University of Alberta Faculty of Law Blog

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.

 

Zealous Advocacy?

The New York Daily News is reporting that a lawyer for a notorious Guyanese gangster has been charged with conspiring to tamper with a witness. New York City lawyer Robert Simels (famous for representing, among others, Goodfellas' Henry Hill and the NY Jets' Mark Gastineau) was allegedly caught on a wiretap discussing the possibility of eliminating a witness through bribes or violence. As Simels' own lawyer put it, this was "nothing more than a lawful effort to vigorously defend his client."

Posner on Heller

First Judge Harvie Wilikinson critiques Justice Scalia's decision in Heller. Now Judge Posner adds to the attack from the right. (Via How Appleaing)

Other than the question of who is right on the issue of the second amendment and the proper role of the courts and legislature, I find it interesting that in the United States, there isn't much fuss kicked up when a lower court judge takes on a sitting Supreme Court justice.  In Canada, you will recall, there was quite fuss raised when the late Justice McClung took on Justice L'Heureux-Dubé in a letter to the editor over the latter's concurrence in Ewanchuk. I am not aware of any other recent incidents (loyal readers please educate me).

International influence of USSC waning; SCC's on the rise

Thanks to our colleague Linda Reif for bringing our attention to this story in the New York Times detailing the declining influence of the United States Supreme Court on other constitutional courts around the world. Our own Supreme Court, in contrast, has become increasingly influential.

Arar case to be reheard

This is quite an odd development from the United States Court of Appeals for the Second Circuit, and actually for that matter, for any circuit - in that the Second Circuit has decided that the entire 13 judge court will rehear the case. (HT Bashman) What is odd, is that the Second Circuit order the en banc rehearing without the lawyers for Mr. Arar even asking for it. I have no idea what this means, and the coverage on How Appealing and Volokh (including the linked post from the Center for Individual Rights) indicates that no one really knows how to take this. The Second Circuit could overrule the original decion's affirmation of the dismissal of the lawsuit by the trial judge or they could reaffirm the decision but with better reasoning.

McCain not a naturally born citizen?

There has been some speculation on whether John McCain can even be elected President of the United States. The issues seemed settled a while back when two experts Ted Olson and Larry Tribe opined that he could. Now a new paper by Gabriel Chin argues otherwise. I am linking to Larry Solum's discussion of the paper, which has the link, as his comments are quite useful too.

Guns Roundup

If you don't follow our comments, you missed an excellent discussion on the Heller decision. I would like to thank all who posted there.

Gun Rights II

A friend of mine from law school (who wishes to remain anonymous for professional reasons) who is also an avid friend of the second amendment sent me his notes on the Heller decision.  So for those of you who don't want to read through 157 pages, here are some highlights:

1. The “well regulated” militia language is prefatory; cannot limit or extend operative clause.  It simply announces the purpose.

2. The “Right of the People” means an individual right.  Scalia relies on analogies to the First and Fourth Amendments, and a close analogy to the Ninth Amendment.  All these usages are “unambiguously . . . individual.” 

3. The Militia was a subset of the people in colonial America.  If the prefatory clause were a limit on the operative clause, there would be a tension between the two clauses regarding who holds the right – the People (members of national community, broad right) or the Militia (limited subset, narrow right).

4. “Arms” does not have strictly military meaning. 

5. “Keep arms” means “to have weapons.”

6. “Bear” means “carry,” but “bear arms” means “carry [arms] for . . . confrontation.”  Offensive or defensive action is implied, but there  is no connotation of a structured military organization. 

7. “Bear arms” also had idiomatic meaning at time of founding, related to military service or activities, but only when followed by “against.” 

8. Operative clause amounts to an “individual right to possess and carry weapons in case of confrontation.”

9. “By the time of the founding, the right to have arms had become fundamental for English subjects.” [MY’s note: does this mean we in Canada have a right to argue this given that the English Bill of Rights was also received here?]

10. The prohibitions on carrying concealed weapons likely are constitutional, as are other “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . or laws imposing conditions and qualifications on the commercial sale of arms.”  These are only examples of permissible regulations; the list “does not purport to be exhaustive.” 

11. The need for self-defense is “most acute” in the home.  [MY’s note: the Canadian Supreme Court rejected the home is a castle is the Tessling decision a few years ago – will this hold here too?]

12. Ban from home of most popular type of firearm for self-defense would fail constitutional muster under any standard of review.

13. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

14. Therefore, the court ”hold[s] that the District’s ban on handgun possession on the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” 

Gun Rights

The first second amendment case in just under seventy years will be released tomorrow at 10am. Watch for it all over the blogosphere.

Are there any Economic Populists Left on the Judiciary?

Not at the US Supreme Court, anyways.

Veit J. takes a swipe at the US Supreme Court - and misses.

The Alberta Court of Queen's Bench turns 100 next month, and subscribers to the Edmonton Journal received this week a supplement mistakenly describing it as "Alberta's top court", and dubbed "a tribute to the cornerstone of life in a just society."

Included in this supplement were the comments of Madam Justice Joanne Veit on the thorny issue of judicial appointment.  Veit J. claimed that Canada's judicial appointments process results in, among other things, impartiality.  I don't dispute that the appointments process could be a lot worse, but there is in fact strong empirical research suggesting that bias, both political and gender-based, is inescapable.

But my objection concerning Veit J.'s comments relates to her description of the U.S. Supreme Court as a place of uncivil factions between the Republican-appointed majority and the Democratic-appointed minority.  Recent dissenting judgments from that minority, Veit J. says, have reflected frustration and a growing division.

With respect - and it bears mentioning that she may have been misquoted - the comments attributed to Veit J. are curious (OK, untrue).  The United States Supreme Court has been spoken per curiam in a remarkable amount of decisions.   True, a few vigourous dissents have been offered up, but rarely with more flair than, for example, some of Binnie J.'s searing broadsides at the Supreme Court of Canada (remember Chaoulli and the "how many MRI's does the Constitution require" crack?).

Sure, some of Justice Scalia's dissents are over-the-top, but in fact he is an excellent example of a cross-affiliation cameraderie at the U.S. Supreme Court that would probably put some Canadian courts to shame.  Justice Scalia's best friend on the court is famously Justice Ginsberg - old pals from their days on the D.C. Circuit, while ironically he is said to be most distant from his fellow traveller, Justice Thomas.  When Chief Justice Rehnquist marked 30 years at the Court, it was Justice Stevens who paid him the warmest tribute.

Such criticism, particularly criticism verging on ad hominem, would not be so head-shaking but for the notorious inability of a particular Alberta institution to claim a comparable degree of collegiality. 

Senator Larry Craig and moving goalposts.

What was U.S. Senator Larry Craig (R, Idaho) thinking?  After being arrested on suspicion of lewd conduct at Minneapolis-St. Paul International Airport in June, he pleaded guilty to a misdemeanour charge of disorderly conduct in (he hoped) an obscure Minnesota court where nobody would have heard from the gentleman from Idaho. 

The investigator's report (which gives new meaning to "flushing 'em out"), and the hope for a quiet disposition, had been the impetus for the guilty plea.  Now that the word is out, Senator Craig regrets not having consulted legal counsel and having pleaded guilty. 

The moral of the story? 

If you didn't do it, don't say you did.

Other stuff II

Over at Point of Law, I have a post on free speech, the death penalty for juveniles (which I have written an article on here), and Patent law.

On my No-Injury Lawsuits post, Pithlord asks:

I'm not sure I understand the logic of your "No Injury" article. Are you saying the only valid lawsuits are tort suits? Should we abolish the law of contract? If D has given P an implied or express warranty that a good will be safe, and it isn't safe, then that looks like a cause of action to me.

A return to contract is exactly what I want. The problem with the law (at least in the US) is that it has shifted so much away from contract and put much of it in tort.  Hence, my attack is on the use of tort law and consumer protection statutes as a means of getting at some idea that the consumer was ripped off.  If we focussed the law on contracts, consumers would have the opprtunity to fashion the "real bargain" they wanted, instead of the court guessing at what would they really would have paid if they knew the safety of the product was other than advertised. 

More Posts

Over at Point of Law, I have posted my third post on the Conrad Black saga, as well as one on the new standards for pleading antitrust cases in the US.

The Pants Lawsuit

As pointed out in the comments, the verdict is in on the great American pants lawsuit.  The plaintiff lost and the dry cleaners won.  The opinion is here, and the judgment is here (Via WSJ Law Blog).  The dry cleaners were cleared, and no liability was found.  The plaintiff was ordered to pay the defendant's court costs, but those are not the attorney's fees, but rather the filing fees, and which amount to about $1,000. There is a motion to make him pay the attorney's fees, but as Walter Olson points out, that burden is quite high to meet. Stay tuned!

Update: Bainbridge has a fun look at what would have happened had the plaintiff prevailed. My favorite:

Disappointed to find only gasoline in your tank, sue Exxon for failing to provide the "tiger in your tank" they promised.

The Pants Lawsuit

I am anxiously awaiting the verdict in the now infamous pants suit.  While I await the decision, I would comment Walter Olson's posting on the subject.