The Word and the Law.

• Author: Luban, David

In the introduction to this interesting book, Milner Ball(1) describes himself as a "theologian[ ] closeted in law" (p. 2). The metaphor is apt. It connotes at least these five things: that theologians in the legal profession often keep their "predilections" (p. 2) hidden; that they do so because their predilections are regarded by dominant prejudice as shameful, bizarre, and incomprehensible; that this dominant prejudice is wholly wrong; that theology, like homosexuality, represents a mode of human existence that is as ancient and venerable as humanity itself; and that it is high time to come out of the closet.

To American legal culture - in the courts, in law practice, and in the academy - theological incursions indeed arouse anxiety and antagonism. They evoke stereotypes of superstition, muzzy-headedness, religious particularism, narrowminded appeals to natural law, and, no doubt, a threat to the separation of church and state. Indeed, lawyers may believe, in a kind of unarticulated and bogus syllogism, that theological thinking in the law violates the Establishment Clause of the Constitution.

One understandable motive for these views arises from our tendency to identify theology with religion, and thus with some particular religion that by definition excludes all others. As we shall see, however, one of Ball's leading themes is that theology is not the same thing as religion; remarkably, Ball's own theology is skeptical of religion and downright hostile to exclusionary religious factionalism.(2) Thus, Ball's theological rendering of the law is not a sectarian brief, but something different or rather, several things different.

It is, first, an assertion that law is a moral achievement and not, therefore, at bottom a technology of governance. Holmes to the contrary, law must not be understood only from the bad man's point of view, or bathed in cynical acid. In his powerful final chapter, Ball flatly asserts that, to the extent law is rightly understood as an impersonal instrument of governance, it is, quite simply, identical to death. "Death is integral to American law," he writes (p. 136). Expanding on this theme, he castigates Felix Frankfurter's insistence that law is "not the application of merely personal standards but the impersonal standards of society which alone judges, as the organs of Law, are empowered to enforce,"13 responding: "In that statement, or so I ask you to consider, in that turn of mind, death takes textual form" (p. 137). The field of social action that we call law is an arena in which God's Word may or may not be enacted; only law animated by the Word can be anything other than death.

Ball's theology of law is, second, an essential step preparatory to thinking about ethics in law - "the kind of description that is necessary to ethics and precedes it" (p. 100). As Ball explains this point:

A book on ethics would be composed of an elaboration of... stories and examples...that are types of specific, episodic service of the neighbor, including service of the neighbor...by remaking dehumanizing institutions. These would be stories and examples of the Word taking form - action that is the responsibility and choice of humans, but action that is responsive to and engendered by the Word....In this book, I am attempting a description of the environment of decision in a given field of activity: the Word active and present in the practice of law. [pp. 99-100]

Third, and most important in the economy of the book, Ball's theology offers him a vantage point for making sense of the lives and works of seven legal professionals, five of them lawyers, whose stories occupy two fifths of Ball's pages. The remarkable opening chapter, almost seventy pages long, in which Ball describes their seven practices, is the heart of the book. Ball's portraits are lovingly painted, and their subjects are lovingly chosen. In the order that Ball presents them, the subjects are:

* Henry Schwarzschild, director of the ACLU's Capital Punishment Project;

* John Rosenberg, founder and director of Appelred, eastern Kentucky's federally funded legal services agency;

* Margaret Taylor, a housing court judge in Manhattan, exceptional for her compassion and stubborn defense of the legal rights of indigent tenants;(4)

* David Harding, a Turtle Mountain Chippewa who is a tribal judge for the Burns Paiute Tribe and has been a tribal judge for various other Northwest tribes;

* Tim Coulter, head of the Indian Law Resource Center;

* Steve Wizner, director of Yale's clinical law program; and

* Carla Ingersoll, a law student in Wizner's program who represents homeless clients.

Clearly, these are not a representative slice of the legal profession. All of them are poor people's or public interest lawyers - a point, as we shall see, of some theological importance for Ball. All of them are people of extraordinary competence, and most seem to be people of extraordinary energy as well. Ball presents all of them as doing the Lord's work - that, indeed, is Ball's explicit point about them. What moral we are to draw from such a remarkable group of people about law, or about lawyers, or about how one should live is not plain, and this is a question to which I shall return. Yet Ball structures the book as an attempt to develop theological categories for understanding these seven people; thus, the seven portraits he paints provide confirming or disconfirming data for the categories he develops.

What, then, is Ball's theology? Ball warns his reader at the outset: I do not here make a linear argument or advance a set of propositions toward a conclusion designed to compel readers' assent by the force of its logic. I make an argument, but in the sense in which we talk about the argument of a ballet or poem. I try for a performance, for affect and understanding more than agreement. [pp. 1-2]

Subsequently, he repeats his warning that he will abjure "hard-driving, irresistible arguments, for I covet your understanding more than your agreement" (p. 76). He is as good as his word and operates with a kind of bipolar exposition, alternating between clean, categorical, and dogmatic statements of his theological propositions, shorn of speculative or abstract argument to support them, and readings of literary and Biblical texts in the light of those propositions. The theological propositions are fairly easy to state, but summarizing them in a credo or catechism falsely suggests that the propositions, rather than the reading performances, occupy center stage. Keeping this warning in mind, we may nevertheless proceed.

Central to Ball's position is a distinction between religion and God's Word. "Religion is the attempt to know God" (p. 100). It is a set of practices, or investigations, or rituals that begin with what is human and attempt to bridge the chasm between the human and the divine. That, however, is impossible, for "[i]n the biblical stories God gives himself and makes himself known. This self-revelation does not correspond to religion, to human striving toward God" (p. 79). Like the Kantian thing-in-itself, God's Word, Ball twice tells us, is "incorrespondent" (pp. 85, 86). It reaches and affects us solely and uniquely by the agency of God, while religion, the human effort to invoke the Word, "misdirects by deflecting the search for God back upon the self" (p. 84). In this way, "from the biblical perspective, religion is unbelief" (p. 81). That is because "God makes his own way to humans, and his self-revelation bears its own possibilities for being known or not known. Jacob's ladder extended from heaven to earth, not the other way around" (p. 80). Religions try to launch the ladder to heaven, but, as the story of the tower of Babel signifies, the attempt exemplifies the sin of pride and ends in discord.(5)

Ball therefore cannot accept that "the present, active power of the Word should be restricted to performance in history only through faith, and then only through Christian faith" (p. 101). Manifestations of the Word are due entirely to God, not to the Christian religion. Christianity "cannot claim superiority over other religions; it can only claim solidarity with them" (p. 101). Sectarian Christians must remember that "Christian religion can only apply first to itself the judgment that religion is unbelief" (p. 101).

All this does not mean that religion is antithetical to the Word; Ball does not go so far as to identify religion with idolatry. Rather, religion can be "adopted by the Word" (p. 86). He illustrates his meaning through powerful readings of texts from William Faulkner's The Sound and the Fury and Toni Morrison's Beloved, in which religious services become occasions for genuine inspiration by the Word. In logical terms, Ball's view is this: Religion is not a sufficient condition for realizing the Word. Nor is it a necessary condition for realizing the Word. In his seven lawyer stories, Ball does not suggest that all of his practitioners are religious, though in his view their practices all manifest the Word in action. But religion is not inconsistent with the realization of the Word - even a religious service can be an occasion for God's grace. This ironic way of putting the last point I think captures Ball's paradoxical view of religion. While many orthodox Christians believe that the Church is the sole path to salvation, Ball's view seems instead to be the doubly negatived proposition that the Church is not necessarily not the path to salvation.

This does not mean that God chooses the site of salvation arbitrarily, or even unpredictably. Ball twice quotes a passage from Karl Barth: "Almost to the point of prejudice - [God] ignored all those who are high and mighty and wealthy in the world in favour of the weak and meek and lowly."(6) Ball comments that "[p]overty and selfgiving rather than power, wealth, and self-aggrandizement still constitutes the likely sites for gathering evidence of the Word taking positive form" (p...