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.

 

The honesty's too much, Iggy

The blogs were agog this weekend with the revelation by Maclean's of Michael Ignatieff's 2005 comments at Trinity College Dublin. Remarking on Canada’s “entirely bogus reputation as peacekeepers”, Ignatieff seems to have scandalized Canadians with some very anodyne truths that other citizens of the world might take to be self-evident.

 

“If you are a human rights defender and you want something done to stop a massacre, you have to go to the Pentagon, because no one else is serious.”

 

And:

 

“It’s disgusting in my own country, and I love my country, Canada, but they would rather bitch about their rich neighbour to the south than actually pay the note… To pay the bill to be an international citizen is not something they want to do.”

 

Our contribution to Afghanistan (small at a single skeleton brigade) notwithstanding, Canadian defence and foreign aid budgets as a percentage of GDP remain among the lowest in the world.

 

This blogger is heartened to think that Liberal foreign policy for an Ignatieff-led cabinet might involve more than parading Lester Pearson’s legacy naked around Ottawa. So sorry, Lloyd Axworthy – no soft power sequel.

Click here for the full story: http://www2.macleans.ca/2009/07/17/%e2%80%98bogus%e2%80%99-peacekeeping/

Was World War II Good?

Pat Buchanan is back with a full attack on WWII. In his book a few years ago, A Republic Not an Empire, he argued that the U.S. should have sat out WWII. Now in his latest book, Churchill, Hitler, and "The Unnecessary War": How Britain Lost Its Empire and the West Lost the World, Buchanan argues that Churchill actually caused WWII and relished it. In his magazine, American Conservative, there is a discussion on Buchanan's side.  Meanwhile Christopher Hitchens and Victor David Hansen take on Buchanan in this 5 part Youtube discussion:

Part 1 - Part 2 - Part 3 - Part 4 - Part 5.

International Law is Dead

I can't help but wonder if the concept of International law really exists when the state of Texas can just thumb its nose at the world court. Of course, one could argue that international law really does exist, it just lacks any real enforcement mechanism. This argument, however, fails, because even domestic courts lack any real enforcement mechanism except its moral suasion. After all there have been instances in American history when the executive has just refused to comply with a court order. Nontheless, no state or government today seems keen on outright defiance of its domestic courts.  But at the international level, the story is completely different.

"Illegal" Downloading

The BBC reports that an Afghan student has been sentenced to death "for allegedly downloading an 'un-Islamic' article from the web." One can only hope that BBC editors introduced the term "un-Islamic", or we would have to question why a country with such laws allows the use of the internet at all.

Baksheesh - The Canadian Way

Whenever anyone is thinking about travelling to the Middle East or Asia, one is warned about the bribery and corruption which they will face. Everyone is on the take, so you are told, from customs officials, to policemen, to ticket agents at train stations. Baksheesh - thats just the way it is.

Baksheesh - ha! What a joke. Come to Canada my friend and you'll see how it really is done.If Karlheinz Schreiber's testimony before the Parliamentary Committee told us nothing else, it did tell us how we conduct business here. Give money, lots of it, in cash preferably, and in brown paper bags, to those people who can win us some "influence" with the people who make the decisions. Karlheinz told is like it is - at least as he saw it. He said he gave $30,000 to Charest because he thought he would become party leader and he would remember Karlheinz when he came knocking.  He said he gave $300,000 to Mulroney because he thought Kim Campbell would become Prime Minister and Brian certainly knew Kim.  Karlheinz seemed surprised at the naivety of those questioners who wondered what his motivation was when he gave this money away to Charest and Mulroney.

At the end of the day, commentators all agreed that Mulroney came out pretty well from the day's testimony. After all, he did nothing illegal, and it was probably not even unethical at the time for a sitting MP to accept money for future work to be done. And, in Canada, paying people to open doors for you, to lobby decision makers with whom thay have personal and professional conections, is not illegal ; heck its not even unethical. Its good business - Canuck style.

And, by the way, in my four months in India no-one ever, not once, not for one rupee, suggested to me that I could get a better seat on the train, or get airline tickets on a sold out plane, if I gave them a few thousand rupees in a brown paper bag.

   

Torture and the Bush Justice Department

The New York Times today published a stunningly comprehensive and incisive report on the role of an elite Justice Department office in providing (disturbingly misguided) legal justifications for the worst excesses of America’s war on terror. The story highlights the role of young, ultra-conservative lawyers in sanctioning brutal (and according to many intelligence officials, mostly ineffective) forms of torture. It is becoming clearer and clearer that history will judge the Bush administration’s efforts (including the efforts of Justice Department and White House lawyers) on this front in the same light as the “Red Scares” and the internment of Japanese Americans during WW II. Truly shameful.

More on Omar Khadr

The new US Court of Military Commission Appeals has heard arguments in the case of Omar Khadr.  Khadr, as mentioned in a previous post, is a Canadian citizen accused of killing a U.S. medic in Afghanistan. 

The point at issue appears to be one of jurisdiction for the trial to resume.  When Congress enacted tribunals for Guantanamo detainees, it stipulated that only "unlawful enemy combatants" could be charged.  This did not, however, conform to Guantanamo's practice, which is to designate prisoners as "enemy combatants" (omitting the "unlawful" part). 

The government's position, as I understand it, is twofold:  first, that because Khadr was a member of Al-Qaeda, the "unlawful" part is established.  Alternatively, the trial's very purpose is to determine the unlawfulness of his actions in combat. 

A confession:  I neither know (much of international law seeming counterintuitive to me) nor care about the fate of any members of the Khadr family (except that I think his mother should be charged with child abuse).  It does seem, however, that his case shows how woolly terms like "unlawful enemy combatants" pose practical problems for judicial and quasi-judicial tribunals when asked to make concrete determinations about someone's status (and therefore future). 

Glass Houses and Stones

This blog, as many of you know, is a bit on the laissez faire side of things. So when news of Sen. Larry Craig's recent scandal made headlines, I was reminded that it was Sen. Craig insinuated that Canadians are untrustworthy for not abiding by the protectionist agreements between the two countries. Something about casting the first stone comes to mind.

No more wigs

for British judges? Well for some cases they will no longer wear them.

On another note, solicitors can now wear wigs after fighting for the right to wear them! What a right to fight for! This of course, ranks up there with other famous rights worth fighting for.

Lockerbie conviction may be overturned

It was reported today that the Scottish Criminal Cases Review Commission has found that the man found guilty of the 1998 Lockerbie bombing (and currently serving a 27 year jail sentence) may have been wrongfully convicted. The case will now be presented to the Scottish High Court for review.

This story highlights a central problem facing the law’s response to terrorism. In “ordinary” criminal cases, wrongful convictions are more likely when an “outsider” is identified as having committed a particularly horrific, brutal, or senseless crime. These conditions are especially likely to be present in terrorism cases. And they may (along with other factors) combine to produce an environment in which investigators and prosecutors, faced with intense pressure to solve and win the case, fall prey to the phenomenon of “tunnel vision,” in which evidence consistent with the suspect’s guilt is exaggerated and evidence inconsistent with it disregarded.

What can be done to minimize this risk? For starters, we should resist departing, in terrorism cases, from any of the procedural protections accompanying ordinary criminal trials. Such departures will inevitably increase the likelihood of wrongful convictions. Second, we need a better system in Canada for reviewing potential wrongful conviction cases after the usual appeal process has run its course. Unlike Scotland, we have no independent commission to review these kinds of cases. Reviews are performed by an arm of the federal Department of Justice. After repeated calls for reform, it is time for the Government to change this.