Monday, January 28, 2008

Redeeming Law Blog

I've started a new blog to deal with the questions I get about my book, Redeeming Law: Christian Calling and the Legal Profession, and to discuss issues related to the calling to the law.

I hope to post answers to the many questions I receive from law students and pre-law students who are seeking to find their calling in the legal profession. I also hope to answer some of the questions that I have failed to answer in the book, either through omission or simple incoherence.

Saturday, January 12, 2008

Judaism and the Foundations of American Law -- Part 5

Let us now turn our consideration to some specific passages in Torah where we will find that this foundational notion of justice is embedded. I will suggest that it is exemplified by at least five provisions that have direct relationship to the administration of justice that has developed in our American Legal System.

The first is procedural and the remaining four address substantive law. The first passage provides an approach to conflict resolution. In the four substantive areas, we will examine passages from Torah that articulate underlying aspects of justice and the function of law that have emerged as foundational within each of those substantive areas: in criminal law the idea of “order”; in tort law, the concept of “duty”; in contract, the notion of “promise” and in property law, the idea of “rights”.

The first passage is found in Exodus 18 and provides foundational guidance for the administration of justice through dispute resolution – for what is called in the American legal system, subject matter jurisdiction. In Exodus 18, Moses faced a dilemma. He alone was serving as the arbitrator of disputes. When his wise father-in-law observed how taxing the task was that Moses was then performing, he proposed a solution that has been followed even to our day in the establishing of courts of inferior and superior jurisdiction.

The account continues in verse 13: "Next day, Moses sat as magistrate among the people, while the people stood about Moses from morning until evening. But when Moses’ father-in-law saw how much he had to do for the people, he said, “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” Moses replied to his father-in-law, “It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the law and teachings of God.”

But Moses’ father-in-law said to him, “The thing you are doing is not right; you will surely wear your self out, and these people as well. For the task is too heavy for you; you cannot do it alone. Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God, and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow. You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute themselves. Make it easier for yourself by letting them share the burden with you. If you do this – and God so commands you – you will be able to bear up; and all these people too will go home unwearied.”

Moses followed his father-in-law’s counsel and appointed others who would hear the more minor matters – the small claims. The more difficult disputes were reserved for Moses’ immediate jurisdiction. This passage is one of the particular examples to which Dimont referred when he outlined the procedural dimensions of justice found in Torah. Others that also address procedural matters – what in American law is known as procedural due process – could be explored in greater detail, but we will turn our attention now to substantive areas of law.

Sunday, January 06, 2008

Judaism and the Foundations of American Law -- Part 4

Some may suggest that the works of Dimont, Cahill and even Professor Dershowitz do not rise above the level of popular treatments of the subject, and therefore, do not marshal sufficient scholarly evidence to under gird the thesis to which each contributes. Although I believe that these three do provide not only a solid introduction to the subject of Judaism’s influence, both indirect and direct, upon the development of concepts of justice and law that are integral to the American legal system, but also a substantial elucidation of the same, still other scholars have examined these relationships to an even deeper degree.

Outstanding among these who are engaged in the scholarship in this area is Bernard Jackson, Alliance Professor of Modern Jewish Studies at the University of Manchester in England. Professor Jackson along with Phillip Alexander serve together there as the co-directors at the University’s Centre for Jewish Studies.

In his article “‘Law’ and ‘Justice’ in the Bible”, Professor Jackson notes that “when we examine the charges given to judges in the biblical sources, we find a conspicuous absence of reference to any duty to apply codes or rules of positive law. Rather, the charges to judges . . . are characterized by two demands: to avoid corruption and partiality [and] to do ‘justice’” (222-23). He further explains that the source of the ‘justice’ these judges are to apply is not delineated by specific rules or regulations, but rather, he argues is found in a mixture of custom and personal intuition where that intuition is viewed as inspired by God. (223).

He cites Moses’ decision in the case of the daughters of Zelophehad, recorded in Numbers, chapter 27, as a prime example of the administration of this concept of “justice” in the activity of adjudication. In that case, the daughters requested the right to their father’s inheritance in the land even though he had died without any sons. Upon their submission of this petition to Moses, the account in Numbers then tells us that “Moses brought their case before the LORD.” (27:5) God explicitly instructs Moses to grant the request and further provides guidelines for similar cases in the future.

Jackson uses this example to demonstrate that “justice” in Torah is not the same as positive law. Rather the demands of justice, as informed by God as an external, higher authority, may require exceptions to or changes of positive law. Here Jackson agrees with and lends support to Dimont who, as we noted above, had concluded that positive laws were to be vehicles for justice, but laws without justice were considered immoral.