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Published online by Cambridge University Press: 24 April 2015
Tom Porter, talking to me about the substance of what you might want to hear, mentioned a series of articles in The Christian Century, by prominent theologians, called “How I Changed My Mind.” I remember especially Karl Barth's three contributions to the series, over a period of thirty years.
Ed Gaffney, years ago, introduced me to Barth—and did it with a perfect reference: to the prison sermons Barth gave when he turned, at least a little bit, from being a theologian and returned to being a pastor. Barth said the jail was his favorite pulpit. “There are but few theology professors,” he said, “whose sermon listener one can become only after having committed a serious violation of the civil order.”
My own changes of mind are not unique. I am one of a small group of law teachers who have, over the last thirty years, become clearer in formulating an Hebraic legal ethic. We are a minority who have become bolder. We owe such courage as we have located for that to modern pioneers, most notably Harold Berman, and, more lately, Emily Hartigan. What has changed most for us has been the clarity of our public witness; the substance all along has been old-time religion. When I say “clarity” I mean that we have come to see this substance in our work, more than we did in, say, 1970.
Presented at the Annual Banquet of the Journal of Law and Religion upon the occasion of receiving the First Annual Journal of Law and Religion Award on October 14, 1993 at Hamline University School of Law.
1. Reprinted in Barth, Karl, How I Changed My Mind (John Knox Press, 1966)Google Scholar.
2. Id 71.
3. I mean “religion” in the ordinary sense: “There certainly was and is a certain thing, to which our fathers [and mothers] found it…practical to attach and limit the name of religion,” as G.K. Chesterton said. It was about “a personal Creator in relation to a personal creature.” Chesterton, G.K., Introduction, in Thompson, Francis, The Hound of Heaven and Other Poems, 5–6 (1936)Google Scholar. I do not, in using the word in this ordinary way, mean to dispute Barth's and Milner Ball's persuasive distinction between religion and the faith of Jews and Christians. Ball, Milner S., The Word and the Law 100–101 (U Chicago Press, 1993)Google Scholar.
4. Lisa Sowle Cahill provides an example of speaking from the church, and deciding, or trying to, in the church, what to say when we speak, in her essay, Abortion, Sex and Gender: the Church's Public Voice, America 6 (05 22, 1993)Google Scholar See note 20 of this article.
5. Exod. ch. 3 and 4. Moses had become a shepherd among an alien people. He mounted a series of three arguments against the Lord's sending him back to Egypt. He finally resorted to illness to delay the trip back. And he waited until the last minute to circumcise his son. As I reflect on this allusion to Moses, and his reverse gear, I think of a crusty, voluble old carpenter who used to work for my Dad—Joe Hurst. Joe said a person should drive backwards for a quarter of a mile, once in a while, just so he would know how. In Moses's case, the Lord made up for the driver's lack of practice.
6. Bellow, Saul, the Adventures of Augie March 89 (Crest, ed. 1965)Google Scholar: “Friends, human pals, men and brethren, there is no brief, digest, or shorthand way to say where it leads …. I am in a crowd that yields results with … difficulty and reluctance and am part of it myself.”
7. “Pioneer Shaffers Recall Week They Hosted Cassidy but Kept Quiet” the Sun County (Wyoming) Review (January 17, 1971), reports some of the facts.
8. Prettyman, E. Barrett, The Nature of Administrative Law, 44 Va Law Rev 685, 698 (1958)CrossRefGoogle Scholar.
9. Of Men and Property: The Liberal Bias Against Property, 57 ABA J 123 (1970)Google Scholar.
10. The Washington Post and a magazine for teachers, Today's Education, also reprinted it. A revised, more anthropological, and, I hope, gentler version has been in my text, The Planning and Drafting of Wills and Trusts, third edition with Mooney, Carol Ann (Foundation, 1991)Google Scholar.
11. Simons and his wife, Jeanne Reidy, married after a courtship that took place in significant part in our seminar. Together they wrote The Risk of Loving (Herder and Herder, 1968)Google Scholar, The Human Art of Counseling (Herder and Herder, 1971)Google Scholar, and many other things.
12. Dr. Robert Grismer succeeded Simons as my psychological colleague in these seminars; see our Experience Based Teaching Methods in Legal Counseling, 19 Cleve St L Rev 448 (1970)Google Scholar.
13. Last updated in James Elkins's and my second edition of a West “Nutshell” book, Legal Interviewing and Counseling (West, 1987)Google Scholar, which contains citations to the rest.
14. On Being a Christian and a Lawyer (Brigham Young U Press, 1987)Google Scholar, my first book on theological legal ethics, is mostly about me getting my theological theories straight, including some jurisprudence and ethics on relationships. It owes a lot, of course, to Martin Buber. Faith and the Professions (Brigham Young U Press, 1987)Google Scholar is where I tried to work out a Hoosier lawyer's story theology; it owes a lot to Stanley Hauerwas; it is organized, by the way, to parallel the contents of my law school course book for “professional responsibility” courses, American Legal Ethics (Matthew Bender, 1985)Google Scholar. American Lawyers and Their Communities (University of Notre Dame Press, 1991)Google Scholar, which I wrote with my daughter Mary, is where most of the anthropological argument is gathered together.
15. His Truthfulness and Tragedy (U of Notre Dame Press, 1977)Google Scholar, Vision and Virtue: Essays in Christian Ethical Reflection (Fides, 1974)Google Scholar, along with a remarkable essay on friendship. Happiness: The Life of Virtue and Friendship: Theological Reflections on Aristotelian Themes, 45 Asbury Theological Journal 5 (1990)Google Scholar, have probably influenced me most—but I hesitate to say, because Hauerwas's published work is so vast and his guidance in letters and conversation have meant so much.
16. (Cited in note 1, 86)
17. I can say of John what I say of Stanley Hauerwas, (see note 15). John's most important book for lawyers, or anybody, I think, is The Politics of Jesus (Eerdmans, 1972, 2d edition 1994)Google Scholar. I have also used and taught with The Priestly Kingdom (U Notre Dame Press, 1984)Google Scholar, and The Christian Witness to the State (Faith and Life Press, 1964)Google Scholar.
18. This phrase, so far as I have traced it, comes from Alasdair MacIntyre's assessment of the anthropology of American medicine. See his Patients as Agents, in Spicker, S.F. and Engelhardt, H.T. Jr. eds, Philosophical Medical Ethics: Its Nature and Significance, at 197–212 (R. Reidel, 1977)CrossRefGoogle Scholar, along with his and Hauerwas's essays in Revisions: Changing Perspectives in Moral Philosophy (University of Notre Dame Press, 1983)Google Scholar, and Hauerwas's, Suffering Presence: Theological Reflections on Medicine, the Mentally Handicapped, and the Church (University of Notre Dame Press, 1986)Google Scholar.
19. I am able to congregate a modern American theology of justice in this way because of Harlan Beckley's excellent description and assessment of these three—Passion for Justice: Retrieving the Legacies of Walter Rauschenbusch, John A. Ryan, and Reinhold Niebuhr (Westminster-John Knox, 1992)Google Scholar. Harlan and his theological colleague Louis Hodges have been valuable teachers and friends. Compare Beckley's hope for a modern continuum with those “legacies,” pp. 344-384, with Mensch, Elizabeth and Freeman, Alan, who speak, in The Politics of Virtue 83–109 (Duke U Press, 1993)Google Scholar, of “the secularization of [mainline Christian] religion” and of “schism.”
20. Cahill's description of the discussion on abortion, within her denomination (which is also mine) (cited in note 4) is a splendid and lucid example of the church's pondering both what it is to think about moral questions (in this case the question of abortion and questions about the abuse of women), and what it is to say to the civil community, and in this case notably that part of the civil community that claims, as we say, to “administer justice.” I read her essay as her brother in the faith and am therefore free to say that she makes me a little nervous when she suggests that we need to temper or modify or compromise what we say outside, in order, she implies, to maintain our influence. For example:
To the extent that we perpetuate this family feud instead of looking for common ground with cultural values that could support abortion alternatives, we also run the risk of sectarian isolation from the “real world” of social institutions and politics in which we think our views should be heard.
I would, with Cahill, complain about “certain self-defined champions of Catholic orthodoxy,” but on grounds that had to do with their and our proper business as witnesses to the Lord of the Universe, and not so much, as she puts it, in “optimistic confidence that reasonable public discourse is possible and can lead to greater consensus and social cooperation on justice issues.”
The scholar who has done most to consider American law as capable of sustaining Cahill's kind of civil conversation is, of course, my friend Emily Hartigan. See her Surprised by Law, 1993 Brigham Young U L Rev 147Google Scholar. I am skeptical about the promise in that enterprise (as is Milner S. Ball, cited in note 3), but guesses about success are not as important to me as the possibility that Cahill's and Hartigan's optimism will corrupt both the discussion in the church and the substance of what the church says to the civil community.
21. My curious sectarianism is found so far in the last chapter of American Lawyers, cited in note 14, which is a revision of The Tension Between Law in America and the Religious Tradition, in Neuhaus, Richard John ed, Law and the Ordering of Our Life Together at 28 (Eerdmans, 1989)Google Scholar; in The Church and the Law, in Radical Christian and Exemplary Lawyer: A Festschrift Honoring William Stringfellow, McThenia, Andrew W. Jr., ed (Eerdmans, forthcoming 1995)Google Scholar; and in Erastian and Sectarian Arguments in Religiously Affiliated American Law Schools, 45 Stanford L Rev 1859 (1993)CrossRefGoogle Scholar. John Howard Yoder has been a faithful advisor in these halting efforts, and tolerant of their callowness; I wait for the day when he will outline his own Christian ethic for lawyers.
22. (Cited in note 1, at 50).