Should a Christian lawyer sign up for Simon's practice of justice?

• Author: Shaffer, Thomas L.
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon

[T]he baptismal imagination of the New Testament is so peculiar and so particular because Christians are always odd men and women come together in odd communities and congregations, always at odds, always at risk, always in the presence of large cultural empires that want to dissolve our oddity for reasons of state.... We are forever reimagining and retelling and reliving our lives through the scandal of Friday and the rumor of Sunday. We, like Jews, devise signals of oddity, the notice of new life, the bread of brokenness, the wine of blessedness, and the neighbor--always the neighbor--who is for us a signal of the love of God.

-- Walter Brueggemann(1)

In The Practice of Justice,(2) Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it.(3) It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches,(4) and Rabbi Hillel teaches? and Rabbi Jesus teaches,(6) is practice following upon love of God and neighbor.

It may also make a difference that biblical justice is not derived from conventional morality,(7) while cultural sources of justice come from what Christians call "the world."(8) Unlike Professor Simon's justice, biblical justice is not derived from "the rule of law";(9) legal order is what St. Paul refers to as "authorities and potentates."(10) Biblical justice is not derived from fealty to the modern nation-state, which is analogous to what the New Testament calls the Beast.(11)

Those understandings of what justice is are not, however, the most evident differences. The most evident differences between Professor Simon's justice and biblical justice do not turn on principles, but on processes. Among Christians, biblical justice includes all of the moral implications of undertaking to follow Jesus, who acted in company. People in company tend to bump into other companies of people and tend to impinge on one another; and so biblical justice can often, no doubt, resemble what Professor Simon means when he talks about justice. The difference I would underline is this: Biblical justice is the product of moral discernment (ethics if you like) among those who gather for the purpose of deciding what biblical justice is.(12) Where it differs most from Simon's justice is that biblical processes are communal; they invoke and seek a "communal quality of belief,"(13) That is, they invoke both belief and community. One New Testament example occurs when St. James, spokesperson for the first set of Christian leaders, tells gentile Christians under what circumstances they are bound to follow Jewish Law. Before he announces the relevant rules, he tells them how the leaders' decision was made: "It is the decision of the Holy Spirit, and our decision ...."(14) The authority he claims depends on the facts that (i) God had been a party to the communal deliberations of what the church later called the Council of Jerusalem, and (ii) the decision had been made communally.(15)

1. ADOPTION BY GRANDMA

   We talk in the legal-aid clinic where I practice law about the recurrent case of a grandmother who wants to adopt her grandchild because the child's mother (the grandmother's daughter) is going off somewhere--in a couple of cases to the Army, which does not allow recruits to take their children to basic training. The child's mother is willing to sign away her "parental rights" entirely, to put her own mother in her place, no longer--in the eyes of the law--to be a mother at all. That is the arrangement Grandma wants. These two women, who are in agreement, need a no-cost lawyer to draw up the papers, set the adoption for hearing, and get their plan made official. Neither of them is interested in their lawyer's suggestion--the product of consulting "applicable background values"(16)--that there are less permanent ways to accomplish what they want.(17)

   If the conversation with the client (or clients(18)) is to continue, the lawyer here needs to decide with what moral argument he will explain his suggestion. Simon's route to moral argument is individualistic judgment, made by the lawyer (alone), disciplined by moral values implicit in the law,(19) and disciplined, beyond that or within it, by contemporary American culture.(20) All of those sources, in Simon's view, support the lawyer's being imperious about using lesser methods of giving Grandmother custody while Mother goes, say, into the Army.(21)

   In episodes of narrative display, biblical justice--from King Solomon's threatening to cut the baby in two(22) to Jesus, as he died, giving particular instructions for the care of his mother(23)--esteems motherhood. Biblical justice, as principle, might come out in this case with the same substantive morality that Simon's justice would, perhaps (children belong with their mothers). But to depend on a principle is to say nothing about how the lawyer goes about deciding what justice is in this case and then on how he and these two women go about deciding what their lawyer is to do.

   A couple of years ago, I put the Grandmother Adoption case to an adult Sunday School class in a Presbyterian church in Pennsylvania. I did this in order to seek communal discernment on a question of legal ethics, which is to say that I asked them to discern the working of biblical justice in this situation (so that I could then come to my client[s] with some comfort in the use of my lawyer's moral authority).(24) An indicative concern in that group--a concern I thought at the time rather stem and Calvinist--was whether the two adult women in the case were willing to submit their arrangement and their lives and the life of their child to the Lord. Were the people in my law office willing to follow Jesus? If so, the concern implied, the church could figure out what their lawyer should do. (I suppose my presence as teacher that day was sufficient indication that I had submitted my legal practice--or at least the apposite part of it--to the Lord.) Point: Biblical justice does not necessarily or maybe even often differ from what Professor Simon wrote about in its rejection of the adversary ethic. It differs radically, though, in the way it discerns how justice works, and--according to the stem Calvinist discovery I made--that way implies membership in the discerning community, which is not the same as membership in Simon's America.

   Which is to say that communal discernment of biblical justice is not a town meeting. It is informed not so much by notions of equality and freedom as by centuries of pondering scripture together, of learning together from theology (what Dietrich Bonhoeffer called the "memory of the church"(25)), and of communal formation in good habits--formation influenced by generations of believers (a room full of them present with me that Sunday in Pennsylvania).(26) All of this ethical substance depends on and is sustained by distinct membership and by ostensible, common commitment among those present.

2. COUNTERCULTURAL INFLUENCES

   As analysis, something Professor Simon is uncommonly adept at, biblical justice is disciplined, as is Simon's notion of justice, by contemporary culture and by the rule of law. Biblical justice is also disciplined by conscious memory of radical forms of countercultural witness from its history. The most significant countercultural witness for Christians is the moral example of an imprudent itinerant rabbi named Jesus who got himself killed by the government.(27) Consider three radical understandings of Christian moral example left to them by this rabbi, each of which is remembered by Christians as a direction for faithful discipleship and each of which, in my observation, disturbs Christians who propose to practice justice.

   There is, first, an economic reading that subverts all forms of business and of property ownership in favor not of equality, but of distribution to the economic underclass. The early Christian church lived under a vivid understanding of the Gospel mandate to surrender property to feed the poor; it lived under a system of common ownership; its politics was the politics of radical redistribution of wealth. The claims of the underclass to dignity and to material sustenance were understood as demand for the return of what had been taken from them, rather than (as in later centuries of Christianity) as claims in charity.(28) The later Christian church sidelined radical economic and political Christianity into such institutions as the monastery, as it also turned radical insistence on the meaning of the Gospel into heresy and focused its attention not on economic sinfulness, but on civic rectitude and rules about sex.(29) The modern American church has almost--but not quite-accommodated itself to capitalism, to the hegemony of the managerial elite,(30) and to what President Bush called a "thousand points of light." But Christians sometimes remember and are sometimes reminded of their radical economic and political roots--this despite the "unmitigated praise" of economic and legal "reason" that

   forces on us a disregard of the power of evil in the world, of the terror of injustice, even while the parade of victims streams before us, some very close to home. This necessary seductive doxology nurtures us not to notice--not to notice neighbor, not to notice self, not to notice hurt, not to notice healing or its costs--not to notice....(31) There is, second, a radical legal reading of Christ's example that subverts all forms of coercive power--not that renounces the law, or renounces obedience to the law (any more than Jesus did), but that declines the lethal power of the law. Christian legal subversion refuses...