Justitia

Law & Justice

2011-03-04T23:48:00.000-06:00

The former does not always serve the latter. So says Horace Rumpole . . . and others.

Christian America and the Kingdom of God

2009-12-15T04:29:00.005-06:00

No subject raises more debates nor fosters greater confusion among conscientious Christians than the inter-relationship of religion and politics. Professor Hughes’ new work contributes significantly to this on-going debate by both helping to dispel the confusion over history and the Bible that all too often characterizes those discussions and charting a clearer course for a Christian’s engagement of the political and social issues of our day.

Through careful historical analysis and comprehensive biblical exegesis, Hughes examines not only whether America was ever intended by its founders to be a Christian nation but also what is an even more telling inquiry; namely, whether that description may, or even should, be applied to the United States today. His approach to these questions, though, goes well beyond mere political theory or even theological doctrine. Indeed, Hughes has accomplished in this concise work as comprehensive a critique of “Christian Americanism” as Mark Noll did of anti-intellectualism fifteen years ago in his Scandal of the Evangelical Mind.

From the outset, Hughes asserts three theses: first, “the notion of Christian America and the notion of the kingdom of God are polar opposites whose values could not be further apart” (4); second, “the devastatingly ironic truth that Christian America so often behaves in such unchristian and even anti-Christian ways” (5); and finally, “that Christians should behave in ways that are consistent with their profession of faith, especially in America’s public square” (5). He then proceeds to present his case against Christian Americanism in five well-formed chapters.

In the first, he examines the historical account of those who have viewed America as a nation chosen by God. Beginning with the earliest identifications made by colonial leaders of the New World as a “Promised Land,” Hughes surveys a litany of claims to America’s “chosen” status throughout its history. He describes each assertion fairly and within both the historical and theological contexts that gave them rise. Having succinctly and carefully observed claims from Tyndale’s time to their contemporary formulations in the preaching of D. James Kennedy, Hughes proceeds to assess whether such claims hold up under the scrutiny of a thorough biblical review.

Many who advocate for America’s chosen status draw heavily upon analogies to the nation of Israel in the Old Testament. But rather than indulging in a “proof-text” approach, Hughes counters these claims by charting the full scope of the Biblical narrative to demonstrate that the particularistic status associated with Israel as God’s chosen nation in the Hebrew Bible finds its fulfillment, according to the New Testament, not in a national – much less an ethnically identified – community, but in the Body of Christ, in whom there are no racial, national, ethnic, political, nor even social or economic distinctions.

In his next two chapters, Hughes turns his analysis from the notion of America as a “chosen nation” to the theme which occupies him for the larger part of this work, i.e. a biblical understanding of the kingdom of God and its bearing upon the claim of a Christian America. His critique is premised upon the notion that if America is to be considered a truly Christian country, then it values and actions should bear semblance to the description of the qualities and characteristics that define the kingdom of God both in the Hebrew Bible (in particular the those announced and called for by the prophets, e.g. Isaiah, Jeremiah, Hosea, Amos and others) and in the teachings of Jesus Christ and his apostles as set forth in the New Testament.

Hughes demonstrates that the chief characteristics of the kingdom of God described in the Scriptures taken as a whole are justice and peace. Justice, especially as called for by the prophets, means equitable treatment and care especially for the poor and marginalized in society. Peace entails a conscientious dedication to peace-making and efforts toward reconciliation between individuals, groups and races as well as nations. Though Hughes does not cite him in depicting a nation devoted to peace, echoes can be heard of Bonhoeffer’s Fano address: “There is no way to peace along the way of safety. For peace must be dared. It is the great venture” (A Testament to Freedom, 228). Hughes’ analysis of the New Testament passages on the kingdom of God, though sound in both interpretation and application, could have been rendered even more persuasive among a broader scope of evangelicals and fundamentalists (all of whom should be reading this book) had he relied upon the scholarship of N.T. Wright on several points where he instead resorts to Crossan.

In the remaining chapters, Hughes returns to an historical investigation of reasons offered to support Christian Americanism. He traces the first antecedents of this idea all the way back to Constantine’s Edit of Milan and then charts its seminal development through Justinian and Theodosius. He describes a second strand in its emergence that was woven in through the Reformation and especially Calvin’s doctrine of the sovereignty of God that motivated a not insignificant number of the early colonists. Hughes strongly rejects, however, the claim that the new nation was established as a distinctively Christian country.

Rather, he demonstrates instead that the vast majority of the founding leaders were not distinctively Christian and that the documents they formulated to define the nation, while upholding the role of religion in society and protecting it from state interference, were in purpose and effect fundamentally secular. He then recounts a series of engagements throughout the 18th and 19th centuries in an on-going battle for Christian America through such forays as the Second Great Awakening and Manifest Destiny, then on to the Gilded Age’s gospel of wealth and the social gospel’s rejection of it. All of which, Hughes contends contributed in various ways to the messianic nationalism that characterized those who advanced Christian Americanism through the later part of the 20th century and into our present day.

The book reaches its climax in Hughes' unflinching critique of the fundamentalist vision of America within a Dispensational eschatology as it was embodied within the Evangelical Right from its early advances in the Reagan administration to the political might it displayed through the policies, both foreign and domestic, of George W. Bush. In sum, he issues a prophetic warning, in his own right, to all those who claim that God is on “their side” in an Armageddon-like clash of civilizations. Hughes concludes his critique by drawing a telling analogy:

"Obviously, there is a sense—and, in fact, a profound sense—in which America is a Christian nation. After all, some 76 percent of the American people claim to be Christian in one form or another. But the Christian character of the United States is comparable to the Christian character of the Roman Empire after Constantine . . . . Like that ancient empire, the United States abounds in Christian trappings. And yet the United States embraces virtually all the values that have been common to empires for centuries on end. It pays lip service to peace but thrives on violence, exalts the rich over the poor, prefers power to humility, places vengeance above forgiveness, extravagance above modesty, and luxury above simplicity. In a word, it rejects the values of Jesus" (185-86).

In this book, Hughes has synthesized and fortified the calls issued over the past ten years by the likes of Stephen Carter and Jim Wallis for a renewed prophetic engagement of religiously motivated Christians in the social and political issues of our day; but in so doing, to acknowledge that the Kingdom of God will not, indeed cannot, be brought about by force of arms or even force of law, but as it was, and is and will be in Christ’s day, only by the force of truth. For anyone who wishes to live responsibly within the concrete realities of life today, Hughes’ analysis found within these pages should be read with careful thought and his challenges heeded with conscientious action.

Bonhoeffer and the Resistance

2009-06-02T19:03:00.006-05:00

In the Postscript to her recently published work, Dietrich Bonhoeffer and the Resistance, Sabine Dramm observes:

Bonhoeffer did not fit the image of the resistance fighter, working underground and waging a consistent and unrelenting struggle from the beginning of the Third Reich until its end. He was not the "pure martyr" who in selfless surrender allowed himself to be killed for his faith. He was a man of flesh and blood who did not seek death but wanted to live, marry, go on working -- in short, who wanted to have a future. And this was so although he was aware of the risk of death, or just because of his awareness-- although (as he wrote at the end of 1942) he had "almost come to terms" with the death that was perhaps so imminent, or for that very reason. He was someone who did not try to escape even his own insufficiency. In the middle of his essay "After Ten Years," there is a section headed "A few articles of faith on the sovereignty of God in history." It interrupts the style and flow of his ideas--even the somewhat wooden heading is out of line with the rest of the text--but it includes a passage in which Bonhoeffer ceases to speak as "we," as he does elsewhere in the essay, but talks as "I" and formulates a personal creed:

I believe that God can and will bring good out of evil, even out of the greatest evil. For that purpose he needs men who make the best use of everything. I believe that God will give us all the strength we need to help us resist in all time of distress. But he never gives it in advance, lest we should rely on ourselves and not on him alone. A faith such as this should allay all our fears for the future I believe that even our mistakes and shortcomings are turned to good account, and that it is no harder for God to deal with them than with our supposedly good deeds. I believe that God is no timeless fate, but that he waits for and answers sincere prayers and responsible actions.

This understanding of existence was based on the certainty of God's presence--in spite of this world and in the face of this world; in spite of the frontier of death and in the face of that frontier. In this certainty Bonhoeffer experienced what he described in the last section of his Ethics manuscript: "The cross of reconciliation sets us free to live before God in the midst of the godless world." His theology of the world and worldliness, and his matter-of-fact, undivided devotion were not mutually exclusive. They included each other. the this-worldliness of faith, based on the existence and presence of the Nazarene, which he so vehemently maintained, and his commitment to the conspiracy corresponded to each other. His resistance did not issue from a grudging acknowledgment that "he was bound to resist" the Nazi regime in spite of his Christian faith. It resulted from his theological self-understanding, the conviction that he had to seek a way of resistance in the world in which he lived just because of his faith. And here we come upon his question about the reality of God in the reality of the world, and upon Bonhoeffer's own answer: a worldly Christian existence in a godforsaken time. (pp. 242-43)

Bonhoeffer's theology, ethics and resistance

2009-01-27T20:34:00.010-06:00

Heinz Eduard Tödt's
Authentic Faith: Bonhoeffer’s Theological Ethics in Context

If the ideas articulated and life lived by Dietrich Bonhoeffer have captivated your thinking and challenged your soul, then you would do well to take the time to read thoughtfully and reflectively this collection of Professor Tödt’s essays on Bonhoeffer’s theology, ethics and resistance. First published fifteen years ago in his original German, this compilation of Tödt’s insightful scholarship spans the latter half of his academic career as professor of systematic theology, ethics and social ethics at the University of Heidelberg and as the chairman of the editorial board of the German edition of The Dietrich Bonhoeffer Works. Tödt’s student, Glen Harold Strassen, captured the tenor of his writings when he stated: “Tödt’s publications have an analytical sharpness, an ethical incisiveness and a genuine truthfulness that is rare even among the best.” Strassen served as the editor of the English edition of Tödt’s essays on Bonhoeffer published here in the United States in 2007. It is this new edition that is the subject of this review.

This collection of essays by Tödt makes a significant contribution to the ever-growing corpus of Bonhoeffer scholarship. Unlike that of many who have come before and after him, though, Tödt’s analysis expounds the major dimensions of Bonhoeffer’s ethics by examining the political, ecclesiastical and family context in which Bonhoeffer wrote. His essays, however, reach an even deeper level of profundity as Tödt subjects himself to scrutiny of Bonhoeffer’s ideas by transparently wrestling with issues of guilt and forgiveness about his own experience of the German context during the Third Reich when he served as a soldier at the front during the Second World War and then was subjected to detention as a prisoner-of-war in a Russian camp for five years. Above all, in his engagement with Bonhoeffer, Tödt sought an ethic that can provide wise guidance in the face of contemporary schemes to manipulate faith for ideological ends.

Fourteen of Tödt’s essays are presented. The earliest essay dates from the 1970’s, and the latest to one year before his death in 1991. A deepening of both insight into the underlying essence of Bonhoeffer’s thoughts as well as an appreciation for the authenticity of his faith-inspired actions is evident. The first eleven essays analyze themes in Bonhoeffer’s theology and ethics. For example, Tödt tackles the ever-perplexing notion of “religion-less Christianity” that marks Bonhoeffer’s later letters to Eberhard Bethge from his Tegel prison cell. In contrast with those progressive theologians who have latched on to Bonhoeffer’s language only to fill it with a self-conceived meaning inconsistent with the whole of Bonhoeffer’s thought and life, Tödt finds that Bonhoeffer was here conceiving a Christianity not confined to ideals for merely private life or to the gaps where we cannot solve problems, but rather a Christian faith that gives concrete guidance in the center of life.

In other essays, Tödt focuses attention on an important question that has not been examined by other scholars of Bonhoeffer. He asks what was about Bonhoeffer’s ethics that enabled him to discern so clearly and speak out for the Jews and against war more decisively than other theologians and church leaders even from the very onset of Hitler’s chancellorship. In his exploration of this question, Tödt demonstrates Bonhoeffer’s insights in naming the sources of evil and self-deception as well as warning against the ways and means by which the leader becomes the misleader. Tödt also clarifies Bonhoeffer’s articulation of the vocation of the churches in speaking concretely and the vocation of groups in acting concretely as an assertion of checks and balances against authoritarianism not only in the context of Nazi Germany but also with application for responsible action in the midst of contemporary expressions of authoritarianism.

Tödt’s extensive analysis of the social, theological, and ethical characteristics of the resistance movement, in which Bonhoeffer and family members played integral roles, provides both information and insights that go well beyond what can be found in other scholarship to date. This comprehensiveness in his treatment of Bonhoeffer’s resistance is the product of thoroughgoing research project that Tödt led at the University of Heidelberg.

The final three essays in this collection address contemporary history, in which Tödt examines, with an authenticity born out of Bonhoeffer’s ethics, the guilt and responsibility of Christendom in Germany. What particularly marks Tödt’s approach and the insights he offers is his resolve not to be devoted to merely an interpretation of past positions, but instead to find in Bonhoeffer avenues that advance both the present tasks of theology in the church and a better understanding of our own way of life.

In 1985, Tödt himself expressed the force of Bonhoeffer’s life and words upon him in this way:

Dietrich Bonhoeffer has come nearer and nearer and become more and more important for me – not merely with one single flash of light – but in a continuing process over twenty years. Of his many remarkable character traits and abilities, the concentration with which he exposed his faith in Christ to the tests that life brought, all the way to the extreme situations of resistance, and then thought through theologically what happened him and those involved, occupies me most of all. I perceive this theology as deeply authentic and as showing the way for me as a theological teacher . . . . Bonhoeffer is not right in all things, but from no theologian am I now learning so much as from him, and, to be sure, with my intellect and with my heart.

Tödt, though, was greatly distressed by those self-proclaimed scholars and would-be theologians who did not follow the whole way through Bonhoeffer but would rather “tear out individual elements of life and thought and [either] progressively instrumentalize them or conservatively distort them,” and then advocate that the guilt for the deficits in the modern churches lies in Bonhoeffer’s guidance. In an effort to expose and counter these misuses and abuses, Tödt presents a thoroughly studied and attentively perceived exposition of Bonhoeffer’s theological ethics both in the context of his life experiences and for application in our own.

Although some portions in the English translation occasionally render the complexity of Tödt’s German syntax in stilted and strained constructions, the substance of the insights and analyses of Bonhoeffer offered by Tödt make any extra time required to slow down and re-read such passages abundantly rewarding. No other book has more opened my eyes or deepened my appreciation for Bonhoeffer’s guidance in living responsibly in the concrete realities of life than Tödt’s.

Bonhoeffer Speaks Today

2009-01-04T11:52:00.005-06:00

Following Jesus at All Costs

Most people familiar with the name Dietrich Bonhoeffer likely gained that familiarity through his provocative book, The Cost of Discipleship, or his Letters and Papers from Prison, published posthumously by his best friend and student, Eberhard Bethge. Since his untimely death at the end of a Nazi noose in April 1945, Bonhoeffer’s life and ideas have become the subject of hundreds of books and countless more articles and dissertations, not be mention plays and films. The scope of scholarship on Bonhoeffer is virtually all-encompassing. Yet, Professor Mark Devine’s recent contribution to the corpus accomplishes a long-overdue advancement. By reaching beyond the multitude of nuanced academic inquiries, Devine has produced a brief work that will readily serve to re-introduce the broader evangelical Christian community to this saint and martyr of the Church.

Through the ease and accessibility of his prose, Devine achieves what his book’s title promises: Bonhoeffer speaking today. His words speak with particular clarity and challenge to the all-too-comfortable 21st Century American evangelical church that has in many obvious ways succumbed, as had the German church of the early 20th Century, to the lure of cheap grace. As a Southern Baptist professor and pastor concerned for the ailing condition of the evangelical church, Devine undertakes his task with the purpose of demonstrating the relevance of both the Lutheran Bonhoeffer’s theological ideas and his concrete application of those ideas through his exemplary life to the realities of contemporary life that confront Christians today.
In his opening chapter, Devine succinctly charts the formative influences and choices that embodied within Bonhoeffer the beliefs he expressed in his writings and through his actions. In the remaining four chapters, the author provides a helpful introduction for his readers into the extensive works of Bonhoeffer under the themes: “Knowing and Doing the Will of God” (Chapter 2); “The Community of Believers” (Chapter 3); “Witness and Relevance” (Chapter 4); and finally “Freedom, Suffering, and Hope” (Chapter 5).

Drawing heavily from Eberhard Bethge’s authoritative biography, Devine unfolds Bonhoeffer’s life by depicting with keen insights the familial relationships and educational experiences through which he heard God’s call and was formed for ministry. For example, Devine notes the almost prophetic significance of the 14-year old Bonhoeffer’s words in reply his older brothers’ urgings that he not waste his life in such a “poor, feeble, boring, petty, bourgeois institution as the Church.” To which the young Dietrich responded: “If what you say is true, I shall reform it!” (5). His account then moves with relative swiftness through the complexities of Bonhoeffer’s service as a lecturer in theology and emerging leader of the Confessing Church.

Devine, however, slows his pace when describing Bonhoeffer’s decision to return to Germany from the safety and security of America in the summer of 1939. That decision would prove to be one of the most significant turning points in a life spent not merely talking about the cost of discipleship, but one that authentically paid the price. Bonhoeffer’s unreserved commitment to the cause of Christ prompts Devine to conclude that “risky, self-sacrificing service to the church and to the world, in the name of Jesus Christ, belongs organically to Christian obedience.” (20) From this decisive event through his clandestine service as a double-agent for the Resistance, his subsequent arrest by the Gestapo, two-year imprisonment and ultimate execution by hanging at Flossenbürg, Devine demonstrates the consistent character of Bonhoeffer’s courage that sustained him in the face of evil. Having thus laid the foundation of a proven life, he proceeds to engage Bonhoeffer’s theology as it was both conveyed through his extensive writings and embodied in his practice.

Although some evangelicals and fundamentalists within this book’s intended audience have been quick to conclude that Bonhoeffer was a liberal theologian, or at least an early expression of a “neo-evangelical,” Devine makes a strong case that Bonhoeffer’s view of the Scriptures was much more in keeping with the “Back to the Bible” movement than with the higher critics who had been among his teachers. While acknowledging their influence, Devine notes that Bonhoeffer clearly recognized the limitations and even dangers of the higher critical view. In contrast, Bonhoeffer’s view of the Scriptures is succinctly set forth in a letter he wrote to his brother-in-law Rüdiger Schleicher upon which Devine founds his case. In that letter, Bonhoeffer wrote: “I want to confess quite simply that I believe the Bible alone is the answer to all our questions, and that we only need to ask persistently and with some humility in order to receive the answer from it.” (43). With such a high view of Scripture, it is no surprise that Bonhoeffer took seriously the call of Christ upon his life and so sought to know and do the will of God as his singular purpose.

For Devine, it is Bonhoeffer’s single-minded devotion to Christ that renders his voice so relevant for followers of Christ today. In an age where popular preaching and contemporary “how-to” literature approaches the Christian life more as a strategy for personal happiness and success, Devine urges his readers to listen carefully to the one who insisted that “when Christ calls a man, he bids him come and die.” (66) Taking that call seriously, as Bonhoeffer did, will lead the follower of Christ to an “others-focused” service that may often be accompanied by suffering because it will prompt the disciple to take up the burdens of others. This theme becomes pervasive throughout Devine’s survey of Bonhoeffer’s ideas on both community and witness. It culminates in his final chapter through a demonstration of the integral role of suffering in the life of a disciple who lives in the freedom from self that Christ enables and lives for the hope of the resurrection that Christ entrusts to his own.

Each chapter includes Devine’s applications of Bonhoeffer’s thinking and practice to contemporary challenges facing evangelicals through both internal struggles over doctrine and external battles in the boarder culture wars. While some of his applications are limited to his experiences within the Southern Baptist Convention, on the whole, Devine’s insights demonstrate conclusively how a young Lutheran pastor and scholar’s life and ideas may speak volumes into the hearts and minds of every serious follower of Christ in the 21st Century. This book joins the ranks of other recent works, such as Stephan Plant’s Bonhoeffer and Elizabeth Raum’s Dietrich Bonhoeffer: Called by God, and should be read by both those familiar with Bonhoeffer and especially by those who desire to be introduced to this exemplary saint and martyr who counted and paid the cost of discipleship.

The Justice of Righteous Resistance

2008-12-26T20:51:00.003-06:00

I just saw the new film Valkyrie (http://valkyrie.unitedartists.com/). The story of Colonel von Stauffenberg and of those he joined in the Resistance Movement confront us with the question of whether their acts were the practice of righteousness in the pursuit of justice against embodied evil in this world. I am compelled to the conclusion that their acts were both righteous and just yet at the same time those very acts were admittedly sinful. Like Bonhoeffer before them, their convictions required them to take concrete responsible actions to defeat the evil that was embodied in Hitler. To do less, would have been a denial of their conscience and for most, especially Bonhoeffer, their faith. While not guiltless, they remained faithful and threw themselves upon the mercy of God.

The Emergent Calvin -- Concluding Words

2008-09-12T19:39:00.006-05:00

Calvin’s two discourses at Lausanne demonstrate the thoroughness of his preparation and the timeliness of Farel's prompting of Calvin as he stood to engage the disputation. Calvin’s emergence as a public leader of the Reformation is captured by Merle’s description of the scene surrounding his first speech at Lausanne: “The young man, whose face was unknown but full of expression, had been listened to with astonishment, and people recognized in him a master. Everyone felt the force of his words, and no one raised an objection . . . The minds of the hearers seemed to be enlightened by fresh knowledge.” (Merle 250) Without controversy, Calvin – fully prepared by his legal education and forcefully prompted by the presence of his mentor – rose to the question.

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Works Cited

Cochrane, Arthur C., ed., Reformed Confessions of the 16th Century, Philadelphia: The Westminster Press, 1966.

Durant, Will, The Story of Civilization: Part VI – The Reformation, New York: Simon and Schuster, 1957.

Foxgrover, David, ed., Calvin Studies Society Papers: Calvin and Spirituality/Calvin and His Contemporaries, Colleagues, Friends and Conflicts, Grand Rapids, MI: Calvin Studies Society, 1998.

Gamble, Richard C., ed., Articles on Calvin and Calvinism, vol. I, The Biography of Calvin, New York & London: Garland Publishing, 1992.

Jones, Serene, Calvin and the Rhetoric of Piety, Louisville, KY: Westminster John Knox Press, 1995.

Merle, J.H., History of the Reformation in Europe in the Time of Calvin, vol. VI, Scotland, Switzerland and Geneva, New York: Robert Carter & Bros., 1880.

Lim, Richard, Public Disputation, Power, and Social Order in Late Antiquity, Berkeley: Univ. of Calif. Press, 1995.

Linder, Robert D., Brothers in Christ: Pierre Viret and John Calvin as Soul-mates and Co-laborers in the Work of the Reformation in Foxgrover, Calvin Studies Society Papers, pp. 134-158.

Partee, Charles, Farel’s Influence on Calvin: A Prolusion, in Gamble, Articles on Calvin and Calvinism, vol. I, pp. 73-85.

Reid, J.K.S., Calvin: Theological Treatises – Library of Christian Classics, Philadelphia: The Westminster Press, 1954

Reid, W. Stanford, John Calvin, Lawyer and Legal Reformer, in Gamble, Articles on Calvin and Calvinism, vol. I, pp. 57-72.

Wilcox, Donald J., In Search of God & Self: Renaissance and Reformation Thought, Prospect Heights, IL: Waveland Press, 1987.

Wiley, David N., Calvin’s Friendship with Guillaume Farel in Foxgrover, Calvin Studies Society Papers, pp. 187-204.

The Emergence of a Legally-Trained Mind

2008-08-18T18:56:00.003-05:00

Calvin at the Lausanne Disputation

A few weeks before the disputation convened, Farel affixed his "Ten Theses" affixed to the doors of all the churches in the cities and towns surrounding Lausanne. The theses were entitled “Conclusions which are to be discussed at Lausanne, a new province of Berne.” (Merle 237) “On Sunday, October 1, all the bells were set a-going and a great crowd filled the cathedral.” (Merle) Farel ascended the pulpit and delivered the opening sermon which he concluded with these words:

While Satan leads the sheep astray in order to destroy them, our Lord seeks to bring them back to his holy flock in order to save them. We shall never attain real unity except by means of the truth. A safe-conduct has therefore been given all, to go and come, to speak and to hear, as shall seem good to them, for the truth must not be hidden. May it be the truth that wins the day! (Merle 238)

Since all the officials before whom the disputation was to take place had not yet arrived in Lausanne, the proceedings were adjourned after Farel’s sermon to resume the following morning.

Monday at 7:00am, officials assembled in the cathedral and “presidents were chosen from among the men of Berne and Lausanne. Then Farel rose and read his first thesis, which treated man’s justification before God, developed and proved it. When he had finished, the vice-bailiff of Lausanne said aloud, ‘If any man has aught to say against these first conclusions, let him come forward and we shall willingly listen to him.’” (Merle 239)

Rather than engage Farel’s first proposition on theological grounds, the Roman Catholic canons of the cathedral raised a procedural objection to the disputation as an improper forum for the determination of doctrinal controversies. Canon Perrini asserted as grounds for his “Motion to Dismiss” that “when doubts arise respecting the faith, they must be resolved according to the true sense of the Scriptures. Now that is lawful [according to Canon Law] only to the Church Universal [i.e. an ecumenical council] which is not liable to error. Therefore, we, the provost and canons of this church do solemnly protest against this controversy and refer it to the next council.” (Merle 240)

Farel opposed the canon’s argument for dismissal of the proceedings citing both Biblical and patristic authorities, as well as the examples of “provincial councils and all their [Roman Catholic] schools and Sorbonnes, in which they hold conferences for the research of truth. (Merle) Having thus established the procedural validity and jurisdiction of the disputation as a forum for doctrinal inquiry, the participants engaged, one after another, the substantive issues presented by Farel’s theses.

On the following day, one of the lay advocates for Rome addressed the assembly. His name was Dr. Blancherose, a physician by profession, who is described in the record as it tenait de la lune (“something of a lunatic”) (Merle 242) Blancherose is worthy of note, not so much for his novel analogies for the Trinity, but because Calvin would speak directly to him in his first discourse two days later.

The third day’s proceedings began with Farel’s second thesis affirming “Jesus Christ . . . as the only chief and true priest, sovereign mediator and true advocate of his Church.” (Cochrane 115) To this proposition no one raised objection. (Merle 245) While some naïve observer might have suspected a complete concession to all ten theses at this point, the battle was just about to break loose as Farel stood to present his third proposition concerning the true Church and the “corporeal presence” of Christ in heaven. (Cochrane)

The initial volley from Blancherose, however, was pure folly. He “began to speak of the sun and all sorts of things,” and then “undertook to prove the doctrine of transubstantiation by the example of an egg, which converted into a chick, which chick is afterwards eaten by a man.” (Merle 245) Viret’s sharp wit responded, “That proof reverses the order of things. To make it applicable, it would be necessary for the priest to sit on the object transformed, as hens sit on their eggs.” (Merle) Such exchanges likely only exacerbated the attitudes on both sides of the aisle.

On the fifth day, Mimard, a serious and thoroughly prepared speaker for Rome’s Cause, rose to present his manuscripted argument containing thirteen distinct grounds for the real presence of Christ in the host. (Merle 246) His case, however, was built principally upon the bald assertion that “St. Augustine, St. Jerome, St. Ambrose and St. Gregory, … all believed in the real presence.” (Merle) Farel relied to each of Mimard’s thirteen arguments in turn, well-supported by notes from his associated, Calvin who, it is said:

Rejoiced to hear his friends defending the true doctrine and who by reason of his youth and his modesty has kept silent till that time…For four days he had sat without speaking, contenting himself with the part of a hearer. But he had a brave heart. That Ambrose, that Augustine, those other doctors, he was well acquainted with them. He knew their words by heart… He could not be silent any longer; he felt impelled to defend the principles which were brought to light by the Reformation. But he also wished to restore to those great men of Christian antiquity, and above all to his beloved Augustine, the honor which was due to them. (Merle 246-47)

The full text of Calvin’s two discourses at the Lausanne Disputation, the first presented on Thursday, October 5, and the second, brief discourse delivered on Saturday, October 7, have been published in English translation in The Library of Christian Classics in a volume entitled Calvin: Theological Treatises, translated by J.K.S. Reid. (Copies of the relevant pages thereof are appended to this paper; J.K.S. Reid 38-46).

Calvin began his discourse with a humble acknowledgement of the sufficient replies that had already been advanced by Farel and Viret. (J.K.S. Reid 38) He then turned succinctly to a thorough refutation of Mimard’s “groundless accusation.” He did not, however, have at his disposal the voluminous works of the Church Fathers, but rather cited not only Scripture but also Cyprian, Tertullian, Chrysostom and six separate passages from Augustine from memory. (Merle 248) Next, he addressed himself to Dr. Blancherose’s erroneous interpretation of Psalm 139 and finally concluded by taking the arguments of the Roman Catholics, founded upon the words of institution, and turned them on their heads. (J.K.S. Reid 43-45)

From his first extemporaneous discourse it became clear that Calvin “knew how to capture the attention of his audience, how to hold them attentive to his words, how to appeal to their deepest fears and loftiest expectations, how to spin an argument of fine and simple beauty, how to move and compel them to action. In short, Calvin was . . . one of the grandest French orators of his time, a reputation that has since earned him the title “founder of modern French eloquence.” (Jones 12; quoting Francis Higman, Calvin the Writer manuscript, 1989) Furthermore, his first discourse demonstrated that Calvin could turn the arguments of his opponents against themselves. In so doing, he exhibited his own facility with rhetorical skills and logical analysis that he had learned from Alicati and Bude. (Jones 33)

In his second brief discourse on the seventh day of the disputation, Calvin refuted the Roman Catholic dogma of transubstantiation by resort to a tract by Cardinal Beno that provided ready fodder for blasting Pope Gregory VII’s original formulation of that dogma. (J.K.S. Reid 45,46) Here Calvin displayed, in a concise manner, his rhetorical skills at an even more refined level. In these few words, he used “voices from the past” to buttress his own position – a notable rhetorical technique in its own right. But, Calvin did not feel constrained to use these “voices” as they had previously been used. “Rather, keeping his won discursive agenda ever before him, he assessed them in terms of their pragmatic usefulness and employed them only insofar as they served to promote what he considered to be sound teaching.” (Jones 34)

Mentors Make the Man

2008-08-01T11:36:00.002-05:00

The Influence of Guillaume Farel

The occasion of Calvin’s first encounter with Guillaume Farel remains a matter of speculation. One scholar has suggested that they may have crossed paths in Basel shortly after Calvin had been expelled from Paris following the Affairs of the Placards. (Jones 17) Another, commenting upon Farel’s own account of his prevailing upon Calvin to join the work in Geneva, posits that Farel’s words belie an earlier meeting than that momentous one in the summer of 1536. (Wiley 190-91) Whether Farel had personally met Calvin prior to July, 1536 or had come to know of him from his colleagues, he clearly recognized in Calvin the qualities of scholarship and administration that could well serve God’s purpose in Geneva.

Farel was at this time one of the few outstanding Protestant leaders in France. (Partee 73) His influence upon and relationship with Calvin has been described as “a kind of Caleb to Calvin’s Joshua” as Farel’s leadership was “eclipsed by Calvin, not so much as a pioneer and preacher, but as a thinker and organizer.” (Partee) Calvin, himself, envisioned his relationship to Farel as analogous to that of Titus to Paul when he wrote to Farel in the dedicatory preface to his 1549 commentary on Titus that “the building Paul had begun but left uncompleted was undertaken by Titus, and I stand almost in the same relationship to you.” (Wiley 187)

While both the Caleb-Joshua and the Paul-Titus pictures are descriptive, the best biblical analogy for Farel’s role in Calvin’s life is that of Barnabas, the son of encouragement, to Paul. As Barnabas open-heartedly greeted, introduced and prompted Paul into positions of ministry (see Acts 9:26-30; 11:25,26; 13:2,3), so Farel exhorted Calvin to the work of ministry at Geneva and, as we propose here, his characteristic urging most likely prompted the young Calvin to stand forward and speak up at Lausanne.

The likelihood that Farel pressed his associate to the floor at Lausanne in October of 1536 is enhanced by recalling Farel’s forceful proclamation of God’s will for Calvin just four months earlier in Geneva. Calvin recounts this defining moment in his life as follows:

Farel, who burned with marvelous zeal to advance the Gospel, went out of his way to keep me. And after having heard that I had several private studies for which I wished to keep myself free, and finding that he got no where with his requests, he gave vent to an imprecation, that it might please God to curse my leisure and peace for study that I was looking for, if I went away and refused to give them support and help in a situation of such great need. (Wiley 190; quoting Alister E. McGrath, A Life of John Calvin, Oxford: Basil Blackwell, 1995, p. 95)

While Calvin’s version provides the perspective of the exhortee’s perception, Farel expressed his intention in the exhortation in a letter to Fabri written shortly after Calvin’s death. There he stated, “God caused Calvin to stop in Geneva ‘where he [i.e. Farel] had never expected to see him.’ Calvin was there constrained by ‘many’ and ‘particularly by me who, in the name of God, constrained him to do and take on affairs which were harder than death . . . . Seeing that what I demanded was according to God, he forced himself’ to do what had to be done.” (Wiley 190-91)

Farel initially evidenced his “Barnabas traits” when he previously discovered Pierre Viret, who would become Calvin’s closest colleague and “most enduring friend.” (Linder 158) Viret met Farel in 1530 when Viret returned to his hometown of Orbe following his studies in Paris at the College de Montaigu; Calvin’s own alma mater. (Linder 136, 141) It appears from the following account that Farel first honed his exhortative skills upon Viret:

Farel, seeing that he was a young man of great promise, attempted to introduce him to the ministry at Orbe, which Viret resisted with all his power, because he considered the high calling and difficulty of being a minister of the Gospel, and because he was by nature shy and retiring. Farel, knowing that Viret feared God and had no wish to see the Gospel cease to be preached in Orbe, took off from there, leaving Viret in his place, making him give strong assurances that he would pursue the work which he [Farel] had begun. (Linder 136; quoting A.L. Herminjard, ed. Correspondence des Reformateurs daus les pay de Langue Francaise, Geneva: H. George, 1864-1897, vol. 2, no. 358, note 9)

Viret would later join Farel in Geneva and was present to witness Farel’s charge to Calvin. Calvin was twenty-seven, and Viret twenty-five in 1536. “Soon they were engaged in the most rugged kind of spiritual combat with a stubborn people in a tumultuous struggle for religious and political reform. (Linder 140) Both had been called to arms by Farel. Both were, by that year, “word-smiths of note: the one, Calvin, choosing words primarily to elucidate, the other, Viret, primarily to motivate.” (Linder 141) Both joined Farel on the journey to Lausanne in the fall of 1536. Viret stood, with several other colleagues from his home province, for the Reform, but “the man who chiefly attracted attention was Farel. [He] was accompanied by a young man, pale and modest, unknown by sight to most, who appeared to be his assistant. It was John Calvin.” (Merle 236)

As Farel’s “second chair” at the Lausanne Disputation, Calvin would carefully attend to the points of argument and offers of evidence adduced by their opposing counsel, most likely passing Farel copious notes upon which he might draw in rebuttal, as any good second chair worth his salt would do. As the disputation progressed, however, and the more intricate issues were joined, the day would shortly come when Farel would urge his young second to leave off his note-taking and rise to the question with his own voice.

If You Survive . . . You'll Leave Thinking Like a Lawyer

2008-07-12T11:26:00.002-05:00

The Influence of Calvin’s Legal Education

In early sixteenth century France, a legal education had become a practical necessity for anyone aspiring to a career in the administrative affairs of either church or state. (Jones 15) It was also highly valued by those who sought only the prestige of a law degree though never intending to enter the practice. (Jones) For Calvin, though, neither of these aspirations led him to study law. Instead, after beginning his classical studies at the University of Paris, he heeded the advice of his father, who was a notary himself, and traveled to Orleans where he commenced his legal training. Such a change in direction was not at all unusual for a young student of that day (or our own day for that matter) who upon completing their legal studies turned away from the courts and followed a more scholarly vocation that often led them further into the exciting fray of the broad educational movement afoot at that time – humanism. (Jones)

Lawyers who followed along this path often would engage the theological questions that gave rise to and advanced the Reformation. Some scholars have even contended that lawyers had as substantial an impact on the Reformation as they did the Renaissance. (W.S. Reid 57) “From the new legal exegetical and expository methods, the Protestant theologians learned much to assist their study and interpretation of Holy Writ as well as in organization of new churches. Among Reformers no one owed his legal training a greater debt than did John Calvin.” (W.S. Reid)

At Orleans, Calvin studied under Pierre Taisan de l’Estoile, who was well known throughout France as an able exponent of Roman law. (W.S. Reid 59) Pierre Taisan, however, followed the older technique in teaching the law “basing his exposition on the medieval glossators, Bartolus and Accurius.” (W.S. Reid) Having already been introduced to the humanists, however, Calvin along with some of his fellow like-minded legal scholars left Taisan’s lectures in Orleans after a year and traveled to the University of Bourges where, they learned, the Italian jurist Andrea Alicati had recently begun lecturing. (W.S. Reid)

“Heralded as the premier reformer of juridical science, Alicati was trained, as were most Italian humanists, in the art of classical rhetoric.” (Jones 16) With his wide knowledge of both the Greek and Latin classics, Alicati was able to come to the Roman law with a profound historical understanding of it. The law, as expounded by Alicati, was not “a dead series of principles, but a living social phenomenon.” (W.S. Reid 59) He encouraged his students to read Roman law by placing it in its original rhetorical framework. (Jones 16)

Since Calvin had already received a good humanist education during his initial years of study at the University of Paris, he found that Alicati’s humanist method approach to exegesis of Roman law was consistent with his prior training. Consequently, Calvin was “able to combine both his legal and classical studies to gain a sound historical understanding of the law’s growth and development as a means of social control.” (W.S. Reid 60)

It was during this period of Calvin’s legal training that his first published writing appeared – his Antapologia, a prefatory letter to the treatise of Nicolas Duchemin defending their first law professor, Pierre Taisan, against a violent attack by Alicati on Taisan’s “old-fashioned” teaching techniques. (W.S. Reid) Thus, Calvin demonstrated an independent and critical analysis of his own renowned law professor at Bourges. Calvin’s skill as a legal rhetorician was gaining him some additional recognition as he was asked to deliver lectures on rhetoric at a local Augustinian convent. (Jones 16)

About this same time, Calvin began to work on what would become his first scholarly publication, a commentary on Seneca’s De clementia. Though it received no popular scholarly acclaim at the time, Calvin’s commentary has been described by a recent scholar as a “perfect specimen of sixteenth-century scholarship” in that it exhibits the well-honed skills of a writer “practiced in the arts of philology, textual criticism, and translation, the three hallmarks of humanist scholarship.” (Jones) Furthermore, this commentary serves as perhaps the best evidence that by 1532, Calvin had become an accomplished master in the art of classical rhetoric and in its reconceptualization in the world of Renaissance humanism. (Jones)

Although he was the object of Calvin’s critique, Alicati did provide the young scholar with the rhetorical methods that he used in the preparation of his commentary on Seneca, and Calvin would go on to employ those same methods in all of his later works, particularly his commentaries on the Bible. It was also Alicati who stimulated Calvin to obtain a greater knowledge of the Greek classics, which required him to intensify his efforts to master the Greek language. (W.S. Reid 60)

In addition to the substantial influence from his law professor Alicati, two other humanist scholars shaped Calvin’s thinking during his legal training. Bude, a contemporary, fortified the historical method and use of evidence that Calvin had learned from Alicati. Both Bude and Alicati had inherited their approach from Lorenzo Valla, a fifteenth-century humanist scholar. (W.S. Reid 61) The other writer, from a previous generation of scholars, who influenced Calvin concerning the method of proper exegesis was Desiderius Erasmus. Calvin called Bude the first pillar and Erasmus the second pillar of humanist literature. (W.S. Reid 61)

“No one can appreciate the character of Calvin’s writings unless he recognizes his legal education, which trained him in the art of definitions, divisions, the asking of questions, the dealing with arguments effectively and the taking out of a text all that it was susceptible of giving.” (W.S. Reid 57; quoting A. Lefranc, Calvin et l’Eloquence Francaise, Paris, 1934) From his legal training in rhetorical skills of analysis and exposition, Calvin “understood how to establish the historical context as the essential first step in the process and then to identify the personality of the author himself.” (Wilcox 310) What has been said of Calvin’s writings is equally applicable to his discourses. But, as we shall see through an analysis of his discourses at the Lausanne Disputation, Calvin’s use of rhetoric was much more creative than the rules of evidence and argumentation he had been taught in law school. (Jones 25)

In fact, as one scholar has noted, Calvin’s preference for a lucid and concise style in both Latin and French, void of unnecessary rhetorical flourishes or distracting ornamentation, constituted a certain “sober literary aesthetic” that differed significantly from the style adopted by his French contemporaries. (Jones 26; citing Higman, Calvin the Writer) Thus, the training in law that Calvin had received in Orleans and more so in Bourges provided the essential preparation that would enable him to argue the question at Lausanne. What remained, however, was the urging of his friend and mentor Farel to prompt Calvin to rise to his feet on that fateful fifth day of the Disputation.

The Forming of Calvin's Theological Mind

2008-07-07T18:45:00.003-05:00

Historical Background for the Use of Public Disputation

Public disputation has served a vital role in the formation of civilized societies throughout recorded history. Plutarch, in his De sollertia animaliaum, recounts one the earliest disputations between two Greeks on the pressing issue of whether animals living on land possessed superior intelligence to those living in water. (Lim 2) While the question under review by the ancients may seem trifling, the significance of Plutarch’s account is found in his description of the format and procedure by which the issue was joined.

First and foremost, a disputation was a ritualized verbal contest in which antagonists debated each other while adhering to the rules of a language game, whether of rhetoric or of dialectic. In Plutarch’s example, the debate entailed an exchange of reasoned arguments in successive continuous speeches rather than a mutual cross fire, or dialectical interrogation, by the two adversaries. Both forms of debate were common in antiquity. (Lim 3)

Public disputation also appears in a form in Luke’s record of the early church’s development as her apostles, elders and leaders met and addressed themselves to the question of the salvation of the Gentiles at the Council of Jerusalem. (Acts 15) A few short centuries later, at least one of the Church Fathers, Ambrose, warned of the dangers of relying upon dialectic in resolving doctrinal disputes when he wrote: “Let the empty questions regarding speech cease now, for the Kingdom of God, as it is written, consists not in the persuasion of words, but in the exhibition of virtuous deeds.” (Lim 216; quoting Ambrose) Emperors Theodosius II and Valentinian were heeding Ambrose’s admonition when they convened the Council of Ephesus in 431 with these words of instruction:

With patience each shall hear whatsoever is said and each shall be ready to reply or for reply to be made to him and thus by questions and by replies and by solution the inquiry touching the true faith shall be judged without any dispute and by common examination of our Saintliness it will reach a happy agreement without dispute. (Lim 221; quoting Candidianus sent as comes domesticorum by the emperors to the Council of Ephesus)

While recognizing the dangers and the weaknesses of relying solely upon public disputation as a means of resolving doctrinal disputes, there is evidence, however, that church leaders continued to use disputation as a successful forum for the resolution of disputes as well as the promulgation of the truth. Eusebius chronicles the experience of Dionysius of Alexandria who convened an open disputation in Arsinoe. Dionysius reported, “I called together presbyters and teachers of the brethren in the villages (there were present also such of the brethren as wished), and I urged them to hold the examination of the question publicly.” (Lim 21; quoting Eusebius, Hist. eccl. 7.24.6-7 (Oulton, ed. 2:194-95)) This “public examination” extended for three full days “from morn till night.” Dionysius would later describe the procedures and the attitudes displayed by the participants during the disputation in these words:

On that occasion I conceived the greatest admiration for the brethren, their firmness, love of truth, facility in following an argument, and intelligence as we propounded in order and with forbearance the questions, the difficulties raised and the points of agreement; on the one hand refusing to cling obstinately and at all costs (even though they were manifestly wrong) to opinions once held; and on the other hand not shirking the counter-arguments, but as far as possible attempting to grapple with the questions in hand and master them. Nor, if convinced by reason, were we ashamed to change our opinions and give our assent; but conscientiously and unfeignedly and with hearts laid open to God we accepted whatever was established by the proofs and teachings of the holy Scriptures. (Lim 21; quoting Eusebius, Hist. eccl.
7.24.8 (Oulton, ed., 2:194-95))

This same pattern of “public examination” where the participants “propounded in order and with forbearance the questions” would continue as a principal vehicle for the contesting of truth down through the centuries. Indeed, it became of the chief means by which the propositions advanced by Luther, Calvin and their colleagues would endeavor to reform the Church. The vital and effective function of public disputation was concisely confirmed by Calvin in his personal correspondence commenting upon the proceedings at Lausanne when he wrote: “The Senate of Berne has declared that everyone is at liberty to state his objections freely, without need to fear being disturbed in consequence of it. That is the fittest means of exposing the ignorance of those who set themselves against the Gospel.” (Merle 236; quoting Calvin, Letter to F. Daniel, Lausanne, October 13, 1536)

Thus, the forum was opened at Lausanne for a full and free public debate of the issues of the day. But, was Calvin up to the task of rising to the question? We will find that the answer is a resounding yes as we now turn our consideration to his preparation for the task through his training at Orleans and Bourges and his prompting to the task by his encounters with his friend and, in some respects, mentor Guillaume Farel.

The Forming of Calvin's Analytical Mind -- The Impact of a 16th Century Law School Education

2008-06-29T18:34:00.004-05:00

From the earliest days of antiquity to the defining moments of our present day, questions of political policy, legal principle and religious doctrine and practice have regularly been the subjects of vigorous debate. While such discussions have often informally occurred in venues as diverse as the Areopagus and the office water cooler, more formalized proceedings have been developed throughout the progress of civilization for the open engagement on issues of import.

Indeed, it could be said that each significant advancement in the arena of human ideas has been accompanied and promoted by rigorous public dialogue. This was particularly true in the case of the Reformation. Luther’s posting of his Ninety-five Theses to the Wittenberg church door in 1517 was the first step in what by then had become a well-developed procedure calling for a public disputation. Such a forum, as well as the many that soon would follow thereupon, served as a chief means of persuasion spreading over the European continent convincing arguments in support of the Reformers’ ideas.

Of the numerous public disputations that furthered the Reformation’s cause throughout Europe in the 16th century, one held in the city of Lausanne in October 1536, is especially noteworthy. The Lausanne Disputation holds a unique place because is was at this “famous disputation” that John Calvin “took a minor part” (Durant 469) that would propel him into a prominent leadership role in the progress of the Reformation. My forthcoming series of postings will examine the factors contributing to Calvin’s emergence at Lausanne as a public leader of the Reformation.

In conducting this brief survey, we will first take a passing glance at the historical background for the use of public disputation as a forum for civic and ecclesial dialogue. We will then turn to what I will advance as the principal factors that substantially prepared and prompted Calvin to rise to the question at Lausanne: his legal education and the influence of Guillaume Farel. Finally, we will analyze the rhetoric of Calvin’s two disputation discourses to discover the characteristics of his argumentation that not only won the day at Lausanne but also well advanced, at least in the appraisal of some, the purpose of God in Calvin’s own generation.

Judaism and American Law

2008-06-15T20:57:00.003-05:00

Conclusion

The considerations of justice in American law and its foundations in Torah demand much more investigation and analysis than we have been able to offer in these few postings. In concluding our limited engagement of these ideas, I would offer a few words from the lips of Shakespeare’s Portia:

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.
Therefore, Jew, though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

Merchant of Venice, Act IV, Scene 1

To the extent that these words from Shakespeare are read to suggest that the Jewish idea of justice excludes mercy, to that extent, we may confidently say: Shakespeare got it wrong. Rather, “mercy seasoning justice” is at the heart of the very idea of justice that Torah imparts to all who have been influenced thereby – that idea has been interwoven within and is a substantial foundation for American law. Thus, all who value justice in human society owe an immeasurable debt of gratitude to Judaism and its cultures for this most precious of gifts.

Judaism and American Law -- Part 9

2008-06-06T18:48:00.002-05:00

Our fifth and final passage addresses the substantive area of property law. Often the visual image of a bundle of sticks is used by legal commentators to describe the rights through which property law operates. These include the right of ownership, the right of possession, the right of use and the right of transfer, lease or sale, to name just a few. In Torah we have the foundations for two essential property rights – the right of redemption and the right of reversion. In Leviticus 25:23, God commands:

The land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me. Throughout the land that you hold, you must provide for the redemption of the land.

This passage then goes on to detail the provisions through which a member of the community is enabled to redeem property that had to be sold due to the initial owner’s financial straits. These provisions extend, in certain cases, to provide the return of the property even if the person is not financially able to exercise his right of redemption directly or indirectly through a near relative. In verse 28, we read:

If he lacks sufficient means to recover it, what he sold shall remain with the purchaser until the jubilee; in the jubilee year it shall be released, and he shall return to his holding.

Rights of redemption of real property are expressly provided for in modern American law through provisions in Deeds of Trust where the borrower on a home loan is given the right to redeem the title to her property for a limited period of time even after default and foreclosure. Rights of reversion are frequently made a part of the transfer of title to property when the ownership interest transferred is limited to the life span of the person to whom the transfer is made or when it is conditioned upon a particular specified use. In both cases, the foundational idea for these property rights stems from the provisions of Leviticus 25.

In each of the foregoing areas of law we may trace foundational ideas back to Torah: Subject matter jurisdiction in dispute resolution; the essential nature of order in criminal law; duty in tort; promise in contract and rights in property law. These five are but a few examples of how the Jewish idea of justice is worked out in practice as 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 and how that essential idea provides foundations for aspects of our American legal system.

Judaism and American Law - Part 8

2008-05-16T18:16:00.004-05:00

The fourth portion of the Torah that we will consider provides the foundational concept for contract law which is promise, or in the language of the Bible, covenant and vow. In American law, a contract is defined – in the words of my venerable contracts professor at Saint Louis University School of Law, Vincent Immel – as “a promise or a set of promises for the performance of which the law imposes a duty and for the breach of which the law provides a remedy.” Thus, contract arises from promise, and promise is the essential core of covenant in Torah.

God reveals Himself as the promise keeping God. Through the words of Balaam, the would-be prophet of Balak, He declared:

God is not man to be capricious, or mortal to change His mind. Would He speak and not act, Promise and not fulfill? (Numbers 23:19)

Covenant is one of the most prominent features of Torah. It expressed the relationship that God creates with His people. While we might explore numerous passages detailing the nature and scope of covenant, for the purposes of this series, I would like to examine an aspect of promise or vow in Torah that might be easily overlooked.

One essential component of a promise that the law will recognize as a contact is “capacity”, that is, the one who makes the promise must have the legal capacity to enter into the contract. This is most readily apparent when the law imposes a minimum age requirement for the person seeking to enter into a contractual relationship.

An un-emancipated minor does not have the legal capacity to make a promise that will be enforced by the law as a contract. This idea of “capacity to contract” appears in seminal form is Number 30:4-6, as follows:

If a woman makes a vow to the Lord or assumes an obligation while still in her father’s household by reason of her youth, and her father learns of her vow or her self-imposed obligation and offers no objection, all her vows shall stand and every self-imposed obligation shall stand. But if her father restrains her on the day he finds out, none of her vows or self-imposed obligations shall stand; and the Lord will forgive her, since her father restrained her.

Here the youth is un-emancipated since she is still within her father’s household. The passage thus appears to indicate that both her age and her un-emancipated state render her legally incapable of making a promise that will be regarded as an obligatory vow unless her father gives his express or tacit consent.

Mark Bertrand on Mars Hill Audio Journal

2008-05-04T13:06:00.003-05:00

My friend and Worldview Academy colleague, Mark Bertrand, is the opening interview on volume 90 of the Mars Hill Audio Journal. I've talked about Mark and his important new book, (Re)Thinking Worldview, before, and you'll enjoy his interview with Ken Myers, who is the very best in the business.

Oh, and Mr. Myers discusses my book Redeeming Law with me on the very same issue. See my post at RedeemingLaw and Mark's reflections for more on this fun development.

Judaism and American Law - Part 7

2008-04-20T16:33:00.002-05:00

Tort law is similar in some respects to criminal law. In criminal law we have the public redress of offenses. In tort law the means are provided for the private redress of wrongs committed against either persons or property. For example, in criminal law, the offense of murder is prosecuted by the state on behalf of the people. The same murderous act may also provide the basis for a tort claim of wrongful death against the alleged killer by the surviving members of the victim’s family. The prosecution of criminal acts upholds the order of society. The litigation of tort claims arise out of the breach of duties that are owed to another as recognized and imposed by the law.

Our third passage under consideration provides one of the oldest formulations of a duty of care in tort law. Nearly every law student will recall a tort case read during their first year of studies that provides the legal maxim: “Every dog is entitled to one bite.” This rule, however, has its roots in Exodus, chapter 21, where we read, beginning in verse 28:

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman – the ox shall be stoned and its owner, too, shall be put to death. If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.

Though not as deferential to the life of the animal, the rule in Torah provides that the owner of the ox is preserved from greater liability upon the occasion of the first gore. The owner’s liability for injury to the victim is substantially increased, however, if the ox has been in the habit of goring. In modern tort law, the issue is whether the owner of the dog knew or should have known of the dog’s propensity to bite. If the answer to that question is yes, then the owner’s duty of care is heightened and his potential liability for injury caused by the dog bite is increased.

Judaism and American Law -- Part 6

2008-04-05T20:23:00.003-05:00

Let's turn our consideration now to some specific passages in Torah where we will find that this foundational notion of justice is imbedded. 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 passage begins at 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.

In the second passage under consideration, we are presented with a foundational idea in criminal law – the requirement that every crime for which a punishment is prescribed be proven by a showing of not only the performance of a prohibited act but also that the act has been taken by the offender in a particular mental state. We readily recognize this requirement in modern criminal law when we speak of the difference between first degree murder which involved a premeditated act and second degree murder or manslaughter which involve un-premeditated acts or acts taken with reckless disregard for the life and well-being of the victim.

Exodus 21:12-14 provides a foundation for this requirement in criminal law of both actus reus, the prohibited act, and mens rea the requisite mental indent. It is this second element of the crime, the mens rea, that is deemed the substantial indicator of the level of punishment to be imposed upon the perpetrator of the offense. Note how this is expressed in Exodus 21:

He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can flee. When a man schemes against another and kills him treacherously, you shall take him from My very altar to be put to death.

This passage indicates that a person who has committed an un-premeditated killing is not subject to capital punishment, but may flee to a designated place of refuge. These “cities of refuge” are later expressly provided for in Torah, in Numbers 35:11ff:

You shall provide yourselves with places to serve you as cities of refuge to which a manslayer who has killed a person unintentionally may flee. The cities shall serve you as a refuge from the avenger, so that the manslayer may not die unless he has stood trial before the assembly.

Thus, Torah provides the foundation for the idea that proof of an objective outward act alone is not sufficient to properly administer justice in a criminal matter. Rather, the one called upon to administer justice must also determine the mental state of the actor who has committed the offense so that an unintentional act is not justly punished in the same way and with the same severity as an intentional criminal act. This distinction is one of the foundational elements that enables the punishment of the guilty through a system of criminal justice with the purpose of maintaining order in human society.

Canadian Legal Fellowship Law Student Conference

2008-02-26T11:51:00.004-06:00

What a treat it was to be part of the CLF National Student Conference in Windsor, Ontario last weekend. The students heard from lawyers, law profs, doctors, and pastors from the US and Canada, encouraging them to follow Christ as students and lawyers.

I can't say enough about the hospitality of the CLF staff and the students who organized the event. Special thanks to Liz Sinnott, a law student who took time out from her dual-degree studies to help make the conference go.

Please pray for our brothers and sisters practicing law in Canada as they seek to follow Christ in a very important and influential ministry to their nation. Click here for more info on CLF.

More on the Death Penalty

2008-02-18T18:09:00.004-06:00

Over at Mirror of Justice, Rick Garnett comments on an article by Walter Berns about the relationship between religion and the death penalty, in which Berns evaluates the observation of Albert Camus that a religious people have the best defense of the death penalty. To keep up the commenting, I'll comment on Rick's comment to Bern's commentary on the Camus comment.

Berns's makes his point by describing the world of Camus' The Stranger, a world in which God is dead and the protogonist kills for now reason, because he has no passion, no ground for hate, for love, for friendship-- because he lives in a world in which God dead. This is not our world, concludes Berns:

A world so lacking in passion lacks the necessary components of punishment. Punishment has its origins in the demand for justice, and justice is demanded by angry, morally indignant men, men who are angry when someone else is robbed,
raped, or murdered, men utterly unlike Camus's Meursault. This anger is an expression of their caring, and the just society needs citizens who care for each other, and for the community of which they are parts. One of the purposes of punishment, particularly capital punishment, is to recognize the legitimacy of that righteous anger and to satisfy and thereby to reward it. In this way, the death penalty, when duly or deliberately imposed, serves to strengthen the moral sentiments required by a self-governing community.

I want to add one more car to this train of thought: Relgious people have hope, rather than despair, in the face of human justice that always disappoints, always falls short of ultimate justice by its very nature. And the only way there is hope is if one knows that there is in fact, perfect justice byond this world, that criminals do not ever get off "scot free" and that innocent will be vindicated, no matter the oppression in this world.

Without this hope, our relatively miserable attempts at justice are indeed a cause for despair, and this despair will be great among those who believe that human justice is all the justice that can be. (On this point, see J. Budziszewski, What We Can't Not Know, and this article in First Things.)

Finally, in light of all this interesting stuff, I want to again wonder aloud about the lack of attention to special revelation among Christian anti-death-penalty legal scholars. It is abslolutely undeniable that God himself authorized the death penalty in a number of societies, according to Scripture, and that he expressly authorized its use. How, then, can it be surprising that the best arguments for the death penalty are relgious ones?

Dobson and McCain and Evangelicals and Voting and . . .

2008-02-05T16:53:00.000-06:00

James Dobson has released a short statement listing reasons that he will not vote for John McCain if he is a candidate for President. (BTW, I have just now seen theology professor Wayne Grudem's townhall article reasoning that evangelicals should support Romney. It's worth reading, but we seem to be beyond all this by now. HT: wife)

The early unwise and indiscriminate latching on to Huckabee by evangelicals, so many open primaries favoring "crossover" candiates, and the heavy role of the press have pretty much taken the debate over vision and ideology right out of the picture. I think this is bad; maybe I"m wrong. I'm just saying.

This nomination process, regrading both parties, has felt more like a hype-fest crap shoot than it has in years past. Maybe I'm getting older and it has always been that way. But sound bites, image, and press cred is a lousy way to select a presidential nominee. I think the most exciting event of the politcal season will be seeing who the Dem nominee selects as his or her running mate.

Redeeming Law Blog

2008-01-28T15:44:00.000-06:00

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.

Judaism and the Foundations of American Law -- Part 5

2008-01-12T18:23:00.000-06:00

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.

Judaism and the Foundations of American Law -- Part 4

2008-01-06T23:39:00.000-06:00

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.

Judaism and the Foundations of American Law - Part 3

2007-12-31T17:27:00.000-06:00

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

2007-12-27T11:43:00.000-06:00

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

2007-12-26T15:51:00.000-06:00

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

2007-12-21T20:40:00.000-06:00

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

2007-12-10T16:29:00.000-06:00

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?

2007-11-29T14:06:00.001-06:00

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

2007-11-14T19:58:00.000-06:00

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

2007-11-11T13:52:00.000-06:00

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

2007-11-10T13:15:00.001-06:00

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

2007-11-03T09:15:00.000-05:00

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

2007-10-13T21:49:00.000-05:00

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

2007-10-09T13:57:00.000-05:00

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

2007-10-08T17:21:00.000-05:00

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

2007-09-28T13:01:00.000-05:00

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

2007-09-21T16:00:00.000-05:00

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

2007-08-28T15:33:00.000-05:00

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

2007-08-17T16:54:00.000-05:00

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.