our fallen human nature. What is the meaning of “because your hearts were hard”? It appears that Moses (and Jesus) envisioned the harmful consequences that would arise if no divorce were allowed—husbands would abandon wives and

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take other women without benefit of divorce; husbands would father illegitimate children; children of new relationships would not be provided for at death; and so on. In light of the potential consequences, Moses allowed divorce. Jesus may also have had in mind the notion that not everyone is capable of abiding by the ideal.43 If the law imposes too heavy a burden, people may give up on compliance, and the law will fall into disrespect. Law should prohibit only the greatest evils. Jesus affirmed Moses’ creation of best-practical-alternative laws, but Jesus’ comments also suggest that legislation should try to get back to God’s ideal. Under this view, if the social circumstances are such that people would accept a rule that is closer to God’s ideal, the wise legislator should pursue it. This suggests an enormous opportunity (and responsibility) for voters, lawyers, judges, and legislators. They must prudently and creatively craft laws with eyes fixed on both God’s ideal and on the practical reality. They should identify God’s ideals and determine how to advance those ideals in light of the current social situation. At first, it might appear that this task would put the Christian legislator on a collision course with those who do not share the same view of God’s ideal. But, in fact, it provides great room for working on law with people from a wide variety of backgrounds, religious and nonreligious. Some differences will arise as to the moral ideal, but views of the moral ideal should not differ greatly. According to Paul, the moral law is written on the heart.44 Paul recognized the existence of natural law—moral law that can be known outside written revelation45 —and it can serve as the basis of a common legal agenda.

Evangelicals and Law Among evangelicals, there is a wide range of social, economic, and moral views. The basic question for law is whether the state should enforce such views. Assume that an evangelical concludes that Jesus would not (and therefore the evangelical should not) drive an SUV. Should he or she work to have the law impose this view on other people? Questions about legal power are difficult for evangelicals, because the Bible, our foremost guide, speaks of and to political situations that are so different from our own. In the scripture, the people of God are either in control of the government (in ancient Israel) or under the yoke of a pagan

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ruler (e.g., Egypt, Babylon, and Rome). In the United States today, Christians live in a pluralistic democracy. We have varying levels of influence on, but do not control, the law. I see roughly three evangelical responses to our current situation. “A Christian Nation” Some evangelicals, many with theocratic Israel as a model, long for a “Christian nation.” Their politics are characterized by some or all of the following: First, some want the government to declare through monuments, symbols, and official designation that the United States is a “Christian nation.” In my view, evangelicals should oppose the official designation of the United States as a “Christian nation” for theological reasons: the United States is so far from following Christ (indeed, it is difficult to imagine a nation following Christ) that it would be hypocritical to suggest that it is Christian. Such a designation is a form of civil religion and can blind citizens to the ways in which we fall short of what God wants of us. In addition, such a designation runs directly counter to one of the great evangelical insights (proclaimed by the Anabaptists in the early days of the Reformation), that Christian faith cannot be imposed by the state. Short of an unprecedented religious revival, the religion of the people will not be (as one post-Reformation peace formula suggested) the religion of the ruler. Only individuals can become Christians and this by free choice. I want us to have a Christian nation, not in name but in substance—I want it to be Christian because people freely choose to follow Christ. Second, some evangelicals seek the direct, explicit adoption of Christian morality as the law of the land. Often such evangelicals are theologically legalistic, focusing on obedience to the moral law rather than on God’s grace in their churches, and it is easy for them to turn to law as a solution to cultural problems. The most extreme example is the Theonomists, who propose the restoration of the Mosaic Law.46 They are very small in number and influence, but are quite popular among secularists who seek to use them to discredit the idea of any Christian influence on law. At times, Christian state movements have been on the left, for example, Christian socialism in the nineteenth and early twentieth centuries and liberation theology since the 1960s. In the United States in recent decades, most of the advocates of a Christian state have been on the right. But as Tocqueville noted, the Christian faith thrived in the United States following the American Revolution because, unlike France, freedom was as-

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sociated with religion. Religious faith in the United States is in danger if, as Os Guinness warns, “Tocqueville’s spirit of religion and spirit of liberty are beginning to march in a French direction.”47 Finally, advocates of a “Christian nation,” both on the left and the right, tend to use uncompromising tactics and a harsh, self-righteous political style. These Christians have their own arrogant, judgmental language. Such language not only alienates others but often signals a lack of ideas; when you hear a Christian refer to his position as “prophetic” and the opposing position as “idolatrous,” it is likely that he or she has run out of substance. The dangers of a strong identification of Christian faith with the state are many. Christianity in general and evangelical Christianity in particular have been attractive in the United States, in part because they have not been strongly identified with the state. It is probably not coincidental that the explosion in evangelical growth during the Second Great Awakening coincided with states’ rejection of religious establishment. If Christianity becomes too closely identified with a political position (whether of the left or the right), it will rise or fall with the successes and failures of that political position instead of the claims of the gospel. The church must remain separate from temporal political structures if it is to faithfully maintain its witness. Otherwise, the message conveyed to a largely secular public is that the Christian faith is primarily a matter of political activity, when it actually comes far down the list of factors important to most evangelicals. There is also a danger that Christians who seek political power will be coopted by other political actors: “when the press releases of the National Council of Churches are indistinguishable from those of the Democratic Party and the press releases of the Christian Coalition are indistinguishable from those of the Republican Party, one wonders who is transforming whom.”48 The Christian Enclave A second option is withdrawal from the political and legal arena. Those who favor this option see Israel-in-captivity or the early-church-in-thecatacombs as their model and believe that Christians should focus solely on evangelism and faithfulness within the Christian community. Gregory Boyd argues that the Christian’s life is to be marked by a refusal to recognize any eternal good in any political structure or movement, which by their very definition stand opposed to the radical ministry of Jesus Christ.49

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Like those who advocate a “Christian nation,” this group is diverse politically. Some within this group, including old-line fundamentalists and Christian libertarians, just want the outside world to leave them alone. Others, such as Stanley Hauerwas, want Christians to withdraw from the culture but to seek to speak to it prophetically from the outside. They argue that the church should transform the world, not through political power but by modeling a different way of life. According to Stanley Hauerwas and William H. Willimon, “the political task of Christians is to be the church rather than to transform the world.”50 In my view, the weakness of this model is that it fails to accept responsibility for the good that Christians can do through governmental structures. Such a withdrawal yields, to the great delight of secularists, what Os Guinness has called a “Secular Public Square.”51 It yields a public square that lacks the leavening influence of Christian morality. As John Stott argues, God is concerned with the whole of life, in all its complexity. He is the God of all creation. The message of the Hebrew prophets is that he is a God of justice, as well as of salvation.52 Involvement in the civic conversation about how we structure our lives together can be an act of Christian love. Some of history’s greatest evils—segregation in the Jim Crow South, for example—arose because religious believers failed to view law through the critical vision of their faith. Those who argue that they can speak prophetically from their Christian enclaves will find it difficult to influence those in power, while they condemn them for the exercise of that power. Restrained Christian Political Responsibility An alternative to both the “Christian nation” and the Christian enclave is the restrained exercise of Christian political responsibility. As John Stott notes, God’s injunctions in the Bible generally assume that he has endowed humans with both freedom and conscience. At times the law needs to step in and correct social injustices, but persuasion, rather than imposition, is the primary way that Christians should spread God’s moral teaching. Our arguments should appeal to conscience and reason, for God’s moral laws “are both good in themselves and universal in their application because, far from being arbitrary, they fit the human beings God has made.”53 Our arguments should be framed primarily in moral terms that are accessible to all. Christian engagement in the public square should (in order to be faithful) and must (in order to be effective) be civil and respectful, rather

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than arrogant and judgmental. If law is to have broad support, it must be based on common grounds. Christians should favor the exercise of some governmental power. Without regulation, citizens will make decisions at the expense of other people. But that exercise should be restrained. Governmental officials are likely to use power to their own advantage; power corrupts. In addition, Christians should favor limits on law because freedom is a positive good. Christians should favor, in William Stuntz and David Skeel’s phrase, “the modest rule of law.”54 Law should step in only in the most important matters. Of course, the challenge is to determine what the most important matters are. Like many of the classic virtues, which require the appropriate mean (e.g., courage) between two extremes (recklessness and timidity), restrained Christian political responsibility is a mean between two extremes: dominance and withdrawal. Such an approach to positive law is more in accord with Jesus’ emphasis on heart attitudes and character, rather than religious approaches that focus on the letter of the law. The approach would leave a larger area of human responsibility to the exercise of conscience than to regulation. The public philosophy that best fits this sort of restrained Christian activism is what Os Guinness has called “the civic public square” and what James Skillen has called “principled pluralism.”55 We, along with our neighbors, enter the public square and argue our positions based on our deepest convictions. In Os Guinness’s terms, we have neither a sacred public square (where arguments of one religious faith are privileged) nor a secular public square (where secular arguments are privileged) but a civil public square (where all arguments are welcome).56 Christians bring their moral values into the public square and engage with people of other faiths and of no faith. The level of Christian influence is based on the strength of our arguments, not because we claim that the arguments are Christian. Political discourse with those of other faiths will also help Christians to make their positions more Christian. With the exception of a few political issues, the Christian approach is not clear. Many decisions turn on the sorts of prudential judgments that both Christians and non-Christians make. As I argued earlier, God’s ideal is likely to appeal to a broad range of people. The challenge is to discern how to move toward it in light of the “hardness of hearts.” Hopefully, we can both learn and teach. Restrained Christian political responsibility is consistent with the practice of evangelicals during much of American history and with the views

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of most evangelicals today. Tocqueville in the early nineteenth century found that religion was “the first of the political institutions” but that it took “no direct part in the government of society.”57 Its influence was indirect. Faith influenced moral values and moral values influenced law. Though you would not know it to hear the media’s “evangelical spokesmen,” evangelicals continue to prefer such indirect influence. The most frequently mentioned political goal of evangelicals, according to Christian Smith’s recent survey, is the maintenance of religious freedom for all, not the imposition of any particular biblically based civil law.58

Abortion Choice, individualism, and freedom are high evangelical values. White evangelicals, in particular, generally favor limited government. Thus, it may seem surprising that evangelicals generally favor antiabortion laws. But evangelicals ask the question that the lawyer asked Jesus: “Who is my neighbor?” In this context, “Is the unborn child my neighbor?” Like any people, evangelicals must ask who is entitled to the protections of their society’s laws.59 Evangelicals believe that the Christian scripture reveals God’s wisdom and teaches what is good for humans. If I were to enter the public square to discuss abortion, I would steer away from arguments based on scripture. I would address this issue in scientific and philosophic terms, as others have done.60 But this book is designed to increase understanding of ways that different religious traditions approach law. It is a book of selfdisclosure. Therefore, I will focus on insights that scripture brings to the abortion issue. I then consider whether, assuming that abortion is wrong, the law should prohibit it, and I offer an evangelical critique of abortion law in the United States. Biblical Insights The Bible does not mention abortion, but it asserts in many places that God formed the human person in the womb.61 For example, in Psalm 139, David says, O LORD, You have searched me and known me. You know when I sit down and when I rise up;

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You understand my thought from afar. You scrutinize my path and my lying down, And are intimately acquainted with all my ways. ... [Y]ou formed my inward parts; You wove me in my mother’s womb. I will give thanks to You, for I am fearfully and wonderfully made.62

Obviously, the language is poetic; David is not saying that God physically created us on a potter’s wheel or a loom. But because a statement is poetic does not mean that it is meaningless. The Psalmist stands in wonder at the intimate knowledge that God has of all humans and his role in creating us from the earliest stages of our lives in the womb. As John Stott notes, David, “in the familiar imagery of the ancient Near East,” affirms “that the process of embryonic growth is neither haphazard nor even automatic, but a divine work of creative skill.”63 This psalm expresses awe at the complexity of the human person as one of God’s works and acknowledges God’s sovereignty. These verses and the many that make similar claims suggest that interference with the child in the womb is interference with God’s creation. From the time in the womb, we are “fearfully and wonderfully made.” There is only one scripture that arguably calls into question the full humanity of the unborn child. It is from a portion of the Mosaic Law: If men who are fighting hit a pregnant woman and she gives birth prematurely [“Or she has a miscarriage” (from accompanying footnote)] but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.64

Note the significance of the different possible translations. In the primary translation, the law treats the child and the mother equally—if the blow merely causes the child to be born prematurely, the offender is fined; if there is serious injury, apparently to either the child or the mother, the penalty is equal to the harm inflicted. Under the alternate translation, the unborn child appears to have less value than the mother—if the child is killed, the offender is fined; if the mother is killed, the offender suffers life for life.

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The significant Hebrew word in this section is weyatse’u, literally the child “goes forth.” It can mean either that the mother “gives birth prematurely” or “has a miscarriage.” Arguing in favor of the primary translation (“gives birth prematurely”) is the fact that only a few chapters later, the author uses a different word for miscarry: “None shall miscarry (shakal) in your land.”65 In the preceding book of the Bible, the author uses weyatse’u of a live birth, for example, Genesis 25:25: “And the first [of the twins] came out (wyetse’) red, all of him like a hairy robe; and they called his name Esau.”66 Moreover, evangelicals believe that words should be translated in the context of all scripture, which teaches the full humanity of the unborn child. Even if the second translation is correct, and one who causes the loss of the child is merely fined, this suggests that the unborn child has value and is worthy of some protection. Responses to Abortion Assuming that abortion is wrong, what should evangelicals do about it? It is important to recognize that, as Karl Barth has noted, responsibility for abortion is broad. It lies not only with mothers, doctors, and family members who encourage abortion but also “with the society whose conditions and mentality directly or indirectly call for such acts and whose laws may even permit them.”67 Responses to abortion should be many. Evangelicals should seek to change a culture that sees children primarily as a burden and to strengthen the social safety net. Our congregations should welcome and care for needy families and mothers-to-be. We should encourage adoption, a practice that the scriptures implicitly praise when they analogize adoption to God’s taking both Jews and Christians into his family.68 Our teaching and counseling should discourage abortion, but in addition, we should also teach that for abortion, as for all wrongs, God offers forgiveness.69 Teaching on forgiveness is especially important for the many women who have had an abortion and feel enormous guilt. We must also face the question whether law should prohibit abortion. I argued previously, based on Jesus’ comments on the Mosaic divorce law, that voters and legislators should make prudential judgments in light of both God’s ideal and human sin. Some factors weigh against prohibiting abortion. Unwanted pregnancies place great emotional, economic, and social burdens on women, their families, and society. An unborn child, if allowed to be brought to term, may be raised in difficult circumstances. If

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legal abortions are not available, some women will seek illegal abortions, placing them at greater risk of death or injury. In seeking to discern priorities among biblical values, it is helpful to note the place that God gives to life in the summary of law that he gave to Moses: “This day I call heaven and earth as witnesses against you that I have set before you life and death, blessings and curses. Now choose life, so that you and your children may live and that you may love the LORD your God, listen to his voice, and hold fast to him.”70 In making a prudential legal judgment, one must prioritize, and protecting innocent human life comes very close to the top of interests worthy of protection. On balance, in my view, the interest of the unborn child in life is greater than any countervailing interests. Economic and emotional interests are important, but the interest in life is among the highest scriptural values (and, hopefully, among the highest human values). Some people argue that the child71 in the womb is not fully human and is not worthy of protection. Others posit various points between conception and birth as the time when life might be protected. The U.S. Supreme Court has chosen viability as the time when states may provide some protection for the unborn child. For reasons I will argue later, this is among the worst possible standards. Even if we conclude that we are uncertain when human life begins, we must decide what to do with that uncertainty. In analogous situations, we err on the side of life. When an explosion takes place, and miners are trapped in a mine, we do all that we can to save their lives until there is no possibility that they are alive. We cannot be confident that the unborn child is not fully human at any point after conception. At conception, the child has everything that is required for him or her to develop into a fully grown human being unless there is an intervention that takes his or her life. Law should not prohibit all evils, but it should protect innocent human life. In the United States alone, every year over one million children fail to see the light of day. Many of them would have been loving, productive people, but even those who would have been a challenge to families and to society should have had the opportunity to make of life what they could. To say that our society cannot find means to care for needy children is a counsel of despair. Abortion has led to what Pope John Paul II called a “culture of death,” diminishing the value of the human person and coarsening the way that people treat one another. We can speak with little moral standing against

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the other evils of our day—sex trafficking, slavery, genocide, child abuse —when we allow the killing of the most vulnerable among us. The Bible teaches that God judges a nation by how it cares for its “widows and orphans”—the vulnerable of its day. How much more will he judge us by the way that we care for those who are even more vulnerable—the unborn? The Supreme Court and Abortion The important issues raised by abortion—When does life begin? Should the law regulate this area? How should the interests of the mother and child be balanced?—were important subjects of public moral discourse in the United States prior to 1973. In 1965 abortion was illegal in every state except when the woman’s life was endangered.72 Thereafter, some states broadened the circumstances under which abortion was permitted, but in 1973 in Roe v. Wade, the Supreme Court removed the abortion issue from the democratic process. It held unconstitutional all laws prohibiting abortion prior to viability, the time when the child is able to live outside the womb. Roe was subjected to numerous statutory and constitutional attacks, but the Supreme Court reaffirmed its basic holding in 1992 in Planned Parenthood v. Casey.73 The abortion cases catalyzed evangelical political energies like nothing had before. As Thomas Frank noted in his 2004 book, What’s the Matter with Kansas? How Conservatives Won the Heart of America, evangelicals (he refers to us as “working-class people” from “lowcaste churches”) vote against abortion, even when to do so is against our economic interests.74 We dislike Roe and Casey for several reasons. v iabilit y : the supreme court’s standard for meaning ful life

Evangelicals dislike Roe and Casey because they prohibit states from protecting innocent life, but we are particularly troubled by the viability line that those cases draw. In Roe, the Court stated, With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justification.75

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The Court’s reasoning appears to be the following: 1. Only those who are capable of meaningful life may have state protection. 2. The child prior to viability is not capable of meaningful life. 3. Therefore, the unborn child is not entitled to state protection. Roe suggests that those who are dependent may not receive state protection.76 Evangelicals are great lovers of independence, but independence should not be the defining characteristic of meaningful human life. Everyone goes through periods of dependence, generally childhood, illness, and old age. An automobile or horse-riding accident can leave one dependent on others for life. According to the Roe v. Wade reasoning, during such periods, we have no right to the protection of the state. This is exactly the opposite of the Jewish and Christian teaching that those who are dependent (the orphan, the widow) are entitled to care. All human life, even dependent human life, is meaningful. elitism

Roe and Casey based the right to abortion on the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving citizens of “life, liberty, or property, without due process of law.”77 By its terms, this clause allows states to deprive citizens of life, liberty, and property, so long as they give them due process (i.e., procedures like notice of charges and trial by an impartial decision-maker). The Court’s plurality in the Casey decision identifies no procedural irregularity, but holds that the right to abortion is a matter of “substantive due process.”78 The Court uses a provision requiring procedural protections to give itself unlimited powers to regulate substance. At one point, the Casey opinion condescendingly claims that “some of the Constitution’s language is hard to fathom.”79 It is not the language of the Constitution that is the problem. It does not take an expert on language to see that talk of “substantive due process” is just a cover for the Court’s seizure of power never granted to it by the Constitution. Casey calls some of the efforts to overturn Roe “mere unprincipled emotional reactions”80 and claims for the Court “the authority to . . . speak before all others for [the people’s] constitutional ideal.” It calls on the contending sides to accept its “mandate.”81

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One of the things that sparked the explosion in evangelical growth after the American Revolution was the sense that evangelical churches, like the new nation, “offered common people, especially the poor, compelling visions of individual self-respect and collective self-confidence.”82 The Second Great Awakening, like the American Revolution, was egalitarian. Evangelicals believe in democracy. They also respect the rule of law. They see the Court’s abortion cases as an antidemocratic intrusion, with no foundation in law, into the people’s right of self-government. Roe withdrew from us the opportunity to resolve the most important social issue of our day. If the abortion issue involved a complicated legal issue, it might explain why judges, rather than the people, should resolve it. But legal training does not give judges any special ability to determine when life begins, whether it has value, or how the interests of mothers and unborn children should be balanced. The Court withdrew this issue from the political arena, where citizens could thrash through the issues and resolve them. The Court’s abortion jurisprudence has troubling implications for democracy and the rule of law. As Mary Ann Glendon has said, when judges remove decisions from the democratic arena, they undercut the normal processes through which citizens build coalitions, develop consensus, hammer out compromises, try out new ideas, learn from mistakes, and try again. . . . . . . Political skills atrophy. Men and women cease to take citizenship seriously. Citizens with diverse points of view lose the habit of cooperating to set conditions under which all can flourish. Tolerance suffers as communication declines.83

When judges openly seize power on questionable legal bases, the rule of law and the respect for law is weakened. When judges become a law unto themselves, we should not be surprised when citizens also ignore the law. “the mystery of human life”

The Casey opinion explicitly revealed its underlying philosophy: “At the heart of liberty is the right to define one’s own concept of existence, of the meaning of the universe, and of the mystery of human life.”84 If the Court takes seriously the “mystery of human life” passage, if everyone can define his own existence, it will impose on America the most extreme libertarian regime imaginable. It will remove any basis for social responsibility.

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The Casey opinion imposes on the American people a religious view of life that few share. Most people believe that God reveals to us the meaning of life—we discover it; we do not create it. The Court puts the human in the place of God, and abortion is the most striking example of where humans can go when they see themselves as gods. Under Casey, defining one’s own concept of the mystery of human life includes the right to take another human life. The Court’s doctrine of self-creation is not only troubling, it contrasts dramatically with our Declaration of Independence’s claim that liberty is among the rights with which we were “endowed by [our] creator,”85 a view that there is a givenness to life, and an objective moral order. We have rights because they were given to us; we do not just make them up.

Conclusion These are very important times for evangelical relations with the state. There is a danger that we will seek to use legal power to control too much of life, that, in Lord of the Rings imagery, we will seize the Ring of Power. Law should prohibit only the greatest of wrongs. Persuasion and other forms of cultural engagement should be our primary means of influence. At the other extreme is the danger that we will follow our early-twentieth-century forefathers and withdraw into evangelical enclaves. In my view, this would be irresponsible. In Lord of the Rings imagery, this would be to remain in the Shire when injustice surrounds us. Among the striking failures of Christians in the twentieth century were the failure of Germany’s Pietistic Lutherans and Catholics to stand up to the horrors of Nazism and the failure of America’s Southern Evangelicals to stand up to racial segregation. Hopefully, we will not be unfaithful this time. On important social matters, such as abortion, we must stand with the weak and vulnerable.

notes 1. Kenneth Woodard, John Barnes, and Laurie Lisle, “Born Again!” Newsweek, October 25, 1976, p. 68, citing Gallup survey of that year. 2. National Association of Evangelicals website, http://www.nae.net/. 3. George M. Marsden, Understanding Fundamentalism and Evangelicalism (Grand Rapids, MI: Eerdmans, 1991), 1.

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4. David Brooks, “Who Is John Stott?” New York Times, November 30, 2004. 5. David Brooks, “Response to Rick Warren: Myths of the Modern MegaChurch,” speech given at Pew Forum on Religion and Public Life, May 23, 2005, Key West, Florida; available at http://pewforum.org/events/index.php?EventID=80. 6. John 3:7; see John 3:1–21 (all biblical quotations herein are from the New International Version unless otherwise indicated). 7. John 10:9. 8. Luke 1:1–4. 9. See generally James Hastings Nichols, Democracy and the Churches (Philadelphia: Westminster Press, 1952), 29–41. 10. Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), 4. 11. Ibid. at 6. 12. Alexis de Tocqueville, Democracy in America (1835; repr., Delanco, NJ: Legal Classics Library, 1988), 287. 13. Hatch, Democratization at 4. 14. Ibid. at 3. 15. Martin Marty, “Fundamentalism as a Social Phenomenon,” in Evangelicalism and Modern America, ed. George Marsden (Grand Rapids, MI: Eerdmans, 1984), 62. 16. Robert H. Bellah, The Broken Covenant: American Civil Religion in Time of Trial, 2nd ed. (Chicago: University of Chicago Press, 1992), 44. 17. David Herbert Donald, Lincoln (New York: Touchstone, 1995), 24. 18. See Mark Noll, The Scandal of the Evangelical Mind (Grand Rapids, MI: Eerdmans, 1994), 150–65. 19. Marsden, Understanding at 89–90. 20. Ibid. at 30. 21. Ibid. 22. Quoted in Joel A. Carpenter, “Compassionate Evangelicalism: How a Document Conceived 30 Years Ago Has Prompted Us to Care More About ‘the Least of These,’ ” Christianity Today, December 1, 2003, available at http://www.christianity today.com/ct/2003/012/2.40.html. 23. See, e.g., Francis A. Schaeffer and C. Everett Koop, Whatever Happened to the Human Race? (Old Tappan, NJ: Fleming H. Revell, 1979). 24. See, e.g., Randall Balmer, “Jesus Is Not a Republican,” Chronicle of Higher Education, June 23, 2006, B6–B9. 25. National Association of Evangelicals website, http://www.nae.net/images/ civic_responsibility2.pdf. 26. For a fuller development of these biblical themes, see Robert F. Cochran, Jr., “The Bible, Positive Law, and the Legal Academy,” in The Bible in the University, ed. David Lisle Jeffrey and C. Stephen Evans (Carlisle, UK: Paternoster, 2007), 162–78.

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27. Gordon Wenham, “Law and the Legal System in the Old Testament,” in Law, Morality, and the Bible, ed. Bruce Kaye and Gordon Wenham (Downers Grove, IL: InterVarsity Press, 1978), 39. 28. Leviticus 25:8–17. 29. Deuteronomy 15:1–5. 30. Leviticus 19:9–10, 23–22; Deuteronomy 24:19–22. 31. See, e.g., Amos 1:3–2:3; Nahum 3:1, 5, 19; Psalms 82:3, 8; Psalms 138. See also John Stott, New Issues Facing Christians Today (London: Marshall Pickering, 1999), 21–22; Oliver O’Donovan, The Desire of the Nations (Cambridge: Cambridge University Press, 1996), 68. 32. Amos 5:10, 12, 15, 24. 33. See, e.g., Exodus 22:22; Deuteronomy 10:18; Psalms 68:5; Isaiah 1:23; Jeremiah 7:6; James 1:27. 34. Matthew 22:35–40, quoting Deuteronomy 6:5 and Leviticus 19:18. 35. Luke 10:25–37. 36. Jack L. Sammons, “Parables and Pedagogy,” in Gladly Learn, Gladly Teach: Living Out One’s Calling in the 21st Century Academy, ed. John Donaway (Macon, GA: Mercer University Press, 2005), 46. 37. Leviticus 19:34. 38. John 8:36. 39. O’Donovan, Desire at 255. 40. Deuteronomy 24:1–4. 41. See, e.g., Willoughby C. Allen, A Cultural and Exegetical Commentary on the Gospel According to St. Matthew (New York: Charles Scribner’s Sons, 1907), 201; and George A. Buttrick, “The Gospel According to St. Matthew,” The Interpreter’s Bible, vol. 7 (New York: Abingdon, 1951), 299. 42. Matthew 19:8–9. 43. See also Thomas Aquinas, The Treatise on Law, Question 96, Second Article, ed. R. J. Henle, S.J. (Notre Dame, IN: University of Notre Dame Press, 1993), 311–16. 44. Romans 2:15. 45. See Aquinas, Treatise on Law at Question 91, Second Article, 155–60. 46. Rousas Rushdoony, The Institutes of Biblical Law (1937; repr., Phillipsburg, NJ: Presbyterian & Reformed Publishing, 1973). 47. Os Guinness, The Case for Civility—and Its Importance for America’s Future (New York: Harper One, forthcoming), 104. 48. Robert F. Cochran, Jr., “Christian Traditions, Culture, and Law,” in Christian Perspectives on Legal Thought, ed. Michael W. McConnell, Robert F. Cochran, Jr., and Angela C. Carmella (New Haven, CT: Yale University Press, 2001), 249. 49. Gregory A. Boyd, The Myth of a Christian Nation (Grand Rapids, MI: Zondervan, 2005), 66. 50. Stanley Hauerwas and William H. Willimon, Resident Aliens: Life in the Christian Colony (Nashville: Abingdon, 1989).

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51. Os Guinness, The Case for Civility, chapters 4 and 5. 52. Stott, New Issues at 13–32. 53. Stott, New Issues at 61; see generally ibid. at 53–69. 54. David Skeel and William J. Stuntz, “Christianity and the (Modest) Rule of Law,” 8 U. Pa. J. Const. L. 809 (2005). 55. For a helpful discussion of this concept, see “What Distinguishes the Center for Public Justice,” Center for Public Justice website, http://www.cpjustice.org/ distinguish.html. 56. Os Guinness, The Case for Civility, chapters 4 and 5. 57. Tocqueville, Democracy in America at 287. 58. Christian Smith, Christian America? What Evangelicals Really Want (Berkeley: University of California Press, 2002), 103. 59. See Kent Greenawalt, “Religious Convictions and Lawmaking,” 84 Michigan L. Rev. 352 (1985). 60. See Hadley Arkes, Natural Rights and the Right to Choose (Cambridge: Cambridge University Press, 2002); Francis J. Beckwith, Defending Life: A Philosophical and Constitutional Case against Abortion (Cambridge: Cambridge University Press, 2007). 61. See, e.g., Job 10:8–12, 31:15; Psalms 22:9–10, 71:6, 119:73; Ecclesiastes 11:5; Isaiah 49:1, 5, 66:9; Jeremiah 1:5. 62. Psalms 139:1–3, 13–14 (New American Standard Version). 63. Stott, New Issues at 355. 64. Exodus 21:22–24. 65. Exodus 23:26. 66. John Piper, “Exodus 21:22–25 and Abortion,” January 1, 1995, Desiring God website, http://www.desiringgod.org/ResourceLibrary/TopicIndex/47/1523_Exodus _212225_and_Abortion/. 67. Karl Barth, Church Dogmatics, ed. G. W. Bromiley and T. F. Torrance (Edinburgh: T. & T. Clark, 1961), III, Part IV, p. 415. 68. Romans 9:4; Ephesians 1:5. 69. I John 1:9. 70. Deuteronomy 30:19–20. 71. Some people will object to my use of the term “child,” but there is not a neutral term. All the options are either personal or impersonal. I use the vernacular. Parents commonly speak in personal terms (“our baby”) as soon as they realize that the mother is pregnant. 72. Rosemary Nosiff, “Abortion Policy before Roe,” Journal of Policy History 13.4 (2001): 463–78. 73. 505 U.S. 833 (1992). 74. Thomas Frank, What’s the Matter with Kansas? How Conservatives Won the Heart of America (New York: Metropolitan Books, 2004), 106–7. 75. Roe v. Wade, 410 U.S. 163 (1973) (emphasis added).

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76. See also Justice Blackmun’s dissenting opinion in Webster v. Reproductive Health Services, 492 U.S. 490, 553 (1989). 77. U.S. Const. amend. XIV, § 1. 78. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 849 (1992). 79. Ibid. at 866. 80. Ibid. at 867. 81. Ibid. 82. Hatch, Democratization at 4. 83. Mary Ann Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (New York: Farrar, Straus & Giroux, 1994), 168. 84. Casey, 505 U.S. at 851. 85. Declaration of Independence pmbl. (U.S. 1776).

Chapter 7

African-American Churches

At the time of the American Revolution, few African-Americans were Christians. They did not respond to the staid Calvinist and Episcopalian churches. But beginning at about the time of the Revolution, they increasingly responded to the call of evangelical Christianity, which they found “fresh, capable of being readily understood and immediately experienced.”1 Initially, blacks were accepted on an equal footing in the evangelical churches, but they were soon relegated to secondary status. This, coupled with the rise of dynamic black preachers, led to the emergence of their own thriving, separate Baptist, Methodist, and African Methodist Episcopal Churches.2 In these churches, many African-Americans found their first real taste of freedom and responsibility. They created their own institutions, ran their own affairs, and flourished. Coming out of slavery and through the Jim Crow era, African-American Christians, of necessity, have been more concerned with survival than other legal matters. Their great influence was felt in the civil rights movement when Martin Luther King, Jr., led much of the country toward the liberation and empowering of African-Americans. In this essay Anthony Baker discusses the liberating power of the Christian faith for African-Americans and its impact on their view of law.

notes 1. Nathan Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), 104. 2. Ibid. at 106–7, 110.

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“Go Down, Moses!” Law through the Eyes of the African-American Religious Tradition Anthony V. Baker When Israel was in Egypt’s Land: Let my people go. Oppress’d so hard they could not stand, Let my people go. —African-American spiritual

When considered from the perspective of the African-American religious tradition,1 the central topic of this book—American law viewed through the “eyes” of discrete religious faiths—might appear straightforward and clear. One needs only recall the American civil rights iconography of the last third of the twentieth century to find its unquestioned answer. Riddled through with religious imagery and energy—clergy abounding, the Southern Christian Leadership Conference, the Birmingham church bombing, and so on—that movement highlighted the intersection of law and religion in the African-American context. This is true, but it is by no means the whole of this story or even its most important part. Indeed, considering the scope of the present inquiry, this focus on the civil rights movement is probably more counterproductive than elucidating, courting the “double negative” effect of both oversimplifying the central question and underconsidering it as well. In fact, although the American civil rights movement provides a valuable source of information and example regarding how the African-American religious tradition views law, focus on it alone is akin to approaching a significant story from its middle. No one can doubt the historicity of that movement, nor its unapologetic and appropriate reliance on religion to give depth and dynamic contour to the most effective of its confrontations with law. However, it is equally true that the religious aspect of African-America’s part in that movement was not the beginning place of that tradition’s approach to law but, rather, the fruit of a relationship whose root runs as deep in the African-American story as American history itself. And as with all academic inquiries essentially historical, there is much

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more of broad application and value to be gained in the study of the root of a thing than in consideration of its fruit alone. In order to fully explore the interconnection of the African-American religious tradition and American law, then, it is necessary to move past the arresting imagery of the twentieth century, back to the very beginnings of Africa’s difficult experience in the “New World.” The interrelationship between African-American religion and American law is akin to a passion play told in three distinct acts, building one upon another. The first act involved law wholly apart from religion, this part of the African-American experience commencing in violent fashion from the very inceptus of Africa’s experience with its rapacious “New World” nemesis. From the moment of first capture and beyond, and with no assent of their own, the Africans who were destined to become “African-Americans” were confronted by law at every turn. Effectively, it was “law” that dragged them from West Africa across the vicious ocean expanse—property-related laws of seizure and sale, bills of lading and storage, maritime laws of passage and salvage—and law that met them, bound, in Charleston Bay. Law delivered them into the bondage of slavery in their new “home” and law held them fast there, in both civil shackles of property ideals and in supporting criminal complements. Given the centrality of the term law to both the early African-American experience and that culture’s eventual religious-based response to that experience, a word of clarification is necessary to service our understanding of the question at hand. It is more precise to note that the “law” that created, reinforced, and managed the ubiquitous African-American “slave” status is jurisprudentially denominated positive law, and the distinction is important. Intellectually explicated through the great Thomas Hobbes2 and his ilk, positive law claimed for itself no divine origin or necessary moral component but, instead, sprang wholly from the fertile imaginings of man alone. “[There] is annexed to the Soveraigntie, the whole power of prescribing Rules,” Hobbes notes in his jurisprudential classic Leviathan, “whereby every man may know, what Goods he may enjoy, and what Actions he may doe. . . . These . . . are the Civill Lawes . . . the Lawes of each Commonwealth in particular.”3 Here then, law need seek legitimacy not in divine authority or moral right but, rather, only in sovereign will, legitimate positive law amounting in essence to anything upon which a political state might insist and could bring to bear with its “strong right arm.” Mundane in form and highly mutable in character, positive law must be contrasted with its philosophical antithesis: natural law, which claims for

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itself transcendent, revelatory origin and which stands in unflagging support of natural freedom for each human being. “The Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will or Legislative Authority of man,” human slavery thus being “nothing else, but the State of War continued, between . . . Conquerour, and . . . Captive.”4 Opponents of slavery uniformly grounded their logic in the “natural law” of God, revealed in reason and historic and holy text, requiring all men to be viewed as equally entitled to human freedom as a pure gift from that God. These two forms of law interfaced, to be sure, but in a particular and highly formalized manner, if natural law was to lend its imprimatur to any discrete positive law outcome. Thus, it was the job of the positive lawyer to “look above” to the revealed natural law (of God), recreating it here below as faithfully as possible in order to follow natural order in manifesting law; this is what was meant by Christ when he prayed, “Thy will be done, on earth as it is in heaven.”5 The outcome would be “natural” in every way: the natural law, if properly discerned, would manifest itself in positive law that upholds and reflects the natural rights of citizens. Under any reasonable manifestation of natural law, then, human slavery could not and would not stand. Examples of such “positive” natural laws would include the Civil War Amendments to the Constitution, which gave African-Americans the right to freedom from slavery, the right to equal protection and due process, and (for males) the right to vote.6 Although it was the rare African-American “slave” who could articulate either form of law or their great difference, each viscerally understood that difference, referencing natural right as against positive law each time his or her feet turned instinctively toward “freedom.”7 To be sure, pro-slavery forces made their own concerted efforts to co-opt the “high ground” in the debate, seeking carefully to articulate a natural-law apologetic of their own in support of the “execrable commerce,” to borrow the potent Jeffersonian aphorism. However, in each case the success of their efforts transparently depended on definitional violence being done to either of the two main components of the apologetic—slavery8 or natural law9 —to the ultimate detriment of the self-serving goal that was sought. Human beings remain responsible both for misappropriating revealed natural law and for creating human law in actual contravention of that law of nature, philosophical gymnastics notwithstanding. In this case the deliberate refusal of proslavery forces to follow God’s plainly revealed ways maximized shortterm benefit at the decided cost of long-term good. In the end, their rhetorical rationalizations were in vain, fooling themselves only, if anyone at

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all, and consigning them—and many others—to the very natural and very potent consequences embedded inevitably by God Himself within the breaking of any aspect of His law.

Your foes shall not before you stand, Let my people go, And you’ll possess fair Canaan’s land, Let my people go.

The second act of this passion play concerns African-America’s complex relationship with American Christianity, and it is a nuanced story indeed. In point of fact, there were several key factors standing as significant barriers to any partnership of that people-group and that religious tradition. First, African religious expression prior to the American experience decidedly favored polytheism and aboriginal animism, bearing little if anything in common with monotheistic Western Christianity. Second, and more perniciously, the Christianity of that day was regularly referenced in clear support of the institution of African slavery, a fact both widely referenced by captor and clearly communicated to bondsman. Any embrace by African-Americans of American Christianity thus needed both an effective counter to their inexperience with monotheistic structure and also some real, measurable solution to the visceral identification problem between that religion and their bonds. Both hurdles were overcome, of course, and the history of the period considers the “how” of that occurrence in ways particularly relevant to the present study. Clearing the first hurdle required broad and intense exposure of the people-group to the theology of Western monotheistic Christianity, and history records this initiative from the very inception of the slave experience. Seeking either to purge latent guilt pangs or to promote docile obedience in their “human property”—or both—the planter class made exposure to formal Christian expression a regular part of life for their captive audience. However, ironically, the “Christianity” to which the African-origin community was deliberately exposed in the earliest days of the Republic was the one prevalent in the refined culture of the time— formal and austere, erudite, Anglican—“above our comprehension, so that we could understand little that was said,” as one slave/consumer experienced it.10 Thus, something else was needed to turn incidental exposure into full embrace among these people, and that “something else” came

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through the Second Great Awakening, a movement of immense scope and effect that revolutionized American Christianity itself in the first days of the nineteenth century. Colorfully denominated by Professor Nathan O. Hatch as “the democratization of American Christianity,”11 and not coincidentally connected to the sweep of Jeffersonian Republicanism across the United States at the turn of the nineteenth century, Christianity experienced radical shifts, affecting all sectors of the American populace at that time, not the least of which was African-origin America. The term “democratization” is particularly apt here. Through the work of such notable Christian apologists and evangelical visionaries as Barton Stone, Alexander Campbell, Joseph Thomas, Francis Asbury, and John Leland, the Christianity of that day burst from the formal, intellectual Jonathan Edwards–esque Northeastern pulpits and fired across the length and breadth of the land. Though these leaders differed in many ways from one another, they were nevertheless in agreement on both method—leaving behind pulpit and even church to carry the Christian Gospel abroad, through “open air” meeting, circuit preaching, and the like—and message—a simple exposition of the Word, accessibly plain and fundamentally urgent—fitted to the people to whom they preached. Rudimentarily educated—if educated at all—this austere and committed cadre of populist preachers stressed to great effect the necessity of a “conversion” experience through deep introspection and climactic confessional decision, in marked contradistinction to Anglicanism’s and Presbyterianism’s preferred arduous study of ecclesiology, catechism, and commandment as the proper road to peace with God. This popularization and “democratization” of American Christianity was tailor-made for African-America’s full intellectual and emotional embrace of that religion in their land of exile. African-Americans immediately benefited from both the plainness of the message and the calculated, effective targeting of themselves by these new evangelists as quintessentially appropriate recipients of God’s redemptive graces. They benefited from the deeply democratic form of this Christian impetus in another way as well: profoundly Jeffersonian in character, this outreach initially promoted full and egalitarian partnership in the life of the denominations receiving converts.12 “Outcasts from fashionable society themselves, white evangelical preachers in the South . . . ,” Baptists, Methodists and the like, “found common ground with African-Americans,” receiving them as “full participants in their communions” and “embrac[ing] . . . slaves as brothers and sisters,” to great effect among the increasing numbers of these new

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converts.13 Numbers do tell the story: by 1848, nearly a century’s focused missionary efforts by Anglicans and Presbyterians combined had produced within the African-American “target group” but a few hundred converts at most; populist Baptist and Methodist work by that date stood in dramatic contrast, with at least 125,000 active converts.14 Another important benefit from the democratic impetus of American Christianity was the emergence of the “black preacher.” This phenomenon went a good way toward addressing the second major barrier between African-America and the Christian faith: identification with and biblically proof-texted justification of American slavery. Having enthusiastically responded to the promise of equal participation in the vivified Baptist and Methodist communions of the late eighteenth and early nineteenth centuries, no formal office was initially denied these enthusiastic converts, including the ministration and exhortation of the Word through preaching. Once there, a generation of able and charismatic African-American preachers—Harry Hosier, Henry Evans, Daniel Coker, Absalom Jones, and the immensely important Philadelphia Methodist Richard Allen, to name only the most popularly known—embraced the Word and tailored it to the benefit of their own benighted peoples. Once there, too, they found a story in pointed contrast to the one wrested from formal Christianity by the captor class seeking to fortify slavery’s shackles a generation before. Indeed what they found in the pages of the text would seal African-America’s identification with and commitment to Western Christianity and would fix their view of and relationship to American law for many years following. If Christianity had been broached to slavery’s ignorant captives as a religion both supporting the institution of human bondage in the United States and compelling compliance with its dictates, the Christian text, in the hands of honest, skillful apologists, told a far different story. Within the Bible’s pages, African-America met the likes of Moses and Pharaoh and an immense people held in similarly miserable peonage and a thundering command from the one true God Himself: “Let my people go!”15 In place of their masters’ oft-recalled and oft-repeated mandate from St. Paul for slaves to “obey . . . your earthly masters,”16 they found that Apostle’s equally urgent directive to slaves: “But if you can gain your freedom, avail yourself of the opportunity.”17 They found in that plain, surprising text a religion deeply focused on the momentous dichotomy between objective right and wrong, a God thick in the middle of an exquisite “redemptive story,” and a Savior hyperoccupied with the singular task of “setting the

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captive free.”18 This “new” Christianity became for the enslaved millions nothing less than the “pearl of great price,”19 allowing them to forcefully meet profane, positive law with a “higher law,” as high as Heaven itself, shaping and channeling their challenge to American law as long as American law challenged their God-bestowed right to personal freedom. In addition, there was much in the Christian tradition of value as a basis for racial equality and human significance, and the evangelical faiths of the Second Great Awakening made these things core doctrines in their outreach to African-America. For example, the teaching that Jesus Christ offered salvation to each individual human being, without call or favor, was a pristine statement of individual worth of the most sublime sort, “living water” indeed to the parched spirit of the legally insignificant enslaved human being. Of similar importance was the Reformation teaching of the priesthood of every believer,20 stressing individual competence before a profoundly Holy God, emphasizing formulation of an individual relationship with that God, individual communication with Him, and individual direction in life from Him. Through these ideas, this evangelical faith considered not only the personal worth of each individual before God (race notwithstanding) but also individual responsibility to that personal God. African-America found much to embrace, use, and build upon in this simple, profound Christian exposition and, not coincidentally, much of value in helping to wage a sanctified fight for personal freedom.

O let us all from bondage flee; Let my people go. And let us all in Christ be free! Let my people go.

The third act of this story then naturally follows from the first two, chronicling as it does the practical out-workings of the African-American Christian tradition’s confrontation with American law that supported antebellum slavery and postbellum discrimination. For as long as the United States chose to use law to deny to African-Americans the “inalienable rights” at the foundation of its political and spiritual heritage, AfricanAmericans used the best parts of their adopted and embraced religious tradition to prosecute their side of that war. Thus, in the face of proliferating and increasingly draconian laws seeking to manage slavery prior to the Civil War, African-Americans joined their courageous abolitionist

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compatriots “to proclaim the year of the Lord’s favor.”21 And when the bright promise of the postbellum Civil War Amendments22 gave way to the U.S. Supreme Court’s neutering of those amelioratives in the decades following,23 paving the path of unconscionable racial devastations for years thereafter, African-America’s work—and its reliance on its religious tradition—was not done. As racial equality tarried through the nineteenth and deep into the twentieth century, as African-America wearied of waiting for law to make things right, it turned again to its own religious tradition for relief, this time in the form of the most potent icon it had yet produced: the Reverend Dr. Martin Luther King, Jr. In Dr. King we find a primer on the African-American religious tradition’s approach to American law. Well schooled in matters of both law in the difficult arena of racial justice and of divinely mandated grace, it is not too strongly put to describe Dr. King (though he was not a lawyer) as the most able natural lawyer this nation produced in the century just concluded. As such, he deeply appreciated the fierce hot war between the natural law of universal freedom and the positivist dictates of segregation and degradation and, in the very best of the African-American religious tradition, understood the necessity of using the one to expose and deconstruct the other. Thus, for King as for the towering Augustine centuries before, a human law inconsistent with the natural law of God was metaphysically inert, being in very nature “no law at all.”24 Not only did he appropriate and widely disseminate this idea, but he also lived it, persuading many thousands to live it with him, through water cannons, billy clubs, and snapping dogs, before a wondering nation and world. It was in the living out of these simple, profound truths that the strength of Dr. King’s spiritual convictions—and that of the African-American religious tradition— was most sublimely, powerfully, and effectively displayed; it was in the living out of those natural, religious truths that that tradition met American law on a “high plain,” with great conviction and power, and to great effect. While much has been made of the intellectual foundations in natural law of Dr. King’s “freedom ministry,” less has been made of the AfricanAmerican Christian roots of his plan of action. But in fact the intellectual pillars of his important work betrayed none of the foundational tenets of African-American Christian tradition in seeking to win the ambitious victory of his “dream” for his people and their nation. His focus on the inherent dignity of each of America’s citizens of color reflected in the cleanest of ways the Christian concept of salvation in Jesus Christ and the value of Christ’s substitutionary death for every individual under its shadow.

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King’s deliberate posturing of African-Americans’ gain as a measurable gain for their American oppressors as well highlighted in the most generous of ways notions of the “brother’s keeper” doctrine that is liberally seeded throughout the Christian text. Even King’s much highlighted and much considered doctrine of nonviolent confrontation, popularly recovered in Gandhi-esque form, paid homage to the dignity of all God’s created beings—even those bearing the momentary disability of “enemy”25 — central to Christian teaching, African-American and otherwise. A review of Dr. King’s “I have a dream” oration most plainly makes the point contended for here. The constant reference to freedom, the central theme of that sermonic, demanded that right, not as an end in itself but rather as a necessary means, if correctly used, to rightly express one’s gratitude and obedience to Almighty God Himself. In addition, King’s courageous message to his own people buried in the center of his text, soberly reminding them that “in the process of gaining our rightful place we must not be guilty of wrongful deeds”26 clearly echoed Christian preoccupation with personal responsibility and universal human dignity. Even his call that people be judged by the “content of their character” must be understood as echoing Christocentric human value appreciated across the breadth of Christian lore, but particularly reified in the rich AfricanAmerican religious tradition birthing and nurturing Dr. King himself and the other leaders of that social movement. Thus, in assessing his place in the pantheon of American heroes, whereas history rightly recovers Dr. King the charismatic genius and Dr. King the potent prophet, it is perhaps Dr. King the thoughtful Afrocentric Christian that best illustrates the matter in question here: law, through the eyes of the African-American religious tradition. In conclusion, then, the African-American religious tradition is preoccupied with law in its most elemental of forms, at almost every turn in its doctrinal path, and for reasons eminently following from its particular take on the American experience. And this experience that so profoundly marks its past should just as profoundly affect its future as well. For wherever atheistic positivism seeks to hold sway over human dignity and value, the African-American faith tradition should find fertile ground to set up camp and do the most vital of its work. As long as social progress is stymied for any by the specter of law-based societal peonage and systemic poverty, race notwithstanding, the African-American tradition has a word to preach and a battle to fight. Whenever and wherever individual human dignity finds itself in the crosshairs of legal disability and social

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convenience, as was glaringly the case in the tragically ended Terri Schiavo affair, for example, African-American religious focus on individual worth through the Christocentricity of the Gospel has something yet to say and work yet to do.27 As long as the hedonism of American materialism, the holocaustic nightmare of human abortion and AIDS, and the sinister convenience of sexual exploitation and gender annihilation stake their varied dark claims through law on the soul of the American character, the African-American religious tradition will have a breach in which to robustly and keenly step. In short, the work of this faith tradition in the public life of this nation even beyond its own not insignificant needs is of great importance. For while America continues to manage every aspect of its social experiment by means of law, it remains too often fascinated with the soul-numbing laws of convenience while being only testimonially committed to the high law of right, in seeking to realize its own dream. In all such cases Christianity has something important to say, but the particular subset of that religion embodied in the African-American tradition has something to do, something indeed to challenge. As long as human convenience contests human right, and as long as that contest works itself out in the arena of law, as it inevitably and inexorably does in the American context, then, as the greatest of the conservators of this religious tradition reminds us, “we are not satisfied. . . . we will not be satisfied.”28 Natural-law-based in its purest sense, the African-American religious tradition should stand on that base in meeting corrosive positivism at every turn, until the day when there is no more fight left to fight, until the day when “justice rolls down like waters and righteousness like a mighty stream.”29 Go down Moses ’way down in Egypt’s land Tell ol’ Pharaoh, Let my people go.

notes 1. In speaking here of the “African-American religious tradition” I have deliberately avoided casting this study in light of a particular denomination, though clearly it did express itself in particular denominations, as with broader forms of “protestantism.” It would not have been wrong to consider the present matter in

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the form of denominational Christianity—in the case of African-America, Methodism, Baptist tradition, African Methodist Episcopal, for example—each separate expression adding its own peculiar nuance to the larger story. But although each had its discernible and measurable differences in the African-American context, as to their individual responses to American law they were all fundamentally the same. For the panoply of African-American Christian traditions, American law was essentially a common enemy, both in its formal, legal management of antebellum institutional slavery and in its preservation and propagation of related racism well into the twentieth century. Thus, with regard to this particular inquiry, it is both appropriate and useful to consider the African-American religious tradition as a whole. 2. Born in Wiltshire, England, in 1588, Thomas Hobbes remains the clearest classical expositor of the notion of positive law, or law emanating from the positive pronouncement of the sovereign. Outlined most cogently in his intellectually immense Leviathan (1651), positive law was atheistic in both nature and character, divorced entirely if incidentally from morality and “right,” referencing instead only raw power for its ultimate legitimacy. This law in its positive form needs only two things to be active and compelling: origin in the imagination of the state power (sovereign, tsar, Parliament, Congress, etc.) and enough coercive power in that originator to enforce its decrees and punish their dereliction. 3. Thomas Hobbes, Leviathan, (1651; repr., Oxford: Oxford University Press, 1909, 1947), 137. 4. These are the words of natural-law/natural-rights jurisprude John Locke beginning “Chapter IV: Of Slavery” in his seminal Two Treatises of Government, ed. Peter Laslett (1690; repr., Cambridge: Cambridge University Press, 1988), 182–83. Interestingly, Locke was categorical in his view of the natural right of the individual in danger of actual or continued enslavement, against his would-be enslaver: “And therefore it is Lawful for me to . . . kill him if I can; for to that hazard does he justly expose himself, whoever introduces a State of War, and is aggressor in it.” Ibid. at 178–79. 5. Matthew 6:10b (Revised Standard). 6. Here I reference U.S. Const. amend. XIII (1865), directly abolishing slavery and involuntary servitude; U.S. Const. amend. XIV (1868), broadly disseminating the privileges and immunities of citizenship and securing both due process and equal protection of the laws to all American citizens; and U.S. Const. amend. XV (1870), securing the right to universal male suffrage. I should add here that I view these amendments as a unique second opportunity to look again “to the heavens” for discoverable natural law and to reconform our positive law (Constitution) more closely to what we saw in this sober second look. Unfortunately, the work of the Supreme Court from 1873 forward further obliterated what the people had originally seen in the drafting of those amendments. 7. African-Americans’ flight from bondage was as broad as the reach of the

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institution in which they were involuntarily held. In fact, the first “positive” fugitive-slave prohibitive was passed by the federal government in 1793, at the very commencement of America’s national existence. Thus, even if fleeing AfricanAmericans could not easily articulate the tenets of natural law, they became its living expositors every time they took to the pathways of freedom. 8. Here apologists would seek to distinguish abject slavery from “human drudgery,” referencing the biblically based and God-approved Hebrew equivalent as the best example of the latter—and deliberately cast the American institution in the second form. See, e.g., Rev. Samuel Seabury, American Slavery Distinguished from the Slavery of English Theorists and Justified by the Law of Nature (New York: Mason Brothers, 1861), and its many equivalents. This would arguably yield the double benefit of naturalizing the practice theoretically by amalgamating it with time-honored and God-ordained truths. All of these efforts notwithstanding— and they were many, various, and articulate—even the most cursory comparison of Hebrew peonage with American slavery—including, among others, automatic and full manumission upon ill-usage, reasonable compensation for services rendered, and the deeply mysterious and culturally celebratory jubilee concept—inevitably revealed almost no characteristics in common between the two. 9. Here apologists would concede the dictates of natural law with regard to individual human freedom but would posit some form of “second class” benefits for African-origin persons, connected in some way with their culture and innate human disabilities deriving from their “second class” human status. In this way human slavery would weigh in as both a natural necessity and a “positive good,” ultimately operating to their benefit from a concerned and beneficent “first class.” See, for example in this regard, South Carolina Senator John C. Calhoun’s famous “Positive Good” speech: John C. Calhoun, “Slavery: A Positive Good,” available online at SCIway website, http://sciway3.net/2001/john-c-calhoun/Slavery.htm. 10. John Thompson, The Life of John Thompson, a Fugitive Slave (Worcester, MA: John Thompson, 1856), 18. 11. This is the title of his important summary history on the subject: Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989). 12. Professor Hatch adeptly chronicles both the glorious opening—and the vainglorious closing—of the communion of these new movements to AfricanAmerican adherents, both slave and free. Ibid. at 102–13. Although the reason for the closing of these communions and the reestablishment of racial divides in these new movements is an important part of American ecclesiastical and political history, what is most central to the present study is their initial democratic outreach to African-America and that people-group’s enthusiastic response to it. Even in the face of the closing of those communions, African-Americans had what they needed in the Gospel itself. 13. Ibid. at 103, 102.

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14. Ibid. at 102. 15. Exodus 8:1 (Revised Standard, exclamatory added). 16. Colossians 3:22 (Revised Standard). 17. I Corinthians 7:21 (Revised Standard). 18. Luke 4:18 (Revised Standard). Specifically, Christ defined His mission in redemptive, liberating terms: “He has sent me to proclaim release to the captives . . . to set at liberty those who are oppressed.” 19. Matthew 13:45–46 (King James). 20. The idea of the priesthood of every believer is derived from the powerful call and admonition of St. Peter in I Peter 2:9 and raised as a doctrinal distinctive in the Baptist tradition, of which African-America is a significant part, reinforcing individual value before God and special communion with fellow believers. 21. Isaiah 61:2. 22. See supra note 6. 23. Included in this institution’s “hall of shame” are The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873); U.S. v. Cruikshank, 92 U.S. 542 (1875); The Civil Rights Cases, 109 U.S. 3 (1883); Plessy v. Ferguson, 163 U.S. 537 (1896); and Cumming v. County Board of Education, 175 U.S. 528 (1899). 24. Martin Luther King, Jr., “Letter from Birmingham Jail,” in Martin Luther King, Jr., Why We Can’t Wait (New York: Signet Books, 1964), 76–95, 82 (referencing St. Augustine’s City of God). 25. Here I reference the remarkable New Testament biblical counterintuition of aiding, comforting, and dignifying even those bearing the mark of enemy to the believing Christian. In this way the Christian message instructs the believer to meet such a one with love (e.g., Luke 6:35), physical provision (Romans 12:20), and even prayer (Matthew 5:44). This strange, arresting message is unique to Christianity in this form, having special relevance to African-Americans, seeking a “proper” response to the enemies of their personal freedom. 26. Martin Luther King, Jr., “I Have a Dream,” in A Testament of Hope: The Essential Writings of Martin Luther King, Jr., ed. James Washington (San Francisco: Harper and Row, 1986), 218. 27. When African-American leader and activist Jesse Jackson favored the personal dignity of Ms. Schiavo as against the “right to die,” he confused the liberal base that challenged the inconsistency of that position against his political tendencies, but his alignment was ad idem in every way with the religious tradition that remains a significant part of his foundational life. 28. King, “I Have a Dream” at 218–19. 29. Ibid. at 219 (paraphrasing the stirring call of a disappointed God to his ever disappointing people as recorded in Amos 5:24, to put away the mere trappings of devotion in favor of the things He most reflected and therefore most desired: justice and righteousness).

Chapter 8

Churches of Christ

The Restorationist tradition includes today’s Churches of Christ and Disciples of Christ. Beginning in the early nineteenth century, the Restorationist churches sought to restore the New Testament church. Of course, the New Testament church’s experience with law was one of being persecuted and thus does not provide obvious implications for leadership in the field of law. In the early days of the movement, these churches resembled Anabaptist churches, rejecting both military service and the use of law to change culture. But in recent decades, people from Restorationist Churches have become much more heavily involved in the legal culture by, among other things, establishing two new law schools since 1970. In this essay, Thomas Bost notes that Scottish Rationalist roots within the Restorationist movement provide a close parallel to legal reasoning and calls on people within his faith to retain its commitment to radical discipleship as they seek to exercise influence within legal structures.

Reason, Freedom, and Apocalyptic Vision Churches of Christ and the Practice and Teaching of Law Thomas G. Bost Churches of Christ trace their American origins to two principal nineteenth-century leaders, Barton W. Stone and Alexander Campbell.1 In fact, the religious movement of which Churches of Christ are a part is generally known as the “Stone-Campbell Restoration Movement” or, more simply, the “Restoration Movement.” Two other churches, the Disciples of Christ and the Independent Christian Churches, arose out of this movement as 130

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well. These three religious bodies are the primary representatives of one of the largest Christian movements of American origin.2 Barton Stone, born in Maryland and educated in North Carolina, was a pietistic Presbyterian minister, who was fundamentally shaped by the revivalism of the Second Great Awakening, particularly the famous Cane Ridge Revival in Kentucky in 1801. This searing and exhilarating experience, which was democratic and ecumenical in nature, sealed Stone’s conviction that denominational lines and barriers were sinful. God’s children should be one, living as Christians in deed and truth, simply following the precepts of the New Testament free of the gloss of denominational creed or teaching. By 1804, Stone, chastised by the Presbyterian Church for his participation in Cane Ridge, broke with that church and joined likeminded believers in forming Christian communities unrelated to any formal ecclesiastical structure. Over the next forty years or so, Stone attracted a substantial following, primarily in the Mid-South and southern Ohio. Alexander Campbell, also a Presbyterian, immigrated from the north of Ireland to southwest Pennsylvania in 1809, joining his father, Thomas, a Presbyterian minister, who had immigrated two years earlier. By the time that Alexander had arrived in America, Thomas had withdrawn from the Presbyterian Church because of his dismay at the infighting among its various factions.3 In his Declaration and Address, one of the seminal documents of the new movement, Thomas decried the “awful and distressing effects” of the religious division that he observed: “what aversions, what reproaches, what backbitings, what evil surmisings, what angry contentions, what enmities, what excommunications, and even persecutions!!!”4 To Thomas and to Alexander, who became the acknowledged leader of the movement, the remedy for this deplorable condition was unity (“the church of Christ upon earth is essentially, intentionally, and constitutionally one”) based on the New Testament and nothing else (“the New Testament is as perfect a constitution for the worship, discipline and government of the New Testament church . . . as the Old Testament was for the worship, discipline and government of the Old Testament church”).5 Over the next three decades or so, many independent Christian congregations, founded by the Campbells and their followers and sustained by Alexander’s prolific writing and preaching, flourished in Pennsylvania, presentday West Virginia, and the states of the Old Northwest (Ohio, Indiana, and Illinois). The Stone and Campbell movements began to merge in the mid-1820s and were united by 1832. Although they had a number of differences in

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belief and emphasis, Stone and Campbell were both restorationists, seeking to leapfrog over almost eighteen centuries of church history to restore in its pristine purity the primitive church. Restoration, that is, the recovery of primitive Christianity, would be the basis for the unity of all believers and usher in the glorious millennial dawn. Restoration and unity, joined by freedom, particularly freedom from creeds, clerics, and ecclesiastical control, were the hallmarks of this movement. A sobering postscript to this story of beginnings is in order. Over time, a seemingly inevitable tension between the “restoration” and “unity” ideals became apparent as the movement’s adherents disagreed, often vehemently, on the essential elements of the primitive church to be restored, resulting in the very form of sectarian division and tension that the founders of the movement abhorred. Nevertheless, the ideals of the restoration movement remain and have enjoyed vitality in the almost two hundred years since the Cane Ridge Revival. Are there resources in this tradition that can sustain or inform the practice and teaching of law in the twenty-first century? I believe that there are and wish to suggest three themes or ideals of this movement that could be meaningful in this regard: reason, freedom, and apocalyptic vision. In my view, these themes are, as Restoration Movement historian Richard Hughes has put it, essential aspects of the “heart of the tradition.”6 Even though over the past two hundred years they have often been honored in the breach rather than in the observance and, in fact, may by now have been abandoned intellectually by many of the movement’s adherents, the themes and their underlying assumptions may be “so thoroughly bred in the bone” that they are difficult to abandon emotionally.7 I wish to add a brief note concerning my near life-long relationship with the Churches of Christ. I witnessed as a young child the baptism by immersion of my mother and father in small Churches of Christ in Oklahoma and Texas, respectively. This memory is etched in my consciousness. My parents’ conversion experiences initiated a lifetime of involvement and activity in several congregations of the Churches of Christ located in the southwestern United States. My younger brother and I were baptized at or about the “age of accountability,” twelve years of age in my case, and, as with our parents, have been deeply involved in the life of the church all our lives. While my brother received his academic training in religion and entered the ministry, now serving as a Churches of Christ missionary in Brazil, I embarked on the study, practice, and, now, teaching of law. The past half-century, which encompasses most of my life, has seen a

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significant transformation among Churches of Christ as they and their members have moved into the mainstream of American social and economic life. Correspondingly, the church has seen a flood of lawyers come from within its ranks.8 Furthermore, two law schools have been established at affiliated universities within the past four decades (after my graduation from law school): the Pepperdine University School of Law in 1970 and the Thomas Goode Jones School of Law of Faulkner University in 1983.

Reason Churches of Christ are heir to a tradition centered on the careful reading, analysis, and application of an authoritative text, referring in this case, of course, to the Bible, with particular emphasis on the New Testament. The Campbells’ approach to restoration was grounded in Enlightenment presuppositions and was especially influenced by a school of thought known as Scottish Common Sense Realism, popularly known in America as “Baconianism” in honor of Francis Bacon, who was seen as the father of inductive thought and the scientific method. A center of common sense thought (the term “common sense” referring to the senses and mental capacity common to all people, as opposed to the quality of level-headedness and practicality—i.e., “horse sense”—possessed by some) was Glasgow University, where Alexander Campbell was a student for a time. Following the lead of John Locke, Campbell’s teachers believed that persons have no innate ideas or a priori knowledge but begin with a blank slate, as it were. What is knowable comes by way of sensation and reflection.9 Thus, the Campbells emphasized induction as the way to truth and knowledge in all matters, including, most significantly, the knowledge of God. The learner collects all the data, the “facts,” and then, utilizing a process of synthesis and compilation, draws appropriate conclusions from those facts. Campbell argued that the “inductive style of inquiring and reasoning, is to be as rigidly carried out in reading and teaching the Bible facts and documents, as in the analysis and synthesis of physical nature.”10 As the scientist reasons inductively in coming to factual conclusions concerning the natural world, so does the Bible student in coming to spiritual conclusions. According to Campbell, “the Bible is a book of facts, not of opinions, theories, abstract generalities, nor of verbal definitions. . . . The meaning of the Bible facts is the true biblical doctrine.”11 So the key to understanding God and his will for humankind was not

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seen as being a matter of intuition, nor a still, small voice, nor a warm feeling, nor an ecstatic experience, nor an unquestioning adherence to religious authority. Rather, it was a matter of careful, responsible reading of the text and then coming to logical conclusions concerning its meaning. Walter Scott, one of the movement’s noted early preachers, argued that the “Christian faith . . . belongs to the science of inference—reason—logic, and depends for its reception in society on proof.”12 In this regard, Scott argued that the work of the Holy Spirit is not to “enter the soul of the sinner” but rather to convince the sinner “as we convince one another—by truth and argument.”13 As Richard Hughes has wryly noted, perhaps with slight exaggeration, evangelicals hold “revivals” to appeal to the sinner’s heart; Churches of Christ hold “gospel meetings” to appeal to his or her head.14 The hermeneutical principles that were developed in the movement bear striking similarities to the methodological principles of reasoning employed by lawyers. Although the early pioneers of the movement had eschewed the use of inference or other form of deductive reasoning in the determination of doctrine, by the Civil War years leaders in the movement explicitly affirmed that New Testament polity and doctrine were communicated to believers in any of three ways: direct command or assertion, necessary inference or implication, and divinely approved example. The influential editor Moses Lard employed this threefold hermeneutic to reach doctrinal conclusions that were both positive (weekly observance of the Lord’s Supper and weekly contribution as acts of worship are mandatory) and negative (infant baptism and instrumental music in the worship assembly are forbidden).15 The “inference” utilized by Lard and other Restoration thinkers was essentially the same as the “conclusion” reached in classic deductive reasoning. For example, Lard’s conclusion concerning infant baptism could be structured in a syllogistic format, with the major premise being “under apostolic teaching, persons who are not believers are not proper candidates for baptism into Christ,” the minor premise being “infants are not believers,” resulting in the conclusion that “under apostolic teaching, infants are not proper candidates for baptism into Christ.” Similarly, lawyers and judges are concerned with the prescriptive and proscriptive requirements, or “commands,” of constitution, statute, or case-law precedent. In applying these provisions to specific cases, they engage in two primary types of reasoning: deductive, or syllogistic, reasoning, and reasoning by analogy, which involves comparing the facts of the present case with those of an earlier case. As an example of the lawyer’s use

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of deductive or syllogistic reasoning, the prosecutor in a malicious-damage (or mischief) case might reason as follows: An element of the crime is that the defendant’s act be “malicious.” The defendant stated, “I’ll get even with Smith by burning his house down” (i.e., evidence of malice). Therefore, the defendant acted “maliciously,” thus fulfilling that particular element of the crime. As an example of reasoning by analogy, assume that the state supreme court has previously affirmed the conviction of a maliciousdamage defendant who stated, “I’ll get even with Brown by destroying his boat.” The prosecutor in the burned-down-house case will reason that the two cases are “indistinguishable” in that the nature of the destroyed item (house versus boat) is immaterial in the analysis of the existence of the element of malice. Thus, the earlier supreme court case is controlling on that issue.16 The similarities of this system of reasoning to the movement’s threefold hermeneutic are apparent. There are also interesting parallels between the movement’s principles of biblical interpretation and traditional norms of statutory interpretation. In The Christian System, Alexander Campbell, noting that God is a “God of order” and a “God of system,” sets forth seven cardinal principles governing a seeker’s approach to the Bible.17 The third of these principles contains, again, seven rules of interpretation which bear a striking resemblance to principles of statutory interpretation familiar to American lawyers. These principles received their first comprehensive articulation in the United States in 1839 by Campbell’s contemporary, Francis Lieber, who has been described as being “perhaps the premier legal academic of antebellum times.”18 Lieber’s Legal and Political Hermeneutics was influential in the formation of American legal thought and has had a formative and enduring effect on the theory and practice of American statutory interpretation.19 Both Campbell and Lieber assume that words have objective meaning. Lieber’s foundational principle is that “[a] sentence, or form of words, can have but one true meaning,” and Campbell notes that the Bible’s words contain “all of the ideas in it” and confidently asserts that if the words are “rightly understood,” its ideas will be “clearly perceived.” Both men assert that the goal of interpretation is to get to that one true meaning and that the reader’s attitude is essential to right understanding. Lieber demands “good faith and common sense.” Campbell posits that “humility of mind” and an “ardent desire” to know the will of God are prerequisites to coming within an “understanding distance” of God. Both would agree that discovering the “original intent” of the speaker or writer, as expressed by his or her words, is the goal of interpretation. Therefore, emphasis is placed on

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the common usage or signification of words and the historical context and purpose of the communication.20 Campbell believed that if these principles of interpretation were followed, all persons could interpret the Bible alike and unity could be achieved.21 Likewise, in insisting that a statute has “one true meaning,” Lieber “meant that differently situated judges, lawyers, and indeed citizens ought to be able to derive essentially the same interpretation of a statutory text when applied to the same set of circumstances.”22 In the legal context, this view is called “textualism” or “originalism”: statutes mean what their words actually say rather than any unexpressed intentions of the legislators. The goal of the interpreter is to apply the original meaning of the text, as expressed by its actual words, to the present circumstances of the case. Textualism was the prevailing interpretive doctrine in the United States well into the twentieth century, and it still has formidable champions, including, notably, U.S. Supreme Court Justice Antonin Scalia.23 It should be noted that both Campbell and Lieber were significantly influenced in the formulation of their respective hermeneutical approaches by the writings of J. A. Ernesti, a German scholar whose academic career in Leipzig included professorates in rhetoric, theology, and New Testament. In 1775, Ernesti wrote Institutio Interpretis Novi Testament, a work advocating a grammatico-historical hermeneutical approach to interpreting the scriptures. Ernesti rejected mystical and allegorical interpretive techniques, asserting that the goal of the biblical scholar is the “careful determination of what meaning a definite word had at a definite time, the usage of the word by a definite author, and, finally, the relation of the word to a definite form of speech.”24 Ernesti’s work was translated and elaborated upon by Moses Stuart, a preeminent American biblical scholar in the first half of the nineteenth century. Campbell cites the work of Stuart with frequency, and Thomas Olbricht asserts that “the specific historical route” for Campbell’s hermeneutics was the Ernesti-Stuart tradition.25 Similarly, Lieber frequently cites Ernesti in support of his interpretive methods. In arguing that the goal of the reader is to discover the meaning of the words in the text “as much as possible from the words themselves,” Lieber notes, Ernesti most solemnly warns against the belief in a perpetual and direct divine assistance in understanding the bible, without an unremitted zealous endeavor to arrive at the sense of the words, by the rules of sound interpretation. He calls it the abuse of reason, for by so doing we carry our opinion

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into the bible, and do not keep within the limits of the word, i.e., are unwilling to learn and receive the true meaning.26

Campbell could not have said it better himself. To say that the Campbells and their followers were serious, methodical, careful, and, above all, rational in their approach to the Bible is to state the obvious. This intellectual tradition stands in sharp contrast to the postmodernist notion that there is no common denominator, such as “truth,” assuring the possibility of neutral or objective thought. Campbell’s rational and systematic hermeneutical approach is anchored in the text and assumes that the text has meaning and significance independent of the interpreter’s subjective experience and outlook. The implications of this approach for constitutional and statutory interpretation are obvious: attention would be focused on the intention of the draftspersons, as expressed by their words, rather than on the predilections of the judges engaged in interpreting and applying the words. This could be seen as restoring the primacy of the legislator or constitutional delegate, and the people who elected them, in the origination of law. David Edwin Harrell asserts that Churches of Christ are part of an intensely rational movement, hewn out in debate, logical argument, preaching and proof-texting. . . . [I] would guess that the Churches of Christ in the twentieth century . . . have produced more than their share of scholars. . . . Though out of step with modern thought, [the movement] has encouraged diligent and regimented study. The restoration ideal has determined the direction in which these energies are expended. The Churches of Christ have produced Bible commentators, translators, linguists, historians, debaters, polemicists, and Bible students of no mean ability. Look in the universities of this nation and you will find them there.27

My postscript to this observation would be that in the past half-century, the movement has produced more than its share of lawyers as well, finding fertile soil for legal studies among a group of people whose “habits of the heart” have predisposed them to “think like lawyers.”

Freedom Churches of Christ emerged in the nineteenth century as a democratic movement seeking to place religious power in the hands of the people.

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Stone and Campbell urged people to reject the authority and tradition of their churches and read and interpret the Bible for themselves. Thus, necessarily these leaders granted to all men and women the freedom to conduct their own search for truth and disclaimed any particular authority for themselves. Stone’s affirmation of freedom is typical: “I have too much evidence of my liability to err to make my present opinions a test by which to judge the hearts of my fellow Christians.”28 Campbell’s refusal to submit to tradition is striking in its audacity: I have endeavored to read the scriptures as though no one had read them before me; and I am as much on my guard against reading them today, through the medium of my own views yesterday, or a week ago, as I am against being influenced by any foreign name, authority, or system, whatsoever.29

Accordingly, individual congregations of the Churches of Christ have remained autonomous and independent in matters of polity and biblical interpretation. There is no pastoral ordination or other clergy/laity distinction, and lay leaders selected by the members govern each individual congregation. By and large, Churches of Christ and their members have resisted becoming part of larger religious or social movements (e.g., the Moral Majority or People for the American Way) and have no expectation that lawyers in the movement will adhere to any particular religious, social, or political party line. At its best, the restoration movement has been just that, a movement toward a better understanding of truth, with significant changes in doctrinal understanding occurring over time and with individual interpretations and beliefs respected. The concept of a progression toward or a seeking for truth has remained alive even though from time to time various of the movement’s leaders have confidently concluded that their conclusions of the moment are the only ones that can rationally be drawn from the scriptures and that, in fact, the church has been fully “restored,” obviating the need for any further “movement.”30 The movement’s ideal of freedom remains essentially the same as that stated in an early formulation by John Rogers, a Kentucky preacher in the Churches of Christ: the fatal error of all reformers has been that they have too hastily concluded that they knew the whole truth, and have settled back upon the same principles of proscription, intolerance and persecution, against which they so strongly re-

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monstrated. . . . Having, then, full in our view, this fatal rock, on which so many reformers have split, may we studiously avoid it. We have no reason to conclude, we know all the truth. . . . We have nothing to lose in this inquiry after truth. We have no system to bind us to human opinions.31

This ideal of freedom should have profound implications for legal education. Freedom—academic, intellectual, and spiritual—is understood to be a core value of the academy. George Marsden succinctly states the purpose of academic freedom: To enhance the creativity of a community, academics should be as free as possible within the framework of their other higher commitments to explore and communicate even unpopular and unconventional ideas. A presumption of freedom within defined limits is an immensely valuable way of defining academic life.32

Marsden’s reference to “higher commitments” and “defined limits” acknowledges that limits on academic freedom necessarily exist and that those limits flow from the principles on which the academic endeavor is grounded. In the secular academic community, academic freedom has been justified as being necessary for the realization of “the common good” and, over the years, has been in fact limited by current perceptions of what the common good is.33 In contrast, the Christian academy is, in the words of Elton Trueblood, “one in which the Christian perspective is accepted openly, avowedly and unapologetically,” with the Christian perspective being the “starting point” in determining the curriculum, faculty, and the “entire spirit” of the academic institution.34 Thus, academic freedom will be informed, conditioned, and limited by the Christian perspective of the school. Although this perspective has at times been taken as a basis for enforcing uniformity and stifling dissent or discussion,35 such need not be the case. Rather, the movement toward a better understanding of the truth, which has served as an ideal of the Restoration Movement, should be viewed as accommodating, and, in fact, anticipating, disparate viewpoints on essential topics, including religion, as long as all participants acknowledge and respect the school’s underlying Christian perspective. For example, the application form for faculty candidates for the Pepperdine University School of Law states that the university “is a Christian university”; “has maintained a close relationship with the Churches of Christ”; has faculty, governing

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board, staff, and student body composed of “supportive individuals with a variety of religious backgrounds”; and “expects from all of its students and employees . . . behavior in harmony with its Christian philosophy and purpose.”36 Furthermore, the Pepperdine University Faculty Handbook affirms the concept of academic freedom by stating that faculty members “enjoy that freedom characteristic of the best in higher education as it has developed in Western culture” but notes that the faculty member’s exercise of that freedom must be “within a . . . framework of responsibility . . . to the University with its ideals and purposes.”37 In the last analysis, the movement’s ideal of freedom is based on two fundamental concepts: we are to love all of God’s children and, therefore, respect them and their ideas; and we are saved solely by God’s grace rather than human merit and, therefore, realize and acknowledge our own finitude and weakness. Richard Hughes contends that the values of respect for diversity and freedom of inquiry are, in fact, grounded on these concepts: This recognition [of our finitude and of God’s saving grace] enables the Christian scholar to approach his or her work with humility, to confess mistakes quickly and forthrightly, and to pursue the search for truth with zeal and determination, knowing that complete and final truth lies always beyond our grasp.38

Apocalyptic Vision For much of their history, Churches of Christ adopted an “apocalyptic worldview” whereby, in Richard Hughes’s words, “the believer gives his or her allegiance to the kingdom of God, not to the kingdoms of this world, and lives as if the final rule of the kingdom of God were present in the here and now.”39 Under this apocalyptic vision, the church is to stand apart from and in judgment of, and refuse to accommodate itself to, contemporary social, religious, and political systems. This countercultural stance owed much to the influence of Barton Stone, who sought to restore the ethical and spiritual dimensions of the kingdom of God, emphasizing personal piety and holy living. Stone was apocalyptic and premillennial, living in the shadow of Christ’s second coming and millennial reign, which he believed was imminent.40 For example, in appealing to Christians to free their slaves and allow them to emigrate to Liberia (one of several emancipation plans endorsed by Stone), Stone advised, “Let not the

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wares of Babylon, among which are slaves, be found among us at the coming of the Lord. Behold, he comes quickly.”41 The Christian is merely a pilgrim passing through this world with a duty of obedience to the kingdom of God rather than to the corrupt and fallen kingdoms of the world. Stone’s rejection of the values and structures of the present world manifested itself in several ways. Regarding all earthly governments, including that of the United States, as being part and parcel of the kingdom of the world and, hence, in rebellion against the kingdom of God, he refused to vote or otherwise actively participate in government and politics. Stone acknowledged the duty of Christians to submit to civil authorities, so long as such submission was not violative of conscience. However, participation in politics and government was seen as having a negative impact on piety and spirituality, diverting energy and devotion away from the things of God.42 Stone declared that he had “never seen a man much engaged in politics and religion at the same time” and rhetorically questioned whether “the politics of the day are in opposition to the politics of heaven.”43 Rather, the government and laws of Jesus are sufficient to rule humankind. Stone urged his followers to extend mercy to widows, orphans, the poor, and the hungry. Significantly, in the social context of the early nineteenth century, many Stoneites freed their slaves, and substantial numbers of former slave-owners moved to Ohio to escape the presence of this particularly appalling manifestation of the fallen and corrupt world. Stone preached against the ownership of slaves, eliciting positive responses in many of his followers: “The most of those who have lately reformed, look at slavery in the light of truth, and turn from the sight with sighs and tears.”44 Finally, Stone was nonresistant, believing that Christians were not to use force to resist evil. Stone based his position both on Christ’s example and his admonition in the Sermon on the Mount that his followers were to “turn the other cheek,” rather than resisting evil. Seventeen years before the advent of the Civil War, Stone ruefully noted that “[a] nation professing Christianity, yet teaching, learning and practicing the arts of war, cannot be the kingdom of Christ, nor do they live in obedience to the laws of Christ—the government is anti-Christian, and must reap the fruits of their infidelity at some future day.”45 In his relationship to the law, Stone could be fairly characterized, under H. Richard Niebuhr’s categorization in Christ and Culture,46 his classic study of the relationship of various Christian perspectives to the prevailing culture, as being a “separatist,” setting himself against the political and legal culture of the day. Under this view, Christians, as citizens of God’s

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kingdom, constitute communities outside the prevailing culture, resisting the temptation to pursue the earthly power that necessitates involvement with that culture. Stone’s apocalyptic vision was dominant in many Churches of Christ, particularly in the Mid-South, through the first three decades of the twentieth century. In Middle Tennessee, influential leaders Tolbert Fanning and David Lipscomb helped perpetuate the separatism, apocalypticism, and apoliticism of Stone among the churches. Lipscomb, in particular, living in the impoverished post–Civil War South, counseled plain living and advanced the view that all aspects of the church, its buildings, customs, and rites, should be adapted to “God’s elect—the poor of this world, rich in faith toward God.”47 Lipscomb viewed the church as God’s special legacy to “the poor of the earth. . . . It is the rich that are out of their element in Christ’s church.”48 Anthony Dunnavant has pointed out that Lipscomb viewed the church as being not only “for” but also “of ” the poor: “the great masses of professed Christians are now, [and] ever we trust will be from the poor, laboring classes.”49 To Lipscomb, “Christ is personified in his poor, helpless brethren. . . . every helpless, needy one of our brethren is the personification of Christ to us appealing for help.”50 Dunnavant observes that Lipscomb’s view of the poor bears a certain similarity to the Latin American “liberation theology” of God’s “preferential option for the poor,” but he notes crucial differences, the most significant being Lipscomb’s “insistence that neither the poor—nor any Christian—should engage in political action in order to fundamentally change the social order.”51 Following Stone, Lipscomb counseled the Christian to “perform all duties laid upon him by the government, that involved no active support of the government, and . . . no violation of the commands of God.”52 Forbidden to the Christian is active rebellion or opposition against or support of or participation in the government. The church, and not the state, is to be the Christian’s sphere of activity because the church is the only institution through which God’s children “can do and receive all good.”53 Finally, in the post-Reconstruction Jim Crow South, Lipscomb, quite out of step with all societal and religious norms of the day, protested the exclusion of African-Americans by white Churches of Christ in the strongest possible terms. For example, in 1907, Lipscomb, continuing a thirty-year theme, was sharply critical of members of a Tennessee congregation who wanted to exclude a young African-American girl from church membership. Lipscomb argued that

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Jesus Christ personates himself in the least and in the most despised of his disciples; and as we treat them, we treat him. . . . To object to any child of God participating in the services on account of his race, social or civil state, his color or race, is to object to Jesus Christ and to cast him from our association. It is a fearful thing to do.54

The sad fact is that most southern Churches of Christ chose not to heed these words until well after the beginning of the civil rights revolution in the mid-twentieth century. Although it still has vigorous proponents,55 the apocalyptic vision has had little impact on the vast majority of members of the Churches of Christ during the past three-quarters of a century. Propelled by strong forces of cultural change, including the advance of widespread prosperity and cultural diversity throughout the South and two world wars with their resultant surges in patriotism and nationalism, members of the Churches of Christ moved from relative isolation solidly into the mainstream of American life, feeling “increasingly at home in the world in which they lived.”56 Michael Casey notes that, at one time mired in “cultural obscurity,” Churches of Christ are now “exemplary religious insiders in the United States.”57 By their very participation in the law as “officers of the court,” Christian lawyers would seem to have at least implicitly rejected the separatist vision of Stone and Lipscomb. Nevertheless, the apocalyptic vision can still have prophetic power in the life of the Christian lawyer because it is based on the undeniable primacy of God’s present and active rule over the entire creation, including the law and the lawyer’s work. The lawyer’s moral vision is sharpened in that he realizes that his ultimate accountability is not to the court, bar, or law firm, or any other manifestation of contemporary culture. Rather, the lawyer is “a moral agent whose actions have consequences for which he is accountable, not just to himself and to others, but ultimately to God.”58 A keen vision of God as ruler over all may stimulate the lawyer to resist the easy compartmentalization of his life into sacred and secular, with the former having little influence over the latter. Thus, the lawyer may seek to transform his legal practice through the integration of faith and work.59 Furthermore, the apocalyptic vision of a presently ruling God who loves and mandates justice for all of his children may lead the lawyer to seek to submit to God’s rule by being God’s instrument of mercy and justice for those who are poor, dispossessed, or otherwise left behind by culture and society. An instructive example in this regard is the founding in

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1999 of the Pepperdine Legal Aid Clinic at the Union Rescue Mission, the nation’s largest rescue mission, located on Skid Row in Los Angeles. Attorney Jill Cucullu, an honors graduate of Lipscomb University and valedictorian of her class at Pepperdine University School of Law, turned her back on lucrative opportunities in private law practice to become the founding director of the clinic. Ms. Cucullu describes the clinic’s mission as follows: The . . . Clinic . . . seeks to answer God’s call to “do justice and to love mercy” by providing direct legal advice and representation to homeless and formerly homeless men and women participating in rehabilitation or job development programs in the Los Angeles skid row area. As a clinical program of Pepperdine University School of Law, the clinic trains and motivates students to provide high quality legal services to the poor both now as students and in the future as attorneys through classroom training at Pepperdine and through attorney supervised client interaction at the Union Rescue Mission. The clinic strives to enable clients to move from dependency to self-sufficiency and responsibility by addressing barriers to employment and by helping clients reconcile with their families, primarily through representation in family law, minor criminal, and unresolved debt matters.60

Thus, Christian lawyers may strive to bring restoration, reconciliation, and healing through the law in accordance with God’s vision of justice and mercy.

Conclusion We are shaped, directed, and inspired by our inherited traditions. They play a powerful role in bringing us to where we are and pointing us to where we want to be. For lawyers in the Churches of Christ, the traditions or themes of our movement may significantly contribute to our legal undertaking by predisposing us to rationally and systematically interpret and apply the law, encouraging us to grant to others the freedom of conscience and independent thought, and bringing to us a keen recognition of the sovereignty of a ruling God over the entirety of our lives and profession.

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notes 1. I wish to thank W. Harold Bigham, Michael W. Casey, Robert F. Cochran, Jr., Richard T. Hughes, Richardson R. Lynn, Rick R. Marrs, L. Timothy Perrin, Ronald F. Phillips, and John Wilson for their wise counsel and Andrea Place for her invaluable research assistance. Errors and opinions herein are mine. 2. The brief historical narrative that follows is primarily based on Richard T. Hughes, Reviving the Ancient Faith: The Story of Churches of Christ in America (Grand Rapids, MI: Eerdmans, 1996), 1–134. 3. Campbell was an ordained minister in the Old Light, Anti-Burgher, Seceder Presbyterian Church, with each designation reflecting a division on grounds of doctrine or polity. See Rick R. Marrs, Pepperdine University and the Integration of Faith and Learning (Malibu, CA: Pepperdine University Center for Faith and Learning, 2001), 3. 4. Thomas Campbell, Declaration and Address (1809), 6, reprinted in The Quest for Christian Unity, Peace and Purity in Thomas Campbell’s Declaration and Address, ed. Thomas H. Olbricht and Hans Rollman (Lanham, MD: Scarecrow Press, 2000), 8 (punctuation in original). 5. Ibid. at 3, 18. 6. Richard T. Hughes, The Idea of a Christian University (Malibu, CA: Pepperdine University Center for Faith and Learning, 2000), 11. 7. Richard T. Hughes, What Can the Church of Christ Tradition Contribute to Christian Higher Education? in Models for Christian Higher Education, ed. Richard T. Hughes and William B. Adrian (Grand Rapids, MI: Eerdmans, 1997), 404. 8. See Pepperdine University School of Law, Private Directory of Law Trained Individuals within the Church of Christ (Malibu, CA: Pepperdine University School of Law, 1995) (listing over nine hundred law-trained individuals, almost all of whom had graduated from law school after 1965). 9. See Hughes, Reviving at 31–32, 47–54, 60–63, 66–75; Carisse Mickey Berryhill, “Scottish Rhetoric and the Declaration and Address,” in Campbell, Quest for Christian Unity at 193, 195; and Michael W. Casey, “The Theory of Logic and Inference in the Declaration and Address,” in Campbell, Quest for Christian Unity at 223. 10. Alexander Campbell, “Schools and Colleges—No. 2,” Millennial Harbinger, 3d ser., 7 (March 1850): 172, quoted in Hughes, Reviving at 31. 11. Alexander Campbell, The Christian System, 2d ed. (Pittsburgh: Forrester and Campbell, 1839), 18. 12. Walter Scott, “Address Given before the American Christian Missionary Society” (1854), quoted in Hughes, Reviving at 51. 13. Walter Scott, A Discourse on the Holy Spirit (1831), 20–21, quoted in Hughes, Reviving at 51. 14. Interview with Richard T. Hughes in Malibu, California (February 14, 2002).

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15. See generally Michael W. Casey, The Battle over Hermeneutics in the StoneCampbell Movement, 1800–1870 (Lewiston, NY: Edwin Mellen Press, 1998); Thomas H. Olbricht, “Hermeneutics in the Churches of Christ,” 37 Restoration Q. (1995): 12–13. 16. See Stefan H. Krieger, “Legal Reasoning,” in The Oxford Companion to American Law, ed. Kermit L. Hall (New York: Oxford University Press, 2002), 503; Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949), 1–27. 17. Campbell, Christian System at 14–19. 18. Paul D. Carrington, “Meaning and Professionalism in American Law,” 10 Const. Comment. 297, 304 (1993). 19. Francis Lieber, Legal and Political Hermeneutics (1839; repr., Delran, NJ: Legal Classics Library, 1994). See Michael Herz, “A Symposium on Legal and Political Hermeneutics,” 16 Cardozo L. Rev. 1879 (1995). 20. Lieber, Legal and Political Hermeneutics at 120; Campbell, Christian System at 14–17. 21. Olbricht, “Hermeneutics” at 10. 22. William N. Eskridge, Jr., “Fetch Some Soupmeat,” 16 Cardozo L. Rev. 2209, 2210 (1995). 23. See generally Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1997). 24. As quoted in Werner Georg Kummel, The New Testament: The History of the Investigation of Its Problems, ed. S. McLean Gilmour and trans. Howard C. Kee (Nashville: Abingdon Press, 1972), 60–61, cited in Olbricht, “Hermeneutics” at 11. 25. Olbricht, “Hermeneutics” at 11. 26. Lieber, Legal and Political Hermeneutics at 113–14. 27. David Edwin Harrell, Jr., “Epilogue,” in The American Quest for the Primitive Church, ed. Richard T. Hughes (Champaign: University of Illinois Press, 1988), 241. 28. Quoted in Hughes, Idea of a Christian University at 10. 29. Quoted in Hughes, Idea of a Christian University at 10–11. 30. See Hughes, Reviving at 22–26. 31. John Rogers, “The Church of Christ at Concord, to the Elders and Brethren Assembled in Conference at Caneridge, Sendeth Christian Salutation,” Christian Messenger 4 (October 1830): 258, quoted in Hughes, Reviving at 192–93. 32. George M. Marsden, The Soul of the American University: From Protestant Establishment to Established Nonbelief (New York: Oxford University Press, 1994), 434. 33. Ibid. at 311–12, 433–35 (referring to the 1940 statement by the American Association of University Professors on academic freedom and tenure). 34. Elton Trueblood, The Idea of a College (New York: Harper and Bros., 1959), 24.

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35. See Michael W. Casey, “The First Graduate Theological Education in the Churches of Christ,” 44 Restoration Q. 139 (2002). 36. Discussed in Richardson R. Lynn, “Mission Possible: Hiring for Mission in a Vague World,” 33 U. Tol. L. Rev. 107, 109 (2001) (discussing recruitment and appointment of law faculty at Pepperdine). 37. “Tenure Policy Statement of Pepperdine University,” available online at http://www.pepperdine.edu/provost/content/TenurePolicy.pdf (accessed June 21, 2005), 14. 38. Hughes, Idea of a Christian University at 8. See also Richard T. Hughes, The Vocation of a Christian Scholar: How Christian Faith Can Sustain the Life of the Mind, rev. ed. (Grand Rapids, MI: Eerdmans, 2005), 21–41; Richard T. Hughes, Reclaiming a Heritage: Reflections on the Heart, Soul and Future of Churches of Christ (Abilene, TX: ACU Press, 2002), 29–34. 39. Hughes, Reviving at xii. See Thomas G. Bost and L. Timothy Perrin, “Practicing Law as a Christian: Restoration Movement Perspectives,” 32 Pepp. L. Rev. 419, 431–35 (2005). 40. See Hughes, Reviving at 92–134; D. Newell Williams, Barton Stone: A Spiritual Biography (Atlanta: Chalice Press, 2000), 223–29. 41. Barton W. Stone, Christian Messenger 9 (November 1835): 263, quoted in Williams, Barton Stone at 224. 42. See Hughes, Reviving at 110–13. 43. Barton W. Stone, “Reflections of Old Age,” Christian Messenger 13 (August 1843): 123, quoted in Williams, Barton Stone at 233. 44. Barton W. Stone, Christian Messenger 18 (February 1833): 63–64, quoted in Williams, Barton Stone at 210. 45. Barton W. Stone, Christian Messenger 14 (July 1844): 65–66, quoted in Williams, Barton Stone at 237. 46. H. Richard Niebuhr, Christ and Culture (1951; repr., San Francisco: Harper, 2001). See Bost and Perrin, “Practicing Law” at 424–26. 47. David Lipscomb, “New Publications,” Gospel Advoc. 8 (January 1, 1866): 11– 12, quoted in Hughes, Reviving at 132. See Hughes, Reviving at 117–34; Lee C. Camp, Mere Discipleship: Radical Christianity in a Rebellious World (Grand Rapids, MI: Brazos Press, 2003), 18–20; Michael W. Casey, “From Religious Outsiders to Insiders: The Rise and Fall of Pacifism in the Churches of Christ,” 44 J. Church and St. 455, 457–59. 48. David Lipscomb, Gospel Advoc. 8 (February 27, 1866): 141, quoted in Hughes, Reviving at 132. 49. Lipscomb, “New Publications” at 11, quoted in Anthony L. Dunnavant, “David Lipscomb and the ‘Preferential Option for the Poor’ among Post-Bellum Churches of Christ,” in Poverty and Ecclesiology: Nineteenth-Century Evangelicals in the Light of Liberation Theology, ed. Anthony L. Dunnavant (Collegeville, MN: Michael Glazier Books, 1992), 33.

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50. David Lipscomb, “Aid to Christians in Need—How Shall It Be Administered?” Gospel Advoc. 12 (March 17, 1870): 253, quoted in Dunnavant, “David Lipscomb” at 32–33. 51. Dunnavant, “David Lipscomb” at 43. 52. David Lipscomb, Civil Government: Its Origin, Mission, and Destiny and the Christian’s Relation to It (1889; repr., Nashville: Gospel Advocate Company, 1957), 132–33. 53. David Lipscomb, “Christians in Politics,” Gospel Advoc. 50 (June 4, 1908): 361, quoted in Dunnavant, “David Lipscomb” at 44. 54. David Lipscomb, “The Negro in Worship—A Correspondence,” Gospel Advoc. 49 (July 4, 1907): 425, quoted in Hughes, Reviving at 273. See Hughes, Reviving at 271–74. 55. See, e.g., Camp, Mere Discipleship (call to “radical discipleship” by a professor of Christian ethics at Lipscomb University). 56. Hughes, Reviving at 224. See Hughes, Reviving at 217–53 (describing the post–World War II “modernization” of Churches of Christ). 57. Casey, “From Religious Outsiders to Insiders” at 455. 58. Joseph G. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice (Mahwah, NJ: Paulist Press, 1996), 21. 59. See ibid. at 20–23; Bost and Perrin, “Practicing Law” at 435–37. 60. Jill Cucullu, director, Pepperdine Legal Aid Clinic, “Mission Statement, Union Rescue Mission” (June 20, 2002) (on file with author).

Chapter 9

Latter-Day Saints

In 1830, Joseph Smith published the Book of Mormon, “a document of profound social protest, an impassioned manifesto by a hostile outsider against the smug complacency of those in power and the reality of social distinctions based on wealth, class, and education.”1 His followers, the Latter-Day Saints (LDS), were persecuted by mainstream Christians and forced to move from upstate New York to Ohio, Illinois, and ultimately to the American West, where they founded Salt Lake City, Utah. LDS views of law have been forged from their experiences of being persecuted during their early days, controlling the state of Utah, and becoming an active and ever-growing part of other states and countries around the world.

notes 1. Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), 116.

Footings of Mormon Conceptions of Law Vantage Points for Understanding Constitutional Law and the Law of Religious Freedom W. Cole Durham, Jr., Michael K. Young, and Brett G. Scharffs Law holds a central place in both the theology and the historical experience of the Church of Jesus Christ of Latter-Day Saints.1 The Bible as well 149

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as other texts accepted by the Church as scripture2 contain countless passages relating to law,3 as do numerous statements from successive presidents of the Church, who are sustained by Latter-Day Saints as prophets. More generally, church leaders and scholars with LDS roots have frequently addressed the significance of law, both on ceremonial occasions4 and in the course of grappling with practical legal problems,5 as well as in the context of giving religious guidance to Mormon lawyers.6 And yet, in part because the Mormon tradition is relatively young, mining of the jurisprudential shafts of the tradition remains for the most part provisional and exploratory. There is no established body of work reflecting a distinctively “Mormon” theory of law. Not surprisingly, then, as we try to give a view of law through “Mormon eyes,” we of necessity must select from a vast and largely unmediated sea of passages that serve as “footings” for Mormon perspectives on law. We refer to them as “footings” because although some are general and fundamental ideas, such as those identified by major subheadings in this chapter, many are short passages or familiar scriptural phrases. Thus, they seem more humble than “foundations,” or at least our treatment of them does, and yet they serve a weight-bearing function in providing the essential supports for the ways in which believers within the Mormon tradition understand and relate to law. In this essay, after addressing some of the more fundamental of these “footings,” we turn to an exploration of how these shape LDS attitudes with respect to constitutional law in general and the law of religious freedom in particular.

Footings of Mormon Conceptions of Law Law and Revelation From the time of Joseph Smith’s first vision in 18207 —that is, from the very inception of Mormonism—revelation has been absolutely central to the tradition. Although mentioned here as a “footing,” revelation is clearly more than that: it is foundational for the Church. As important as the Bible is as a source of truth, its importance stems from the fact that it records and transmits revelation. The same is true of the Book of Mormon and other scriptural texts and of prophecy in general. Mormonism’s 9th Article of Faith states, “We believe all that God has revealed, all that He does now reveal, and we believe that He will yet reveal many great and

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important things pertaining to the Kingdom of God.” History is understood as a series of progressively more extensive “dispensations” of revelation and divine authority. Revelation provides the ultimate confirmation of truth: “by the power of the Holy Ghost ye may know the truth of all things.”8 Of course, it is not always easy to discern the difference between revelation and deception, mistaken understanding, or sound but merely secular understanding. Revelation must be handled with humility and good sense. Revelation is not always recognized as such by those who receive it. It can flow through conscience, reason, or simple impressions, among other channels. Different strands of revelation may seem inconsistent to human beings, but they all cohere in the mind of God. When revelation does come, it is important to remember that fallibility and finitude are universal human characteristics. Revelation can be understood imperfectly, incompletely, or with insufficient depth. Even if revelation is correctly understood, possession of truth does not automatically carry with it a right to impose that truth on others against their will. Moreover, revelation generally flows to those who need it and is tailored to their specific needs. Only a prophet is authorized to speak generally for God to the Church and to the world. And although a prophet’s mandate is as broad as God wills it to be, for the most part, prophets are called to speak on spiritual matters. With these considerations in mind, faithful members of the Church of Jesus Christ believe that God is a god of revelation, that revelation continues in our time, and that God is sufficiently wise and powerful to establish clear and reliable channels for revealed truth. The linkage of law and revelation is immediate, particularly with respect to spiritual or divine laws. Most clearly, revelation can identify divine or spiritual laws directly, as when the Ten Commandments were revealed to the prophet Moses. But there are many varieties of law and many ways that revelation can be given (and received), and accordingly, there are many ways that revelation can clarify, legitimate, and encourage support for law, in addition to occasionally providing grounds for criticizing unjust laws and social arrangements. Revelation is significant, but it is important to note that from a Mormon viewpoint, there are many “principle[s] of intelligence”9 that can be used in framing, interpreting, understanding, and applying law that are quite down-to-earth. For Mormons generally and for Mormon lawyers in particular, the encounter with law occurs predominantly in the domain of

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more secular “principles of intelligence,” invoking conventional secular modes of legal reasoning, political debate, and so forth. Law and Creation Latter-Day Saint scriptures contain several accounts of the creation that deepen and add significant material to the classic account in Genesis.10 These passages place the story of creation in a much grander context: “And worlds without number have I created . . . for mine own purpose; and by the Son I created them, which is mine Only Begotten. . . . And as one earth shall pass away, and the heavens thereof even so shall another come; and there is no end to my works.”11 God’s purpose in creation is also clarified: “For behold, this is my work and my glory—to bring to pass the immortality and eternal life of man.”12 The additional accounts make it clear that human beings existed as spiritual children of the Father before coming into the present world13 and that our world was created as part of a grand plan whereby we could acquire physical bodies14 and be tested as to our willingness to freely obey divine laws that open the way to immortality and eternal life. As a result of these and other passages, Latter-Day Saints understand the creation as a process governed by order and law. In contrast to traditional Christian accounts, however, creation is understood as “organization of preexisting materials, and not as an ex nihilo event.”15 Stated differently, “God organized the world out of chaotic matter or element by his wisdom and power, but the basic matter itself is eternal or self-existent and has always coexisted with God.”16 What is significant for our purposes is that creation is orderly and follows law. This order is linked in Latter-Day Saint scripture to the “light of Christ,” which “is in all things, which giveth life to all things, which is the law by which all things are governed, even the power of God.”17 This same light “cometh into the world . . . [with] every man” and “enlighteneth every man through the world, that hearkeneth to the voice of the Spirit.”18 The orderliness and law-abidingness of creation is pervasive and extends both to the physical laws of nature and to spiritual and moral laws. Laws contain the principles of order in all dimensions of creation. Mormon understanding of the creation provides a footing for LatterDay Saint perspectives on law in at least one other respect. In the Mormon account, it is clear that God’s spirit children assist in the work of creation. It is also clear, on reflection, that the grandeur of the creation of planets

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and stars and galaxies pales by comparison to the glory of creating social worlds suitable for beings capable of inheriting immortality and eternal life. This understanding adds a level of meaning and depth to the work of a Mormon lawyer, who can see, even in mundane tasks, encounters with infinite beings and the possibility of participating in the creation and shaping of social worlds. Law and Divine Commitment A primary corollary of the orderly and law-abiding character of creation is the divine commitment to sustain and abide by divine law and covenants. That is, God himself is bound by certain aspects of law and divine justice. As stated by one Book of Mormon prophet, “God would cease to be God” if mercy were allowed to destroy justice (which the intervention of the atonement avoids).19 Another scriptural passage records, “I, the Lord, am bound when ye do what I say; but when ye do not what I say, ye have no promise.”20 Still another very familiar passage emphasizes the linkage of blessings to compliance with law: “There is a law, irrevocably decreed in heaven before the foundations of this world, upon which all blessings are predicated—[a]nd when we obtain any blessing from God, it is by obedience to that law upon which it is predicated.”21 Law and Moral Agency Notions of personal freedom and autonomy are often referred to within the LDS tradition under the rubric of “moral agency,” sometimes referred to as “free agency.” This is without question one of the most fundamental doctrines of the Church of Jesus Christ. One cannot imagine a Mormon thinking about law without taking this “footing” into account. Moral agency is consistently referred to as a gift from God, both in accounts of God’s interaction with his spiritual children in the preexistence22 and in accounts of the launch of the human family in the Garden of Eden.23 And yet it is so fundamental to human nature and accountability that one cannot help thinking of it as a gift that God was “bound” to give. Certainly, if God’s aim is “to bring to pass the immortality and eternal life of man”24 and to create a community of beings who can become joint heirs in His Kingdom,25 this could not be accomplished by creating a race of robots without agency. One can imagine a celestial robot choir, but not a celestial robot community. Community, including the community of heaven,

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presupposes freedom. The concern for protection of agency in the Mormon tradition obviously resonates with support for principles of law and government that support human liberty, while leaving room for debate about what the detailed arrangements of free institutions should be. Law and Divine Authority Although the gift of freedom is central to the order of creation, it does not confer a right to amend divine law or usurp divine order and authority. Human beings remain free to choose whether to obey or to stray, but they cannot evade the consequences of disobedience except through repentance and acceptance of the atonement of Christ, “by obedience to the laws and ordinances of the Gospel.”26 It is not only truth that comes by revelation, but also authority to act in the name of God. Latter-Day Saints believe that in order for a man to have the authority to “administer in the ordinances” of the gospel, he “must be called of God, by prophecy, and by the laying on of hands by those who are in authority.”27 A primary reason for the restoration of the gospel through Joseph Smith was to restore priesthood authority to administer and officiate in the ordinances of the gospel, such as baptism and marriage for eternity. Priesthood authority can easily be lost if it is abused, for “the rights of the priesthood are inseparably connected with the powers of heaven, and . . . the powers of heaven cannot be controlled nor handled only upon principles of righteousness.”28 Priesthood authority governs within the Church, but Latter-Day Saints believe that “governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them, both in making laws and administering them.”29 Accordingly, they believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; . . . and that all governments have a right to enact such laws as in their own judgments are best calculated to secure the public interest; at the same time, however, holding sacred the freedom of conscience.30

Secular rule thus derives legitimacy from divine authority, but it has much broader latitude in structuring communal order. Moreover, to be just, such rule needs to protect freedom of conscience, which means as a prac-

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tical matter that state coercion may not be used to impose any particular theological vision of social order. Divine dominion flows “without compulsory means.”31 Constraints on Coercion The doctrine of moral agency has profound implications both for the internal domain of moral choice and for the realm of outer civil and political freedom. In the latter, which is the primary domain of law, the implication is that the coercive role of law should be circumscribed to leave an expansive space for the exercise of freedom. A passage describing one of the better communities portrayed in the Book of Mormon states, “there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds.”32 The passage goes on to explain that crimes such as murder, theft, and adultery were punished, but there “was no law against a man’s belief; therefore, a man was punished only for the crimes which he had done; therefore all men were on equal grounds.”33 Similarly, the Doctrine and Covenants provides that if a man or a woman kills, steals, or lies, he or she “shall be delivered up unto the law of the land.”34 On the other hand, most matters should be left to private reconciliation or, in the case of particularly serious sin, to church tribunals.35 In general, church leaders have not been sympathetic to the proliferation of regulatory burdens in the modern welfare state.36 A major concern has been that excessive state intervention and support, even when well-intended, can result in loss of self-reliance and personal accountability. Thus, although the role of law in society is understood to be extremely important, there is a strong sense that the scope of its coercive power should be limited. In most areas of life, freedom should govern. Divine, Natural, and Positive Law The foregoing makes it clear that law is extremely important within Mormonism, but Mormon conceptions do not fit neatly within classic categorization schemes such as Aquinas’s four types of law—eternal, natural, divine (positive), and human.37 Joseph Smith, born in 1805, was part of the first generation to grow up under the American Constitution, and the same can be said of most of Mormonism’s early leaders. Not surprisingly, their background assumptions about law were strongly influenced by their

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social setting. Thus, it was natural for them to consider the Constitution to be the apex of the legal system. At the very outset, however, this belief marks a blurring of natural-law and positivist categories, by ascribing natural-law weight to a positive-law document: a written constitution. More profoundly, the commitment to freedom necessarily alters not only the hierarchy of values but also the understanding of how such values should be chosen. Once one begins to take individual freedom and moral agency seriously, it is natural to gravitate toward systems of government in which legislation is based on freely chosen individual inputs mediated through direct or (more typically) representative democracy. This tendency necessarily places emphasis on democratically adopted positive law, although the foundational ideals of freedom and moral agency appeal to natural law. But overt appeals to natural law as a basis for positive law are often suspect. In modern democratic systems, positive law is dominant; the notions of eternal and divine law retain relevance primarily in the fairly circumscribed domain of religion; and natural law is institutionalized primarily in (positive) constitutional norms and institutional or procedural safeguards. Except at levels of exceeding abstraction and in cases of egregious evil, natural law ceases to be a practical and immediate reference point in resolving legal issues, though it may continue to hover in the background as a basis for moral and rhetorical appeals. Natural law and positivism are not viewed as differing sectors within operating legal systems but, rather, as opposing poles in a debate about the extent to which constraints should be placed on democratically adopted imperatives— usually through institutional means such as judicial review. The difficulty of specifying Mormonism’s attitude toward law in traditional theological/legal categories mirrors these complexities. On one hand, Mormons have strong beliefs in the kind of higher-law normative absolutes postulated by natural law, but they also have a strong sense of deference to the authority of positive law. In effect, Mormonism emerged in a historical setting in which a lay frontier understanding of American constitutionalism provided tacit working assumptions about the nature of secular law and justice. As a result, Mormon thought has paid more attention to constitutionalism and constitutionality than to more abstract jurisprudential debates between natural law and positivism. In addition to the Constitution, normal civil and criminal laws deserve obedience and respect. The Church’s 12th Article of Faith states, “We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.” This is consistent with the state-

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ment in the Church’s “Declaration of Belief regarding Governments and Laws”38 that “all men [should] show respect and deference [to the laws], as without them peace and harmony would be supplanted by anarchy and terror”39 and that “governments were instituted of God for the benefit of man.”40 Significantly, despite the American setting of early LDS history, relevant pronouncements on law and constitutionalism in scriptural texts and other settings are universal in their applicability. Thus, the 12th Article of Faith refers to “kings,” “rulers,” and “magistrates” as well as “presidents.” References to constitutionalism are also generalized. For example, in one passage the Lord states that the “law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.”41 Religion and Democracy The relationship between Mormonism’s natural-law instincts and its deference to positive-law tradition is perhaps nowhere more evident than in its commitment to democracy. Thus, while Mormonism is profoundly committed to the notion of moral absolutes reflecting the mind and will of God, it is also conscious that one of the most central of these absolutes is the value of human freedom. But in our current world, this is better protected by democratically enacted positive law than by appeals to natural law. According to a frequently quoted Book of Mormon passage, Now it is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law—to do your business by the voice of the people. And if the time comes that the voice of the people doth choose iniquity, then is the time that the judgments of God will come upon you; yea, then is the time he will visit you with great destruction even as he has hitherto visited this land.42

The Book of Mormon figure who advances this argument—a king seeking to end monarchic rule and replace it with a reign of judges—is clearly conscious of deeper natural-law-like standards of right and wrong, but he recognizes that procedurally, the system will yield correct results only so long as the greater part of the people desires to do “that which is right,” and he is content to leave the situations where “the people doth choose

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iniquity” to the judgments of God. The passage itself reflects much that is premodern,43 but it is frequently invoked by postconstitutional Mormons as a sound justification for democratic government. In this view, there is an ultimate sense of right and wrong that God can assess, but the best we mortals can do is to rely on democratic institutions. These are the best one can hope for, but they are bound to go awry if the system becomes corrupted or if the majority chooses evil.

LDS Attitudes toward Constitutional Law and Religious Freedom With the foregoing “footings” in mind, we turn now to how they have shaped Mormon attitudes toward specific areas of law. In this regard, we turn first to the general field of constitutional law, where the footings of belief in revelation, a sense for human involvement in creation, and a blend of beliefs in moral agency, authority, and a modernist conception of law have combined to yield a unique understanding of constitutional law. We then explore a specific domain of constitutional law that has been of particular significance to Latter-Day Saints: the law of religious freedom. Inspiration in the Framing of the Constitution There is probably no aspect of secular law about which more has been written within the Mormon tradition than the U.S. Constitution. From the beginning, the Constitution and constitutional government in general have been afforded a distinctive place. From Joseph Smith to the present, every president of the Church has reaffirmed the notion that divine inspiration played a role in the emergence of the Constitution.44 Several passages accepted as scripture underscore this notion. Section 101 of the Doctrine and Covenants acknowledges the laws and constitution of the people, which I [the Lord] have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles; [t]hat every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.45

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Another passage states, “Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land.”46 Still another records, “And for this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose, and redeemed the land by the shedding of blood.”47 Belief in the providential influence in the framing of the Constitution was common during the founding era48 but in the interim has become rare. For Latter-Day Saints, however, the notion is anchored in scripture. For them, the question becomes, How is the notion that divine inspiration played a role in the framing of the Constitution to be understood? Obviously, the Constitution did not come via direct revelation to a prophet such as Moses. Moreover, there has never been a sense that the Constitution is perfect or has the status of holy writ. One response has been to advance a developmental understanding of the Constitution. Taking this line, President Brigham Young taught that [t]he signers of the Declaration of Independence and the framers of the Constitution were inspired from on high to do that work. But was that which was given to them perfect, not admitting of any addition whatever? No; for if men know anything, they must know that the Almighty has never yet found a man in mortality that was capable, at the first intimation, at the first impulse, to receive anything in a state of entire perfection. They laid the foundation, and it was for after generations to rear the superstructure upon it.49

Another interpretation suggests that the inspiration is to be found in the accrued wisdom of the common law and English constitutional development. J. Reuben Clark developed this historical approach. His view is consistent with the developmental approach but takes a longer view of the historical process through which inspiration filtered into the Constitution. He emphasizes the influence on the framers of “the wisdom of long generations that had gone before and which had been transmitted to them through tradition and the pages of history.”50 Paralleling this historical view are numerous statements to the effect that the establishment of the Constitution was one of many providential steps that helped prepare the world for the restoration of the gospel.51 Part of the inspiration, understood as providential influence, was the extraordinary collocation of talent

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in the founding generation that came together to draft, defend, and ratify the Constitution.52 In addition to giving an explanation of how it might be that the Constitution was inspired, believers need to be able to explain what among the many features of the Constitution was inspired. In J. Reuben Clark’s view, what was inspired was what he called the “great fundamentals” of the Constitution.53 These included “(a) the separation of powers into three independent branches of government in a federal system; (b) the essential freedoms of speech, press, and religion embodied in the Bill of Rights; and (c) the equality of all men before the law.”54 Dallin H. Oaks has suggested that there are at least two additional “great fundamentals”: popular sovereignty and the rule of law.55 He has also gone further to point out that the inspired character of the Constitution ought to affect citizens’ behavior, by encouraging law-abiding conduct, cultivating public virtue, insisting on honesty, and in general, fulfilling the duties of citizenship.56 The views of these two Church leaders reflect a sense for fundamental principles but allow flexibility and respect for liberty under law. The resulting view of constitutional law is distinctive because it rejects the now-fashionable tendency to deny a providential hand in the emergence of constitutionalism. It goes beyond traditional natural-law thinking because it suggests that the process of framing the Constitution may have had revelatory dimensions that go beyond reason alone, and yet the processes are neither mystical nor opaque to reason. By understanding the process of inspiration as one that is developmental and historical, emphasis is placed on contributions made by conscientious thinkers coming from any of a variety of religious (and nonreligious) traditions. These are contributions that are accessible to reasoned discourse. The emphasis on the “great fundamentals” acknowledges that there may be differences of viewpoint with respect to specific constitutional doctrines or resolution of concrete cases. The human partners to the process of constitutional creation are left free and accountable for their own judgments. And yet a sense for the inspiration of the overall project emerges. Reverence for the Constitution (and not just for the Constitution, for constitutionalism) and its broad principles is preserved and enhanced, without conferring any undue interpretive authority on any particular group and without creating any sense that lawyers and citizens have been relieved of the responsibility to continue the process of constitutional creation—using the best

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principles of intelligence and persuasion available to them, consistent with the fundamental principles and procedures of constitutional order. Mormon Attitudes Regarding Constitutional Protection of Religious Freedom All of the foregoing “footings” come together in supporting constitutional protection of freedom of religion. Mormon history has sensitized Latter-Day Saints to the importance of this value precisely because the Church has suffered intense persecution, particularly in the nineteenth century. Despite deep disappointment with the level of constitutional protection afforded the Saints, and more likely because of it, there has been a commitment from the beginning of the Mormon tradition to the principle of religious freedom on behalf of all people.57 The underlying belief is that human beings have moral agency and that freedom of conscience is particularly vital. The Declaration of Belief affirms that “[w]e believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience.”58 Failures of Free-Exercise Protection To obtain a more concrete sense for Mormon attitudes toward free exercise, it is helpful to focus on two formative periods that shape Mormonism’s consciousness of its past. The first involves persecution and expulsion from Missouri (paralleled later by expulsion from Illinois). The second involves persecution during the second half of the nineteenth century in Utah. During both of these periods, constitutional free-exercise rights provided little in the way of practical protections for Church members. Following the experience of persecution in Missouri, Joseph Smith said of the Constitution, “Its sentiments are good, but it provides no means of enforcing them. . . . Under its provision, a man or a people who are able to protect themselves can get along well enough; but those who have the misfortune to be weak or unpopular are left to the merciless rage of popular fury.”59 A story often retold within the LDS Church recounts how in November 1839 the Prophet Joseph sought help from President Martin Van Buren after the Saints had suffered extensive loss of life and property in (and ultimately expulsion from) Missouri. Van Buren rebuffed the Mormon claims by saying, “Gentlemen, your cause is just, but I can do nothing

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for you.”60 A primary constitutional difficulty at the time was that just six years earlier, in Barron v. Baltimore,61 the Supreme Court had held that the federal Bill of Rights did not bind the states. Only in the twentieth century, when the Supreme Court determined that Bill of Rights protections were part of Fourteenth Amendment Due Process and thus set the minimum standards for state action did the Prophet’s frontier expectations of robust, federally backed state protection of religious freedom come to constitutional fruition. Free-exercise protections also proved ineffectual in the effort to withstand the federal government’s crusade against polygamy in the late nineteenth century.62 Because Utah was a territory and not a state from shortly after initial settlement in 1847 until statehood in 1896, the federal Congress was its lawgiver. This meant that unlike the situation in the states, where Barron v. Baltimore precluded direct application of the Bill of Rights, Latter-Day Saints could invoke the First Amendment language that provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”63 But in a series of cases beginning with Reynolds v. United States,64 the Supreme Court held that “free exercise” does not protect conduct. In particular, engaging in plural marriage was deemed to be subversive of good order because of the importance of monogamous families to democratic social structure. Furthermore, in Davis v. Beason,65 the Supreme Court held that mere membership in a religious organization that believed in plural marriage was sufficient grounds for denial of voting rights. During what two leading scholars of the period have called “the war against Mormon society,”66 running from shortly before the Civil War until the early 1890s, federal officials launched a series of measures aimed not just at polygamy but at Mormon society in general. No other state encountered comparable opposition in the quest for statehood.67 In addition to laws aimed at plural marriage,68 legislation was passed that excluded past or present polygamists from juries69 and from voting.70 The federal judiciary was effectively placed in non-Mormon hands and given preeminence over territorial courts.71 Women, who had been given the right to vote by Utah’s territorial legislature in 1870,72 were deprived of that right by Congress in 1887.73 The common-law protection of spousal immunity was abolished.74 Mormons were excluded from holding public office, both as a result of disenfranchisement and by law.75 A territorial law allowing wives and children of polygamous marriages to inherit on the same terms as heirs of monogamous marriages was annulled, and “illegiti-

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mate” children were not allowed to inherit, whether by will or intestate succession.76 The Perpetual Emigrating Fund, which had been established to help foster migration of Mormon converts from abroad, was dissolved and its assets were seized.77 A variety of administrative and diplomatic efforts were aimed at deterring Mormons from immigrating.78 The ultimate blow came with legislative dissolution of the Church and confiscation of Church property in excess of $50,000,79 the supposed constitutionality of which was affirmed by the U.S. Supreme Court in The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States.80 Faced with these pressures, Wilford Woodruff, the president of the Church at the time, felt compelled, in light of both the circumstances and inspiration he received, to issue the 1890 “Manifesto,”81 which ultimately led to the termination of the practice of plural marriage within the Church. Today, Church members who practice polygamy are excommunicated, and the Church has no interest in revisiting the nineteenth-century antipolygamy decisions. But there can be no doubt that ending polygamy was a significant redirection, and a number of small groups split off from the main body of the Church as a result.82 Particularly since many of the screws that were turned in the persecution of nineteenth-century Mormon practices were ostensibly “neutral and general” laws, there is a strong tendency within the Mormon tradition to see the Supreme Court’s 1990 decision in Employment Division v. Smith 83 —which held that “neutral and general laws” are sufficient to trump religious-freedom claims—as an unfortunate relapse in constitutional standards. In principle, Smith would permit recurrence of the kind of religious persecution that nineteenth-century Mormons suffered. Not surprisingly, the LDS Church was a vigorous proponent of the Religious Freedom Restoration Act of 1993 (RFRA), which sought to reinstate a stricter interpretation of religious-freedom standards after the Smith decision. The Church filed an amicus brief supporting the constitutionality of RFRA when that act was challenged in City of Boerne v. Flores (1997).84 Institutional Autonomy The principle of freedom of religion in the United States encompasses not only the right of individuals to free exercise but also the right of religious institutions to autonomy in carrying out their missions in accordance with their beliefs. One of the oldest and richest strands of case law on freedom of religion in the United States—dating back to Watson v.

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Jones (1871)85 —protects the autonomy of religious institutions in resolving internal disputes and in carrying out their own affairs.86 Significantly, this line of cases was explicitly left undisturbed by the Supreme Court’s ruling in Employment Division v. Smith.87 Although the Court merely noted this fact without further elaboration, a strong argument can be made that the reason for this is that the principles undergirding these institutionalautonomy cases involve more than a mere extrapolation of individual rights into the institutional setting. Stated differently, the right to institutional autonomy is not merely a derivative of individual free-exercise rights. Rather, it is rooted in a much more fundamental divide between secular and religious jurisdiction.88 Not only is it inappropriate for the secular state to meddle in this domain; in the last analysis, human beings simply lack authority, competence, and jurisdiction to dictate the principles of religious ordering to God, the divine realm, and the institutional manifestations of divine ordering. Seen in this light, the religious-autonomy cases “articulate a critical dimension of religious freedom anchored in the First Amendment but not exhausted by the lines of cases that have focused on either the ‘free exercise’ or the ‘establishment’ dimensions of the Religion Clause.”89 Viewed from the vantage point of the Mormon “footings,” it is empirically possible for human beings exercising their moral agency through governmental institutions to interfere with religious autonomy or even to usurp religious authority. But the result is not investiture of the state with divine power and legitimacy. Instead, “the heavens withdraw themselves; [and] the Spirit of the Lord is grieved.”90 Human attempts to interfere with divine authority and to exercise it on anything but divine terms lead to the loss of that authority and undermine the ability of those seeking to connect with and abide by divine ordering to do so. Different religious communities understand what is necessary in this process in diverse ways. The state may not legitimately second-guess beliefs of religious communities and institutions as to how they should forge and follow their distinctive religious paths. It may establish the secular order within which differing religious communities can live and flourish. But except where strictly necessary to protect the equal rights of others and where no less-intrusive means are available to protect legitimate secular values comparable in gravitas to religious freedom, the state should not engage in secular activities that impinge on or seek to assert jurisdiction over the religious domain. If religious life is to be authentic, it must be in a position to live by its own light

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without state compulsion, interference, or incentive packages that distort religious mission. The Mormon footings are consistent with these views. In the contemporary setting, one of the most practical ways that the principle of institutional autonomy is respected is by protecting the right of religious institutions to work through personnel who adhere to the religious beliefs and practices of the institution. As two leading experts have phrased the issue, “free exercise of religion cannot exist in any meaningful way unless the faithful—individually and in community—are free to choose who will baptize their children, bury their parents, and help them discern God’s will in all aspects of their daily lives.”91 As these authors state, “Decisions regarding those who are traditionally regarded as ‘ministers’—for example, the pastors who lead Methodist congregations or the rabbis who lead Jewish synagogues—have largely been protected.”92 The difficulty with this so-called ministerial exception is that it does not go far enough in protecting the range of personnel that are vital for religious autonomy.93 This range and the issue of the scope of protection for religious autonomy were both confronted in Corporation of the Presiding Bishopric v. Amos.94 In that case, employees brought suit against three nonprofit corporations controlled by the Church of Jesus Christ of LatterDay Saints—an organization that manufactures garments with religious significance for the Church, the Church’s Welfare Services Department, and a gymnasium owned by the Church.95 Claims were brought under the Civil Rights Act of 1964 for employment discrimination when employees were discharged for failing to meet the religious-worthiness requirements necessary to be able to enter Mormon temples.96 The right to religious autonomy was vindicated in this case, albeit only for religious organizations with nonprofit status. By the time the case reached the Supreme Court, only the case against the gymnasium remained unresolved. The gymnasium moved for dismissal of the lawsuit (which had been brought by a terminated building engineer), based on Section 702 of the Civil Rights Act, which exempts religious organizations from Title VII’s prohibition against discrimination on the basis of religion. The applicability of the exemption was clear; the only question was whether applying it created an impermissible establishment of religion. Reasoning that the exemption helped to avoid excessive entanglement of church and state, the Court held that the exemption did not violate the establishment clause. Although the case was thus decided on establishment clause grounds, it was clearly understood by the Church as a strong protection of a vital religious-autonomy right.

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At first blush, one might think there is no need to protect the equivalent of the “ministerial exception” in the context of what appear on their face to be the “secular activities” of a church. After all, one might argue, no specifically religious qualifications are needed to serve as a janitor at a gymnasium. But this ignores the fact that a religious organization may seek to teach and exemplify its beliefs in a broad range of settings that go far beyond normal worship or teaching situations. A cook in a cafeteria may be as likely to help build faith at a religious college as a professor in a religion course. A religious community may legitimately be concerned about the religious ambience of its institutions. For these and similar reasons, the LDS Church and its affiliated institutions continue to attach great significance to religious worthiness as a condition of religious employment. The Church’s commitment to a robust vision of religious autonomy is linked to a belief in institutional separation of church and state. “We do not believe it just to mingle religious influence with civil government, whereby one religious society is fostered and another proscribed in its spiritual privileges, and the individual rights of its members, as citizens, denied.”97 This should not be taken to mean, however, that the Church believes it is precluded from taking a stand on moral or other issues when the leadership of the Church is inspired to do so. Nor does it mean that the Church believes that religious values must be excluded from the public square. Moreover, the Church believes that there is nothing inappropriate about having indirect influence on the state as a result of the Church’s efforts to teach religious principles and to make positive contributions in its members’ lives. Latter-Day Saints are equally committed to others’ rights to religious freedom and autonomy. In the words of the 11th Article of Faith, “We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”

notes The authors wish to thank Gilbert Bradshaw for research assistance provided in preparing this chapter. 1. The official name of the Church is the Church of Jesus Christ of Latter-Day Saints. For convenience, we will use other terms interchangeably such as LDS Church, Mormon Church, Latter-Day Saints, the Church of Jesus Christ, and simply “the Church” to refer to the Church or its members.

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2. Works accepted as scripture by the LDS Church include, in addition to the King James version of the Bible, the Book of Mormon: Another Testament of Jesus Christ (hereinafter “BofM”); the Doctrine and Covenants (hereinafter “D&C”); and the Pearl of Great Price (hereinafter “PofGP”). In addition to the abbreviation for the work of scripture, citations to these works list book, chapter, and verse for the BofM and PofGP and section and verse for the D&C. 3. Literally hundreds of such passages are indexed in the Topical Guide to LDS Scriptures under headings such as Accountability; Citizenship; Command; Commandments of God; Decree; Equity; God, Justice of; God, Law of; God, Mercy of; God, Will of; Governments; Ignorance; Jesus Christ, Judge; Judgment; Just; Justice; Mercy; Law; Law of Moses; Order; Ordinances; and Statute. 4. See Ralph C. Hancock, ed., Just and Holy Principles: Latter-Day Saint Readings on America and the Constitution (Boston: Pearson, 1998). 5. See J. Reuben Clark, Jr., Stand Fast by Our Constitution (Salt Lake City: Deseret, 1973). For a thorough account of law and Mormonism in the nineteenth century, see Edwin Brown Firmage and R. Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830–1900 (Urbana: University of Illinois Press, 1988). 6. See, e.g., Galen L. Fletcher and Jane H. Wise, eds., Life in the Law: Answering God’s Interrogatories (Provo, UT: J. Reuben Clark Law Society, Brigham Young University Law School, 2002). 7. See PofGP, Joseph Smith—History Chapter 1. For more-thorough historical accounts, see Richard Lyman Bushman, Joseph Smith: Rough Stone Rolling (New York: Knopf, 2006), 30–56; Milton V. Backman, Jr., Joseph Smith’s First Vision: Confirming Evidences and Contemporary Accounts (Salt Lake City: Bookcraft, 1971). 8. BofM, Moroni 10:5. 9. See D&C 130:18. 10. A significant percentage of the Books of Moses and Abraham in the Pearl of Great Price are devoted to the creation. The Book of Mormon also adds significant commentary. See, e.g., BofM, 2 Nephi, chapters 2 and 9. 11. PofGP, Moses 1:33, 38. The reference to creation through the Son is consistent with a number of New Testament texts. See John 1:3, 10; Ephesians 3:9; Colossians 1:13–16; Hebrews 1:2, 10. 12. PofGP, Moses 1:39. 13. See Psalms 82:6; Ephesians 1:4; Jude 1:6; Hosea 1:10; Acts 17:29; Hebrews 12:9; BofM, Alma 13:3; BofM, Helaman 14:17; D&C 29: 36; D&C 38:1; D&C 49:17; D&C 93:29; D&C 138: 53, 56; PofGP, Moses 3:5; 6:36; PofGP, Abraham 3:22, 23; 5:7. 14. See Numbers 16:22; 1 Kings 17:21; Job 32:8; Ecclesiastes 12:7; 1 Corinthians 6:20; James 2:26; BofM, 1 Nephi 11:11; 2 Nephi 9:12; BofM, Mosiah 2:28; BofM, Alma 11:45; BofM, Ether 3:16; BofM, Moroni 10:34; D&C 77:2; D&C 88: 15; D&C 88:100; D&C 93:33; D&C 131:7; PofGP, Abraham 3:18; 5:7. Note that in the Mormon tradition, acquiring a physical body is regarded as a positive rather than a negative

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step. The reuniting of spirit and body through resurrection is vital to receiving a fullness of joy. D&C, 93:33–34. 15. F. Kent Nielsen and Stephen D. Ricks, “Creation, Creation Accounts,” Encyclopedia of Mormonism, ed. Daniel H. Ludlow (New York: Macmillan, 1992), 1:340. 16. LaMar E. Garrard, “God, Natural Law, and the Doctrine and Covenants,” in Doctrines for Exaltation: Sidney B. Sperry Symposium, February 1989 (Salt Lake City: Deseret, 1989), 66. See also Joseph Smith, Teachings of the Prophet Joseph Smith 158, 350, ed. Joseph Fielding Smith (Salt Lake City: Deseret, 1977). 17. D&C 88:13. 18. D&C 84:46. 19. BofM, Alma 42:13. 20. D&C 82:10. 21. D&C 130:20–21. 22. PofGP, Moses 4:3. 23. BofM, 2 Nephi 2:16; D&C 29:35. 24. PofGP, Moses 1:39. 25. See, e.g., D&C 84:38–40. 26. PofGP, Articles of Faith, art. 3. 27. Ibid., art. 5. 28. D&C 121:36. 29. D&C 134:1. 30. D&C 134:5. 31. D&C 121:46. 32. BofM, Alma 30:7. 33. BofM, Alma 30:11. 34. D&C 42:79, 84–86. 35. D&C 42:80–83, 87–93. 36. See, e.g., Dallin H. Oaks, “Separation, Accommodation and the Future of Church and State,” 35 DePaul L. Rev. 1 (Lecture 1985); John Taylor, The Government of God (Liverpool, UK: S. W. Richards, 1852). 37. Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province (London: Christian Classics, 1981), 3:1266–73. 38. This Declaration is included as Section 134 of the Doctrine and Covenants. 39. D&C 134:6. 40. D&C 134:1. 41. D&C 98:5 (emphasis added). 42. BofM, Mosiah 29:26–27. 43. This becomes more evident in the larger context of the passage, where it becomes clear that the “reign of judges” does not contemplate separation of powers, judicial positions pass from father to son, voting mechanisms are not very clearly specified, and the laws that form the basis for judgment do not have the artificial, man-made character that is evident in modern positivist systems.

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44. See Donald Q. Cannon, Latter-Day Prophets and the United States Constitution (Provo, UT: Bookcraft, 1991). 45. D&C 101:77–78. 46. D&C 98:6. 47. D&C 101:80. 48. See, e.g., George Washington, first inaugural address, Inaugural Addresses of the Presidents of the United States (Washington, D.C.: U.S. Government Printing Office, 1989), 3. 49. Brigham Young, “Discourse by Brigham Young on Fourth of July Celebration,” in Journal of Discourses (London: Latter-Day Saints Book Depot, 1854–1886; repr., 1964), 7:13–14. 50. J. Reuben Clark, Jr., Stand Fast by Our Constitution (Salt Lake City: Deseret, 1978), 136. 51. See, e.g., Jeffrey R. Holland, “A Promised Land,” in Hancock, Just and Holy Principles at xv; R. Collin Mangrum, “Mormonism, Philosophical Liberalism, and the Constitution,” BYU Studies (Summer 1987): 119; Rex E. Lee, “Constitutional Law,” Encyclopedia of Mormonism, ed. Daniel H. Ludlow (New York: Macmillan, 1992), 2:317. 52. See Noel B. Reynolds, “The Doctrine of an Inspired Constitution,” BYU Studies (Spring 1976), reprinted in Ray C. Hillam, ed., By the Hands of Wise Men: Essays on the U.S. Constitution (Provo, UT: Brigham Young University Press, 1979), 4–7. 53. See generally Martin B. Hickman, “J. Reuben Clark, Jr.: The Constitution and the Great Fundamentals,” in Hillam, By the Hands of Wise Men at 39–57. 54. See Dallin H. Oaks, “The Divinely Inspired Constitution,” in Hancock, Just and Holy Principles at 143 (summarizing Clark’s “great fundamentals”). 55. Ibid. at 145–47. 56. Ibid. at 147–49. 57. D&C 134:4. 58. D&C 134:2. 59. Joseph Smith, History of the Church of Jesus Christ of Latter-Day Saints, introduction and notes by B. H. Roberts (Salt Lake City: Deseret, 1968), 6:57. 60. Ibid. at 4:80. 61. 32 U.S. 243 (1833). 62. The polygamy issue is far too complex to address in any depth here. For excellent treatments of both the social phenomenon and the related legal issues, see Firmage and Mangrum, Zion in the Courts; Kathryn M. Daynes, More Wives Than One: Transformation of the Mormon Marriage System, 1840–1910 (Urbana: University of Illinois Press, 2001); Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002). 63. U.S. Const., amend. I (emphasis added).

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64. 98 U.S. 145 (1878). 65. 133 U.S. 333 (1890). 66. Firmage and Mangrum, Zion in the Courts at 210–60. 67. Ibid. at 214, citing John J. Flynn, “Federalism and Viable State Government —the History of Utah’s Constitution,” 1966 Utah L. Rev. 311, 314 (1966). 68. Morrill Act, 12 Stat. 501 (1862); Edmunds Act, 22 Stat. 30 (1882); EdmundsTucker Act, 24 Stat. 635 (1887). 69. Edmunds Act, 22 Stat. 31, § 5. 70. Edmunds Act § 8. 71. Poland Act, 18 Stat. 253 (1874); see Firmage and Mangrum, Zion in the Courts at 219. 72. Firmage and Mangrum, Zion in the Courts at 235. 73. Edmunds-Tucker Act § 20. 74. Firmage and Mangrum, Zion in the Courts at 235. 75. Ibid. at 236. 76. Edmunds-Tucker Act § 11. 77. Edmunds-Tucker Act § 15. 78. Firmage and Mangrum, Zion in the Courts at 241–44. 79. Edmunds-Tucker Act § 13. The act provided limited exceptions “for property used exclusively for purposes of worship, parsonages, and burial grounds.” Firmage and Mangrum, Zion in the Courts at 252. 80. 136 U.S. 1 (1890). 81. D&C Official Declaration—I. 82. The best estimates are that there are approximately thirty thousand to thirty-five thousand families adhering to offshoot groups that still practice polygamy—a fairly small number when compared with the nearly thirteen million members of the Church. See Daynes, More Wives Than One at 210. 83. 494 U.S. 872 (1990). 84. 521 U.S. 507 (1997). There has also been strong support in the Church for the Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106274, 42 U.S.C. § 2000cc-1. 85. 80 U.S. (13 Wall.) 679 (1871). 86. See W. Cole Durham, Jr., “Legal Structuring of Religious Institutions,” in James A. Serritella et al., Religious Organizations in the United States: A Study of Identity, Liberty, and the Law (Durham, NC: Carolina Academic Press, 2006), 219 and n. 27. 87. 494 U.S. 872 (1990). 88. See Carl H. Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power,” 84 Iowa L. Rev. 1, 55–57 (1998); Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” 2004 BYU L. Rev. 1385 (2004). 89. Durham, “Legal Structuring” at 220.

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90. D&C 121:37. 91. Patrick J. Schiltz and Douglas Laycock, “Employment in Religious Organizations,” in Serritella et al., Religious Organizations at 527. 92. Ibid. 93. For an excellent recent treatment of the issues, see ibid. 94. 483 U.S. 327 (1987). 95. Ibid. at 330 and n. 5. 96. Unlike LDS chapels, where normal Sunday worship services are held and all are welcome, LDS temples are viewed as particularly sacred places for the performance of special religious rites such as marriage for eternity, and they are open only to those who are striving to keep their lives in full compliance with the teachings of the Church. 97. D&C 134:9.

Part IV

Catholicism

At the founding of the United States, Americans were predominantly Anglo-Saxon Protestants. Toward the end of the eighteenth century, approximately 1 percent of the population was Catholic, perhaps forty thousand in a population of four million. But during the nineteenth century, waves of Catholic immigrants from Ireland and Eastern Europe joined the American conversation about law. Between 1820 and 1865, 1.9 million Irish immigrants, nearly all of whom were Catholic, came to the United States.1 In a democracy, numbers can translate into political power, but influence on law also comes through membership in the legal profession. This was especially the case in the United States, where lawyers were, in Tocqueville’s phrase, “the American aristocracy.”2 Immigrant families saw law as a step toward respectability and power in their new country. The organized bar in the United States unsuccessfully resisted the influx of new immigrants to its ranks.3 Catholics opened their own law schools in urban areas to “provid[e] a vehicle of vertical mobility for the children of the late immigrants.”4 Catholics had an ambivalent relationship with democracy until the 1960s, when the Church, through the influence of John Courtney Murray on the Second Vatican Council, embraced democracy and religious freedom. Catholic influence on law increased dramatically in the later part of the twentieth century. Prior to 1985, a total of seven Catholics were appointed to the Supreme Court; in the next twenty years, five Catholic justices were appointed, constituting a Catholic majority as of 2006.5 This section includes two essays, illustrating Catholic natural-law theory and Catholic social-justice theory. These theories complement one another, though there is a tendency for Catholics who emphasize natural law to be more politically conservative and Catholics who emphasize social justice to be more liberal. 173

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notes 1. Will Herberg, Protestant, Catholic, Jew: An Essay in American Religious Sociology (New York: Doubleday, 1955), 151, 155. 2. Alexis de Tocqueville, Democracy in America, 4th ed., trans. Henry Reeve, ed. Francis Bowen (Cambridge, MA: Sever and Francis, 1864), 355. 3. See Amy R. Mashburn, “Professionalism as Class Ideology: Civility Codes and Bar Hierarchy,” 28 Val. U. L. Rev. 657, 674 (1984); Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), 85–86, 208–11. 4. Thomas L. Shaffer, “The Catholic Tradition in Symposium: Mission of a Church-Related Law School,” 22 Val. U. L. Rev. 669, 670 (1988). 5. See Robert F. Cochran, Jr., “The Catholic Court Appeal: Why So Many Catholic Justices on the Supreme Court? Why Now?” Touchstone: A Journal of Mere Christianity (July/August 2006): 40–45.

Chapter 10

Catholic Natural Law

The legal theory most closely associated with the Catholic Church is natural law—the notion that reason provides a means of understanding which morals and laws lead to the highest level of human welfare.1 There were few Catholics in America at the founding of the United States, but natural law was quite influential. For example, the authors of the Declaration of Independence based their arguments on “the laws of nature and of nature’s God.” The “bible” for early American lawyers (when it was not the Bible) was Blackstone’s Commentaries, volumes explicitly based on natural law. When most twentieth-century legal theory followed Oliver Wendell Holmes’s view that natural law was merely “a brooding omnipresence in the sky,” 2 Catholics became the guardians of natural law. The doctrine received little respect within legal intellectual circles during most of the twentieth century until the publication of Catholic legal philosopher John Finnis’s Natural Law and Natural Rights in 1980. Natural-law theory is consistent with scripture’s teaching that the moral law is “written on the heart,” 3 and it can serve as a powerful basis for seeking common ground in a pluralistic democracy. In this essay, Patrick Brennan argues that the tendency of recent Supreme Court opinions to declare the “sovereignty” of the states is contrary to natural law.

notes 1. Thomas Aquinas, Summa Theologica, Question 94, trans. Fathers of the English Dominican Province (New York: Benziger Brothers, 1947). 2. Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). 3. See Romans 2:14–15.

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Sovereign States? The State of the Question from a Catholic Perspective Patrick McKinley Brennan The Supreme Court and State Sovereignty No matter how many times one may read the Constitution of the United States, one will not find the word “sovereign” therein.1 What Justice James Wilson said in 1793 of the Constitution with ten amendments is equally true today of the Constitution with twenty-seven amendments: “To the Constitution of the United States the term sovereign is totally unknown.”2 Sovereignty—“it was over this issue that the Revolution was fought,”3 and when the time came for the colonists who had repelled Parliament’s claims of sovereignty to frame a constitution for themselves, they left it out. Somehow, however, sovereignty has slipped in—not into the text, of course, but into the nontextual Constitution of the United States. How it happened is a long and dizzyingly complex story, which we can pick up in 1996. Prior to that year, the Court had held, with various equivocations and qualifications, that the courts established under the U.S. Constitution lack jurisdiction over suits against unconsenting states. In an unexpected, earthshaking decision in 1996, the Court transmuted what had generally been thought to be a question of “jurisdiction” into a question of what is inherent in the nature of statehood under our Constitution:4 “each State is a sovereign entity in our federal system”5 and “it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”6 Three years later, the Court stated, “In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I. . . . The States . . . retain ‘a residuary and inviolable sovereignty,’ ” indeed, a “sovereign dignity.”7 By 2006, the Constitution itself had receded from view. Immunity to unconsented private suit respects the states’ “preratification sovereignty.”8 In sum, the states enjoyed sovereignty before ratifying the Constitution, and they continue to enjoy some of it today. Sovereignty has not “slipped in”; it was there all along. A leading commentator on the Court’s sovereignty jurisprudence has

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described the prosovereignty majority as “five authors in search of a theory.”9 Whatever Chief Justice Rehnquist and Justices Scalia, Thomas, O’Connor, and Kennedy lacked in terms of theory, they more than made up for in metaphysical boldness: states of the United States are sovereign entities whose dignity privileges them not to be answerable in courts of law absent their own consent.10 It is quite a thing for a court to say.11 Several questions will be pursued in this essay: Can Catholics faithful to the Church’s social doctrine be among the defenders of “sovereign” states? What are states anyway? What is it to be sovereign? How do instruments that humans create to aid self-government become unaccountable to their creators? Can Catholics properly impute “sovereignty” to anyone but God? Can what the Court is claiming be true? In answering these questions, our principal guide will be Jacques Maritain (1882–1973). Maritain, one of the most influential Catholic lay scholars of the previous century, was one of the leading expositors of the theory of natural law, a doctrine he regarded to be Catholic but also accessible to all people of good will because of the natural law’s being promulgated by God, as well as received by humans, naturally (as opposed to supernaturally, that is, through grace). For several reasons, Maritain proves to be an especially helpful illuminator, from a Catholic perspective, of the strengths and shortcomings of American political philosophy and constitutional practice.12 First, as to first principles, Maritain’s position is certainly consistent with Catholic social doctrine as taught by the modern popes and the Second Vatican Council (1962–1965), in part because, second, Maritain’s political philosophy actually helped shape the social teachings of the Council. Paul VI, the pope who published the Council’s documents, was a disciple of Maritain and understood that they reflected Maritain’s understanding of man, society, state, and those institutions’ relationship to the Church.13 Third, Maritain was a towering member of the unofficial group of scholars who responded to the need, first identified by Pope Leo XIII in his 1879 encyclical Aeterni patris, to work out the transitions from the principles of traditional Thomist natural law to the exponentially more complex modern world, including a world growing used to liberal constitutionalism. Fourth, Maritain lived in the United States for almost a quarter-century, and his many writings include his concrete judgments on how the American constitutional order, philosophy, and practice square with Catholic social doctrine. What Maritain saw, earlier and more clearly than almost anyone else, was that “[w]hereas for centuries the crucial issues for religious thought

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were the great theological controversies centered on the dogmas of faith, the crucial issues will now deal with political theology and political philosophy.”14 Whereas some scholars have written off the Supreme Court’s recent ambitions on behalf of “sovereignty” as mere rhetorical flourishes, it was Maritain’s judgment that “[w]e cannot use the concept of Sovereignty without evoking, even unawares, [the] original connotation” according to which the king, the state, or the people were “absolute,” that is, in short, unaccountable.15 This led Maritain to conclude, “The two concepts of Sovereignty and Absolutism have been forged together on the same anvil. They must be scrapped together.”16 In the United States today, they are waxing, not waning. The Court’s pronouncing states sovereign does not make them so, but it does introduce the possibility that some people, believing them to be so, will not hold them accountable. Maritain encapsulates the Catholic corrective to the absolutist claims of the modern state in these terms: the basic political reality is not the State, but the body politic with its multifarious institutions, the multiple communities which it involves, and the moral community which grows out of it. The body politic is the people organized under just laws. The State is the particular agency which specializes in matters dealing with the common good of the body politic.17

In Maritain’s thinking, the Court, in service of the dignity of sovereign states, is damaging the dignity of the body politic—and we are that body politic.

Sovereignty Defined What, asks Jacques Maritain, does “sovereignty” (or, “sovereign”) mean? He argues that “the term needed” to describe the state “is not Sovereignty.”18 This is so, according to Maritain, because Sovereignty is a property which is absolute and indivisible, which cannot be participated in and admits of no degrees, and which belongs to the Sovereign independently of the political whole, as a right of his own. Such is genuine Sovereignty, that Sovereignty which the absolute kings believed they possessed, and the notion of which was inherited from them by the absolute States.19

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According to Maritain, “Jean Bodin is rightly considered the father of the modern theory of Sovereignty.”20 Bodin (1529/30–1596) very self-consciously sought to be the first to define sovereignty,21 and according to the proffered definition, the sovereign is a person to whom the people have transferred their ruling power. The critical element in the theory, according to Maritain, is that the people have divested themselves of ruling power that was properly theirs and have conferred it on someone separate and above themselves. On Bodin’s account, Maritain explains, “the Sovereign is no longer a part of the people and the body politic: he is ‘divided from the people,’ he has been made into a whole, a separate and transcendent whole, which is his sovereign living Person, and by which the other whole, the immanent whole or the body politic, is ruled from above.”22 Unlike later theorists of sovereignty, Bodin acknowledged that the sovereign was answerable to God and the natural law. His signal innovation was the creation of a ruling power that was above the people and not answerable to them. The sovereign’s power was “absolute”—that is, ab-solutus—because accountable to nothing and no one on earth. Maritain ventures that making the ruler accountable to neither human law nor human beings “is the core of political absolutism,”23 a point to which we shall return. After Bodin came Hobbes and “the generation of the great leviathan, or rather (to speak more reverently) of that mortall god.”24 As Hobbes saw the world, the people who would save themselves transfer all ruling power to a man (or assembly of men) who then will rule without accountability to any of his (or their) subjects, which is what men and women become upon the transference of ruling power. What Maritain finds uniting the classical theorists of sovereignty—one could also mention Filmer and Rousseau—is the claim, variously made, that a ruling power, called sovereign, can be beyond claims of justice, beyond claims of accountability to the governed. “In actual fact,” Maritain observes, “[l]aw did not need to be just to have the force of law. Sovereignty had a right to be obeyed, whatever it might command. Sovereignty was above moral law.”25 This, in capsule form, is Jacques Maritain’s argument against relying on the language of sovereignty: sovereignty cannot but import shades of its history, a history of postulating a ruling entity that is not accountable either to the people ruled or to the moral law. The unvarnished point of the Court’s deployment of “sovereignty” is to lead us to believe that the states qua “sovereign” are not accountable. One can suppose that Maritain would condemn outright the Court’s

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imputation of sovereignty to the states, to the United States, and to “the people.” Though naturally he would concede that the Court is using the term in more benign ways than were its originators, he would insist that it was destined, like a car out of alignment, to go in the wrong direction. Would he be wrong? Or would he be paranoid? Johannes Messner, another giant among twentieth-century Catholic scholars responding to Aeterni patris, opposed the plea for scrapping the term: “sovereignty or supremacy is a distinguishing characteristic of the state.”26 Heinrich Rommen, also a towering Catholic layman of the last century, pursued a via media: “If someone thinks that the word ‘sovereignty’ should be given up, this does not matter, as long as its content, as it is traditionally understood in Catholic political philosophy, is not lost.”27 Rommen summarized the traditional content as follows: “The concept of sovereignty is right and not dangerous either internally or externally if it is put into its interdependence with the principle of subsidiarity and the hierarchical order of ends, and subject to the natural and divine law.”28 Maritain would concur with Rommen in the content and also with the desire to give priority to the authority of the state because of its unique responsibility for the common good of all. He would say instead that the state and its ministers have “majesty” inasmuch as they represent the people in the search for the common good.29 This verbal distinction is not merely semantic—majesty does not claim unaccountability. Maritain refuses to equivocate on this point: “God alone is sovereign.”30

Political Society (and the State) Every theory of the state presupposes a theory of the human person or individual. Maritain starts not with a concept of the state or a theory of justice but with the person: “we admit that there is a human nature,” says Maritain, “and that this human nature is the same in all men.”31 It is not just humans that have given natures, however. Every kind, from carrots to cows to humans, has a unique nature; a thing’s or a person’s nature is the intrinsic form that specifies what it or he is and what is good for it or him. Hay is good for horses, but conversation is not; a balanced diet and conversation and other conditions are good for persons. For a thing or a person to become an excellent (or even decent) instance of its kind is for a thing or a person to achieve what is good for it. Conversely, not to achieve

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these (and more) is to fail to be a good instance of one’s kind. This is a simple matter of biology. A person’s nature is a set of unwritten directions as to how to behave, which he is free to follow or to ignore. “Any kind of thing existing in nature, a plant, a dog, a horse, has its own natural law, that is, the normality of its functioning, the proper way in which, by reason of its specific structure and specific ends, it ‘should’ achieve its fullness of being either in its growth or in its behaviour.”32 Each natural kind’s normality of functioning is to it a natural law. Deflating cartoon versions of natural law that treat it as a brooding omnipresence or rationalist’s cosmic index, Maritain discovers the natural law in the very conditions of the possibility of human flourishing. Natural law is law in not a merely metaphorical sense; it is true law because it is promulgated by God and then received by humans naturally (as opposed to supernaturally). As this idea is traditionally expressed, the natural law is man’s “participation” in the Eternal Law, the mind of God providentially disposing all things to their ends. Unlike carrots, cows, and horses, which lack power of choice with respect to whether to pursue their respective natures, man can ignore his nature. The human person can flout the natural law. Ignorance is no defense, however. “Men know [the natural law] with greater or less difficulty, and in different degrees, running the risk of error here as elsewhere.”33 Nature is strict liability, even though God may in the end have mercy and grant forgiveness. Studying human nature, Maritain observes that the human person is not a monadic individual but a social being. The human person is not merely supplemented, so to speak, by associating himself with others; he is, in part, constituted by engaging in society. Not to engage in society is to be less than a full, good instance of human kind. Society is not a thing but an activity of communication, a making common among rational persons.34 Maritain’s elaboration of society sometimes takes on a lyrical quality. The human person must live in society, says Maritain, not simply because of his needs or deficiencies but also because “the human person tends to overflow into social communications in response to the law of superabundance inscribed in the depths of being, life, intelligence, and love.”35 In contrast to mere community, which is “the product of instinct and heredity in given circumstances and historical frameworks,” “society [is] a product of reason and moral strength (what the Ancients called ‘virtue’).”36

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Examples of society are labor unions, schools, guilds, corporations, families, and, last but by no means least, the body politic or political society. Where they exist, all of these alike are the product of reason and will, and in forming them, men and women have objects in mind. Every particular society has an object; “the object is a task to be done or an end to be aimed at, which depends on the determinations of human intelligence and will.”37 Although all genuine societies aim at some human good(s), then, societies differ among themselves in the critical respect that whereas the last two mentioned above—family society and political society—“are both necessarily required and spontaneously rough-hewn by nature,”38 the first four, though natural (as opposed to supernatural), are not everywhere necessary. Practical intelligence and choice in response to particular circumstances will indicate which other societies should flourish alongside family within the body politic. The family and political society will exist wherever men and women are using their intelligence about how to live consistently with their human nature; other societies will be situation specific, spontaneous in their first beginnings and importunate of nurturance. “Political Society, required by nature and achieved by reason, is the most perfect of temporal societies.”39 “In this sense,” Maritain continues, “Aristotle’s statement that man is by nature a political animal holds with great exactitude: man is a political animal because he is a rational animal, because reason requires development through character training, education and the cooperation of other men, and because society is thus indispensable to the accomplishment of human dignity.”40 Maritain modestly defines the state as “a part or an instrument of the body politic, subordinate to it and endowed with topmost authority not by its own right and for its own sake, but only by virtue and to the extent of the requirements of the common good.”41 Not from above the body politic, as theorists of the sovereign state had thought, but from the topmost part of the body politic itself does the state wield its proper authority. It is that part of the body politic “especially concerned with the maintenance of law, the promotion of the common welfare and public order, and the administration of public affairs.”42 The state’s work is to take part in implementing the natural law for the common good of the body politic. “It is only on this condition,” Maritain explains, “of being in accordance with justice and with moral good, that the common good is what it is: the good of a people, the good of a city, and not the ‘good’ of an association of gangsters or of murderers.”43 Maritain’s instrumentalist theory of the state eschews the unaccount-

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ability of sovereignty in favor of disciplined service of the common good of the body politic, thus rejecting the state’s bid to make itself sovereign and the person, and his or her societies, its subject. In perhaps Maritain’s most famous line, “man is by no means for the State. The State is for man,”44 who is by nature (and supernature) a rational, social, and political animal.

Plurality The first and a sufficient reason that the state is not sovereign, then, is that the state is the servant of political society, the agent obligated to implement the natural law in service of the common good. We can add a second and correlative reason: political society is only one among many societies, and each society—from political society and the family to the Church and the school—bears its own, irreducible power to rule. Lodged within, but not contained by, political society are myriad other societies, and each of these—assuming that it is functioning properly—is a locus of genuine authority. This is the doctrine of subsidiarity, which asks that pluriform authorities be respected, not folded into a colonizing state. Authority is “the right to be followed by the minds and by the wills of other men (and consequently the right to exercise power).”45 Again, every society has its own, proper good(s) to achieve. Correlatively, each has its own right authoritatively to direct its own members toward those goods. Though the properly functioning state has authority by which to lead the body politic, by force if necessary, to the common good, the state’s is not the only authority in town; other societies have their own, irreducible goods to achieve. Their ontological reality gives them genuine traction. The second reason for denying that the state is or can be sovereign, then, is that societies and their correlative authorities precede, survive, and should be respected by the state. From the perspective of Catholic social doctrine, the cardinal sin of modern political theory, and frequently practice, has been to deny the right of societies to exist. With the (gaping) exception of the unborn, the modern state has not denied the right of individuals to exist. It has been the tendency of the modern state, however, to deny that societies have a right to exist, unless and until the state grants such a (revocable) right. In the contemporary United States, marriage and the family are the obvious example. The Supreme Judicial Court of Massachusetts, for instance,

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states, “Civil marriage is created and regulated through exercise of the police power.”46 Law professor James Dwyer agrees: “the reality is that the family is not a separate, primordial sphere that is or can be cordoned off from the power of the state. Quite the opposite. The law creates the family, and things could not be otherwise.”47 Against this background, we can project the basic texture of Catholic political philosophy, of which Maritain’s is exemplary. Although Maritain and the popes offer a profound account of individual persons, their rights, and their dignity, the basic architectonic they advance is not the rightsbearing individual versus the state, as it is in modern liberalism. Rather, it is a situation of pluralism, that is, plural societies (with their correlative authorities) and individuals served by the state with a view to the common good. All societies, the body politic not excluded, are limited by the rightful existence of other societies, and the state, for its part, is the servant of these societies and of individuals: this is the heart of the Catholic position, and it entails a defeat of claims to (state) sovereignty.48 The plural societies by which individuals go about constituting themselves are to be respected and encouraged. In the “pluralistically organized body politic” Maritain commends, the state would be “a topmost agency concerned only with the final supervision of the achievements of institutions born out of freedom, whose free interplay expressed the vitality of a society integrally just in its basic structures.”49 In the following sentence from his 2005 encyclical Deus caritas est, Pope Benedict XVI encapsulated more than a century of Catholic social doctrine on man and the state: “We do not need a state which regulates and controls everything, but a state which, in accordance with the principle of subsidiarity, generously acknowledges and supports initiatives arising from the different social forces and combines spontaneity with closeness to those in need.”50

The Flowering Forth of the Natural Law Maritain published his masterwork in political philosophy, Integral Humanism, in 1936, before he lived in the United States. In writing the book, Maritain later reported, “I was in no way thinking in American terms, I was thinking especially of France, and of Europe.” In his 1958 book Reflections on America, Maritain mused that Integral Humanism “appears to me now as a book which had, so to speak, an affinity with the American climate by anticipation.”51 Maritain judged that “nowhere in the world” had

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the “notion of the essence of political society been brought into existence more truly than in America.”52 He was particularly impressed, as was his countryman Alexis de Tocqueville a century earlier, by the flourishing within the body politic of all kinds of particular societies. This is not all that Maritain saw and approved. He continued immediately: “At the higher level we see here a plurality of states, each one with its particular life and legislation, which have finally grown into a single great Republic, a single Federal State.”53 Notwithstanding the growing “Federal State,” Maritain found the “basic organic multiplicity” in America to be “a particularly favorable condition for the sound development of democracy.”54 And most tellingly in Reflections on America, “at the very time when [at present] the necessities of life and the extraordinarily fast growth of the American nation oblige it to increase more and more the powers of the Federal State, the American mind still does not like the look of the very notion of state. It feels more comfortable with the notion of community.”55 Had Maritain lived to meet the Rehnquist Court, he would have been obliged to issue a retraction, at least if the Supreme Court can be said to be representative of “the American mind.” What Maritain found in America that he was pursuing from the beginning was democracy, democracy understood not as majority rule or even as a form of government but “first and foremost a general philosophy of human and political life, and state of mind.”56 This philosophy is identified above all by the following features: “inalienable rights of the person, equality, political rights of the people whose consent is implied by any political regime and whose rulers rule as vicars of the people, absolute primacy of the relations of justice and law at the base of society.”57 It would be misleading not to add at once that the “true philosophy of the rights of the human person is based upon the true idea of natural law. . . . The same natural law which lays down our most fundamental duties, and by virtue of which every law is binding, is the very law which assigns to us our fundamental rights.”58 Coming from God by way of man’s created nature and the natural law promulgated by God, natural rights are not fictive. “There is a dynamism,” Maritain says, “which impels the unwritten [natural] law to flower forth in human law. . . . It is in accordance with this dynamism that the rights of the human person take political and social form in the community.”59 This dynamism works itself out as political society creates a constitution and a state that will in turn create and enforce the constitution and make positive laws that are a “prolongation or an extension of natural law.”60 The right to implement the natural law through

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positive law is among the basic human rights affirmed: the body politic has a fundamental right “to take unto itself the constitution and the form of government of its choice.”61 It bears repeating: political society possesses a natural right to have its lawful—that is, consistent with the natural law—constitution enforced.62 One can ask in passing whether in the prosovereignty cases the Supreme Court has been enforcing the American people’s Constitution. If it has, that is, if the American people have purported to endow their state(s) with sovereign unaccountability, one must recall that the people themselves are not sovereign; the body politic is not free to violate the natural law. “According to the popular saying,” Maritain observes, “the democratic regime is described as the regime of the sovereignty of the people. This expression is ambiguous, for in truth there is no sovereign nor absolute master in a democracy.”63 Legitimate rulers, employed in a legitimate state, are themselves governed by law, and the people are powerless to alter this. “There is no need to add that the will of the people is not sovereign in the vicious sense that whatever would please the people would have the force of law. The right of the people to govern themselves proceeds from Natural Law: consequently, the very exercise of their right is subject to Natural Law.”64 To state a different but related point, justice remains the necessary condition of all that the democratic state does in the name of law.

Remedies In the Court’s hands, sovereignty has as one of its intended effects the denial of a remedy to what would otherwise be a legal right. Is this unjust? Justice is a necessary condition of legitimate state action, but does “true justice” call for a one-to-one correlation between right and remedy? The Latin maxim ubi ius, ibi remedium (“where there is a right, there is a remedy”) tumbles to mind. However, sovereign immunity has long stood, and stands now with renewed strength, as a bulwark against states’ being made to answer for their legal wrongs. It is tempting to conclude that Maritain would insist that ubi ius, ibi remedium. However, approving nothing that violates natural or divine law, Maritain acknowledges that the actual working of politics ineluctably depends on gathering and restructuring materials that are not pure. When it appears in politics, “hypermoralism” leads to the impracticability of mo-

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rality.65 Maritain would not be apt to exaggerate the importance of minor injustices. He counsels against the “impracticable and merely ideal.”66 There is a deeper issue at work here, however. According to Maritain, On the one hand, the primary reason for which men, united in a political society need the State, is the order of justice. On the other hand, social justice is the crucial need of modern societies. As a result, the primary duty of the modern State is the enforcement of social justice. As a matter of fact, this primary duty is inevitably performed with abnormal emphasis on the power of the State to the very extent that the latter has to make up for the deficiencies of a society whose basic structures are not sufficiently up to the mark with regard to justice.67

At the heart of the social-justice mission that Maritain attributes to the modern state is the right to a just wage, along with “[t]he right to work, . . . [t]he right to relief, unemployment insurance, sick benefits and social security.”68 In one of the Court’s leading sovereign-immunity cases of the past decade, the United States had guaranteed state workers certain overtime wages. There was no dispute that the state of Maine had failed to pay a group of probation workers the statutorily required wages. Under the Court’s ruling, the statutory right of the workers was trumped by the privilege of the sovereign state of Maine not to be sued without its consent. The same result would obtain if citizens had to sue states for what we call, following Charles Reich, the “new property”69 —such as public assistance and disability benefits, the stuff of “social justice” as understood by Maritain. These matters of right will evade enforcement absent a state’s willingness. In service of the “dignity” of states, persons are denied satisfaction of rights conferred by their general government as a matter of justice. But what of the dignity of the persons whose rights are trumped?

A Catholic Perspective on the American State(s) Russell Hittinger has argued that Maritain’s instrumentalist state is exemplary of the trend of modern Catholic social doctrine in which “one detects a steady deterioration of any ontological density to the state.”70 Moreover, although Maritain was conspicuous for his effusive embrace of

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democracy considered as a philosophy of human and political life, he was on the same page as Rome in being more concerned to show the limited (but indispensable) role of the modern state than to privilege or insist on specific governmental forms. Denying both the absolutist claims of sovereign monarchy and the absolutist claims of popular sovereignty, the Church has offered a vision of the state and of political society that privileges the state as the servant of the common good,71 as Maritain taught. The teaching on man and the state begun in the pontificate of Leo XIII and carried forward and developed by subsequent popes received canonical formulation in the declarations, decrees, and constitutions of the Second Vatican Council, which post–Vatican II popes have continued to teach, refine, and apply.72 Notwithstanding more than a century’s concerted effort by the Church to discredit states’ or individuals’ claims to or on behalf of sovereignty, there is no exaggeration in Russell Hittinger’s observation, “If we ask a modern person who or what is sovereign, he or she would not say, ‘reason,’ ‘the individual,’ or ‘science,’ but instead, without hesitation, ‘the state.’ ”73 The only wrinkle in the United States today, and it is considerable, is that the Court is simultaneously claiming sovereignty on behalf, first, of the United States, second, of each of the fifty states, and, third, of “the people.”74 The only mercy is that the Court does not too often reference the sovereignty of the people in the cases in which it is constructing state and national sovereigns.75 The incoherence is palpable; tergiversating assignment of nested sovereignties throws the confusion into inescapable relief. If what is wanted is a term for the right of the body politic to independence from other bodies politic, or for the state’s right to exercise authority, sovereignty simply is not it. Sovereignty is the term to denote unaccountability. Catholic social doctrine repudiates sovereignty, no matter who on earth claims it, even “the people.” The decisive claim made by the Church is that neither state nor people can be “sovereign,” as the term has been historically understood, because individuals, their societies, and the state they create in order to serve the common good sought are, whether they acknowledge it or not, under law—not just positive law but positive law as judged by the natural law, from which no one is exempt. The servant of the body politic, the state, cannot be exempted from the natural law because political society is called for by the natural law itself. All ruling power is from God, and is under his law, in which man participates. The reduction of the ontological density of the state has not been with-

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out its unintended consequences. In earlier times, the respective governing roles of Church and state were often confused and commingled, enabling the state to take advantage of its cogovernance with the Church to bolster claims to the sovereign status of the state. When, in the face of the totalizing claims of the modern state, the Church acknowledged and affirmed the nonsacral status of the state and the state’s independence of the Church, this was in part in order to establish the state’s responsibility to serve political society. The laicized state, however, has frequently taken advantage of its acknowledged independence to declare itself and its people loosed from the bonds of the natural law and correlative natural right. In the view of Pope John Paul II, Hittinger explains, “the constitutional democracies refused to live up to their end of the bargain.”76 John Paul II’s word was “betrayal,” used six times in his 1995 encyclical Evangelium vitae.77 If we recall Maritain’s warning that government’s being responsible to no law other than the natural law is “the core of political absolutism,” though, we must add the correlate on which Maritain insisted: “when it comes to the application of basic requirements of justice in cases where positive law’s provisions are lacking to a certain extent, a recourse to the principles of Natural Law is unavoidable, thus creating a precedent and new judicial rules. That is what happened, in a remarkable manner, with the epoch-making Nazi war crimes trial in Nuremberg.”78 According to Maritain, “justice must always hold sway.”79 The question whether justice is being done is always concrete. It is arguable that, as concerns the run of matters at issue in typical cases in which sovereign immunity is in play, the current American legal regime is, at one level, not far from justice. Statutes and judicial decisions provide a complex but vast arsenal of remedies that serve as end-runs around unwaived sovereign immunity. One of these is the rule that suit against the sovereign state can proceed if the state consents. A second end-run is the rule of Ex Parte Young, “one of the cornerstones”80 of the sovereign-immunity jurisprudence, which allows suits not for money damages but for a court to order agents of the state (but not the state itself) to act or to forebear to act in specified ways. These two devices are just a fraction of what is available.81 This raises an empirical question: do the alternatives cumulate to remedies close to what would obtain in an American legal regime innocent of sovereign immunity?82 As I suggested earlier, Maritain would not be apt to exaggerate the importance of minor injustices. At a deeper level, however, the Court’s sovereignty jurisprudence does violence to the dignity of individuals, the dignity of states, and the dignity

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of the body politic. Defenders of the Court’s sovereignty jurisprudence point out that it is one crucial link in the Court’s effort to create a more harmonious federalism. We can stipulate that the Constitution both calls for federalism (as opposed to a unitary national government) and leaves it to the courts and politics, in some combination or another, to determine and give effect to the particulars. Nonetheless, to justify the sovereignimmunity jurisprudence in terms of what it does for or about the relationship between the states and the United States, or between Congress and the states, is not sufficient. It is not just about states. As Evan Caminker points out, “according to the Court’s phraseology, it is precisely because private persons are deemed beneath the states in station that suits by the former constitute an ‘indignity’ to the latter.”83 The Court’s sovereignimmunity jurisprudence affronts and impairs individuals’ dignity. It also ignores the fact of plural social authorities that precede (and survive) state authority. In addition, the dignity of the states themselves is compromised. The state has what dignity it does, first, from its commitment to do justice in the body politic (and individuals and other societies), but also, second, from its success in actually bringing justice about. After summarizing all the temptations to irresponsibility that the state must resist, Maritain concludes, “Then only will the highest functions of the State—to ensure the law and facilitate the free development of the body politic—be restored, and the sense of the State be regained by its citizens. Then only will the State achieve its true dignity, which comes not from power and prestige, but from the exercise of justice.”84 There are no substitutes for the exercise of justice, as those who want for justice know best. The state’s dignity or majesty is not achieved except through doing justice. Finally, the Court’s sovereign-immunity jurisprudence has inflicted indignity on the body politic, on American political society. Political society is the work of intelligence and choice among people committed to seeking their individual goods and the common good and doing justice among themselves. To the extent that the people themselves have failed to set up legal structures that do true justice under law, or that fail to assay to do as much, they have failed in the work of constructing genuine political society. To the extent, moreover, that the body politic’s agent, the state, imposes on the body politic structures that treat justice as discretionary, genuine political society is missing. The Supreme Court’s imposition on American political society of states that qua “sovereign” are (personally) privileged to be above the law impedes American political society’s effort

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to become the sort of people it should wish and seek to become. The irony is complete in that the imposition is made by a state/court otherwise so unsure of its sovereignty as to have relocated sovereignty in the individual.85 The individual made sovereign by his own sovereign state is a phenomenon at odds with, among other realities, the natural pluralism of societies, including political society, affirmed by Catholic social doctrine. It falls to the Church “politically in diaspora”86 indirectly to build up and sanctify the city of man. It also falls to the Church to remind the state, especially when the body politic grows acquiescent in terrestrial overreaching, that God alone is sovereign. For the Church’s reminder, men have reason to be grateful, for as Maritain observes, when power without accountability waxes, even in the grand name of sovereignty, the people “are the very ones who always foot the bill. They are sure to account to their own sweat and blood for their mistakes.”87

notes 1. I gratefully acknowledge the research assistance of Roman Galas. For insights into the political philosophy of Jacques Maritain, I am grateful to James P. Kelly III. 2. Chisholm v. Georgia, 2 U.S. 419 (1793). 3. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), 198. 4. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996). 5. Ibid. at 54. 6. Ibid. 7. Alden v. Maine, 527 U.S. 706, 715 (1999) (quoting The Federalist No. 39 at 245). 8. Northern Insurance Company of New York v. Chatham County, 126 S.Ct. 1689, 1693 (2006). 9. Daniel J. Meltzer, “State Sovereign Immunity: Five Authors in Search of a Theory,” 75 Notre Dame L. Rev. 1011 (2000). 10. There is an exception, of which space limitations do not permit discussion, when Congress acts pursuant to its power under Sec. 5 of the Fourteenth Amendment. 11. For an ecumenical treatment of questions pursued in this chapter, including a more nuanced statement of the technical legal issues presented, see Patrick McKinley Brennan, “Against Sovereignty: A Cautionary Note on the Normative Power of the Actual,” 82 Notre Dame L. Rev. 181 (2006). 12. A compendious study of Maritain on law, politics, human nature, and

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grace is Patrick McKinley Brennan, “Jacques Maritain,” in John Witte, Jr., and Frank Alexander, eds., The Teachings of Modern Christianity on Law, Politics, and Human Nature (New York: Columbia University Press, 2005), 75–114. 13. Russell Hittinger, “Introduction to Modern Catholicism,” in Witte and Alexander, Teachings at 3, 27. 14. Jacques Maritain, The Range of Reason (New York: Scribner’s, 1952), 94–95. 15. Jacques Maritain, Man and the State (Chicago: University of Chicago Press, 1951), 38, 24. 16. Ibid. at 53. 17. Ibid. at 202. 18. Ibid. at 49. 19. Ibid. at 38. 20. Ibid. at 30. 21. Jean Bodin, On Sovereignty, trans. and ed. Julian H. Franklin (Cambridge: Cambridge University Press, 1992), book 1, chap. 8. 22. Maritain, Man and the State at 34. 23. Ibid. at 31n.12. 24. Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), II, xvii. 25. Maritain, Man and the State at 48. 26. Johannes Messner, Social Ethics: Natural Law in the Western World (St. Louis: Herder, 1965), 575. 27. Heinrich A. Rommen, The State in Catholic Social Thought: A Treatise in Political Philosophy (St. Louis: Herder, 1955), 409. 28. Ibid. 29. Maritain, Man and the State at 132. 30. Ibid. at 24. 31. Ibid. at 85. 32. Ibid. at 85, 87. 33. Jacques Maritain, The Rights of Man and Natural Law, trans. Doris C. Anson (1943; repr., New York: Gordian, 1971), 62. 34. Cf. Russell Hittinger, “Social Pluralism and Subsidiarity in Catholic Social Doctrine,” 16 Annales Theologici 401n.38 (2002). 35. Jacques Maritain, The Person and the Common Good (South Bend, IN: University of Notre Dame Press, 1946), 48. 36. Maritain, Man and the State at 3–4. 37. Ibid. at 3. 38. Ibid. at 4. 39. Ibid. at 10. 40. Maritain, Common Good at 48–49. 41. Maritain, Man and the State at 13. 42. Ibid. at 12.

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43. Jacques Maritain, Scholasticism and Politics, 3rd ed., ed. Mortimer J. Adler (London: Geoffrey Bles, 1940), 56. 44. Maritain, Man and the State at 13. 45. Maritain, Scholasticism and Politics at 74. 46. Goodridge v. Department of Public Health, 440 Mass. 303 (1993). 47. James G. Dwyer, Spiritual Treatment Exceptions to Child Medical Neglect Laws: What We Outsiders Should Think, 76 Notre Dame L. Rev. 147, 167 (2000). 48. Maritain remarks on the affinity between his own and Harold Laski’s principle of pluralism. Maritain, Man and the State at 22n.14. 49. Ibid. at 23. 50. Pope Benedict XVI, Deus caritas est (2005), no. 28. 51. Jacques Maritain, Reflections on America (New York: Scribner’s, 1958), 175. 52. Ibid. at 168. 53. Ibid. at 162. 54. Ibid. 55. Ibid. at 163. 56. Jacques Maritain, Christianity and Democracy, trans. Doris C. Anson (New York: Scribner’s, 1944), 33. 57. Ibid. at 68. 58. Maritain, Man and the State at 84, 95. 59. Ibid. at 100. 60. Ibid. at 99. 61. Maritain, Rights of Man at 87. 62. Ibid. at 88. 63. Maritain, Christianity and Democracy at 70–71. 64. Maritain, Man and the State at 48. 65. Maritain, Range of Reason at 160–63. 66. Ibid. at 161. 67. Maritain, Man and the State at 20 (emphasis added). 68. Maritain, Rights of Man at 113–14. 69. Charles Reich, “The New Property,” 73 Yale L.J. 733 (1964); idem, “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale L.J. 1245 (1965). 70. Hittinger, “Introduction to Modern Catholicism” at 22. 71. Ibid. at 15. 72. See, e.g., Second Vatican Ecumenical Council, Pastoral Constitution on the Church in the Modern World (Gaudium et spes) (1965), no. 74. 73. Hittinger, “Introduction to Modern Catholicism” at 4. 74. On the Court’s claim for sovereignty of “the people,” see Terms Limits, Inc. v. Thornton, 514 U.S. 779, 794 (1995). 75. See Meltzer, “State Sovereign Immunity” at 1011, 1041–44. 76. Hittinger, “Introduction to Modern Catholicism” at 32. 77. See ibid.

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78. Maritain, Man and the State at 95n.12. 79. Ibid. at 145. 80. Florida Department of State v. Treasure Salvors, 458 U.S. 670, 685 (1984). 81. See James F. Pfander, Principles of Federal Jurisdiction (St. Paul, MN: Thomson-West, 2006), 162–217. 82. Cf. Jesse Choper and John Yoo, “Who’s Afraid of the Eleventh Amendment? The Limited Impact of the Court’s Sovereign Immunity Rulings,” 105 Colum. L. Rev. 213 (2006), with Meltzer, “State Sovereign Immunity” at 1011. 83. Evan Caminker, “Judicial Solicitude for State Dignity,” Annals Am. Acad. Pol. and Soc. Sci. 574, no. 1 (2001): 87. 84. Maritain, Man and the State at 19 (emphasis added). 85. Russell Hittinger, The First Grace: Rediscovering the Natural Law in the PostChristian World (Wilmington, DE: ISI Books, 2003), 137. 86. Hittinger, “Introduction to Modern Catholicism” at 18. 87. Maritain, Man and the State at 53.

Chapter 11

Catholic Social Thought

Flowing from natural law is a body of Catholic teaching that has focused on the social responsibility of the state. Catholic social teaching developed a “preferential option for the poor” under which the policies of every government and institution are evaluated based on their impact on the most disadvantaged groups in that society. As members of a religious community composed in large part of families who came to the United States after the founding, Catholics are particularly sensitive to the needs of immigrant populations. In this essay, José Roberto Juárez considers laws regarding immigrants—in particular California’s battle over driver licenses for illegal immigrants.

Catholic Social Thought and Immigration José Roberto Juárez, Jr. On the morning of April 16, 2004, the caretakers of Our Lady of the Rosary Cathedral in San Bernardino, California, discovered that the cathedral had been vandalized. A forum to discuss legislation authorizing the issuance of driver licenses to undocumented immigrants had been scheduled in the cathedral that evening. Martin Hill, a Catholic pro-life activist, had faxed a letter to San Bernardino bishop Gerald Barnes asking that the event be canceled because the sponsor of the legislation, California state senator Gilbert Cedillo, whose support of abortion and embryonic-stemcell research conflicted with official Catholic teaching, was scheduled to speak at the forum. Mr. Hill wrote, “The Catholic church is obviously favoring and aiding [Cedillo] by giving him unfettered access to Catholic 195

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church facilities while at the very same time, the U.S. Conference of Catholic Bishops and the Holy Father himself are adamantly admonishing all ‘pro-abortion’ and pro stem-cell research politicians. I’d be very curious as to how you reconcile and justify this.”1 Mr. Hill called in to several talk-radio programs and asked his fellow Catholics to call Bishop Barnes’s office and ask him to cancel the event. Approximately twenty calls were made. Because of the press of legislative business, Senator Cedillo postponed the forum. On the morning of April 16, 2004, red, white, and blue paint was discovered splattered over the steps of the cathedral. In response to the vandalism by unknown individuals, Senator Cedillo flew to San Bernardino and held the forum at the originally scheduled time.2 At the forum, Mr. Hill again challenged Senator Cedillo’s presence in a Catholic church: “since you hold these meetings in Catholic churches, how do you reconcile that with the fact that your votes oppose the Holy Father’s teachings on issues such as abortion, stem cell research, and homosexual unions?” Although Mr. Hill did not use the term, his query to Senator Cedillo is consistent with the charge of being a “Cafeteria Catholic.” This epithet is used to describe Catholics who do not accept all of the teachings of the Catholic Church and instead choose which of these teachings to follow. The label “Cafeteria Catholics” is often used by theologically and politically conservative Catholics to describe individuals who either do not accept the Church’s teaching or are unwilling to adopt the Church’s teaching in secular law, usually on “hot button” issues involving sexuality: abortion, contraception, divorce, and homosexuality. Cafeteria Catholics are described as selecting only those of the Church’s teachings that are consonant with their own views. Catholic social thought provides rich and well-developed resources to guide Catholics in resolving the moral issues every person, community, and nation confronts. Whereas the Catholic Church’s views on sexuality are well known, other areas of Catholic social thought are unfamiliar to many people inside and outside the Catholic Church. Catholic social thought uses the Scriptures and principles derived from the Scriptures to address a wide range of other issues. Prominent among these issues is immigration. The United States prides itself on being a nation of immigrants. Like other advanced economies, the United States relies heavily on immigrant labor—labor provided by both documented and undocumented immigrants. Many people in the United States, however, have mixed feelings

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about immigration. Anti-immigrant sentiment, always present among some people, is heightened during periods of national insecurity. The Catholic Church is familiar with such sentiments. Although the first Christian churches in what is now the United States were Catholic churches (in Florida and New Mexico), there were few Catholics in the original thirteen states. The Catholic Church in the United States has often described itself as an immigrant church. As immigrants, Catholics in the United States were often the targets of nineteenth-century xenophobes and nativists. Like sexuality, immigration is a “hot button” issue in the United States. Dominant political discourse in the United States emphasizes the right of the United States as a sovereign nation to exclude noncitizens and often characterizes undocumented immigrants as “criminals” because they have violated U.S. immigration law. For example, Martin Hill, the individual who challenged the propriety of holding a forum on driver licenses for undocumented immigrants at the San Bernardino Cathedral, later posted a message on a website that explained, “I support sovereignty . . . and I’m not ashamed to shout it from the rooftops.”3 In Catholic social thought, however, national sovereignty cannot be used to limit immigration when this is inconsistent with the universal common good. Mr. Hill is selecting particular areas of Catholic social thought that are in accord with his own political views, and he is ignoring those that are in conflict. The phenomenon of the Cafeteria Catholic who selectively adopts Church teachings is pervasive, extending to theologically and politically conservative Catholics who otherwise insist that Church teachings be followed. The issues raised by immigration are complex. In the remainder of this chapter, I use the recent controversy over the provision of driver licenses to undocumented immigrants to examine how Catholic social thought addresses immigration issues. Although the particulars of this controversy may be resolved one way or the other in the future, other controversies over immigration will arise. The approach taken by the Catholic Church in the United States, utilizing the resources of Catholic social thought, to address the controversy over driver licenses for undocumented immigrants will be used by the Church to address future immigration issues. This in turn suggests that many Catholics in the United States will continue to be challenged by the Church’s teachings on immigration, and that some will continue to be Cafeteria Catholics who selectively reject the Church’s moral teachings on immigration.

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The National Controversy over Driver Licenses for Undocumented Immigrants The attacks of September 11, 2001, generated widespread insecurity among the citizens and residents of the United States. Such periods of insecurity often generate anti-immigrant sentiments. The post–September 11 insecurity has had a direct effect on the ability of immigrants to obtain driver licenses. Prior to September 11, efforts to expand the eligibility of immigrants for driver licenses were growing.4 Reports that some of the terrorists were able to obtain driver licenses stymied efforts to expand the eligibility of immigrants and generated widespread proposals to limit eligibility for driver licenses to citizens and permanent resident aliens. In 2002, about half of the states required that applicants for driver licenses be lawfully present in the United States. By 2004, only eleven states did not require immigrants to prove their lawful presence in the United States when applying for a driver license.5 Since 2002, Catholic bishops and organizations have relied on Catholic social thought to support the eligibility of undocumented immigrants to receive driver licenses in Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Ohio, Tennessee, and Texas. The U.S. Conference of Catholic Bishops has opposed efforts at the federal level to eliminate the right of the states to issue driver licenses to undocumented immigrants. The Church’s activities in California have generated the greatest publicity and controversy.

California’s Battle over Driver Licenses for Undocumented Immigrants Prior to 1992, all residents of California were eligible to become licensed drivers, regardless of their immigration status. In an effort to assist in the collection of child-support payments by noncustodial parents, California in 1992 required applicants for a driver license to provide a Social Security number.6 Since undocumented immigrants are not eligible to receive a Social Security number, the effect of this requirement was to preclude undocumented immigrants from receiving a California driver license. The following year the California legislature required explicit proof that an applicant for a driver license is present in the United States under the au-

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thority of federal law and made it a misdemeanor to knowingly assist an unauthorized person in obtaining a driver license.7 Legislative efforts to permit undocumented immigrants to obtain driver licenses began in 1999 and culminated in the passage of a bill in 2002, which was vetoed by then-governor Gray Davis. In the midst of a recall election, Governor Davis signed a similar bill in September 2003. After Governor Davis lost the recall election, the California legislature repealed the law. Newly elected governor Arnold Schwarzenegger indicated his willingness to consider extending driver licenses to undocumented immigrants so long as appropriate measures to address security concerns were included. In August 2004, the California legislature approved a bill requiring drivers who could not prove legal residence to provide fingerprints and undergo state and federal criminal-background checks. The bill also required the establishment of procedures to ensure that persons who cannot show lawful presence in the United States cannot serve on juries, purchase a firearm, or vote. Notwithstanding support from law-enforcement officials such as Los Angeles police chief William J. Bratton and the California Correctional Peace Officers Association, Governor Schwarzenegger vetoed the bill. This veto, however, is unlikely to be the final word on the subject: Senator Cedillo has indicated that he intends to reintroduce the bill in future legislative sessions.8 The California Catholic Conference represents the bishops and dioceses of California and describes itself as “the official voice of the Catholic community in California’s public policy arena.” The Conference has been one of the principal supporters of the thus far unsuccessful efforts to permit undocumented immigrants to obtain a California driver license. The issue was identified as a “second tier” issue for the conference in 2002, but by 2004 the issue had moved to the forefront of the conference’s agenda and was identified as an “important” issue.9

Catholic Social Thought In advocating the issuance of driver licenses to undocumented immigrants, the California Catholic Conference has relied on well-established principles of Catholic social thought. Catholic social thought’s teachings on immigration are developed from three sources: (1) the Hebrew Scriptures; (2) the Christian Scriptures; and (3) general principles of Catholic

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social thought. These teachings are announced in a variety of Church documents, such as papal encyclicals, papal letters, and statements issued by the bishops. Scripture The Hebrew Scriptures are regularly cited in Church documents on immigration. The Hebrew Scriptures do not use the modern term immigrant. They instead tell us that care for “aliens” and “strangers” is a moral imperative. God’s command to love the stranger occurs nearly three dozen times in the first five books of the Bible. Only the command to adore, love, and revere God and God alone appears more frequently. Thus, the Book of Exodus instructs, “You shall not oppress an alien. You well know how it feels to be an alien since you were once aliens yourselves in the land of Egypt.”10 The book of Leviticus offers more specific guidance: “When an alien resides with you in your land, do not molest him. You shall treat the alien who resides with you no differently than the natives born among you; have the same love for him as for yourself; for you too were once aliens in the land of Egypt. I, the LORD am your God.”11 Just as the Jews had personally experienced the pain of being forced to flee their native land, so too Jesus was forced into exile in Egypt. In Catholic social thought, the call of the Hebrew Scriptures is thus echoed in the Christian Scriptures. For the Catholic Church, solicitude for immigrants is based on the second of the two great laws of God that Jesus spoke about: “You shall love your neighbor as yourself.”12 The U.S. Catholic Bishops pointed out in 1959 that Jesus singled this out as a test for salvation: “If anyone says, ‘I love God,’ and hates his brother, he is a liar. For how can he who does not love his brother, whom he sees, love God, whom he does not see?”13 General Principles of Catholic Social Thought Catholic social thought rests on the foundation of these and numerous other scriptural passages. The Church has a well-developed set of fundamental principles derived from the Scriptures that are used to analyze issues of social justice. Social justice exists in Catholic social thought when society “provides the conditions that allow associations or individuals to obtain what is their due, according to their nature and their vocation.”14 Social justice is attained only when the transcendent dignity of each per-

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son is respected. The rights of each person flow from this dignity; these rights “are prior to society and must be recognized by it.” A society that fails to recognize each person’s rights undermines its own moral legitimacy. The person “is and ought to be the principle, the subject and the end of all social institutions.” Just as every person has rights, every person also has duties. The common good is “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily.” The common good has three essential elements: respect for the fundamental and inalienable rights of the human person; the social well-being and development of the group itself; and peace, that is, the stability and security of a just order. There is a universal common good implied by the unity of the human family. God created the earth for all persons “so that all created things would be shared fairly by all mankind under the guidance of justice tempered by charity.”15 The universal destination of earthly goods must always be considered. The role of public authorities is to “ensure as far as possible the common good of the society.” Three other concepts are fundamental in Catholic analyses of social justice. Charity “is the greatest social commandment” and requires the practice of justice. Solidarity, “also articulated in terms of ‘friendship’ or ‘social charity,’ is a direct demand of human and Christian brotherhood.” Solidarity with others in one nation is not sufficient. “International solidarity is a requirement of the world order; world peace depends in part upon this.” The last fundamental principle is subsidiarity, which provides that “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good.”

The Application of Catholic Social Thought to Immigration Policy These general principles of Catholic social thought are applied to a wide range of social policy issues, including immigration. The fundamental dignity of each person means that every person has the right to enjoy a life of dignity in his or her own native country. The root causes of migration to other countries, whether these be poverty, injustice, or war, should be

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addressed so that each person can remain in his or her homeland and support his or her family.16 Many persons, however, are unable to enjoy a life of dignity in their native countries. Until conditions permit such a life, Catholic social thought recognizes the right of the individual to emigrate to another country. This right echoes the recognition in the Universal Declaration of Human Rights of the right of every person “to leave any country, including his own and to return.”17 But Catholic social thought recognizes a more expansive right: the right of the individual to immigrate to a host country. This right is based on the dignity of the human person, who is created in the image of God. Pope Pius XII spoke of the “natural right of the individual to be unhampered in immigration or emigration.”18 Pope John XXIII recognized the right to immigrate whenever there are just reasons for immigration. This includes the “right to enter a county in which [the immigrant] hopes to be able to provide more fittingly for himself and his dependents.”19 Thus, as Pope John Paul II emphasized, Catholic social thought recognizes the right of economic refugees to emigrate with their families so that they can seek a better life.20 Secular law in the United States has yet to acknowledge this fundamental right. Catholic social thought recognizes the right of national sovereignty. However, this right is not the expansive right recognized in U.S. law and cited by opponents of immigration in the United States. In Exsul Familia, Pope Pius XII explained that national sovereignty cannot always be used to limit immigration: For the Creator of the universe made all good things primarily for the good of all. Since land everywhere offers the possibility of supporting a large number of people, the sovereignty of the State, although it must be respected, cannot be exaggerated to the point that access to this land is, for inadequate or unjustified reasons, denied to needy and decent people from other nations, provided of course, that the public wealth, considered very carefully, does not forbid this.21

Unlike the dominant secular view of sovereignty in the United States, Catholic social thought teaches that “all the goods of the earth belong to all people.”22 In considering whether to exclude immigrants because of the need to protect the nation from the costs of immigration, the public authorities are required to consider the “common good.” The right of the immigrant to be accepted may therefore be limited by the common good

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of the host country. However, as Pope John XXIII explained in his encyclical Pacem in Terris, the common good of the host country must be “rightly understood.” The common good that is to be considered is not just the common good of the native-born residents of the host nation. Instead, the common good that should be considered is the universal common good. Among those who must be included in this consideration of the universal common good are migrants and refugees. The universal common good requires an international order that can “alleviat[e] the miseries of refugees . . . and assist[] migrants and their families.”23 Pope John Paul II rejected a narrow conception of the common good: “the criterion for [a host nation] determining the level [of immigration] that can be sustained cannot be based solely on protecting their own prosperity, while failing to take into consideration the needs of persons who are tragically forced to ask for hospitality.”24 The Christian obligation to welcome the stranger is of special relevance to countries like the United States that have been “so lavishly blessed with God’s bounty.”25 Christians, who are a people on pilgrimage while on earth, are naturally in solidarity with migrants.26 Chauvinism, prejudice, and discrimination against the immigrant “deny the unity of the human family, of which the one baptism is our enduring sign.”27 John Paul II cited the universal role of the Church: “In the Church no one is a stranger, and the Church is not foreign to anyone, anywhere. . . . [T]he Church is the place where illegal immigrants are also recognized and accepted as brothers and sisters.”28 Catholic social thought requires more than merely reaching out to those on the margins; it requires that we assert a preferential option for the poor and the outcast, including the immigrant.29

The Application of Catholic Social Thought to the Issue of Driver Licenses for California’s Undocumented Immigrants The consequences of these general principles in Catholic social thought explain the uniform advocacy of the Catholic Church in favor of providing driver licenses to undocumented immigrants. The California Catholic Conference, for example, cited the passage from Leviticus on treating the alien no differently in arguing that undocumented immigrants should be eligible for driver licenses.30 Undocumented immigrants in California have fled their native lands for a variety of reasons. The conference quoted the U.S. Catholic Conference of Bishops’ recognition of the right of these

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persons to seek a better life for themselves and for their families: “The Church recognizes that all the goods of the earth belong to all people. When persons cannot find employment in their country of origin to support themselves and their families, they have a right to find work elsewhere in order to survive. Sovereign nations should provide ways to accommodate this right.”31 Undocumented immigrants thus have a fundamental right to seek a better life for their families in California, so long as the exercise of this right is consistent with the common good. Most of the arguments made by the California Catholic Conference in support of extending driver licenses to undocumented immigrants highlight the benefits to California—that is, the conference argues that the common good of California would be served. The conference notes that immigrants are critical to California’s economy, constituting “91 percent of farm workers, 76 percent of maids/housemaids, 69 percent of restaurant cooks, 66 percent of gardeners, 65 percent of construction/labor employees, 60 percent of electronic assemblers, 58 percent of household child care workers, 49 percent of janitors and 48 percent of drywall installers.”32 Driving a car is essential for most California employees; thus, the exclusion of undocumented immigrants “may impede the ability of working men and women to make a living, care for their family and contribute to our economic prosperity.” Such an impediment is contrary to the right under Catholic social thought of all persons to work to support themselves and their family. The harm, however, is not limited to immigrants. Because immigrants are such an important part of California’s economy, the policy may “severely curtail California’s economic growth and productivity.” Extension of driver licenses to undocumented immigrants, the conference argues, would also serve California’s common good by removing the safety threat posed by unlicensed and uninsured drivers. Public safety is threatened when there are unlicensed drivers on the road because these drivers “have not learned the proper driving techniques and may not know California law.” Unlicensed drivers are ineligible for car insurance. Unlicensed and uninsured drivers are involved in 20 percent of all accidents in California. Licensing undocumented immigrants would therefore “improve the safety of all California residents by ensuring that all drivers of motor vehicles are properly licensed, tested, and financially responsible.”33 Security concerns raised by opponents of driver licenses for undocumented immigrants must also be considered in evaluating whether the common good would be served. San Bernardino bishop Gerald Barnes has

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noted that all the California bishops agree that “licensing and verifying the true identity of all drivers in California, with proper background checks and other security measures, will contribute to improved security for all Californians.”34 This position is supported by numerous law-enforcement officials in California and throughout the nation. These law-enforcement officials note that security is increased when the identity of individuals can be established. The California legislation sought to improve security by requiring state and federal criminal-background checks for persons who cannot prove their authorization to be in the United States, and by excluding citizens of any country declared by the federal government to be a state sponsor of terrorism, unless the individual applicant is approved by the Governor’s Advisor on Homeland Security.35

Catholic Social Thought on Immigration and the Cafeteria Catholic During his tour of the United States in October 1995, Pope John Paul II repeatedly challenged the United States as a nation to be faithful to its tradition of welcoming immigrants. When he described the political debate in the United States over whether to close our borders and limit the rights of immigrants, the Pope’s response was forceful: “It must not!”36 Catholic social thought on immigration challenges the dominant secular paradigm for setting immigration policy. John Paul II has acknowledged that principles of Catholic social thought, such as solidarity, do “not come easily” because they require “training and a turning away from attitudes of closure, which in many societies today have become more subtle and penetrating.”37 Putting Catholic social thought’s teachings on immigration into practice requires “confronting attitudes of social superiority, indifference, and racism; accepting migrants not as foreboding aliens, terrorist, or economic threats, but rather as persons with dignity and rights, revealing the presence of Christ; and recognizing migrants as bearers of deep cultural values and rich faith traditions.”38 It requires that U.S. Catholics recall their own immigrant past and the origins of nativism, which was directed against all Catholics. Catholic social thought on immigration challenges those of us blessed by having been born in a wealthy and prosperous nation. Whether the question is issuance of driver licenses to undocumented immigrants, the regularization of the legal status of undocumented immigrants, or any of

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the myriad other immigration issues confronting the United States, the easy response is that of the Cafeteria Catholic: to reject the Church’s teachings because they are inconsistent with our own personal preferences. The Church calls on us to seek God’s grace to overcome our stubborn resistance and meet the challenges of solidarity with the immigrant and the call of the preferential option for the poor. The challenge is great, but so are the rewards: “Continue to love each other like brothers and sisters, and remember always to welcome strangers, for by doing this, some people have entertained angels without knowing it.”39

notes 1. L.A. Lay Catholic Mission, News (June 2004). 2. Imran Ghori, “State Senator Stops at Inland Church,” Press-Enterprise (Riverside, Calif.), April 16, 2004, B8. 3. Posting of “Stephen25,” “Cedillo Aide Has Angry Outburst in Catholic Church,” Free Republic, May 15, 2004, available online at http://209.157.64.200/focus/f-news/1136082/posts. 4. National Immigration Law Center, “Immigrants and Public Benefits: Driver’s Licenses: Most State Proposals to Restrict Drivers’ Licenses for Immigrants Have Been Unsuccessful,” July 15, 2002, available online at http://www.nilc.org/ immspbs/DLs/DL003.htm. 5. National Immigration Law Center, “Overview of States’ Driver’s License Requirements,” January 31, 2007, available online at http://www.nilc.org/immspbs/ DLs/index.htm. 6. Cal. Veh. Code § 1653.5 (West 2004) (requiring applicant to provide a Social Security number); Lauderbach v. Zolin, 41 Cal. Rptr. 2d 434 (Ct. App. 1995) (summarizing history and purposes of legislation disqualifying undocumented immigrants). 7. Cal. Veh. Code § 12801.5 (West 2004) (requiring proof that the applicant’s presence in the United States is authorized under federal law); Cal. Veh. Code § 14610.7 (West 2004) (making it a misdemeanor to assist a person whose presence in the United States is not authorized under federal law to obtain a driver license). 8. S.B. 1160, 2004 Leg., Reg. Sess. (Cal. 2004); Senate Democratic Caucus, State of California, “Cedillo Believes This Is the Year for Driver’s License Bill to Pass,” March 9, 2006, available online at http://dist22.casen.govoffice.com/index.asp?Type =B_PR&SEC={0A2790CD-E2A0-4AD1-ADCC-79E9FBBF6544}&DE={42079E3509C1-462B-B3FC-0E84486D341F. 9. California Catholic Conference, “Legislative Priorities of the California Catholic Conference,” E-Newsletter, June 22, 2004.

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10. Exodus 23:9. 11. Leviticus 19:33–37. 12. Mark 12:31. 13. U.S. Catholic Bishops, “World Refugee Year and Migration,” in 2 Pastoral Letters of the United States Catholic Bishops 226, 227 (ed. Hugh J. Nolan, 1983). 14. “Catechism of the Catholic Church,” no. 1928. Unless otherwise indicated, all quotations in this section are to the Catechism, nos. 1881, 1883, 1898, 1899, 1906– 1909, 1929, 1930, 1934, 1939, and 1941. 15. Pope Paul VI, Gaudium et Spes (1965), no. 69. 16. Catholic Bishops of Mexico and the United States, Strangers No Longer: Together on the Journey of Hope (2003), no. 28. 17. Universal Declaration of Human Rights, G.A. Res. 217, art. 13, 2, U.N. Doc. A/810 (1948). 18. Pope Pius XII, Exsul Familia, the Church’s Magna Charta for Migrants, ed. Giulivo Tessarola (1962). 19. Pope John XXIII, Pacem in Terris ¶¶ 25, 106 (1963). 20. Pope John Paul II, Familiaris Consortio ¶ 46 (1981). For a more complete description of the foundations of Catholic social thought on immigration, see José Roberto Juárez, Jr., “The Challenge of Catholic Social Thought on Immigration for U.S. Catholics,” 1 J. Cath. Soc. Thought 461 (2004). 21. Pope Pius XII, Exsul Familia at 51. 22. Catholic Bishops of Mexico and the United States, Strangers No Longer at no. 35. 23. “Catechism” at no. 1911. 24. Pope John Paul II, “Message of the Holy Father for the 87th World Day of Migration 2001,” February 2, 2001. 25. U.S. Catholic Bishops, “World Refugee Year and Migration” at 226. 26. Pope John Paul II, “Message for the 85th World Migration Day 1999,” February 2, 1999. 27. U.S. Catholic Bishops, “A Call to Conversion,” in “Welcoming the Stranger among Us: Unity in Diversity,” November 15, 2000. 28. Pope John Paul II, Undocumented Migrants (1995), no. 2. 29. Pope John Paul II, “Message for the 85th World Migration Day 1999” at 7. 30. California Catholic Conference, “Backgrounder: Driver’s Licenses for Immigrants,” April 2003 (citing Leviticus 19:34). 31. California Catholic Conference, “Important Legislation: SB 1160 (Cedillo, D-Los Angeles),” 2004. 32. California Catholic Conference, “Backgrounder” at n. 29 (citing Patrick J. McDonnell, “Jobs Exist for Immigrants,” Los Angeles Times, May 4, 1998, B1). Except where otherwise indicated, all quotations in this section are from this document. 33. California Catholic Conference, “Important Legislation: SB 1160.”

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34. Bishop Gerald R. Barnes, “Statement on the Repeal of SB 60, the Drivers License Law for Undocumented People,” December 11, 2003. 35. National Immigration Law Center, “Driver’s Licenses for All Immigrants: Quotes from Law Enforcement,” October 2004, available online at http://www.nilc .org/immspbs/DLs/index.htm. 36. “The Pope’s Visit; Excerpts from the Homily Delivered at Giants Stadium,” New York Times, October 6, 1995. 37. Pope John Paul II, “Message of the Holy Father John Paul II for the 89th World Day of Migrants and Refugees 2003,” February 2, 2003. 38. Catholic Bishops of Mexico and the United States, Strangers No Longer at no. 40. 39. Hebrews 3:2.

Part V

Judaism

In 1820, there were approximately five thousand Jews in the United States, but they were not alone for long. Jewish immigrants numbered between two hundred thousand and four hundred thousand from 1820 to 1870, and 2.5 million from 1870 to 1924.1 Like the Catholic immigrants, they experienced discrimination as they tried to enter the ranks of the legal profession.2 They also came to a legal tradition containing many familiar elements. Though there were very few Jews in North America at the time of the founding, religious influence on law was as much “Judeo” as ”Christian.” As Michael Novak notes, all four names for God from the Declaration of Independence (Lawgiver, Creator, Judge, and Providence) were based on Hebrew names for God, rather than specifically Christian names such as Savior, Trinity, Father, Son, or Holy Spirit. Novak points to this as evidence of the “Jewish Metaphysics” underlying the founding.3 Nevertheless, many Jews have been among the most aggressive advocates of a secular approach to law in the United States. This is not surprising, given the poor treatment of Jews at the hands of European Christendom in previous decades. Some Jews, however, argue that they are better served by an America that welcomes religious values in the public square than by a secularized public square.4 notes 1. Will Herberg, Protestant, Catholic, Jew: An Essay in American Religious Sociology (New York: Doubleday, 1955), 187, 192. 2. From 1922 to 1960 Yale Law School limited the number of its Jewish students. Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), 85. 3. Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding (New York: Encounter Books, 2002), 17. 4. See Elliott Abrams, Faith or Fear: How Jews Can Survive in a Christian America (New York: Simon and Schuster, 1997).

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Chapter 12

Orthodox Jews

There is a wide range of Jewish views about law. In this section, two Jewish authors write from opposite ends of that spectrum. Those in the Orthodox Jewish tradition pay the closest attention to Jewish law, but they believe that most of the Jewish law applies to Jews only. The one exception is the Noachide law—the portion of the law that God gave to Adam and Noah—which Orthodox Jews see as applying to non-Jews as well as Jews. In this essay, rabbi and law professor Samuel Levine argues that other portions of Jewish law might appropriately serve as a model for American law, much as Americans can gain insights about law through comparative studies of the laws of other countries. Here, Levine considers insights that American law might gain from the Jewish law of confessions.

Self-Incrimination in Jewish Law, with Application to the American Legal System Samuel J. Levine Introduction Law serves a central role in Jewish faith and tradition. Indeed, Jewish law comprises a legal system that has developed over thousands of years, exploring and regulating every form of human endeavor and experience. Thus, it may be unsurprising that American courts and legal scholars have increasingly turned to Jewish legal tradition for insights into various issues confronting the American legal system. Jewish law has provided an 211

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alternative and, at times, contrasting model that some have found particularly helpful in illuminating complex, controversial, and unsettled areas of American law. In light of these developments, this essay aims to consider the value of drawing from Jewish law to facilitate a more thoughtful analysis of issues in American law. Specifically, the essay first presents a brief discussion of the function of Jewish law within Jewish faith and tradition. The essay then considers the issue of self-incrimination in Jewish law and its potential relevance to difficult questions regarding the use of criminal confessions in the United States. The essay concludes with the cautious proposition that the American law of self-incrimination may benefit from incorporating some of the insights offered by Jewish legal thought.

A Brief Look at the Role of Law in Jewish Faith and Tradition It would seem difficult to overstate the importance of the Jewish law, or halacha, in Jewish faith and tradition, in particular for those who view the Torah as divinely authored and immutable. Describing halacha as “central” or “essential” does not capture the extent of the significance that traditional Jewish thought attaches to the letter and the sprit of the law. The biblical text and rabbinic exegesis dramatically depict the Revelation at Sinai and the giving of the law as the formative moment of the Nation of Israel and the basis of the Nation’s relationship with God. Moreover, study of the law is viewed as a powerful means of connecting with God, on both intellectual and spiritual levels. As the halacha is of divine origin, it serves as a primary source for understanding God’s will, God’s ways, and God’s wisdom. Indeed, God’s law provides a unique avenue for relating to the reality of God’s world.1 The Talmud states strikingly that, since the destruction of the Temple in Jerusalem, God’s “place” in the world is found in the halacha and its application.2 Thus, exploring the law in pursuit of the divine constitutes an inherently profound and spiritually transforming experience.3 In addition to the cognitive and spiritual significance of the law, as the Hebrew term implies, halacha offers a way of life, a path for all of life’s endeavors and activities.4 The substance of halacha extends far beyond the “rituals” of Jewish “religious” practices. In the words of Rabbi Joseph B. Soloveitchik, a leading twentieth-century scholar of Jewish law, “There is no phenomenon, entity, or object in this concrete world” beyond the

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grasp of halacha.5 For example, he notes, “just a few of the multitude of hala[c]hic subjects” include “sociological creations: the state, society, and the relationship of individuals within a communal context”; “laws of business, torts, neighbors, plaintiff and defendant, creditor and debtor, partners, agents, workers, artisans, bailees”; “[f]amily life”; “[w]ar, the high court, courts and penalties they impose”; and “psychological problems.”6 Thus, foundational and authoritative texts of Jewish law, from the Torah and the Talmud to commentaries, codifications, and responsa, contain prescriptions for ethical conduct and moral behavior in both public and private, in both worship and more worldly activities.7 Moreover, lending even further depth to halacha, the law has developed over the course of thousands of years in numerous and disparate societal and geographical settings, under benign and, all-too-often, belligerent and oppressive circumstances. Consequently, the law has continuously been confronted with a countless variety of previously unaddressed issues demanding consideration and normative resolution. Through a careful combination of fidelity to the past and, when necessary, innovation and creativity, legal authorities have accepted and responded to these challenges, applying settled and known legal principles to resolve the questions that accompany new and unanticipated circumstances.8 Acknowledging the range and depth of the Jewish legal system, American courts and scholars have turned to Jewish law for insights into numerous substantive and theoretical issues.9 American judicial opinions and law-review articles have relied on substantive parallels in the two legal systems in areas such as criminal law and procedure, family law, torts, property, evidence, ethics, commercial law, and health law. Somewhat more ambitiously, and perhaps even more effectively, some scholars have looked at the conceptual underpinnings of various aspects of Jewish law and Jewish legal theory to illuminate not only substantive issues in American law but also some of the more complex and theoretical issues prevalent in American legal scholarship. Of course, the two legal systems are premised on fundamentally different assumptions, one based self-consciously in religion and the other requiring a more generally accessible rationale for legal decisions. Thus, the two systems sometimes produce radically differing responses to similar legal questions. Nevertheless, the systems share significant conceptual similarities, allowing for careful and productive analytical comparison. To illustrate the possible application of halacha in the analysis of the American legal system, it may be instructive to examine a specific issue of

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significance in American law through the lens of Jewish law. The issue of self-incrimination has presented important challenges to American courts and scholars alike, while at the same time it represents an issue that the Jewish legal system has addressed since ancient times. In fact, it is not uncommon for both American courts and American legal scholars to refer to and rely on the treatment of self-incrimination in Jewish law. Therefore, a discussion of the issue of self-incrimination may serve as a particularly helpful model for a broader understanding of the role of law in Jewish faith and tradition as well as a consideration of conceptual comparisons between the Jewish legal system and the American legal system.

Self-Incrimination in Jewish Law: An Introductory Analysis The rule concerning self-incrimination in Jewish law may be summarized quite succinctly: an individual may not be punished on the basis of selfincriminatory statements.10 Although the precise nature of the rule has been the subject of detailed discussion and dispute from Talmudic times to the present, there is universal agreement among sources and authorities in Jewish law accepting a general rule precluding punitive confessions. Nevertheless, as Jewish law is understood to reflect God’s divine will and wisdom, it is not uncommon for legal authorities to consider the law on two different planes. On a practical level, for halacha to function, a systematic application of the law requires derivation and delineation of the substance of the law and its interpretation under various circumstances and conditions. Though neither superficial, simplistic, nor overly formalistic, this level of understanding often addresses primarily the mechanics of the law, without necessitating an investigation into the divine rationale for the law. As some have put it, this enterprise emphasizes the “what” rather than the “why.”11 In the area of ritual law in particular, legal interpretation and application, though often complex, generally depend on defining the law and its parameters rather than on attempts to ascertain the divine wisdom reflected in the ritual commandment.12 Likewise, legal authorities interpret and apply the substance of the rule against self-incrimination largely independent of any reasoning that may be offered as a logical basis for the rule. On a more theoretical level, however, philosophers of Jewish law often look beyond the mechanics of the law and attempt to glean the divine wisdom present in legal rules.13 Indeed, Maimonides, one of the most influ-

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ential medieval legal authorities and philosophers, dedicates a substantial portion of Moreh Hanevuchim, his philosophical magnum opus, to uncovering divine reasons for ostensibly arational biblical laws.14 Such an endeavor requires not only a healthy dose of ambition, sufficient to motivate pursuit of the divine rationale behind the law, but also an appropriate measure of humility, allowing for the acknowledgment that ultimately, God’s reasoning remains unknowable to humans. In the context of the rule against self-incrimination, attempts to identify a divine rationale have produced a variety of penetrating insights into the law. The Mishne Torah, Maimonides’s monumental codification of the entire corpus of Jewish law, presents a two-tiered analysis. Maimonides first introduces the rule against self-incrimination as a “Biblical decree.”15 In apparent reference to biblical verses, he writes that capital or corporal punishment may be implemented only on the basis of the testimony of two witnesses.16 Although divine decree is, by definition, binding and authoritative without need for further justification, Maimonides nevertheless suggests a rationale for the law. According to Maimonides, punishment is not meted out based on a confession because of a concern that perhaps the defendant confessed out of a “confused mind” in the matter. Maimonides describes a form of extreme depression that results in suicidal tendencies; he explains that an individual suffering from such a condition may falsely confess to a capital offense for the purpose of being executed.17 Finally, Maimonides concludes his discussion of the subject with a reminder that, regardless of any rationale identified and articulated by humans, the exclusion of self-incrimination remains a divine decree.18 Like much of his work, Maimonides’s discussion of self-incrimination has provided fertile ground for later commentators, perhaps most significant among them Rabbi David ben Zimra (Radbaz), who lived several centuries after Maimonides and authored an important commentary on the Mishne Torah. Like Maimonides, Radbaz states that the rule against self-incrimination is a divine decree and, therefore, its inherent wisdom may not be questioned. Nevertheless, again like Maimonides, Radbaz engages in an attempt to understand the divine logic underlying the rule.19 Expounding on, or perhaps adding to, the rationale that Maimonides proposes, Radbaz emphasizes the distinction between confessions that would potentially result in capital or corporal punishment, which are excluded from evidence, and admissions to monetary obligation, which are legally binding. In Jewish thought, Radbaz explains, human beings have legal authority over their physical possessions, including both the autonomy

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to give their possessions to others and, consequently, the authority to admit to and thereby obligate themselves in a monetary debt. In contrast, Jewish thought views both human life and the human body as sacred, to the extent that humans do not have legal autonomy to commit suicide or even to damage their own bodies. Therefore, because human life remains within God’s province, human beings may not offer a legally valid confession resulting in their lives being taken or in another form of corporal punishment.20 As divine law is deemed eternally and universally binding on all segments of the Jewish nation, regardless of time or place, it is not uncommon for legal philosophers to seek in the law philosophical or psychological lessons particularly suitable to the societal context in which they live. Thus, for example, Rabbi Norman Lamm, later president of Yeshiva University, authored an influential 1956 article providing a decidedly modern interpretation of the theories of Maimonides and Radbaz.21 Observing that Maimonides premised his analysis on psychological considerations of suicidal tendencies, Rabbi Lamm asserts that Maimonides “anticipated by some several hundred years, albeit in rudimentary fashion, a major achievement of psychoanalysis,” namely, Freud’s theory of “Death Wish” or “Death Instinct.”22 In Freud’s view, Rabbi Lamm explains, at a basic level the Death Wish “reveals itself generally as destructiveness, in its many varied forms, and, in extreme cases, in homicide.” However, “because of a variety of reasons, the Death Wish, originally felt toward others, is usually frustrated and as a result is redirected toward the self.” Finally, “[at] times, therefore, this Death Wish when it reaches its ultimate expression and is redirected towards the self, appears as suicide.”23 Moreover, Rabbi Lamm finds a further analogue to modern psychoanalytical theory in the exclusion of self-incrimination in Jewish law in cases involving forms of corporal punishment other than capital punishment. Turning to the work of Karl Menninger, Rabbi Lamm notes that because the Death Instinct is usually neutralized by the Life Instinct, the emerging tension produces not suicide but “a variety of forms of partial or chronic self-destruction,” including “self-injury and self-mutilation.”24 Thus, Rabbi Lamm concludes, “While certainly not all, or even most criminal confessions are directly attributable, in whole or in part, to the Death Instinct, the Hala[c]ha is sufficiently concerned with the minority of instances, where such is the case, to disqualify all criminal confessions and to discard confession as a legal argument.”25

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Application to the American Legal System In light of the foregoing, albeit introductory, examination of the nature of halacha in general and the rule in Jewish law regarding self-incrimination in particular, it may be instructive briefly to consider possible application to the American legal system. One perspective for analyzing this question might operate from within Jewish legal theory, accepting the inherent authority of Jewish law to prescribe rules for the proper administration of justice in contemporary American society. An attempt to resolve this question thus involves examination of Noachide law, a more universal legal system, which coexists with the laws governing the Jewish nation and applies, under Jewish thought, to the rest of humanity. Although the overwhelming majority of material composing the corpus of Jewish law addresses the legal obligations of the Jewish nation, the substance of Noachide law has occupied a prominent position in Jewish legal discussion from ancient times through the present.26 These discussions have resulted in a fairly extensive body of legal material detailing various rules and regulations governing a parallel legal system that differs in significant respects from the legal system applicable to the Jewish nation. Not surprisingly, however, as it remained largely academic throughout most of Jewish history, the legal literature dealing with Noachide law is not nearly as developed or as comprehensive as that relating to the law that has been actually practiced among the Jewish nation. In fact, in contrast to lengthy and wide-ranging considerations of the issue of selfincrimination within the Jewish legal system, the voluminous library of Jewish legal theory is largely bereft of discussions of the admissibility of confessions under Noachide law. The most prominent source to present a decisive position on this issue appears to be a medieval work, Sefer Ha-Chinuch, which declares that Noachide law does not preclude the use of confessions as a basis for criminal punishment.27 In the absence of a more authoritative statement, however, a number of scholars have attempted to draw inferences from other sources of Jewish law. At least one scholar has proposed, through a rather complex line of reasoning, alternative resolutions of the issue corresponding to the differing rationales offered by Maimonides and Radbaz for the ban on self-incrimination in proceedings operating under the Jewish legal system.28 Perhaps ironically, according to this logic, although the various explanations offered for the preclusion of confessions in Jewish law seem

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to have little, if any, effect on the mode of application of the rule in the Jewish legal system, they would have significant practical ramifications for determination of the Noachide laws of criminal procedure. A different mode of analysis for considering the application of the Jewish law of self-incrimination to the American legal system might address the issue from within the perspective of American law. Under such an approach, it would seem, the substance and reasoning of Jewish law are relevant only to extent that they are meaningful within the internal logic of American legal discourse. Consequently, this analysis would discount any suggestion that the American legal system should adopt directly the rule of self-incrimination found in the Jewish legal system, or any notion of the authority of the Jewish legal system to prescribe binding rules of evidence for the American legal system. Instead, a conceptual approach to the application of Jewish law might motivate the rethinking and possible modification of the American law of confessions based on reasoning, insights, and lessons that arise out of an analysis of the Jewish law regarding selfincrimination. Significantly, numerous courts and scholars alike have turned to Jewish law to help inform the American law of self-incrimination, without advocating that the American legal system incorporate an outright ban on criminal confessions.29 Writing for the Supreme Court in Miranda v. Arizona, the landmark case defining the contours of the constitutional privilege against self-incrimination, Chief Justice Warren quoted the view of Maimonides and referred to Rabbi Lamm’s article.30 Less than one year later, addressing the concern of coercion in the context of self-incrimination, Justice Douglas included in the Court’s majority opinion an extensive quotation from Rabbi Lamm’s article.31 Likewise, a number of other courts and scholars have found in the Jewish legal system an illuminating antecedent for English and American laws providing protections against self-incrimination.32 Although some have questioned the existence of any direct historical connection between Jewish law and American law in this area, such objections should not preclude careful yet valuable conceptual comparison. Indeed, application of the reasoning behind the categorical exclusion of criminal confessions in Jewish law does not imply mechanical imposition of a similar ban in American law. As many scholars have noted, an outright preclusion of self-incrimination would appear highly impractical in contemporary American society, as well as contrary to the internal logic and experience of the American legal system. Nevertheless, a thoughtful

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consideration of self-incrimination in Jewish law may lead to a rethinking of the treatment of confessions in American law, including a more subtle and nuanced definition and application of the basic concept of voluntariness. In light of the seemingly perennial problem of wrongfully obtained and even false confessions in the United States, it may be wise to incorporate some of the philosophical and psychological insights that scholars of Jewish law have offered into the nature of and possible motivations behind an admission of criminal conduct.33 Indeed, a leading contemporary study of false confessions in the American legal system delineates two substantial factors contributing to the phenomenon of “interrogation-induced false confession.”34 The study identifies the primary factor as a complex process of “psychological manipulation” and “psychological coercion.”35 Additionally, according to the study, “some individuals—particularly the mentally retarded and juveniles—are more vulnerable to the pressures of interrogation and therefore less likely to possess or to be able to muster the psychological resources of perspective necessary to withstand accusatorial police questioning.”36 Such discussions of the role of psychological confusion as a cause of false confessions, including special attention to individuals of particular psychological vulnerability, echo—and, thus, may offer a trenchant illustration of the potentially illuminating application of—the psychological insights Maimonides and others offered in their analysis of the ban on confessions in Jewish law.

Conclusion The issue of self-incrimination has confronted Anglo-American scholars and jurists for centuries, resulting in the adoption of the Fifth Amendment right against self-incrimination as a central tenet of American constitutional law.37 In the words that conclude a leading historical study of the subject, “Above all, the Fifth Amendment reflected [the framers’] judgment that in a free society, based on respect for the individual, the determination of guilt or innocence by just procedures, in which the accused made no unwilling contribution to his conviction, was more important than punishing the guilty.”38 If this right is to continue to be taken seriously, the American legal system should acknowledge and work to protect against the variety of ways in which a seemingly voluntary confession may in fact be less than willful,

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or even the product of coercion, however subtle. Consideration of the approach to self-incrimination in Jewish law may help facilitate such a reassessment of American law. As one scholar put it, “While there is no room in the contemporary system of proof for the absolute exclusion of confessions and guilty pleas, an increased sensitivity to their limitations as proof and the introduction of a requirement that the judge ascertain what other evidence exists to be weighed with the confession before entering the conviction would be a warranted lesson to learn from the Jewish Law.”39

notes 1. See Rabbi Aharon Lichtenstein, Leaves of Faith: The World of Jewish Learning (Jersey City, NJ: Ktav, 2003), 91; Rabbi Hershel Schachter, Eretz Hatzevi: Be’urei Sugyot (New York: Yeshiva University Press, 1992), 1–2; Rabbi Joseph B. Soloveitchik, Halakhic Man, trans. Lawrence Kaplan (Philadelphia: Jewish Publication Society of America, 1983), 19–29 (originally published in Hebrew as Ish ha-halakhah, in 1 Talpiot 3–4 [1944]). 2. See Talmud Bavli, Berachoth 8a. See also Rabbi Yitzchak Hutner, Pachad Yitzchak: Chanuka (Brookline, MA: Israel Book Shop, 1998), 63–75. 3. See Lichtenstein, Leaves of Faith at 91. Cf. Rabbi Chaim of Volozhin, Nefesh Hachaim, Section 4; Soloveitchik, Halakhic Man at 87–89. 4. See Samuel J. Levine, “Halacha and Aggada: Translating Robert Cover’s Nomos and Narrative,” 1998 Utah L. Rev. 465, 484 (1998). 5. Soloveitchik, Halakhic Man at 30. 6. Ibid. at 22. 7. See generally Samuel J. Levine, “Reflections on the Practice of Law as a Religious Calling, from a Perspective of Jewish Law and Ethics,” 32 Pepp. L. Rev. 411 (2005). 8. See Michael Broyde and Howard Jachter, “Electrically Produced Fire or Light in Positive Commandments,” 25 J. Halacha and Contemp. Soc’y 89 (1993); Michael Broyde and Howard Jachter, “The Use of Electricity on Shabbat and Yom Tov,” 21 J. Halacha and Contemp. Soc’y 4 (1991); Rabbi Hershel Schachter, B’Ikvei Hatzoan (1997), 1–3; Adin Steinsaltz, The Essential Talmud, trans. Chaya Galai (New York: Basic Books, 1976), 234–38. 9. See sources cited in Samuel J. Levine, “Teaching Jewish Law in American Law Schools—Part II: An Annotated Syllabus,” 2 Chicago-Kent J. Int’l and Comp. L. 1 (2002); Samuel J. Levine, “Teaching Jewish Law in American Law Schools: An Emerging Development in Law and Religion,” 26 Fordham Urb. L.J. 1041 (1999); Suzanne Last Stone, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harv. L. Rev. 813 (1993).

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10. See, e.g., Talmud Bavli, Sanhedrin 9b; Maimonides, Mishne Torah, Laws of Sanhedrin 18:6. See also Maimonides, Mishne Torah, Laws of Eduth 12:2. 11. See Lichtenstein, Leaves of Faith at 194. 12. See Samuel J. Levine, “Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts,” 24 Hastings Const. L.Q. 441, 458–61 (1997); Schachter, Eretz Hatzevi: Be’urei Sugyot at 135. 13. See Abraham R. Besdin, Reflections of the Rav, Volume Two: Man of Faith in the Modern World (Jersey City, NJ: Ktav, 1989), 91 – 99; Yitzchak Heinemann, Ta’amei Ha-Mitzvot Besafrut Yisrael (1954); Samuel J. Levine, “Ours to Reason Why: The Quest for Ta’amei HaMitzvot,” Hamevaser (May 1990): 7; Joseph B. Soloveitchik, The Halakhic Mind: An Essay on Jewish Tradition and Modern Thought (New York: Free Press, 1986), 91–99. 14. See Maimonides, Moreh Hanevuchim (Guide for the Perplexed), Section 3. 15. See Maimonides, Laws of Sanhedrin. 16. See ibid. See also Numbers 35:30; Deuteronomy 17:6; Deuteronomy 19:15. 17. A number of scholars of Jewish law have offered alternative psychological explanations for the ban on self-incrimination, identifying ulterior motives that may induce a false confession. See Aaron Kirschenbaum, Self-Incrimination in Jewish Law (New York: Burning Bush Press, 1970), 64–65. 18. See Maimonides, Laws of Sanhedrin. 19. See Radbaz, Commentary to Maimonides, Laws of Sanhedrin. 20. Ibid. (quoting Ezekiel 18:4). Other scholars have offered alternative explanations for the different rules regarding criminal confessions and monetary admissions. See Haim H. Cohn, “Privilege against Self-Incrimination: Israel,” 51 J. Crim. L., Criminology, & Police Sci. 175, 178 (1960) (quoting Mordechai Epstein, Levush Mordechai). 21. Norman Lamm, “The Fifth Amendment and Its Equivalent in the Halakha,” 5 Judaism (1956): 56. 22. Ibid. (citing Sigmund Freud, “New Introductory Lectures on Psychoanalysis” 147; Sigmund Freud, “Beyond the Pleasure Principle”; Sigmund Freud, “Mourning and Melancholia,” in IV Collected Papers 156 [London: Hogarth Press, 1925]). 23. Ibid. 24. Ibid. at 57 (citing Karl Menninger, Man against Himself 82 [1938]). 25. Ibid. at 59. 26. See, e.g., Talmud Bavli, Sanhedrin 56a–59b; Maimonides, Mishne Torah, Laws of Kings, ch. 9–10; Rabbi Tzvi Hirsch Chajes, Kol Sifrei Maharitz Chayos (Collected Works) 58–63; Rabbi Yitzchak Hutner, Pachad Yitzchak, Shavuoth 31–34 (1999). 27. See Sefer Ha-Chinuch 81, 273 (ed. Chaim Dov Chavel, Jerusalem: Mossad Havav Kook, 1986). For an analysis of this position, see Kirschenbaum, SelfIncrimination at 97–98.

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28. See Yechiel Ya’akov Weinberg, 2 Responsa Seridei Esh 252, cited in J. David Bleich, 2 Contemporary Halakhic Problems (New York: Ktav, 1983): 348n. 6. 29. See, e.g., Garrity v. State of New Jersey, 385 U.S. 493, 497n. 5 (1967); Miranda v. Arizona, 384 U.S. 436, 459n.27 (1966). 30. See Miranda, 384 U.S. at 459n. 27 (1966) (quoting Maimonides, Laws of Sanhedrin; Lamm, “The Fifth Amendment”). Chief Justice Warren observed that the “roots [of the privilege against self-incrimination] go back into ancient times,” ibid. at 459, and, quoting Maimonides, stated that “[t]hirteenth century commentators found an analogue to the privilege grounded in the Bible.” Ibid. at 459n. 27. 31. See Garrity, 385 U.S. at 497n. 5 (1967) (quoting Lamm, “The Fifth Amendment”). 32. See, e.g., Leonard W. Levy, Origins of the Fifth Amendment: The Right against Self-Incrimination (New York: Oxford University Press, 1968), 433–41; Arthur J. Goldberg, introduction to Kirschenbaum, Self-Incrimination at viii–ix. 33. See Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post-DNA World,” 82 N.C. L. Rev. 891 (2004). 34. Ibid. at 919. 35. Ibid. at 914. 36. Ibid. at 919. 37. See Levy, Origins of the Fifth Amendment at 405–32. 38. See ibid. at 432. 39. See Arnold Enker, “Self-Incrimination in Jewish Law: A Review Essay,” 4 Dine Israel (1973): cxxiv (reviewing Kirschenbaum, Self-Incrimination).

Chapter 13

Reform Jews

On the other end of the Jewish law spectrum from Orthodox Jews are Reform Jews. Reform Judaism developed in the mid-nineteenth century. It sees Torah as one of many sources of insight. In her contribution to this collection, Ellen P. Aprill addresses the Reform Jewish struggle with how to deal with homosexuality. Though homosexual conduct is subject to the harshest of penalties under the Torah, the evolving approach of many Reform Jewish congregations is to accept such conduct on an equal level with heterosexual conduct and to encourage its acceptance in American law.

Reform Judaism, B’tzelem Ehlohim, and Gay Rights Ellen P. Aprill Reform Judaism, the North American branch of progressive Judaism, has the largest membership of any American Jewish denomination.1 Its synagogue arm, the Union for Reform Judaism (“Union”),2 consists of over nine hundred congregations encompassing 1.5 million members; its rabbinic arm, the Central Conference of American Rabbis (CCAR), has a membership of over eighteen hundred rabbis; its college arm, Hebrew Union College–Jewish Institute of Religion (HUC-JIR), has campuses in Cincinnati, New York, Los Angeles, and Jerusalem.3 The official positions of the Reform movement, whether on civil or on religious matters, tend to be liberal. The movement frequently takes stands on social and legal issues. Congregations and their members, however, are free to accept or reject these positions. To demonstrate these points, I will 223

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give a brief survey of Reform Judaism and then focus on the position of Reform Judaism vis-à-vis gay rights, with particular emphasis on its position regarding the discriminatory policy of the Boy Scouts of America. The essay will then turn to a personal account of the impact of that position on my own congregation, Temple Israel of Hollywood.

Overview of Reform Jewish Beliefs Reform Judaism shares with the other branches of Judaism a belief that the Five Books of Moses, which Jews call the Torah, is the foundation of Jewish life. Reform Jews, like Jews of other denominations, consider the Torah a compelling guide that enables Jews to confront the timeless and immediate challenges of life. It contains God’s revelation to the Jewish people and the record of the Jewish people’s relationship with God. Reform Jews, however, understand the words of the Torah not as words dictated by God but as words inspired by God and subject to new understanding, application, and interpretation over time. Reform Jews view the Jewish tradition through the lens of human thought, emotion, psychology, and experience. It is said that Reform Judaism is a movement that is informed by tradition but not directed by it. That is, Reform Judaism seeks both continuation of and innovation in Jewish tradition. To achieve these goals, Reform Jews engage in a constant conversation with the tradition; sometimes this conversation takes the form of a heated argument and sometimes a gentle tête-à-tête. For centuries, Jewish practice has involved close study of key texts, particularly the Torah and the Talmud, the latter a multivolume compilation of Torah commentary, law, legend, ethics, and philosophy codified by Babylonian sages in about 500 CE (Common Era). As with Jewish tradition in general, Reform Jews have a complicated relationship with Talmudic and other sources of halachah, the term for Jewish law. Reform Jews do not view halachah as binding. On any particular issue, Reform Jewish practice begins by studying the classic texts, including the Torah, the Talmud, and commentaries of generations of rabbis and scholars. In undertaking this examination, Reform Jews emphasize not the literal meaning of the text but its purpose and intent. That is, Reform Jews are not strict constructionists of the Torah or other traditional texts but engage in an ongoing exegesis of the text. The process, moreover, continues by weighing tradi-

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tional perspectives in light of contemporary knowledge, research, and understanding and then making a decision about what is meaningful to the individual and the community. Reform Jews do not insist on or expect agreement, instead they acknowledge and accept the diversity of Reform Jewish belief and practice. Reform Jews seek to achieve tikkun olam—repair of the world—by emphasizing the message of the prophets and striving to bring peace, freedom, and justice to all people.4 Reform Jews consider themselves God’s partners in improving the world and in an unfolding expression of divine truths. Reform Judaism emphasizes the biblical principle articulated in Genesis 1:27 that every human being is created in the image of God (b’tzelem Ehlohim): “And God created man in His image, in the image of God He created him; male and female, He created them.”5 Reform Jews seek to affirm this principle in all relationships and actions. The belief in this principle leads Reform Judaism to unequivocal support for equal treatment of gays and lesbians in both religious and civic life. As Rabbi David Saperstein, director of the Religious Action Center (RAC), which is Reform Judaism’s Washington, D.C., policy office, has testified to Congress, “Regardless of context, discrimination against any person arising from apathy, insensitivity, fear or hatred is inconsistent with this fundamental belief. We oppose discrimination against all individuals, including gays, lesbians, and bisexuals, for the stamp of the divine is present in each and every one of us.”6 So crucial is this commitment that the one-page summary answering the question “What is Reform Judaism?” on the webpage of Reform Judaism lists it as one of the principles that distinguish Reform Jews from other streams of Judaism in North America: “Reform Jews are also committed to the full participation of gays and lesbians in synagogue life as well as society at large.”7

Reform Jewish Reading of Textual Sources Reform Jews, of course, must confront the Torah’s explicit condemnation of male homosexual activity. Leviticus 18:22 instructs, “Do not lie with a male as one lies with a woman. It is an abhorrence.” Leviticus 20:13 warns, “If a man lies with a male as one lies with a woman, the two of them have done an abhorrent thing: they shall be put to death—their bloodguilt is upon them.” Reform Jews do not read these passages literally for a number of reasons.

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One approach emphasizes the context of the passage and the particular use of the word “abomination” in the Torah. It explains that the Torah uses the word “abhorrence” or “abomination” for ritual rather than ethical prohibitions. That is, homosexuality is one in a list of forbidden sexual acts, including incest, adultery, and sex with animals, that were associated with Canaanite idol worship, acts that the Israelites had to abjure in order to become a separate people holy to God. Reform Jews follow these prohibitions today to the extent that the prohibitions reflect the moral values of respect and responsibility toward others, not because they represent practices associated with idolatry. Thus, the argument continues, the prohibition should be understood within its ancient social and religious context and should not apply to respectful and responsible same-sex relationships we see today. Moreover, “abominations” in the Torah refer not to immoral actions but to actions that are Jewishly inappropriate because they violate the boundaries of holiness as defined in the Torah. According to the Torah, eating the meat of forbidden animals (Deuteronomy 14:3–8), marrying one’s exwife (Deuteronomy 24:4), and a woman wearing men’s clothes (Deuteronomy 22:5) are abhorrent in the same way as homosexuality. Reform Judaism does not require adherence to the biblical categories of what is Jewishly appropriate; Reform Jews decide for themselves which of those and other traditional Jewish practices enrich their Judaism. For Reform Jews, it is the moral and ethical message of the Torah that leads to holiness. Another and perhaps dominant Reform approach to this biblical language views the traditional prohibitions as obsolete, the product of a different time and a different place, to be rejected outright and replaced now with a greater understanding of the scientific and psychological realities of gender orientation. As a model, Reform Jewish scholars point to the development in Jewish thought regarding the heresh, or deaf-mute. In the Talmud, deaf-mutes, like minors, are deemed mentally incompetent and not responsible for their conduct. They cannot serve as witnesses, dispose of property, or enter marriage. The basis for this categorization is the belief that anyone who can neither hear nor speak lacks understanding and the ability to communicate. In the past century, however, science has developed new techniques and gained new knowledge regarding ways to teach language to those with such handicaps. As a result of such advances, the Reform movement views those without hearing and speech as equal; even some authorities within more traditional Jewish communities have recognized that such individuals should no longer be deemed to be mentally

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deficient. New understanding has produced new conclusions. Reform Judaism urges such an approach to homosexuality. Reform Jews reject the categorization in Leviticus of homosexuality as abhorrent just as today Jews reject the directions in Deuteronomy to stone a rebellious son or a young bride who is discovered not to be a virgin. Reform Jews emphasize other aspects of Leviticus, such as the direction of Leviticus 19:18 to love your neighbor as yourself or of Leviticus 19:34, that “the stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.” Reform Judaism teaches us to remember that too often gays and lesbians are treated as strangers.

Gays and Lesbians within Reform Judaism Despite objections in some quarters, particularly during the early 1970s, the Reform Jewish community today welcomes gay and lesbian Jews into all aspects of congregational life. The first Jewish congregation established with a special outreach for lesbians and gays as well as their families was a Los Angeles Reform congregation, Beth Chayim Chadashim (House of New Life). Founded in 1972 and accepted into the Union in 1974, it is now over thirty years old. Reform Judaism encourages inclusion of gay and lesbian Jews in its mainstream congregations as well. In 1987, the Union passed a resolution welcoming gay and lesbian Jews into its congregations, urging their participation in all aspects of congregational and communal life and calling for congregations to employ people without regard to sexual orientation. In 1989, the Union reaffirmed its 1987 resolution and resolved to embark on a program to achieve fuller acceptance of gay and lesbian Jews. In his keynote address to the convention that went on to adopt the 1989 resolution, then-president of the Union Rabbi Alex Schindler, of blessed memory, exhorted the delegates: “We who were beaten in the streets of Berlin cannot turn away from the plague of gay-bashing. We who were marranos in Madrid, who clung to the closet of assimilation and conversion in order to live without molestation, we cannot deny the demand for gay and lesbian visibility!”8 In 1995, the Union passed a resolution promoting equal employment and leadership opportunities for lesbians and gays in the Reform movement, whether as rabbis, cantors, educators, executives, administrators,

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staff, or lay leaders. A year later, to implement this and earlier resolutions and to help those congregations struggling with the discomfort of some of their members regarding this policy of inclusion, it published a handbook prepared by its Task Force on Lesbian and Gay Inclusion called Kulanu (All of Us): A Program for Congregations Implementing Inclusion. This manual includes a selection of texts and offers practical suggestions for programing, curriculum content, and Jewish source materials, complete with sample sermons, outreach brochures, and recommended employment practices. Openness toward gay and lesbian Jews extends to clergy as well. In 1990, the CCAR declared that “all Jews are religiously equal regardless of sexual orientation” and urged that “all rabbis, regardless of sexual orientation [should] be accorded the opportunity to fulfill the vocation which they have chosen.” Reporting on this CCAR convention, the New York Times described this action as placing “Reform Judaism among the handful of denominations that accept gay members in their clergy as a matter of national policy.”9 A report from the CCAR Committee on Human Sexuality in 1998 discussed a variety of Reform Jewish sexual values, including family, joy, and covenantal relationship, and concluded that kiddushah, holiness, “may be present in committed, same-gender relationships between two Jews, and that these relationships can serve as the foundation of stable Jewish families, thus adding strength to the Jewish community.” Note that kiddushah is not the same holiness as kiddushin, the holiness of marriage, although both words come from the same root, a root that in its various forms means “to set apart,” “to make separate,” or “to make holy,” as God is holy. Kiddushin, marriage, is a legal relationship within Judaism. In the life-cycle ritual of kiddushin, the couple separates itself from all others to become a distinct family unit in the eyes of the community and God. In 1996, the CCAR Committee on Responsa addressed the question of whether homosexual relationships can qualify as kiddushin.10 By a committee majority of seven to two, the Responsa Committee concluded, in an unusually lengthy responsum presenting both sides in detail, that “homosexual relationships, however exclusive and committed they may be, do not fit within this legal category; they cannot be called kiddushin.” The Responsa Committee acknowledged that discussion of the issue “brought from among us a number of profound disagreements.” The CCAR’s Responsa Committee and its Committee on Human Sexu-

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ality are different groups with different memberships and different purposes. They are separate committees of the CCAR that came to different conclusions about same-sex relationships. These two committees demonstrate the spectrum of opinion and diversity of belief held by CCAR members. In March 2000, the CCAR became the first major group of North American clergy to give official support to those of its members who choose to perform same-gender ceremonies. It did so by following the process described earlier—examination, in this case for more than a decade, of the issue in not only the traditional literature but also texts from such modern disciplines as psychology and sociology. The CCAR resolution, which passed in a voice vote by a large majority, declared “that the relationship of a Jewish, same-gender couple is worthy of affirmation through appropriate Jewish ritual.” The CCAR accepted a lack of unanimity on the issue. The resolution did not compel any rabbi to officiate at a same-gender union. It left the choice to the individual rabbi. As the resolution explains, Reform rabbis “recognize the diversity of opinions within our ranks on this issue. We support the decision of those who choose to officiate at rituals of union for same-gender couples, and we support the decision of those who do not.” Furthermore, the resolution did not specify the nature of the appropriate ceremony, leaving it up to individual rabbis whether to constitute the ritual as a marriage ceremony, kiddushin, or as a commitment ceremony short of a wedding, kiddushah. Rabbi Eric Yoffie, president of the Union, issued a statement to the Reform Jewish congregations following adoption of this resolution. In it, he proclaimed that “if there is anything at all that Reform Jews do, it is to create an inclusive spiritual home for those who seek the solace of our sanctuaries. And if this Movement does not extend support to all who have been victims of discrimination, including gays and lesbians, then we have no right to call ourselves Reform Jews.” As we begin the twenty-first century, of the over nine hundred Reform congregations that are currently members of the Union, some dozen or so consider themselves to be synagogues with a special emphasis on concerns of gays, lesbians, bisexual, and transgendered people. Openly gay and lesbian Jews have become an integral part of many—and perhaps most— Reform congregations. They serve as rabbis and cantors; partners of the same sex stand proudly before the congregation as rabbis officiate over their commitment ceremonies or celebrate anniversaries, as their babies

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are named or their thirteen-year-olds become b’nai mitvah, sons or daughters of the commandments. Gays and lesbians serve as officers of their congregations, of the Union’s regions, and of the Union itself.

Reform Judaism and Civil Rights for Gays and Lesbians The Reform Jewish movement has long supported civil rights for gays and lesbians. In 1977, the CCAR and the Union each adopted resolutions encouraging legislation decriminalizing homosexual acts between consenting adults and prohibiting discrimination against them as persons. In 1993, Rabbi Schindler as president of the Union called on Reform Jews to support the right of gay and lesbian couples to adopt children, to file joint income-tax returns, and to share in the health and other benefits provided to heterosexual couples by government and private employers, and the Union adopted a resolution stating that full equality under the law for lesbian and gay people required legal recognition of such relationships. In 1996, the CCAR adopted a resolution supporting the rights of gay and lesbian couples to share equally and fully in the benefits of civil marriage and opposing governmental efforts to ban gay and lesbian marriage. In 1997, the Union passed a resolution supporting secular efforts to promote legislation to provide civil marriage for gay men and lesbians. The RAC speaks out consistently on national issues regarding gay and lesbian rights. For example, it opposed the Federal Marriage Amendment and applauded the ruling of the Massachusetts Supreme Judicial Court that the ban on gay marriage violated the state constitution. Its director, Rabbi Saperstein, testified before Congress against the Defense of Marriage Act, which provides that for the purpose of federal statutes and regulations marriage means only a legal union between one man and one woman as husband and wife. The RAC has supported and continues to support the Federal Employment Non-Discrimination Act, which would extend the federal protections already provided against employment discrimination based on race, religion, gender, national origin, and disability to gays and lesbians in the thirty-nine states that permit workplace discrimination based on sexual orientation. Consistent with its condemnation of discrimination on the basis of sexual orientation, the Reform movement opposed the Boy Scouts’ policy of discrimination against gays as members or leaders. In Boy Scouts of America v. Dale (2000), the Boy Scouts of America (BSA) argued before

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the Supreme Court that because BSA members associate in order to promote the view that homosexuality is immoral, its First Amendment right of expressive association protected its discriminatory policy.11 The RAC joined several Christian groups in an amicus brief endorsing applicable case law, which, it argued, established that “an organization may exclude an individual in defiance of an anti-discrimination law only when that individual’s presence as a member will interfere with the current members’ ability to promote those views that brought them together.”12 The amici curiae explained that they represented a large number of sponsors and members actually in the Boy Scouts, all of whom believe that discrimination against gay people is immoral. Thus, the brief contended, the members of Scouting did not share or come together to express the view that homosexuality is immoral, and the application of antidiscrimination laws to the Boy Scouts did not violate the group’s First Amendment rights of expressive association. When the Supreme Court accepted the Boy Scouts’ position, the RAC issued a press release that declared, “The BSA does its members and its famous ‘Be Prepared’ motto a disservice by discriminating: excluding individuals solely on the basis of sexual orientation sets an example that does nothing to prepare Scouts for our diverse world.” The Joint Commission on Social Action of the Union and the CCAR followed with a memorandum to congregations available in draft form in December 2000 and finalized in January 2001. This memorandum received considerable press coverage, with discussion in the New York Times, Los Angeles Times, and Chicago Sun-Times, among many others. Rabbi Saperstein, the long-time director of the RAC, has commented that the BSA memorandum inspired more intense reaction than any other position of the Commission on Social Action in twenty-five years. The memorandum expressed a hope that the BSA would abandon its discriminatory policies but saw little basis for optimism. As a result, the memorandum recommended that congregations sponsoring or housing a Boy Scout troop or Cub Scout pack cease to do so and that Reform Jews withdraw their children from other BSA troops or packs. It urged those congregations not following the recommendation to take other steps, including (1) publicly amending the local charter, (2) withdrawing financial support of the BSA, (3) creating programs to combat the message being sent by the BSA, and (4) encouraging participation in other groups instead of the BSA. The memorandum recognized that each congregation had to make its own decisions.

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As described in the next section, my own congregation, Temple Israel of Hollywood (TIOH), did make its own decision while I was its president. The discriminatory policy of the BSA forced me personally, the TIOH board, and the members of the congregation to make an agonizing decision regarding our commitment to gay and lesbian rights. How we at TIOH resolved this issue offers a case study of how Reform Judaism operates at the congregational level.

Boy Scouts of America and Temple Israel of Hollywood TIOH is an urban congregation of approximately nine hundred households. We at TIOH pride ourselves on our diversity. The congregation includes young and old, single and married, straight and gay, from all over the world and America, and of Reform, Conservative, and Orthodox backgrounds. It comprises born Jews, Jews by choice, and individuals married to Jews. At various times since its founding, TIOH has been involved in Scouting. Beginning in 1995, the activities of TIOH included sponsorship of Cub Scout Pack 1300, with about sixteen children, approximately half temple members and half not. The pack’s programs included participation in the AIDS Walk LA and other activities devoted to social justice and tikkun olam. In January 2001, after I had consulted with Rabbi Saperstein of the RAC, after the Commission on Social Action prepared its memorandum regarding the Boy Scouts, and after several congregants asked our senior rabbi, John Rosove, about our relationship with the BSA, the board of TIOH began an exhaustive examination of its policy toward Cub Scout Pack 1300 and the BSA. After the rabbi and I raised the issue with leaders of the pack, the Cub Master of Pack 1300 wrote a letter to me as president expressing the pack’s disagreement with the national BSA’s policy of exclusion on the basis of sexual orientation, including an undertaking that “no openly gay person will be discriminated against by Pack 1300 if that person wishes to become an adult leader” in the pack. The pack sent a copy of the letter to the national BSA. The board set the issue for preliminary discussion at its January board meeting. Representatives of the pack and one of our openly gay congregants, himself a former Scout, spoke at the meeting. The congregant emphasized the position of the BSA’s top executive that the BSA would not

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revisit its policy of discrimination against gays unless its membership decreased. Board members sought ways to disavow the discriminatory policy of the BSA with the least possible disruption to the children. They asked what was in the best interest of all our children, both those who were in the pack and those who were not. Options considered included the pack becoming an unaffiliated group or the pack affiliating with another organization that did not discriminate, such as Campfire Boys and Girls. Pack leaders present at the meeting expressed their strong desire to remain affiliated with the BSA despite their disagreement with its policy. The pack leaders argued that it was better to work for change from within the BSA. At this January meeting, many board members expressed skepticism about continued affiliation with the BSA and the ability to work to change its policy. Several members expressed concern for our many gay congregants, for the many congregants with friends, family, and loved ones who are gay, and for the many of our congregation’s children who, according to statistics, will be gay or lesbian. Following this board meeting, the rabbi and I as president wrote the congregation, explaining the dilemma in some detail and asking for feedback. In response, thirty-eight individuals urged us not to sponsor the Cub Scouts, and five took the opposite view. Still hoping for a way to continue our support of the pack and all its good work without supporting the BSA’s discriminatory policy, the rabbi, two past presidents of the congregation, and I met with six pack leaders to try to craft a compromise. After a lengthy and at times emotional discussion, we agreed on the following package to present to the board at its next meeting: (1) an explicit nondiscrimination clause in the charter, the document that the congregation was required to sign as sponsor and that the BSA had to accept in order for the pack to operate, (2) the pack’s adoption of a rainbow badge to represent diversity, and (3) working to find an educational program regarding nondiscrimination for the pack to present to TIOH’s school-age population. The rabbi and I emphasized at that meeting that a charter amendment was crucial to our support of the package. We had learned that every pack annually must submit and have accepted by its regional BSA organization a charter signed by its sponsoring organization. The standard charter supplied by the BSA requires the sponsoring organization to agree to conduct the program according to the policies and guidelines of the Boy Scouts of America and to permit a Scout executive to approve all leadership applications. Rabbi Rosove and I believed that the board would not be willing for

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TIOH to sign a charter document as a sponsoring organization unless the document explicitly stated that the pack would adhere to TIOH’s policy of nondiscrimination on the basis of sexual orientation. The compromise package developed at the meeting acknowledged that the proposed charter amendment could result in the pack’s charter being revoked. If so, TIOH would recognize and honor the boys for their efforts. Shortly before the February board meeting at which this package was to be presented, the pack leaders learned from their regional Boy Scout officials that charters with any kind of amendment were no longer being accepted by their region. The pack parents met and voted not to amend the charter to include a nondiscrimination clause. The TIOH board met the next night. It had hoped and expected to vote on the compromise package, a package that would include an amended charter. With no charter amendment forthcoming, all twenty-seven members of the TIOH board who were present at the meeting voted to resolve that “Temple Israel of Hollywood, in order that it, as a community of adults and children, can live by and speak up for its religious and moral beliefs regarding nondiscrimination, with sadness, will not continue to sponsor Cub Scout Pack 1300 effective March 1, 2001, the date its charter renewal application is due.” The board explicitly based this resolution on the principle of b’tzelem Ehlohim, that every human being is created in the image of God. A few members of the Cub Scout Pack, who disagreed strongly with the board’s decision, then collected enough signatures from members to petition for a special meeting of the congregation on the issue. Over five hundred people attended that special meeting, which was held in June 2001. The rabbi opened by outlining the options and reminding all of the principles of derech eretz, human decency and mutual respect. In my speech on behalf of the board, I described the question before the congregation as the important and enduring one of how a community responds when it is asked to be complicit in a policy of discrimination and emphasized what our signing the standard BSA charter document would mean. The representative of the pack spoke of all the good the pack had accomplished, how it was not willing to amend the charter despite its disagreement with the national BSA policy because such an action would result in its charter being revoked, and argued that it would be better to work against the BSA policy from within. Dozens of the members of the congregation lined up to speak. Those speaking in favor of continuing our relationship with the BSA emphasized

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the wonderful activities of Pack 1300 and how it would hurt the children who were members of the pack if TIOH did not renew its charter; one young Cub Scout described his love of scouting and what participation in the pack had meant to him. Only one speaker endorsed the BSA’s discriminatory policy. The vast majority of those prepared to speak, however, lined up at the microphone designated for those supporting the board’s decision. They spoke passionately. The first speaker explained that he had founded the first Cub Scout pack at TIOH almost fifty years ago, that all his sons had been Scouts, and that he loved the Scouts. But, he continued, under the current national leadership the Scouts had no place in our community. Others spoke about how being Jewish requires sacrifice in support of our principles, about how their family members had experienced discrimination for being handicapped or gay, about sending their children to our congregation’s schools precisely to learn about our tradition’s dedication to social justice for all. Close to 95 percent of those voting by secret ballot endorsed the board’s position. Two or three families left the congregation after the vote. I and many other members of the congregation remember the meeting with great pride as a night on which we lived up to the highest ideals of Reform Judaism, both in the process and the substance of the evening. We were able to address a difficult and emotional issue with respect, care, and thoughtfulness. We affirmed the essential and core value of Reform Judaism, that we are all created in God’s image, b’tzelem Ehlohim, that this principle requires us to support gay and lesbian Jews, and that it carries responsibilities requiring action in religious as well as secular spheres. We left the meeting with a sense that the debate had strengthened the TIOH community.

Conclusion The experience of Temple Israel of Hollywood reveals the dynamics of Reform Judaism. As the Reform position on gay rights demonstrates, Reform congregations share core values regarding social justice and inclusiveness. These values influence Reform Jews in both their civic and religious lives. Although Reform Jews and Reform congregations do not always agree on how best to apply and carry out these values, the values of Reform Judaism also call on its members to discuss differences with one another. While

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each congregation and each Reform Jew retains autonomy to decide exactly how these values translate into action, Reform Jews acknowledge their responsibility to act.

notes The Hebrew Union College-Jewish Institute of Religion kindly made available to the author the Jeff Herman Virtual Resources Center. She dedicates this essay in loving memory of her father, Gilbert Aprill, who died during the controversy at Temple Israel of Hollywood regarding its sponsorship of a Cub Scout Pack, which is described in this essay. 1. According to the National Jewish Population Study 2000–2001, 46 percent of America’s 5.2 million Jews belong to a synagogue. Of those 46 percent, 39 percent belong to a Reform synagogue, 33 percent to a Conservative one, 21 percent to an Orthodox one, and 7 percent to other branches. 2. From its founding in the 1870s until the end of 2003, the umbrella organization for Reform Jewish congregations in North America was known as the Union of American Hebrew Congregations. By an overwhelming vote of the delegates to its biennial convention in November 2003, the name was changed to the Union for Reform Judaism: Serving Reform Congregations in North America. This essay will use “Union” to refer to the synagogue arm of the Reform movement. 3. Each of these three arms of Reform Judaism has its own areas of responsibility. In some cases, areas of responsibility overlap, and the various arms frequently work together. Belonging to the Union defines a congregation as Reform; congregations vary in size and organization. The largest congregations may have several rabbis on staff; the smallest congregations may have only part-time rabbis, employ rabbis on a contract basis, or rely on part-time student rabbis. The CCAR includes in its membership the body of rabbis who consider themselves and are considered to be the organized rabbinate of Reform Judaism, whether the rabbis serve as congregational rabbis or in other capacities. HUC-JIR trains rabbis, cantors, and Jewish communal and educational professionals. 4. The phrase “tikkun olam” has mystic connotations through its association with Isaac Luria (1534–1572), who revolutionized the study of Jewish mysticism, which is known as Kabbalah. According to Luria, shortly after God created light, the vessels of the universe were unable to contain this light and shattered, scattering the light throughout the physical world. Luria taught that performance of the mitzvot, the commandments of God to the Jewish people, would bring about tikkun olam, repair of the shattered world. The Reform movement adopted and adapted the phrase “tikkun olam” to refer to repairing the world through acts of social justice. 5. All translations of the Torah are taken from The Torah: A Modern Commen-

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tary, ed. W. Gunther Plaut (New York: Union of American Hebrew Congregations, 1981). 6. Statement of Rabbi David Saperstein on the Introduction of the Employment Non-Discrimination Act, July 31, 2001, available online at http://rac.org/ Articles/index.cfm?id=754&pge_prg_id=7037. Documents of the arms of Reform Judaism quoted or discussed in this chapter can be found through the search engines at the RAC webpage, http://www.rac.org; the Union’s webpage, http://www .urj.org; or the CCAR’s webpage, http://ccarnet.org/. 7. See http://rj.org/whatisrj.shtml. However, the Conservative movement recently liberalized its position on gays and lesbians. In December 2006, the Rabbinical Assembly of Conservative Judaism voted to allow its congregations to celebrate same-sex commitment ceremonies and its seminaries to ordain gay and lesbian rabbis so long as the gay men obey the biblical text and do not practice sodomy. Laurie Goodstein, “Conservative Jews Allow Gay Rabbis and Unions,” New York Times, December 7, 2006, A26. 8. Marranos were Jews forced to profess Christianity during the Spanish Inquisition in order to escape death or persecution. Many Marranos observed Judaism secretly. 9. Ari L. Goldman, “Reform Judaism Votes to Accept Active Homosexuals in Rabbinate,” New York Times, June 26, 1990, A1. The article also commented that “approval came in a voice vote after an emotional hour long debate that revealed deep divisions among the rabbis.” Ibid. 10. Responsa, which have a long and distinguished place in Jewish life, are legal opinions by rabbinic authorities regarding modern applications of Jewish law written in response to specific inquiries. In the Reform movement, responsa are written by the standing Responsa Committee of the CCAR when a question is submitted to the committee, but they serve no binding function; they are purely advisory. As the CCAR webpage explains, they “provide guidance, not governance. . . . Individual rabbis and communities retain responsibility . . . to make their own determinations as to the stance they will take on individual issues.” That is, responsa affect behavior to the extent that they persuade. Reform rabbis are free to express their disagreement with CCAR committee responsa. 11. 530 U.S. 640 (2000). 12. 1999 U.S. Briefs 699, U.S. Supreme Court Briefs File, LEXIS. Groups joining the Religious Action Center were the General Board of Church and Society of the United Methodist Church, the United Church Board for Homeland Ministries, the Diocesan Council of the Episcopal Diocese of Newark, and the Unitarian Universalist Association.

Part VI

New Immigrant Faiths

Immigration to the United States was heavily restricted from 1924 to 1965. With the reopening of substantial immigration, the United States became a haven for people from a wide variety of religious faiths. Hindus, Buddhists, and Muslims have reached sufficient numbers to be influential players in the American conversation about law. Some people have questioned whether there is sufficient common ground between the Christian and Jewish faiths and the new immigrant faiths for a fruitful conversation. Will Herberg, in his path-breaking 1955 book, Protestant, Catholic, Jew, was one of the first to see the prospects for Jewish-Christian dialogue, but he held out little hope beyond that: “The common ground between Judaism and Christianity, and on another level between Protestantism and Catholicism, is real and important, sufficiently real and important, indeed, to make it possible to speak significantly of Jewish-Christian faith in a way that no one could conceivably speak of Jewish-Buddhist or Christian-Hindu faith.”1 Today, Herberg would likely add “Christian-Muslim faith” to his list of religious oxymorons. We would do well to reflect on an editorial entitled “Pluralism—National Menace,” published in a popular Christian magazine. It argues that “[t]he threat of a plural society based on religious differences” confronts the nation. The great danger to American society is diverse elements living “side by side, yet without mingling, in one political unit.” Although its argument sounds quite contemporary, this editorial appeared in 1951 in mainline Protestantism’s Christian Century, questioning the possibility of Catholic participation in American political dialogue.2 Many people make similar arguments about people from other faiths who have entered the United States in recent decades. Of course today, thanks to changes in Catholic and Protestant views of law and of each other, Catholics are very much involved in the American conversation about law. It may be that dialogue across the new religious divides will yield peace, mutual understanding, and even a shared, yet mutually authentic, view of justice. 239

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notes 1. Will Herberg, Protestant, Catholic, Jew: An Essay in American Religious Sociology (New York: Doubleday, 1955), 278. 2. Ibid. at 252 (discussing “Pluralism—National Menace,” Christian Century, June 13, 1951, p. 701).

Chapter 14

Hindus

Hinduism is a belief system that evolved in India over thousands of years among hundreds of religious groups. Hindus worship many gods and goddesses that are different aspects of one and the same god beyond human language and thought. Hindu beliefs vary from region to region, but share a belief in the eternal soul, the eternal universe, and the law of karma. Ancient Hindu collections of law include the Mitaksara and the Dayabhaga, but have been superceded by modern Hindu law. Some aspects of the laws of India, where the population is overwhelmingly Hindu, reflect Hindu teaching. For example, the Indian Constitution encourages states to prohibit the slaughter of cows and calves in accordance with Hindu law, and several Indian states have passed legislation to fulfill this article.1 The Indian Constitution rejects the caste system, which was favored by some traditional Hindu groups; it promises “equality of status and of opportunity.” 2 In the following essay, Kisor Chakrabarti addresses the implications of ancient Hindu beliefs about suicide and reincarnation on the contemporary issues of euthanasia and physician-assisted suicide.

notes 1. India Const. art. 48. 2. India Const. pmbl. (amended 1976).

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A Hindu Perspective on Euthanasia and Physician-Assisted Suicide Kisor K. Chakrabarti Physician-assisted suicide (PAS) and euthanasia (where the final act ending life is performed not by the patient but by someone else, such as a physician or a nurse) present some hotly debated issues of modern medical ethics. This essay considers the perspective that the Hindu faith might bring to the legal issues raised by these procedures. PAS and euthanasia have become prominent mainly because of the availability of new medical technology since the 1960s whereby a patient who would have otherwise been dead can be kept alive for years and sometimes even decades on artificial life support. For example, in the wellknown case of Karen Ann Quinlan, the young woman was brought to the hospital in a coma after consuming alcohol and drugs. She was kept alive with the help of a respirator, and she slowly worsened to a permanent vegetative state (PVS). After years passed without her showing any signs of improvement, her parents argued that her right to privacy was being violated by being kept alive on a respirator and asked for the removal of the breathing tube. But the doctors refused, arguing that a doctor’s job was to save life and not to help to end it. In a landmark ruling, the New Jersey Supreme Court held in 1976 that such a privacy right was indeed guaranteed by the Constitution and that the parents were appropriate surrogates to make such a decision.1 In the famous case of Nancy Cruzan, a young woman was brought to the hospital brain dead after an automobile accident and was kept alive with a feeding tube. After years passed with her in a PVS, her parents wanted the feeding tube removed. The U.S. Supreme Court ruled in her case in 1990 that a competent patient has the right to refuse medical treatment even if the patient would die without the treatment. Cruzan’s parents eventually proved that she would have wanted the tube removed, and it was removed.2 In the 1990s Dr. Jack Kevorkian reportedly helped over one hundred willing persons suffering from various serious or terminal illnesses that left them severely disabled and/or in pain to end their lives with a mechanical device that Dr. Kevorkian had designed and supplied. He was repeatedly prosecuted by the state of Michigan for murder but was acquit-

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ted in three different trials. However, he euthanized a consenting patient suffering from Lou Gehrig’s disease in 1998 and was convicted of seconddegree murder.3 In the United States, PAS is legal only in the state of Oregon. In 1997 Oregon voters approved (for the second time and by a much wider margin than the first) a referendum legalizing PAS under very restrictive conditions, namely, that the patient must (1) be certifiably competent, (2) be terminally ill with less than six months to live as determined by at least two doctors, and (3) repeat the request for PAS after a fifteen-day waiting period. Additionally, (4) each case must be reported to a regulatory committee.4 These restrictions were put in place to counter the fear of a slippery slope extending PAS to people living in the margins of society or otherwise vulnerable people who could be persuaded to choose euthanasia against their wishes by social pressure, financial constraints, and so on. Euthanasia, however, remains illegal in the rest of the United States, as well as in most of the rest of the world.5 The controversy over the morality of euthanasia and PAS continues unabated. The opponents point to the wrongness of willful killing, in particular on the part of a doctor, and also to the likely abuse of the weak and the vulnerable that would ensue if euthanasia is available. The supporters make a distinction between directly killing and letting a patient die. When a physician removes life support, he or she only lets the patient die, it is argued: what really kills the patient is the disease. The supporters also argue that competent patients should have the final say about what should happen to them, and the decisions to end their lives, if made voluntarily, should be honored under the principle of autonomy. They add that it is morally wrong to let a competent patient continue to suffer from unbearable pain if he or she does not want to live in pain and that PAS or euthanasia are appropriate as acts of mercy. But the American Medical Association continues to steadfastly reject the moral relevance of the distinction between killing and letting die on the ground that willful withdrawal of life support amounts to intentional termination of life that is contrary to the norms of the medical profession.6 Early Hindu lawgivers do not directly discuss either PAS or euthanasia. This is not surprising, for the new medical technology that has helped to prolong the lives of patients in PVS and suffering from terminal and/or painful diseases was not available in the ancient world. Nevertheless, the permissibility of suicide is discussed at length in the ancient Hindu tradition and law. We now briefly look at the traditional Hindu view of suicide

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to see if it might throw any light on the modern debate over PAS and euthanasia. Suicide is generally prohibited in ancient Hindu law and tradition. The following references from the Vedas (the core Hindu scripture), the highly influential epics, and some major ancient authors of Hindu law make this plain. Medhatithi on Manu VI.32 quotes the following Vedic passage: “one who desires heaven should not [willfully seek to] die before the appointed span of life.”7 A verse in the Vajasaneya Samhita (40.3) says, “Whoever destroy their self reach after death Asura [demonic] worlds that are shrouded in blinding darkness.”8 Parasara is of the opinion that if a man or a woman hangs himself or herself because of being overly proud, angry, affected, or fearful, he or she has to spend sixty thousand years in the hell.9 Manu says categorically that no water should be offered for the souls of those who commit suicide.10 It is said in the Adiparva that those who kill themselves do not go the heaven.11 Vasistha prescribes that those who kill themselves become cursed and that their relatives may not perform the death rites for them.12 Finally, Gautama also holds that no death rites should be performed for those who willingly take their lives by fasting or dismembering themselves with a weapon or by burning themselves or by taking poison or by hanging or by jumping off a hill.13 Vasistha does not spare even those who may in some way condone suicide. He says that a Brahmin (one who belongs to the caste of priests or scholars), a Ksatriya (one who belongs to the caste of administrators or soldiers), or a Vaisya (one who belongs to the caste of traders or farmers) who performs out of deference or kindness the death rites of someone who has taken his or her own life must undergo a particularly difficult penance (prayascitta). He goes on to prescribe another (less difficult) penance for merely making up one’s mind to commit suicide (without actually doing anything to make it happen).14 In a similar vein, Yama too prescribes that if one takes his own life, the dead body should be desecrated with impure things; if unsuccessful, one must pay a stiff fine (and perform a difficult penance), and one’s friends and sons also each should pay a (small) fine and perform a penance.15 However, many early Hindu lawgivers recognize exceptions to this general prohibition. For example, Atri holds that if one is too old or too feeble to follow the prescribed rules of bodily cleansing or too ill to benefit from medical treatment, one does not incur any sin by willfully taking one’s life by jumping off a hill or into fire or water or by fasting, that such a person’s death should be mourned for three days, and that death rites should be

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performed for him or her.16 Apararka cites the authority of Brahmagarbha, Vivasvat, and Gargya on a similar theme: a householder who is seriously and terminally ill or very old or has no longing for any pleasure from any of the senses and has completed all the tasks (such as fulfilled family obligations and repaid debts to teachers, ancestors, and so on) may willfully take his or her life by starting on the final journey (when one keeps on walking until dropping dead) or by entering into fire or water or by falling off a hill. In so doing not only does such a person not incur any sin, but also such death is better than self-mortification or penance (tapas), for one should not desire to live uselessly (while unable to perform one’s duties).17 It is clear then that in ancient Hindu law a very strong emphasis is placed on living the full span of one’s naturally ordained life and refraining from willfully cutting it short. The disapproval of suicide is expressed in no uncertain terms by describing such action as sinful and as unworthy of the usual ways of showing respect to the dead. It is thus implied that life is a high value and death an evil that should not be willfully hastened. At the same time some Hindu law authors recognize the right to commit suicide in certain circumstances. Such implicit recognition may be gathered from the fact that in certain situations suicide is labeled as not being sinful and also worthy of the usual ways of showing respect to the dead. Since the performance of death rites or mourning in such circumstances is described as a duty on the part of the relatives, such characterization implies a corresponding right vested in the person dying. In fact, the authorities cited by Apararka go much beyond implicitly recognizing such a right. They seem to imply that suicide in certain situations is a very high value, for they describe it as having more worth than even self-mortification or penance, which is itself widely recognized in the Hindu tradition as having great worth. Self-mortification and penance often involve inordinate hardship and making tough choices. Such actions are believed to be effective in absolving oneself of demerits from lapses or transgressions as well as in acquiring fresh merit. Since suicide in some cases is regarded as more valuable than even penance, it follows that some Hindu thinkers are strongly supportive of suicide in some cases. The reasons given for support of suicide in such cases are also significant. First, certain conditions are laid out to indicate when suicide is permissible. One such condition is that the person be seriously and terminally ill. One may reasonably infer that in cases of serious illness the person may be suffering from extreme pain and also perhaps that the illness is

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life threatening. It may also reasonably be inferred that in cases of terminal illness, the person may sometimes not be far from death and there may be no reasonable hope of the person benefiting from any available medical treatment, which could in other cases prolong life and restore health. In fact, when stating the conditions under which suicide is permissible, Atri explicitly includes instances in which persons are incapable of cleaning themselves or are beyond any medical help. Thus, it may be reasonably inferred that in this view suicide is sometimes permissible, if the person happens to be suffering from an illness that comes with extreme pain or from which recovery or benefit from medical help is ruled out. Another exception is that the person is very old, and because of old age is either very near death, too weak to respond to medical treatment, or in great pain. Thus, it may be surmised from the second exception that a person who is in extreme pain or is incapable of improving from medical intervention may opt for suicide. Although both of these exceptions deal with similar circumstances, they are not redundant: one may be very old without being terminally ill, and also one may be terminally ill without being very old. Furthermore, being very old may give rise to other situations in which suicide is permissible even though the person is not seriously or terminally ill, such as when persons are no longer capable of taking the minimum care of themselves due to extreme weakness, but that weakness is not considered a serious and terminal illness. Significantly, a third exception to the general prohibition of suicide may apply even though the person choosing suicide is neither very old nor seriously and terminally ill. According to this third exception, suicide may be permissible when the person has given up all longing for any sensual pleasure and has also fulfilled all duties. This exception applies only in very rare cases, for it is very difficult to rise above all temptations and to fulfill all obligations, including paying back debts to ancestors (usually by supporting one’s family and preserving the blood line), the teachers, and the gods (usually by performing ritual sacrifices). Although the first two exceptions cover the vast majority of cases when suicide may be allowed, the third, though rare, is more closely related to the objectives and core principles of the traditional Hindu faith. In particular, liberation (moksa) of the immortal soul from the bodily bondage is the highest goal in life, and rising above all temptations of the senses and fulfilling all obligations are the primary means of achieving that goal. To the Hindu mind, this is a very difficult but not an impossible goal. Not

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only are the Hindu epics and myths full of stories of liberated souls, but through the ages (including in modern times), a great number of saintly figures are believed to have been liberated in this way. In this traditional Hindu view, one may in some cases be freed from all social obligations by renouncing all material possessions; one may also conquer all sensual temptations through spiritual and yogic training and meditation.18 One who has reached yogic perfection and has no unfulfilled obligations may choose to put an end to the soul’s association with the body by committing suicide. (Needless to say, for others who have not reached such perfection and are not covered by the said exceptions, suicide is a sin and adds to the karmic bondage.) It may be added that the traditional Hindu perspective is relevant for proper understanding of the first two exceptions as well. In the Hindu view, the soul has no beginning and no end but is associated with different bodies in accordance with the law of karma in different lives.19 When too old or seriously and terminally ill, one may not be in a position to do anything to reduce the burden of karma. Since reducing the burden of karma is an integral part of the meaning of life in this view, continuing to live while one is incapable of reducing such burden is meaningless; hence, suicide is not only allowed but also recommended under such conditions. Such recommendation is clearly implied in the view that suicide in some situations is a higher value than even self-mortification or penance. Since the theory of reincarnation underlies the traditional Hindu view of suicide and euthanasia, it may be useful to briefly discuss it at this stage. This view is clearly different from the Judeo-Christian-Islamic view that the soul is immortal but created by God. In the light of each of these faiths the soul is different from the body and immortal. Whereas in the Hindu view the soul is uncreated and beginningless, in the Judeo-ChristianIslamic view the soul begins to exist only when it is created by God. In the latter view, once the soul begins to exist, it cannot be destroyed, for it is not made of parts. The Hindus share this belief but add that since the soul is not made of parts, it cannot be created and must be beginningless. Just as a substance that is not made of parts cannot be destroyed—for destruction means separation of parts—so also a substance that is not made of parts cannot be created, for creation means putting together of parts.20 Another main reason the Hindus regard the soul as not created by God is that God is understood to be all powerful, all knowing, and all good. If God created the souls, it is difficult to explain why some newborn babies are healthy and affluent while others are sick and poor. Since this is an

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absolutely new beginning, the sick and poor babies have not done anything to deserve such suffering nor the healthy and affluent ones to deserve such good fortune. Under the circumstances, the charges of cruelty and partiality can be leveled against God—charges that are so serious that unless properly explained they may undermine the very foundation of faith in God. (In classical Western thought this is known as the problem of evil—a problem that according to many leading Western thinkers is yet unresolved after centuries of effort.) The Hindus think that these charges cannot be fully answered if God is held to create the souls. Hence, to preserve the faith in God, we are better off, in the Hindu view, holding that the soul is beginningless, that it has gone through many previous lives, and that it gets what it deserves in the present incarnation in accordance with the law of karma.21 It appears then that the theory of reincarnation may be a reasonable alternative to the theory that the soul is created by God. In light of this theory, suicide by a person who is extremely old or seriously and terminally ill is not the final end to the life on the earth. For such persons, dying will be followed by rebirth (unless the soul is liberated), and they may in the new life be in a better position to reduce the burden of karma and improve their destiny. People are not in general at liberty to opt for suicide, for it is not certain that in the next life they will be any better situated to reduce the burden of karma. But if a person is very old or seriously and terminally ill and unable to do anything to improve his or her future, it makes sense for that person to look for a new beginning that may present fresh opportunities. Accordingly, in such cases euthanasia would be allowed and also recommended. Similarly, when someone has become free from the bondage of karma through yogic training, that person will not be reborn. Hence, in such cases there is no fear of being reborn in any situation inferior to the present, and suicide is accordingly permitted. It is thus clear that the traditional Hindu faith in reincarnation, the beginningless and endless soul, and the law of karma have deeply influenced the ancient Hindu teachings about suicide in ways that have profound implications for contemporary euthanasia laws. It is worth adding that in this view euthanasia is in some situations allowed and recommended. But the ancient Hindu lawgivers have stopped short of making euthanasia in such cases a required duty. In other words, willfully courting death in such cases is a meritorious act; but continuing to live when one is very old or seriously and terminally ill until nature takes its course is not a demerit and remains a viable option in this view.

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One striking feature of the Hindu view that suicide may be permissible is the emphasis on one’s ability or inability to improve one’s future as a decisive reason for allowing or disallowing suicide. The preeminent way to improve one’s future is to do one’s duty for the sake of duty alone regardless of the consequences. Thus, the Bhagavadgita says famously, “You have the right to the action but not to the consequence; do not be motivated by the consequence; do not also be attached to inaction” (2.47). When someone chooses to act without being motivated by the consequence, he or she is not influenced by calculations of loss or gain and is ready to serve selflessly (niskama-karma). Serving selflessly thus is the most potent way to reduce the burden of karma and improve the future. In other words, the classical Hindu perspective on euthanasia and PAS, if developed in the light of the foregoing discussion of suicide, should be informed by a deontological viewpoint that takes into account the consequence of reducing the burden of karma. Although duty should be performed for the sake of duty alone, serving selflessly is believed to have the inevitable and perhaps foreseen, though unintended, consequence of reducing the burden of karma. Foreseeing a consequence, it may be noted, does not always imply being motivated by it. For example, a doctor who participates in PAS or euthanasia clearly foresees the consequence of the death of the patient but may be motivated only by the call to the duty of relieving pain or acting mercifully. Similarly, one who acts selflessly is rewarded by the cosmic law of karma with reducing the burden of karma irrespective of whether or not one foresees such reduction; but if one is motivated by the prospect of reducing the burden of karma, one is not acting selflessly and is not eligible for the said reward. Thus, the classical Hindu deontological ethics should be distinguished from the modern Kantian deontological ethics. For Kant, no exception to a moral law can ever be allowed. For example, it is a duty to tell the truth, and one must do so regardless of the consequences. But what if a helpless and innocent person is fleeing from a notorious hitman and hiding, known to you, in a closet, and the hitman asks you where the person is? Should you tell the truth even if the likely outcome is the loss of an innocent life? Yes, says Kant.22 But to many people, such a position is morally counterproductive, for helping the helpless and protecting the innocent are also duties. Kant’s ethics does not appear to have any satisfactory solution for such conflicts among duties. But in the classical Hindu view exceptions are allowed if one acts selflessly, and conflicts among duties may thus be resolved. If one is not

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motivated by any personal loss or gain in telling a lie, one may lie and save an innocent life. This also helps to bring out another important difference between Kantian ethics and classical Hindu ethics: in the Kantian view, a moral imperative is a rational principle and categorical as well as unconditional, and hence consequences that can only be learned empirically are irrelevant to morality. But in the classical Hindu view, to perform a duty regardless of the consequences has the limited meaning of performing a duty regardless of the consequences of any personal loss or gain or personal sorrow or happiness. On the other hand, the general good of the community as a whole is a legitimate moral goal, and experience is relevant for that. Thus, although the Bhagavadgita says that one should perform the duty regardless of the consequences, it adds that one should perform the duty also taking into account the good of the whole people (loka-samgraha, 3.20); the Bhagavadgita further admonishes that since common people follow their leaders, if the leaders do not perform their duties, then neither will the commoners, and the social order will thus be disrupted (3.21–3.25). Thus, classical Hindu ethics is not exclusively deontological. Consequences are relevant for morality as long as they are not about personal loss or gain. As long as one acts selflessly regardless of any personal loss or gain, one may be guided by considerations of the general good and make exceptions to a moral law in the light of relevant experience. At the same time, classical Hindu ethics is not simplistic utilitarian ethics based on a cost-benefit analysis focused on the good of the majority. One difficulty with uncritical utilitarianism is that measures that benefit the majority may turn out to be morally right even if those measures discriminate against the minority. But rights and duties are paramount in the Hindu view and cannot be compromised even if that benefits the majority. An exception to a moral injunction is permitted only if one acts selflessly; if the majority acts to further its interest at the cost of the minority, that is still acting selfishly and would not be morally right in the classical Hindu view. In the same spirit, exceptions to the general prohibition of suicide are allowed as long as one acts selflessly. This is evident in the extraordinary case of someone who is above all temptations and free from all obligations. Such a person has nothing to gain or lose and can only act selflessly and, therefore, is automatically eligible for the exception. However, in other cases when one is seriously or terminally ill or beyond medical help or in pain, one is eligible for the exception as long as one acts selflessly and

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out of a sense of duty. The key point is that when persons are no longer capable of performing their duty, they are allowed to opt for suicide. It follows as a corollary that as long as persons are capable of performing their duty, they are not allowed to choose suicide. If serious and terminal illness or extreme old age robs one of the ability to perform one’s duty and contribute to the general good, such a person may be permitted to choose suicide and by extension also PAS or euthanasia. Similarly, when persons have no unfulfilled obligations and are not duty bound in any way, they are allowed to willfully put an end to their life if they so choose. In this way, the ancient Hindu lawgivers have drawn attention to an important moral underpinning that has not received much attention in the modern debate over PAS or euthanasia. It would be useful to reexamine the modern Indian laws concerning PAS and euthanasia (which seem to be overly influenced by the legacy of the British raj). India should adopt PAS and euthanasia laws (with suitable restrictions to prevent abuse and misuse) that incorporate the spirit of the ancient Hindu teachings and adapt them to the modern situation. Nearly 100 percent of Hindus (as well as the Buddhists and the Jains) in India believe in the law of karma, and an important part of what they do is inspired by the overarching goal of reducing its burden. If some of them are motivated by their faith in the law of karma to opt for PAS or euthanasia in exceptional circumstances, the law should not stand in the way of the pursuit of their faith. The law should equally accommodate others with different views, and neither PAS nor euthanasia should ever be imposed on anyone against one’s wishes. It goes without saying that in India, Christians, Muslims, and others should also be allowed to practice their faiths and to opt or not opt for PAS or euthanasia freely in accordance with their faiths and that the law should not interfere with such momentous personal decisions. It would also be useful to review the American law of PAS and euthanasia and explore in particular whether a law of PAS such as Oregon’s should be adopted by other American states and be extended to cover euthanasia as well. It is true that there are legitimate concerns of abuse and misuse if the law is changed. As already stated, the fear is that once a physician is allowed to kill a patient because the quality of life is so low as to make life not worth living, the practice will quickly expand to killing numerous cognitively impaired elderly or helpless people and down the “slippery slope” to even more patients with mild cognitive deficits. As noted, there is also the fear that excessive pressure may be placed on people to choose euthanasia when they really do not want it and that this may

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lead to erosion of autonomy. But that is why appropriate safeguards are needed, and these must be vigorously enforced by the administration and the judicial system. Does one really have any choice, unless one surrenders to pessimism, but to have faith in the ability of the society to rise to the occasion and take necessary corrective measures if there is widespread injustice? It is worth noting that in Holland, where euthanasia is legal, no pervasive abuse has been conclusively proven. There is indeed the rather high number in Holland of more than a thousand patients being euthanized annually without proper documentation of competence and voluntary request. It is likely that some of these cases do go beyond the prescribed norms. But, on the other hand, nearly 99 percent of patients euthanized there had cancer or terminal AIDS, and most were treated by the same physicians for years so that the physicians had the opportunity to know the patients intimately and learn about their wishes.23 Indeed, if capital punishment should not be completely banned for fear (and proof) of injustice in some cases and if medical research on humans and other animals should not be altogether stopped for fear (and proof) of abuse in some cases, so also the fear of abuse in some cases should not be a proper ground for totally disallowing PAS or euthanasia. Freedom seems to come as a whole package that cannot be divided and doled out in bits and pieces; it can be sustained and nurtured only in a society that is self-critical, self-corrective, confident in itself, and steadfast in its values. If freedom to choose goes to the very foundation of the American way, should not the freedom to opt or not opt for PAS or euthanasia be protected?

notes 1. Gregory E. Pence, Classic Cases in Medical Ethics, 4th ed. (Boston: McGrawHill, 2004), 29. 2. Ibid. at 40. 3. Ibid. at 95. 4. Ibid. at 102. 5. Several countries have some form of legal PAS or euthanasia, including Belgium, Switzerland, the Netherlands, and Japan, under restrictive conditions similar to those for PAS in Oregon. Derek Humphry, “World Laws on Assisted Suicide,” Euthanasia Research and Guidance Organization, October 21, 2002, http:// www.finalexit.org/lawseurope.html, http://www.finalexit.org/lawsasia.html. Statis-

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tics recently released by the Dutch government reveal that euthanasia rates have risen steadily since legalization. “Euthanasia on the Rise in Netherlands,” Associated Press, April 27, 2006. 6. See American Medical Association Council on Ethical and Judicial Affairs, Op. E-2.20, “Withholding or Withdrawing Life-Sustaining Medical Treatment” (1984); see also generally Pence, Classic Cases, ch. 5. 7. Pandurang V. Kane, History of Dharmasastra, Vol. II, Part II, 2d. ed. (Poona, India: Bhandarkar Oriental Research Institute, 1974), 927. 8. Ibid. 9. Ibid. at 924. 10. Ibid., quoting Manusamhita at V.89. 11. Ibid., quoting Mahabharata at 179.20. 12. Ibid., quoting Vasistha’s Dharmasastra at 23.14–16. 13. Ibid. at 926., quoting Gautama’s Dharmasastra at 14.11. 14. Ibid. at 924, quoting Vasistha’s Dharmasastra at 23.18. 15. Ibid., quoting Yama’s Dharmasastra at 20–21. 16. Ibid. at 925. 17. Ibid. at 927. 18. Bhagavadgita, ch. 2. 19. Ibid. 20. Nyayabhasya of Vatsyayana, ed. Padmaprasada Sastri (Benares, India: Chowkhamba, 1939), ch. 3, ahnika 1 and 2. 21. Kisor K. Chakrabarti, Introduction to Hinduism and Buddhism (Calcutta: Oriental Publications, 2002), ch. 5; see also Kisor K. Chakrabarti, Classical Indian Philosophy of Mind (Albany: State University of New York Press, 1999), ch. 10. 22. Immanuel Kant, Fundamental Principles of the Metaphysics of Morals, trans. Otto Manthey-Zorn (New York: D. Appleton-Century, 1938), first and second sections. 23. Pence, Classic Cases at 115.

Chapter 15

Buddhists

Buddhism grew out of Hinduism in the sixth century BCE when Gotama Buddha, a Hindu prince, created a new religious community. Buddhist teaching includes the sutras (the words of Buddha and his disciples) and the abhidharma (interpretations of his teachings). Like Hinduism, Buddhism does not have a full system of laws, but it has moral teaching that has influenced civic law in countries with Buddhist citizens. Tibet, as early as the seventh century CE, incorporated substantial portions of Buddhist morality into its code. Rebecca French spent four years with the Dalai Lama’s Tibetan government-in-exile, translating sixteenth- and seventeenth-century Tibetan law into English. In the following essay, she considers the impact of Buddhism on Tibet’s laws of victim compensation and compares those laws to American victim-compensation law, especially the September 11 Victim Compensation Act.

Interdependence and Victim Compensation Views from Buddhist Tibet and Post-9/11 United States Rebecca R. French Introduction: Sitting under the Pipala Tree On the morning after his enlightenment under a pipala tree in Bodhgaya, the Gotama Buddha faced a dilemma that tradition states he then spent the next four weeks considering. Sitting throughout the previous night in full lotus position, he had been tormented by Mara, the tempter, a god from the fringes of the sixth heaven. Mara created the illusion of every 254

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possible desire in the form of sexual fantasies, incredible tastes and tactile sensations, delicious smells, and music to tempt the future Buddha. Mara’s minions brought on hunger and thirst, torpor and sloth, jealousy and competition, cravings of all kinds, fear and cowardice, abuse and harassment, insensitivity and praise. The future Buddha, beset with wave after wave of extreme emotions, thoughts, and desires, touched the earth to bear witness to his struggle to remain calm. And at dawn, he was the Buddha, the fully awakened one, enlightened, omniscient, free from cravings and desire, with a memory of his previous lives and a full understanding of karma and rebirth. The morning after, no one but a few cows in a field nearby was there to observe his victory. It took him four more weeks of meditating under the same tree to decide what to do next, for at this point in his life he had several options. He could return to his home state and take up the role of a leader in his family with his wife and child, perhaps even become king. Like Muhammad living over a thousand years later, he could have integrated several roles simultaneously and been a merchant, a husband with several wives, a prophet of revelations from God, an organizer of tribal groups solidifying political power, and even a leader of religious wars. Another possible option typical for this time period was to become a religious hermit, a sramana (Sanskrit terms are in italics) or forest dweller, remaining in meditation for the rest of his life. Instead, the Buddha decided to take up teaching what he had discovered, the path to ultimate personal enlightenment and the practice of removal of self from society into a disciplined community governed by specific laws. After fifty years of traveling, instructing, and answering questions, the Buddha died in his eighties surrounded by a growing community. Within one hundred years of his death, the wandering followers of Buddha became a settled order forming the basis for a new institution in religious history, the monastic community. They drafted from his teachings a code of laws for Buddhist monasteries, the Vinaya-Pitaka, which is one of the three major sections of the Buddhist canon. Indeed, the institution of monasticism that the Buddha initiated has remained a vital part of world religious culture to this day. Like Jesus’ battle with the temptations of Satan in the wilderness of Judea over four hundred years later, the Buddha’s triumph over temptation is a crucial moment in the religious narrative of Buddhism, one that is repeated over and over in images and texts. When I first encountered in 1980 and later committed to a Buddhist path, this story was simultane-

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ously exhilarating and repugnant. Rejecting strong emotional attachment to anger and the desire for material objects seemed intuitively right, but eliminating romantic love and connections to my family felt wrong. After studying Buddhism and working on a Buddhist legal system for many years, I have discovered the kindness, compassion, and resiliency that accompany each graduated degree of distance from intense cravings and emotions, and through that process I have come to understand the story of the night under the pipala tree a bit better. This essay will first look at the origins and nature of Buddhist legal systems, the underlying religious concepts, and some of the dilemmas in locating these legal systems. The basic teachings of the Buddha in the Four Noble Truths and the Eightfold Path will be covered, as will the ideas of karma, rebirth, and impermanence. Then Tibetan law pre-1960, an example of a Buddhist legal system, will be introduced, particularly the Sixth Section on Murder of the Law Codes of the Dalai Lamas, which outlines the victim-compensation system used prior to the Chinese takeover. It is difficult to understand this payment system without more information on three other Buddhist ideas: interdependence, compassion, and a calm mind. The wide range of persons and institutions compensated by the Tibetan Buddhist system points to the importance of these underlying concepts. After a trial and sentencing for the defendant, how did Tibetan judges administer victim compensation? To signal the end of discord, Tibetan law required a series of heavy payments to be made to the widow, the children, the relatives of the widow, the local temple, nuns, and monks and for the funeral expenses, legal costs, court costs, payments for the community, and a neighborhood “getting-together” ceremony attended by all the important parties. Through these payments and processes, the violent repercussions of the initial act were alleviated and kept from spreading throughout the net of social interdependence. Next, the Buddhist system will be compared, first, to the current New York State Victim Compensation system and, then, to the compensation system for the mass disaster of 9/11. As a result of this disaster, Americans have begun to think more broadly of the wide range of harms—psychological, physical, economic, and social—that can affect families, communities, businesses, and even society-at-large. Though they did not adopt the Buddhist notion of interdependence and karma, Americans responding to the World Trade Center disaster outlined a much wider group to be compensated; reimbursed a wider range of types of losses; created more

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substantial compensation funds; focused on helping people rebuild their lives; made awards to every victim for pain, suffering, and grief as well as medical expenses; and did it all in a fast, predictable, and responsive way. This new approach is much closer to the Buddhist model than other American compensation systems and provides an excellent example for future victim-compensation models.

The Nature of Buddhist Legal Systems To understand the Buddha’s decision and the resultant nature of Buddhist legal systems, it is essential to reiterate that Buddhist law began as a training system for a new religious community. With no particular territorial base, no connection to a known political system, no direct role in economic systems or family affairs, this new religion was uniquely focused on the internal experiences of a group of disciples listening to a charismatic leader. This is the first and most important understanding of the term Buddhist law, the legal system that the Buddha created for his monastery. Over a period of approximately fifty years, he set out, in casuistic style, hundreds of precise rules, commentaries, and examples of conduct that were later compiled into the Vinaya-Pitaka, one of the three major sections of the Buddhist religious canon. Thus, Buddha himself was one of the most decisive and prolific judicial decision-makers in religious history. These rules always stand as a foundation, a backdrop, a touchstone for other rule systems of Buddhists. Secular Buddhist-influenced legal systems, our concern here, developed over centuries as Buddhism came in contact with nation-state systems. The first Buddhist state was the reign of King Asoka (304 to 232 BCE), who, after conquering much of the Indian subcontinent, converted to Buddhism, placing throughout his kingdom stellae that pronounced his beliefs. The strongest examples of Buddhist-influenced nation-states are countries or areas in which Buddhism was formative in the creation of the actual administrative and legal system of the country, such as Tibet, Burma, and Thailand. In the case of Tibet, Buddhist forms of secular law and political governance were developed after scriptures of the Buddha and a syllabic script were imported from South Asia. A second form of Buddhist-influenced state is one with a basic legal and administrative system in place when Buddhism enters the country, such as in Sri Lanka, China, Korea, and Japan. There, the legal systems

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have reflected the influence of Buddhist ideas to a widely varying degree. Undoubtedly, however, the population was and is employing basic Buddhist principles and reasoning processes to present and make legal decisions. A third example is a country in which Buddhist-influenced legal processes or procedures have been banned, as in some of the communist Asian countries in the twentieth century. For example, in such a setting, Buddhist ideas about legal subject matters (murder, theft, inheritance, and land tenure) are commonly employed by the parties when using a nonBuddhist-based (communist) legal system. Less dramatic but still quite powerful influences can come through the incorporation of Buddhist practices, rituals, procedures, or general cultural ideas that have been incorporated into the political and legal system. Examples of this fourth type are the popular puppet plays, cautionary tales from the former lives of the Buddha, called Jataka tales, shown throughout Southeast Asia.

What Did the Buddha First Teach? The Buddha’s final awakening eliminated his basic desires at every level as he realized the emptiness of emotional states and their dependence on a form of false cognition. He then sat for another four weeks contemplating how to explain his revelations. To introduce his profound discoveries, the Buddha began his teachings with a description of the current state of all humans, a world filled with the chaos of constant changes, good and bad, anger and happiness, births and deaths. He called this duhkha, often translated by the strong term “suffering” but close also to the ideas of impermanence and constant change. Our world is always changing, and it is filled with good but also with the results of human hatred (dvesa), craving (raga), and delusion (moha), the basis of illegal acts. These three elements of suffering are the root cause of all antisocial acts by individuals in the law. The Buddha’s first sermon (the Dharma-cakra-pravartana sutra) presented the Four Noble Truths, how the craving arises, and how it can be eliminated through the Eightfold Path. In his second teaching (the Arya-astanga-marga sutra), the Buddha reiterated his ideas that karma and rebirth result in a perpetual cycle of birth, death, and change that will ultimately be experienced as duhkha. The way out of the cycle is to learn about the true nature of the world, to

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train our minds to see the world as it really is, to rid ourselves of ignorance. To lose our ignorance, we must adopt eight particular behaviors, calm our minds, and begin the process of investigating mentally the true reality of the world. By following this Eightfold Path—right view, right resolve, right speech, right action, and so on—an individual will be able to stop craving, to see the world as it is, and ultimately to achieve enlightenment. Although we think that the world around us is real, according to the Buddha, all phenomena lack inherent existence. This means that what you see is not what you get. The most essential element of phenomena in the world is that they are constantly, radically changing and evolving, arising, shifting, and disappearing. As everything in the world is impermanent (anitya), there is no steady state of the self, of others, even of a chair. Thus, attachment to the constancy of other entities, selves, even emotions such as happiness, creates grief. As only a few ideas in Buddhist philosophy can be explained in this short essay, we turn now to some particular religious concepts that were specifically mentioned by lawyers and judges as ideas, rationales, or methods of reasoning that they used in the law. Three of these Tibetan Buddhist ideas are interdependence (Tibetan: phan.tshun.rten.pa), compassion (Sanskrit: karuna; Tibetan: snying.rje), and mind (Tibetan: sems.). For our purposes, the first term can best be elaborated as a net of social interdependence or integration. Buddhism emphasizes interconnection, interdependence, and interbeing, the idea that everyone and everything has been affected by, is now affected by, and will be affecting every other person and thing. For example, because each of us has been born so many times in the past, hundreds of thousands of times before, in our past lives we have had familial ties to literally everyone we encounter on a daily basis (that is, we have been their mother, brother, sister, father, and son). As each of us has lived more than a thousand lives—as insects, hell beings, animals, and human beings—so we have also had myriad social relationships with the persons that we interact with, as lovers, instructors, waiters, bosses, infant daughters, sworn enemies, servants, and strangers. Buddhism presents our relationships to others in this light because it helps to open our minds and hearts to the reality that every other sentient being we encounter throughout our lives has been directly related to us in the past.1 Interdependence has been described in the Avatamsaka Sutra as an endless net with a diamond at every knot; it is said that each person and

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animal in the net is like a jewel that shines and reflects off each other jewel in hundreds of different ways. Compassion arises naturally from this viewpoint. Not only have you known everyone around you and been aware of his or her circumstances on a personal basis, you also know the amount of energy each of these persons must extend to help you live your life on a daily basis. As you drink your cup of tea, you can think of the woman who picked the tea leaves in Sri Lanka and the man who fixed the water pipes in your building. Other human beings are constantly acting to benefit every aspect of your life. Each person should be respected as if he or she were your mother in a previous life. For a Buddhist, a violent shattering of one part of these connections will eventually affect everyone and everything in the entire net of interdependence. Bad words, bad thoughts, bad acts have the potential to shape not only the victim and the perpetrator but all the persons and entities around them as well as thousands of others in ways that are perhaps not immediately apparent. Negative results will then occur across the net of beings through karma and interconnection. Karmically, it is not just negative actions that can affect the net of interdependence but also negative mental states.2 For Buddhists, the ultimate goal is a completely calm, desire-free, enlightened mind, a state that can be achieved even in this life. Radiating out merit and calm, such an enlightened mind enhances and protects those around it, creating and shaping the world in a better way. A calm mind is one without anger, desire, or ignorance that views every being as its mother. All societal goals such as happiness, peace, and justice can be truly achieved if individual humans have learned to calm their minds. What this means in law is that an aggressive mind, an unhappy mind, a mind filled with anger and hatred will not benefit society at the end of a trial. Even in the case of a murder, the murderer and the victim’s family and neighbors must reach some understanding and come to a calm resolution of the case or the left-over negative attitudes will pollute society with hatred and anger. Negative attitudes will surface somewhere else in a different form, a wife-beating, stealing, or a new lawsuit. It is far better to resolve the negative mental and emotional states from a murder by calming the minds of the participants than to have them affect many others at a later time. With these ideas of interdependence, compassion, karma, and mind, the Tibetan Law Codes employed a substantial system of victim compensation for murder.

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Law Codes in Buddhist Tibet To take our first look at Buddhist secular law, we turn to a country in which Buddhism was part of the founding administrative and legal tradition. In Tibet, the first law documents and codes date back to the empire period in the seventh century, when Buddhism was first introduced into the country. The first king, Songtsen Gampo, sent several scholars to an area now in Afghanistan and Pakistan to learn about Buddhism and to develop a written script for the language. When they returned, it is recounted that they brought with them several innovations including a newly minted script based on Gupta, a grammar based on Sanskrit, administrative methods including document drafting styles and hundreds of Buddhist scriptures. Particularly the later Tibetan law codes show the influence of Buddhism in their drafting. One of my personal projects over the past several years has been to translate the Tibetan law codes written in the centuries following this original transmission and to annotate them for meaning through the words of both ordinary Tibetan laypeople and officials. Kungola Thubten Sangye, an official and judge in Lhasa who was trained as a monk and then entered government service, worked on the law codes with me for over four years at the Dalai Lama’s Tibetan government-in-exile in India. We annotated the version of the dGa’.ldan.pho.brang Law Code of the Fifth Dalai Lama that was still on the desks of judges and officials in Lhasa when the Chinese took over. Our goal was to create contextual cultural translations embedded in the understanding of the practice of law in the late 1930s through the late 1950s on the Tibetan plateau. The Law Code is not primarily criminal in nature but details a wide array of general information on topics such as what to do with borrowed animals, the division of male and female children in divorce, and how to interrogate a witness. Although understood as law codes by the Tibetans, these texts lack many of the features typically associated with law codes in Western countries, such as specific sanctioning requirements, systematic treatment of a particular substantive topic, command statements, and exclusivity of authority. And unlike our modern legal processes, the codes left many things unsaid. Tibetans did not write down all aspects of their court procedures; they did not have documents that outlined jurisdiction, general witness requirements, evidentiary weight, jurisprudential considerations, and so forth. This material on their legal system was only

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available through interviews with former judges, plaintiffs, and defendants. Also, due to the monastic training in the Vinaya by many of the officials in the government, the religious monastic law code stood as a constant backdrop to their work in the secular law. Tibetan law codes are generally set out in twelve or thirteen sections, although there are codes with as few as ten and as many as sixteen sections. The formal name of the dGa’.ldan.pho.brang Law Code of the Dalai Lamas is the Khrims.yig.zhal.che.bcu gnyis, or “The Law Code Presented in Twelve Sections.” It was drafted by the Fifth Dalai Lama’s regent in the 1650s and, as far as we know, not altered after that time. The Sixth Section on Murder is entitled Drug.pa.bsad.pa.sTong.gi.zhal.che, or “The Sixth Section on the sTong Payments for Murder.” Beginning with some verses of poetry, this section appears to be a grab bag of different ideas relating to victim-compensation payments and punishments; the vocabulary is at times idiosyncratic or archaic, and the text repetitious and contradictory. Included are discussions of barter equivalents, mitigating circumstances, excused deaths, excused perpetrators, mental factors of the murderer, jurisdictional issues of negotiation, and the like. The core concept, however, is clear: extensive compensation for harm in the case of a murder.

Victim Compensation in Tibet from the Sixth Section on Murder What would happen if a landholder in 1950s Tibet were murdered in his home? First, there would be a local investigation into the actions of the “red-handed one” (lang.dar.ma), followed by some whipping, a local hearing in the district capital, and perhaps a trip to Lhasa for a second trial. At the end of this trial, the defendant would be sentenced to a rehabilitative course such as farming for several years on some distant governmentowned lands and whipped to impress his body and his mind that he should not do this again. Then, he and his family would have to make the large sTong payments and have a reconciliation ceremony with the victim’s family, the officers, and perhaps the members of the community. Determining the appropriate sTong payments was a complex task accomplished by the judge and the clerks in two steps. The first step was to figure out the rank of the victim and the amount of payment associated with that rank. The sTong Ranking System outlined in section six divided the entire society into levels of people from the highest of the high (the Dalai Lama and his family) to the middle of the middle (landowners of

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private government land) to the lowest of the low (beggars, blacksmiths, and executioners). Each occupation was assigned a monetary amount, and the victim’s level was assessed from this ranked chart.3 The murderer and his family then had to deposit that amount of money, and several other payments calculated from it, with the court. At the end of the trial, the judge and clerks first subtracted their own court costs and then doled the money out according to the many expenditures listed in the law code for victim compensation.4 The second step was distributing the determined compensation amount to the various parties. If you imagine a circle around the individual affected, each of the component parts and relationships in that individual's life was addressed and then compensated by the Tibetan compensation system. The first payments were to the employer or landlord for the loss of an employee, followed by payments to the victim’s widow and children.5 The widow might receive payments for her grief (called “tears” and “heart-press” payments), income loss, clothing and furniture, her “apron” (a sign of her married state), food, funeral expenses, and also money for grain and butter offerings at the local temple. Her children were due maintenance and food, and her other family members deserved a “sorry payment” for the loss of a son-in-law. Funeral payments were made to the local Buddhist temple as well as additional recompense to light hundreds of butter lamps during the very important, forty-nine-day period of Bardo, when the karmic seeds of the victim were in a nether state awaiting rebirth. Other money presented to the temple went for feeding and lodging the monks and nuns, merit payments for the victim, offerings to the lamas, and “first offerings.” Several of these ceremonies aided in realigning the cosmos and the net of interdependence from the spread of the negative actions. Within the local community, a “getting together” ceremonial meal was prepared, attended, and paid for by the defendant’s family. Neighbors, the victim’s family, the officers who handled the case, and other members of the community might also attend as a sign of healing and reconciliation. The widow’s court costs were often paid from the sTong compensation amount, and on occasion concession payments were added as part of the legal costs. In all, the Tibetan view of victim compensation was to draw broadly from the defendant and his family and relations to furnish aid to all the people and institutions that were affected by the loss of the victim. Realignment of the social, religious, and cosmological order and repair of the widespread damage done to the net of social interdependence was the

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goal. This Tibetan law code system limited future harms from the murder by rectifying the circumstances early, widely, and adequately. Calming the minds of the individuals and institutions close to the victim was equally important, and it was achieved through “getting together” parties, religious ceremonies, and other payments. The Tibetan view of harm has much to commend it. When compared with American law, it addresses a greater range and kind of damage—psychological, economic, social, and physical—suffered by a wider range of people and institutions around the victim—his neighbors, community, local schools, religious institutions, and relatives. The emphasis is both on punishing the perpetrator and on rectifying the perceived social harm from the violent act. In contrast, although Americans have developed numerous institutions for balancing risks and types of harms—insurance, worker compensation, the tort system, and victim-compensation funds —these systems irregularly compensate the victim. In the United States, charitable organizations, individuals, and private groups may address the greater effects and the wider range of harm from an act of violence, but there is no systematic method for such compensation. Interestingly, it is not, as we shall see, in victim-compensation statutes that Americans tend to address the wider ambit of resultant problems from a violent act but in the circumstances of mass disasters such as the school murders in Columbine, Colorado, and the World Trade Center on 9/11.

A Brief Look at Murder Compensation in New York State Approximately forty years ago, due to a grassroots political movement and several important Supreme Court cases,6 American lawyers and laypersons began to think more seriously about the role of victims’ families in the process of a criminal trial. The concern was that the victim and the victim’s family were not allowed to participate in the trial. This participation was seen as a therapeutic practice, a form of bereavement, an outlet for grief, a way to give meaning to the crime itself, and a way to seek closure and a sense of security. In her article “The Wrongs of Victim’s Rights,” Lynne Henderson outlines the history of this movement and shows some of its conservative roots as a response to the perceived increase in defendants’ rights by the Supreme Court.7 Beginning in the early 1980s, victims’ families began lobbying for a victims’ bill of rights and other constitutional guarantees. By

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1998, most states in the union, including New York, had changed their constitutions or enacted statutes giving the families of dead victims, or the victims themselves if living, the right to be notified of, to participate in, and to effectuate the court proceedings of the defendant including the pretrial motions, trial, sentencing, and probation, release, or escape hearings. Because the focus in the American system has been on the relationship between the prosecuting state acting for the public and the defendant, the central issue was the process of the trial. Victims’ families wanted to effectuate the most important part of the process by presenting their views, their suffering, and their harm from the acts of the defendant. Additional rights, in some states, include the right to collect restitution from the victim-compensation fund of the state and to file wrongfuldeath suits against the defendant, although most defendants are not financially sound enough to make such a suit meaningful. The New York State 1997 Crime and Justice Annual Report8 lists a very broad range of twelve possible reimbursable losses for crime victims. However, a rather different picture appears when we look at the actual disbursements. In 1997, deathclaim expenditures only constituted $2.5 million for the entire state, and over 80 percent of the money was distributed for burials alone. Lost earnings for victims’ family members who were attending court hearings was the next-largest category, at only $600,000 for the entire state.9 There is little doubt that the state and federal crime-victim-compensation systems, first initiated in the United States in 1965, are vastly underfunded and underutilized, representing only 4 percent of violent-crime victimizations. For example, comparing the number of compensation claims awarded to the number of aggravated assaults results in a median across the states of eight awards for every one hundred assaults. The figure in New York State is around 6 percent. Most authorities attribute this to a lack of public awareness, eligibility restrictions, tight filing deadlines, reimbursement restrictions, and an overreliance on offender fines and penalties, of up to 90 percent, for funding victim-compensation programs. Also, federal funding for the Crime Victims Fund that provides federal money to the state compensation programs was cut in half between 2000 and 2004. In short, in New York State, the focus is to allow the grieving family to express hurt and the desire for revenge, retribution, and forgiveness to the participants in the original criminal trial process. The publicly funded New York State Compensation System provides only minimal monetary awards to a very small percentage of the persons injured. The tort system in the United States provides a separate means for

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compensation due to injury. Survival and wrongful-death statutes allow the plaintiff ’s family the possibility, under circumstances that vary widely by state, of making specific claims on the defendant’s resources. The beneficiaries under these statutes can include the spouse, children, and more rarely, the parents, dependents, and other heirs of the victim. Because harm is understood as the violation of a legally protected interest, damages are assessed on the basis of loss to survivors and loss of support in most cases. The distinguishing characteristics of the wrongful-death system are that it happens later and in a separate trial, it attaches only the defendant’s generally meager resources, and it has no connection to a government or publicly funded victim-compensation system. In Tibet, a single trial handles the functions that are divided into two separate (one criminal, one civil) trials in the United States. A two-trial system has proven problematic because many families of victims in the United States are simply unwilling to go through the process a second time. Compensation is much more likely in Tibet because the group that must and can support the defendant in paying the sTong is much larger. Tibet’s system intervenes early and in one unified process to address a wider range of persons (in-laws, community, family, local temple, neighbors, local officials) and harms (psychological, spiritual, financial, emotional, societal, universal) because its primary concern is stitching up the net of social interdependence.

Victim Compensation for the 9/11 Disaster The fall of the World Trade Center towers in New York on September 11, 2001, was the largest nonnatural disaster of the new millennium.10 This instance of victimization was new in several ways; first, an enormous number of people were killed at the same time in a man-made disaster. Second, there was no immediate defendant to focus on, blame, and put through a criminal procedure. The victims’-rights approach from the 1960s was simply not suitable in the initial aftermath of 9/11. Third, the unprecedented psychological effect of the entire population watching over and over again the attack on the towers created a strong sense of national unity and interdependence. Fourth, the population needed grieving rituals and avenues to aid in rebuilding the city and compensating the victims. Finally, days after the attack, the U.S. Congress rushed through a bill called the September 11th Victim Compensation Fund of 2001,11 creating a centralized sys-

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tem for handling all the claims of the victims. Intended to protect the airline industry from suits, this new legislation resulted in a single compensation system that bore a surprising resemblance to the Tibetan model of sTong payments, with ranked amounts by status and occupation. How were the victims of 9/11 compensated? Of the total compensation, 61 percent went to businesses in New York City in the form of insurance payments and other federal aid,12 28 percent to individuals injured, and the remaining 11 percent to others. For personal claims from victims’ families, a unified process was designed with a single judge-like “special master,” Ken Feinberg, a professor of law at New York University Law School. Because 60 percent of the persons killed on the airplanes, at the Pentagon, in the World Trade Center, or as emergency responders left spouses and families behind, Feinberg developed a calculation for the presumed economic loss for death claims. Charts were used to establish the victim’s age and compensable income; the value of future earnings plus benefits were then calculated. Subtracted from this amount were future taxes, a risk of unemployment factor, and the victim’s share of household consumption.13 The result was not unlike the sTong payment levels in the Tibetan system, with wealthy, high-status individuals’ families receiving much higher payments than poor or lower-status families. This amount of economic loss was added to a figure for noneconomic loss, a basic award for every death. The guidelines for noneconomic loss were a flat award of $250,000 for pain and suffering plus $50,000 per child. Thus, the family of a single female janitor earning $10,000 a year received $300,000, and the family of a young, male Wall Street lawyer earning $175,000 a year with a homemaker wife and two children received $4.35 million. One article argued that Feinberg, who had the final say on each compensation package, enshrined the massive gaps in income and wealth that characterize the United States in the twenty-first century.14 But Feinberg did take some steps to moderate the differences in awards. Though the statute did not create a cap on damages, Feinberg limited compensation for the victims with the highest incomes. For example, the families of the eight victims who earned over $4 million a year received an average of $6,379,287.70 in compensation.15 The 9/11 tragedy provided an opportunity for Americans to show their communitarian spirit. Grieving ceremonies, art displays, counseling offices, fund-raising events, free medical care, free legal care, and hundreds of other services sprang up through volunteer agencies, churches and temples, social-welfare programs, and numerous other agencies and institutions. They provided spiritual, emotional, therapeutic, religious, and pro-

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fessional aid needed by the families and individuals that survived this catastrophe. The aftermath of 9/11 saw an outpouring of support to heal and rebuild the individuals, the families, the communities, and the nation as a whole.

Conclusion A 2004 study by the National Center for Victims of Crime found a significant difference between typical state compensation programs and the 9/11 Victim Compensation Fund. The study discovered that the 9/11 fund (1) outlined a much broader group to be compensated, (2) did not exclude victims with criminal records, (3) used tax moneys instead of offender penalties, (4) focused on people rebuilding their lives after the disaster, (5) was “notably generous in its range of reimbursable losses,” (6) made awards to every victim for pain, suffering, grief, noneconomic losses, and medical expenses, and (7) was fast, predictable, and responsive.16 Of all claims for wrongful death and physical injury connected to the 9/11 terrorist attacks, 97 percent were dealt with by the fund within three years. While the 9/11 Victim Compensation Fund avoided individual lawsuits and relied on a centralized administrative process, it managed to achieve a much wider array of types and amounts of compensation for the victims’ families and provided compensation for a larger number of ways in which the victims’ families had been injured.17 Tibetan Buddhists pre-1960 regularly achieved similar results through their ancient law code’s section six on murder. Each victim’s family was understood as suffering from an extensive range of problems due to grief and suffering, religious problems in terms of providing for a successful Bardo period, financial losses, and material losses, in addition to the impact on the greater family, community, and wider region. In each law case, the sTong payment system of the law codes presented rules for punishing and rehabilitating the defendant, while also fully compensating the victim’s family and neighbors for their psychological, financial, emotional, and social losses. The very difficult process of catharsis and final forgiveness occurred through the required “getting together” ceremony in which everyone would sit down and share beer and food together. Buddhist religious philosophy provides a rich ideological backdrop for this form of victim compensation. Interdependence of all beings through a net of current and past lives makes resolutions of harmful actions im-

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perative; compassion for others also means compassion for one’s enemies rather than revenge, retribution, and retaliation. Buddhists recognize that karmically this action may have been the result of negative actions by the victim in a previous life toward the defendant, reoccurring actions that will continue to cycle through countless more lifetimes unless put to an end. A calm mind in each of the participants, one that looks past the illusions of self and others, is the ultimate goal of the Tibetan Buddhist victim-compensation process, a goal that resonates with the beneficial effects that it produces.

notes 1. This is what the Dalai Lama means when he says “kindness is society,” that without kind motivation on the part of all the people that we encounter, there is no society. See Jeffrey Hopkins, Cultivating Compassion: A Buddhist Perspective (New York: Broadway Books, 2001), 127. 2. Karma is another Buddhist concept that can influence legal proceedings. The reason for an illegal act in this lifetime might be found in one of several previous lives or in this life; the punishment of an illegal act in this life might occur in this life or in a future life. Studies of the use of karma as a rationale for not pursuing an injury case in a modern Thai city have demonstrated this belief. One scholar has found that individuals who do not sue commonly state that their current injury is the karmic result of their own previous, perhaps unintended, negative acts. Strikingly, injury suits are decreasing in this Thai city, and karmic rationales are being used more frequently with the increase in globalism. See David Engel, “Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand,” Law and Social Inquiry 30, no. 3 (July 2005): 469. 3. For a chart of the social ranking system described here and a fuller discussion of the Tibetan legal system pre-1960, see Rebecca R. French, The Golden Yoke: The Legal Cosmology of Buddhist Tibet (Ithaca, NY: Cornell University Press, 1995), 114. 4. Although we might find it repugnant in the United States today to have specific amounts assigned to occupations and positions of individuals in society, we see a similar disparity in the torts damages allowed to victims based on lost income and in the 9/11 Compensation Fund described later in this essay. 5. Because I was only able to collect information on murders of males, I use this as my example. 6. In Booth v. Maryland, 482 U.S. 496 (1987), the Court denied the murder victim’s family the right to testify due to the necessity for equality of treatment of defendants and victims. In South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207

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(1989), the prosecutor brought up the religious background of the defendant, which was judged a violation of the Eighth Amendment and not relevant to sentencing. In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597 (1991), Justice Rehnquist, writing for the majority, ruled that character statements about the defendant can be balanced by discussions of the victim at sentencing. 7. Lynne N. Henderson, “The Wrongs of Victim’s Rights,” 37 Stan. L. Rev. 937 (1984–85). 8. New York State Division of Criminal Justice Services, 1997 Crime and Justice Annual Report (2000). See section entitled “Crime Victim Compensation Program” (no pagination). 9. According to the table for FY 1999–2000 and 2000–2001, newly available on the Web, the totals went up in the year 1999–2000 to $18 million. The FY figure for 2000–2001 is $21 million. This enormous increase is almost entirely in the area of Medical/Rehabilitation payments, which was $14 million and $17 million, respectively. See New York State Division of Criminal Justice Services, 2000–2001 Crime and Justice Annual Report (2006), available online at http://criminaljustice.state.ny .us. 10. The three best sources on victim compensation as a result of the World Trade Center tragedy are the National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States, Official Government Edition (Washington, DC: U.S. Government Printing Office, 2004); Lloyd S. Dixon and Rachel Kaganoff Stern, Compensation for Losses from the 9/11 Attacks (Santa Monica, CA: Rand, 2004); and Kenneth R. Feinberg et al., Final Report of the Special Master for the September 11th Victim Compensation Fund of 2001 (Washington, DC: U.S. Department of Justice, 2004). The first of these books assesses the actual event in great detail, and the second looks specifically at how the numerous families and victims of this tragic event were compensated by the government, charities, insurance, and the tort system. The third book is the narrative of the special master. I have simplified the information from these reports in this chapter. 11. See Air Transportation Safety and System Stabilization Act, Pub. L. No. 10742, 115 Stat. 230 (codified at 49 U.S.C. § 40101 (2001)). 12. Surprisingly, this is not unlike the first sTong payment of the Tibetans to the employer or landlord for lost work or business opportunity. 13. See Feinberg et al., Final Report, and also Kenneth R. Feinberg, What Is Life Worth? The Unprecedented Effort to Compensate the Victims of 9/11 (New York: PublicAffairs, 2005). 14. “Opinion,” Christian Science Monitor, January 4, 2002, 11. The example in the preceding sentence is also taken from this article. 15. David W. Chen, “Striking Details in Final Report on 9/11 Fund,” New York Times, November 18, 2004, sec. B. 16. See Susan Herman and Michelle Waul, Repairing the Harm: A New Vision

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for Crime Victim Compensation in America (Washington, DC: National Center for Victims of Crime, 2004), 52–59. 17. For an interesting comparison of the Dalkon Shield Claimants Trust with the September 11th Victim Compensation Fund, see George A. Rutherglen, The September 11th Victim Compensation Fund and the Legacy of the Dalkon Shield Claimants Trust, University of Virginia Public Law and Legal Theory Working Paper Series No. 20 (Berkeley: Berkeley Electronic Press, 2005).

Chapter 16

Muslims

Islamic law, or Shari’ah, is drawn from a variety of sources.1 Most important are the Qur’an (the scriptures revealed to the prophet Muhammad a few verses at a time between 610 and 632 CE) and the sunnah (the practices and sayings of Muhammad recorded shortly after his death). Of these two, the Qur’an is controlling, but only 500 verses out of the Qur’an’s 6,239 verses have legal content. From the Qur’an and the sunnah, Islamic jurists have developed extensive lists of norms, using several factors and techniques, including consensus among legal scholars, custom, analogy, the public good, and necessity. The two major Muslim divisions are the Sunni (comprising 90 percent of Muslims in the world) and the Shi’ah. Each has competing schools of legal interpretation: the Shi’ah reject sunnah reported by those outside Muhammad’s family and the use of analogy as a source of law, whereas the Sunni accept broader sources of law. One Muslim said, “I find no guidance in the Qur’an on how Muslims should live as a minority in a society and no guidance in the New Testament on how Christians should live as a majority.”2 Adherents of both religions face challenges as they seek to be faithful to their beliefs in our increasingly smaller world. Modern transportation, communication, and economic systems make regular contact with people of different religious faiths inevitable. The challenges are made more urgent by the fact that there is now increasingly easier access to increasingly dangerous weapons. We must find means to live with our deepest differences. In this final essay, Anver Emon considers the challenge that Muslims have in trying to apply speech regulations written for the Muslim city-state to the modern world of communication. He considers the controversy over Western cartoons depicting Muhammad and calls on both Islam and Western liberalism to look within their traditions for sources of moderation.

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notes 1. The information in this introduction is drawn from M. Cherif Bassiouni and Gamal M. Badr, “The Shari’ah: Sources, Interpretation, and Rule-Making,” 1 UCLA J. Islamic and Near E. L. 135 (2002), excerpted in Frank S. Ravitch, Law and Religion: A Reader; Cases, Concepts, and Theory (St. Paul, MN: West, 2004), 739–59. 2. Quoted in Philip Yancey, “The Lure of Theocracy,” Christianity Today, July 2006, available online at http://www.christianitytoday.com/ct/2006/007/24.64.html.

Enhancing Democracy, Respecting Religion A Dialogue on Islamic Values and Freedom of Speech Anver M. Emon The first months of 2006 presented the world with an example of how Samuel Huntington’s “clash of civilizations”1 thesis can be used to describe and create an apparent chasm of understanding between communities of meaning, religious or otherwise.2 The world watched as Muslims in various nations protested the publication of cartoons negatively depicting the Prophet Muhammad. Muslims were outraged that a Danish newspaper would insult their Prophet, while liberal advocates were equally outraged that Muslims showed no respect for fundamental liberal values like the freedoms of speech and press. The fundamentalist tenor in their calls to vindicate their respective civilizational beliefs chilled the possibility of both critical reflection and effective dialogue between both sides of the controversy. If the civilizational reductionism had been avoided, both sides might have learned that their fundamental beliefs are shot through with limitations and exceptions that could allow for accommodation. This essay will recount the Danish cartoon controversy and the arguments of both parties. It will also illustrate the kind of dialogue that could occur if reductive civilizational claims of fundamental values are avoided. I will show not only that “civilizational” analyses provide false positives, but also that they preclude the possibility for reasoned and democracy-enhancing

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discourse in a liberal, heterogeneous state. When considering the claims of religious communities in liberal societies, I illustrate how attentiveness to the religious and secular traditions’ respective histories can contribute to a deliberative dialogue of critical self-reflection, mutual respect, and accommodation.

The Danish Cartoon Controversy: The Rhetoric of Fundamentalisms In September 2005, the Danish newspaper Jyllands-Posten published a series of cartoons representing the Prophet Muhammad. For Muslims, Muhammad is the final messenger of God to whom God gave the Qur’an as His revealed word. Historical accounts indicate that Muhammad was born in 570 CE and died in 632 CE, after having established the first Muslim polity in Medina (in current Saudi Arabia) and conquering much of the Arabian peninsula. As a prophet, his character is the model after which Muslims pattern themselves. The Danish cartoons depicting Muhammad are themselves rather uninteresting. Some simply depict a man wearing traditional Arab dress, and others present the Prophet in a satirical context. For example, in one cartoon, the Prophet stands at the gates of heaven halting people from entering, saying “Stop, stop, we ran out of virgins.” In another cartoon, perhaps the most provocative, a bearded, Arab-looking man wears a turban that looks like a bomb, which has the Islamic declaration of faith written on it: “There is no god but Allah and Muhammad is the Messenger of God.”3 The cartoon publication resulted from a competition hosted by the newspaper when editors learned that a children’s book author could not find artists to illustrate the Prophet for his book on Islam as they were concerned about violating the Islamic ban on depicting the Prophet. The paper spearheaded the contest in the spirit of subjecting all communities to the satire that can result from a free press and published the twelve winners.4 The cultural editor of Jyllands-Posten, Flemming Rose, defended his decision as a proactive effort to include Denmark’s Muslim population in the democratic culture of the country: Equal treatment is the democratic way to overcome traditional barriers of blood and soil for newcomers. To me, that means treating immigrants just

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as I would any other Danes. And that’s what I felt I was doing in publishing the 12 cartoons of Muhammad. . . . Those images in no way exceeded the bounds of taste, satire, and humor to which I would subject any other Dane, whether the queen, the head of the church or the prime minister. By treating a Muslim figure the same way I would a Christian or Jewish icon, I was sending an important message: You are not strangers, you are here to stay, and we accept you as an integrated part of our life. And we will satirize you, too. It was an act of inclusion, not exclusion; an act of respect and recognition.5

Despite the stated effort to promote democratic inclusion of minorities, Muslims in Europe and elsewhere saw the newspaper’s action as an attack on their prophet, faith, and community. For three months after the initial publication in September there was little international reaction to the publication. However, Danish Muslim leaders, such as Ahmed Abu-Laban and Ahmed Akkari, sent delegations to the Middle East in December 2005 and January 2006 to raise awareness and outrage by distributing a fortythree-page portfolio of cartoons negatively depicting the Prophet, including the twelve published by Jyllands-Posten. By the end of December, Saudi Arabia had recalled its ambassador to Denmark, and Muslims worldwide started boycotting Danish goods. In the meantime, other European newspapers reprinted the cartoons, which set off rioting from Indonesia to the West Bank, often erupting in violence and damage to European embassies.6 Significantly, editorialists said the conflict reflected the irreconcilable gulf between Western liberal freedoms (i.e., speech and press) and Muslim religious (or rather fundamentalist) demands against blaspheming Muhammad. For instance, Daniel Pipes wrote, “Will the West stand up for its customs and mores, including freedom of speech, or will Muslims impose their way of life on the West? Ultimately, there is no compromise; Westerners will either retain their civilization, including the right to insult and blaspheme, or not.”7 The conservative commentator Ann Coulter implicitly used the metaphor of civilization (and one of its antonyms, savagery), to criticize the Bush administration’s response to the Danish cartoon controversy as well as its plan to turn over management of U.S. ports to an Arab corporation: “Isn’t it enough that we’re already patronizing the savages over the cartoons? Do we have to let them operate our ports, too?”8 Commentators assumed a strict unbridgeable dichotomy expressed in terms of a “clash of civilizations” or a conflict between fundamental values.

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These values were considered so deep-seated and even sacred to each civilization that no compromise or accommodation was imaginable.9 In other words, each side adopted a fundamentalist position, whether secular or Islamic.10 The problem, though, is that by reducing the conflict to a conflict of civilizations or fundamentalist values, neither side was able to consider how their own values and commitments are saddled with limitations, exceptions, and nuances. The civilizational mode of analysis is so completely essentializing and reductive that it both provides little guidance about how group members construct their identity and prevents effective dialogue within the framework of a democratic, pluralist society.11 What does it mean to be part of a “civilization,” and how is it different from being part of any other? For example, although Muslims are a minority in India, their population statistics rival the Muslim population of relatively homogeneous Muslim countries like Egypt.12 Is India part of the Islamic civilization, despite its Hindu majority?13 Is Malaysia, located in Asia and with a majority Muslim population, part of Huntington’s Asian civilization or Islamic? Perhaps the idea of an “Islamic civilization” centers on those regions most often associated with Islam, namely the Arab world. But as Richard Bulliet has argued, some of the most creative aspects of Islamic history, culture, and tradition arose outside the Arab world.14 To associate Islam with the Arab experience artificially narrows one’s understanding of Islam. In the Danish cartoon controversy, each party held its values to be central to its civilizational identity. The values were given an objective, determinate, and unassailable quality, which allowed proponents on both sides to deny the possibility of accommodating the values of the other. Consequently, when Pipes and Coulter espoused the values of a free press in Western societies, they used a similar fundamentalist paradigm as the Muslims who espoused the principle of honoring the Prophet. To view this controversy as a competition between irreconcilable fundamentalisms of competing civilizations, though, is to ignore that each “fundamental” value is embedded within a historical, social, and institutional context that gives the value meaning in light of other competing values in a given case. Whether one looks to speech and press regulations in liberal societies or to the Islamic legal doctrine on insulting the Prophet, the contours of both legal traditions illustrate that the polarities of the Danish cartoon controversy had little to do with understanding the rights at play but, rather, with an inability to find a mode of dialogue between a religious tradition like Islam and secular liberal traditions in Europe and elsewhere.

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Art, Insult, and Islamic Law The Muslim response against the Danish cartoons invoked Islamic prohibitions against both creating images of the Prophet and insulting him, as if such prohibitions were absolute and unflinching. But the response ignored the rules’ historical context, an examination of which illuminates the boundaries of the law and its limits on the application of these rules. Under Islamic law one is not permitted to create images of objects of any sort. This prohibition is based on Prophetic traditions (hadith) that condemn those who create images (taswir) or have statues (suwar) in their home. These traditions are an important source of legal norms within Islamic law, second only to the Qur’an. Since the Qur’an has so few verses that might be considered legal, Muslim jurists often resorted to Prophetic traditions for an authoritative source by which to derive legal rules. Although both early Muslim jurists and contemporary scholars question the authenticity of these traditions, they remain significant for Muslims the world over for modeling their behavior after the Prophet’s life.15 In one tradition, Muhammad’s wife ‘A’isha (d. 678) recounts how he entered her room and saw images stitched onto a blanket. His face reddened, after which he shredded the blanket and said, “The most tormented people on the final day are those who created these images [on the blanket] (al-musawwirun).”16 Ibn Hajar al-‘Asqalani (d. 1449), who was highly respected for his expertise in hadith analysis, remarked that this tradition chastises those who intentionally create images to worship something other than God. Furthermore, even without this intent, one would still commit a sin by creating these images.17 This tradition seems to reflect an early concern with pagan practices in Mecca before Muhammad’s rise as the Prophet of Islam.18 The idea that creating images would be prohibited seems to evince a theological concern that one might use such images as icons or idols of worship.19 This was especially the case with depictions of the Prophet himself. To counter any iconic movements within the Islamic tradition, Muslim jurists took a staunch iconoclastic position, banning depictions of the Prophet lest they be substituted for the worship of God. Despite this doctrinal position, Islamic art history is replete with examples of miniature paintings depicting people, animals, landscapes, and even the Prophet himself.20 In some instances, the Prophet is depicted with his face covered by a white towel, but in others he is fully illustrated, including his face.21

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But the Muslim outrage against the cartoons was also, and most significantly, premised on proscriptions against insulting the Prophet. Under the historical rules of Shari‘a, a Muslim who insults the Prophet may be suspected of apostasy. If he repents and returns to the faith, many jurists held that he suffers no harm. But if he is obstinate, he becomes an apostate and is executed.22 If a non-Muslim insults the Prophet, the consequences will depend, in part, on whether he is a resident of the Islamic polity. If the non-Muslim is not a resident of the Muslim polity, there is no application of Islamic law. Muslim jurists did not consider Islamic law to be applicable to non-Muslims outside the realm of Muslim sovereignty and legal enforcement. However, if the non-Muslim resides in the Muslim polity under a permanent contract of protection (‘aqd al-dhimma), the consequences for insulting the Prophet will depend on the terms of the agreement and the legal doctrine enforced by the Muslim ruling authorities.23 These nonMuslims, called dhimmis in the legal tradition, reside permanently in Islamic lands in exchange for a tax known as the jizya. By paying the jizya, non-Muslims can retain their faith while living in Muslim lands peacefully. The ‘aqd al-dhimma is a social contract that renders the dhimmis liable under the Islamic rule-of-law system and that holds Muslims responsible for protecting dhimmis’ lives and property. To understand the scope of this contract, Muslim jurists of different doctrinal schools24 wrote about how a dhimmi might breach the contract and thereby lose the protection it bestows upon him. Some jurists, including the famous Shafi‘i jurist Abu Hamid al-Ghazali (d. 1111), argued that whether the contract was materially breached depended on how harmful a dhimmi’s act might be to Muslim society. For instance, if the dhimmi publicly displays wine, he poses no significant harm to Muslim society; the contract remains intact and the state can impose a discretionary punishment on the dhimmi. But if a dhimmi’s action poses a serious harm to Muslim society, such as refusing to pay his jizya or rejecting the rule of law, the contract is breached and the dhimmi no longer enjoys its protection.25 An earlier Shafi‘i jurist, al-Muzani (d. 878), held that the contract is void if the dhimmi unnecessarily mentions the Qur’an or the Prophet, fornicates with a Muslim woman, aids Muslim enemies, or engages in banditry. Once the contract is void, according to al-Muzani, the dhimmi becomes an enemy of the state and can be killed without consequence.26 Hanafi jurists argued, contrary to the Shafi‘is, that the contract of protection is not so easily breached. For example, Badr al-Din al-‘Ayni (d.

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1451) held that the contract of protection becomes void only if the dhimmi leaves the Muslim polity, conquers an area formerly under Muslim dominion, or generally fights against the Muslims. But even if a dhimmi fails to pay his annual jizya, al-‘Ayni argued that he is not in breach.27 Arguably, failure to pay the tax might provide the state with a cause of action against the dhimmi, but it does not void the contract. The state can implement other punitive mechanisms to encourage compliance with the contract’s provisions. These two positions on the ‘aqd al-dhimma illustrate an underlying tension in Islamic legal doctrine not just about minority rights but also fundamentally about the values of Muslim society and the kinds of behavior that substantially contravene those values. This tension about Muslim values and the ‘aqd al-dhimma is significant because it framed the juristic debate about the consequences arising when a non-Muslim insults the Prophet. Among jurists of the Sunni and Shi‘i schools, there is no unanimous “Islamic” view on the treatment of a dhimmi who insults the Prophet. Shafi‘i and Ja‘fari jurists, for instance, argued that if a dhimmi insults the Prophet, he voids his contract, becomes an enemy of the state, and can be executed.28 Hanafi jurists, however, argued that in such cases, the contract is not vitiated; it remains in force until the dhimmi leaves the Muslim polity or fights against the Muslim state.29 The debate on insulting the Prophet fell within the larger question of legally defining, via contract, the boundaries of the non-Muslim’s obligations and commitments when residing permanently in the Muslim polity. The contract was embedded within broader sociopolitical discussion about how one defines Muslim social values and the extent to which the law can impose those values on all who live within the polity. Much like the debate in the United States on the flag-burning amendment, the legal debate on the ‘aqd al-dhimma reflects wide-ranging questions about its political function in both defining social values and imposing them on those who choose to reside within the Muslim polity. Significantly though, the doctrine on insulting the Prophet concerned the treatment of those living within the Muslim polity. But the application of Islamic law on non-Muslims generally stops at the borders of Muslim political sovereignty. Consequently, for modern Muslims to invoke Islamic legal precedent to justify their outrage against the Danish cartoons extends the legal tradition unduly. It ignores the political significance of the issue for designing a Muslim polity and ignores how the tradition is inapplicable to the Danish context since the cartoonists and editor are not Muslim,

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do not reside permanently in a Muslim sovereign state, and enjoy no contract of protection within a Muslim sovereign state. The fact that the Danish cartoons were publicized throughout the world using modern technology does not change the fact that the insult occurred outside the realm of Muslim sovereignty, and the reach of any Shari‘a system, assuming one can meaningfully speak of such a system today with the advent of modern nation-states in the Muslim world.30

Free Speech as an Instrument of Robust Democratic Deliberation The idea that the rights of free speech and press are fundamental values in secular liberal societies says little about the extent to which one can exercise these rights. Certainly constitutions and human-rights treaties embrace free speech and press as fundamental to a vibrant democracy. The U.S. Constitution’s First Amendment guarantees the right of free speech and press, and Canada’s Charter of Rights and Freedoms includes in its list of “Fundamental Freedoms” the freedom of “thought, belief, opinion and expression, including freedom of the press and other media of communication.”31 The European Convention of Human Rights likewise asserts that everyone has the right to the freedom of expression.32 Nevertheless, even these provisions on free speech and press are bounded by limitations in the interest of larger public goals. For instance, Section 1 of Canada’s Charter states, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”33 The European Convention on Human Rights restricts the scope of the freedoms of speech and press: The exercise of these freedoms . . . may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime.34

Likewise, the U.S. Supreme Court has subjected the First Amendment’s protection of the freedoms of speech and press to narrowly tailored limits. In Schenck, the Court allowed a preliminary injunction restricting an abortion protestor’s activities outside an abortion clinic.35 Likewise, in Frisby v.

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Schultz, the Court held that municipal ordinances prohibiting picketing a residence or private dwelling are content neutral under First Amendment scrutiny and thereby permissible.36 And in Cantrell, the Court ruled that a newspaper publisher and its reporter were liable for invasion of privacy for knowingly or recklessly portraying the plaintiff in a false light.37 In other words, whether one looks to U.S. Supreme Court doctrine or the traditions of other secular liberal societies, the presumption that one enjoys a right to free speech or press is couched within a larger context of boundary drawing in light of competing rights and democracy promotion. In his book on the freedom of speech, Owen Fiss adopts a structural paradigm to illuminate the role of rights generally as a mediating device between the individual and government in society. He challenges the libertarian view of rights as “moral side constraints” against a powerful and threatening state.38 This understanding of rights relies on a dichotomy between the atomist individual and the overreaching and potentially oppressive government. Fiss disagrees that rights need to be theoretically understood solely as a check against the government. Rather, he suggests that rights are embedded within a democratic institution empowering the government to promote “popular sovereignty.” The law generally, and rights specifically, are mechanisms by which a government enables “common citizens to become aware of the issues before them and of the arguments on all sides and thus to pursue their ends fully and freely.”39 In other words, the right to free speech is embedded within a democratic theory that ensures all have an equal opportunity to speak in order to secure a robust democratic process of debate and deliberation. Free speech and equality, therefore, are two goods that the government is required to uphold, even in instances when they may counter each other. As Fiss argues, to ensure equality and free speech in light of a democratic theory of speech, the government “may even have to silence the voices of some in order to hear the voices of the others”40 —hence the irony of free speech. Government regulation can promote free speech through its allocative role, by which it can assure that those most often silent can and will have the opportunity to speak and thereby contribute to the level of democratic deliberation at all levels of social and political participation. In this allocative sense, the government limits or promotes speech not on the basis of its content but, rather, in light of what Fiss calls its “parliamentary role,” whereby the government ensures “the robustness of public debate.”41 To

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see the government only as a threat to individual freedoms is to ignore the role it can play in balancing uneven distributions of power and resources to ensure a level and equal playing field for those often silenced by the powerful. This is not to suggest that the government must support through its resources all who wish to speak. Rather, to view the freedom of speech as embedded within a democratic theory of speech suggests that the right to freedom of speech is not the same as the right for a specific person to speak freely. As Fiss suggests, “freedom of speech” need not be limited to an atomistic understanding of individual autonomy. Instead it “implies an organized and structured understanding of freedom”42 by which a government ensures robust democratic debate in societies, like the United States, that are marked by unequal distributions of power and resources. Absolutist claims of free speech not only ignore the nuances of freespeech doctrines allowing limited restraints, but also presume an atomistic view of rights that disregards their role in empowering governments to allocate resources in ways that enhance the structural robustness of participatory deliberation. The fundamentalist position on free speech cuts off the dialogue and deliberation necessary for a democratic process that gives voice to those minority communities that are otherwise challenged by distributional inequities and limited political capital.

Dialogic Standards and Democratic Participation The foregoing analysis suggests that the Danish cartoon controversy was not strictly about legal doctrine or rights per se but, rather, was centered on political concerns about individual, communal, and national identity in a multicultural liberal society. Certainly Jyllands-Posten had the right to publish the cartoons under Western legal standards. The decision to do so reflected the exercise of editorial discretion, whether in good faith or otherwise.43 But the point of this essay is to suggest that the use of editorial discretion arises in a sociopolitical context enmeshed within a democratic liberal order. The question is not whether Jyllands-Posten could have published the cartoons; rather, the question is whether they should have done so given the context and climate in its society. To frame its act as a vindication of free-press rights is unhelpful since the right is neither absolute nor unqualified by exceptions that uphold principles of democracy. Furthermore, the rights talk masks the editors’ use of their media power to make a

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political statement against a community with limited political capital and subjected to xenophobic rhetoric. Likewise Muslims’ implicit reliance on Shari‘a punishments for slandering the Prophet to justify their rage and violent response is misplaced given the historical limits on applying those rules and the fact that there is no institution to enforce them in the first place. Furthermore, their resort to Shari‘a allowed them to avoid addressing how they can, should, or must reconcile their identity as both Muslim and Danish residents. The resort to legal terminology only masked the underlying political conflicts about multiculturalism in liberal polities, the place of recent immigrant communities in Europe, the challenges they pose to traditional understandings of European identity, and the way resource allocations might be rearranged to ensure greater participation by minority groups.44 This conflict suggests that if Denmark wishes to avoid future conflicts like the cartoon controversy, it may need to redistribute resources to enhance minority participation to further its commitments to freedom of speech and press, such as government-sponsored broadcasting for minority groups or government grants for community newspapers, for instance. This critical review of both fundamentalist positions raises a core question about the dynamics of accommodation in a pluralist liberal democracy. Suzanne Stone, for instance, argues for a dialogic model between faith communities and the secular state.45 Ayelet Shachar offers multiple models by which competing interest groups in a multicultural state can arrive at a mutually beneficial accommodation of one another’s interests and values.46 These authors argue for models of multiculturalism that consider accommodation to be a joint project, whereby majority and minority groups seek mutual accommodation to ensure the equal participation and belonging of all members in a democratic society. The point is that to live together in a democratic society, both groups must commit to the goods of belonging, inclusion, cooperation, and equality among members of the polity. The resort to absolutist rights talk, like the resort to unflinching religious values, precludes effective democratic dialogue across value systems and ideological systems. But to expand on Fiss’s structural argument, liberal freedoms and religious values in a liberal pluralist society can be viewed both as ends that benefit individuals and as instruments embedded within the government’s structural, parliamentary role of fostering robust democratic participation and popular sovereignty. Religious communities, with specific sensitivities, should be allowed to assert their values within the democratic process

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without penalty or condemnation. But these same religious communities must also embrace the fact that they reside in a pluralist liberal polity structured around democratic modes of participation and governance. Their decision to reside there imposes on them the responsibility to have reasonable expectations that respect both their religious traditions and their commitments to their political community—expectations that ideally are defined not by one value system or another but through democratic deliberation of all members of the polity. Neither side can posit its values absolutely; rather, in the interests of democratic inclusion, both positions constitute moral claims but not moral truths. As moral claims, they are neither right nor wrong as against each other but instead are subjected to critical review for the purpose of enhancing democratic deliberation and representation. In the Danish cartoon case, the media certainly had the right to publish, and Muslims had the right to be outraged. But rights talk is unhelpful here. Rather, this controversy involved political and distributive questions about inclusion, xenophobia, and resource allocations by the liberal state. Governments in these cases need not clamp down on the media; rather, they can enhance participation by providing opportunities for minority communities to add their voices in a democracy-enhancing manner.

Conclusion I have illustrated in this essay what can constitute an effective dialogue in the case of the Danish cartoons. Both claims of value are subjected to the historical tradition of which they are a part. In doing so, the value becomes saddled with the inevitable qualifications that arise when applied to a specific situation. The idea that both liberal and religious values can be subjected to this type of reasoned critical scrutiny is not outside the bounds of each tradition’s history. Every First Amendment case arises in the context of a tradition of precedents that provide the substantive framework for the Court’s analysis. Religious traditions like Islamic law are similarly structured, as illustrated earlier. Certainly one might argue that religious faith is something that cannot be viewed through the rational lenses of historicism, legal theory, or political philosophy. But this position ignores the fact that religious legal traditions like Islamic law accommodate rational deliberation. For example, the philosopher and jurist Averroes (d. 1198) famously wrote that both scrip-

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tural analysis and rational argument provide pathways to the same truth. In fact, he argued that if one’s reading of scripture conflicts with one’s purely reasoned analysis, one must revisit his scriptural interpretation to determine the errors in analysis.47 Likewise the tenth-century Isma‘ili Ikhwan al-Safa’ (the Brethren of Purity) emphasized the importance of rationality and critical investigation in pursuit of justice.48 They argued that justice does not result solely from a literal reading of scripture, as if defined by God alone. Rather, they said, “When I hear what God . . . says and consider what is narrated from the Prophet . . . , I investigate using my reason, reflect with my heart, and consider with deliberation.”49 In fact, without investigative and critical vigilance, the Ikhwan al-Safa’ suggested that one’s nature will degenerate into slavish obedience to evil: I know that if I do not accept the bequest of my Lord and the advice of my Prophet, become lazy and abandon deliberative analysis (ijtihad) to oppose my enemies [i.e., Satan] and their enmity, they will conquer and vanquish me, imprison me, own me and use me for their whims, and their dubious inclination to act badly. Those things will become customary for me, intrinsic to me, and second nature. My contemplative self, which is of a noble essence, will become devilish like them.50

Early Muslim intellectuals recognized that commitment to God’s will in ethics and law does not involve an irrational embrace of the unseen on pure faith. Instead, adherence to the will of God demands a vigilant critical analysis of tradition and one’s context in the pursuit of goodness or justice. Certainly one might claim a right to freedom of conscience and reject the notion that one’s belief needs to correlate with rational standards of analysis. On one level, this claim seems intuitively correct. In such a case, one adheres to one’s beliefs and may invoke one’s right to freedom of conscience as a shield against government overreaching and coercion. But the question arising from the Danish cartoon controversy concerns the extent to which one can invoke one’s right to freedom of belief (or right to free speech and press) to expect and demand to be accommodated in ways that require certain government redistributions. In this case, one is not making a purely atomistic claim to protect one’s liberty interests. Rather, in such a situation one uses one’s right as a sword to make a claim on the distributive tools at the state’s disposal for accommodation, inclusion, and respect. But I argue that majority and minority groups, secular communities and

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religious ones, must critically reflect on their values, traditions, and sociopolitical contexts while dialoguing with others to ensure that all can contribute equally and fairly to the democratic process of determining policies of inclusion, distribution, and governance across all sectors of society. A critical evaluation of both Western and Islamic legal traditions suggests that the Muslim reaction to the cartoons and the liberal response against the Muslim outcry were unreasonable in light of the traditions and contexts that give their respective truths meaning and real-world significance. I am not suggesting that Muslims and free-press advocates were unreasonable to be outraged. Rather, I argue that their expectations of their entitlements based on that outrage were unreasonable. For instance, Muslim protesters in Britain held placards stating, “Freedom of speech, go to hell” and “behead the one who insults the prophet.”51 On the other hand, right-wing newspapers in Italy denied that the subsequent cartoon publication by European newspapers was intended as a challenge or provocation against Muslims; they claimed that it was intended as a defense of free speech. French interior minister Nicholas Sarkozy said that he preferred an “excess of caricature to an excess of censure.”52 These European positions, however, reflect expectations that seem unreasonable and naive given the situation of multicultural communities in Western states that have been subjected to racist and xenophobic discourses in the near and distant past. To determine whether both positions allow for mutual accommodation requires subjecting both to rational scrutiny. That scrutiny may involve reviewing free-speech doctrines in liberal societies that limit the right of freedom of speech or reviewing Islamic legal rules that limit the scope of punishment for insulting the Prophet. Furthermore, both values need to be assessed in light of the sociopolitical context to which they are applied. In both cases, a general principle is understood in light of its own interpretive tradition that not only gives it substantive content but also limits its scope of application. Recognition that the principles are neither absolute nor mutually exclusive might give rise to the possibility of a dialogue and the potential for mutual accommodation in the spirit of greater democratic representation and inclusiveness. notes 1. The phrase “clash of civilizations” was first coined by the Orientalist scholar Bernard Lewis. See Kazem Alamdari, “Terrorism Cuts across the East and the West,” Third World Quarterly 24, no. 1 (2003): 177–86, n. 1 (stating that Lewis first

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used the phrase in his article “The Roots of Muslim Rage,” Atlantic Monthly, September 1990). However, one can find this phrase in his earlier article “Islamic Revival in Turkey,” International Affairs 28, no. 1 (January 1952): 38–48, 48. Subsequently it was made famous by Samuel Huntington in Foreign Affairs and thereafter in his book. Samuel P. Huntington, “The Clash of Civilizations?” Foreign Affairs 72, no. 3 (1993); idem, The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996). 2. I want to thank Joseph Carens, Mohammad Fadel, Robert Gibbs, Edward Morgan, David Nozick, Wayne Sumner, Lorraine Weinrib, and Melissa Williams for inspiring my thinking on this issue, although I suspect they will not agree with all the points raised in this essay. Sooin Kim, Information Services Librarian at the Bora Laskin Law Library, provided much-appreciated research assistance, and Amy Smeltzer assisted in editing the text. 3. The cartoons are variously hosted on the Internet. For one site, see http:// www.brusselsjournal.com/node/698. 4. Peter Goodspeed, “‘Clash of Civilizations’ Orchestrated,” National Post, February 9, 2006, A16. 5. Flemming Rose, “Why I Published the Muhammad Cartoons,” New York Times, May 31, 2006. Notably, Jyllands-Posten refused to publish unsolicited cartoons satirizing Jesus out of concern for Denmark’s Christian population. Gwladys Fouché, “Danish Paper Rejected Jesus Cartoons,” Guardian, February 6, 2006, available at http://media.guardian.co.uk/presspublishing/story/0,,1708921,00.html. 6. For a timeline of events, see Goodspeed, “Clash of Civilizations” at A16; Anthony Shadid and Kevin Sullivan, “Anatomy of the Cartoon Protest Movement,” Washington Post, February 16, 2006, A1. 7. Daniel Pipes, “We Are All Danes Now,” Jerusalem Post, February 8, 2006, 14. 8. Ann Coulter, “Excuse Me, Mr. President,” Pittsburg Tribune Review, February 26, 2006, available at http://www.pittsburglive.com/x/pittsburgtrib/opinion/ columnists/guests/s_427345.html (emphasis added). 9. Karen Armstrong, “We Can Defuse This Tension between Competing Conceptions of the Sacred,” Guardian, March 11, 2006, 30. 10. John Esposito, “Common Ground: Muslims and the West,” UPI, March 8, 2006. 11. For reviews of Huntington’s book, see Stephen Shulman, review of The Clash of Civilizations and the Remaking of the World Order, Journal of Politics 60, no. 1 (1998): 304–6; Walter A. McDougal, review of The Clash of Civilizations, Journal of Modern History 70, no. 2 (1998): 436–38. 12. According to the 2001 Indian census data, India’s population has reached over one billion, with Muslims accounting for 13.43 percent of the population, or slightly under 140 million persons. In contrast, according to the CIA Fact Book, Egypt’s estimated population as of June 2006 was 78,887,007, of which 90 percent are Muslim, or just under 71 million.

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13. Huntington’s taxonomy of civilizations distinguishes between Islamic and Hindu. See McDougal, review of The Clash of Civilizations at 436–38. 14. Richard Bulliet, Islam: The View from the Edge (New York: Columbia University Press, 1994). 15. For a discussion on the Qur’an and hadith as sources in Islamic legal analysis, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3d ed. (Cambridge, UK: Islamic Texts Society, 2003), esp. 16–116; N. J. Coulson, A History of Islamic Law (1964; repr., Edinburgh: Edinburgh University Press, 1997), esp. 9– 74. 16. Ibn Hajar al-‘Asqalani, Fath al-Bari bi Sharh Sahih al-Bukhari, ed. Muhammad Fawwad ‘Abd al-Baqi and Muhibb al-Din al-Khatib (Beirut: Dar al-Ma‘rifa, n.d.), 10:382–84, 517. 17. Al-‘Asqalani, Fath al-Bari, 10:383. 18. Ira M. Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 1991), 11–20. 19. G. R. D. King argues that while Islamic law condemned iconic representations, it generally did not affect Christians, except in banning the public display of crosses. G. R. D. King, “Islam, Iconoclasm, and the Declaration of Doctrine,” Bulletin of the School of Oriental and African Studies 48, no. 2 (1985): 267–77. 20. For examples of miniatures, see Seyyed Hossein Nasr, Islamic Art and Spirituality (Albany: State University of New York Press, 1987), 177–84; Pratapaditya Pal, ed., Islamic Art: The Nasli M. Heeramaneck Collection (Los Angeles: LACMA, 1973), 99–148; Susan Stronge, Painting for the Mughal Emperor (London: V&A Publications, 2002). The Turkish author Orhan Pamuk has written a historical novel about miniaturist painters in the Ottoman Empire. Orhan Pamuk, My Name Is Red, trans. Erdag Gokner (New York: Vintage Books, 2002). 21. Titus Burkhardt, Art of Islam: Language and Meaning (London: World Islam Festival Trust, 1976), 33. For an example of a full depiction of the Prophet, see the online collection of Bibliothèque Nationale de France (MSS Arabe 1489, fol. 5v): http://expositions.bnf.fr/livrarab/grands/0_01.htm. 22. See al-Mawardi, al-Hawi al-Kabir, ed. ‘Ali Muhammad Mu‘awwad and ‘Adil Ahmad ‘Abd al-Mawjud (Beirut: Dar al-Kutub al-‘Ilmiyya, 1994), 13:149–60; W. Heffening, “murtadd,” in Encyclopaedia of Islam, 2d ed. (Leiden: Brill, 1966–), 7:635; Mahmoud Ayoub, “Religious Freedom and the Law of Apostasy in Islam,” Islamochristiana 20 (1994): 75–91 (relating the historical legal tradition on apostasy in Islamic law and critiquing its foundations). 23. Non-Muslims might also reside temporarily in Muslim lands under a pledge of security (aman). To discuss the legal doctrine pertaining to both groups would exceed the scope of this chapter. Furthermore, the focus on non-Muslim permanent residents is significant because of the issues of identity and inclusion that arise, as opposed to the case of temporary visitors to Muslim lands. 24. At one time, numerous doctrinal schools existed, but they have since been

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reduced to four Sunni schools (Hanafi, Shafi‘i, Maliki, and Hanbali) and three Shi’ite schools (Ja‘fari, Isma‘ili, and Zaydi). Each school has its own doctrines on issues ranging from religious ritual to contract and tort law. See generally George Makdisi, The Rise of Colleges (Edinburgh: Edinburgh University Press, 1981); Christopher Melchert, The Formation of the Sunni Schools of Law, 9th–10th Centuries CE (Leiden: Brill, 1997); Hossein Modarressi Tabataba’i, An Introduction to Shi‘i Law (London: Ithaca Press, 1984). 25. Abu Hamid al-Ghazali, al-Wasit, ed. Abu ‘Amru al-Husayni (Beirut: Dar alKutub al-‘Ilmiyya, 2001), 4:208–9; al-Shirazi, al-Muhadhdhab, ed. Zakariyya ‘Amirat (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 3:318. See also al-Nawawi, Rawdat alTalibin, 3d ed. (Beirut: al-Maktab al-Islami, 1991), 10:328, who relates the debate about whether the contract is void or whether it remains intact while subjecting the dhimmi to state sanction. 26. Al-Muzani, Mukhtasar al-Muzani, in al-Shafi‘i, Kitab al-Umm (Beirut: Dar al-Fikr, 1990), 5:385. 27. Badr al-Din al-‘Ayni, al-Binaya, ed. Ayman Sha‘ban (Beirut: Dar al-Kutub al-‘Ilmiyya, 2000), 7:260. See also al-Kasani, Bada’i‘ al-Sana’i‘, ed. ‘Ali Muhammad Mu‘awwad and ‘Adil Ahmad ‘Abd al-Mawjud (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 9:447. 28. Al-Mawardi, al-Hawi al-Kabir, 14:316; al-Muzani, Mukhtasar al-Muzani, 5:385; al-Muhaqqiq al-Hilli, Shara’i‘ al-Islam, ed. Sadiq al-Shirazi (Beirut: Markaz al-Rasul al-A’zam, 1998), 1:260–1. 29. Al-Marghinani, al-Hidaya, ed. Muhammad Darwish (Beirut: Dar al-Arqam, n.d.), 1:456; Badr al-Din al-‘Ayni, al-Binaya, 7:260; al-Kasani, Bada’i‘ alSana’i‘, 9:447. 30. Wael Hallaq, “Can the Sharia Be Restored?” in Islamic Law and the Challenges of Modernity, ed. Yvonne Yazbeck Haddad and Barbara Freyer Stowasser (Oxford, UK: Altamira Press, 2005), 21–53. 31. Canadian Charter of Rights and Freedoms, § 2(b). 32. European Convention on Human Rights, art. 10(1). 33. Charter, § 1 (emphasis added). 34. European Convention on Human Rights, art. 10(2). 35. 117 S.Ct. 885 (1997). 36. 487 U.S. 474 (1988). 37. 419 U.S. 245 (1974). 38. Owen M. Fiss, The Irony of Free Speech (Cambridge, MA: Harvard University Press, 1998). For a libertarian view of rights as side constraints against an overreaching state, see Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), esp. 26–53. 39. Fiss, Irony at 2, 3. 40. Ibid. at 4. 41. Ibid. at 22.

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42. Ibid. at 19. 43. Jyllands-Posten, a national newspaper in Denmark, caters to the values of right-wing liberals. The right-wing political parties in Denmark have been critical of the immigrant communities in the country and, when in political opposition, have criticized the left-wing government for social ills they attribute to visible minority immigrant communities. Rikke Andreassen, “The Mass Media’s Construction of Gender, Race, Sexuality and Nationality: An Analysis of the Danish News Media’s Communication about Visible Minorities from 1971–2004” (Ph.D. diss., University of Toronto, 2005), 15, 16, 118–19. Also, as noted earlier, the newspaper refused to publish cartoons satirically portraying Jesus out of concern for its readers’ sentiments. Fouché, “Danish Paper Rejected Jesus Cartoons.” 44. Recent studies on the Muslim minority in Europe raise fears about the transformation of Europe into “Eurabia.” See for example Bat Ye’or, Eurabia (Madison, WI: Fairleigh Dickinson University Press, 2005); Economist 379, no. 8483 (2006): 11, 29–34, 99–100. 45. Suzanne Last Stone, “The Intervention of American Law in Jewish Divorce: A Pluralist Analysis,” Israel Law Review 34 (Summer 2000): 170–210, 190. 46. Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001). 47. Abu’l Walid Muhammad b. Rushd, “The Definitive Statement,” in Two Andalusian Philosophers, trans. Jim Colville (London: Kegan Paul Arabia Library, 1999), 76–110, 82. 48. Ikhwan al-Safa’, Rasa’il Ikhwan al-Safa’ (Beirut: Dar Sadir), 1:364–70. 49. Ibid. at 1:364–65. 50. Ibid. at 1:366–67. 51. Michael McDonoghue and Mark Oliver, “British Muslims Protest over Cartoon,” Guardian Unlimited, February 3, 2006, available at http://www.guardian.co .uk/cartoonprotests/story/0,,1703518,00.html. 52. Ibid.

Contributors

Ellen P. Aprill holds the John E. Anderson Chair at Loyola University School of Law, Los Angeles, and serves as Associate Dean for Academic Programs. She previously served as law clerk to Supreme Court Justice Byron R. White. She is a past president of Temple Israel of Hollywood and a member of the Executive Committee of the Pacific Southwest Region of the Union for Reform Judaism. Anthony V. Baker is Professor of Law at the Norman Adrian Wiggins School of Law, Campbell University. He is completing work on a book with the working title A Severe Jurisprudence: The Law, the Press, the Supreme Court, and the Making of the Civil War (University of Michigan Press) in which he reviews the jurisprudential underpinnings of the American Civil War. Thomas G. Bost is Professor of Law at Pepperdine University School of Law. He graduated first in his class at Vanderbilt University Law School and practiced law for thirty years with Latham and Watkins before entering teaching. His scholarship focuses on legal ethics and the Restoration Movement. He has taught at two Church of Christ universities. Patrick McKinley Brennan is the John F. Scarpa Chair in Catholic Legal Studies and Professor of Law at Villanova University School of Law. The author of more than thirty articles and book chapters, he is also coauthor of By Nature Equal (Princeton University Press) and the editor of After Authority (forthcoming from Rowman and Littlefield) and The Vocation of the Child (forthcoming). David S. Caudill is Arthur M. Goldberg Family Chair and Professor of Law at Villanova University. Professor Caudill’s publications include No Magic Wand: The Idealization of Science in Law (Rowman and Littlefield; with L. H. LaRue); Lacan and the Subject of Law: Toward a Psychoanalytic Critical Legal Theory (Humanities Press); and Law, Belief, and 291

292 Contributors

Criticism (Free University Press, Amsterdam), among other books and articles. Kisor K. Chakrabarti practiced law in India. He is the former Forrest S. and Jean B. Williams Professor, Ferrum College, and also taught at the University of Calcutta, the Australian National University, the University of California at Berkeley, the Indian Institute of Advanced Study, and the Institute of Advanced Study, Princeton. He is the author of sixty-two research papers and five books including Definition and Induction (University of Hawaii Press) and Classical Indian Philosophy of Mind (State University of New York Press). Robert F. Cochran, Jr., is the Louis D. Brandeis Professor and Director of the Institute on Law, Religion, and Ethics at Pepperdine University School of Law. He is the author of over thirty-five articles and six books, including Christian Perspectives on Legal Thought (Yale University Press; with Michael McConnell and Angela Carmella) and Lawyers, Clients, and Moral Responsibility (West; with Thomas L. Shaffer). W. Cole Durham, Jr., is the Gates University Professor of Law at Brigham Young University’s J. Reuben Clark Law School and Director of the International Center for Law and Religion Studies. He has served as chair of the Law and Religion Section of the American Association of Law Schools and as a member of several national advisory boards on church/state issues. Anver M. Emon is Assistant Professor, Faculty of Law at the University of Toronto, and is completing a book entitled The Natural Law and Natural Rights Tradition in Islamic Law. He holds a Ph.D. in Islamic legal history from UCLA and is completing a doctorate at Yale Law School on legal philosophy and the treatment of religious minorities under Islamic law. Rebecca R. French is Professor of Law at SUNY-Buffalo and earned her Ph.D. in legal anthropology at Yale. Following four years of field research in Tibet and India, she prepared the first study of the Dalai Lama’s legal system. She is the author of The Golden Yoke: The Legal Cosmology of Buddhist Tibet (Cornell University Press) and several articles on Buddhist law. Timothy L. Hall is the President of Austin Peay State University. He previously served as Associate Provost and Professor of Law at the University

Contributors 293

of Mississippi and is the author of Separating Church and State: Roger Williams and Religious Liberty (University of Illinois Press); Biographical Dictionary of American Religious Leaders (Facts on File, 2003); and Supreme Court Justices: A Biographical Dictionary (Facts on File, 2001). José Roberto Juárez, Jr., is Dean at the University of Denver College of Law. He previously served as Professor of Law at St. Mary’s University School of Law and Regional Counsel and Director of the Employment Program of the Mexican American Legal Defense and Education Fund. Samuel J. Levine is Professor of Law at Pepperdine University School of Law and an Orthodox Jewish rabbi. He is the author of over thirty lawreview articles presenting Jewish views of law and legal ethics. Previously he taught at Fordham and St. John’s law schools. Elizabeth Mensch is Professor of Law at SUNY Buffalo. Her publications include The Politics of Virtue: Is Abortion Debatable? (Duke University Press; with Alan Freeman) and many articles and book chapters, including “Christianity and the Roots of Liberalism” in Christian Perspectives on Legal Thought (Yale University Press) and “Law and Religion in Colonial America” in Cambridge History of American Law (Cambridge University Press). Brett G. Scharffs is Professor of Law at the J. Reuben Clark Law School, Brigham Young University. He previously served as chair of the Law and Religion Section of the Association of American Law Schools, and he teaches and writes in the areas of comparative law and religion and philosophy of law. Thomas L. Shaffer is Robert E. and Marion D. Short Professor Emeritus at the University of Notre Dame. His books include On Being a Christian and a Lawyer: Law for the Innocent (BYU Press), American Legal Ethics (M. Bender); Faith and the Professions (State University of New York Press); Lawyers, Clients, and Moral Responsibility (West; with Robert Cochran); and American Lawyers and Their Communities (University of Notre Dame Press; with Mary M. Shaffer). Robert W. Tuttle is Professor of Law and the David R. and Sherry Kirschner Berz Research Professor of Law and Religion at George Washington University Law School. He holds a Ph.D. in religious ethics from the University of Virginia and serves as legal counsel to the Metro Washington, D.C., Synod of the Evangelical Lutheran Church in America. He is

294 Contributors

co-director of legal analysis for the Roundtable on Religion and Social Welfare, which is sponsored by the Pew Charitable Trusts. Michael K. Young is President of the University of Utah and Chairman of the U.S. Commission on International Religious Freedom. He previously served as Dean of the George Washington University Law School, the Director of the Program in International Human Rights and Freedom of Religion at Columbia University, and as law clerk for Chief Justice William H. Rehnquist.

Index

Sources quoted in the text are listed by text page number, even if only identified by name in the end note and not in the text. Abortion, 95, 104–11 Adams, John, 31 Aeterni patris, 177 African-Americans, 116–29; and Churches of Christ, 141–43; and civil rights movement, 116–17; conversion to Christianity, 116, 120– 23; and law, 97, 118–20; and slavery, 118–20 Anabaptists, 64–76, 100; and capital punishment, 66–67; and church discipline, 70–71; and community, 65–70; history of, 74n1; and lawyers, 71–72; and war, 64, 66–67, 72 Aquinas, Thomas, 11 Arnold, Matthew, 79 ‘Asqalani, Ibn Hajar, 277 Augsburg Confession, 49–50 Augustine, 11–29; as bishop, 15; and church and state, 18; and the City of God, 17–18; conversion of, 15; and criminal punishment, 25–27; and grace, 13–14, 17, 22; and judges, 25–28; and justice, 15, 19, 24–25; and legal authority, 14; and love, 23, 25–26; and natural law, 20, 124; and power, 20, 23–24; and pride, 21–22; and the New England Puritans, 11, 27–28; and reason, 16, 20; and Roman thought, 15–18, 23; and sin, 13–14, 16–17; and war, 18 Averroes, 284–85 ‘Ayni, Badr al-Din, 278–79 Bacon, Francis, 133 Baptism, 73, 81 Baptists, 77–88; and African-Americans, 121– 22; and baptism, 81; and individualism, 81, persecution of, 77; and religious toleration, 84–86; and soul liberty, 81 Barnes, Gerald, 205

Barth, Karl, 106 Bellah, Robert, 94 Benedict XVI, 184 Berger, Peter, 80 Bible, The: Genesis 1:27, 225; 25:25, 106 Exodus 8:1, 122; 21:22–24, 105–106; 22:22, 96; 23:9, 200; 23:26, 106 Leviticus 18:22, 225; 19:9–10, 96; 19:18, 227; 19:34, 227; 20:13, 225; 25:8–17, 96 Numbers 35:30, 215 Deuteronomy 6:5, 96; 10:18, 96; 14:3–8, 226; 15:1–5, 96; 17:6, 215; 19:15, 215; 22:5, 226; 24:1–4, 98, 226; 24:19–22, 96; 30:19–20, 107 Job 10:8–12, 104; 31:15, 104 Psalms 22:9–10, 104; 68:5, 96; 71:6, 104; 82:3, 8, 96; 119:73, 104; 138, 96; 139:1–3, 13–14, 104–5; 147, 52 Ecclesiastes 11:5, 104 Isaiah 1:23, 96; 49:1, 5, 104; 61:2, 124; 66:9, 104 Jeremiah 1:5, 104; 7:6, 96; 29:4–8, 67 Leviticus 19:9–10, 96; 19:18, 96; 19:33–37, 200; 19:34, 96–97; 25:8–17, 96 Amos 1:3–2:3, 96; 5:10, 12, 15, 24, 96; 5:24, 126 Nahum 3:1, 5, 19, 96 Matthew 5:44, 129n25; 6:10b, 119; 13:45–46, 123; 18:15–18, 26; 18:17, 70; 19:8–9, 98; 26:52, 84; 26:53, 84; 28:19, 84; 11:21, 84; 11:28, 84; 22:35–40, 96 Mark 12:31, 200 Luke 1:1–4, 93; 4:18, 122–23; 6:35, 129n25; 10:25–37, 96; 14:25ff., 67 John 3:1–21, 93; 8:36, 97; 10:9, 93; 17, 17 Romans 2:15, 99; 2:14–15, 175; 9:4, 106; 12:20, 129n25

295

296 Index Bible, The (continued) I Corinthians 7:20, 52; 7:21, 122 Ephesians 1:5, 106 Colossians 3:22, 122 II Thessalonians 3:15, 25–26 Hebrews 3:2, 206 James 1:27, 96 I Peter 2:9, 123 I John 1:9, 106 Bill for Establishing Religious Liberty, 83 Blamires, Harry, 35 Bloom, Harold, 81 Bodin, Jean, 179 Bonhoeffer, Dietrich, 49, 69 Book of Mormon: 2 Nephi 2:16, 153 Mosiah 29:26–27, 157 Alma 30:7, 11, 155; 42:13, 153 Moroni 10:5, 151 Boyd, Gregory, 101 Boy Scouts of America v. Dale, 230–31 Brooks, David, 92–93 Brueggemann, Walter, 67–68 Buddhism: history of, 254–58; and interdependence, 259–60; and karma, 258–60; nature of legal systems, 257–58; teachings of, 258– 60; Tibetan Buddhist legal system, 256–57, 261–64 California Catholic Conference, 199, 203–4 Calvinism: and the magistrate, 33; and NeoCalvinism, 35–45; and reason, 40–41; and sin, 33; and sphere sovereignty, 34 Caminker, Evan, 190 Campbell, Alexander, 130–33, 135–38, 145n3 Cantrell v. Forest City Publishing Co., 281 Capital punishment, 66–67 Casey, Michael, 143 Catechism of the Catholic Church, 200, 203 Catholicism, 173–208, 239; and “Cafeteria Catholics,” 196, 205–6; and democracy, 173, 185–86; history of, 173; and natural law, 177, 180–81, 184–86; and religious freedom, 173; social thought of, 195, 199–206; and Supreme Court justices, 173 Cedillo, Gilbert, 195–96, 199 Chicago Declaration of Evangelical Social Concern, 95 Churches of Christ, 130–48; and academic freedom, 139–40; apocalyptic vision of, 140–

44; and freedom, 137–40; history of, 130–33; and reason, 133–37 Church of Jesus Christ of Latter-Day Saints, 81, 89, 149–71; Articles of Faith of (see Pearl of Great Price); and creation, 152–53; and democracy, 157–58; Doctrine and Covenants, 29:35, 153; 42:79–93, 155; 82:10, 153; 84:46, 152; 88:13, 152; 101:77–78, 158; 98:5, 157; 98:6, 159; 101:80, 159; 121:36, 154; 121:37, 164; 121:46, 155; 130:18, 151; 130:20–21, 153; 134:1, 154, 157; 134:2, 4, 161; 134:5, 154; 134:6, 157; 134:9, 166; and freedom, 153–56; history of, 161–63; and institutional autonomy, 163–66; and natural law, 155–57; and polygamy, 162– 63; and religious freedom, 161–66; revelation, 150–152; and the U.S. Constitution, 155–61. See also Book of Mormon; Pearl of Great Price Civic virtue and religion, 31, 86 Civil religion, 2–3, 67, 75n6, 100 Clark, J. Reuben, 159–60 Common grace, 41, 42, 51–52 Constitution, United States: and abortion, 108–11; Civil War Amendments, 119, 124, 127n6; establishment clause of, 31, 165; and euthanasia, 242; free exercise clause of, 31, 77, 161–65; and free speech, 280–81; and the Latter-Day Saints, 155–61; and self-incrimination, 219; and separation of powers, 14– 15, 33 Cook, Anthony, 5 Corporation of the Presiding Bishopric v. Amos, 165 Coulter, Ann, 275–76 Cruzan, Nancy, 242 Cucullu, Jill, 144 Daubert v. Merrell Dow Pharmaceuticals, 35, 42–45 Davis v. Beason, 162 Declaration of Independence, 3, 15, 31, 111, 159 Democracy, 3, 94, 157–58, 185–86, 280–84 Deus caritas est, 184 Divorce, 98–99 Dooyeweerd, Herman, 35, 37–42 Dunnavant, Anthony, 142 Dwyer, James, 184 Dylan, Bob, 97 Edwards, Jonathan, 93–94, 121

Index 297 Employment Division v. Smith, 163–64 Enker, Arnold, 220 Ernesti, J. A., 136–37 European Convention on Human Rights, and free speech, 280 Euthanasia, 242–43, 251–52; and the American Medical Association, 243; Dutch statute, 252, 252–53n5; Hindu view of, 243–52; Oregon statute, 243, 251 Evangelicals, 91–115; and African-Americans, 121–22; and “A Christian Nation,” 100–101; definition of, 92–93; and ethics, 93; and freedom, 97–98; growth of churches, 89– 90n1; history of, 93–95; and law, 95–104; and the new birth, 93; and scripture, 93, 95–99; and social action, 94–95 Evangelium vitae, 189 Exsul Familia, the Church’s Magna Charta for Migrants, 202 Familiaris Consortio, 202 Feinberg, Ken, 267 Finnis, John, 175 First Amendment. See Constitution, United States First Great Awakening, 93–94 Fiss, Owen, 281–83 For the Health of the Nation: An Evangelical Call to Civic Responsibility, 95 Foundationalism, 40 Freedom of religion. See Constitution, United States, free exercise clause of Freedom of speech. See Constitution, United States, and free speech Frisby v. Schultz, 280–81 Fundamentalists, 92, 94, 102; liberal and Islamic, 273–76, 282–83 Gaudium et Spes, 68, 76n8, 201 Gay and lesbian rights, 225–36, 237n7 Ghazali, Abu Hamid, 278 Glendon, Mary Ann, 4, 110 Golden Rule, 2, 53–54 Goodridge v. Dept. of Public Health, 183–84 Good Samaritan, 96 Grace, 13–14, 17, 22, 50. See also Common grace Greenawalt, Kent, 3 Groen van Prinsterer, Guillaume, 36–37 Guinness, Os, 101–3

Halacha. See Jewish law Hamilton, Marci, 33 Harrell, David Edwin, 137 Hatch, Nathan O., 94, 116, 121, 149n1 Hauerwas, Stanley, 70, 102 Henderson, Lynne, 264 Henry, Carl, 94–95 Herberg, Will 239 Hillel, 98 Hilli, Muhaqqiq, 279 Hindu authorities: Apararka, 245 Atri, 244–45 Bhagavadgita, 2.47, 249; 3.20, 250; 3.21–3.25, 250 Gautama’s Dharmasastra, 14.11, 244 Mahabharata, Adiparva, 179.20, 244 Manusamhita, V.89, 244 Medhatithi on Manu, VI.32, 244 Parasara, 244 Vajasaneya Samhita 40.3, 244 Vasistha’s Dharmasastra 23.14–16, 244; 23.18, 244 Yama’s Dharmasastra, 20–21, 244 Hinduism, 254; ethics of, 249–50; and karma, 247, 249, 251; and reincarnation, 247–48; and suicide, 243–47, 249–51 Hittenger, Russell, 187–89 Hobbes, Thomas, 118, 127n2, 179 Holmes, Oliver Wendell, 84, 175 Hughes, Richard, 134, 140 Huntington, Samuel, 273 Huxley, Julian, 79 Hyer, Marjorie, 95 Immigration, 195–208, 239; and driver licenses for undocumented immigrants, 198–99, 203–5 India Constitution: art. 48, 241; preamble, 241 Jefferson, Thomas, 15, 77, 80, 82–84 Jesus: and divorce, 98–99; and the law, 98–99 Jewish law, 85–86, 212–14, 224–25; and selfincrimination, 214–20 John Paul II, 107, 189, 203, 205 Jubilee year, 96 Judaism, 209–40; history in America, 209; in this book, 8. See also Orthodox Jews; Reform Judaism Judges, 25–27

298 Index Justice, 2; Augustine on, 15, 19, 24–25; LatterDay Saints and, 153; Maritain on, 186–87, 189–90; Roman, 15, 24 Kant, Immanuel, 249–50 Karma, 247, 249, 251, 258–60, 269n2 Kasani, Abu Bakr, 279 Kevorkian, Jack, 242–43 King, Martin Luther, Jr., 3, 5, 7, 73, 82, 116, 124–26 Kuyper, Abraham, 34–37 Lamm, Norman, 216, 218 Lard, Moses, 134 The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 163 Leff, Arthur, 6 Legal ethics, 54–62; American Bar Association Model Rules of Professional Conduct, 48, 57; client counseling, 56; and the Golden Rule, 60–62; and lawyers as agents, 58–59; and professional roles, 55–56 Leo XIII, 177, 188 Lewis, C. S., 5, 79 Liberation theology, 100 Lieber, Francis, 135–37 Lincoln, Abraham, 3, 94 Lipscomb, David, 142–44 Lock, John, 15, 119, 127n4, 133 Luban, David, 82 Luther, Martin, 48–54; and the Golden Rule, 53–54; and justification by faith, 49–50; and law, 50–51; and the magistrate, 48; and natural law, 20; and reason, 20; and vocation, 51–53, 57–60 Madison, James, 14–15, 82 Maimonides, 214–19 Mainline churches, 8, 33 Marghinani, Abu al-Hasan, 279 Maritain, Jacques, 177–94; background, 177; on natural law, 177, 180–81, 184–86; on sovereignty, 178–91; on the state, 180–84, 187–91 Marsden, George, 4, 92, 139 Mawardi, Abu al-Hasan, 279 McIntyre, Alasdair, 4–5 Messner, Johannes, 180 Miller, Perry, 11 Miranda v. Arizona, 218

Mormons. See Church of Jesus Christ of Latter-Day Saints Moses, 97, 107, 122, 151 Muhammad, 273–74, 277 Murray, John Courtney, 173 Muslims: and the Danish cartoon controversy, 273–79, 284–86; and Islamic law (Shari’ah), 272, 288–89n24; and dhimmis (non-Muslims living in a Muslim state), 278–79; and Muhammad’s insults and images, 277–80 Muzani, Ismail b. Yahya, 278 National Association of Evangelicals, 92, 95 National Council of Churches, 101 Natural law: and Augustine, 20; and Catholics, 175; and civil rights, 124–26; and evangelicals, 99; and the Latter-Day Saints, 155–57; and Luther, 20; and Maritain, 177, 180–81, 184–86; and slavery, 118–20 Niebuhr, H. Richard, 141–42 Noachide law, 211, 217 Northern Ins. Co. of N.Y. v. Chatham County, 176 Novak, Michael, 209 Oaks, Dallin H., 160 O’Connor, Flannery, 81 O’Donovan, Oliver, 97 Olbricht, Thomas, 136 Orthodox Jews: view of scripture, 211–14; and self-incrimination, 214–21 Pacem in Terris, 202 Pearl of Great Price: Moses 1:33, 38, 152; 1:39, 152, 153; 4:3, 153 Articles of Faith: art. 3, 154; art. 5, 154; art. 9, 150–51; art. 11, 166; art. 12, 156–57 Penn, William, 70, 73 Pipes, Daniel, 275–76 Planned Parenthood v. Casey, 108–11 Positive law, 118–19, 125–26, 155–57 Quinlan, Karen Ann, 242 Radbaz (David ben Zimra), 215–17 Raunio, Antti, 53 Rawls, John, 3 Reason: and Aquinas, 20; and Augustine, 16, 20; and Calvin, 40–41; and Islam, 284–85 Reform Judaism, 223–32; Central Conference

Index 299 of American Rabbis (CCAR), 223, 231; Committee on Human Sexuality, 228; and scripture, 224–27; Task Force on Lesbian and Gay Inclusion, 228; Temple Israel of Hollywood, 232–35; Union for Reform Judaism (“Union”), 223, 227–29, 231 Reincarnation, 247–48, 259 Religious dialogue, 3–6, 239, 282–84 Religious persecution, 7, 85; of Baptists, 77; of Latter-Day Saints, 161–63 Restorationist churches. See Churches of Christ Reynolds v. United States, 162 Roe v. Wade, 95, 108–9 Rogers, John, 138 Rommen, Heinrich, 180 Rose, Flemming, 274–75 Sammons, Jack, 96 Sangye, Thubten, 261 Saperstein, David, 225 Sarkozy, Nicholas, 286 Scalia, Antonin, 136 Schaeffer, Francis, 35 Schenck v. United States, 280 Schindler, Alex, 227 Schleitheim Confession, 74n1 Science and religion, 38–45 Scott, Walter, 134 Second Great Awakening, 89, 94, 97, 101, 110, 121, 131 Second Vatican Counsel, 173, 177, 188 Secularism, 3–5, 83, 102, 209 Sefer Ha-Chinuch, 217 Self-incrimination, 214–20 Seminole Tribe of Fla. v. Florida, 176 Shachar, Ayelet, 283 Shaffer, Thomas, 1 Shafi‘i, Muhammad b. Idris, 278 Shammai, 98 Shirazi, Abu Ishaq, 278 Sin: and Augustine, 13–14, 16–17; and Calvin, 33, 48; and Luther, 49–50

Skeel, David, 103 Skillen, James, 103 Smith, Christian, 104 Smith, Joseph, 149–50 Soloveitchik, Joseph B., 212–13 Spong, John Shelby, 80 Stone, Barton W., 130–31, 140–42 Stone, Suzanne, 283 Stott, John R. W., 92–93, 102 Stuart, Moses, 136 Stuntz, William, 103 Talmud, 212–13 Theonomists, 100 Thomas, Frank, 108 Tibetan legal code, 256–57, 261–64 Tikkun olam, 225, 236n4 Tocqueville, Alexis de, 94, 100–101, 104 Torah, 212 Troeltsch, Ernst, 49 Trueblood, Elton, 139 Unitarianism, 80 Universal Declaration of Human Rights, 202 U.S. Catholic Bishops, 200, 203 Victim compensation systems, 256–57; New York State, 264–66; September 11 Fund, 266–68; Tibet, 260, 262–64 Vinaya-Pitaka, 255, 257 Virginia Declaration of Rights, 82 Vocation, 51–53, 57–60, 72 War, 18, 64, 66–67, 72, 141 Watson v. Jones, 163–64 Whitefield, George, 94 Williams, Roger, 70 Williamsburg Charter, 9n13 Willimon, William H., 102 Wilson, James, 176 Yoffie, Eric, 229 Young, Brigham, 159