Judaism and the Foundations of American Law - Part 3

Within two years after the publication of Cahill’s The Gifts of the Jews, Professor Alan Dershowitz of Harvard Law School undertook yet another effort to advance a thesis that clearly had connections to what Max Dimont had initially articulated in his 1962 work. In his book, The Genesis of Justice, Professor Dershowitz presents his arguments for how Judaism, Torah and the narrative accounts in the Book of Genesis, in particular, provide the foundations for modern morality and law.

Rather than delve into the details of the “law books” of the Bible, Dershowitz explains that he chose the Book of Genesis as his focus because, “I believe that the broad narratives of justice and injustice are more enduring than the often narrow, time-bound, and sometimes derivative rules of the Bible.” (19). Later he further elaborates upon his justifications for the scope of his inquiry into the Biblical foundations for justice, when he states:

"The biblical narratives, especially in Genesis, are as fresh, as relevant, as provocative, and as difficult as they were in ancient times. They also provide context and give life to the rules that derive from them. The vignettes, short stories, and novellas that make up the early biblical narratives have few peers in the history of provocative texts on the human condition. As long as human beings ask questions about justice and injustice, they will continue to be interpreted and discussed." (20).

While his analysis stretches from the account of Adam and Eve’s first disobedience through the story of Joseph and his brothers’ acts of apparent injustice toward one another, a single example from Dershowitz will suffice to demonstrate his contribution to the advancement of Dimont’s thesis. In Genesis chapter 18, the story of Abraham’s defense on behalf of the inhabitants of Sodom and Gommorah is told, or as Professor Dershowitz succinctly entitles the account: “Abraham defends the guilty – and loses.”

Although he acknowledges the sin of the majority, Abraham appeals to God to spare the cities for the sake of the innocent, if indeed there are innocent within their gates. Abraham begins his defense on behalf of a hoped-for fifty but successively reduces the number of innocent on whose behalf he makes his plea until he rests his case for sparing the cities upon the existence of only 10 innocent. While proceeding to execute His judgment upon the guilty in the face of Abraham’s appeal, God does make a merciful provision for sparing the innocent within the family of Lot, although that mercy is not fully appropriated.

Dershowitz’s comments upon this account illustrate for us how both notions of substantive and procedural justice are expressed through Abraham’s encounter with God. He states:

"The text is clear as to why God decided to tell Abraham about His intentions in regard to Sodom and Gomorrah: because God had selected Abraham as His messenger to “instruct” his descendants “to keep the way of the Lord in order to do justice and righteousness.” (Genesis 18:19) In other words, God’s encounter was to be a lesson for Abraham in the ways of human justice and righteousness. An omniscient God is, of course, capable of distinguishing the guilty from the innocent. . . Humans, however, cannot simply discern who are guilty and who innocent. We need a process – a legal system – to distinguish the innocent from the guilty. Nor is this a simple task. Inevitably human beings will make mistakes. We will sometimes convict the innocent and acquit the guilty. That is in the nature of any human fact-finding process."

Professor Dershowitz continues:

"In the end, every system of justice must decide which is worse: convicting some innocents or acquitting some guilty. Tyrannical regimes always opt for the former: It is far better that many innocents be convicted than that any guilty be acquitted. Most just regimes tend to opt for the latter: It is far better that some guilty go free than that innocents be wrongly convicted. This is the approach ultimately accepted in [Torah], with its generally rigorous safeguards for those accused of wrongdoing.

"In addition to deciding on this basic preference, every system of justice must also quantify – at least implicitly. The Anglo-American system, for example, has proclaimed [in the oft quoted words of Sir William Blakestone] that “it is better that ten guilty persons escape than one innocent suffer.” That [Professor Dershowitz states] . . . sends an important message: Our preference for not convicting the innocent is a very strong one, but it is not absolute; [the American system] acknowledges that in order to convict large numbers of guilty, we will sometimes have to convict an innocent. We will try our best to prevent such an injustice, but we will not simply acquit everyone in order to avoid it. This is the way a mature and just system operates." (85-87).

Professor Dershowitz then concludes his comments on Genesis 18 with the following description of the application of justice in the face of human realities in which he notes:

"Although it appears from the language of the narrative that Abraham is teaching God a lesson about justice, it may well be that it is really God – the great pedagogue – who is teaching Abraham a lesson about the inherent limitations on human justice, so that Abraham could instruct his descendants to do justice in a mature and balanced fashion – rejecting both extremes of acquitting everyone about whose guilt there is any doubt and convicting everyone against whom there is any suspicion." (87).

Through his commentary on this chapter, as well as each of the other nine narratives addressed in his book, Professor Dershowitz substantially advances support for the thesis that the Jewish idea of justice taught in Torah is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallible state of humans. Thus, Torah teaches mercy in the midst of justice.

ABA Journal Blawg 100

Check out this list of the top 100 law blogs-- blawgs-- chosen by the ABA Journal and its readers. There are some great blogs on this list, but be careful: you might spend the next two weeks just trawling through the gems on this list.

Judaism and the Foundations of American Law - Part 2

Among the scholars to take up the task of cultivating Dimont's thesis was Thomas Cahill. In his popular history, The Gifts of the Jews, (published in 1998) Cahill contends that one of the gifts imparted to human civilization by the Jews was their concept of justice. It was, though, an idea of justice intertwined with mercy. Mercy is essential to the administration of justice in the realm of human experience because Torah not only conceded but also explicitly taught the finite and fallible state of humans.

For example, while lex talionis requires “an eye for and eye and a life for a life,” Torah prohibits the implementation of this principle of punishment upon the evidence of only one witness to an alleged intentional, “treacherous” killing of another human being. Rather, Torah requires the testimony of at least two witnesses. (see Numbers 35:30). One witness is limited in his perspective and may not have seen all the relevant aspects of the alleged murderous act even if he is assumed to be testifying truthfully. On the other hand, one witness could also be making a false claim against the accused. Thus, a minimum of two witnesses were required upon which to issue a capital sentence.

Some argue that lex talionis is not, in the first place, a Jewish concept but was rather a contribution from the ancient Babylonian civilization via the Code of Hammurabi. Even if this point of history is conceded for the sake of argument, Torah’s expression and guidance in the administration of lex talionis demonstrates a substantial tempering of its severity in application albeit not in its formulation.

While lex talionis would appear to be a fundamental expression of a just law, a fuller understanding of the idea of "justice" exhibited in the Torah requires an exploration of the relationship of "justice" and "mercy". Why is it that two of the most notorious murderers in Torah – Cain and Moses – were not punished in accordance with lex talionis? Is it possible that "justice" is not merely tempered by "mercy", but that mercy is itself an essential component, an integral ingredient, a fundamental dimension of justice?

Through my research for this course's development in Fontbonne ’s Dedicated Semester, I have become increasingly convinced that the single most important contribution to the understanding of "justice" that has been made by the Judaic tradition is the role of "mercy" in human efforts to work out justice in our relationships – whether those relationships be personal or within civil society.

Thus, justice, as it is taught in Torah, is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallen state of humans. Torah teaches mercy in the midst of justice through its accounts of divine acts in response to human sin, for example, in the cases of Cain, Noah, and Lot, as well as in its provisions for both procedural and substantive criminal law in ancient Israel.

Thomas Cahill further supports this essential understanding of justice from the Jewish perspective when he states:

In the prescriptions of Jewish law we cannot but note a presumption that all people, even slaves, are human and that all human lives are sacred. The constant bias is in favor not of the powerful and their possessions but the of the powerless and their poverty; and there is even a frequent enjoinder to sympathy: “A sojourner you are not to oppress: you yourselves know (well) the feelings of the sojourner, for sojourners were you in the land of Egypt.” [Exodus 23:9] (Cahill, 154).

Cahill goes on to conclude that “this bias toward the underdog is unique not only in ancient law but in the whole history of law. However faint our sense of justice may be, insofar as it operates at all it is still a Jewish sense of justice.” (155). Cahill bases his characterization of Judaism’s foundational role in both understanding the demands of justice and the application of its standards upon his analysis that:

“The Jews were the first people to develop an integrated view of life and its obligations. Rather than imagining the demands of law and the demands of wisdom as discrete realms (as did the Sumerians, the Egyptians, and the Greeks), they imagined that all of life, having come from the Author of life, was to be governed by a single outlook. The material and the spiritual, the intellectual and the moral were one . . . . [L]ife is not a series of discrete experiences, influenced by diverse forces. We do not live in a fragmented universe, controlled by fickle and warring gods . . . Because God is One, life is a moral continuum – and reality makes sense.” (156-57).

So concludes Thomas Cahill’s strides toward demonstrating the validity of Max Dimont’s thesis.

Judaism and the Foundations of American Law - Part 1

When I first proposed the subject "Judaism and the Foundations of American Law" as a potential course for adoption within Fontbonne University’s Dedicated Semester to Judaism and its Cultures, one of my distinguished colleagues, Professor Jason Sommer strongly encouraged me to pursue it. In support, he cited Max Dimont’s seminal work, Jews, God and History that had been published in 1962. There, Professor Dimont made the following assertions:

"The statement that the American system of law is based upon Roman concepts has been made so often that we take it for granted, without examining the source from which Roman laws stem. The remarkable resemblances among Roman law, present-day American law, and Jewish jurisprudence in Biblical days is [sic] more than mere coincidence. The Jews devised, four centuries before Christ, a legal system based on the dignity of man and individual equality before the law, while Europe still had trial by ordeal as late as the fifteenth century.

"The rabbis viewed law as a vehicle for justice; laws without justice were regarded as immoral. Even though the Jews in those days had no jury system, the procedures for the indictment and trial of an accused person were similar to the procedures in American courts today. The accused was presumed to be innocent until proved guilty. He had a right to counsel and to a proper trial. He had a right to call witnesses, to confront his accusers, and to testify in his own behalf. He could not be compelled to testify against himself, and he could not be placed in double jeopardy. The accused individual was permitted to appeal, or have others appeal in his behalf, if new evidence should turn up." (Dimont, 82)

Upon these assertions, Dimont concluded that Judaism had played a significant role in providing foundations for American law. He did not, however, develop that thesis in his 1962 work beyond planting the seeds that are deposited throughout the passage I have just quoted. The task of tending and cultivating the thesis would be taken up by other scholars.

(This is the first of several installments from a lecture I recently presented at the Jewish Community Center of St. Louis. I intend to post successive parts from the lecture over the coming few weeks.)

Vipers' Tangle

If CS Lewis's Till We Have Faces is heart-rending, Francois Mauriac's Vipers' Tangle is gut-wrenching-- or maybe just a straight punch in the gut. It's brutally emotional, much more so than Till We Have Faces, but hopeful, though much less so than Lewis's retold myth.

Mauriac's story is in structured similarly to Till We Have Faces: Part One is, in effect, a confessional brief against the protagonist's wife and family, just as the opening two-thirds of TWHF is a brief-- a charge against the gods by Orual, Lewis's heroine. Likewise, both Lewis and Mauriac use part 2 of their stories to develop the themes of self-discovery. Till We Have Faces culminates with almost complete redemption and reconciliation, but Mauriac hides from the reader the moment of his protagonist's full surrender to the love of Christ, yet he points hopefully to it and hints beautifully at its means and motivations. In TWHF, what Orual has lost is restored. Mauriac's "hero," however, whose heart is the eponymous 'vipers' tangle,' has lost everything:

Those whom I should have loved are dead. Dead are those who might have loved me. As for the survivors, I no longer have the time, or the strength, to set out on a voyage towards them, to discover them. There is nothing in me, down to my voice, my gestures, my laugh, which does not belong to the monster whom I set up against the world, and to whom I gave my name.

This loss, however, leads him to glimpse the utter necessity of a power and a love outside himself:

One needed some strength, I said to myself. What kind of strength? Someone.

Yes, Someone in Whom we are all one, Who would be the guarantor of my victory over myself, in the eyes of my family; Someone Who would bear witness for me, Who would have relieved me of my foul burden, Who would have assumed it . . .

This is a rich, harsh, beautiful story. Sin is great. Grace abounds.

Favorite in the Narnia Series?

Over at the Touchstone Magazine blog, David Mills has started a discussion on which book in the Chronicles of Narnia series is one's favorite and which one the least favorite. It's good, clean fun, and it got me to thinking.

When I was very young, I liked The Lion, The Witch, and the Wardrobe best. Now that I'm old, I like The Last Battle and Voyage of the Dawn Treader best. Of course.

Actually, now that I'm old and have a better understanding of my own sin and the corruption of the world around me, I may appreciate Till We Have Faces more than any of the Narnia books, but I'll need to ponder that one awhile.

Ultimate Punishment

As a lawyer who has been appointed by the federal courts on death penalty cases, I was particularly engaged by the intellectual and moral odyssey Scott Turow charts in his 2003 book, Ultimate Punishment: A Lawyer's Reflections on Dealing the Death Penalty. (Farrar, Straus & Giroux). Turow is both a veteran writer and a seasoned lawyer. Over twenty years ago, his first book, One L: The Turbulent Story of a First Year at Harvard Law School (another personal account of an earlier odyssey, published by Putnam in 1977), served me as a primer on the law school experience. Having found his insights there to be instructive, I undertook the reading of this work with a high level of expectation.

Like politics and religion, however, the question of the death penalty nearly always polarizes people. This adverse effect is often largely due to the conflagration of both political and religious ideologies as they are advanced in efforts to form the policy and direct the practice of capital punishment by governments seeking to uphold twenty-first-century ideals of a democratic society where the rights of individuals are constitutionally protected. To his credit, Turow's approach ameliorates these confrontational and sometimes caustic attitudes that are brought to bear upon this issue.

Within the pages of his self-styled "reflections," Turow invites the reader along on his journey of experiences with the death penalty, early as a prosecuting attorney, later as a pro bono defense counsel and, most centrally, as a member of Governor George Ryan's Illinois Commission on Capital Punishment. Throughout his work, he intertwines compelling, personal stories of both those accused and victims of capital crimes portraying a full spectrum of uses and abuses of the ultimate punishment in the American criminal justice system.

Turow's storytelling reveals the profound humanness of crime as well as the often stark limitations of our legal system to mete out just punishments. The accounts of his experiences prosecuting the guilty, like Hector Reuben Sanchez, and defending the innocent, like Alejandro Hernandez, open the reader to a much boarder awareness of the complexities inherent in the issue that is, all too often, narrowly presented as simple as black and white--pro or con--for it or against it. Turow takes time to tell us about Anthony Porter who was one of the many wrongfully convicted on death row, but, happily, one of the few who was permitted to escape an unjust death at the hands of his government through the persistent efforts of his appellate lawyers.

The authenticity of his own internal struggle to come to a reasoned position on the question of capital punishment is exemplified by Turow's efforts in an appeal on behalf of Christopher Thomas whose prosecution was fraught with errors and abuse. Although Thomas was indeed guilty as an accomplice, the reversal of his death penalty and the subsequent hearing on his re-sentence to life imprisonment provided Thomas the opportunity to express an unreserved admission of responsibility for his role in the crime, his remorse for the immeasurable loss to the victim's family and his humble appeal for their forgiveness.

Prior to Turow's appointment by George Ryan to the Governor's Commission on Capital Punishment, his views on the death penalty had swung from one extreme to another. During his days at university, he, like the majority of students in the late 1960s and early 1970s, adamantly opposed capital punishment. After law school and then six years an Assistant United States Attorney prosecuting crime, however, Turow had no qualms about seeking the death penalty for senseless murders like those committed by Hector Sanchez, or even worse, John Wayne Gacy: "My job as a prosecutor-and the sensible first response of society-was to make sure they didn't do bad things again. And I could see that a sentence of death was the most certain means to accomplish that goal in extreme cases" (13).

Subsequent to his service as a federal prosecutor and while in private practice with one of Chicago's largest law firms, he volunteered on the death penalty appeals of Alex Hernandez and Christopher Thomas. By that time, Turow described himself as "a death penalty agnostic." He writes, "Every time I thought I was prepared to stake out a position, something would drive me back in the other direction." (14). So when he was introduced with the other thirteen members of Governor Ryan's Commission in March 2000, he was not among the four who stated their principled opposition to capital punishment from the outset of the Commission's work.

With his fellow commissioners, Turow was charged with the job of determining for the State of Illinois what reforms, if any, would make application of the death penalty fair, just, and accurate: "Our foremost task was pragmatic: identify problems and propose solutions. The big issues [i.e. retain or abolish capital punishment] would come at the end" (27-28). The bulk of his book recounts the scope and substance of the Commission's investigations, findings, and ultimate recommendations that occupied its attention for the next two years. First, they examined in detail the thirteen out of twenty-seven cases where the convicted capital offenders were later exonerated after exposure, through the process of appeal, of forced confessions, false testimony by accomplices or jail-house snitches, or what even was worse, bad faith and out-right knowing and intentional prosecutorial misconduct, such as willful withholding of evidence known to the prosecutor that would prove the defendant's innocence.

Turow astutely observes that while the multiple layers of state and federal appellate review in death cases are often viewed by the public as "today's version of Jarndyce v. Jarndyce, unfathomably complex and unbearably protracted.. The reason there is always further review is because there has to be; although over the years, I've sensed that the inevitability of additional scrutiny has a natural tendency to occasionally make judges and lawyers less scrupulous than the stakes would seem to require" (78).

The Commission then proceeded to convene, throughout Illinois, public and private hearings open to proponents and opponents alike. Turow and his colleagues, though, were particularly interested to hear from the surviving family members and friends of those who had been the victims of murders. Survivors seek a justice "embedded in the concept of restitution: the criminal ought not end up better off than his victim" (53). Yet, Turow was not persuaded that compensatory justice for the loss to loved ones was a compelling reason, in and of itself, to maintain capital punishment as it had been practiced by the State: "At the end of the day, if we are to subscribe to the death penalty, it must benefit the rest of us, as well" (56).

In this broader quest, the societal benefit of deterrence was explored by the Commission, but, from Turow's perspective, their review of empirical studies conducted over the past thirty years found that the reported evidence was inconclusive. Economic analyses proved equally indeterminate. He says, "I decided I wasn't going to find any definitive answers to the merits-or the failings-of the death penalty in the realm of social science" (62).

Something, though, continued to prevent Turow from moving over to join the minority four members who stood in complete opposition. That something was the extreme case-multiple murderers like John Wayne Gacy or Henry Brisbon. Unlike the notorious Gacy, Brisbon, the I-57 murderer of the early 1970s, is little known outside Illinois, but his crimes, although less numerous, were as deeply depraved. Brisbon, however, had been convicted of his gruesome crimes during that period in American constitutional history (1972-1976) when the imposition of the death penalty was for a short time deemed unconstitutional. Sentenced to 1,000 to 3,000 years of confinement, literally, Brisbon is incarcerated in the Tamms "CMAX" Correctional Center in southern Illinois.

While in prison, Brisbon murdered yet again. He now faces a death sentence. Turow and a few of his colleagues from the Commission obtained permission to visit the Tamms facility. The Brisbon case had brought him to a fundamental inquiry. He recalls:

"[T]he pivotal question for me was whether there were means beside execution to control the Brisbons of the world, the prisoners whose record suggests that they are so bad to the bone that they are clearly prone to murder again if give the opportunity. If the conditions of their confinement cannot reliably prevent this, the argument in favor of capital punishment in Brisbon's case, and others like it, seems overwhelming to me. "(84-85)

After a comprehensive tour of the facility and a lengthy interview with the warden, Turow left Tamms unable to conclude that the best technologies of confinement available in corrections today could guarantee that Henry Brisbon would not murder again.

The concluding chapters of Turow's book outline the eighty-five recommendations issued in the Commission report submitted to Governor Ryan on April 15, 2002. Principal among the changes urged were those aimed at reducing the risk of convicting the innocent, such as video-taping interrogations to prevent or at least expose forced confessions, line-up procedures that promoted more reliable eyewitness identifications, pre-trial hearings to determine the reliability of jail-house informants.

The most substantive of the reforms advocated by the Commission was the reduction of the eligibility criteria (statutory aggravating circumstances) for capital punishment from twenty to only five: multiple murders; murder of law enforcement or fire-fighting personnel; murder in prison; murder aimed at hindering the justice system and murder involving torture. Although some of the procedural recommendations were adopted by the Illinois Legislature, the substantive changes were not. In fact, the legislature expanded, rather than reduced, the number of death-qualifying circumstances, making death sentences more, not less, likely in Illinois murder prosecutions. Governor Ryan, before leaving office, responded to the legislature's acts by commuting the sentences of those remaining on death row to life imprisonment.

Turow's informal and conversational writing style, sprinkled with contractions and even an occasional split infinitive, renders his book quite accessible to the general public. For the scholar, though, he includes an extensive section at the end of his work presenting an extensive list of both formal legal citations to court reporters and URL's for those authorities he relies upon that are available on the Internet.

While not explicitly advancing a Judeo-Christian worldview, Turow and the Commission expressed ideas of justice in their recommendations that are implicitly consistent with such a view. For example, Turow notes that although the Commission did not recommend abolition of the death penalty by Illinois, it did suggest banning it as a punishment when the murder conviction is based solely on the uncorroborated testimony of a lone eyewitness or a single accomplice (91). This recommendation adheres to the requirement set forth by Moses that death may not be imposed as a penalty on the testimony of only one witness. (See Num. 35:30; Deut. 19:15.) On the whole, Turow's insights reveal the limitations of any human system of justice:

"Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason - and prove that justice alone will not make us whole. Only the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills, can accomplish that. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and convection must come from outside the law." (109)

Acknowledging these very real limitations, and with a ready admission of his own fluctuations, Turow concludes with his response to the question posed by Senator Paul Simon at the summation of the Commission's work: Should Illinois retain capital punishment? Senator Simon had been one of the four Commission members who confessed his opposition from the outset of their task. Turow's book explains why he has now joined that number as he articulates a persuasive rationale for any who would undertake to consider this question seriously.

A New Favorite

Just a note to praise a new book from InterVarsity Press, Louis Markos' From Achilles to Christ: Why Christians Should Read the Pagan Classics (IVP 2007). It's a gem.

I confess that much of my appreciation for this book is based on the fact that as an amateur lit teacher-- I teach literature to high schoolers in our local homeschool co-op-- I need all the help I can get in integrating sound Christian scholarship into my lessons. In fact, this book came out at just the time I was preparing to teach The Iliad for the first time in four years. This book is a real blessing to those of us who, without much formal training, are trying to help students gain an appreciation for classics of any kind.

But I recommend this book to anyone who has even the remotest love for literature or antiquity. Markos brings a real eloquence to the topic, drawing the reader into the pagan myths and stories in a way that both informs and edifies. His broad readings cast these works as pre-figurings of the great myth that is also fact. This theological journey through Homer, the Greek tragedians, and Virgil, is fascinating and instructive. At times, his discussions have an almost devotional quality, and more than once I was moved to deeper meditation on God's work in time and history.

At first I thought the subtitle was wrong: Markos doesn't provide a reasoned defense that leads to a conclusion that I should look into these pagan classics. Instead, he guides me through them, reading them in faithful Christian hindsight, filling up my former readings and informing and encouraging my future forays into these stories and plays. By the end of the book, I was indeed convinced that God has used these great pagans and their stories to show us truth and direct us to the One who works in human history to bring about his purposes. In short, I now know why I-- and my students-- should read the pagan classics.

The Death Penalty and Imago Dei

Last month I had a very interesting conversation with Mirror of Justice blogger and law professor Susan Stabile about the death penalty. She was kind enough to respond on a variety of helpful levels and post the discussion (here and here) on MOJ. You can read the exchanges, but the upshot is that most of the legal scholarship that I've seen from a Christian (primarily Roman Catholic) perpsective rests its opposition to the death penalty in the fact that we are created in God's image, and as such, have an inherent dignity with which the death penalty is inconsistent.

As you can see from the discussion, God's delegation of the authority to humans to carry out the death penalty is itself rooted in the imago Dei (Genesis 9:6). It seems to me that since the death penalty was established to vindicate the inherent dignity of the human person as created in God's image, there is more to be proved by death penalty opponents than simply that we are created in God's image.

Gospel, Culture, and Power in the Evangelical Moment - Part 1

Introducing the Question

John Schmalzbauer’s Wall Street Journal (Oct 18 2007) review of Michael Lindsay’s new book Faith in the Halls of Power notes the significance of evangelical upward mobility. He writes: “… [A] funny thing happened on the way to the 21st century. Buoyed by the upward mobility of postwar America, a critical mass of evangelicals made it into the elite.”

Once referred to as the “gaping primates of the upland valley,” (by H. L. Menken), evangelicals are now represented in leadership of government, the academy, and business. Lindsay’s book features two former presidents, one hundred executives, some two-dozen high-level government officials, and a dozen filmmakers and actors. Peter Gomes, chaplain of Harvard University, notes that there are more evangelicals at Harvard now than at anytime since the seventeenth century.

In response to this, some have warned of a looming theocracy. Lindsay notes that he found little evidence to support this concern. Why? Lindsay (and Schmalzbauer) note that this evangelical elite is not monolithic: there is a plurality of political and cultural views. In fact, notes Lindsay, many elite evangelicals distance themselves from the populist evangelicalism of the likes of Joel Osteen and other television preachers.

This “cosmopolitan evangelicalism” (Lindsay’s term) represents an evangelical theology informed and influenced by higher education and higher culture. If there is any risk, notes Lindsay, it is to the internal coherence of the evangelical movement. There is, to put it bluntly, a growing class divide within evangelicalism. Despite the growing differences within evangelicalism, a divergence that has produced some nasty battles, Lindsay’s book seems to have an optimistic tone. Evangelicals, it seems, are successfully engaging our culture in helpful and productive ways in various spheres.

Less optimistic is Charles Marsh’s analysis of evangelical political influence in Wayward Christian Soldiers: Freeing the Gospel from Political Captivity (Oxford 2007). Fundamental to Marsh’s reflections is the simple question: have evangelicals compromised the Gospel in order to attain political power in contemporary America?

A broader question arises both for Marsh and for Lindsay: does the attainment of culturally influential positions necessitate an abrogation or corruption of the centerpiece of the evangelical movement—the Gospel? The latter of these questions is abstractly answerable in the negative. The former questions, however, requires a theological interaction with the events of what Marsh calls “the evangelical moment,” the years 2000-2006. In short, Marsh claims that the evangelical moment was the result of a profound corruption of the classical Gospel message.

In a series of posts, I will be interacting with Marsh’s book chapter by chapter. My first post, probably next week, will interact with Marsh’s introduction of his project in his chapter, “On Being a Christian after Bush.” Thereafter I will be tracing the trajectory of Marsh’s argument interacting with it as I go. My goal will be to understand Marsh’s work and to seek to engage it critically from an evangelical perspective. Beyond understanding Marsh’s work, perhaps the discussion that ensues will be helpful in reflecting upon cultural engagement by evangelical Christians.

The Gifts of the Jews

In his popular history, The Gifts of the Jews, Thomas Cahill contends that one of the gifts imparted to human civilization by the Jews was their notion of justice. It was, though, an idea of justice intertwined with mercy. Mercy is essential to the administration of justice in the realm of human experience because Torah not only conceded but also explicitly taught the fallen state of humans.

Thus, while lex talionis requires “a life for a life,” the Jews were prohibited by Torah from implementing this principle of punishment upon the evidence of only one witness to an alleged intentional, “treacherous” killing of another human being. Rather, Torah requires the testimony of at least two witnesses.

Some argue that lex talionis is not, in the first place, a Jewish concept but was rather a contribution from the ancient Babylonian civilization via the Code of Hammurabi. Even if this point of history is conceded for the sake of argument, Torah’s expression and guidance in the administration of lex talionis demonstrates a substantial tempering of its severity in application albeit not in its formulation.

Justice, as it is taught in Torah, is both an affirmation of the dignity of every human being based upon Imago Dei and an accommodation for the finitude and fallen state of humans. Torah teaches mercy in the midst of justice through its accounts of divine acts in response to human sin (e.g. Cain, Noah, and Lot) as well as in its provisions for both procedural and substantive criminal law in ancient Israel.

I am just beginning to formulate my expression of these ideas. I intend to develop a more thorough thesis in coming weeks. In the meantime, I would value your responses.

Redeeming Law at Rethinking Worldview

I knew there was a reason that Mark Bertrand is my favorite blogger! Over at his wonderful Rethinking Worldview, he has posted some kind words about my new book Redeeming Law. And at jmarkbertrand.com, where he writes with grace and wisdom on all things literary and cultural, he has more nice things to say. Thanks, Mark.

I have mentioned Mark's forthcoming book already in passing (Aug 28, below), but I want to be sure that readers know that it's out this week. I've pre-ordered my copy. Have you? More on Rethinking Worldview as we sink our teeth into it.

Welcome to Justitia Blog

I want to thank Becky Perry, Jeff Gissing, Cordell Schulten, and Tom Folsom for agreeing to help "staff" the Justitia Blog. Each brings a unique background and perspective on law and culture, and I look forward to hearing from them in the months to come.

Becky is a journalist who is beginning her legal career at one of the nation's elite law schools. Cordell is a lawyer and professor who works with lawyers as a Christian Legal Society chaplain. Jeff works with grad students full time, and Tom is a law professor. I respect these friends and consider them wise disciples of Jesus. I'm grateful for their participation.

I hope to announce more partners as the Justitia blog grows.

A Framework for Thinking about Justice

As promised, I want to start the discussion about the basis for any "Christian" view of justice. These, I think, are the essential building blocks.

The root of any Christian view of justice is, of course, Jewish, since it is based on God's relationship with his chosen people as recorded in the Old Testament:

• God is the Creator of the world and lawgiver; we are subject to him and receiver of the law
• We are subjects of law, not "creators" of it in the ultimate sense
• God is just in his very character; he is just, so we know justice by his acts
• God is a lawkeeper; he is bound by his word, his law
• With community comes law, but law comes from outside, from above (see, Mt. Sinai), yet it exists before it is revealed or posited (see, Exodus 18, where God's law is "made known" to the people through the individual judgments of Moses-- before the Ten Commandments are revealed on the mountaintop).
• The logical consequence of this truth is Lex Rex, the Law is King, and Magna Carta. Unless law is "outside" human beings, and more than simply a human artifact, why should the highest of boss of men be bound by it?

For Orthodox Christianity, however, the atonement of Christ is the richest and most significant expression of justice.

• God demonstrates his JUSTICE in what Christ did on the cross
• Jesus was punished for our sins AND paid the penalty
• Jesus satisfied the demands of justice by taking punishment and appeasing the wrath of God
• Retribution and restitution are therefore at the heart of law and justice
• The atonement is consistent with, and the fulfillment of, lex talionis (the law of proportionality--"an eye for an eye") and other OT teachings and caselaw

In the realm of civil justice, although justice requires restitution and retribution at its heart, human beings are limited in their authority.

• All authority resides in God, and no human institution has any authority unless it is given by God.
• God delegates his authority, not just to the state, but to various human institutions, including the church, the family, individuals, and the exercise of that authority is limited to its own area of jurisdiction.
• The state’s (or church’s or family’s) authority is not coextensive with God’s (see, for example, the Sermon on the Mount, Jesus' command to render to Caesar what is Caesar's and to God what is God's).
• State power is therefore limited, by its very nature, and is incompetent to demand duties owed to solely to God, or to parents, or the local congregation, for example.

This is a starting place, and each of these ideas need to be explored further. In addition, I haven't begun to address the problem of the diversity of worldviews represented in the so-called secular society, and the "problem" of religious liberty. At least we have more to address in days to come!

These ideas are simply a sketch of some important themes that have been discussed in much more detail by others. I suggest that interested readers find these articles by my friend and colleague Craig A. Stern:

The Common Law and the Religious Foundations of the Rule of Law Before Casey, 38 U.S.F.L. Rev. 499 (2004).

Crime, Moral Luck, and the Sermon on the Mount, 48 Cath. U. L. Rev. 801 (1999).

And this important work by Liberty Law School professor and Associate Dean, Jeffrey C. Tuomala:

Christ’s Atonement as the Model for Civil Justice, 38 AM. J. JURIS. 221 (1993)

In addition, a new book from InterVarsity Press, Church, State, and Public Justice: Five Views, presents a variety of historically Christian approaches, framing and debating the issues very well.

Perspectives on Justice

I had a great time at Northwestern Law School on Wednesday as a panelist for Faith and Law Week. The panel provided three perspectives on justice: Jewish, Christian, and atheistic.

Thanks to Trevor Stiles, leader of the Christian Legal Society group at Northwestern, and Garrick Menlo, the president of the St. Thomas More Society, for inviting me. The organizers, in my humble opinion, were better than the panelists for the most part.

Here are the questions with which they framed our discussion:

Overview: Is there such thing as a Jewish/Christian/Atheist justice theoretical system? How has your faith background influenced the development of our American justice system?

1. Is justice a human or divine in origin? If it’s in fact divine, how should a secular society resolve to undertake its administration?

2. God’s justice, by definition, is perfect justice. Men fall somewhat short of that. How imperfect is our justice comparatively? How close can we get to the ideal? Should we even try?

3. The real differences between your point of view might be one thing, but your perceived differences might be something else altogether. Could you comment on what you might think the differences are between your own religion’s take on justice from other religion’s takes on justice.

4. Historically, God’s justice has always been a bit of an equalizer. People could say that, yes, they are oppressed now, but in the end justice will be served. Without that concept, is the world a much less just place? How far should civil society go, then, to make life on earth more “just?”

5. Justice is not just about punishment. It is also about mercy? What does your faith background do to explain, encourage, or understand acts of mercy?

6. What is the place of repentance, atonement, and forgiveness in a faith based justice system? Should a civil justice system treat it similarly?

This is a nice framing of key issues related to how we operate within the cultural institutions concerned with law and justice. I'll address these questions on the blog over the next several weeks.

Thanks, again, to Trevor and Garrick.

Two Great Book Lists

Over at the amazing "Booknotes" blog by Byron Bolger of Hearts & Minds Bookstore, you'll find two important lists for every thinking Christian. Last week, it was the Top Ten Books on Christian Worldview. This week, it's Top Books on the Christian Mind.

My favorite on last week's list is Albert Wolters, Creation Regained, which is a readable and succinct defense of the Creation-Fall-Redemption paradigm for understanding culture and the role of the Christian in it. My favorite on the second list isn't on the second list, because Byron did not include my personal favorite on the topic, J.P. Moreland, Love Your God with All Your Mind (NavPress 1997). But I quibble. These lists ought to be the gold standard for evangelicals seeking guidance in faithful thinking about . . . . anything.

The only other book that may have been omitted is Mark Bertrand's forthcoming book Rethinking Worldview: Learning How to Think, Live and Speak in This World. But it's not out until October. I eagerly anticipate its arrival.

Righteousness and Justice

At Valparaiso University School of Law in April 1964, Jaroslav Pelikan delivered a short address based on Luther's Lectures on Galatians. The published version is entitled Justitia as Justice and Justitia as Righteousness:

From the Galatians I have selected one problem that baffled me almost daily as I was translating and that seems to me fundamental enough to warrant our close scrutiny here, that is, the distinction and the analogy between justice and righteousness. For behind both these words in English is one word in Luther's Latin, justitia, as there is one word for both in Greek and in Hebrew.

Pelikan explores the connections between and the distinctions of justice and righteousness. Relying on Galatians and Luther's interpretation of it, Pelikan develops the key questions about the relationship of the moral law of God-- required righteousness-- and the just operation of the law of man-- justice. Both are justitia.

Specifically, he asks, "What does the definition of justitia as righteousness in Luther's Galatians contribute to the definition of justitia as justice?" For those of us interested in the relationship of human and divine justice, this promises to be a helpful question. Pelikan develops some themes by way of fragments of an answer:

• Perfection is really the serious and high demand of a holy God, not a wink, wink, nudge, nudge suggestion.
• Indifference by men to the demands of the law "could undermine not only the justitia announced by the Gospel and conferred by grace, it would undermine the structures of society as well."
• According to Luther, "Christian justitia consists in two things: first, in faith, which attributes glory to God; secondly, in God's imputation [i.e., of justitia] . . . not for our sakes or for the sake of our worthiness or works but for the sake of Christ Himself, in whom we believe."
• Man's zeal for absolute justice, then, can lead to the height of injustice. Summum jus, summa injuria, in Cicero's epigram.

Pelikan concludes: "Therefore, a prerequisite for the achievement of the kind of justitia as justice that [is] attainable under the condition of fallen existence [is] a recognition of the unattainability of the absolute demand for justitia."

The lawyer, then, must recognize "the limits of his competence and the limited possibilities of justitia as justice."

And, I would add, the lawyer must have a theologically developed understanding of the jurisdiction and competence of the state and its relationship to other human jurisdictions, such as the family and the church. So much here highlights the significance of doctrine to law and government: what is the nature of God, the nature of the state, the nature of the human person? What, exactly, is justice? Plenty to think about and talk about for a lifetime.