For some time Professor Kent Greenawalt has been struggling with the tough issue of when those with religious convictions may “properly rely on [them] in deciding what public laws and policies to support.” Professor Greenawalt's thesis is that individuals must resolve many public policy questions for which “publicly accessible reasons” provide an insufficient solution. Each person is therefore forced to resort to “personal experiences and commitments of value ….” Since “everyone must inevitably use ‘nonpublic’ reasons … people whose experience leads them to religious convictions should not have to disregard what they consider the critical insights about value that their convictions provide.”

I admire Professor Greenawalt's work greatly and find in it much with which I agree. In two important respects, however, I differ. The first is a matter of perspective. Professor Greenawalt's goal is to determine when a good member of our liberal democracy would rely on his or her religious convictions. My goal is to determine when an obedient Christian would do so. Our difference in approach is best shown by Professor Greenawalt's comments concerning one of his illustrations, Jody. Jody believes that God both “considers the drinking of alcohol to be sinful” and “wishes that organized societies stamp out this practice ….” Professor Greenawalt believes that Jody, in seeking laws against the drinking of alcohol, would not be acting like a good, liberal democratic citizen.

John Calvin was a student of law before he was a systematic theologian. Although he soon left behind a career in the law, his legal training and orderly mind are evident in his theological writings. While we must be wary of the simplistic and misleading assumption that the Institutes of the Christian Religion reads like a lawyer's treatise, we cannot deny that certain habits of mind dating from his law school days remained with Calvin when he turned to writing a comprehensive exposition of Christian doctrine.

Scholars debate the extent to which particular elements of the Institutes were influenced by Calvin's legal training. Certainly the law of God is a prominent theme throughout the Institutes and especially in Calvin's treatment of the uses of the law and the Decalogue. But Calvin's familiarity with law and the legal system is demonstrated most clearly in a portion of the Institutes that has rarely received scholarly attention. Lodged within his treatment of civil government are several sections where Calvin discusses the attitude Christians should adopt towards the secular legal system. In these sections, and in his later commentary on The First Letter of Paul to the Corinthians, Calvin argues that a Christian is not barred from making use of the secular legal system, but warns against resort to litigation unless the Christian can bring the proper inner disposition — love — to the proceeding. Calvin's analysis is rooted in his reading of I Cor. 6:1-11, but also evinces a keen understanding of legal practice and of the psychological and moral costs of litigation.

The term “customary law” has been variously defined by the judiciary, legislatures and by academic lawyers who have attributed to it equally varying characteristics. In the former Eastern Region of Nigeria, the term has been defined to mean a rule or body of rules regulating rights and imposing correlative duties, which obtains and is fortified by established usage. The Evidence Laws of Nigeria similarly define custom to mean “a rule which, in [a] particular district, has from long usage obtained the force of law.” Allott, the pioneering scholar of African customary law, also defined it to refer to “the rules which trace back to the habits, customs and practices of the people which engender and support the norms expressly formulated from time to time for the decision of disputes.”

“African Law” has come to be identified as a term that describes the customary laws of the various peoples and communities who have come under a colonial power.

The study of customary law was initially undertaken by curious anthropologists who went far and wide throughout the colonial possessions of their mother country to discover and describe the lives of the natives for the consumption of their academic colleagues. In their endeavor to understand their subjects better, colonial administrators often commissioned or otherwise sponsored such studies and ultimately put these discoveries to good use in the service of the imperial power. The anthropologists were followed—or, some would argue, were preceded—by legal and administrative officers in the service of the colonial office. While they were writing their memoirs or otherwise commenting on their experiences in the service, they occasionally described how the received English law fared in its transplanted soil but they hardly took any interest in analyzing its interaction with and impact on the native laws with which it co-existed in the colonial territories.

What sort of relation between religion and government does the Constitution of the United States affirm? As anyone even remotely familiar with the subject will know, this question is large as well as enormously complex and invites reflection on a host of subsidiary problems: What are the precise meanings of the religion clauses of the Constitution's first amendment, clauses which proscribe congressional legislation “respecting an establishment of religion, or prohibiting the free exercise, thereof”? How broadly is the notion of “religion” to be construed here? Does the implied right of free exercise attach to any commitment or action conscientiously embraced (e.g., conscientious objection to participation in warfare)? Or are we to interpret the guaranteed religious freedom in narrower terms? What precisely is the relationship between the “no establishment” and “free exercise” provisions? Might there not be circumstances in which conditions necessary to ensure genuinely free exercise require the sort of “excessive entanglement” that suggests governmental establishment of religion (e.g., state support for parochial schools)? Or is such a worry founded on mistaken understandings of the “free exercise” and “no establishment” provisions? Are the amendment's anti-establishment restrictions limited to federal legislation or do the restrictions apply also to state governments via “incorporation” provisions of the fourteenth amendment? Is the primary purpose of the religion clauses to protect government from religion or religion from government, and if the latter, does the Constitution then permit governmental support of religion so long as no particular religions are preferred? Would such support destroy a “wall of separation” erected by the first amendment? Or is the idea of a “wall of separation,” in this understanding at least, foreign to the sense of the constitutional text? In what respect is knowing the original intentions of the first amendment's framers or ratifiers relevant to interpreting the meaning of the amendment's provisions? How are these intentions to be discovered? And so forth.

I believe that a person accused of wrongdoing should have an opportunity to respond to the charge. This chance is particularly urgent when the accusation, if proved, subjects the accused to punishment. Response to an accusation is expected both by the accuser and the accused. The scope of response to an accusation should include the accused's ability to argue that he or she is not guilty: not blame-worthy; not deserving of sanction.

Response to an accusation may take several forms. The accused might, for example, deny the validity of the charged wrong. That is, he or she might argue that the articulated statement of the wrong, the rule allegedly breached, was not within the authority of the charging party to promulgate; or claim that the creation of the rule by the charging authority was procedurally defective and the rule invalid on that basis regardless of substance. Or, the accused might agree to the substantive and procedural legitimacy of the rule, but deny that he or she did the acts which the charge alleges. Then again, the accused might concede the general legitimacy of the articulated standard of wrongdoing and his or her violation of that standard, the protection of which the person would ordinarily want, but the accused might offer a special case story of exculpation.

The third response, an admission to the doing of a proscribed act followed by an explanation which seeks vindication, is the subject examined here as it operates in the system of criminal law. I call this response the justification story. Legal practice controls the opportunities of one accused of criminal wrongdoing to respond to an accusation with a justification story. I will use two notions, “law as integrity” and “deviationist doctrine,” as ways to ask how the law interprets the justification story in the legal practice of criminal law.

The last generation of Lockean scholarship has witnessed a radical reappraisal of the traditional interpretation of Locke as a secular political thinker, a defender of individualism, and a champion of the natural right of private property. The new picture of Locke which has emerged through these more recent studies is the result of an attempt to interpret his various writings in their historical context. The appearance of John Dunn's The Political Thought of John Locke in 1969 marked a critical turning-point in the evolution of the historical approach to Lockean studies. Building upon the work of Von Leyden, Laslett, and Abrams, Dunn sought to interpret Locke in terms of the latter's own intentions and self-understanding. The single most important key to a recovery of Locke's own intentionality, Dunn argued, was a recognition of the “centrality” of his underlying religious commitments to his thought as a whole.

Since the appearance of Dunn's essay, the fundamental significance of Locke's religious beliefs for his moral and political thought has been generally acknowledged. Assuming the validity of this hypothesis, Locke's rationalism must now be seen within the framework of his religious convictions. Locke attempted to resolve the tension between the two in terms of the law of nature; but, for him, moral obligation remained ultimately dependent upon religious faith in God as Creator and upon an understanding of humanity as God's workmanship.

The fact that covenant played a central role in the religious life of ancient Israel has long been recognized by historians, theologians and other careful leaders of the biblical text. Walther Eichrodt's monumental Theology of the Old Testament remains perhaps the best known and most extensive treatment of covenant themes in the Hebrew Bible. But in recent years biblical scholars and theologians as diverse as Jon Levenson, James Muilenberg, Eugene Borowitz, Rosemary Ruether and David Hartman have increasingly devoted their attention to the concept of covenant, both its biblical roots and its persistence as a central category of religious life for Jews and Christians into the modern era.

Yet, the implications of covenant for Jewish ethics have not received the attention they merit. To be sure, it is universally acknowledged that Jews, traditionally speaking, have understood their religious obligations within the context of the covenantal relationship between God and Israel. And some have noted that, as a consequence of this, Jewish ethics are addressed to members of a covenanted community, rather than to autonomous individuals. Some have also explored the tensions within the covenant idea between particularism and universalism, while others have distinguished between the conditional and unconditional dimensions of the covenantal relationship. Still, there has been no systematic effort to correlate the category of covenant in all its richness and subtlety with diverse streams within Jewish ethics.

The contemporary turmoil in Eastern Europe and the former Soviet Union reflects acceptance by their populations that collectivism has failed them and that they have more to hope for from the property rights systems of the West. In economic terms, indeed, Western culture has depended fundamentally on these rights, and in recent years economic historians have been paying increasing attention to them. In doing so, however, they have encountered a problem which they are unable to solve within the terms of their own discipline: economics relies on the concept of agents who act only according to rational self-interest, but property rights as they can actually be found in history have often reflected forces that can only be described as altruism. Economics is now therefore having to take account of cultural factors in the formation of property rights, and the deeper these are studied the clearer the religious influence on them appears to be.

The earliest type of property must have been in the form of “exclusive communal” rights which, by establishing some form of defence against “outsiders,” prevented the latter from sharing in a resource which a tribe considered to belong to it. It is plausible that the historical shift from hunting and gathering to settled agriculture depended on the development of such rights. However, the extent to which they can lead to prosperity on their own is quite limited.

Recently academic inquiry has taken up the challenging question of whether or not the “ancients” had any concept of human rights, or even possibly a functional equivalent. This question piqued the interest of the scholarly community in the summer of 1989 when former Prime Minister Thatcher, on a visit commemorating the bicentennial of the French Declaration of the Rights of Man, declared that Human Rights were to be credited to the Greeks in the first instance (and then, of course, to the British).

Apart from the interest raised by such provocative comments, there is further political interest (at least as far reaching in its implications) such a question has. This is for the simple reason that it is difficult for the modern mind to grasp the notion of a democracy without a concomitant idea of human rights—or at least the rights of citizens. Since we model our polis on the Greeks' and the Romans', the question of whether or not they had the equivalent of our rights is the natural follow on for any inquiring mind with a political bent.

The Spanish Cardinal Merry del Val once said that for the Protestant, the Bible is a wax nose to be twisted anyway one pleases. The same could be said for the lawyer and equity. That intellectual quick-silver of justice called equity has taken on many different guises in many different contexts throughout the history of law. It has been both friend and foe to individuals as well as groups in times of legal conflict.

Throughout history, appeals to notions of equity, the spirit of the law that “bloweth where it listeth,” have been made by individuals and groups whose needs were not being met by the strict letter of the law. Individual pleaders, often the poor and oppressed, have made appeals to equity in order to overcome the severe effects of the letter of the law. Civil rights leaders, labor unions and women suffragists have appealed to the broad concept of equity in order to effect social change.

Although appeals to equity have often wrought positive change in the law, equitable power is seldom (if ever) in the hands of those who have the perfect “mind of God,” that impartial eye that metes out justice from a totally balanced scale. Nor can it be said that equitable power has at all times been sought by those who are in positions of weakness and oppression. Perhaps this is why the famous Selden called equity a “roguish thing,” likening it unto the measure of the Chancellor's foot.

The venerable law of tort has emerged as an important legal weapon in the long history of church-state wars and religious persecution. Religious groups are being sued for millions of dollars in damages for intangible emotional injury and tens of millions more in punitive damages, all for what looks very much like their free exercise of religion. Unlike criminal sentences which are carefully circumscribed by statute, civil damages, particularly punitive damages, can pose an invitation to each jury to become both lawmaker and enforcer, free to impose a monetary sanction practically without limit.

Until recent years, no one imagined that these powers could or would be brought to bear upon churches for religious activities. Today, however, lawsuits are routinely filed that label as fraud, false imprisonment, or the intentional infliction of emotional distress, such fundamentally religious activities as conversion of new church members, the discipline and excommunication of wayward adherents, and pastoral counseling. Clerical scandals and debates over the application of church rules are brought before people wearing judicial robes, not clerical vestments.

If these once sacrosanct domains are being declared fair game for litigation against traditional religious institutions such as the Catholic Church and the major Protestant denominations, how much more have the imaginations of plaintiffs and their lawyers been active in dealing with the “new religions” or “cults,” such as Krishna Consciousness, the Unification Church, Scientology, The Way International, and Seventh-Day Adventists. Affiliation with those new religions has been called kidnapping and their most fundamental religious practices have been branded “coercive persuasion” and “brainwashing.”

As we all know James Luther Adams is a very hopeful person. This was most clearly seen in Jim's suggestion that I give the James Luther Adams lecture this year. My guess is that he heard that the overall theme of this year's annual meeting was justice and he hoped that, as a lawyer and a person who allegedly was doing theology from the vantage point of a lawyer, I should have something to say about the subject.

Several problems come to mind immediately with this expectation. The first is the problem of saying anything that JLA has not already said with greater depth and humor. The second problem is best expressed by the story of the young law school student who naively asked one of his law school professors to tell him what was meant by justice. The professor responded that, if he wanted to find out about justice, he should go across the street to the divinity school. He crossed the street only to be told to reverse directions and ask someone at the law school. We might explain this by saying that both schools are limited by narrow perspectives—perhaps a positivistic perspective at the law school and a pietistic perspective at the seminary. Another answer might be that each has trouble trying to figure out what justice is all about. In reading the latest discussions of justice, I gained a new appreciation for the slipperiness of the subject. Is Clarence Darrow right when he said about justice, “no one knows what it means.”

Religious organizations play an active role in the American economy. They have traditionally been involved in service industries such as health care and education. More recently, certain religious organizations have also become involved in such diverse activities as psychological counseling and economic development. Moreover, the largescale hierarchial nature of certain churches make them an employer of thousands. Consequently, the risk of entanglement in civil litigation has greatly increased for religious organizations. Even though the first amendment has typically shielded religious organizations, the growing tendency of courts to grant wider judicial access to plaintiffs with claims of first impression poses a threat to the litigation exposure of religious organizations.

The rule has long existed that religious organizations, like everyone else, can be sued if they participate in secular or “non-ecclesiastical” activities. For instance, if religious organizations enter into a contract to purchase land, they are as Uable on that contract as any other individual or organization in society. Likewise, religious organizations have also become liable for the negligence or abuses committed by their members during the course of counseling services offered to lay persons, even if that counseling involved religious matters.

The area of greatest uncertainty and highest risk in the legal responsibilities of religious organizations, however, is not taking place in the realm of secular activities; rather, it is taking place increasingly in more ecclesiastically-related areas. The Catholic Church, for instance, has been held responsible for the spiritual and counseling activities of its priests.

Theology and law share much in common, including a long history of justifying violence against women. Critics of legal and religious institutions need not look far to find texts offering evidence that both kinds of institutions are hopelessly mired in a patriarchal history that renders them obsolete, and apparently unable to offer anything significant concerning justice for young women victims of abuse. These ancient texts unapologetically proclaim that young women were to be treated as property of their fathers or husbands:

Today, freedom and equality often seem in conflict. The planned Nazi March through Skokie and laws banning books which sexually exploit women are but two examples. This conflict is all the more troubling when equality and religious freedom collide, given their mutual and long-standing support. That dilemma is plainly raised by the Civil Rights Restoration Act of 1988.

Congress passed the Act to overturn Grove City College v. Bell. The Supreme Court in that case had narrowed Title IX of the Education Amendments of 1972, forbidding sex discrimination in education programs receiving Federal funds, to cover only that part of a recipient's program which actually received the assistance. Fearing this construction would limit other civil rights statutes as well, Congress adopted the Act which, in defining “program” broadly, placed most fund recipients in their entirety within the commands of Title IX and of the Age Discrimination Act of 1975, § 504 of the Rehabilitation Act of 1973, which prohibit age and disability discrimination respectively, and Title VI of the Civil Rights Act of 1964, which forbids discrimination by reason of race, color, or national origin.

Hence, Congress passed the Act to promote equality, but at the expense of religious freedom, since, aware that the Act would apply also to churches, Congress refused, nonetheless, to exclude them from its recipient-wide coverage. Whether the balance thus struck is constitutional frames the issue this essay will attempt to address.

Though freedom of religion remains one of our most cherished values, it is still among the most controversial of constitutional rights. This is especially true in the context of military service. Even those who purposefully enlist in the armed forces, implicitly giving up certain liberties they freely enjoyed as civilians, would not relinquish their freedom of conscience. Yet the right to practice their religious beliefs, unfettered by arbitrary governmental restrictions, is regularly challenged.

Fortunately, however, most western cultures regard religious liberty as so fundamental that their military establishments routinely develop regulations to accommodate specific religious practices.

This principle was of particular import in the recent conflict in the Persian Gulf, during which the American government sought to limit the conduct of its military personnel so as not to offend the religious sensibilities of fundamentalist Arabs, specifically the host nation of Saudi Arabia. To what extent such political and strategic restrictions impinge upon basic constitutional principles is a question that has not yet been fully explored.

In County Of Allegheny v. American Civil Liberties Union, the United States Supreme Court held that the establishment clause of the first amendment of the Constitution did not permit Allegheny County, Pennsylvania to allow a local Catholic group to display a nativity scene inside the county courthouse. At the same time, however, the Court permitted a city display of a Chanukah menorah next to a Christmas tree on the steps of the Pittsburgh City Hall. The Court divided 5-to-4 in invalidating the creche and 6-to-3 in upholding the menorah, with no single opinion commanding a majority of the Court on the question of the Chanukah symbol. More importantly, the majority opinion officially adopted the Endorsement test, a new analytical tool which uses a case-by-case balancing approach in which constitutional judgments concerning religious symbols are dependent upon the physical setting of the particular practice.

The Endorsement test originates from a 1984 case, Lynch v. Donnelly, in which the Court upheld a city-sponsored nativity scene that was surrounded by Santa's reindeer, a wishing well and candy canes. Justice O'Connor's concurring opinion stressed that the result in each case should turn on the “unique circumstances” and “particular physical setting” involved. Her opinion specifically focused on whether the practice at issue would be perceived as a government endorsement of a religious belief. By incorporating the use of “perspectives” during the decision-making process, the Endorsement test reflects the contribution of neutrality as a theoretical standard which recognizes that individuals perceive the world differently, and that one individual's neutrality may be another's bias.

It is a thousand miles from the coast of the land of Israel to the city of Rome, over the sea that is called in both Hebrew and Latin, “the Sea In-Between.” The closing chapters of the book of Acts tell of the Apostle Paul's journey over that sea, from Caesarea to Rome, around the year 60 C.E. By this time, of course, Paul had made many journeys in his life: from Tarsus to Jerusalem, Jerusalem to Damascus, to Ephesus, Athens, Corinth and numerous other cities east of Rome. At the conclusion of his Epistle to the Romans, Paul mentions that he planned to visit Rome as well, on his way to Spain. But as best we can tell, when Paul did finally come to Rome, his wanderings ended, for he came as a prisoner, and it was in Rome, according to Church tradition, that he was eventually put to death.

In the book of Acts, the portrayal of the events leading up to Paul's journey to Rome—its description of his arrest and subsequent appearances before various courts and authorities—is clearly reminiscent of the Gospel descriptions of Jesus' arrest and execution approximately thirty years earlier. In both accounts, we read of disturbances in the Temple, crowds of angry Jews calling for an innocent victim's death, his arrest and confrontations with both Jewish and Roman authorities, and acknowledgement by representatives of Rome of the victim's innocence. However, the conditions surrounding the two series of events suggest two very different historical moments. And Paul's response to those who would sit in judgment of him, and to the jurisdictions they represented, at least as recorded in Acts, suggests a sea of difference between Paul's outlook and that of his Lord.