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.
Sunday, June 29, 2008
Sunday, June 15, 2008
Judaism and American Law
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 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:
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.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
Friday, June 06, 2008
Judaism and American Law -- Part 9
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.
Friday, May 16, 2008
Judaism and American Law - Part 8
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:
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:
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.
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.
Sunday, May 04, 2008
Mark Bertrand on Mars Hill Audio Journal
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.
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.
Sunday, April 20, 2008
Judaism and American Law - Part 7
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:
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:
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.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.
Saturday, April 05, 2008
Judaism and American Law -- Part 6
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:
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:
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:
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.
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:
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."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.”
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.
Tuesday, February 26, 2008
Canadian Legal Fellowship Law Student Conference
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.
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.
Monday, February 18, 2008
More on the Death Penalty
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:
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?
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,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.
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.
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?
Tuesday, February 05, 2008
Dobson and McCain and Evangelicals and Voting and . . .
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.
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.
Monday, January 28, 2008
Redeeming Law Blog
I've started a new blog to deal with the questions I get about my book, Redeeming Law: Christian Calling and the Legal Profession, and to discuss issues related to the calling to the law.
I hope to post answers to the many questions I receive from law students and pre-law students who are seeking to find their calling in the legal profession. I also hope to answer some of the questions that I have failed to answer in the book, either through omission or simple incoherence.
I hope to post answers to the many questions I receive from law students and pre-law students who are seeking to find their calling in the legal profession. I also hope to answer some of the questions that I have failed to answer in the book, either through omission or simple incoherence.
Saturday, January 12, 2008
Judaism and the Foundations of American Law -- Part 5
Let us now turn our consideration to some specific passages in Torah where we will find that this foundational notion of justice is embedded. I will suggest that it is exemplified by at least five provisions that have direct relationship to the administration of justice that has developed in our American Legal System.
The first is procedural and the remaining four address substantive law. The first passage provides an approach to conflict resolution. In the four substantive areas, we will examine passages from Torah that articulate underlying aspects of justice and the function of law that have emerged as foundational within each of those substantive areas: in criminal law the idea of “order”; in tort law, the concept of “duty”; in contract, the notion of “promise” and in property law, the idea of “rights”.
The first passage is found in Exodus 18 and provides foundational guidance for the administration of justice through dispute resolution – for what is called in the American legal system, subject matter jurisdiction. In Exodus 18, Moses faced a dilemma. He alone was serving as the arbitrator of disputes. When his wise father-in-law observed how taxing the task was that Moses was then performing, he proposed a solution that has been followed even to our day in the establishing of courts of inferior and superior jurisdiction.
The account continues in verse 13: "Next day, Moses sat as magistrate among the people, while the people stood about Moses from morning until evening. But when Moses’ father-in-law saw how much he had to do for the people, he said, “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” Moses replied to his father-in-law, “It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the law and teachings of God.”
But Moses’ father-in-law said to him, “The thing you are doing is not right; you will surely wear your self out, and these people as well. For the task is too heavy for you; you cannot do it alone. Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God, and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow. You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute themselves. Make it easier for yourself by letting them share the burden with you. If you do this – and God so commands you – you will be able to bear up; and all these people too will go home unwearied.”
Moses followed his father-in-law’s counsel and appointed others who would hear the more minor matters – the small claims. The more difficult disputes were reserved for Moses’ immediate jurisdiction. This passage is one of the particular examples to which Dimont referred when he outlined the procedural dimensions of justice found in Torah. Others that also address procedural matters – what in American law is known as procedural due process – could be explored in greater detail, but we will turn our attention now to substantive areas of law.
The first is procedural and the remaining four address substantive law. The first passage provides an approach to conflict resolution. In the four substantive areas, we will examine passages from Torah that articulate underlying aspects of justice and the function of law that have emerged as foundational within each of those substantive areas: in criminal law the idea of “order”; in tort law, the concept of “duty”; in contract, the notion of “promise” and in property law, the idea of “rights”.
The first passage is found in Exodus 18 and provides foundational guidance for the administration of justice through dispute resolution – for what is called in the American legal system, subject matter jurisdiction. In Exodus 18, Moses faced a dilemma. He alone was serving as the arbitrator of disputes. When his wise father-in-law observed how taxing the task was that Moses was then performing, he proposed a solution that has been followed even to our day in the establishing of courts of inferior and superior jurisdiction.
The account continues in verse 13: "Next day, Moses sat as magistrate among the people, while the people stood about Moses from morning until evening. But when Moses’ father-in-law saw how much he had to do for the people, he said, “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” Moses replied to his father-in-law, “It is because the people come to me to inquire of God. When they have a dispute, it comes before me, and I decide between one person and another, and I make known the law and teachings of God.”
But Moses’ father-in-law said to him, “The thing you are doing is not right; you will surely wear your self out, and these people as well. For the task is too heavy for you; you cannot do it alone. Now listen to me. I will give you counsel, and God be with you! You represent the people before God: you bring the disputes before God, and enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow. You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties, and tens, and let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute themselves. Make it easier for yourself by letting them share the burden with you. If you do this – and God so commands you – you will be able to bear up; and all these people too will go home unwearied.”
Moses followed his father-in-law’s counsel and appointed others who would hear the more minor matters – the small claims. The more difficult disputes were reserved for Moses’ immediate jurisdiction. This passage is one of the particular examples to which Dimont referred when he outlined the procedural dimensions of justice found in Torah. Others that also address procedural matters – what in American law is known as procedural due process – could be explored in greater detail, but we will turn our attention now to substantive areas of law.
Sunday, January 06, 2008
Judaism and the Foundations of American Law -- Part 4
Some may suggest that the works of Dimont, Cahill and even Professor Dershowitz do not rise above the level of popular treatments of the subject, and therefore, do not marshal sufficient scholarly evidence to under gird the thesis to which each contributes. Although I believe that these three do provide not only a solid introduction to the subject of Judaism’s influence, both indirect and direct, upon the development of concepts of justice and law that are integral to the American legal system, but also a substantial elucidation of the same, still other scholars have examined these relationships to an even deeper degree.
Outstanding among these who are engaged in the scholarship in this area is Bernard Jackson, Alliance Professor of Modern Jewish Studies at the University of Manchester in England. Professor Jackson along with Phillip Alexander serve together there as the co-directors at the University’s Centre for Jewish Studies.
In his article “‘Law’ and ‘Justice’ in the Bible”, Professor Jackson notes that “when we examine the charges given to judges in the biblical sources, we find a conspicuous absence of reference to any duty to apply codes or rules of positive law. Rather, the charges to judges . . . are characterized by two demands: to avoid corruption and partiality [and] to do ‘justice’” (222-23). He further explains that the source of the ‘justice’ these judges are to apply is not delineated by specific rules or regulations, but rather, he argues is found in a mixture of custom and personal intuition where that intuition is viewed as inspired by God. (223).
He cites Moses’ decision in the case of the daughters of Zelophehad, recorded in Numbers, chapter 27, as a prime example of the administration of this concept of “justice” in the activity of adjudication. In that case, the daughters requested the right to their father’s inheritance in the land even though he had died without any sons. Upon their submission of this petition to Moses, the account in Numbers then tells us that “Moses brought their case before the LORD.” (27:5) God explicitly instructs Moses to grant the request and further provides guidelines for similar cases in the future.
Jackson uses this example to demonstrate that “justice” in Torah is not the same as positive law. Rather the demands of justice, as informed by God as an external, higher authority, may require exceptions to or changes of positive law. Here Jackson agrees with and lends support to Dimont who, as we noted above, had concluded that positive laws were to be vehicles for justice, but laws without justice were considered immoral.
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.
Monday, December 31, 2007
Judaism and the Foundations of American Law - Part 3
Within two years after the publication of Cahill’s The Gifts of the Jews, Professor Alan Dershowitz of Harvard Law School undertook yet another effort to advance a thesis that clearly had connections to what Max Dimont had initially articulated in his 1962 work. In his book, The Genesis of Justice, Professor Dershowitz presents his arguments for how Judaism, Torah and the narrative accounts in the Book of Genesis, in particular, provide the foundations for modern morality and law.
Rather than delve into the details of the “law books” of the Bible, Dershowitz explains that he chose the Book of Genesis as his focus because, “I believe that the broad narratives of justice and injustice are more enduring than the often narrow, time-bound, and sometimes derivative rules of the Bible.” (19). Later he further elaborates upon his justifications for the scope of his inquiry into the Biblical foundations for justice, when he states:
"The biblical narratives, especially in Genesis, are as fresh, as relevant, as provocative, and as difficult as they were in ancient times. They also provide context and give life to the rules that derive from them. The vignettes, short stories, and novellas that make up the early biblical narratives have few peers in the history of provocative texts on the human condition. As long as human beings ask questions about justice and injustice, they will continue to be interpreted and discussed." (20).
While his analysis stretches from the account of Adam and Eve’s first disobedience through the story of Joseph and his brothers’ acts of apparent injustice toward one another, a single example from Dershowitz will suffice to demonstrate his contribution to the advancement of Dimont’s thesis. In Genesis chapter 18, the story of Abraham’s defense on behalf of the inhabitants of Sodom and Gommorah is told, or as Professor Dershowitz succinctly entitles the account: “Abraham defends the guilty – and loses.”
Although he acknowledges the sin of the majority, Abraham appeals to God to spare the cities for the sake of the innocent, if indeed there are innocent within their gates. Abraham begins his defense on behalf of a hoped-for fifty but successively reduces the number of innocent on whose behalf he makes his plea until he rests his case for sparing the cities upon the existence of only 10 innocent. While proceeding to execute His judgment upon the guilty in the face of Abraham’s appeal, God does make a merciful provision for sparing the innocent within the family of Lot, although that mercy is not fully appropriated.
Dershowitz’s comments upon this account illustrate for us how both notions of substantive and procedural justice are expressed through Abraham’s encounter with God. He states:
"The text is clear as to why God decided to tell Abraham about His intentions in regard to Sodom and Gomorrah: because God had selected Abraham as His messenger to “instruct” his descendants “to keep the way of the Lord in order to do justice and righteousness.” (Genesis 18:19) In other words, God’s encounter was to be a lesson for Abraham in the ways of human justice and righteousness. An omniscient God is, of course, capable of distinguishing the guilty from the innocent. . . Humans, however, cannot simply discern who are guilty and who innocent. We need a process – a legal system – to distinguish the innocent from the guilty. Nor is this a simple task. Inevitably human beings will make mistakes. We will sometimes convict the innocent and acquit the guilty. That is in the nature of any human fact-finding process."
Professor Dershowitz continues:
"In the end, every system of justice must decide which is worse: convicting some innocents or acquitting some guilty. Tyrannical regimes always opt for the former: It is far better that many innocents be convicted than that any guilty be acquitted. Most just regimes tend to opt for the latter: It is far better that some guilty go free than that innocents be wrongly convicted. This is the approach ultimately accepted in [Torah], with its generally rigorous safeguards for those accused of wrongdoing.
"In addition to deciding on this basic preference, every system of justice must also quantify – at least implicitly. The Anglo-American system, for example, has proclaimed [in the oft quoted words of Sir William Blakestone] that “it is better that ten guilty persons escape than one innocent suffer.” That [Professor Dershowitz states] . . . sends an important message: Our preference for not convicting the innocent is a very strong one, but it is not absolute; [the American system] acknowledges that in order to convict large numbers of guilty, we will sometimes have to convict an innocent. We will try our best to prevent such an injustice, but we will not simply acquit everyone in order to avoid it. This is the way a mature and just system operates." (85-87).
Professor Dershowitz then concludes his comments on Genesis 18 with the following description of the application of justice in the face of human realities in which he notes:
"Although it appears from the language of the narrative that Abraham is teaching God a lesson about justice, it may well be that it is really God – the great pedagogue – who is teaching Abraham a lesson about the inherent limitations on human justice, so that Abraham could instruct his descendants to do justice in a mature and balanced fashion – rejecting both extremes of acquitting everyone about whose guilt there is any doubt and convicting everyone against whom there is any suspicion." (87).
Through his commentary on this chapter, as well as each of the other nine narratives addressed in his book, Professor Dershowitz substantially advances support for the thesis that the Jewish idea of justice taught in Torah is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallible state of humans. Thus, Torah teaches mercy in the midst of justice.
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.
Thursday, December 27, 2007
ABA Journal Blawg 100
Check out this list of the top 100 law blogs-- blawgs-- chosen by the ABA Journal and its readers. There are some great blogs on this list, but be careful: you might spend the next two weeks just trawling through the gems on this list.
Wednesday, December 26, 2007
Judaism and the Foundations of American Law - Part 2
Among the scholars to take up the task of cultivating Dimont's thesis was Thomas Cahill. In his popular history, The Gifts of the Jews, (published in 1998) Cahill contends that one of the gifts imparted to human civilization by the Jews was their concept of justice. It was, though, an idea of justice intertwined with mercy. Mercy is essential to the administration of justice in the realm of human experience because Torah not only conceded but also explicitly taught the finite and fallible state of humans.
For example, while lex talionis requires “an eye for and eye and a life for a life,” Torah prohibits the implementation of this principle of punishment upon the evidence of only one witness to an alleged intentional, “treacherous” killing of another human being. Rather, Torah requires the testimony of at least two witnesses. (see Numbers 35:30). One witness is limited in his perspective and may not have seen all the relevant aspects of the alleged murderous act even if he is assumed to be testifying truthfully. On the other hand, one witness could also be making a false claim against the accused. Thus, a minimum of two witnesses were required upon which to issue a capital sentence.
Some argue that lex talionis is not, in the first place, a Jewish concept but was rather a contribution from the ancient Babylonian civilization via the Code of Hammurabi. Even if this point of history is conceded for the sake of argument, Torah’s expression and guidance in the administration of lex talionis demonstrates a substantial tempering of its severity in application albeit not in its formulation.
While lex talionis would appear to be a fundamental expression of a just law, a fuller understanding of the idea of "justice" exhibited in the Torah requires an exploration of the relationship of "justice" and "mercy". Why is it that two of the most notorious murderers in Torah – Cain and Moses – were not punished in accordance with lex talionis? Is it possible that "justice" is not merely tempered by "mercy", but that mercy is itself an essential component, an integral ingredient, a fundamental dimension of justice?
Through my research for this course's development in Fontbonne ’s Dedicated Semester, I have become increasingly convinced that the single most important contribution to the understanding of "justice" that has been made by the Judaic tradition is the role of "mercy" in human efforts to work out justice in our relationships – whether those relationships be personal or within civil society.
Thus, justice, as it is taught in Torah, is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallen state of humans. Torah teaches mercy in the midst of justice through its accounts of divine acts in response to human sin, for example, in the cases of Cain, Noah, and Lot, as well as in its provisions for both procedural and substantive criminal law in ancient Israel.
Thomas Cahill further supports this essential understanding of justice from the Jewish perspective when he states:
In the prescriptions of Jewish law we cannot but note a presumption that all people, even slaves, are human and that all human lives are sacred. The constant bias is in favor not of the powerful and their possessions but the of the powerless and their poverty; and there is even a frequent enjoinder to sympathy: “A sojourner you are not to oppress: you yourselves know (well) the feelings of the sojourner, for sojourners were you in the land of Egypt.” [Exodus 23:9] (Cahill, 154).
Cahill goes on to conclude that “this bias toward the underdog is unique not only in ancient law but in the whole history of law. However faint our sense of justice may be, insofar as it operates at all it is still a Jewish sense of justice.” (155). Cahill bases his characterization of Judaism’s foundational role in both understanding the demands of justice and the application of its standards upon his analysis that:
“The Jews were the first people to develop an integrated view of life and its obligations. Rather than imagining the demands of law and the demands of wisdom as discrete realms (as did the Sumerians, the Egyptians, and the Greeks), they imagined that all of life, having come from the Author of life, was to be governed by a single outlook. The material and the spiritual, the intellectual and the moral were one . . . . [L]ife is not a series of discrete experiences, influenced by diverse forces. We do not live in a fragmented universe, controlled by fickle and warring gods . . . Because God is One, life is a moral continuum – and reality makes sense.” (156-57).
So concludes Thomas Cahill’s strides toward demonstrating the validity of Max Dimont’s thesis.
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.
Friday, December 21, 2007
Judaism and the Foundations of American Law - Part 1
When I first proposed the subject "Judaism and the Foundations of American Law" as a potential course for adoption within Fontbonne University’s Dedicated Semester to Judaism and its Cultures, one of my distinguished colleagues, Professor Jason Sommer strongly encouraged me to pursue it. In support, he cited Max Dimont’s seminal work, Jews, God and History that had been published in 1962. There, Professor Dimont made the following assertions:
"The statement that the American system of law is based upon Roman concepts has been made so often that we take it for granted, without examining the source from which Roman laws stem. The remarkable resemblances among Roman law, present-day American law, and Jewish jurisprudence in Biblical days is [sic] more than mere coincidence. The Jews devised, four centuries before Christ, a legal system based on the dignity of man and individual equality before the law, while Europe still had trial by ordeal as late as the fifteenth century.
"The rabbis viewed law as a vehicle for justice; laws without justice were regarded as immoral. Even though the Jews in those days had no jury system, the procedures for the indictment and trial of an accused person were similar to the procedures in American courts today. The accused was presumed to be innocent until proved guilty. He had a right to counsel and to a proper trial. He had a right to call witnesses, to confront his accusers, and to testify in his own behalf. He could not be compelled to testify against himself, and he could not be placed in double jeopardy. The accused individual was permitted to appeal, or have others appeal in his behalf, if new evidence should turn up." (Dimont, 82)
Upon these assertions, Dimont concluded that Judaism had played a significant role in providing foundations for American law. He did not, however, develop that thesis in his 1962 work beyond planting the seeds that are deposited throughout the passage I have just quoted. The task of tending and cultivating the thesis would be taken up by other scholars.
(This is the first of several installments from a lecture I recently presented at the Jewish Community Center of St. Louis. I intend to post successive parts from the lecture over the coming few weeks.)
"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.)
Monday, December 10, 2007
Vipers' Tangle
If CS Lewis's Till We Have Faces is heart-rending, Francois Mauriac's Vipers' Tangle is gut-wrenching-- or maybe just a straight punch in the gut. It's brutally emotional, much more so than Till We Have Faces, but hopeful, though much less so than Lewis's retold myth.
Mauriac's story is in structured similarly to Till We Have Faces: Part One is, in effect, a confessional brief against the protagonist's wife and family, just as the opening two-thirds of TWHF is a brief-- a charge against the gods by Orual, Lewis's heroine. Likewise, both Lewis and Mauriac use part 2 of their stories to develop the themes of self-discovery. Till We Have Faces culminates with almost complete redemption and reconciliation, but Mauriac hides from the reader the moment of his protagonist's full surrender to the love of Christ, yet he points hopefully to it and hints beautifully at its means and motivations. In TWHF, what Orual has lost is restored. Mauriac's "hero," however, whose heart is the eponymous 'vipers' tangle,' has lost everything:
Those whom I should have loved are dead. Dead are those who might have loved me. As for the survivors, I no longer have the time, or the strength, to set out on a voyage towards them, to discover them. There is nothing in me, down to my voice, my gestures, my laugh, which does not belong to the monster whom I set up against the world, and to whom I gave my name.
This loss, however, leads him to glimpse the utter necessity of a power and a love outside himself:
One needed some strength, I said to myself. What kind of strength? Someone.
Yes, Someone in Whom we are all one, Who would be the guarantor of my victory over myself, in the eyes of my family; Someone Who would bear witness for me, Who would have relieved me of my foul burden, Who would have assumed it . . .
This is a rich, harsh, beautiful story. Sin is great. Grace abounds.
Thursday, November 29, 2007
Favorite in the Narnia Series?
Over at the Touchstone Magazine blog, David Mills has started a discussion on which book in the Chronicles of Narnia series is one's favorite and which one the least favorite. It's good, clean fun, and it got me to thinking.
When I was very young, I liked The Lion, The Witch, and the Wardrobe best. Now that I'm old, I like The Last Battle and Voyage of the Dawn Treader best. Of course.
Actually, now that I'm old and have a better understanding of my own sin and the corruption of the world around me, I may appreciate Till We Have Faces more than any of the Narnia books, but I'll need to ponder that one awhile.
Wednesday, November 14, 2007
Ultimate Punishment
As a lawyer who has been appointed by the federal courts on death penalty cases, I was particularly engaged by the intellectual and moral odyssey Scott Turow charts in his 2003 book, Ultimate Punishment: A Lawyer's Reflections on Dealing the Death Penalty. (Farrar, Straus & Giroux). Turow is both a veteran writer and a seasoned lawyer. Over twenty years ago, his first book, One L: The Turbulent Story of a First Year at Harvard Law School (another personal account of an earlier odyssey, published by Putnam in 1977), served me as a primer on the law school experience. Having found his insights there to be instructive, I undertook the reading of this work with a high level of expectation.
Like politics and religion, however, the question of the death penalty nearly always polarizes people. This adverse effect is often largely due to the conflagration of both political and religious ideologies as they are advanced in efforts to form the policy and direct the practice of capital punishment by governments seeking to uphold twenty-first-century ideals of a democratic society where the rights of individuals are constitutionally protected. To his credit, Turow's approach ameliorates these confrontational and sometimes caustic attitudes that are brought to bear upon this issue.
Within the pages of his self-styled "reflections," Turow invites the reader along on his journey of experiences with the death penalty, early as a prosecuting attorney, later as a pro bono defense counsel and, most centrally, as a member of Governor George Ryan's Illinois Commission on Capital Punishment. Throughout his work, he intertwines compelling, personal stories of both those accused and victims of capital crimes portraying a full spectrum of uses and abuses of the ultimate punishment in the American criminal justice system.
Turow's storytelling reveals the profound humanness of crime as well as the often stark limitations of our legal system to mete out just punishments. The accounts of his experiences prosecuting the guilty, like Hector Reuben Sanchez, and defending the innocent, like Alejandro Hernandez, open the reader to a much boarder awareness of the complexities inherent in the issue that is, all too often, narrowly presented as simple as black and white--pro or con--for it or against it. Turow takes time to tell us about Anthony Porter who was one of the many wrongfully convicted on death row, but, happily, one of the few who was permitted to escape an unjust death at the hands of his government through the persistent efforts of his appellate lawyers.
The authenticity of his own internal struggle to come to a reasoned position on the question of capital punishment is exemplified by Turow's efforts in an appeal on behalf of Christopher Thomas whose prosecution was fraught with errors and abuse. Although Thomas was indeed guilty as an accomplice, the reversal of his death penalty and the subsequent hearing on his re-sentence to life imprisonment provided Thomas the opportunity to express an unreserved admission of responsibility for his role in the crime, his remorse for the immeasurable loss to the victim's family and his humble appeal for their forgiveness.
Prior to Turow's appointment by George Ryan to the Governor's Commission on Capital Punishment, his views on the death penalty had swung from one extreme to another. During his days at university, he, like the majority of students in the late 1960s and early 1970s, adamantly opposed capital punishment. After law school and then six years an Assistant United States Attorney prosecuting crime, however, Turow had no qualms about seeking the death penalty for senseless murders like those committed by Hector Sanchez, or even worse, John Wayne Gacy: "My job as a prosecutor-and the sensible first response of society-was to make sure they didn't do bad things again. And I could see that a sentence of death was the most certain means to accomplish that goal in extreme cases" (13).
Subsequent to his service as a federal prosecutor and while in private practice with one of Chicago's largest law firms, he volunteered on the death penalty appeals of Alex Hernandez and Christopher Thomas. By that time, Turow described himself as "a death penalty agnostic." He writes, "Every time I thought I was prepared to stake out a position, something would drive me back in the other direction." (14). So when he was introduced with the other thirteen members of Governor Ryan's Commission in March 2000, he was not among the four who stated their principled opposition to capital punishment from the outset of the Commission's work.
With his fellow commissioners, Turow was charged with the job of determining for the State of Illinois what reforms, if any, would make application of the death penalty fair, just, and accurate: "Our foremost task was pragmatic: identify problems and propose solutions. The big issues [i.e. retain or abolish capital punishment] would come at the end" (27-28). The bulk of his book recounts the scope and substance of the Commission's investigations, findings, and ultimate recommendations that occupied its attention for the next two years. First, they examined in detail the thirteen out of twenty-seven cases where the convicted capital offenders were later exonerated after exposure, through the process of appeal, of forced confessions, false testimony by accomplices or jail-house snitches, or what even was worse, bad faith and out-right knowing and intentional prosecutorial misconduct, such as willful withholding of evidence known to the prosecutor that would prove the defendant's innocence.
Turow astutely observes that while the multiple layers of state and federal appellate review in death cases are often viewed by the public as "today's version of Jarndyce v. Jarndyce, unfathomably complex and unbearably protracted.. The reason there is always further review is because there has to be; although over the years, I've sensed that the inevitability of additional scrutiny has a natural tendency to occasionally make judges and lawyers less scrupulous than the stakes would seem to require" (78).
The Commission then proceeded to convene, throughout Illinois, public and private hearings open to proponents and opponents alike. Turow and his colleagues, though, were particularly interested to hear from the surviving family members and friends of those who had been the victims of murders. Survivors seek a justice "embedded in the concept of restitution: the criminal ought not end up better off than his victim" (53). Yet, Turow was not persuaded that compensatory justice for the loss to loved ones was a compelling reason, in and of itself, to maintain capital punishment as it had been practiced by the State: "At the end of the day, if we are to subscribe to the death penalty, it must benefit the rest of us, as well" (56).
In this broader quest, the societal benefit of deterrence was explored by the Commission, but, from Turow's perspective, their review of empirical studies conducted over the past thirty years found that the reported evidence was inconclusive. Economic analyses proved equally indeterminate. He says, "I decided I wasn't going to find any definitive answers to the merits-or the failings-of the death penalty in the realm of social science" (62).
Something, though, continued to prevent Turow from moving over to join the minority four members who stood in complete opposition. That something was the extreme case-multiple murderers like John Wayne Gacy or Henry Brisbon. Unlike the notorious Gacy, Brisbon, the I-57 murderer of the early 1970s, is little known outside Illinois, but his crimes, although less numerous, were as deeply depraved. Brisbon, however, had been convicted of his gruesome crimes during that period in American constitutional history (1972-1976) when the imposition of the death penalty was for a short time deemed unconstitutional. Sentenced to 1,000 to 3,000 years of confinement, literally, Brisbon is incarcerated in the Tamms "CMAX" Correctional Center in southern Illinois.
While in prison, Brisbon murdered yet again. He now faces a death sentence. Turow and a few of his colleagues from the Commission obtained permission to visit the Tamms facility. The Brisbon case had brought him to a fundamental inquiry. He recalls:
"[T]he pivotal question for me was whether there were means beside execution to control the Brisbons of the world, the prisoners whose record suggests that they are so bad to the bone that they are clearly prone to murder again if give the opportunity. If the conditions of their confinement cannot reliably prevent this, the argument in favor of capital punishment in Brisbon's case, and others like it, seems overwhelming to me. "(84-85)
After a comprehensive tour of the facility and a lengthy interview with the warden, Turow left Tamms unable to conclude that the best technologies of confinement available in corrections today could guarantee that Henry Brisbon would not murder again.
The concluding chapters of Turow's book outline the eighty-five recommendations issued in the Commission report submitted to Governor Ryan on April 15, 2002. Principal among the changes urged were those aimed at reducing the risk of convicting the innocent, such as video-taping interrogations to prevent or at least expose forced confessions, line-up procedures that promoted more reliable eyewitness identifications, pre-trial hearings to determine the reliability of jail-house informants.
The most substantive of the reforms advocated by the Commission was the reduction of the eligibility criteria (statutory aggravating circumstances) for capital punishment from twenty to only five: multiple murders; murder of law enforcement or fire-fighting personnel; murder in prison; murder aimed at hindering the justice system and murder involving torture. Although some of the procedural recommendations were adopted by the Illinois Legislature, the substantive changes were not. In fact, the legislature expanded, rather than reduced, the number of death-qualifying circumstances, making death sentences more, not less, likely in Illinois murder prosecutions. Governor Ryan, before leaving office, responded to the legislature's acts by commuting the sentences of those remaining on death row to life imprisonment.
Turow's informal and conversational writing style, sprinkled with contractions and even an occasional split infinitive, renders his book quite accessible to the general public. For the scholar, though, he includes an extensive section at the end of his work presenting an extensive list of both formal legal citations to court reporters and URL's for those authorities he relies upon that are available on the Internet.
While not explicitly advancing a Judeo-Christian worldview, Turow and the Commission expressed ideas of justice in their recommendations that are implicitly consistent with such a view. For example, Turow notes that although the Commission did not recommend abolition of the death penalty by Illinois, it did suggest banning it as a punishment when the murder conviction is based solely on the uncorroborated testimony of a lone eyewitness or a single accomplice (91). This recommendation adheres to the requirement set forth by Moses that death may not be imposed as a penalty on the testimony of only one witness. (See Num. 35:30; Deut. 19:15.) On the whole, Turow's insights reveal the limitations of any human system of justice:
"Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason - and prove that justice alone will not make us whole. Only the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills, can accomplish that. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and convection must come from outside the law." (109)
Acknowledging these very real limitations, and with a ready admission of his own fluctuations, Turow concludes with his response to the question posed by Senator Paul Simon at the summation of the Commission's work: Should Illinois retain capital punishment? Senator Simon had been one of the four Commission members who confessed his opposition from the outset of their task. Turow's book explains why he has now joined that number as he articulates a persuasive rationale for any who would undertake to consider this question seriously.
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