One of the most interesting features of biblical law is the extent to which it is pervaded by narrative. Many biblical laws have a quasinarrative form, while others include within themselves a narrative reference of some sort. In their present context, all biblical laws have a narrative setting. Wherever one finds law in the Bible, one is in the presence of narrative as well.

Despite its pervasiveness, this juxtaposition of law and narrative poses something of a challenge to the reader of the biblical text. Certainly, these two genres may be seen to call into play different conventions of reading. What, then, is the effect of their persistent association on how one reads the text of which both are a part?

What is the difference between the conventions underlying our reading of biblical narrative and biblical law? One difference may perhaps be illustrated by comparing the following two passages:

The LORD said to Moses, ‘Yet one more plague I will bring upon Pharaoh and upon Egypt; afterwards he will let you go hence; when he lets you go, he will drive you away completely.’ (Exodus 11:1)

The LORD said to Moses and Aaron in the land of Egypt, ‘This month shall be for you the beginning of months; it shall be the first month of the year for you.’ (Exodus 12:1-2)

Taken as a whole, the Roman Catholic Bishops' 1983 pastoral letter on war and peace, “The Challenge of Peace, God's Promise, and Our Response” has two purposes: first, to assist Catholics in the formation of their consciences; and, second, to contribute to the ongoing public policy debate concerning the morality of war in general, and of nuclear war in particular. This article will address the stated purposes of and the suggestions made in the pastoral letter from the vantage point of American statutory and constitutional law. It will make no attempt to provide definitive legal answers to the many questions raised by and in the letter, for there are none in this complex and challenging area of law. Its purpose is to raise some of the practical legal and moral questions which are critical to the conscientious choices of the individuals to whom the letter is addressed: government officials, citizens, members of the armed services, workers in defense industries, clergy and religious and others.

The letter calls upon each person to whom it is addressed to “probe the meaning of the moral choices which are ours as Christians” respecting the issue of nuclear war, and states that peace “is the fruit of ideas and decisions taken in the political, cultural, social, military, and legal sectors of life.” It correctly recognizes that conscientious choices are not made by individuals in a moral vacuum, but by “citizens [who] wish to affirm [their] loyalty to [their] country and its ideas” and who must also remain both “faithful to the universal principles proclaimed by the Church” and sensitive to the needs of the world as a whole.

From the landing of the seventeenth century Pilgrims, who wanted to establish in the colony of Massachusetts Bay a commonwealth that was distinctive precisely because of its fidelity to biblical commands, down to the present moment in American politics, when the Rev. Jesse Jackson continues to organize a “rainbow coalition” by the use of biblical rhetoric and when the Rev. Pat Robertson is considering a run for the Presidency to reassert the need for “biblical values” in America, the Bible has been inextricably interwoven into the fabric of American life, including the formation of American public policy.

In 1982, the centennial year of the Society for Biblical Literature, this reality was explored thoughtfully in series of essays that filled six volumes. More recently, Pastor Richard John Neuhaus has differentiated between the constitutional separation of the institutions of the state and the church and an extraconstitutional separation of religiously based morality from the realm of public policy choices.

Professor Gaffney begins by positing an important if disputed principle of interpretation: that the circumstances of the production, publication and reception of any text, and therefore of a biblical legal text, form an essential element of its interpretation. It could be argued that only on this methodological basis is it possible to respect the distance between the past and the present, the world of the text and that of its interpreter. Where this principle is set aside, the way is clear for the interested appropriation of texts as authorization for positions on which the interpreter has already made up his mind—and nowhere more so than in the sphere of ethics.

The example offered is that of the death penalty for blasphemy in the Old Testament. In this instance it may seem altogether too obvious that the religious and cultural bases for this stipulation of law have altered, and that therefore, on any but the most doggedly literalistic reading, the Bible at this point provides no warranty for judicial policy. The matter is less obvious with the prohibition of killing in the decalogue with reference to the crucial issue of the death penalty. A formidable obstacle to arguing on this basis for the abolition of the death penalty is the exegetical fact that Israelite society sanctioned the death penalty and, in fact, had recourse to it more often than some other ancient Near Eastern societies (e.g., the Sumerians). I am not saying that there are no good arguments against capital punishment which draw on Jewish and Christian tradition, but we are warned against a simplistic and interested appropriation of isolated biblical texts in support of particular ethical constructions.

In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

Contract law, pronounced dead within the last decade, has undergone a Lazarus-like resurrection. The revival of scholarship runs the gamut from Professor Charles Fried's writing asserting promise as “the moral basis of contract law,” through the Second Restatement of Contracts which concedes the legitimacy of more communal based doctrines such as promissory estoppel, to the writings of Professor Ian MacNeil who argues that community is “the fundamental root, the base” of contract and the even more collectivist writings of scholars in the Conference on Critical Legal Studies.

This revival of contract scholarship does not yet suggest any unifying theme, but it does, I think, indicate a vigorous search for some means of weaving together seemingly intractable concepts. This symposium on Law and Religion suggests an important area of search. That is, it invites us to examine the shared ethos of our culture.

I agree with Professor Berman's observation made elsewhere that law and religion are “two different but interrelated aspects … of social experience” and that one cannot flourish without the other. Because both law and religion are aspects of our social experience, one's view of God and the world must certainly affect one's view of the law. Similarly, one's view of the law probably affects how that person views God.

Sir William Blackstone's hyperbolic defense of the common law rights of Englishmen to private property, drawn from the immutable law of nature, was a comfort to conservative lawyers in the early American republic as a reasoned philosophical and legal defense of property against the uncertainties of John Locke's social contract. The seeds of Jacksonian democracy, in which popular sovereignty went hand-in-hand with the people's self-evident right to the pursuit of happiness, threatened to relativize and erode the social position of the propertied class. In this situation American lawyers vigorously asserted absolute rights to property that could transcend the vagaries of politics.

“The title of our lands,” wrote Jesse Root proudly in 1798, “is free, clear and absolute, and every proprietor of land is a prince in his own domains, and lord paramount of the fee.”

In his essay, Professor Bassett traces the roots of the “myth of the nomad,” a myth which was used to justify the dispossession and destruction of Native Americans by colonial settlers. Bassett's primary focus is on a careful exposition of the sources and uses of the myth. The historical evidence he presents is persuasive and interesting, and his analysis is often thought-provoking.

I find myself, however, in some disagreement with Bassett over the function this type of work serves. While Bassett recognizes that “[w]e are all creators of myths,” he insists that we should “bring to light” the myths in the law and expose their “insidious uses[s].” As Bassett observes, the first-year property course offers numerous opportunities for the unmasking of such myths. Bassett seems to suggest that we view his fascinating essay as one such attempt to “demythologize the law.”

It is not possible, nor would it be desirable, to “demythologize” the law. The law is constructed upon, and often even constituted by, myths. The effort to eliminate those myths would produce legal concepts that were far less human, and probably no more humane. Our task, as both teachers and scholars, should be to recognize and evaluate the myths we use, but not necessarily to abandon them. Bassett's essay offers a fine beginning for this project of understanding.

The question of the relationship between law and religion, especially as to the influence of the norms of one on the other, is highly problematic, or so it is as to the relationship between Jewish law and the common law of the United States. Despite a great deal of research on the subject, the claimed connections and influences strike me as exaggerated, in excess of what actually has been or can be proven. There appears to be an enthusiasm for finding connections, for what Professor Menacham Elon of Hebrew University in Jerusalem has called the “adoption of an apologetic approach” in which influence is over-emphasized. After all, such influences are difficult to prove, to trace, if for no other reason than explicit attribution to antecedents is rare. Much of the work in this area, at least as it bears on Jewish common law, rests largely on claims of a remarkable similarity between the respective norms of the systems of law.

One needs only observe that similar institutions and rules may have developed, not so much due to reciprocal influences, but because of similar circumstances in the respective histories of each system or similar if not identical predicate values and presumptions, be they divinely revealed or rationally derived. Counter examples exist, however, and in the area of torts and Jewish law, the most notable would be Jacob Finkelstein's essay on “The Goring Ox,” in which a direct connection is demonstrated between the biblical text pertaining to the required killing of the goring ox and deodandum decedens in English law.

Professor Kader has entitled his piece “Torts and Torah” presumably seeing his objective as defining the way the Torah (Jewish Law) responds to or deals with the reality of torts. I have entitled my response “Torah and Torts” since, as I shall show, the jurisprudential principles and constructs of Jewish law pervade all areas of the law and the response of Jewish law to issues of tort liability flows from the basic premises and approach manifest throughout the Jewish legal system.

But first, I wish to comment on some specific points in Professor Kader's essay. I would disagree with his assignment of expertise in Jewish law almost exclusively to the beneficiaries of an orthodox education. I could cite numerous examples to the contrary and could even attempt a cogent case for the notion that creative scholarship in Jewish law might require freedom from some of the presuppositions that are the hallmark of an orthodox approach.

Secondly, in citing the Biblical sources for the major categories of torts, he cites Exodus 21:28-32 although his quotation only goes through v. 29. In addition, that citation only refers to the goring ox that killed a human being. More pertinent to the issue of tort damage is the passage in Exodus 21:35-36 dealing with damage by the ox to another animal, from which is derived the principle (referred to by Professor Kader) of palga nizka or the half-damages liability of the owner of the goring ox which had not previously exhibited vicious behavior.

When I began telling my colleagues at Notre Dame that I had been invited to prepare a paper on religion and procedure, some of them said “How interesting,” and looked vague. Others, more forthright, came straight out and asked what on earth I was going to say. The reaction is understandable. Since God made everything, there is nothing that cannot be related to religion if you work at it, but procedure seems to be harder going than most things. It is all very well to talk about God ruling the world and the state exercising authority on His behalf. But God does not seem to have any procedure. It is fairly easy, if you go in for analogies of that kind, to think of God as a lawgiver, even as a judge. But to think of Him as a sheriff or a process server stretches most people's imaginations farther than they will comfortably stretch.

Professor Rodes invites us to a fresh view of the role of procedure in God's purpose. He reveals procedure as being itself a creation of God and a way for us to try to do God's business without being God. Through these insights procedure becomes more than merely a time-consuming buffer between people and justice. Professor Rodes shows us the potential of procedure as a means for us to emulate the qualities of God in our legal relations with others.

These insights are indeed welcome. They not only give us a great appreciation of the value of procedure, but also give us a metaphor by which we may call procedure to account and judge whether it fulfills its purposes. As Professor Rodes warns us, procedure separated from the purposes of God can easily be seen as a god itself, invoking our worship rather than our reformation.

Nonetheless, some, including myself, will find it hard to respond fully to Professor Rodes' invitation to take the theological considerations and relate them to our personal practice of our profession. The problem is not with the insights, but with the practice.

Like ourselves, people in the medieval world took law seriously. They had great law schools such as Bologna where professors expounded the Roman law of Justinian's corpus iuris civilis. They regarded the rule of law as a model for the social order. They explained their political disputes in terms of constitutional questions and their personal quarrels in terms of rights violated. Without this heritage the modern world would be inconceivably different.

They, however, lived in an Age of Faith while we live in a secular society. Surely, one would think, they must have conceived of law quite differently than we do. It would be illuminating to travel back in time and speak with a medieval jurist.

I have tried to imagine what that experience would be like. What follows is a report of a conversation between a modern student of law and legal history and a 14th century Bolognese law professor. My rule in constructing it was to allow my medieval jurist to stray as little as possible from opinions that prominent men of his age actually did express. His views on law reflect those of Bartolus and Baldus who wrote in his own century. His views on theology reflect those of Thomas Aquinas who wrote in the century before and with whose works Bartolus, Baldus and other 14th century jurists were familiar.

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.